text:
    10987.
    SHANEYFELT v. THE STATE.
    1. The evidence was sufficient to show a breaking and entering of the store alleged to have been burglarized.
    2. Whether the inference of guilt which may arise from recent possession of stolen goods should be drawn where several weeks elapse between the theft and the finding of the goods in the defendant’s possession is a question for the jury.
    3. A charge on the law of circumstantial evidence was not required in the absence of a request.
    4. The evidence authorized the verdict.
    Decided December 9, 1919.
    Indictment for burglary; from Floyd superior court—Judge Wright. October 1, 1919.

      W. B. Mebane, for plaintiff in error.

      G. E. Porter, solicitor-general, • contra.
   Bloodworth, J.

The evidence in this case shows that certain goods were in the store of the prosecutor on Friday night and were gone Saturday morning when he opened his store. The prosecutor swore that “the only way the party who got the goods could have entered the store was to either prize open or unlock the door. There was nothing broken about the door. It was one of these double doors, having a little catch at the top and at the bottom, and when I locked the door on Friday night before, the little catch at the bottom evidently did not catch, as, upon examination of it Saturday, I found that little catch full of dirt or sand, and in that condition one could easily prize the door open. I tried this on Saturday and found it could be prized open in this condition, and in the manner stated. I know I had fastened the door securely on the night before. The windows to the store were all nailed down, and were the next morning when I entered Jhe store.” TJnder the ruling of the Supreme Court in the case of Humphries v. State, 149 Ga. 480 (100 S. E. 637), this evidence was sufficient to show a breaking and entering. In the Humphries case the Supreme Court differentiates the case of Lester v. State, 106 Ga. 371 (32 S. E. 335), relied on by the plaintiff in error, from such cases as this one, and says that “an examination of the record in the case just referred to discloses that certain facts do not appear in the official report of the case; but when these facts are considered the ruling made by the court was undoubtedly correct.”

The goods found in the possession of the defendant were positively identified as the goods taken from the store of the prosecutor on the night, of the burglary, and we cannot say that the jury was not authorized to infer the guilt of the accused from the possession of the stolen articles, though several weeks had elapsed between the date of the burglary and the time the goods were found in the possession of the defendant. “The question of the result of the lapse of time is for the jury.” McAfee v. State, 68 Ga. 823; Chandler v. State, 18 Ga. App. 142-3 (89 S. E. 197). Compare Calloway v. State, 111 Ga. 832 (36 S. E. 63); Turner v. State, 114 Ga. 47 (39 S. E. 863).

When all the facts of the case and the entire charge are considered, there was no error, in the absence of a pertinent, legal, and timely written request, for the judge to fail to charge on circumstantial evidence. See in this connection, Bush v. State, 23 Ga. App. 126 (97 S. E. 554).

The evidence on the question of alibi is uncertain and indefinite. Not one of the witnesses who swore in reference thereto fixed absolutely and without equivocation the time of the alleged absence from the locality of the defendant as the night of the burglary. The jury are the final arbiters on questions of fact. They have found against the defendant on the question of alibi, and there is evidence sufficient to support the verdict, and, no error of law having been pointed out, the judgment must be

Affirmed.

Broyles, C. J., and Lulce, J., concur.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    10988.
    Daniel v. The State.
    Decided December 9, 1919.
    Rehearing denied January 6, 1920.
    Indictment for burglary; from Cobb superior court—Judge Morris. October 6, 1919.
    Application for certiorari was denied by the Supreme Court.
    The indictment charged that the accused broke and entered a certain storehouse and took and carried away certain automobile tires and tubes, with intent to steal them. A number of specific objections to the description of the articles alleged to have been taken were made by demurrer to the indictment, and it tvas contended that because of insufficiency in the respects stated the indictment was fatally defective. The property was described as follows: “ten Lee Automobile tires, non-skid and plain tread, of various and sundry dimensions, to wit, 30x3% inches, 31x4 inches, 34x4 inches, said automobile tires being of the value of two hundred and fifty dollars, and six Lee Automobile inner tubes and rubber tires, the same being then and there the property of . . Ealph W. Northcutt, and being then and there in said storehouse contained and stored.”

      C. M. Dobbs, Abbott & Wallace, Glay & Giles, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Broyles, C. J.

1. The court properly overruled the demurrer to the indictment. See, in this connection, Blackmon v. State, 24 Ga. App. 384 (100 S. E. 730).

2. Conceding, but not deciding, that the court erred in refusing to charge section 1062 of the Penal Code of 1910, and in failing to instruct the jury that if they found the defendant guilty of burglary they had a right to recommend that he be punished as for a misdemeanor, this error was evidently harmless, since the jury in their verdict (under the indeterminate sentence act approved August 18, 1919, Ga. L. 1919, p. 387), fixed the minimum punishment of the defendant at ten years in the penitentiary when they could have fixed it at one year only. This verdict clearly shows that even if the requested charge had been given, the jury would not have recommended a misdemeanor punishment for the defendant.

3. The other special grounds of the motion for a new trial are not argued in the brief of counsel for the plaintiff in error, and are treated as abandoned.

4. The verdict amply authorized, if it did not demand, the defendant’s conviction of the offense charged, and the court did not err in denying a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    9715.
    Groves, adm’x, v. Bibb Sewer Pipe Company.
    1. On the traverse of an answer of “not indebted,” filed in response to a summons of garnishment, the issue is, whether the garnishee had at the time of service, or between that time and the date of his answer, assets of the defendant in his hands.

      (a) Under the answer of the Supreme Court to the certified question in this case (149 Ga. 542, 101 S. E. 190), the statement in the headnote in Mosely v. McGough, 69 Ga. 748, that “on the traverse of an answer of not indebted, filed in response to a summons of garnishment, the issue is, whether the garnishee had at the time of service, or has since had, assets of the defendant in his hands,” is not correct, and it will not be followed as a ruling of that court.
    2. There is no statute of force in this State making the process of garnishment available to a creditor who seeks to subject realty of his debtor in the possession of a third person to the payment of the creditor’s debt.
    (а) The word “property” in section 5272 of the Civil Code of 1910 does not include land.
    (б) Nor do the words “legacy or distributive share,” in section 5304 of the Civil Code include land, or any interest therein.
    3. Applying the principles of law stated above to the facts of the instant case, the finding in favor of the traverse and against the answer of the garnishee was contrary to law and the evidence, and the court erred in overruling the general grounds of the motion for a new trial.
    Decided December 10, 1919.
    Garnishment; from city court of Macon—Judge Guerry. March 21, 1918.

      8. B. Hunter, II. F. Strohecher, for plaintiff in error.

      Hardeman, Jones, Parle & Johnston, Harry 8. 8trozier, contra.
   Broyles, C. J.

Certain questions involved in this case were certified by this court to the Supreme Court, and the latter court, in answer thereto, ruled substantially as set forth in the. 1st and 2d headnotes, supra. For an elaboration of these notes see the full opinion of the Supreme Court in Groves v. Bibb Sewer Pipe Co., 149 Ga. 542 (101 S. E. 190).

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    9978.
    Fountain v. The State.
    Decided December 10, 1919.
   Bloodworth, J.

The judgment originally rendered by this court in this ease (23 Ga. App. 113, 98 S. E. 178), having been reversed by the Supreme Court (149 Ga. 519, 101 S. E. 294), the former judgment of this court is vacated, and the judgment of the trial court is

Reversed.

Broyles, G. J., and Luke, J., concur.

Conviction of manslaughter; from Ben Hill superior court— Judge Crum. July 9, 1918.

John W. Bennett, II. J. Quincey, for plaintiff in error.

J. B. Wall, solicitor-general, A. J. McDonald, contra.


text:
    10380.
    BEAUFORT COUNTY v. LANE.
    The contract sued upon in this case stipulated for a penalty and was unenforceable, and the general demurrer to the petition was properly sustained.
    Decided December 10, 1919.
    Complaint; from city court of Savannah—Judge Freeman. February 19, 1919.

      Baussy & Baussy, for plaintiff,
    cited: 1 Corpus Juris, 2,3; 183 U. S. 666; 6 Bing. 141; 2 Bos. & P. 345; 21 Ch. Div. 243; 38 Ann. Dec. 136; 9 N. Y. 551; 29 Ann. & Eng. Enc. L. (2d ed.) 407, note 1; 4 Exch. 776; 69 Ga. 764; 33 Ga. 536; 177 Mass. 72; Elliott, Contracts, § 1559, p. 849; 91 Ga. 450; 101 Ga. 619; 132 Ga. 849; Sedg. Dam. (8th ed.), § 396; 8 Ohio C. C. (N. S.) 489; 10 Laws of England (Halsbury), rule 5, p. 330; Chitty, Contracts (9th Am. ed.) 898; 1 Sedg. Dam. (9th ed.) 791, 792; 144 Ga. 660; 1 Ga. 472; 48 N. Y. 532; 249 U. S. 361.

      Hitch & Denmark, for defendant,
    cited: 4 Ga. App. 722; 17 Ga. 609; 137 Ga. 531; 145 Ga. 484; 6 Bing. 141; 9 M. & W. 678; 6 Barn. & Cress. (13 E. C. L.) 216; 13 Cyc. 95, 101; Suth. Dam. 916-17, 921, §§ 294-5.
   Bloodworth, J.

A contract was entered into between Beaufort County, South Carolina, and Mills B. Lane, the material part of which is as follows: “Whereas said Mills B. Lane and associates are the owners of the ferry franchise and right to run a ferry from the end of said causeway to the City of Savannah, now, therefore, in consideration of the premises and for further consideration of $1.00 each to the other this day in hand paid, the parties have agreed as follows: The said county is to construct said landing within ninety days from the date hereof, and to fix the causeway and maintain same in a condition suitable for travel. The said Mills B. Lane and associates guarantees, upon the completion of the landing and the repair of said causeway, that the Savannah Ferry Company or some other corporation or individual will provide and put in service a suitable, commodious ferry-boat and run the same in an acceptable manner between said Union Causeway and the City of Savannah, by making at least three trips both ways daily (except Sunday when two trips may be made) for a period of not less than three years, charging reasonable and lawful tolls in keeping with the amount of business handled. Should said Ferry Company or their lessees, for any reason except that said landing or causeway be destroyed by storm or freshet, abandon said service before the end of said period, then and in that event said Mills B. Lane guarantees to reimburse Beaufort County the amount spent in constructing said landing, not to exceed $3000.00. Should the boat employed in said ferry service be destroyed by fire or storm or otherwise, the said Ferry Company shall have a reasonable time to replace her.” Beaufort County sued Lane on this contract, alleging in part: “Your petitioner shows that, having expended the said above-named large sum of money in building the said landing, and because of the failure of the said Ferry Company or its lessees to continue to operate the said ferry as above alleged, the said defendant has become indebted to your petitioner in the said sum of three thousand dollars, as provided for in the said contract.” The petition was dismissed on general demurrer.

It will be noted that the contract provides: “Should said Ferry Company or their lessees, for any reason except that said landing or causeway be destroyed by storm or freshet, abandon said service before the end of said period” (italics ours). “Said service,” as here used, evidently refers to the kind and character of service described in the first part of the contract, to wit: (1) to provide and put in service a suitable, commodious, ferry boat; (2) to run the same in an acceptable manner between said Union Causeway and the City of Savannah; (3) to make at least three trips both ways daily, except Sunday,-when two trips may be made; (4) to continue said service for a period of at least three years; and (5) to charge reasonable and lawful tolls in keeping with the amount of business handled. The abandonment of “said service,” or any material part thereof, at any time before the expiration of the three years named would constitute a breach of the contract, and upon said breach provision is made for Lane to pay a fixed and unvarying sum, without taking into consideration the extent of the breach or the time thereof. The contract stipulated for a penalty, and was illegal and unenforceable, and the learned judge of the trial court did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


author: Luke, «T. Broyles, C. J.,

text:
    10412.
    HARVEY v. BOYD et al.

    Decided December 10, 1919.
   Luke, «T.

1. The code provisions with reference to a retraxit (Civil Code (1910), §§ 5624, 5625) are derived from the English common law, and must be construed accordingly. 3 Bl. Com. 286; 7 Stand. Ene. Proe. 652.

2. At common law a retraxit differed from a voluntary withdrawal by the plaintiff of his action, in that a retraxit terminated both the action and the right of action, while such a withdrawal terminated the action only, leaving in the plaintiff the right to recommence his suit upon the same alleged right. The pending action was dismissed as effectively by the one as by the other. Neither could be entered except in open court, nor even then without leave of the court, nor at all if it worked prejudice to any other party, either defendant or coplantiff. See 7 Stand. Enc. Proc. 656 (b), and citations in note; 18 C. J. 1152, § 5, and notes.

3. By the act approved December 23, 1843 (Cobb’s Digest, 475), from which section 5627 of the Civil Code of 1910 is derived, a plaintiff is given the same right to dismiss his action in vacation that he previously had, and still has, to dismiss it in term time. Except as changed by the statute, the common-law rule stated above is still of force in this State. Cobb’s Digest, 721. The present law in point is more fully stated in section 5548 of the Civil Code of 1910, which is derived from a blending of the common-law rule and statute-law rule above mentioned. But “any right of the defendant” as expressly preserved by the code section last cited is no more sacred and is no better protected by the law than are the rights of a eoplaintiff or any other party at interest.

4. From what is said above it follows that where, as in this case, the action is brought by two persons jointly, and a retraxit is entered by one of them, without the express consent of the other, the court does not err in refusing to dismiss the action as to the other plaintiff and in permitting him to continue it in so far as his own rights in the subject-matter of the suit are concerned.

5. If the action be construed as brought by two equal copartners on a right of action belonging to the firm, then neither partner has a right to enter a retraxit for the firm without the express consent of the other partner. Civil Code (1910), §§ 3169, 3171, 3172, 3175.

6. For no reason assigned did the court err in overruling the demurrer of the defendant, or in overruling the motion of the defendant to dismiss the plaintiif’s petition.

Judgment affirmed.

Bloodworth, J., concurs. Broyles, O. J., dissents.

Complaint; from city court of Floyd county—Judge Nunnally. February 35, 1919.

M. B. Eubanhs, for plaintiff in error.

Nathan Hwn-is, L. H. Covington, contra.

Broyles, C. J.,

dissenting. This was a joint suit brought upon a joint contract, by two persons,—partners, and their petition shows that the cause of action was a joint one. After the retraxit of one of the plaintiffs was filed, no amendment to the petition was offered by the remaining plaintiff to meet the changed condition of the case caused by this retraxit. The right of action was joint, and if one of the plaintiffs could not recover, the pending suit could not, at least without proper amendment, be prosecuted by the other plaintiff. I think the court erred in refusing to dismiss the case.


author: Luke, J.

text:
    10413.
    Harvey v. Boyd et al.

    Decided December 10, 1919.
    Complaint; from city court of Floyd county—Judge Nunnally— February 35, 1919.

      M. B. Eubanhs, for plaintiff in error.

      Nathan Harris, L. H. Covington, contra.
   Luke, J.

This case is controlled by the decision this day rendered in Harvey v. Boyd, ante, 561.

Judgment affirmed.

Bloodworth, J., concurs; Broyles, O. J., dissents.


text:
    10445.
    WESTERN AND ATLANTIC RAILROAD COMPANY v. WHITE PROVISION COMPANY.
    The judge in his charge to the jury having expressed or intimated his opinion on what had or had not been proved as to material facts in issue, the provisions of § 4863 of the Code of 1910 require that a new trial be granted.
    Decided December 10, 1919.
    Action for 'damages; from Fulton superior court—Judge Bell, February 7, 1919.

      Tye, Peeples & Tye, for plaintiff in error.

      Brewster, Howell & Heyman, contra.
   Bloodworth, J.

The White Provision Company brought suit against the Western and Atlantic Railroad Company for damages, alleging in part that they were engaged in buying, slaughtering, and selling cattle, hogs, etc.; that their plant was in Fulton County, Georgia; that a carload of hogs was shipped them from Kelso, Tennessee; that the shipper applied to the railroad at Kelso for a ear 36 feet long in which to ship said hogs; that a car of that length was large enough for the shipment; that the railroad, as it had a right to do for its own convenience, furnished a ear 38 feet long; that the freight from Kelso to Atlanta on a 36-foot car was $53.50, and on. a 38-foot car was five per cent. ($2.65) more; that the railroad at Kelso accepted $53.50, the amount of freight on a 36-foot car as ordered, but that when the ear of hogs arrived in Atlanta the railroad demanded the additional amount of $2.65, the same being the freight on a 38-foot car, before the delivery of the hogs; that petitioner refused to pay this additional sum at first, but finally paid it under protest; that because of the delay in delivering the hogs the petitioner was damaged, etc. The railroad company denied liability, and insisted that the shipment required the 38-foot ear, which “was loaded with hogs to its full visible capacity, and defendant did insist upon the payment by plaintiff of the sum of $2.65 additional freight charges on said carload of hogs. Said car was a 38-foot car loaded to its full visible capacity, and the rate of freight insisted upon by defendant was the rate provided by the tariff schedule of file and in force governing such shipment under the provisions of the act of the Congress of the United States of February 4, 1887, and amendments thereto, known as the act of [to?] regulate commerce, and this defendant was under the legal duty to collect such freight charges.” The trial resulted in a verdict for the plaintiff, and the defendant excepted. One ground of the motion for new trial alleges that the court erred in charging the Jury as follows: “I further charge you that the fact that the plaintiff subsequently complied with such claim of the defendant and paid said charges under protest would not. authorize you to reduce the damages that had, up to said time, resulted from the illegal act of the defendant, and that you cannot consider that if the plaintiff had sooner acquiesced in such illegal demand the. damages resulting from such illegal conduct on the part of the defendant would have been lessened.” Plaintiff in error' insists, that this charge was error “in that the same characterized the act of defendant as ‘illegal,’ and the demand made by defendant as ‘illegal/ and amounted to and was, as given to the jury, an expression of opinion by the court as to questions of fact.” The real issue in the case is as to whether or not the railroad was right in demanding the additional $2.65 freight. We agree with plaintiff in error that the part of the charge quoted above is "an expression of opinion by the court as to questions of fact.” and is clearly violated of § 4863 of the Civil Code of 1910. This being true, the decision must be reversed and a new trial granted.

If other errors were committed in the trial of the case, they are of such nature as are not likely to recur on another trial, and it is unnecessary to consider the other allegations of error.

Judgment reversed.

Broyles, G. J., and, Luke, J„ concur.


text:
    10583.
    CUTTER & COMPANY v. CENTRAL BANK AND TRUST CORPORATION.
    1. Collateral security in the hands of a creditor is not subject to garnishment by other creditors (Civil Code'of 1910, § 5296); and under the facts of this case the garnishment did not reach the surplus of the proceeds of the security in the hands of the secured creditor, arising from a sale made after the garnishment had been answered.
    2. The court did not err in admitting in evidence on the trial of the traverse to this garnishment the answers to interrogatories sued out for use on the trial of a traverse to a previous garnishment between the same parties and used on that trial.
    Decided December 10, 1919.
    Garnishment; from Eult.on superior court—Judge Ellis. March 19, 1919.
    1. J. H. Cutter, in business as J. H. Cutter & Company, sued out garnishment on January 30, 1917, based on a pending suit in which the Brown-Cramer Cotton Company was defendant. Summons of garnishment was issued and served on the Central Bank & Trust Corporation on March 10, 1917. An answer denying indebtedness was filed by the garnishee on May 16, 1917. On July 3, 1917, the plaintiff filed a traverse to the answer. The ease was tried on an agreed statement of facts and on evidence set out in the following opinion, and the court directed a verdict in favor of the garnishee; to which the plaintiff excepted.
    2. In the agreed statement of facts it is stated that "this is a traverse of the answer of the Central Bank and Trust Corporation to the second summons of garnishment served upon it in this case.” As to the interrogatories of F. H. Bates the bill of exceptions states: “Said interrogatories were sued out on April 23, 1917, and were answered on May 3, 1917,- before garnishee had filed its answer to which plaintiff filed this traverse. Said interrogatories were sued out to be used at the trial of a traverse to the answer of the Central Bank and Trust Corporation in a previous garnishment between the same parties, which traverse was tried on May 28, 1917, at which trial said interrogatories were used by said garnishee. It was not stated or shown that said F. H. Bates was dead, disqualified, or inaccessible, or that any reason existed why his interrogatories could not have been taken for the present trial. To the introduction of said interrogatories plaintiff objected on the ground that they were sued out and used in another case. . . The court overruled plaintiff’s objection to the interrogatories and allowed them to be read as evidence by garnishee.” To this ruling the plaintiff excepted.

      T. B. Higdon, H. N. Fuller, W. T. Shore, for plaintiff in error.

      Candler, Thomson &-Hirsch, contra.
   Luke, J.

This case arises by reason of service of process of garnishment upon Central Bank and Trust Corporation by the plaintiff, and the statutory traverse to the garnishee’s answer denying indebtedness. The trial upon the traverse was had upon the following agreed statement of facts and evidence: “This is a traverse of the answer of the Central Bank and Trust Corporation to the second summons of garnishment served upon it in this cause, the answer having been filed on May 16, 1917. At the time of the service of the summons the Central Bank held warehouse receipts belonging to the Brown-Cramer Cotton Company, for 2,002 bales of cotton then stored with the Atlanta Warehouse Company. These receipts were held as collateral security for indebtedness of the Brown-Cramer Cotton Company to the Central Bank, amounting to $155,429.76. At the time the Central Bank filed its answer in garnishment, on May 16, 1917, this cotton was worth 20 cents per pound, and the 2,002 bales weighed 946,170 pounds. On May 28, 1917, the 2,002 bales were sold for $188,523.02, bringing 2iy2 cents per pound, or 20^ cents net. During the pendency of the first garnishment in this cause, which was served on the Central Bank on January 30, 1917, and was answered March 5, 1917, said cotton was- worth from 16 to 18 cents per pound.” A. P. Coles, sworn for the garnishee, testified as follows: “On May 28, 1917, I was vice-president of the Central Bank and Trust Corporation, and on that date I sold 2,002 bales of cotton which the bank held as collateral security for the indebtedness of the Brown-Cramer Cotton Company. $155,000.00 of the funds was applied to the indebtedness of the Brown-Cramer Cotton Company and the balance remitted to the Albany National Bank. Not a cent was turned over to the BrownCramer Cotton Company. The figures show what the cotton brought per pound, around 20% cents I think. I don’t remember whether the cotton market was going up or down. I was familiar with it at that time. It was very hard to sell that.grade of cotton at that time for 20 cents per pound. It had not been selling for that price; it had been selling very much lower. That was a very fine price we got for that cotton. I don’t remember how much lower it had been selling, but there was practically no sale for poor cotton. I could not tell you what this cotton would have sold for on May 16. I remember we got a very fine price, because the cotton was very poor in grade. I made the sale as soon as I had a good price on it. I had to do it. We were all watching the market every day. The cotton had been practically unsalable on account of the grade. I mean by “unsalable” anything like the market value. I do not know what the market was except by the sale; generally a thing is worth what it will bring. I think this cotton sold above the market value. It brought 21% and 20% cents net,—21% cents for middling cotton. I knew what the price of cotton was up to that time. I don’t know what it was 12 days before that. The balance of $33,093.00 I sent to the Albany National Bank.”

The garnishee introduced interrogatories of F. H. Bates, who testified as follows: “I am cashier of the Albany National Bank and was so on December 29, 1916. The Brown-Cramer Cotton Company was indebted to this bank on December 29, 1916, in the amount of $249,499.37. This indebtedness originated on account of money advanced by the bank to said Brown-Cramer Cotton Company, which money was used for the purpose of paying for the cotton. As serarity for this indebtedness the Bank held compress receipts of 1995 bales, stored in Albany, Cordele, and' other places. $214,763.08 of said indebtedness was paid on December 29, 1916, by the Brown-Cramer Cotton Company. The collateral, being the cotton receipts above mentioned, was surrendered to the compress companies, in lieu of which the railroads issued bills of lading to Brown-Cramer Cotton Company, who in turn indorsed them and attached them to drafts drawn by themselves on the Central Bank and Trust Corporation. A balance of $34,736.28 remained unpaid, and to secure this indebtedness Brown-Cramer Cotton Company transferred their equity in the above 1995 bales of cotton, on December 29, 1916. The transfer is as follows: ‘Albany, 6a., Dec. 29, 1916, As collateral for our account for balance due the Albany National Bank on nineteen hundred ninety-five (1995) bales of cotton shipped Atlanta Warehouse Company, on which we have drawn sixteen (16) cents per pound, we hereby transfer our equity in same to said Albany National Bank, they having advanced the money to pay for said cotton. Brown-Cramer Cotton Company, by P. J. Brown, President.’ There is still due from the BrownCramer Cotton Company to the Albany National Bank the sum of $34,736.28 of the indebtedness existing on December 29, 1916. I have no official connection with the Brown-Cramer Cotton Company. Its indebtedness to the Albany National Bank arose during the cotton season of 1916. It is not evidenced by note except a $10,000.00 note, a copy of which is attached to these interrogatories, marked ‘Exhibit B.’ The security which the Albany National Bank holds for this indebtedness, which is a transfer of the equity of 1995 bales of cotton, the original of which is attached to these interrogatories, has not been recorded in Dougherty County or Eulton County, 6eorgia. This security was taken on December 29, 1916, to secure the balance due the bank. At the time the security was given, the cotton was in process of shipment to the Atlanta Warehouse Company. The transfer which the Albany National Bank holds as security for the indebtedness of the Brown-Cramer Cotton Company is the transfer of the equity of the Brown-Cramer Cotton Company in 1995 bales of cotton. This instrument has not been recorded. The Albany National Bank through its cashier has not put the Central Bank and Trust Corporation of Atlanta on notice of the transfer to said former bank of the defendant’s equity in said cotton. S. B. Brown is President of the Albany National Bank. He has no official connection with the Brown-Cramer Cotton Company. The Albany National Bank holds no deposits, money, or property of the Brown-Cramer Cotton Company which can be applied to the indebtedness of said company to the bank other than the transfer of the equity in the cotton above mentioned. S. B. Brown is liable to the Albany National Bank on the notes it holds against the Brown-Cramer Cotton Company. The Albany National Bank has not released their lien or claim on the cotton of the Brown-Cramer Cotton Company.”

The court directed a finding in favor of the garnishee, and the plaintiff excepted.

The record shows that the Albany National Bank had advanced on the cotton a large sum of money, and was holding the receipts therefor; that an arrangement was made whereby the cotton so held should be transferred to a warehouse in Atlanta Georgia, and, upon the receipt so held, the garnishee, Central Bank and Trust Corporation, advanced^ on the cotton a certain sum which was less than the amount that had been advanced by the Albany National Bank, the amount so advanced being paid to Albany National Bank. There was left a balance due the Albany National Bank, and for this balance the equity of the owner of the receipts was sold and transferred to the Albany National Bank. When the cotton was sold by the garnishee there was realized a sum in excess of what the garnishee had in the cotton, this sum was paid to the Albany National Bank, and it was insufficient to pay the advance as originally made by that bank. We do not think the garnishment reached this money. "Collateral securities in the hands of a creditor shall not be the subject of garnishment at the instance of other creditors.” Civil Code (1910), § 5396. It appears that the liquidated surplus in the hands of the garnishee was not known or ascertainable until after the garnishee had answered, and for this reason, if for no other, such sum could not be reached by the garnishment in this case. See Kyle v. Montgomery, 73 Ga. 337; Hall v. Paige, 4 Ga. 428 (48 Am. Dec. 235). There are instances in which equity, upon proper pleadings, might distribute or hold the fund to answer the garnishment. See Smith v. Worley, 10 Ga. App. 280 (73 S. E. 428); Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 630-31 (56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. R. 356, 9 Ann. Cas. 347). In . addition to what we have just said, it was proper, because of the lien of the Albany National Bank, that the surplus held by the garnishee be paid to the bank. See Southern Flour & Grain Co. case, supra; Walton v. Horkan, 112 Ga. 814, 816, 817 (38 S. E. 105, 81 Am. St. R. 77).

The objection raised as to the admissibility of the interrogatories is without merit. See Radford v. Ga. & Ala. Ry., 113 Ga. 627 (39 S. E. 108); Allen v. Farmers & Traders Bank, 129 Ga. 748 (59 S. E. 103).

From the record in this case it was not error to direct á verdict against the traverse and in favor of the garnishee.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    10623.
    ATLANTIC PAPER & PULP CORPORATION v. BOWEN.
    By the amendment to the petition in this ease (a suit against a builder for injuries from the collapse of a roof of a building upon which the plaintiff was working for the defendant) the case was taken out of the ruling in Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100), on which was based the former decision in this case (23 Ga. App. 249, 97 S. E. 867). The amendment did not set out a new and distinct cause of action, and the petition as amended was not subject to the demurrers.
    Decided December 10, 1919.
    Rehearing denied January 28, 1920.
    Action for damages; from Chatham superior court—Judge Meldrim. April 2, 1919.

      Travis & Travis, Hitch & Denmark, for plaintiff in error.

      Oliver & Oliver, contra.
   Bloodworth, J.

On the former appearance of this case before this court it was held that “this ease in principle is controlled by Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100), and cit. The court erred in overruling the general demurrer to the petition.” See 23 Ga. App. 250 (97 S. E. 868), where the allegations in the original petition are set out. After that decision and before the judgment of this court was made the judgment of the superior court, the plaintiff amended his petition, and, among other things, alleged that the defendant company had three vice-principals, Wilbur, Stokes, and Overstreet, each of -whom was an alter ego of the corporation; that they were in charge of the construction of the shed that collapsed and caused the injury to the plaintiff; that in behalf of the defendant company they had and exercised the power and authority of laying out, directing, supervising, and controlling the work of the employees on this job, of determining how the work should he done and seeing that it was done; that the defects which caused the collapse of the building “were not due to the negligence of fellow servants of petitioner,” but “were defects of material and of construction furnished and erected under the supervision of the vice-principals of the defendant company, namely, Wilbur, Stokes and Over-street;” that “just prior to the time petitioner and other ¿ínployees were ordered upon the roof, the defendant company had made no inspection of the roof-girder H, or of the supports of the section of the building which collapsed;” that “petitioner did not know that such inspection had not been made, and did not know of the defects described, but relied, as he had a right to rely, upon the due performance of the duty of the defendant to its employees, and supposed that his employer would not send him upon a structure weak, defective and dangerous;” that “the defendant company knew of the defects and weakness of the roof-girder H. It knew of the defects and weakness of the support B; it knew of the condition of the ground underneath, and that the same was likely to settle. The defendant company knew that the end of the roof was likely to collapse; . . it knew that no inspection had been made; . . that petitioner had never worked about the end of the building or about the girder which collapsed. He did not know of the defects in the construction and erection of the roof-girder, its support, or the ground underneath. He knew none of the defects complained of, . could not ascertain the same in the exercise of ordinary care, was in the exercise of ordinary care, and is free from fault. To petitioner the dangers and defects in the south end of the building were latent and concealed dangers, unknown to him, and not discoverable in the exercise of ordinary care. They were dangers known to the defendant company. . . The defendant company did not perform its duty to petitioner by warning him of the dangers by which he would be threatened.” There is also an allegation that “roof-girder H, the flooring joists on top thereof, and the sheathing nailed on top of the roof-flooring joists, were permanent structures. They had been completed.” It is also alleged that “the weight of the roof-timbers, the sheathing, and the men doing the work was about 20,000 pounds.” The allegations of negligence in the petition as amended are in part as follows: “in failing to determine and ascertain the amount of weight of the various timbers, building material, and workmen to be carried by the roof; in erecting and constructing under the supervision of its vice-principals a defective girder insufficient to carry the weight of the roof and the material and workmen to be supported thereby; in placing a certain support upon a defectively filled place in the ground, which the defendant company knew to be defective and would settle; in failing properly to inspect the said roof structure prior to sending workmen and material thereupon; in failing to warn petitioner of the defective construction of the section that had been thus defectively constructed by its vice-principals. Because the defendant company did not, as the building progressed in its erection, make the same safe, secure, and stable in its permanent and completed portions; . . and in placing upon said section a greater quantity of building material than the same could carry, the defendant company having placed on said roof approximately 20,000 pounds of men and material, when the same was so defectively constructed that it would not carry the same.”

The amendment to the petition clearly takes the case out of the ruling in the ease of Byrd v. Thompson, supra, as it alleges that the injury to the plaintiff was not due to the negligence of fellow servants; that the servant had no knowledge of the defects complained of, but that the master had knowledge thereof and failed to disclose the defects to the plaintiff, and there is also an allegation that “roof-girder H, the flooring joists on top thereof, and the sheathing nailed on top of the roof-flooring joists, were permanent structures. They had been completed.” The issue to be determined here arises on a demurrer to the petition, and all well-pleaded matters in the petition must be accepted as true. It is therefore held: (1) that the amendment to the petition did not set out a new and distinct cause of action (see City of Columbus v. Anglin, 120 Ga. 785 (5,6), 789 (3,4,5), 796 (6) 48 S. E. 318); and (2) that the petition as amended set ont a cause of action, and the demurrers thereto were properly overruled.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


author: Bloodwobth, J.

text:
    10624.
    Atlantic Paper & Pulp Corporation v. Johnson.
    Decided December 10, 1919.
    Rehearing denied January 28, 1920.
    Action for - damages; from Chatham superior court—Judge Meldrim. April 2, 1919.

      Travis & Travis, Hitch & Denmark, for plaintiff in error.

      Oliver & Oliver, contra.
   Bloodwobth, J.

This is a companion case to that of Atlantic Paper <& Pulp Corporation v. Bowen, ante, and is controlled by the opinion renrendered in that case.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    10625.
    Atlantic Paper & Pulp Corporation v. Owens.
    Decided December 10, 1919.
    Rehearing denied January 28, 1920.
    Action for damages; from Chatham superior court—Judge Meldrim. April 2, 1919.

      Travis & Travis, Hitch & Denmark, for plaintiff in error.

      Oliver & Oliver, contra.
   Bloodworth, J.

This is a companion case to that of Atlantic Paper & Pulp Corporation v. Bowen, ante, 569 and is controlled by the opinion in that case. •

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    10646.
    NISBET v. VANDIVER.
    1. The motion to dismiss the writ of error is overruled.
    2. Where the instructions to the jury cover substantially all the issues in the case, in the absence of a proper and timely written request, a party will not be heard to complain that his contentions were not more specifically given to the jury.
    3. “Newly discovered evidence which is merely cumulative, or which tends to impeach a witness, is not cause for a new trial.”

      4. There being some slight evidence to support the verdict, and the verdict having been approved by the trial judge, this court is powerless to interfere with it.
    Decided December 10, 1919.
    Action for damages; from DeKalb superior court—Judge Smith. April 14, 1919.
    Application for certiorari was denied by the Supreme Court.
    The ground upon which it was contended that the writ of error should be dismissed was that the evidence was not properly briefed.
    As to failure to use due care and skill in treatment of patient, counsel cited: Civil Code (1910), § 4437; Abridge v. Nolle, 114 Ga. 949; Nevinger v. Haun, 197 Mo. App. 416 (196 S. W. 39, 43); 31 Buling Case Law, 381; 31 Am. & Eng. Ene. L. (3d ed.) 510, XIII; Bates v. King, 191 Mass. 585 (77 N. E. 1154); Pace v. Cochran, 144 Ga. 363; Hinkle v. Smith, 13 Ga. App. 496; Hdwards T. Roberts, Id. 140.

      Green, Tilson, & McKinney, for plaintiff in error.

      Hill & Adams, contra.
   Bloodworth, J.

Lee Winn Yandiver, by next friend, A. L. Yandiver, sued E. P. Nisbet, alleging in part that said Nisbet “was engaged in the practice of the profession of medicine, and was a licensed practicing physician and surgeon, in the town of Kirkwood, State and county aforesaid,” and that said Nisbet, in extracting a lower tooth, had permanently injured him by failing: (a) “to properly administer the cocaine or other drug or compound given petitioner, and failed to exercise a reasonable degree of care and skill and diligence, in that he used an unclean and infected needle to administer said cocaine, and also injected unsterile cocaine into petitioner’s gums preparatory to extracting said tooth;” (b) “to exercise reasonable and ordinary care, skill, and diligence in selecting and using clean faucets [forceps?] or instruments for the purpose of extracting petitioner’s tooth as aforesaid;” (c) “to exercise reasonable and ordinary care, skill, and diligence in diagnosing petitioner’s illness after the extraction of his said right-jawbone tooth as aforesaid;” (d) “to exercise reasonable and ordinary care, skill, and diligence in prescribing for and treating petitioner after the extraction of said tooth as aforesaid;” that as a result of this, gangrene developed in his lower jaw, on account of which “an operation became necessary which required the removal of three inches of his right jawbone, and also his lower lip had to be opened from his mouth to the lower extremity of his chin, and that, by reason of the removal of his said jawbone and the opening of his chin as aforesaid, petitioner’s face was disfigured and will remain disfigured for the remainder of his life, and his facial appearance has been mutilated and disfigured and rendered unnatural, and he will be embarrassed and humiliated for the remainder of his life by reason of said injuries as aforesaid, which petitioner avers are permanent,” and that at the time of the extraction of the tooth the petitioner was eight years old axid in good health. The defendant filed a plea in which he denied the charges of negligence, and alleged that “if any gangrene developed in the wound from which said tooth was extracted, it occurred after defendant’s connection with the said case had terminated, and was in no manner caused by defendant.” A trial resulted in a verdict for the plaintiff, the defendant filed a motion for new trial, which was overruled, and he excepted.

The motion to dismiss the writ of error is overruled.

When considered in connection with all the facts of the case, and in the light of the entire instructions given, the excerpts from the charge of the court of which complaint is made show no error that requires the grant of a new trial; the instructions of the court to the jury covered substantially all the issues made by the pleadings and the evidence, and only such issues; and in the absence of proper and timely written requests for more,specific instructions, the defendant will not be heard to complain that his contentions were not more specifically given to the jury. See Butler v. State, 21 Ga. App. 149 (1) (94 S. E. 267).

The ground of the motion in reference to the alleged newly discovered evidence of Doctors Duvall and Hinman is without merit. An amendment to the petition shows that Dr. Duvall was one of the physicians who performed the operation when a part of the jawbone of the petitioner was removed. This amendment was filed on August 15, 1917, and the case was not tried until the December term, 1918. Dr. Hinman was a witness and testified at the trial. As to a part, if not all, of this alleged newly discovered evidence the court might well have found that the movant had not shown proper diligence, and the only effect of this evidence would be to impeach certain witnesses for the plaintiff. “Newly discovered evidence which is merely cumulative, or which tends to impeach a witness, is not cause for a new trial.” Sweat v. State, 90 Ga. 316 (3) (17 S. E. 273).

There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform, rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently 'decidedly against the weight of the evidence, the trial -judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited.

Judgment ■affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    10655.
    HINES, director-general, v. GREEN.
    The court did not err in overruling paragraph 5 of the defendant’s demurrer, nor in admitting testimony complained of, nor in charging the jury. ’The evidence authorized the verdict, which has the approval of the trial judge, and it was not error to overrule the motion for a new trial.
    Decided December 10, 1919.
    Action for damages; from Whitfield superior court—Judge Tarver. May 28, 1919.

      Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error.

      Atkinson & Born, F. K. McOutchen, contra.
   Luke, J.

Suit was instituted by Green, alleging that, while employed as a fireman on a locomotive engine, the engineer in charge thereof, by his unskilled management of the locomotive, and by reason of his incompetency, and negligence in applying the brakes to the engine and train that the locomotive was drawing, caused the brakes to the engine to stick and the engine and train to stop in a tunnel, and that, as a result of such negligence and ineompetency, before the plaintiff could escape from the position in which he was placed, the smoke and gases issuing from the engine asphyxiated and seriously injured him. The jury found a verdict in favor of the plaintiff, and the judgment overruling the defendant’s motion for a new trial is here for review.

1. The complaint is made that the court erred in permitting the plaintiff to prove the kind of coal that was used. We do not agree that this was error. The testimony of itself serves to illustrate the issue and throws light on the transaction.

2. The plaintiff was permitted, over objection of defendant, to show that the engineer, who was alleged to be unskilled and incompetent, had on the same day so applied the brakes as to cause them to stick and stop the train at another point. We see no error here in the light of the petition. Such testimony would throw light on the allegation of unskillfulness, incompetency, etc., in view of the testimony for the defendant by the engineer and the airbrake expert, to the effect that it was .impossible to cause the brakes to stick as pleaded by the plaintiff. There is no such proof of collateral or independent acts of negligence as that passed upon the case of Western & Atlantic R. Co. v. Slate, 23 Ga. App. 225 (97 S. E. 878).

3. From a reading of the entire charge of the court it appears that the complaint in ground 3 of the motion for a new trial is without merit. It is only necessary that the charge of the court shall cover substantially the issues made by the pleadings and the evidence. While the Federal “employer’s liability act” may not have been read literally to the jury, it was given substantially and in such manner as not to confuse or mislead.

4. There is no merit in grounds 4 or 5 of the motion for a new trial. If a more specific instruction was desired, a proper request should have been made. The contentions of the parties were given in such manner as not to confuse or mislead the jury.

5. Ground 6 is to the effect that the court referred to the defendant as “defendant company.” The suit was originally brought against the Western and Atlantic Eailroad Company, and the name of the Federal director-general was substituted by amendment. We can not agree that the court’s reference at one or more times to the defendant as “defendant company” worked such injury or harm to the defendant as to require a new trial.

6. The assignments of error in grounds 7, 8, and 9 of the motion for a new trial, in view of the pleadings, the evidence, and the charge as a whole, are free from harmful error.

The evidence almost demanded, if it did not demand, a finding in favor of the plaintiff for some amount of damages. The trial of the case was free from any error- that possibly could have affected the verdict. For no reason assigned did the court err in overruling the potion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


author: Bkoyi.es, 0. J.

text:
    10682.
    Tilley et al. v. Crawford-Miller Company.
    Decided December 10, 1919.
    Complaint; from city court of Camilla—Judge Burson. June 2, 1919.
    Crawford-Miller Company sued W. A. Tilley and T. Z. Tilley on a promissory note signed by the defendants and payable to the plaintiffs, which recited that it was given for the purchase-price of a certain mule, $345. The defendants filed a plea in which it was alleged, that T. Z. Tilley signed the notes as surety only; that on November 2, 1914, the mule was levied on under the foreclosure of a mortgage of the defendants for purchase-money; that at the time of the levy the defendant W. A. Tilley inquired of the levying officer as to when the mule would be sold, and the officer informed him that it would be sold on the regular sale day in December, 1914, and would be advertised 30 days prior to the sale, as required by law; that neither of the defendants had any notice of an application for an earlier sale of the mule as perishable property, nor that it would be sold under a quick order; that on November 7, 1914, the plaintiff “ attempted to perform a sale” of the mule under the mortgage foreclosure, and did have a pretended sale, at which the plaintiffs became the purchasers of the mule for “the ridiculous price of $110.73;” and ever since this pretended sale the defendants have been deprived of the possession and use of the mule; that, being without prior notice of the sale, the defendants were not present and had no opportunity to protect themselves against the sacrifice of their property at public outcry; that the fair market value of the mule at the time of the pretended sale was equal to its market value when purchased by the' defendant W. A. Tilley from the plaintiffs, and its value on N ember 7, 1914, was not less than $345; that the defendants waive the tort committed by the plaintiffs in thus seizing and converting the mule, and they adopt the transaction and claim that the plaintiffs are indebted to them in a sum equal to the value of the mule on November 7, 1914. The defendants pray “that the amount herein claimed— $345;—less $110.73, the price alleged to have been paid to the plaintiffs when the mule was thus sold by them, be set off against the plaintiffs’ claim,” and that the defendants have judgment freeing them from any liability on the note sued upon.
   Bkoyi.es, 0. J.

1. Under the ruling in Kirkland v. Gaskins, 20 Ga. App. 235 (92 S. E. 965), and cases therein cited, the court in the instant case did not err in directing a verdict against W. A. Tilley, one of the defendants, for the full amount sued for. The ruling in Seabolt v. Olvey, 18 Ga. App. 775 (90 S. E. 653), is not applicable to the facts of this ease.

2. Under the facts of the case, thee defendant T. Z. Tilley had a statutory right to prove by parol, before judgment, the fact of her surety-ship; and, being deprived of this right by the action of the court in directing a joint verdict against her and her codefendant, without allowing her an opportunity to sustain by proof the allegation in her answer that she signed the note sued upon as surety only, she is entitled to a new trial. Whitley v. Hudson, 114 Ga. 668 (3) (40 S. E. 838).

Judgment affirmed as to W. A. Tilley; reversed as to T. Z. Tilley.

Bloodworth, J., concurs. Luke, J., disqualified.

Upon the pleadings and without additional evidence the court directed a verdict' against the defendants for the amount sued for; they made a motion for a new trial, which was overruled, and they excepted.

J. J. Hill, for plaintiffs in error. H. H. Merry, contra.


author: Bkoyles, O. J. Luke, J.,

text:
    10693.
    HARRISON v. JOINER.
   Bkoyles, O. J.

1. The bill of exceptions in this case not only contains an exception to the disallowance of an amendment to the defendant’s plea, but also contains an exception to the final judgment rendered in the case. Therefore, there is no merit in the motion of the defendant in error to dismiss the bill of exceptions on the ground that the plaintiff in "error can not bring a direct bill of exceptions complaining of the disallowance of an amendment to the defendant’s plea.

2. Where a plea of res adjudicata could have been filed at the appearance term of the case, it is too late to file it at the trial term. Merritt v. Bagwell, 70 Ga. 578 (3-a), 585.

(a) The instant case was returnable to the February term, 1917, of the trial court; the original answer of the defendant was filed February 6, 1917, and the amendment to the answer, which set up a plea of res adjudicata, was tendered June 6, 1919, at the trial term. In this amendment ¿t appeared that the judgment relied on as a bar to the plaintiff’s cause of action was rendered on December 7, 1916. It therefore clearly appears on the face of the amendment itself that the plea of res adjudicata could have been filed at the appearance term of the court, to wit, in February, 1917. It follows that the court did not err in disallowing this amendment.

Decided December 10, 1919.

Complaint; from city court of Dublin—Ira S. Chappell, judge pro hac vice. June 6, 1919.

Larsen & OrocJcett, for plaintiff in error.

J. S. Adams, contra.

Judgment affirmed.

Bloodworth, J., concurs. Lulce, J., dissents.

Luke, J.,

dissenting. All dilatory pleas must be filéd at the first term of the court. Civil Code (1910), §5641. Dilatory pleas are those which do not answer the general right of the plaintiff, either by denial or in confession and avoidance, but only assert matter tending to defeat the particular action by resisting the plaintiff’s present right of recovery. Such a plea is a step which, if taken, is but preliminary to the substantial defense to the action, and in no way affects the legal right of the plaintiff to recover, save by suspending it, if such plea should prevail, so far as +he present action is concerned. The plea of res adjudicata, therefore, does not merely go to resisting the plaintiff’s right of recovery so far as the present action is concerned, but if sustained is conclusive that he can not recover at all as to the matters which have been previously adjudicated. See Walden v. Walden, 128 Ga. 126-130, 131 (6) (57 S. E. 323).

In this case the plea of the defendant was not, in my opinion, filed at a time when it was by law too late as a defense. The court erred in striking tin plea, upon the ground of the objection thereto, and in thereafter rendering judgment against the defendant.


text:
    10822.
    McMILLAN v. COCHRAN.
    “Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.”
    Decided December 10, 1919.
    Affidavit of illegality; from city court of Thomasville—Judge W. H. Hammond. June 30, 1919.

      II. J. MacIntyre, for plaintiff in error.

      Hay, Joiner, Hammond & Crawford, contra.
   Broyles, C. J.

The headnote in this case is taken verbatim from the first headnote in Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711). This proceeding was a foreclosure of a chattel mortgage which was attached to a promissory note. The note was given for the purchase-price of two mules, and the mortgage covered these mules and another mule, and was given to secure the payment of the note. The mortgagor (who was also the maker of the note) filed an affidavit of illegality, in which he alleged a total failure of consideration of the note and mortgage, in that the seller of the mules at the time of the sale expressly represented them to be reasonably suited to the use intended, to wit, that of farming mules; and that this representation was untrue, as neither of the mules was reasonably suited for a farm mule and they were worthless for that purpose. The sourt sustained a general demurrer to the affidavit of illegality, and the defendant in fi. fa. excepted.

The note and the mortgage which constituted the writing in this case bore the same date, evidenced the same contract, and were evidently executed simultaneously. Furthermore, there is a fair inference from the record that the original note and mortgage were written on the same sheet of paper. Under these circumstances the note and the mortgage should be considered together and as constituting a single writing, and this writing appears to set forth a certain, complete, and unambiguous contract. There is nothing whatever to indicate that it did not contain all the terms of the agreement between the parties. The maker of the note and mortgage agreed to pay the seller of the mules $703 on December 15, 1918, for one black horse-mule, six years old, named Jim, and one bay horse-mule, six years old, named Joe, with interest for maturity, payable annually, at eight per cent, per annum, at the holder’s place of business, with all costs of collection, including ten per cent, of the amount as attorney’s fees. The maker of the note and mortgage also waived all homestead and exemption rights under the laws of this State or of the United States, and waived demand, protest, and notice of non-payment. The note also recited that it was expressly understood that the payee did not warrant the health or soundness of the mules for the purchase price of which the note was given. Further, the mortgage contained a stipulation that if as much as $325 should be paid on the note when due, the mortgagees would carry the balance of the note until December 15, 1919, without interest. In our opinion the writing in this case, as that in the Bullard ease, supra, set forth what appears to be a complete, unconditional, and unambiguous agreement between the parties, and, there being no charge of fraud, accident, or mistake, parol evidence of prior or contemporaneous representations was inadmissible to add to, take from, or vary the written instrument.

The law of implied warranties is not involved in this case, since the defendant in fi. fa., in his affidavit of illegality, rested his defense solely upon the alleged breach of an express warranty. It follows from what has been said that the court properly dismissed the affidavit of illegality on general demurrer.

Judgment affirmed.

Bloodworth, J., concurs. Lulce, J., disqualified.


text:
    10386.
    BENNETT v. MANN.
    1. The remedy given a. seller by the Civil Code (1910), § 4131, of resale where the purchaser refuses to take and pay for goods bought, is applicable to cases of executory contract where the seller tenders performance, and where, before the time fixed for delivery, the purchaser notifies the seller that he will not receive and pay for the goods if tendered at that time. McOord v. Laidley, 87 Ga. 221 (13 S. E. 509) ; Davis Sulphur Ore Go. v. Atlanta Guano Go., 109 Ga. 607 (34 S. E: 1011); Mendel v. Miller, 126 Ga. 834 (56 S. E. 88, 7 L. R. A. (1ST. S.) 1184); Brodies v. Roberson, 3 Ga. App. 136 (59 S. E. 253) ; Southern Flour é Grain Go. v. St. Louis Gram Go., 11 Ga. App. 401 (75 S. E. 439). However, before the purchaser will be liable for the difference between the contract price and that obtained on resale, it must appear that he was notified of the seller’s intention to resell at the purchaser’s i’isk. Felty v. Southern Flour & Grain Go., 140 Ga. 332 (1) (78 S. E. 1074).
    ■ 2. Whether a seller, who, upon the purchaser’s refusal to take and pay for goods bought, elected to resell and recover the difference between the contract price and that obtained on the resale, exercised reasonable diligence to sell within a reasonable time and at the best price he could obtain is a question for the jury. Robson v. Sale, 139 Ga. 775 (78 S. E. 177); Carver v. Graves,.47 Tex. Civ. App. 481 (32 S. W. 826).
    3. When considered in connection with the allegation in paragraph 1 of each count of the petition, that “said sale and purchase were confirmed in writing by the plaintiff and by the defendant,” the statement in the petition of the alleged contract of sale is not of a mere offer, proposal, or unilateral agreement, nor of an executed contract of sale, but of an executory contract for the sale of goods to be delivered in the future. 21 A. & E. Enc. Law (1st ed.), 485, 486.-
    («) The contract is not so indefinite in regard to the number, weight, and character of hides (“the thing sold”) as to be incapable of legal enforcement. 35 Cyc. 205; Bass Dry Goods Go. v. Granite City Mfg. Go., 113 Ga. 1142 (39 S. E. 471); Terry v. International Cotton Go., 136 Ga. 187 (70 8. E. 1100); Winborne Guano Co. v. Plymouth Mercantile Co., 168 N. C. 223 (84 S. E. 272); Cash v. Hinkle, 36 Iowa, 623; Nixon v. Nixon, 21 Ohio St. 114; Shore Lumber Co. v. American Lumber &o. Go., 23 Ga. App. 135 (97 S. E. 667) ; Civil Code (1910), § 4268.
    4. As a general rule, separate counts in a petition are to be treated as if they set out separate causes of action. Allegations from one count cannot be imported into another, either for the purpose of sustaining or destroying it, unless the pleading, though in form containing two counts, in substance and in fact contains but one. Train v. Emerson, 137 Ga. 730 (1) (74 S. E. 241).

      (а) The court did not err in overruling tbe general demurrer, so far as it applied to the first count of the petition.
    (б) The second count of the petition is defective in’substance, and the general demurrer, so far as it applied to the second count, should have been sustained.
    Decided December 11, 1919.
    Action of contract; from Fulton superior court—Judge Humphries. February 4, 1919.

      Westmoreland, Anderson & Smith, for plaintiff in error.

      Anderson, Rountree & Crenshaw, contra.
   Luke, J.

Charles H. Mann, doing business in the name of Southern Hide and Skin Company, brought suit against J. H. Bennett, doing business in the name of Atlanta Hide and Tallow Company. The petition was in two counts. The first count alleges: (1) The defendant is a resident of Fulton County, Georgia. (2) On November 28, 1917, the plaintiff sold to the defendant “from fifteen hundred to two thousand green salted hides, 30# and up, at the price of 20%^ per pound, f. o. b. Jacksonville, hides to be free from damage,” the said words “30# and up” having a fixed and definite trade meaning, to wit, of the weight of 30 pounds and upwards. On said day said sale and purchase were confirmed in writing by the plaintiff and by the defendant. (3) Plaintiff advised defendant from time to time of his readiness and ability to deliver said two thousand hides under said contract, and urged him to accept and pay for them, but at the instance of the defendant the' delivery of said two thousand hides covered by said contract thus confirmed was delayed from time to time until February 20, 1918, and on that day the defendant refused to accept and pay for said hides, and so notified the plaintiff. (4) Thereupon, to wit, on February 22, 1918, the plaintiff caused the defendant to be served with a notice in writing, a copy of which is hereto attached, marked “Exhibit A” and made a part hereof. (5) Plaintiff then proceeded in the utmost good faith to make a resale of said 2,000 hides at the highest price obtainable, and as a ■result of said efforts, to wit, on March 12, 1918, he made a resale of said two thousand hides to Northwestern Leather Company of Boston, Mass., at fourteen cents per pound. (6) The difference between the contract price of said two thousand hides and the price thereof on resale amounted in the aggregate to $6,042.22. (7) In his efforts to make a resale plaintiff necessarily and properly incurred the following expenses, to wit, the sum of $250, the expenses of a trip to Atlanta, Georgia, thence to Chattanooga, Tenn., thence to Elkin, N. C., and thence to Boston, Mass., in an effort to make a resale of said hides to Schoen Brothers, at Atlanta, Georgia, or to Scholze Tannery, at Chattanooga, Tenn., or to Elkin Shore Company, at Elkin, N. C., or to Beggs and Cobb, or to the Northwestern Leather Company, at Boston,, Mass., they being then and there the principal parties in the market for hides of said character and quantity. Wherefore plaintiff prays judgment against the defendant in the principal sum of $6,292.22., etc.

In the second count of the petition the allegations in paragraphs 1 to 4 inclusive are the same as the allegations in the paragraphs of the same numbers in the first count. The remaining paragraphs allege: (5) Plaintiff then proceeded in the utmost good faith to make a resale of said hides at the'highest price obtainable. (6) On February 27, 1918, defendant ordered plaintiff to prepare the hides for inspection and delivery, and- this was done with reasonable expedition. (7) On March 2, 1918, defendant inspected and selected fifteen hundred hides, which were then and there accepted, weighed, and loaded on ears at Jacksonville, and thereupon defendant refused to pay therefor, said fifteen hundred hides being then and there the weight of 70,181 pounds. (8) Plaintiff then further prosecuted his diligent efforts to make a resale of said hides, and on March 12, 1918, he made a resale of said fifteen hundred hides to Northwestern Leather Company, Boston, Mass., at fourteen cents per pound. (9) The difference between the contract price of said fifteen hundred hides and the price thereof on resale amounted in the aggregate to $4,561.76. (10) The allegation contained in paragraph 7 of the first count is repeated. Wherefore, plaintiff prays judgment against defendant in the principal sum of $4,-811.76., etc. “Exhibit A” attached to the petition is as follows: “Atlanta, Ga., February 20, 1918. Atlanta Hide and Tallow Company, J. H. Bennett, Proprietor, Peters Street, Atlanta, Georgia. Gentlemen: On November 28, 1917, you confirmed your purchase from the Southern Hide and Skin Company of fifteen hundred to two thousand green salted hides, 30# and up, at the price of 20%$ per pound, f. o. b. Jacksonville, hides to be free from damage, and on the same day the Southern Hide and Skin Company confirmed your purchase, as stated. The delivery of two thousand hides covered by said contract thus confirmed had been delayed from time to time and at your instance, and to-day you refuse to accept and pay for said two thousand hides, and so notified Charles H. Mann. In view of this refusal, Charles H. Mann, doing business in the name of the Southern Hide and Skin Company, hereby gives you notice of his intention to sell said two thousand hides, acting for this purpose as your agent, and he will seek to recover from you the difference between the contract price and the price on resale. This notice is given in accordance with section 4131 of the Code of Georgia, 1910. Said resale will be made within a reasonable time and at such time, place, and circumstances as will most likely fully protect your interest. Yours very truly, Charles H. Mann, doing business in the name of Southern Hide and Skin Co.”

The defendant demurred to the petition, upon the following grounds: (1) It sets forth no cause of action. (2) The contract set up in the petition is too indefinite and uncertain to have any binding force or effect, in that there was no agreement on the part of the plaintiff to sell, or on the part of the defendant to purchase, any definite number of hides, or hides of any definite or certain weight. (3) It does appear from petition that plaintiff resold at defendant’s risk 1500 hides after defendant had inspected, selected, and accepted them and had them weighed and loaded on cars at Jacksonville, to be shipped to defendant at Atlanta, without giving defendant any notice of his (plaintiff’s) intention to resell said hides for defendant’s account and acting in making this resale as defendant’s agent, and without giving defendant’s any notice that after a resale the plaintiff would hold defendant liable for the difference between the contract price and the price of resale. (4) It does not appear from the petition that plaintiff, on resale of said hides, obtained their fair value in the market, or that the plaintiff used reasonable diligence and effort in order to obtain the fair value for the hides on resale. The court overruled the demurrer, and the defendant excepted.

Only headnote 4 (6) needs elaboration. The petition is to be construed most strongly against the pleader. So construed, we think that under the allegations of paragraphs 6 and 7 of the second count, when they are considered in connection with the other allegations of that count, the plaintiff must be held to have waived the breach of contract occasioned by the defendant’s refusal to accept and pay for the two thousand hides, and to have consented with the defendant to substitute in the contract of sale, in lieu of the two thousand hides, the fifteen hundred hides that were selected and accepted by the defendant but for which he refused to pay. If we are correct in the foregoing conclusion as to the construction to be placed upon paragraphs 6 and 7 of the second count (and we think we are), then it does not appear from the petition that the defendant was ever notified by the plaintiff of his intention to resell the particular fifteen hundred hides that had been selected and accepted by the defendant, and it is quite clear that the plaintiff’s resale of said hides to the Northwestern Leather Company was not binding upon the defendant. We therefore hold that the court erred in overruling the demurrer in so far as it applied to the second count of the petition.

Judgment reversed in pari, and affirmed in part.

Broyles, O. J„ and Bloodwm'th, J., concur.


text:
    10578.
    Hurst v. Goldstein Brothers.
    Decided December 11, 1919.
    Complaint—garnishment; from Haralson superior court—Judge Irwin. March 22, 1919.

      Edwards <&■ Edwards, for plaintiff in error.

      I. N. Cheney, Hatton Lovejoy, Griffith & Matthews, contra.
   Luke, J.

1. “Where land is bargained by the tract, a deficiency in the acreage can not be apportioned unless the purchaser can show that actual fraud was perpetrated by the vendor.” Parker v. Roberts, 19 Ga. App. 270 (91 S. E. 345), and eases cited.

(а) “Where, in a suit on a note for the purchase-money of land so conveyed, the maker of the note undertakes to have an alleged deficiency in acreage apportioned in the amount of the recovery, but does not allege and prove actual fraud on the part of the vendor, the plaintiff is entitled to a judgment in the whole amount of the note sued on.” Parker v. Roberts, supra. See also Estes v. Odom, 91 Ga. 600 (18 S. E. 355).

(б) In the instant ease, while the purchaser of the land alleged actual fraud on the part of the vendor, the evidence authorized the jury to find to the contrary.

2. There was evidence to authorize the .verdict, which has been approved by the trial judge, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10905.
    Hardy v. The State.
    Decided December 11, 1919.
    Indictment for larceny from house; from Spalding-superior court —Judge Searcy. August 2, 1919.

      C. L. Redman, for plaintiff in error.

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

The evidence authorized the conviction of the defendant, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10986.
    Garmon v. The State.
   Luke, J.

1. “Since the law does not give to the accused in a criminal ease any right to make a second statement to the court and jury, a refusal to allow such privilege is not cause for a new trial, even where the State, after the accused made his statement, introduced additional evidence strengthening its ease.” Know v. State, 112 Ga. 373 (37 S. E. 416); Sharp v. State, 111 Ga. 176 (1) (36 S. E. 633); Jones v. State, 12 Ga. App. 133 (2) (76 S. E. 1070).

Decided December 11, 1919.

Indictment for larceny of automobile; from Floyd superior court —Judge Wright. October 3, 1919.

W. B. Mebane, for plaintiff in error.

C. H. Porter, solicitor-general, contra.

2. The charge of the court, when read in its entirety, was full and fair.

3. The evidence in this case was sufficient to authorize the verdict of guilty.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10789.
    Bailey et al. v. The State.
    Decided December 12, 1919.
    Conviction of receiving stolen goods; from Miller superior court ■—Judge Worrill. July 7, 1919.

      P. D. Rich, for plaintiff in error.

      B. T. Oastellow, solicitor-general, R. R. Arnold, contra.
   Luke, J.

The evidence in this ease authorized the conviction of the defendants. The charge of the court, when considered in its entirety, fully and fairly submitted the issues and contentions of the defendants. For no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Luke, J. Luke, J.

text:
    10795.
    HARRISON v. POOL.
    1. Words imputing the crime of larceny are slanderous per se. Adams V. Greeson, 16 Ga. App. 649 (3) (85 S. E. 936). To publish that one is a “thief” imputes the crime of larceny and is libelous per se. Tillman v. Willis, 61 Ga. 433.
    2. Where the language of a publication is libelous per se, the plaintiff may recover general damages without proof of special damages. Weatherholt v. Howard, 143 Ga. 41, 42 (4) (84 S. E. 119).
    3. In an action for damages based upon the publication of language which is libelous per se, the accusation in which (construing the defendant’s answer most strongly against him) is admittedly untrue, the mere fact of previous difficulties between the parties, or other alleged mitigating circumstances, affords no complete defense to the action, and a plea setting up- such iact.s ns a defense should be stricken on timely motion.

      4. The error of the court in overruling the plaintiff’s motion to strike the defendant’s answer rendered the further proceedings nugatory.
    Decided December 12, 1919.
    Rehearing denied January 7, 1920.
    Action of libel; from Gwinnett superior court—Judge Cobb. June 2, 1919.

      Lewis G. Russell, J osepli D. Quillian, for plaintiff.

      O. A. Nix, for defendant.
   Luke, J.

This was an action for damages based upon an alleged libel of the plaintiff by the defendant, and general and special damages were alleged. The libel consisted of a sign posted upon the land of the defendant and which could be seen by the public (as admitted in the answer), on which were these words: “Notice. Oscar Harrison and family stay off my land. You liar and thief let this alone. W. G. Pool.” The plaintiff’s demurrer, in the form of a written motion to strike, attacked the legal sufficiency of the defendant’s answer, on various general and special grounds,; and this motion was overruled. The same objections were raised by exceptions to the rulings on the admission of evidence, by exceptions to the refusal of the court to charge certain principles of law, and in the general grounds of the motion for a new trial.

The main question is whether, having admitted the publication of the libel as charged, and virtually admitting its untruth, the defendant could plead as a complete defense thereto that the matter therein contained was merely “in abuse and not to charge a crime.” To sustain the theory that a recovery could be so defeated, the defendant relies on Roberts v. Ramsey, 86 Ga. 432 (12 S. E. 644). That case, however, grew out of an oral slander, and in no case of libel has its doctrine ever been followed. Libel and slander are not the same, either in all their elementary ingredients or in the penalties attached. In modern usage “slander” has been limited to defamation by words spoken (25 Cyc. 248), while “libel,” which is defined and penalized by both civil and criminal statutes (Civil Code, § 4428, Penal Code, § 340), is a creature of the written or more permanent mode of expression, and is therefore the more serious offense. So far as we have been able to discover, it has never been held in this State, or in any other jurisdiction, where written words which are in themselves libelous per se are admitted to have been published by the defendant, and are untrue, that a complete defense may be interposed by allegation or proof that they were intended merely as abuse and were not intended to charge a crime. The unbroken line of authority goes no further than to hold that such a defense (and then in cases of slander— oral defamation) goes merely in mitigation of damages. Henderson v. Fox, 83 Ga. 233, 234 (4), 244 (9 S. E. 839). Certainly it would not defeat a libelled party’s action for general damages. See Cox v. Strickland, 101 Ga. 482 (6) (28 S. E. 655).

The court erred in overruling the motion to strike the defendant’s answer, and all subsequent proceedings were nugatory.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.

ON MOTION EOR REHEARING.

Luke, J.

The answer, construed as a whole and most strongly against the pleader, shows no plea of mitigation of damages, but on the contrary it is intended as a complete defense to the plaintiff’s suit. What is here said is not intended to deprive the defendant of the right to file a plea of mitigation of damages, if he so desires.

Rehearing denied.

Broyles, G. J., and Bloodworth, J„ concur.


text:
    10834.
    Dyer v. Black.
    Decided December 12, 1919.
    Lien foreclosure; from Carroll superior court—Judge Terrell. July 9,1919.

      Boykin & Boykin, for plaintiff in error.

      H. G. Strickland, contra.
   Luke, J.

This case is here upon the sole assignment of error that the verdict is without evidence to support it. The evidence, though conflicting, supports the verdict; and, the judge who tried the case having approved the verdict, this court cannot reverse the judgment overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10867.
    CHILDS v. THE STATE.
    The evidence failed to identify the pecans in the possession of the accused as pecans taken from the house alleged to have been broken into; and the verdict finding him guilty was unauthorized.
    Decided December 12, 1919.
    Indictment for burglary; from Crisp superior court—Judge Dower. July 23, 1919.

      J. T. Hill, J. L. Wimberly, for plaintiff in error.

      J. B. Wall, solicitor-general, Drum & Jones, contra.
   Bloodworth, J.

1. The indictment in this case charges that plaintiff in error “did unlawfully, fraudulently, and privately take” from a certain house, into which he had broken and entered, “four hundred pounds of pecan nuts of the personal goods of the Byrom Corporation.” The evidence showed that the pecans “that were missed from that house were paper-shell pecans, Schleys;” that the Byrom Corporation had pecans stored at other places near the house alleged to have been burglarized, and that “there were some paper-shell trees in the cottonfield cultivated by this boy.” Some days after the date of the alleged burglary the accused sold some paper-shell pecans to each of two witnesses, Howard and Statham. In his statement the defendant said in part, “Of course I hauled a few pecans over the river and sold them to Mr. Howard and Mr. Statham, but I didn’t take none out of no house, and I haven’t been in no house at all, nobody’s house. I ain’t been accused of no burglary at all before; they had a lot of pecans around the house and we would gather them, we would pick them up on the roadside, and on my farm I picked up a right smart of them. Mr. Mayo he told me to keep the pecan trees on my part of the farm cleaned around good and nice, and to keep_ the grass from around them, and I could use some of them, and well, I picked up some, of them, a good deal of them, and my folks when they was working would pick up some of them, and we would get some there at twelve o’clock, pick them up around the house and in my cotton there, and I didn’t have no intention of stealing, I wasn’t stealing them at all, I thought I had a right to them when I hired under Mr. Mayo.” There is no evidence to show that the pecans sold to Howard and Statham were “Schleys,” and no evidence to show that they were the identical pecans that came from the house alleged to have been broken into. The evidence is insufficient to support the verdict.

2. As a new trial must be ordered under the forgoing ruling, it is unnecessary to consider the allegations of error other than those dealt with above.

Judgment reversed.

Broyles, Q. J., and Luke, J., concur.


text:
    10885.
    Suddeth v. The State.
    Decided December 12, 1919.
    Indictment for larceny from house; from Chattahoochee superior court—Judge Howard. August 1, 1919.
    From the evidence and the defendant’s statement at the trial it appeared that a large saw which he had been using in his sawmill and had sent off to be repaired was shipped back to him by express, 0. O. D., and was on an open platform of the freight-house or depot used by the express company at the railroad station, under the charge of C. C. Dinkins, agent of the express company and of the railroad company, when the defendant, with several of his sawmill hands, went there, about six o’clock in the morning, and, in the absence, and without the knowledge or consent, of the agent, put the saw on a truck and carried it to his sawmill, about five miles away. The charges on the shipment were then unpaid. The agent of the express company testified that when he missed the saw he began an investigation to see what had become of it, and several days later he went to the defendant about it, and the defendant “denied getting the saw,” and said he did not have it and he was going to put in a claim for 'it. • The agent swore out a search warrant for the saw, it was found leaning against a tree at the sawmill, and the sheriff took it. The- defendant when arrested paid the charges and costs, and the saw was turned over to him. Another witness testified, that he told the defendant about the agent’s inquiries for the missing saw, and that the defendant said he did not know anything about it, that he never had it; that he had lost a saw and somebody owed him for it. The defendant, in his statement at the trial, said, that he went several times to the depot and asked if his saw had come, and, every time he inquired, Mr. Dinkins would say it had not come; that one evening he and his son found the saw on the ground, where it .had fallen from the platform, and they put it back on the platform; that Mr. Dinkins never got there until late in the mornings; that he needed the saw, and he did not take it with the intention of stealing it, and he had never denied getting it; when he took it he expected to pay the express company the charges on it; he “had been getting freight there and stuff there and not paying for it, and would come along afterwards and pay for it;” that where he came from he would get his freight whenever he wanted it, and go on and pay for it; the saw was his property, but at the same time he “felt like it belonged to the Southern Express Company until they got their charges out of it.” Dinkins denied that the defendant had inquired of him about the saw; he testified that he had never let the defendant have any freight on a credit or “unload stuff before paying for it;” that he told the defendant’s son that the saw had come; it was then on the platform leaning against the wall, and it was not on the ground; he missed it the next day or two. There was no shed or covering over the platform; it was put there for the loading and unloading of freight; the house in which freight was kept was closed up, with doors and windows.
   Luke, J.

1. “Theft of articles from a warehouse platform, used for the purpose of carrying goods into the warehouse and removing them therefrom, as well as for the temporary deposit of goods, is larceny from the house.” Wilson v. State, 9 Ga. App. 297 (70 S. E. 1125). The exception to the charge of the court is without merit.

2. The evidence, though weak on the question of intent, authorized the verdict, which has the approval of the trial judge. Eor no reason assigned was it error to overrule the .motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., eoneur.

The court charged the jury that “if articles are stolen from a warehouse or depot platform, as alleged in this indictment, and if such a platform is attached to the warehouse and part of the appurtenances belonging to that warehouse, and is used for the purpose of carrying goods into and from such warehouse or depot for the storage or temporary deposit of freight (all of which the jury shall determine from the evidence in the case), the offense would be larceny from the house.” In the motion for a new trial it was alleged that the court erred in so charging.

G. Y. Harrell, for plaintiff in error.

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


text:
    10961.
    BREEDLOVE v. THE STATE.
    Although, the pistol with which it was alleged an assault with intent to murder was committed was loaded only with cartridges designed for a different kind of pistol, and failed to fire, after the accused had snapped it four times, when it was pointed at the person alleged to have been assaulted, there was testimony to the effect that even with such cartridges in it the chances were that it would fire when snapped; and, the pistol and the cartridges being in evidence, the question whether they constituted a weapon likely to produce death was exclusively for the jury; and, under all the evidence, the jury were authorized to find the accused guilty.
    Decided December 12, 1919.
    Indictment for assault with intent to murder; from Floyd superior court—Judge Wright. September 25, 1919.

      W. B. Mebane, for plaintiff in error.

      G. H. Porter, solicitor-general, contra.
   Luke, J.

The accused was convicted of assault with intent to murder. The weapon used was a pistol. A new trial is sought on the contention that the evidence shows that the pistol was so loaded as not to be a weapon likely to produce death. The evidence shows that, while the pistol itself was without mechanical defect,'yet it was loaded only with five cartridges designed for use in a different kind of pistol; that the accused, while a prisoner in jail, pointed the pistol so loaded at the jailer and ordered him to hold up his hands; and that, upqn the jailer reaching for his own pistol, instead of throwing up his hands the accused snapped his pistol at the jailer four times, without succeeding in firing it once. Both the pistol and the cartridges in question were put in evidence for inspection by the jury, and four of the cartridges showed signs of having been snapped. As to the pistol and cartridges in evidence, one witness testified: “If the plunger goes far enough against the cap to knock the paint off of it, as it shows it did, it is, of course, liable to explode, and just why it did not do it on this occasion nobody can tell, unless the cartridges went in just a little too far.” Another witness testified: “Even with those cartridges in it, and even though they were not made for this particular make of pistol, the chances are, if you were to snap them, the pistol would fire.” Held:

(a) The pistol and the cartridges being in evidence, whether or not they constituted a weapon likely to produce death was, under all the evidence, a question exclusively for the jury. Paschal v. State, 68 Ga. 818; Paschal v. State, 125 Ga. 279 (54 S. E. 173); Meriwether v. State, 104 Ga. 500 (30 S. E. 806).

(b) The intention of the accused in snapping at the jailer the pistol so loaded was, under all the evidence, likewise a question for the jury; and they were authorized to find, as they did find, that the intention of the accused in snapping the pistol was to discharge it and thereby kill the person at whom it was pointed. See Park’s Penal Code, § 97, and citations on “Intent,” p. 107.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    10964.
    Brewington v. The State.
    Decided December 12, 1919.
    Conviction of involuntary manslaughter; from Jasper superior court—Judge Park. September 34, 1919.

      A. S. Tliwrman, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Luke, J.

1. On the trial of a father for the murder of his minor son, where the evidence shows that the homicide was committed by the defendant by shooting the decedent with a pistol after having struck him upon the head with the same weapon, it is not error for the court to fail to instruct the jury as to the law of involuntary manslaughter in the commission of a lawful act. Parental authority to chastise a wayward child does not extend to such a use of such a weapon.

2. The evidence authorized the verdict finding the defendant guilty of involuntary manslaughter in the commission of an unlawful act, and no error of law appears from the record.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    10974.
    Jackson v. The State.
    Decided December 12, 1919.
    Motion for new trial; from city court of Wrightsville—Judge Blount. September 11, 1919.

      B. H. Moye, for plaintiff in error.

      C. S. Claxton, solicitor, contra.
   Luke, J.

Where there was neither service nor written waiver of service upon the opposite party of the rule nisi issued -in connection with a motion for a new trial, and where, at the first opportunity and before either expressly or impliedly consenting to the completion of the motion or its judicial consideration upon its merits, the respondent moved to dismiss the proceeding, for want of such service, the court did not err in dismissing it. Penal Code (1910), § 1092; Civil Code (191Ó), § 6080; Smedley v. Williams, 112 Ga. 114 (37 S. E. 111); Summerford v. Kinard, 8 Ga. App. 253, (68 S. E. 955); McMullen v. Citizens Bank, 123 Ga. 400 (51 S. E. 342); Tyler v. Arnett, 13 Ga. App. 595 (79 S. E. 482).

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Stephens, J.

text:
    10299.
    Oakes v. Stamper.
    Decided December 16, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. December 2, 1918.
    Mrs. Stamper sued Mr. and Mrs. H. N. Oakes in the municipal court of Atlanta, and obtained a verdict against Mrs. Oakes, the plaintiff in error. The statement of the cause of action, attached to the summons, was headed: “Atlanta, G-a., August 6, 1918. Mr. & Mrs. H. N. Oakes to Mrs. Francis Stamper. To the following goods, belonging to Mrs. Stamper, held by Mr. and Mrs. Oakes:” then followed a list of items, including “1 shade, $1.25,” .“1 dresser scarf, $1.00,” “3 bed sheets, $3.00,” and similar items. The demurrer referred to in the decision was based on the grounds that these items were too vague and indefinite, that there was a misjoinder of parties, that it did not appear how the articles were held, and that it did not appear how Mrs. Oakes was liable.

      B. B. Jackson, for plaintiff in error.
   Stephens, J.

1. The trial court did not. err in overruling the demurrer to the petition or in admitting the evidence objected to.

2. There was some evidence to support the finding of the jury, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    10385.
    Hensley v. Watkins.
   Jenkins, P. J.

Watkins sued Hensley on a promissory note for $150 which by its terms was conditioned upon the consummation of a sale by Watkins for Hensley to Scott of certain lands belonging to Hensley for the sum of $450. The defendant pleaded failure of consideration in that the sale referred to had not been effected by the plaintiff. He sought to establish by parol the existence of a disputed contemporaneous written agreement whereby it had been agreed that the sale was required to be effected not later than the month of June, 1909, whereas the defendant contended that in point of fact a sale of the land was not effected until after the expiration of that time, and then to a different party, and without the aid or assistance of the plaintiff. The evidence of the defendant himself showed, however, that when the note sued on was signed, the plaintiff delivered to the defendant a $500 bond of the Cartecay Iron Company, with the understanding that “it was to make the Scott purchase go through.” The defendant admitted that he continued to hold the bond and to collect the interest thereon until he had received the entire purchase-price of the land, $50 of which had been paid by Scott, through Watkins, and accepted by the defendant subsequently to 1909, and the remaining $400 was later paid to the defendant by Scott himself, after which the defendant turned over the $500 bond to Scott. The defendant admitted that he had thus received from Scott the entire purchase-price of the land, together with the equivalent of interest thereon by reason of the interest collected by him on the $500 bond belonging to the plaintiff. The deed when finally executed was made, with the approval of Scott, to a new and different person. The trial judge directed a verdict in favor of the plaintiff. Held: Irrespective of the disputed issues of fact raised by the evidence in reference to the existence of the contemporaneous written agreement, and upon the question as to whether or not the defendant had called off the deal with the plaintiff prior to the actual sale, under the admitted facts above set forth as to the defendant’s subsequent conduct, he could not be allowed to dispute the claim as made; and the trial judge did not err in directing a verdict for the plaintiff.

Decided December 16, 1919.

Complaint; from Gilmer superior court—Judge Morris. February 8, 1919.

. George F. Gober, Herbert Clay, for plaintiff in error.

A. H. Burtz, D. W. Blair, contra.

Judgment affirmed.

Stephens and Smith, JJ., concur.