text:
    283.
    FOOTE & DAVIES COMPANY v. HOUCHIN MANUFACTURING COMPANY.
    1. A, a manufacturer of machinery, entered into a contract with B; a bookbinder, to construct for him a “book-covering machine” according to B’s design. The machine was an experiment, and there was doubt as to .its practical success when completed. B therefore agreed with A “to pay all the expenses incurred in getting up the machine, whether the machine finally met with B’s approval or not.” Held: (a) In the construction of the machine A was under an implied obligation to use reasonably proper and suitable material, and to perform the work of construction in’ a reasonably skilful manner. (6) If the machine when completed was not suited to the purpose intended and was a failure, and such unsatisfactory result was due to the inferior quality of the material used by A in its construction, and to' the unskilful manner in which he performed the work, B would be released from his contract to pay all the expense incurred by A in getting up the machine.
    2. In a suit by A against B to recover the expense incurred in constructing the machine, an answer setting up the facts indicated in the foregoing lieadnote, as the causes for the failure of the machine to produce satisfactory results, constituted a good defense; and evidence offered in support thereof should have been allowed and submitted to the consideration of the jury. ' -
    Complaint, from city court of Atlanta — Judge Reid. November 24, 1906. •
    Submitted May 2,
    Decided June 26, 1907.

      Charles W. Smith, for plaintiff in error.

      Candlers, Thomson & Kirsch, contra.
   Hill, C. J.

The plaintiff in the court below was a manufacturer of machinerj’, and the defendant was a publisher and bookbinder. The president of the defendant company desired, to have constructed a book-covering machine, and, acting for his company, employed the plaintiff to construct such a machine. As the machine seems to have had no model, but was novel and experimental, there was some doubt as to its practical success. The plaintiff, therefore, while willing to undertake its construction, and though it had faith in its ability to construct the machine to meet the views of the defendant, was unwilling to attempt the experiment without a special contract. This contract was entered into by the parties and is evidenced by the following two letters:

“Atlanta, Ga. April 1st, 1904.
"Messrs. Foote & Davies, City.
“Gentlemen: With further reference to the conversation had with our Mr. Houehin, we beg to advise you that we are entering your order for one of the machines referred to, upon the following condition: all expense that we may incur in getting up this machine, whether the machine finally meets your approval or not, will be borne by you. While we have every reason to believe that we will get up a machine to successfully meet jurar views, yet we could not attempt to make this experiment at our expense. We write this so that there may be no misunderstanding between us, and ask you to acknowledge receipt of this letter, agreeing with our requirements, and we will proceed with the machine without further delay. Tours truly, Houehin Manufacturing Company.”' In reply to this letter, the defendant wrote as follows:
“Atlanta, Ga. April 2nd, 1904.
“The Houehin Mfg. Co., 115 Garnett St., City.
“Gentlemen: — Yours of the first is our understanding of the contract for building machine.
“Yours very truly, Foote & Davies Company.”

Under the contract entered into by these two letters, the machine was completed. If proved to be unsuccessful, and on the refusal of the Foote & Davies Company to pay the expense of constructing the same, the Houehin Manufacturing Company brought suit against the Foote & Davies Company for the expenses incurred in getting up the machine. The suit was based upon the, foregoing contract.

. In addition to the answer making a general denial of indebtedness, the Foote & Davies Company filed an amendment thereto, as follows: “Defendant sajrs, that the machine which plaintiff built, for it was properly planned, and, if properly and carefully built, would have been serviceable and of great value to defendant, but that, instead of its having been properly built, it was built so carelessly and of such inferior material, and the work thereon was so inferior, that said machine is unserviceable, • and of absolutely no value to the defendant.” This amendment was allowed. On the trial of the case the defendant offered proof in support of this amended answer, which was rejected by the court, as in the opinion of the court, under the terms of the contract, the defendant took the risk of eveiwthing in the contract in connection with the construction of the machitte. The court permitted the defendant to ■show the market value of the material that was put into the machine, but refused to allow the defendant to show either that such material was not of proper quality to put into the machine, or -that the machine was not constructed in a suitable and workmanlike manner, and for these reasons was worthless. The jury found for the plaintiff the full amount; and the defendant filed a motion for a new trial, which was overruled, and the plaintiff excepted. The only material exceptions to be considered by this court are the exceptions to the rulings of the trial court in refusing to allow evidence to be introduced by the defendant in support of the averments set up in the amended answer, and in charging the jury that under the contract in the case they’ could not consider the allegations that the machine was not constructed in a proper and workmanlike manner, but was very improperly and carelessly constructed, and of inferior material, and the work -on it was inferior, and that as a result the machine was not serviceable and was of no value to the defendant.

The machine in question was the conception of Mr. Foote, the president of the defendant corporation, and it was understood that it was an experiment, and its practical utility when constructed was doubtful. Foote testified, that during the construction of the machine by the plaintiff, he was personally present a great deal of the time, and made repeated objections to the material that was going into the machine, and to-the character of the workman-' ship; but these objections were disregarded, We think the trial ■court erred in its construction of the contract in question. We think that under this contract there was an implied obligation on the part of the plaintiff to construct the machine skilfully and in a workmanlike manner, and to make a selection of proper material to he used in it. If, after using such skill and selecting such material, the machine as completed did not prove to be a successful experiment, the defendant was nevertheless bound to pay the expense •of its construction. It seems to us that it would be an unreasonable interpretation to place upon the contract, that however unskilfully made, and however inferior and unsuited the material used, the defendant was nevertheless bound to pay all expense incurred in .connection therewith. It seems to us far more reasonable to say that if the manufacturer, after using proper skill and workmanship and ordinarily good material, had nevertheless failed in making a successful machine according to the plans of the defendant, yet the defendant was bound to pay the expense incurred. Any other construction, in our opinion, would place the defendant at an unfair disadvantage and entirely at the mercy of the plaintiff. In the case of Cannon v. Hunt, 116 Ga. 452, 42 S. E. 734, the Supreme Court held, that if the particular kind of material to be furnished and the manner in which the work is to be done are not specified in a contract, the contractor is at liberty, and is under a corresponding duty, to himself to make a selection of a proper material and to perform the work in the manner in which it should be done. No particular kind of materials is specified in the contract now under consideration, to be used in the construction of the machine, nor does the contract say anjdhing as to the manner in which the work of construction should be performed. But- we think that the law wrote into the contract the obligation to use reasonably suitable material, and to do reasonably skilful work in .tire construction of the machine. If the machine was a failure and was not reasonably suited to the purpose for which it was constructed and intended, and this was because of defective and unsuitable material, and careless and unskillful workmanship, and not because of any defect in the plan thereof as indicated by the defendant, we think these facts would, if proved, constitute a good defense, and would not be repugnant to the terms of the contract between the parties. Of course if Eoote was present directing the work, and saw the material used and the character of the work done, and made no objection, this plea would not avail the defendant.

Judgment reversed-.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    308.
    DENNARD & COMPANY v. BUTLER.
    1. Possessory warrant is the proper remedy to recover possession of personal property where such possession has been obtained by fraud, violence, seduction, or other like means.
    2. The undisputed evidence in this case clearly showing that the personal property was obtained by none of the means inhibited by the statute, but by consent, the judgment of the court sustaining the certiorari and making a final disposition of the case was without errou

      Certiorari, from Bibb superior court — Judge Felton. December 20, 1906.
    Argued May 2,
    Decided June 26, 1907.

      R. Douglas Feagin, for plaintiffs.

      Hardeman & Jones, E. P. Johnston, for defendant.
   Hill, C. J.

This was a possessory warrant sued out to recover possession of a horse. The justice decided the case in favor of the plaintiff, and the defendant filed a petition for the writ of certiorari. This was granted, and on the hearing of the certiorari the superior court entered judgment sustaining the certiorari, “upon the ground that S. E. Dennard & Co. never had possession that would entitle them to maintain a possessory warrant.” Error is assigned to this judgment.

The following is a substantial statement of the facts: Dennard. & Co. were livery stable keepers. They boarded a horse in the-daytime for one Will Stewart, who used the horse at night to a-public hack. Stewart did not pay for the board of the horse, and Dennard & Co. thereupon told him that he could not get the horse. Stewart stated that it would be impossible for him to pay the' board due for the horse unless he could get- him at night to use to> pull his hack. He told Dennard & Co. that he could,' by using the horse, keep up. the current board and pay 50 cents a day on the back board. Dennard & Co. consented to let him take the horse out, with the understanding that the horse was to remain under their control and- be brought back to their stable as soon as his work was done for the night. The horse had been in the stable for 8 or 10 weeks before Dennard & Co. found out that hfe did not belong to Stewart, but to the defendant, E. L. Butler. Butler was informed by Dennard & Co. that Stewart was not paying the board of the horse. One afternoon a negro by the name of Banks, who was driving for Stewart, came to the stable, and, with the permission of Dennard & Co., took the horse out. Butler, the owner of the horse, having previously told Stewart that he wanted him back, saw him in the possession of the negro, Banks, and demanded him from the negro, who voluntarily turned him over to Butler.

Possessory warrant is the remedy when any personal chattel has been taken, enticed, or carried away, either by fraud, violence, seduction, or other means, from the possession of the party complaining, or when such personal chattel, having recently been in the just', peaceable, and legally acquired possession of such complaining party, has disappeared without his consent, and has been secured or taken possession of by the party complained against, under some pretended claim, or without lawful warrant or authority. Civil Code, § 4799. “Unless it clearly appears that the defendant acquired possession in one of the modes inhibited by the [statute], there is nothing for the proceeding to rest on. Under a possessory warrant there is no question as to the title or as to the right of possession, but the sole question is as to the manner in which the possession has been obtained by the defendant.” Trotti v. Wyly, 77 Ga. 684; Brown v. Todd, 124 Ga. 939, 53 S. E. 678. The plaintiff could have kept possession of the horse for the enforcement of his lien as a livery stableman; but he chose not to do so, and surrendered possession of the horse to Banks, who was not his agent, but the agent of Stewart. Banks surrendered possession peaceably and ■voluntarily to Butler, the owner. Butler’s possession was obtained bv consent and without fraud, violence, seduction, or other like means. These facts being undisputed, the superior court did right in sustaining the certiorari and making a final disposition of the case. Judgment affirmed.


text:
    311.
    PALMER v. INGRAM.
    1. The following assignment of error did not sufficiently comply with the requirements of the Civil Code, § 5527: “On the trial of said case the following order was granted, to wit: ‘On motion of plaintiff’s counsel, the foregoing answer is dismissed in open court, October 31. 190G. Frank L. Little, Judge City Court of Sparta’ — which said order so granted on verbal motion of plaintiff’s counsel was error.” An assignment of error must not only plainly specify the decision complained rx, but must point out the error in such decision.
    2. In suits for unliquidated damages, notwithstanding the absence of plea or answer, the plaintiff shall be required to prove the amount of damages.
    3. In a suit to recover damages for the breach of a contract by which the defendant agreed to rent to the plaintiff a farm for one year for a stipulated sum to be paid as rental, the measure of damages for not •admitting the plaintiff into possession at» the beginning of the term i; the difference between the' rent to be paid and the actual rental valux of the premises at the time of the breach.

      ■4. In this case it was error to allow as damages the difference' in the stipulated rent and the gross value of the products of the farm for the year of the lea'se, without any deduction for cost of production.
    Action for breach of contract, from city court of Sparta — Judge Little. October 31, 1906.
    Submitted May 2,
    Decided June 26, 1907.

      T. M. Hunt, R. H. Lewis, for plaintiff in error.

      H. H. Little, W. H. Burwell, contra.
   Hill, C. J.

The plaintiff below brought suit to recover damages ■for a breach'of a written contract by which the defendant agreed to rent her a certain described farm for the year 1905 at a stipulated rental of 1,500 pounds of midland lint cotton. By consent the case was tried by the court without the intervention of a jury. •On motion by the plaintiff, the court dismissed the answer of the -defendant, and, after hearing evidence and argument, rendered judgment for the plaintiff for the sum of $423.25, besides interest .and costs. The defendant (now plaintiff in error) assigns error -on the judgment dismissing her answer, and also excepts to the .judgment against her for said sum, because said judgment was “contrary to law and evidence, and without evidence to support it.”

The judgment dismissing the answer was as follows: “On motion of plaintiff’s counsel, the foregoing answer is dismissed in open court, October 31, 1906. Frank L. Little, Judge City Court of Sparta.” And the exception to this order is in the following words: “Which said .order so granted on verbal motion by plaintiff’s counsel was error.” The defendant in error objects to this assignment of error, on the ground that.it does not specify plainly the decision complained of or point out the error in the decision. 'We think this objection is well taken, and that this assignment of -error does not comply with the requirements of the Civil Code, •§5527, which declares that every bill of exceptions “shall specify jdainly the decision complained of and the alleged error.” Warren v. Oliver, 111 Ga. 808, 35 S. E. 673.

Notwithstanding the fact that this left the case without plea <or answer, the burden was still upon the plaintiff to prove her •damages, as the damages claimed were unliquidated. Civil Code, -§§5073, 5078. She introduced her lease, and proved its breach '.by the defendant, and also proved what had been made on the farm •during the year covered by her contract. The court awarded her damages for the full amount so proved, less the amount of rent-that she had stipulated to pay. In other words, the court allowed her the gross amount of what was made on the farm, without any deduction for the value of the labor and cost necessary to be bestowed in making the amount, only deducting therefrom the amount that she had agreed to pay for the rent of the farm. We think that the measure of damages thus adopted by the court was improper, and entirely too liberal to the plaintiff. Mr. Chief Justice Bleckley, in Kenny v. Collier, 79 Ga. 746, 8 S. E. 60, speaking for the court, sajrs: “The measure of damages for not admitting a lessee or tenant into possession at the beginning of the term is the excess in the value of the term over the amount stipulated as rent. This is the general rule.” And he further says that this general rule “confines the recovery to profits arising from the contract itself, the measure of which is the difference between cost and value.. If there be no difference, or if cost be in excess of value, nominal damages only will be recoverable.” The plaintiff in this, case was entitled to recover, if the evidence justified it, the difference in the market value of her lease for the year and the amount which she had agreed to pay for it. If the stipulated price was in excess of the'market value of the lease, she could only recover nominal damages for the breach. The only proof submitted was as to the gross value of what had been produced on the farm during the-year that the plaintiff was entitled to the farm under her contract; and the court gave her as damages the difference between this, gross amount and the stipulated rent. This measure of damages, would make it far more profitable to tenants that landlords should break their leases at the beginning of the term than that they should keep them. Evidence of the net proceeds of the crop made on the farm was used as illustrative of what was the true market value-

Judgment reversed.


text:
    340.
    HALL v. COATS et al.

    No material error of law was committed, and the theory of the evidence-adopted by the jury in finding the verdict is not unwarranted, and is. in entire accord with substantial justice.

      Attachment, from city court of Dublin — -Judge Burch. November 19, 1906.
    Submitted May 13,
    Decided June 26, 1907.

      James B. Sanders, for plaintiff.

      Williams & Blackshear, for defendants.
   Hill, C. J.

The plaintiff in error sued out an attachment against the defendants, returnable to the city court of Dublin, for the purchase-money of two mules. The declaration alleged, that the defendants bought from Pope & Bales two mules for $353.39, for which they made and delivered to said Pope & Bales their note, and, to secure the payment thereof, executed a mortgage on the mules. The note, and mortgage were dated November 24, 1904, and due September 15, 1905. The note recited that if not paid at maturity it was to bear interest at 8 per cent, per annum -from its date. The note and mortgage were transferred to the plaintiff by Pope & Bales, October 2, 1905. In answer to the declaration the defendants admitted the execution of the note and mortgage, and that the same were for the purchase-money of the mules. They further answered, that they had paid on the note $168.16, and that after the note was due, and when it was still in the possession of Pope & Bales, they had tendered to Pope & Bales the full balance due thereon, which Pope & Bales statéd was $190, and that Pope & Bales had agreed to surrender to them the note on payment of this balance; that notwithstanding this agreement, Pope & Bales refused to accept the tender of this amount and sur- • render the note, on the ground that they had transferred it to J. M. Hall, the plaintiff. They further answered that they then tendered the full amount due on said note to J. M. Hall, “and are here and now ready to pay the said Hall the entire balance due on said note, and here bring the same into court and tender it.” All of the facts as to the tender were admitted to be true, but the plaintiff alleged, that no payments had been made on the note by the defendants, and that the full amount, with interest, was due; that the credits placed on the note were made by him, and not by the makers. The jury found a verdict for the plaintiff for $190, without interest, and he made a motion for a new trial, which, was overruled.

It was not denied that Pope & Bales told the defendants that the balance due on the note was $190, and that they agreed to surren■der the note on payment of this balance; nor was it denied that the defendants did tender this amount to Pope & Bales and to J. M. Hall. The evidence is not clear as to the exact date when the tender was made to Pope & Bales, but there is some evidence from which the jury might have found that such tender was made before the transfer of the note to Hall. If such was the fact, Hall took the note, it being past due, subject to the rights which resulted from the agreement of Pope & Bales to accept $190 in full payment thereof, and the tender to them of this amount. The only objection urged by counsel for the plaintiff to the tender was that it was not in full of the specific debt due on the note. A calculation •of the balance due on the note, when the makers asked the holders thereof how much was then due, will show a small sum in excess •of $190, including principal and interest, but the holders had the right to accept in full payment the sum of $190; and having agreed to do so, the full obligation of the defendants was met when that amount was tendered. The jury accepted this theory of the case, and we can not say that this verdict is -unsupported by the evidence. It seems to be in accordance with substantial justice, and we will let it stand, there having been no error of law committed.

Judgment affirmed.


text:
    346.
    HENRY VOGT MACHINE CO. v. BAILEY.
    A sale of "personal property to secure a debt, where the property remains in the possession of the vendor, is inoperative and void as against third persons, unless it is reduced to writing, in which event it will be good as to third persons when recorded, or, • when not recorded, as to subsequent purchasers or creditors who have actual notice of such sale. When such sale is not in writing, the personal property must be delivered into the possessipn of the vendee as security for the payment of the debt, to be valid.
    Claim, from city court of Americus — Judge Crisp. November 6, 1906.
    Argued May 13,
    Decided June 26, 1907.

      G. R. Ellis, for plaintiff. W. A. Dodson, for defendant.
   Hill, C. J.

The Henry Vogt Machine Company filed a mateTialman’s lien against E. D. Ansley on October 6, 1903; said lien being on the real estate in the city of Amerieus on which the ice plant of E. D. Ansley was situated, and also the buildings, machinery, etc., embracing the whole plant, including the property claimed by W. D. Bailey. The said machine company foreclosed its materialman’s lien and obtained a judgment establishing the lien, and also obtained in the same suit a general judgment against E. D. Ansley. The judgment in rem and the judgment in personam were both obtained on January 20, 1905. The fi. fa. issued thereon was levied on the property of E. D. Ansley, including a, certain “Laidlaw, Dunn & Gordon air compresser, with attachments.” This specific property was claimed by W. D. Bailey. On the trial of the claim case the jury found the property not subject, and thereupon a motion for a new trial was made by the plaintiff, which was overruled, and the plaintiff excepted.

The undisputed evidence showed that this property claimed by Bailey was bought by Ansley in July, 1903, from the Latta-Martin Pump Company, of Hickory, N C. The property was not paid for at the time it was purchased, and Ansley gave four notes for the purchase-money, which were indorsed by W. D. Bailey, who subsequently paid these notes. When Bailey paid the notes, Ansley told him that he could retain title to the property until he was repaid. Possession of the property, however, was not delivered to Bailey, but remained in Ansley. Neither did Ansley execute any writing or bill of sale to Bailey for the property. It was simply a verbal agreement between Ansley and Bailey. Before the record of its materialman’s lien by the machine company, and when a line of credit was extended by it to Anslejr, Ansley informed the secretary and treasurer of the machine company that the property in question belonged to Bailey, that Bailey had paid for the property; and that it was his property, and that the title thereto was to remain in him until he was repaid. The trial judge, in his judgment overruling the motion for a new trial, makes the following ¡statement: “After consideration, the court is of the opinion that the evidence makes out a verbal conditional sale between Ansley and Bailey, claimant, before the filing of materialman’s lien by the Henry Vogt Machine Company. In the opinion o£ the court, the law requires the recording of conditional sales, to protect innocent purchasers. The uncontradicted evidence in this case is that, before the lien was ever filed or sued out, Adam Vogt, the secretary and treasurer and general manager of the plaintiff, was given actual notice by Ansiey that the property involved in this claim was the property of Bailey, claimant.-”

The court tried the case on the theory that the facts showed a conditional sale. We do not think that under tbe facts a conditional sale was shown. It was at most a sale to secure the payment •of a debt. To constitute a valid sale of personal property to secure the payment of a debt, so as to he good as against subsequent creditors, a bill of sale to the property must be executed by the vendor to the vendee, and recorded. If such bill of sale is, however, not recorded, but'has been actually executed,, and the creditor has actual notice of it, then the title conveyed by it shall be good as against the claim of such creditor, whether he be a purchaser ■or a junior lien holder. Civil Code, §2772. It will thus be seen that there must be. constructive notice by the record, or actual notice, before the vendee’s title would be protected. There might also be a verbal sale, good against subsequent purchasers or creditors, provided the personal property sold was actually delivered into the possession of the vendee, in which event it would be a pledge or pawn to secure the debt. Civil Code, 1895, §2956. The facts in this case show that there was neither a written bill of sale nor a verbal sale with delivery of possession of the property as a pledge or pawn. There seems to have been simply a verbal ■understanding or agreement between Ansiey and Bailey, by which the title to the property was to remain in Bailey until he was repaid fhe money which he advanced for the payment of the property. The question of notice, therefore, to the machine company, which the learned judge seemed to rely upon as protecting Bailey, the claimant, we think was wholly immaterial, for the sale of the property in question to Ansiey by the Latta-Martin Pump Company and the delivery of the property to him were absolute-so far as the rights of third parties were concerned, and the mere verbal ■agreement between Ansiey and Bailey was inoperative as to all parties dealing with Ansiey. It follows, therefore, that the property in question was subject both to the materialman’s lien of the machine company and to the special judgment thereon, and was also subject to the general judgment, of the machine company against Ansiey. We therefore think that the trial court erred in not granting a new trial. Judgment reversed.


text:
      355.

    Bell v. Foss et al.

    Complaint, from city court of Quitman- — - Judge Bennet. September 3, 1906.
    Submitted May 14,
    Decided June 26, 1907.
    The suit was by G-. W. Bell against Foss Bros., a firm composed of C. C. Foss and R. J. Foss, and against J. L. Massey, on a promissory note made by the defendants and payable to the plaintiff. The ■only defense filed was by C. C. Foss. lie denied that he signed or delivered the note, or authorized any one to do so for him, and alleged that at the time it was made he was in the ginnery business with his brother, R. J. Foss, but that it was not made in the transaction of their partnership business or in any way connected therewith, and that R. J. Foss was not authorized to sign the partnership name to it. There was conflict in the evidence as to the consideration of the note; the evidence for the plaintiff being that the note was given to him for borrowed money to pay the debts of Foss Bros., and the evidence of C. C. Foss being that the money was borrowed by R. J. Foss for the individual use of R. J. Foss in the purchase of a mule. A verdict was rendered against all the -defendants, and C. C. Foss filed a motion for a new trial on the .statutory grounds, which was granted by the trial judge.

      Stanley S. Bennet, Sam. S. Bennet, for plaintiff.

      L. W. Branch, for defendant.
   Hill, C. J.

This being the first grant of a new trial, and it not affirmatively appearing that the verdict as rendered was demanded by the law and the evidence, this court, following the repeated rulings of the Supreme Court, will not interfere with the discretion of the trial judge. Civil Code, §5585. Judgment affirmed.


text:
    358.
    GRESS COMPANY v. BERRY BROTHERS LIMITED.
    The assignments of error in this ease are wholly without merit, and the finding of the court was fully warranted by the evidence.
    Complaint, from the city court of Nashville- — -Judge Peeples. October 6, 1906.
    Submitted May 14,
    Decided June 26, 1907.

      Hendricks, Smith & Christian, for plaintiff in error.

      Buie & Knight, contra.
   Hill, C. J.

Berry Brothers Limited brought suit against G-. V. Cress Company on an open account, in the city court of Nashville. The ease was tried by the court, by consent of counsel, without a jury; and judgment was entered for the plaintiffs for the amount sued for. The defendants made a motion for a new trial, which was overruled, and on this judgment error is assigned. The motion for a new trial was based on the usual statutory grounds, and on the following grounds, set forth in an amendment to the motion: (1) In refusing to exclude the second and third direct interrogatories and the answers thereto of Orrie C. Lake, the only witness for the plaintiffs, the objection being that said interrogatories were leading. (2) Because the account sued upon was not sworn to by any person authorized to swear to it, it being sworn to by Henry W. Seyler, bookkeeper. (3) Because the account sued upon was. not ¡oroved as required by law. (4) Because no delivery was ever-shown by the plaintiffs to any person or corporation for the defendants, or to the defendants themselves.

The second interrogatory objected to as leading was as follows:: “If in answer to the first question you state that you are credit manager for the plaintiffs, then state what transactions plaintiffs-had with the defendants in the year 1904." We do not think this interrogatory was leading. Besides, the allowance of leading questions is a matter within the discretion of the trial judge, and his judgment will.be reversed only where it is apparent that injustice has been done. Certainty this does not appear in the allowance of this question and answer. Georgia R. Co. v. Churchill, 113 Ga. 14, 38 S. E. 336; City of Rome v. Stewart, 116 Ga. 738, 42 S. E. 1011. The objection to the third interrogatory appears from the record not to have been made and filed with the interrogatories before the-issuing of the commission. Civil Code, § 5668.

The petition in this case was strictly in accordance with the-pleading act; and a bill of particulars containing each item of the account was made a part of this petition and sworn to by the bookkeeper of the plaintiffs. It was not necessary to verify the petition or any part thereof, suit having been brought in a court of record; and the defendants filing an answer unverified shows that the petition was considered as an unverified one. The petition having fully set out the items of the account, it wa 3 only necessary, on. the trial, to prove the items,' by competent testimony.

The account sued upon was clearly, accurately, and fully proved by the testimony of the credit man of the plaintiffs, who testified positively from his own knowledge of the facts. It is not pointed out in this assignment of error in what manner or in what particular the account was not proved as required by law; and this court is not aware of any better way to prove a fact than by a witness who swears that of his own knowledge he knows the fact to be true.

The credit man of the plaintiffs swore positively and of his own knowledge that in the year 1904 the plaintiffs sold and shipped to the defendants the goods as itemized and made a part of the petition. In the absence of evidence to the contraiy, this would be sufficient proof of delivery.

We are constrained to say in this case that in our opinion the assignments of error are entirely without merit, and the finding of the judge Avas fully warranted by the evidence.

Judgment affirmed.


text:
    361.
    Dalton Grocery Company v. Tyson & Vickers.
    Complaint, from city court of Nashville — Judge Peeples. November 7, 1906.
    Submitted May 14,
    Decided June 26, 1907.

      Hendricks, Smith & Christian, for plaintiff.

      W. G. Harrison, Buie & Knight, for defendant.
   Hill, C. J.

No error of law is complained of, and the verdict is supported by evidence and approved by the trial court. This court has no authority to disturb it. Judgment affirmed.


author: Powell, J.

text:
    363.
    DURANT LUMBER COMPANY v. SINCLAIR & SIMMS LUMBER COMPANY.
    1. Although the Court of Appeals came into existence on October 12, 1906, the Supreme Court retained jurisdiction of Avrits of error from city courts until January 1, 1907; and it still has jurisdiction in such cases, to the extent that it may cause them to be filed and transferred to this court.
    2. One who, having bought the business of another, fills an order sold by the latter to a third person, can not maintain in his oato name a suit against such third person upon the cont’ act of sale.

      (а) In such a ease lie may sue in tlie name of liis predecessor in business, with liimself as usee.-
    (б) In that event the defendant may set off counter demands existing in his favor against the nominal plaintiff.
    O. The evidence was insufficient to show a contract between the plaintiff and the defendant.
    4. While an undisclosed principal may sue upon a contract made with his agent, yet the opposite party to the contract will be entitled to set off any claim he may have against the agent.
    Complaint, from city court of Valdosta — Judge Smith. November 15, 1906.
    Submitted May 14,
    Decided June 26, 1907.

      J. M. Johnson, A. J. Little, for plaintiff in error.

      G. A. Whitaker, contra.
   Powell, J.

The Durant Lumber Company bought a carload of lumber from one Wells, who was operating a mill business. The Sinclair & Simms Lumber Company cut the lumber and shipped it. The Sinclair & Simms Lumber Company, which for convenience we will herein call the Sinclair Company, brought suit in its own name against the Durant Lumber Company, which herein we will likewise call the. Durant Company. For original answer the defendant filed a general denial of the paragraph of the petition alleging indebtedness upon the account. To meet a contention of the plaintiff that Wells was acting as agent of the Sinclair Company in making the contract, the defendant filed an amendment to the answer, in which he set up, that if Wells was agent of the plaintiff, the defendant had no knowledge of the fact, that Wells was indebted to the defendant, and that as to the remainder of the money beyond Wells’ indebtedness to the defendant, it had been paid into court under a garnishment proceeding instituted against Wells by one of his creditors. It appears, from the evidence, that shortly after Wells made the contract of sale he sold out his business to the Sinclair Company. The contention of the plaintiff is, that before the lumber was cut, Wells notified the Durant Company of this fact; and that Wells, as the agent of the plaintiff, made a new contract, whereby the plaintiff was to cut it instead of him. The defendant denied that it had any intimation that Wells had. sold out, or that the Sinclair Company was to cut the lumber, until after it had been shipped. Upon this point the plaintiff’s case rests solely upon the following testimony of Wells: “I did tell him [Durant] of the sale a day or two after it was made and before this lumber was cut that is sued for. I told Mr. Durant that I had sold out, and that the Sinclair & Simms Lumber Company would have to fill the balance of their orders if they were filled; 'that I had nothing more to do with them. That was before.this lumber was cut.. Don’t remember what Mr. Durant said. about that, only he said he wanted his orders filled. I was managing the business of the Sinclair & Simms Lumber Co.” Q. “You say that just a few days after you sold out to the Sinclair & Simms Lumber Co., you put Mr. Durant on notice?” A. “Yes sir, I came up here in a day or so after I had sold out, and told him that I had sold .out. I told him in that conversation that I would be with the Sinclair & Simms Lumber Company.” Q. “Was there anything said between you and Mr. Durant about the Sinclair & Simms Lumber Co. continuing to cut for him?” A. “Well, he said that he wanted his old orders filled, that he had placed his orders and he wanted them filled. I told him that I did not have anything to do with them, that was, with the Sinclair & Simms Lumber Company.” Q. “What did he say in that connection?” A. “He said that he wanted them filled.” There was evidence of an indebtedness existing from Wells to, the Durant Company at the time that the order was taken and at the time it1 was filled.. On this point the court charged the jury: “The defendant in .this case could not take- this car of lumber (even if Wells was the agent, and he dealt with him in ignorance of his being the agent and the other parties the principals) and place any part of it to the payment of the account due by W. E. Wells to him, which ex- ■ isted prior to this time,, or any other account, except payment of money on this particular ear; and they don’t claim in this case to have paid any money on this particular, car, except as paid in ■court; and there i$ no evidence to justify a verdict in favor of the defendant on the question of payment, and it resolves itself down to this one question in.the case, and there is but one question you are to decide, and that is whether or not the shipment of this car of lumber by plaintiffs in this case to defendants was authorized by defendants.” The verdict was in the plaintiff’s favor. To the overruling of the motion for a new trial the defendants filed a bill of exceptions which was signed December 13, 1906, and filed in the office of the clerk of the Supreme Court on December 22, 1906. After January 1, 1907, the ease, having originated in a city court, was transferred by the Supreme Court to this court. The defendant in error has filed a motion to dismiss the writ of error, on the grounds, that on December 13, 1906, the Court of Appeals had exclusive jurisdiction of cases arising in city courts, and the writ of error signed that day was made returnable to the Supreme Court; also that on that date the Supreme Court had no jurisdiction to entertain writs of-error from city courts; that the Supreme Court, being without jurisdiction, had no power to transfer the case.

We will first dispose of the motion to dismiss the writ of error. It is ill founded. By the constitutional amendment of 1906 (Acts 1906, p. 24), the Supreme Court retained jurisdiction of writs of error from city courts.until January 1, 1907. Express power was also conferred on that court to transfer such cases, of the class mentioned, as were pending therein on January 1, 1907, to the Court of Appeals. Even now, by virtue of another provision of the same constitutional amendment the Supreme Court may entertain jurisdiction of writs of error in cases not reviewable by that court, to the extent of transferring them to the Court of Appeals : “and the Court of Appeals shall try the cases so transferred.”' A writ of error which is made returnable to the Supreme Court, when it should be made returnable to the Court of Appeals, is not void. The framers of the constitutional amendment wisely made provision for such cases; for although frequently there is doubt as-to which court has the jurisdiction, the writ of error may in all eases be filed in the Supreme Court, and if that court finds that the case is within the jurisdiction of the Court of Appeals, it will be transferred. This motion to dismiss arises from a misconception of our ruling in Gainesville Midland Tty. v. Jackson, 1 Ga. App. 632. While, as held in that case, the Court of Appeals came into existence October 12, 1906, yet this in no wise interferes with the powers reserved to the Supreme Court, under the constitutional amendment creating this court.

The judgment must be reversed. Certainly the Sinclair Company could not sue in its own name upon the original contract between Wells and the Durant Company; for he was not the agent of the Sinclair Company when the contract was made. It might have maintained a suit in the name of Wells for its use, but the defendant, would have been entitled to the protection of all the defenses it might have had against Wells. Atlantic Coast Line R. Co. v. Hart Lumber Co., ante, 88.

Nor was there sufficient evidence of a subsequent new contract, whereby the defendant bought from the Sinclair Company, through Wells as its agent.' The evidence upon which the plaintiff must rely to establish that contention is set out above. It shows that Wells notified the defendant that he had sold his sawmill to the plaintiff, and that if the lumber was cut the plaintiff would have to cut it. Nowhere does Wells say that the Durant Company agreed to surrender its contract with him and to make a new purchase from the Sinclair Company; but he says that Mr. Durant replied that “he wanted his old order filled, that he had placed his orders and wanted them filled.” The words quoted are apt for the expressing of the idea that Durant insisted on Wells’ complying with his contract, even though it were necessary for him to get some one else to cut the lumber, and inapt to express the idea that a direct purchase by the Durant Company from the Sinclair Company was contemplated.

But even conceding that the plaintiff’s evidence was such as to show that Wells contracted with the defendant as the agent of Sinclair Company, yet since the defendant denied any knowledge of the agency until after the shipment was made, the court’s instructions quoted above were erroneous. While an undisclosed principal may sue upon a contract made with his agent, yet the opposite party to the contract will be entitled to set off any claim he may have against the agent, and not merely such claims as arise out of the particular contract in question. Ruan v. Gunn, 77 Ga. 53; Rosser v. Darden, 82 Ga. 219. Judgment reversed.


author: Russell, J.

text:
    379.
    DILMAN BROTHERS v. PATTERSON PRODUCE AND COMMISSION COMPANY.
    1. A breach of an executory contract for the purchase of goods will not support'an action upon an open account for the price thereof.
    2. The intention of the parties to a contract may dispense with delivery of personal goods, and delivery may be-constructive; but for a contract of sale to be executed, and not merely executory, the title must pass to the purchaser, in the absence of delivery.

      3. “The main thing to be considered, is the intention of the parties.” Shepard v. King, 96 Ga. 84, 23 S. E. 114. Where title to personal goods is retained by the vendor by attaching a bill of lading, “order notify,” to a draft for the purchase-price of such goods, delivery is postponed until after payment, and the contract of shle is executory.
    4. The general rule as to the discretion of the presiding judge in granting a first new trial does not prevail, where such grant rests solely on a question of law. Hiller v. Howell, 74 Ga. 174.
    Complaint, from city court of Cordele — -Judge Strozier. February 2, 1907.
    Argued June 19,
    Decided June 26, 1907.

      Hill & Royal, for plaintiffs. W. H. Dorris, for defendant.
   Russell, J.

Dilman Brothers brought their suit upon an open account against the Patterson Produce & Provision Company, for $232.16; this amount representing the price of a car load of Danish cabbage and Baldwin apples, shipped on Lehigh Valley ear No. 5,609, from Waterloo, N. Y., on March 20, 1905, by Dilman Bros., “order notify” Patterson Produce & Provision Company, at Cordele, Ga.- The plaintiffs had the bill' of lading for the shipment taken to their own order, a,nd attached thereto a draft for the purchase-money of said produce, drawing through the Cordele National Bank of Cordele, Ga., and the draft, together with the bill of lading, was presented to the defendant for payment. The defendant refused to aecejjt the car of produce or to pay the draft, and notified the plaintiffs of this fact immediately; and the plaintiffs instituted this suit. Upon an agreement between the counsel in the case, the issue was submitted to the court without a jury; and after hearing - the evidence the court rendered a judgment in favor of the plaintiffs for said amount of the purchase-price of the produce. The defendant made a motion for a new trial upon various grounds. Upon the hearing of the motion his honor, Judge Strozier, granted a new trial; and this is the error assigned in the bill of. exceptions1. • ■

As the new trial was granted for the sole reason that it appeared from the evidence “that the goods sued for were never delivered to- the defendant, and for this reason an action upon account could not be maintained,” it is .only necessary to, consider two grounds of the.motion for new trial, Th.ese are as follows: “(3) Because the court.-erred in rendering judgment in favor of the plaintiff, for the reason that under the evidence the contract was an executory contract, and not an executed contract, and the title to said property did not pass out of the plaintiff into the defendant, and the title to same, under the contract of shipment, would not pass out of the plaintiff until the draft attached to the bill of lading was paid, because the evidence shows that the shipment was made to 'order’ of the plaintiff. (4) Because the court erred in rendering judgment in favor of the plaintiff against the defendant, for the reason that the evidence does not disclose any delivery of the merchandise sued for to the defendant by the plaintiff, or any acceptance of them on the part of the defendant, and this plaintiff can not maintain an action for the purchase-price of the merchandise against this defendant in plaintiff’s suit on open account.” The question in the case turns upon the point whether there had been a sale of the articles whose purchase-price was sued for— whether the contract between the parties was executory or executed.

It is well settled that delivery of goods is essential in order to-maintain an action for the purchase-price. It is true that actual delivery may be dispensed with by agreement of the parties, and also true that by constructive delivery (where such is shown by the evidence) actual manual possession of the goods by the vendee is not necessary' to complete the sale. But to complete the sale of personalty there must be a relinquishment by the vendor to the vendee of dominion and control of' the property sold. The evidence in this case shows that the parties contemplated a cash transaction, and that actual delivery should be had before the sale was complete. Under the Civil Code, §3545, “until delivery is made or dispensed with, the goods are at the risk of the seller,” and “if a purchaser refuses to take and pay for goods bought, the seller may retain them and recover the difference between the contract and the market price at the time and place of delivery, or he may sell the property, acting for this purpose as agent for the vendee, and recover the difference between the contract price and the price on resale, or he may store or retain the property for the vendee and sue him for the entire price.” Civil Code, §3551. The contract was an executory and not an executed contract, for the reason that Dilman Bros., as sellers, took a bill of lading from the railroad company to their own order, and attached draft to same for the purchase-price, drawing on the defendant, through the bank -of the defendant’s residence. The vendors thereby retained title to the goods in themselves until the draft was paid or accepted by the defendant under the contract of shipment, thereby rendering the railroad the agent of the seller, and not the agent of the buyer. Furthermore, under the contract of shipment, the bill of lading was security for the draft, and neither the title nor the right to the bill of lading passed to the defendant, but the title to the-goods remained in the plaintiff. For these reasons we think the judgment of the trial judge in granting a new trial was right.

The case of Maddox v. Wagner, 111 Ga. 146, 36 S. E. 609, lays down the rule that a breach of an executory contract for the purchase of goods will not support an action upon an open account for the price thereof. Then, was this an executory contract ? The goods were ordered by telegram and were consigned to the order of the shippers. One of the stipulations of the bill of lading was ns follows: “Not negotiable. If the word ‘order’ is written immediately before or after the name of the party to whose order the property is consigned, the surrender of the hill of lading, properly indorsed, shall be required before the delivery of the property at destination, as provided by section 9 of the conditions of the uniform hill of lading, on the back thereof.” And on the back of the bill of lading was the following: “(9) If the word ‘order’ is written hereon immediately before or after the name of the party to whose order the property is consigned (without any conditions. or limitations- other than the name of a party to be notified of the arrival of the property), the surrender of this bill of lading' properly indorsed shall he required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein, the said property may, at the option of the carrier, he delivered without requiring the production or surrender of this bill of lading.” As before stated, this bill of lading was attached, to a draft for the purchase-price drawn on the Patterson Produce & Provision Company, and under the Civil Code, §3554, neither the title to the goods nor the right to the bill of lading passed to them until they either accepted, or accepted and secured, or paid that draft. As held by the Supreme Court in Farmers’ & Traders’ Bank v, Allen-Holmes Company, 122 Ga. 69, 49 S. E. 817: “Under the very terms of the contract of shipment the carrier obligated itself to transport the car and hold it subject to the orders of the holder of the bill of lading, whether such, holder was the party to whom the bill of lading was originally issued or his assignee.” So that delivery to the carrief was never delivery to the Patterson Produce & Provision Company, unless it became the holder of the bill of lading in one of the ways pointed out in section 3554. It did not pay the draft. There was no delivery. The manner of the shipment proved the contract of sale to be executory — such a contract as, under the decision in Maddox v. 1 Vagner, supra, would not support the action upon open ac-count.

The case of Woodward v. Solomon, 7 Ga. 246, cited by learned counsel for plaintiff in error, does not rule contrary to what we now hold. In that case the vendor had been paid in full for his property, and in writing relinquished dominion and control to the vendee. In the Woodward case the vendee, having paid the price, not only had the right of property, but was also entitled to the possession. The vendor did everything there was to be done, and the rule laid down in that case is merely that, if there is nothing to be clone by the vendor, the title passes to the vendee. In other words, the court was simply discussing the question of title to property under sales generally. As said by Justice Lumpkin, in Allen v. Hollis, 31 Ga. 143 (1) : “When goods are sold, and nothing is said as to the time of delivery or time of payment, and everything the seller has to 'do is complete, the property vests in the buyer.” And, after remarking that Broom’s Commentaries upon the Common Law contained more law than any volume of its size extant, he quotes from that book as follows: “Property in specific chattels may pass without delivery. ‘ It will so pass when, at the time of the bargain, everything is already done which according to the intention of the parties was necessary to transfer the property. The appropriation of the property, being equivalent to a delivery by the vendor and the assent of the vendee to take the specific chattel and pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the chattel in the bargainee.” The rule is nothing more or less than that transfer of title (the right of property) is equivalent to delivery and dispenses with it. The doctrine has no application in this case, for the vendor in this case expressly reserved title by attaching the bill of lading to the draft.

If Dilman Bros. had consigned the goods directly to the Patterson Produce & Provision Company, title would have passed to the consignee; and, delivery to the carrier being delivery to the consignee, nothing would -have remained for the vendor to do, and the case would have been properly brought. But-the evidence shows that the vendors in this case did not intend to dispense with delivery. That usual essential of a sale was still incomplete; and title was retained in order to make the execution of the contract dependent upon payment. “The general rule is that when one orders goods from a distant place, to be shipped by a common carrier, and the order is accepted and the goods shipped, the delivery to the common carrier is delivery to the purchaser, the common carrier being the agent of the purchaser to receive them; and when this is done the title, without more, passes from the vendor to the vendee. If, however, the vendor of the goods is not satisfied of the solvency of the purchaser, or is doubtful thereof, or wishes to retain the title himself, he may vary this rule, when he makes the consignment and delivers the goods to the carrier, by taking the bill of lading from the carrier to his own order. When the vendor does this, it is evidence that he does not part with the title of the goods shipped, but retains the same until the draft which he sends with the bill of lading is accepted or paid.” Delivery of personal goods may be evidence of title. Title is not necessarily dependent upon delivery. But there can certainly be no sale without change of title. There was no error in granting a new trial.

It is not necessary to consider the other questions raised in the record. While it is trne, as a general rule, that the first grant of a new trial on the part of the trial court will not be reviewed or controlled, still the general rule as to the discretion of the presiding judge in granting a first new trial does not apply when the new trial is granted solely on a question of law.

Judgment affirmed.


text:
    397.
    INGRAM, administrator, v. JACKSON MERCANTILE COMPANY.
    1. Under the Civil Code, §3761, no judgment shall be enforced after it becomes dormant.

      (a) To allow a dormant judgment to subject money through a process of garnishment based thereon would be to enforce it in violation of this section.

      (6) A judgment obtained in a justice’s court is dormant where the execution issued thereon is more than seven years old and neither the execution nor any official entry tliereon has been entered upon the superior court execution docket; and this is true although the execution has been, within the period named, entered upon the general execution docket.
    2. A valid existing-judgment against the defendant is a condition precedent to a judgment against the garnishee; and the latter may contest the validity of the judgment against the defendant when the same is offered as a basis for a judgment in the garnishment case. This is true although the garnishee has failed to make answer, or has answered admitting indebtedness to the defendant, or .lias answered denying indebtedness, and, upon traverse, the issue has been found against him.
    Garnishment, from Butts superior court — C. L. Redman, judge pro hac vice. February 27, 1907.
    Argued June 21,
    Decided June 26, 1907.

      O. M. Dukce, for plaintiff in error.

      H. M. Fletcher, Ray & Ray, W. C. Munday, contra.
   Powell, J.

On May 15, 1897, the Jackson Mercantile Company recovered judgment in a justice’s court against J. M. Ingram; on May 21, 1897, execution was issued; on August 28, 1897, the execution was placed upon the general execution docket of the county; on January 9,1904, an entry of nulla bona was made on the execution ; but neither the execution nor the entry of nulla bona has ever been recorded on the superior court execution docket. On October 17, 1906, the Jack-son Mercantile Company sued out a garnishment proceeding based on this judgment,' and caused summons of garnishment to be served upon J. S. Ingram, administrator upon the estate of Susan P. Ingram. Tó the answer of the garnishee there were filed both an objection as to its being sufficient and as to the time of its filing, and also a traverse. When the execution was offered on the trial, as evidence of the plaintiff’s judgment against the defendant, the point was made that it was dormant. The jury found in favor of the garnishee. The plaintiff sued out certiorari; and on the hearing in the superior court the judge pro hac vice awarded final judgment in favor of the plaintiff, presumptively upon the theory that the answer of the garnishee was insufficient, or not filed in time, and that the garnishee was therefore not in position to attack the validity of the plaintiff’s judgment.

The judgment was dormant; this is clear. When a judgment is obtained in a justice’s court, in order to prevent dormancy the execution and entries are to be recorded upon the superior court execution docket, not upon the general execution docket. The record upon the latter docket is for a different purpose. Civil Code, § 3762; Columbus Fertilizer Co. v. Hanks, 119 Ga. 950, 47 S. E. 222; Rountree v. Jones, 124 Ga. 395, 52 S. E. 325. A dormant judgment is asleep for all purposes, legal and equitable; and by the express letter of the Civil Code, § 3761, it is not to be enforced. Palmer v. Inman, 126 Ga. 519, 55 S. E. 229. To let it seize money through a process of garnishment would unquestionably be to enforce it, and would be a violation of the law.

A valid existing judgment against the defendant is a necessary prerequisite to a judgment against the garnishee; for the existence of such a judgment is the only adequate answer of the garnishee to the defendant when the latter calls upon him for payment of the indebtedness existing between them. The garnishee may by answer admit indebtedness to the defendant; or, by failing to answer, may put himself into a position where the court conclusively presumes against him an admission of such indebtedness; or he may become estopped to deny the indebtedness, by reason of a finding in favor of a traverse to his answer; still he is not to be required to pay to the plaintiff the money actually or constructively admitted or found to be due to the defendant, until the plaintiff submits a judgment against the defendant, valid against the latter and sufficient to protect the garnishee from the subsequent demand of the defendant against the garnishee for the same fund. Until the garnishee has actually or constructively admitted the indebtedness, or a finding has been rendered against him estopping him from denying the indebtedness, and final judgment is about to be entered against him, the garnishee has no interest in the question whether the plaintiff has a valid judgment against the defendant or not; but then, though not till then, it is his right and duty to inquire into the validity of the alleged judgment against the defendant, on which the final judgment against the garnishee must necessarily rest. Merchants Bank v. Haiman, 80 Ga. 624, 5 S. E. 795; see also Fagan v. Jackson, 1 Ga. App. 24, 57 S. E. 1022.

Judgment reversed.


text:
    410.
    SHEFFIELD et al., administrators, v. JOHNSON COUNTY SAVINGS BANK.
    1. Writing and signature are necessary to tlie formal indorsement of a. negotiable instrument; but no particular form of signature is necessary, any form adopted as sueli being sufficient. A seal is unnecessary to its sufficiency, whether it be that of a private person or of a corporation.
    2. In a suit by the plaintiff as the transferee of a negotiable instrument, a written indorsement thereon, bearing as the signature only the corporate name of the payee, not accompanied by the name of the agent by whom affixed nor by the corporate seal, is nevertheless sufficient, proof of the transfer, unless the indorsement be specifically denied on oath.
    3. While by common law and by general law, as recognized in most of the American States, and possibly in this State, if the defendant in an action by the legal holder of a negotiable promissory note shows, that the note was procured by fraud or duress, or ’ that it is founded upon an illegal consideration or an original total lack of consideration,, tlie burden of proving that he is a bona fide holder for value is east upon the plaintiff, yet no such result follows from proof showing mere-failure of consideration, total or partial.
    4. The vei-diet directed in this ease is larger in amount than the proof' warrants.
    Complaint, from city court of Blakely — Judge Jordan. March 21, 1907.
    Argued June 21,
    Decided June 26, 1907.

      Pottle & Glessner, R. H. Sheffield, for plaintiffs in error.

      Bush & Stapleton, Oliver & Russell, contra.
   Powell, J.

The plaintiff sued upon a negotiable promissory-note made by the defendants’ intestate, payable to the New England Jewelry Company. Upon the back of the note was an indorsement as follows: “March 2, 1903. For value received, we hereby sell and assign the within note to the Johnson County Savings-Bank. New England Jewelry Co.” The defendant pleaded, and attempted to prove, that the consideration of the note was jewelry, alleged to be good serviceable gold-plated and gold-filled jewelry, sold by the New England Jewelry Company to the defendants’’ intestate; whereas a lot of brass jewelry was delivered, worth only about one fourth as much as the jewelry contracted for. There-was no evidence of the circumstances under which the plaintiff’s, title to the note was acquired, except the written transfer set forth above. The court excluded the testimony offered by the defendant, showing that the jewelry was brass and worth only a small amount, and directed a verdict for the plaintiff.

The plaintiffs in error concede that if the plaintiff in the court below is to be conclusively considered as a bona fide holder for value, their defense was not available to defeat a recovery. They contend, however, that the indorsement on the note was prima facie insufficient; that the name New England Jewelry Company connotes a corporation; that a corporation can act only through an agent; that when no corporate seal is attached there is no presumption that the signature is genuine. This exact point was made in each of the following cases: Templeton v. Heyward, 62 Ill. 178; Walker v. Krebaum, 67 Ill. 252; Second National Bank v. Martin, 82 Iowa, 442, 48 N. W. 735. In all of them the contention is overruled. In speaking of a similar indorsement, the court, in the case last cited, says: “But, in our opinion, the signature of the indorsement is sufficient as it appears. A little thought will make this plain. The name of the corporation written on the back of the instrument is in fact the signature of the indorser, just as it would be if it were shown that it was made by an officer of the corporation that signs it. It is the corporation that does the act by the officer, for it has not hands, and can not write. When'the'name is found written upon the notes, it is known that it is intended as the indorsement in blank. If the name be written there by an officer having authority, it will bind the corporation, upon that fact being established, though the officer’s name be not subscribed to, nor appears in, the instrument. It can not be doubted that had defendants raised an issue presenting the question whether the name of the corporation was written upon the notes, for the purpose of indorsing them, by the officer clothed with authority so to do,- the plaintiff would have been permitted to present evidence supporting the indorsement by showing the authority of the one making it, and his intention to bind the corporation as an indorser. Now, as no such issue was raised by the defendants’ answer, the sufficiency and validity of the indorsement stands as admitted in the case.” See also 7 Cyc. 792; Habersham v. Lehman, 63 Ga. 380; Neal v. Gray, 124 Ga. 511 (3), 515, 52 S. E. 622; Tyson v. Bray, 117 Ga. 689, 45 S. E. 74. It is true that the signature, not purporting to be made by any particular agent authorized to act for the corporation and not being accompanied by the corporate seal, does not import its own authenticity; but the defendant, by not denying the indorsement under oath, conclusively admits its genuineness. Civil Code, § 3705. The case of Dodge v. American Freehold Co., 109 Ga. 394 (2), 34 S. E. 672, relates to the method of proving the execution of an instrument not constructively and conclusively admitted to be genuine b3r a statutory rule of pleading, as is the case with this indorsement. The principles announced in the first two headnotes are now so well established by the current of authority as to admit of no serious question..

When a plaintiff introduces in evidence a negotiable promisso^r note duly assigned to him before maturity, the presumption immediately arises that he is a bona fide holder for value and is entitled to protection against equities and defenses which the maker might have against the original payee. At common law, if the defendant showed by his proof that the note was procured by fraud or duress, or that it was founded upon an illegal 'consideration or an original total lack of consideration, the burden was shifted to the plaintiff to show that he did in fact receive the note in ordinary course of trade, in good faith, for value and without notice of the defenses; and this seems to be the rule recognized in most of the American States, and possibly in Georgia. See Norton on Bills and Notes, 243; 2 Gr. Ev. (16th ed.) § 172; Duncan v. Scott, 1 Camp. 99; Miller v. Race, 1 Burr. 452; 8 Cyc. 236-238. But “mere evidence of failure of consideration or partial failure of •consideration is not sufficient to throw upon the holder the burden of proving that he obtained the paper in good faith.” 8 Cyc. 239, and cit. The defendant’s plea and tendered, proof alleged and showed only a partial failure of consideration.

4. The note was payable in five equal instalments, due seriatim on the 20th day of the following months: January, April, July, .and October, 1903, and January, 1904. It contained the following provision: “Any instalment past due to draw six per cent, interest per annum; if not paid within ten days after due, the whole note to become due on the option of holder.” The first instalment appears to have been paid. (Otherwise the plaintiff would have fallen within the purview of the latter portion of Civil Code, §3695.) The court directed a verdict for the aggregate principal of the four other instalments, “with interest on that amount at 6 per cent, per annum from April 20, 1903.” In this direction as to interest we find error. The instalments bore no interest until after the maturity of each. The plaintiff had the option to declare the whole note due for a default in the payment of anjr instalment;, but it was not obliged to do so. The entire note did not ipso facto' become due when the first instalment became past due; it required, affirmative action on the part of the holder to effectuate this result. The holder of the note might have preferred to retain it as a contract maturing instalments, with the privilege of suing on each instalment in a justice’s court, rather than to convert it into a single demand above justice’s court jurisdiction. We cite this as one, of a number of possible considerations why the law will not presume the exercise of the option on the plaintiff’s part. We are not prepared to say that the plaintiff could hasten the maturity of the notes, even by an exercise of,the option, so as to make his entire demand bear interest from that date; though as to this we are not-called upon for a decision at present. The court having directed the verdict for too large a sum, a reversal results. Kelly v. Strouse, 116 Ga. 874 (8), 43 S. E. 280.

Judgment reversed.


text:
    424.
    Curtis et al. v. The State.
    Conviction of manslaughter, from Bibb superior court — Judge Felton. March 7, 1907.
    Argued April 22,
    Decided June 26, 1907.
    Joe and Monk Curtis were indicted for the murder of John New-some, and were found guilty of voluntary manslaughter. They excepted to the refusal of a new trial. The parties met in an alley by Newsome’s house, where the difficulty occurred, on an afternoon in August. A quarrel with cursing ensued, and Newsome was shot twice. There was testimony that both the Curtises had been drinking, and one of them had foully cursed Newsome’s wife, or another woman in his house. Other facts indicated by the evidence will appear from a reading of some of the instructions of the judge to the jury, hereafter set forth. The motion for new trial, in addition to the general grounds, assigned error, because:
   Russell, J.

The judgment of the trial court, refusing a new trial, is. not erroneous for any reason assigned. Judgment affirmed.

1. The court admitted in evidence, over objection, a dying declaration of Newsome, written from his dictation by an attending surgeon, and signed with his mark, at the hospital to which he had been carried. lie lived 39 or 40 hours after he was shot. The surgeon advised him that he would die, and asked him if he wanted to make a dying statement. He was rational and had good sense. The statement was: “My name is John Newsome. I live in East Macon. Joe and Monk Curtis shot me. I was not drunk. Shot me for nothing. Joe and Monk Curtis were both drunk. My dying statement.” This, after being written, was read over to Newsome before he signed it. The grounds of objection were, that such ’statement, to be admissible, must have been made in the article of death, and the declarant must think he is going to die; and that this declaration expressed an opinion as to the guilt or innocence of the defendants.

2. The court charged the jury the law of dying declarations; the ground of error being that the proof did not show that the declarant was in the article of death, or that he believed he was going to die.

3. 4. The court charged the law of express and implied malice; the movants contending that no deliberate intent to take human life was ]3roved, and such charge therefore being unauthorized and prejudicial.

5. The court charged the law of voluntary manslaughter; the movants contending that no voluntary manslaughter was proved.

6. The court charged: “Now, the distinction betAveen voluntary manslaughter and justifiable homicide or homicide in self-defense lies here. Homicide in self-defense is committed upon one who manifestly intends or endeavors by violence or surprise to commit a felony upon one’s person. A felony is an offense punish able by confinement in the penitentiary. A felony upon one’s person would be an assault with intent to murder one; an assault Avith a deadly weapon, or with a weapon which in the mind of the person assaulted would be of that character as would be reasonably likely to produce the death of the person assaulted; and if, under the fear engendered from the assault thus made, the person really believed that his life Avas in danger in consequence of the assault tiras made upon him, which he deems is under such circumstances as to reasonably justify the apprehension that his life or limb is in serious danger, likely either to result in serious danger to his body or in the taking of his life, and under those circumstances where the assault is made with violence of that character or by surprise, and under the influence of the fear thus aroused he shoots or cuts •and kills, that is a homicide in self-defense.” The movants contend that this charge required the jury to believe that Newsome was endeavoring to commit a felony upon them, before they would be justified in taking his life; whereas a man may take the life of another in self-defense under a mere assault and battery, if he believes his life is in danger.

7. The court charged: “Now if j'ou believe the truth of the case to be this, that these defendants being brothers; and I charge }rou that if they were brothers that each had the same right to defend the other as they would have to defend themselves, because two brothers occupy that relation towards each other .that they would each have the same right to defend the brother that one would have to defend himself. If you believe the truth of this case is that these two men, or either of them, were out in front of the place where Newsome lived, cursing either the wife of Newsome or some woman in that house, and that Newsome told him to go on off and to go away, remonstrated with them; and that one or the other of them drew a weapon, if you believe J oe Curtis drew a weapon and made an assault with that weapon by presenting it at Newsome in such a manner as caused Newsome to believe that he was about to be shot by Joe Curtis with that pistol, and that in order to protect himself he secured a paling or railing from a fence near by, with a view of warding off and defending himself against an assault which he believed Curtis was endeavoring to make upon him with a pistol, and, after securing that paling with a view of protecting himself, Curtis shot him with a pistol, giving him a wound from which he died, and that Newsome did not seek to commit any serious personal injury of any character either upon Joe or Monk Curtis until after Joe Curtis had made an assault upon him with a pistol under the circumstances which showed an intention upon the part of Joe Curtis to shoot Newsome with that pistol, you would be authorized to find the defendant Joe Curtis guilty of the crime of murder; and if thereafter, after J oe Curtis, if you believe that fact is established by the testimony to be true that Joe Curtis did, under the circumstances just narrated, shoot New-some with the pistol, intending to kill him; and if thereafter, while Newsome was not endeavoring to commit any assault further upon Joe Curtis or upon Monk Curtis, and that Monk Curtis seized the pistol and himself fired upon Newsome, inflicting a wound upon his person from which he died, you would be authorized to find the defendant Monk Curtis guilty of the offense of murder.” The grounds of error are, that there was no evidence that Newsome remonstrated with the defendants to leave his home; that the charge was argumentative; and that it did not give the defendants the benefit of their right of self-defense, and presented the State’s case too strongly.

8. The court charged: “Now, if you believe the truth of the case is that the evidence does not show the guilt of the defendants or defendant of the offense of murder, but do believe the evidence shows the guilt of both of them, or either of them guilty, of the offense of voluntary manslaughter, or if you believe the evidence shows the guilt of both of them of the offense of voluntary manslaughter, you would be authorized to find a verdict of guilty as to cither or both, as you may reach a conclusion as to their guilt. In that connection I charge you this: that if you believe the truth of the case is that these two defendants and Newsome, or Newsome in connection with Wilson, were having a fight there because of the fact that the defendants had been cursing one of the women in the bawdy house there, and while they were thus engaged in a fight, Wilson and Newsome on. one side, or Newsome alone on one side, and the Curtis boys on the other, that Newsome drew a paling, and that the Curtises having a pistol or knife, and in pursuance of that mutual fight, all actuated by' a desire to fight and a willingness to -fight, that they were armed and equipped with the weapons they could quickly get, a pistol or a knife or an axe or a fence-railing, and while in a general fight between the parties at that time shots were fired in that mutual fight in which Newsome was killed, you would be authorized to find, as to the party doing the killing, such party guilty of the offense of voluntary manslaughter; and if only one of them fired the shot, but the other was present aiding and abetting him in the difficulty, even-though not himself actually discharging the pistol, but engaged in the fight, being present aiding and abetting him in the difficulty in which the pistol was used, and one of the Curtis boys fired the shot while the other was'present aiding and abetting him in the fight, but rendering him such assistance as he could in the fight,, the one not actually firing the shot -would be guilty as principal in the second degree, and you would be authorized to find as to such person the same verdict as you would against the principal, if they were all mutually engaged in a fight there together at the time, armed and fighting with such weapons as they had and secured.” The movants contend that there was no evidence of mutual combatfor which reason error is assigned on this charge.

John R. Cooper, Marion W. Harris, for plaintiffs in error.

William Brunson, solicitor-general, contra.


text:
    449.
    Girardeau v. City of Atlanta.
    Certiorari, from Fulton superior court — Judge Pendleton. April 9, 1907.
    Submitted May 27,
    Decided June 26, 1907.

      Reuben A. Arnold, J. B. Ridley, for plaintiff in error.

      James L. Mayson, William P. Hill, contra.
   Powell, J.

One who, by virtue of a contract with a firm of general insurance agents, solicits insurance for their office, and for their office alone, and who receives for his compensation a portion of the commissions paid by the insurance companies on the business so solicited, and who does not otherwise engage in any insurance business, is not an insurance broker. Judgment reversed.