text:
    10027.
    Matthews v. American Textile Company.
   Wade, C. J.

1. A cause of action was set forth by the petition, in which it was alleged that the defendants accepted an offer to buy 400 bales of cotton as per terms of a letter addressed to them and signed by the plaintiff, at 11-1/2 cents per pound, said cotton to be of a specified grade and to be delivered on fixed dates; that 200 of said 400 bales were delivered by the defendants and accepted and paid for by the plaintiff as per the terms of the contract; and that the plaintiff stood ready and willing to receive and pay for the remaining 200 bales upon their delivery, and that the defendants breached the contract sued upon by their refusal and failure to deliver the remaining 200 bales. See Forsyth Mfg. Co. v. Castlen, 112 Co,. 199 (37 S. E. 485, 81 Am. St. R. 28); Watson v. Hazlehurst, 127 Ga. 298; 300 (56 S. E. 459); McGhee Cotton Co. v. Herrine, 10 Ga. App. 700 (74 S. E. 66); Terry v. International Cotton Co., 136 Ga. 187 (70 S. E. 1100).

(a) Although it is true that in order for a contract of purchase to become effective when entered into by correspondence through the -mails, the offer to buy must be accepted by the seller unequivocally, unconditionally, and without variance of any sort,' it is also true that if -there be a slight variance between the acceptance and the offer to buy, a shipment by the seller of a portion of the goods thus ordered, which are accepted and paid for, would amount to a ratification of tlie terms of the oiler to buy, since a ratification of a part is a ratification of the whole. See Good Roads Machinery Co. v. Neal, 21 Ga. App. 160 (2) (93 S. E. 1018), and cases there cited.

2. The petition was not subject to demurrer on the ground that “it is not shown by said petition that said alleged sale was within the scope of the business of the firm.” The petition specifically alleged that the firm of E. Matthews & Son were, in the year 1913, engaged in the mercantile business, and that among other things it was buying and selling cotton. In view of this allegation, it was a matter of defense whether or not the sale of cotton by the defendants was without the scope of the partnership business. Civil Code (1910), §§ 3172, 3180.

3. The ground of the demurrer that the correspondence between the parties to this suit, relative to the 'sale of the cotton, is too vague and indefinite to base a contract of purchase and sale upon, is itself too vague and indefinite to be considered by a reviewing court. “A demurrer, ‘being a critic, must itself be free from imperfection.’ This is particularly true of a special demurrer, as its office is to point out clearly and specifically the alleged imperfection in the pleading attacked by it. It ‘must lay its finger, as it were, upon the very point.’” Alford v. Davis, 21 Ga. App. 820 (4 a) (95 S. E. 313).

4. There is no merit in the ground of the demurrer that paragraph 5 of the petition, to wit, “petitioner shows that at the date said cotton was purchased by it, all parties contemplated an actual delivery of the cotton in compliance with the terms of said sale,” seeks to vary the terms of an alleged written agreement. Paragraph 5 is merely explanatory, since the correspondence between the parties, which was set out in the petition, shows that the actual delivery of the cotton was contemplated by them. See, in this connection, Forsyth Mfg. Co. v. Castlen, supra.

5. “To authorize evidence seeking to supply essential particulars to an unambiguous written contract, by proof of a custom of business or trade so universal as to be by implication a part thereof, the custom must be distinctly pleaded.” Hamby v. Truitt, 14 Ga. App. 515 (3), 518 (81 S. E. 593), and cases there cited. There is no merit in the ground of the demurrer, that paragraph 7 of the petition, to wit, “petitioner shows that the customary meaning of the term “bale of cotton,’ in the cotton trade, is a bale of cotton weighing five hundred pounds,” seeks to vary the terms of an,alleged written agreement.

6. The petition was not subject to demurrer on the ground that the proper measure of damages was not alleged; the damages alleged being the difference between the contract price and the market price of the cotton at the time and place of delivery.

7. Plaintiff in error in his motion for a new trial complains that the court erred in charging the jury as follows: “I charge you that under the evidence in the case, the contract which is insisted upon by the plaintiff in its petition is a valid, subsisting contract between the firm of E. Matthews & Soy and the plaintiff, the '‘American Textile Company, and that under the terms of this contract the defendants, E. Matthews & Son, wepe bound to deliver to the American Textile Company 100 bales of cotton at stated periods during the month of N°‘ vember, 1913, and 100 bales of cotton at certain stated periods during the month of December, 1913. There being no controversy here as to the allegation of the plaintiff that they did fail to deliver the cotton during those months, as they had contracted to do, I charge you that the plaintiff in this case is entitled to recover the difference between the contract price of 11-1/2 cents per pound and what the 200 bales of cotton would have been worth in the market, or the market price of 200 bales of cotton at the time and place of delivery, according to the terms of the contract; and that is the question which you are to determine by your verdict.” The defendant F. E. Mathews admitted enough in his own testimony to estop him from legally denying liability; and therefore the charge complained of, which is tantamount to a direction of a verdict in favor of the plaintiff, does not require a reversal. --

Decided April 23, 1919.

Rehearing Denied May 13, 1919.

Action on contract; from Bartow superior court—Judge Tarver. June 15, 1918.

William T. Townsend, for plaintiff in error.

Watt H. Milner, contra.

8. There was evidence to authorize the verdict, ■ and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    10063.
    Skinner v. Jones.
    Decided April 23, 1919.
    Complaint; from city court of Waynesboro—Judge W. H. Davis. July 3, 1918.

      H. J. Fullbright, for plaintiff in error.

      F. S. Burney, contra.
   Wade, C. J.

No error of law is complained of, and there is evidence'to support the verdict.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    10065.
    WADE, administrator, v. EDWARDS.
    The verdict'not being demanded by the law and the evidence, the trial judge did not abuse his discretion in granting a first new trial.
    Where a deposit-book issued by a savings bank is delivered with appropriate words of gift by the depositor, with the intention to give to the person to whom it is delivered the deposits entered in the book, this is sufficient to constitute a valid gift of the deposits, without assignment or transfer in writing. Whether such a gift was made in this ease was a question of fact for the jury.
    Decided April 23, 1919.
    Complaint; from Chatham superior court—Judge Meldrim. August 10, 1918.

      Osborne, Lawrence & Abrahams, Shelby Myrick, for plaintiff in error.

      George W. Owens, contra.
   Wade, C. J.

Julia Edwards brought suit against W. H. Wade, administrator of the estate of Isaac Waters. Her petition alleged that Wade administered on the estate of Waters at her request, and that “Isaac Waters, during his last illness, on or about the 2nd day of November, 1916, delivered to your petitioner, she being his sister, his bank-book on the Florida National Bank of Jacksonville, Florida, in the savings department of said bank, and told her that he wanted her to have the deposit which was to his credit in said bank, and gave to your petitioner said book, and made her a present of the deposit which was in said bank;” that “Isaac Waters ma'de said gift to your petitioner (in consideration of services she had previously rendered to him and was then rendering to him in his last illness.” She further alleged that Waters died on November 5, 1916, three days after the alleged gift, at which time there was on deposit in said Florida bank to his credit the sum of $1,448.31, and that after the payment by Wade, as administrator, of all debts of the deceased, there remained in his hands the sum of $1,341.30, he having collected all of the money from the bank, as administrator; and that she was entitled to the $1,-341.30 “by virtue of the said gift of said bank-book and said deposit by said decedent.”

The administrator filed an answer admitting all the facts set up in the petition except the allegations that the bank-book and the deposit had been given to the plaintiff by the decedent Waters, and that the money thus belonged to the plaintiff. These allegations were expressly denied, and the answer set up in addition that the decedent had made no disposition of Ms bank-book or of the funds in bank prior to his death, and that the money in the hands of the defendant belonged to the four children of the decedent.

On the trial of the ease there was evidence adduced to substantiate the plaintiff’s contention that the decedent had given to her the bank-book and the money represented thereby, for and in consideration of several weeks nursing and attention. Lee Slocum, in behalf of the plaintiff, testified: “I was there on the morning of November 2, 1916, sitting in the room when he (the decedent) handed to Julia Edwards (the plaintiff) a bank-book, and said: ‘Julia, I want you to have this money, that is something for you. I want you to have this for what you have did and are doing for me.’ He handed the book to her.” Phoebe Lawrence testified for the plaintiff as follows: “I was present when Waters gave Julia Edwards a bank-book, and know what.he said to her. He said, ‘Julia, here is this, take it for yourself for what you have done, now and for all time, take this.’ I looked and he gave it to her and she" took the bank-book. The book was handed to Julia Edwards in my presence. . . I know it was a bank-book. I saw the letters on the book.” The evidence introduced in behalf of the defendant tended to dispute the plaintiff’s evidence that the decedent had made her a gift of the book and the money. Laura B. Fleming testified for the defendant as follows: “I went to see my brother (the deeedent), and as I got in the door, almost to the kitchen where he was lying, I heard him say, ‘Is that my sister Laura now?’ I said, ‘Yes, here I am. What can I do for • you ?’ He said ‘I want to see my little children, where is my • children ?’ in that dazed way. I said, ‘I don’t know.’ I said, ‘What else do you want me to do? Do you want some milk?’ He said, ‘No, I owe some little milk bill, ice bill, and doctor’s bill. I want you to pay them. I have got some money. See that my children get it, will you?’ I said, ‘Yes, I will’. . ._ My sister was sitting on her back stoop. I don’t-know whether she could hear what was said or not.” Julia Edwards testified that this conversation which the witness Fleming relates as having taken place between her and the deceased did not occur. The following receipt, introduced in evidence, shows conclusively that the gift in question (evidenced by the bank-book delivered to the plaintiff) was money deposited in the savings department of the Florida National Bank: “Savannah, Ga., January 25, 1918. Eeeeived from Geo. W. Owens, attorney at law,-one bank-book on Florida Nat. Bank (Savings Dpt.), showing deposit of $1448.31. I have applied for letters of adm. on estate of Isaac Waters, in whose name book stands. Also rec. bill of Eoyall Undertakers. Administration to be applied for by me at February terpi of court. (Signed) W. H. Wade, Co. adm.”

On the issue thus raised the jury found in favor of the defendant. The plaintiff filed a motion for a new trial, on general and special grounds. The trial judge rendered a written opinion granting'a new trial on the ground that he was not satisfied with the correctness of the verdict. The defendant excepted to the grant of the new trial, and contended that the verdict was demanded by the evidence. As we view the evidence submitted on the trial and narrated above, the verdict was not demanded by the evidence. To constitute a valid gift, there must be an intention to give by the donor, acceptance by the donee, and delivery of the articles given, or some act accepted by the law in lieu thereof. Civil Code (1910), § 4144. There was in the instant case, according to the testimony of several witnesses, an intention on the part of the donor to give, as well as a consummation of the gift by the delivery of the savings-bank book to the donee. May a savings-bank book be the subject of a gift? Pomeroy, in his Equity Jurisprudence, Yol. '§, § 1148, collating all the authorities, states the law as follows: “All kinds of personal property, using the word in its broad, mercantile sense, as equivalent to' assets, which are capable of manual delivery, and of which the title, either legal or equitable, can be transferred by delivery, may be the subject-matter of a valid donation causa mortis. . . The rule is now well established that all things in action which consist of the promises or undertakings of third persons, not the donor himself, of which the legal or equitable title can pass by delivery, may be the subjects of a valid gift, including promissory notes, bills of exchange, checks, bonds, mortgages, savings-bank pass-books [italics ours], certificates of deposit, policies of insurance, and the like; and it is settled .by the recent courts that a valid donation of negotiable instruments may thus be made without endorsement.” A deposit in a savings bank may be the subject of „a gift, and where the owner of such a deposit, with the intention of making a gift, delivers his deposit book, containing entries of deposits in his name, to the intended donee, this constitutes a complete and valid gift of the deposit. 14 Am. & Eng. Enc. of Law, 1021. “A delivery to a donee, of a deposit book issued by a savings bank containing entries of deposits to the credit of the donor, with the intention to give the donee the deposits represented by the book, and accompanied with appropriate words of gift, is a sufficient delivery' to constitute a valid gift of such deposits, without assignment or transfer in writing.” Polley v. Hicks, 58 Ohio St. 218 (50 N. E. 809, 41 L. E. A. 858).

Although there appears to be no direct authority in this State on the question under consideration, the general weight of outside authority is that a pass-book issued by a savings lank rests on a peculiar footing. , Such a book is the record of the customer’s account, and its production authorizes control of the deposit. Like the key of a' locked box, its delivery is treated as a delivery of all it contains. 8 Am. & Eng. Enc. Law, 1324, 1325; Pierce v. Boston Five Cents Sav. Bank, 129 Mass. 4-25 (37 Am. E. 371), and cases cited. It follows, therefore, that the delivery of the bank-book in this case, accompanied by the declared intention to give, the deposit being in a savings lank, constituted a valid gift of the money on deposit, of which the book was the evidence. Had the deposit been in a bank of issue, discount,, and deposit, the rule would probably be otherwise. See Page v. Lewis, 89 Va. 1 (15 S. E. 389, 18 L. R. A. 170, and eases cited, 37 Am. St. E. 848). What is hereinbefore said is, we think, sufficient to dispose of the contention that “there could be no valid gift of a fund in bank either as a gift inter vivos or a gift causa mortis, by a gift of the bank-book (though designated a savings bank book) unless it was shown that by the rules of the bank or the law of the State where the bank was situated, the possession of the bank-book would be accepted by the bank as ownership of the fund, and unless it was further shown by the rules of the bank or the law of the State where the bank was situated that the production of the bank-book at the bank would be necessary before the bank would transfer the fund or deposit; there being no other evidence in the case than a statement that the bank-book given the plaintiff was a savings bank book of the Florida National Bank of Jacksonville, Florida, savings department, and a receipt from the administrator to the same effect.”

The other contention óf the plaintiff in error, that the evidence demanded a finding in favor of the defendant, is based on the idea that, “the plaintiff having voluntarily requested administration on the estate of Isaac Waters, and having voluntarily surrendered the bank-book to the administrator,—-the defendant in the case,— she was and is now estopped from setting up any claim to the funds or money represented by the bank-book under and by virtue of an alleged gift made to her by the deceased, the rights of the heirs at law having intervened‘and attached to the funds and money in the hands of the administrator.” This contention is likewise without merit. As against the rights of creditors, the law with reference to gifts causa mortis is identical with the law as to other gifts. “A gift causa mortis is not valid as against the creditors of the donor where there is a deficiency of assets. If the assets of the donor’s estate are not sufficient to pay his debts, the administrator can recover the subject of the gift from the donee for the purpose of satisfying the claims of the donor’s creditors. But where the property is thus recovered and 'used for this purpose, any residuum that may be left after payment of the donor’s debts belongs to the donee and not to the donor’s estate.” 14 Am. & Eng. Enc. Law, 1066 (b), and numerous cases there cited.

It being clear that the verdict in favor of the defendant was not demanded by the evidence, the case is controlled by the axiomatic rule stated in the recent case of Park v. Stevens, 21 Ga. App. 180 (94 S. E. 60) as follows: “It may be now considered- as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the graht be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves purely questions of law; unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Euless the ease can be. brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Civil Code (1910), § 6204.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    10074.
    Fertic et al. v. Peeples, administrator.
   Wade, C. J.

1. The petition as amended was not subject to the demurrers; and the judge did not err in allowing the amendment.

2. The eharge of the court that the administrator might recover even though the demand sued upon had been set apart as a year’s support may have been erroneous (Winn v. Lunsford, 130 Ga. 436 (3), 61 S. E. 9), but under the facts of the case it was harmless, since the evidence demanded a finding that the debt in question, was not set apart as a year’s support.

Decided April 23, 1919.

Complaint; from Camden superior court—Judge Highsmith. July 29, 1918.

S. C. Townsend, for plaintiff in error.

James T. Vocelle, contra.

3. The other assignments of error attacking the charge of the court do not point out the error or errors complained of, and relate to instructions not erroneous in the abstract, an'd therefore cannot be considered by this court.

4. There was evidence to support the verdict, and the judgment overruling the motion for a new trial is

Affirmed.

Jenkins and Luke, J.J., concur.


author: Jenkins, J.

text:
    10226.
    North Georgia Banking Co. v. Fancher et al.

   Jenkins, J.

1. The rule as to service on corporations in cases of garnishment is not the same as in ordinary suits against them. Burnett v. Central of Georgia Ry. Co., 117 Ga. 521, 522 (43 S. E. 854, 97 Am. St. R. 175),-citing Clark v. Chapman, 45 Ga. 488. It was formerly the rule that service of a summons of garnishment upon a domestic corporation could only be made upon its president, residing in this State. Steiner v. Central Railroad, 60 Ga. 552; Brigham v. Port Royal & Augusta Ry., 74 Ga. 365. By section 5270 of the Civil Code of 1910 (taken from the act of 1885) it is provided that “Service of a summons of garnishment upon the agent in charge of the office or business of the corporation” shall be sufficient, and it has been held,'as requisite to a legal entry of service under this provision, that the return must indicate that the corporation itself had been served (Burnett v. Central of Georgia Ry. Co., supra), and that the person representing the company in such service was the agent in charge of the office or business (Southern Railway Co. v. Hagan, 103 Ga. 564, 29 S. E. 760; Holbrook v. Evansville & Terre Haute R. Co., 114 Ga. 1, 4, 39 S. E. 937); the only qualification of the last-stated requirement being where the return indicates that the specified official is such as must be taken to be, prima facie and as a matter of law, the alter ego of the corporation by virtue of such office. Third Rational Bank v. McCullough, 108 Ga. 249 (33 S. E. 848).

2. The president of a chartered bank, being its alter ego, is the person who is presumptively, as a matter of law, in charge of its office and business, under the meaning of section 5270 of the Civil Code of 1910, relating to service of summons of garnishment upon corporations. Third Rational Bank v. McCullough, supra; Park v. Cordray, 20 Ga. App. 35 (92 S. E. 394). Thus, a returnwhich shows that service of a summons of garnishment was made upon the bank by serving the named cashier thereof, but which does not indicate, either as originally made or by amendment (Southern Express Co. v. National Bank, 4 Ga. App. 399, 61 S. E. 857), that he was actually the agent in charge of its office or business, is not sufficient to be the basis of a judgment by default against the bank.

Decided April 23, 1919.

Garnishment; from Whitfield, superior court—Judge Tarver. October 8, 1918.-

J. J. Copeland, W. E. Mann, for plaintiff in error.

F. K. McCutchen, contra.

Judgment reversed.

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


author: Stephens, J.

text:
    10089.
    Daniel v. Citizens Loan and Guarantee Company.
    Decided May 7, 1919,
    Certiorari; from Laurens superior court—Judge Kent. July 25, 1918.

      S. W. Sturgis, for plaintiff in error. Ira S. Chappell, contra.
   Stephens, J.

1. The general law of this State requires that the bond given by the plaintiff in certiorari as a condition precedent to the sanction and issuance of the writ should be approved by the magistrate or judge whose decision is complained of. Stover v. Doyle, 114 Ga. 85 (39 S. E. 939). There being no special provision of law for any different procedure governing the manner in which an application for the issuance of the writ of certiorari may be made when directed to the judge of the city court of Dublin, the bond required of the petitioner in such a case is properly approved when so done by the judge whose decision is complained of. Miller v. State, 126 Ga. 558 (55 S. E. 405).

2. While ordinarily a motion to set aside a judgment at, a term at which it is rendered is addressed to the sound discretion of the court, it should not be granted unless some meritorious reason appears. The failure of the defendant to appear and plead, in consequence of a misunderstanding between him and bis counsel, affords no such reason. Moore v. Kelly & Jones Go., 109 Ga. 798 (2), (35 S. E. 168). Accordingly, where a defendant in the city court of Dublin, by reason of sucli a misunderstanding, allowed himself to become in default, and thus suffered a judgment to go against him, it was error on the part of the judge of that court to set aside the judgment upon such ground and open the default. The judge of the superior court properly sustained a certiorari where such action on the part of the judge of said city court was complained of, and properly entered final judgment sustaining the original judgment in favor of the plaintiff, the same having been rendered upon a properly verified open account after due and legal service had been perfected. Civil Code, § 5662.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    10119.
    Carden v. Atlanta, Birmingham & Atlantic Railway Co.
    Decided May 7, 1919.
    Action for damages; from Campbell superior court—Judge Smith. August 7, 1918.
    ■ In the petition it was alleged in substance that,about 11 o’clock p. m. on April %%, 1916, the engine of the defendant’s passenger-train No. 4, moving from Atlanta to Brunswick, while passing the plaintiff’s gin-house and mill house, emitted from its smokestack quantities of firebrands, cinders, and live coals, which fell upon the right of way of the railroad and upon the plaintiff’s houses, and set fire to dry grass and weeds and other inflammable matter on the right of way, from which fire was communicated to the plaintiff’s houses, causing their destruction; that when this occurred the spark-arrester of the smoke-stack was not in proper condition so as to prevent coals of fire from being emitted, the engine was being operated at very rapid speed and was exhausting steam in great quantities, and a strong wind was blowing in the direction of the plaintiff’s houses. It was alleged that the defendant was negligent in operating the train in the manner and under the conditions stated, with a defective spark-arrester and with combustible matter on the right of way as described. By amendment at the trial the plaintiff struck the allegation as to the number of the engine and alleged that the number was unknown. At the conclusion of the evidence introduced by the plaintiff, counsel for the defendant moved for a nonsuit, on the ground that it did not appear that an engine of the defendant had communicated the fire to the plaintiff’s property or was connected with the injury complained of. A judgment of nonsuit was entered, and the plaintiff excepted.
    From" the evidence it appeared that the property described was between twenty and seventy-five feet from the railroad-track, and that the nearest house to the burned houses was about a hundred yards from them and on the opposite side of the lailroad. The plaintiff testified that the right of way of the railroad at that point at the time of the fire was grown up in grass and weeds, which were dead and dry; that he noticed this in March, 1916, and did not think the place was cleaned before the time of the fire, April 22, 1916. J. E. Edmundson testified that .on the night of the fire which burned the property described he passed there about 10 o’clock on- his way to his home, which was about two or three hundred yards from there, and it was not on fire, and a little later he saw the fire, and when he reached there the "roof and house were enveloped in flames. From the testimony of T. W. Warr it .appeared that when he was on his way from Fayetteville' to Atlanta, about 10:30 or 11 o’clock that night, he passed the plaintiff’s gin-house and “it looked pretty dark,” and beyond that point he passed a train from Atlanta which was going in the direction from which he had come. He testified: “It was moving along pretty lively, like any other train would be out on the road, . . it looked to be (according to the way automobiles run) 25 to 35 miles an hour, something like that. I didn’t notice the smoke-stack of that engine. I just know it was letting sparks out, flying. There was flying out of it there live coal and fire. . . The engine was going in the direction of the gin-house, and was something like four or five hundred yards, right smart piece then. I say those were live coals from the fire-box. Live coals are emitted from an engine like that on account of the blow-pipe, on account of his fire under the boiler, he wants to get up steam. You have to have some draft to burn your coal. Sometimes you aint using it all theMime, and you have to put the blow-pipe on to have draft to burn up your coal. . . . I saw several trains that night, one just there at Fayetteville, I passed one, and the West Point just before I got to town, the 11 o’clock train coming in from Montgomery, the Atlanta & West Point one and this one up here: . . That train I say passed me was running something like an ordinary train runs; there was not anything out of the ordinary in the way of his running, I don’t suppose. . . I noticed in going by it was exhausting. . . That is not always the usual thing. That was where the engine passed me, something like two or three hundred yards, I think it is, from this gin down there.” " Jack Johnson testified that about 11 o’clock on the night on which the gin and mill were burned he first saw the fire when he was about a mile from there, going to his home, and went to the fire as quickly as he could with a mule, and met a train on the track of the A., B. & A. Bailroad just below the fire, about half a mile from it and south of the gin-house. When he got to it the fire “was burning right around on the ground. . . and burning in the top of the roof next to the end of the railroad. The wind was blowing that night right towards the gin-house from the railroad.” There was evidence as to the value of the property destroyed.
   Broyles, P. J.

“In the absence of any testimony at the trial under review that the engines of the defendant company were equipped with' proper spark-arresters, the various circumstances in proof were sufficient to require a submission to the jury of the issue whether the fire which destroyed the plaintiff’s property was caused by the negligence of the defendant company.” Jarrell v. Seaboard Air-Line Ry., 21 Ga. App. 415 (3) (94 S. E. 648). Under this ruling and the facts of the present case, after the allowance of the amendment to the petition, the court erred in awarding a nonsuit.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

Cited in the brief for plaintiff:

Ga. Rep. 90/11; 101/751; 113/338; 114/315; 135/400, 406; 138/440; 139/367-70; 139/408; 141/590; Ga. App. R. 11/483, 531, 790; 20/354; 31/415, 814, 818; 95 S. E. (N. C.) 175; 95 S. E. (N. C.) 490; 75 S. E. (Va.) 183; 163 Ky. 469; 35 Okla. 754; 97 Ark. 54; 153 N. C. 79; 184 Mich. 375; 173 Mo. App. 579; 148 Ky. 345; 111 Maine, 591; 143 Mo. App. 557;164 App. Div. (N. Y.) 431; 135 S. W. 70. 114 Ga. 713, 145 Ga. 686, distinguished.. Cited for defendant: 3 Ga. App. 333; 145 Ga. 688.

Hewlett & Dennis, for plaintiff. Brandon & Hynds, Colquitt & Conyers, J. H. Longino, for defendant.


author: Bloodworth, J.

text:
    10122.
    Daniel v. Nixon & Wright.
    Decided May 7, 1919.
    Complaint; from city court of Millen—Judge Dekle. August 30, 1918.
    The action was on three promissory notes of Mrs. Estelle P. Daniel, the defendant, payable to Nixon & Wright, the plaintiffs, dated in 1914, and for the amounts respectively of $513.75, $1,047, and $1,570. In the defendant’s answer she “admits each and every paragraph of plaintiffs’ petition, . . admits a prima facie case for said plaintiffs, . . admits that she signed the said notes, . . and that there is due on said notes the amount claimed by the plaintiffs in their petition;” and “by way of set-off and recoupment” she pleads in substance as follows: In 1913 a corporation known as T. Z. & P. Y. Daniel Company which had been adjudged bankrupt made an arrangement for a composition of its debts, and she agreed to raise the sum' necessary for the composition. The creditors except the Yirginia-Carolina Chemical Company agreed to accept 30 per cent, of their claims; and that company agreed to accept 40 per cent, of its claim of $35,000, if paid in cash. Among the creditors were the plaintiffs, and through their Mr. Wright they' advised that $5,000 more be raised and that the $35,000 claim of the Chemical Company be purchased and transferred to him, representing his firm, and that it be then proved for the entire amount. Acting after consultation with him, the defendant obtained from a bank at Millen the $5,000 required for this purpose, the plaintiffs promising to the bank that on payment of the claim of the Chemical Company the plaintiffs, through him, would deliver the money to the bank in settlement of the $5,000 thus obtained; and the plaintiffs received this money for the purpose stated, and the claim of the Chemical Company was purchased and transferred to them, and in- the composition of the bankrupt corporation the plaintiffs received $5,000 on that claim. Under an agreement between the defendant and the bankrupt corporation she was to have its assets and the assets were to be applied to the payment of $35,000 that she borrowed for the purpose of making the composition; after which the corporation was to be released and to have its remaining property. It is alleged that the plaintiffs applied to their own use the $5,000 received by them and refused to pay it to the bank or to account for it; and that until after the making of the notes sued on she did not know that the plaintiffs had this money and had not applied it as they had agreed to do. She alleges that the plaintiffs are due her the $5,000, with interest, and prays that the amount of the notes sued on be deducted from this sum, and that judgment for the balance be rendered in her favor against the defendants.
   Bloodworth, J.

The court did not err _ in sustaining the demurrer to the plea, or in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.

The plaintiff demurred to the answer and moved that the court strike it, on the grounds that it “undertakes to set up a plea by way of set-off and recoupment of debts not between the same parties and in their own right;” that the validity of the notes sued on and the amount due on them being admitted by the defendant, a claim arising out of the alleged transaction can not be recouped 'against.the suit; that the alleged failure of the plaintiffs to turn over the $5,000 received by them was a conversion and a tort, which can. not be pleaded as a set-off or recoupment against a suit on a contract. The court sustained the demurrer and struck the answer.

F. H. Saffold, for plaintiff in error, cited:

Civil Code (1910), §§ 4339-40, 4407, 5672; 9 Ga. 594 (3, 4); 118 Ga. 345; 128 Ga. 336; 138 Ga. 496; 11 Ga. App. 488; 20 Ga. App. 36 (4, 5); 94 Ga. 171; 96 Ga. 474; 123 Ga. 784.

C. H. & R. S. Cohen, H. J. Fullbright, contra, cited:

Civil Code (1910), §§ 4403, 4407, 5521; 114 Ga. 923; 13 Ga. App. 280; 14 Ga. App. 72; Id. 84; 119 Ga. 926; 123 Ga. 14; 124 Ga. 944; 130 Ga. 251; 129 Ga. 234; 137 Ga. 648, 654 (4); 49 Ga. .491 (6); 2 Ga. App. 421; 5 Ga. App. 251; 13 Ga. App. 502; 17 Ga. App. 565; 142 Ga. 611; 55 Ga. 356; 59 Ga. 612; 81 Ga. 210; 97 Ga. 396; 110 Ga. 392.


text:
    10128.
    Hays v. Hays.
    Decided May 7, 1919.
    Certiorari; from Néwt-on superior court—Judge Smith. September 19, 1918.

      Rogers & Knox, for plaintiff in error.

      King & Johnson, contra.
   Broyles, P. J.

1. One who complains of the obstruction of an alleged prescriptive private way across the lands of another must show an uninterrupted use of the way for more than seven years, that it was not more than fifteen feet wide, that it is the same fifteen feet originally laid out, and that he has kept it open and in repair. Nashville, Chattanooga & St. Louis Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085), and cases cited.

2. As disclosed by the ordinary’s answer to the writ of certiorari, there was some evidence which authorized his finding that the plaintiff had shown all the essential things enumerated above; and his judgment ordering that the obstructions be removed was not contrary to law or the evidence. It follows that the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10141.
    Camp v. Bagwell & Bagwell.
    Decided May 7, 1919.
    Trover; from city court of Carrollton—Judge Beall. August 30, 1918.

      S. Holderness, for plaintiff in error.

      J. M. Moore, Boykin & Boykin, contra.
   Broyles, P. J.

1. The charge of the court covered "substantially the , controlling issues in the case, and, in the absence of any timely, appropriate, written request for fuller instruction, the omission to charge upon all the contentions of the defendant was not error.

2. The alleged newly discovered evidence was cumulative and impeaching in its character, and the court did not err in overruling the special ground of the motion for a new trial based thereon.

3. There was a sharp conflict in the evidence, but the jury decided the issue in favor of the plaintiffs, anil, there being some evidence to support the verdict, which has been approved by the trial judge, the judgment overruling the motion for a new trial is

Affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10156.
    METCALF LIVE STOCK CO. v. SHORT.
    Decided May 7, 1919.
    “The right to rescind for fraud in a horse swap exists -only when actual fraud has been committed. Eeseission, where a right to rescind is not expressly reserved,, cannot be had for constructive fraud or merely on account of warranty, express or implied.”
    Complaint; from Worth superior court—Judge Eve. August 17, 1918.

      J. H. Tipton, for plaintiff.

      Passmore & Forehand, for defendant.
   Bloodworth, J.

Metcalf Live Stock Company sued on a promissory note. In addition to a general denial of indebtedness, the original plea of the defendant contained the following: “For further plea this defendant says that the consideration as is shown in the note was for a certain bay mare. The plaintiff fraudulently represented to the defendant that the said mare was perfectly sound and healthy, and said mare did appear to be, but defendant, after a few days trial, discovered that she was badly and incurably bellowsed, and as a result thereof was almost worthless. This defect was not discovered by ordinary diligence, for in appearance she looked to be perfectly sound and well, and this defendant believed and absolutely relied on the false statements and representations which were Knowingly made by said plaintiff; and, by these false and fradulent representations as to the soundness of said horse, was induced to sign the note sued on. Defendant was by these misrepresentations misled, deceived, and defrauded. Just as soon as defendant discovered this incurable defect and disease, he went to plaintiff and offered to give up the mare, and asked the plaintiff to give back to him the horse and defendant’s note, but plaintiff refused to agree to the rescission of this contract on account of the fraud which had been practiced on this defendant. For further plea and answer this defendant says that the original consideration for said horse was $242. He paid $80 of this at the time by giving plaintiff a horse worth that amount and which was received as being worth $80, and at the same time gave defendant his note for $162, which is the basis of this suit. If the horse had been well and sound as she appeared to be, she would have been worth the consideration agreed upon, but defendant shows that said horse was badly and incurably bellowsed, and as a result thereof was unfitted for any and all practical purposes. She was unfitted to buggy, plow, or wagon. In view of this defect said horse was only worth $80, or the amount that plaintiff received in the horse that this defendant let him have when he traded for said mare; for which reason this defendant does not owe the plaintiff the amount sued on or any amount whatsoever.” This plea was amended as follows: "Defendant admits the execution of the note sued upon, and that the Metcalf Live Stock Company is the owner of said note. . . Defendant further amends original answer by striking the fourth paragraph of his answer, and in lieu thereof admits the 4th paragraph of plaintiff’s petition, which has reference to attorney’s fees, and assumes the burden.” The trial resulted in a verdict for the defendant, and, the plaintiff’s motion for a new trial having been overruled, the movant excepted.

A case very similar to the one under consideration is that of Battle v. Livingston, 21 Ga. App. 809 (95 S. E. 314). The report of that case shows that the purchaser of the horse asked the owner, "Do you guarantee this horse to be sound?” and added, “If you don’t I will not trade.” The defendant replied that he would guarantee the horse to be as sound as a dollar. In the instant case the purchaser testified that the salesman who represented the owner of the horse told him that he guaranteed the horse to be “in every particular all right.” A witness who was present at the time testified that he heard the salesman say to the purchaser that he would “guarantee the mare to be perfectly safe and sound.” In Battle v. Livingston, supra, this court said: “The right to rescind a horse-swap exists only by virtue of such special terms of the contract of sale as may so authorize, or, in the absence' of any such agreemént, by reason of knowingly false and fradulent misrepresentation of existing facts, made to the complaining party, whereby he was -induced to act to his injury. A mere breach of an express warranty which was the .controlling inducement to trade, unaccompanied by any such fraudulent misrepresentation of fact, will pot afford ground for the avoidance of such a contract. Stovall v. McBrayer, 20 Ga. App. 93 (92 S. B. 543); Barnett v. Speir, 93 Ga: 762 (21 S. E. 168); Newman v. Claflin Co., 107 Ga. 89 (32 S. E. 943); Johnson v. Harley, 121 Ga. 83 (48 S. E. 685).” The same principle is announced in the following cases: Cobb v. Pope, 21 Ga. App. 103 (2) (93 S. E. 1029); Waterman v. Troutman, 20 Ga. App. 95 (92 S. E. 544); Sasser v. Pierce, 6 Ga. App. 321 (64 S. E. 1100); Houze v. Blackwell, 144 Ga. .7.00 (2) (87 S. E. 1054); Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100). In the plea-of the defendant it is stated that “the plaintiff fraudulently represented to the defendant that the said"mare was perfectly Sound and healthy, and said mare did appear to be, but’ defendant, after a few days trial, discovered that she was badly and incurably bellowsed, and as a result thereof was almost worthless.” In the record there is no evidence to show knowledge on the part of the plaintiff that the horse was unsound—“bellowsed”—at the time the sale was consummated. “In the absence of' such knowledge 'there was no evidence upon which to predicate an issue as to actual fraud.” Dunn v. Beasley, supra.- Indeed, there is no direct and positive evidence that at the time of the trade the horse was unsound) but the evidence does, show that she was “all right” at that time. The -defendant himself testified:. “I did not observe any trouble with her when I first got her.” .Dr. Sutton, a veterinary surgeon, testified that a horse may become “bellowsed” in thirty minutes.

Another case similar to the one under consideration is that of Hopkins v. Tanqueray, 26 Eng. L. & Eq. 254, of which our Supreme Court in Harris v. Mullins, 32 Ga. 708 (79 Am. D. 320), says, it "was a ease very much like this, being an action for falsely and fraudulently representing and warranting a horse to be sound when it was not so known to be by the defendant. There was no-evidence of fraud, but the facts were, that defendant having sent a horse to Tattersall’s to be sold by auction, went into the stable the day before the auction, and there saw the plaintiff, whom he knew, examining the horse’s legs, upon which the defendant said, ‘you have nothing to look for I assure you, he is perfectly sound in every respect;’ to this plaintiff replied, ‘If you said so, I am satisfied,’ and he desisted from the examination. On the next day the horse was put up at auction for sale without a warranty, and the plaintiff purchased him at two hundred and eighty guineas, having, as he stated, made up his mind to buy the horse, relying on the defendant’s positive assurance that he was sound. The horse turned out subsequently to be unsound. The court held that there was no evidence from which a jury could infer a warranty, that what was said before the sale amounted only to a representation, and not to a warranty, and that the defendant could not be liable to a mere representation, although contrary to the .fact,unless it was fraudulently made.” In Barnett v. Spier, 93 Ga. 762 (31 S. E. 168), the first headnote is as follows: “The right to rescind for fraud in a horse-swap exists only when actual fraud has been committed. Rescission, where a.right to rescind is hot expressly reserved, cannot be had for constructive fraud or merely on account of warranty, express or implied.” Indeed, it is well established .that “neither actual fraud nor legal fraud which would ;avoid a sale can be predicated upon a bare naked warranty not coupled with any representations as to the existence of certain facts.” Newman v. Claflin Co., 107 Ga. 93 (33 S. E. 943).

Applying to the facts of the instant case the principles announced in these decisions, it was error requiring the grant of a new trial for the court to charge that “Fraud and duress by which the consent of a pfrty has been obtained to a contract of sale voids the sale. . . Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party, and in the latter case such misrepresentation voids the sale, though the party making it was not aware that his statement was false. Such misrepreséntations may be perpetrated by acts as well as words, and by any artifice designed to mislead. .A misrepresentation not acted upon is not ground for annulling a contract. A contract may be rescinded at the instance of the party defrauded; but in order to the recission he must promptly, upon 'discovery of the fraud, restore or offer to restore to the other whatever he has received by virtue of the contract, if it be of any value.” Under the foregoing’ rulings it is unnecessary to consider the other assignments of error.

Judgment reversed.

Broyles, P. J., and Stephens, J. concur. ,


text:
    10168.
    Rice v. Lowry, sheriff, for use, etc.
    Decided May 7, 1919.
    Action on bond; from Fulton superior court—Judge JUlis. October 3, 1918.

      Mayson & Johnson, for plaintiff in error.

      W. S. Dillon, contra.
   Bloodworth, J.

1. Even if the grounds of the amendment to the motion for a new trial could be considered as anything more than amplifications of the general grounds, not one of them is complete and understandable within itself, or is definite enough to present anything for adjudication by this court. Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) ’(91 S. E. 32); Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668); Bridges v. Griffin, 20 Ga. App. 599 (2) (93 S. E. 170); Southern Ry. Co. v. Williams, 19 Ga. App. 544 (4) (91 S. E. 1001).

2. When this case was first before this court (22 Ga. App. 36, 95 S. E. 330), it was held that the bond sued on was a valid obligation and had been automatically breached by the principal therein having disposed of a portion of the property. Under the foregoing rulings the motion for a new trial points out no error, the only question for determination was the amount for which the bond was breached, arid there, was evidence to support the finding of the judge, who passed upon the case without the intervention of a jury.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10170.
    CENTRAL OF GEORGIA RAILWAY CO. v. REID.
    1. Where a railroad company placed a hand-car in a public road near the railroad-tracks at a public crossing, and buckets and coats were hanging on the car, and in driving a mule hitched to a buggy in which the plaintiff was riding as the guest of the owner and driver it was necessary, in order to go over the crossing, that the mule and buggy be driven past the car and within a few feet of it, and the wind rattled the buckets and; waved the coats on the car, thereBy frightening the mule and causing it to run "away and upset the buggy and injure the plaintiff, and where, on the trial of an action for damages on account of the injury, it appeared that the driver saw the car and the buckets and clothes thereon when he was about thirty feet away, and that the mule stopped when about six feet from the car and was looking at it and trembling, and the driver urged the mule on until it ran away and upset the buggy, it was for the -J&ry to say whether the plaintiff had a reasonable opportunity to get out of the buggy safely after the mule showed symptoms of fright and before • it ran away, and whether his failure to do so amounted to a want of ordinary care on his part for his own safety.
    Decided May 7, 1919.
    2. The court, having failed to submit to the jury the question whether the plaintiff, by the exercise of ordinary care, could have avoided the injury sued for, a new trial is required.
    Action for damages; from Haralson superior court—Judge Bartlett. February 11, 1918.

      J. Branham, Griffith & Matthews, Maddox & Doyal, for plaintiff in error.

      S. Holderness, James Beall, contra.
   Broyles, P. J.

The plaintiff’s petition, in the absence of a special demurrer, sufficiently alleged in substance and in effect that the placing of the hand-ear in the public road, with its accompanying, "paraphernalia, scarecrows, etc.,” was unnecessary and unusual, and that the objects so placed were of such a character as to be calculated ordinarily to frighten horses or mules traveling al'ong the road. See, in this connection, Louisville & Nashville R. Co. v. Barnwell, 131 Ga. 791 (2) (63 S. E. 501). The evidence upon the trial was sufficient to support these allegations, and the court correctly instructed the jury thereon.

Under the evidence submitted and the legal inferences arising therefrom, we think that the jury were authorized to find that the hand-ear in question was the property of the defendant, that it had' been placed in the public road near the defendant’s railroad-tracks—at a public railroad-crossing—by employees of the defendant, that the buckets and coats had been placed on the car by such employees, and that this car with the accompanying buckets and coats was the proximate cause of the mule’s fright and the plaintiff’s injuries. It does not appear from the evidence that the placing of these articles upon the car by the employees of the defendant company was an act so disconnected from their duties as to relieve the railroad company from liability therefor.

Whether the defendant was guilty of negligence in placing the hand-ear in the public road at the railroad-crossing, so that the mule had to be driven past the car and within a few feet of it, and whether the defendant was negligent in having buckets and clothes hanging on it in such positions that the wind rattled the buckets and waved the ■ clothes, thereby frightening the mule and causing him to run away and injure the plaintiff, were questions for the jury. See, in this connection, Locke v. International & Great Northern Ry. Co., 25 Tex. Civ. App. 145 (60 S. W. 314), a ease almost identical with this case;

It was also a question for the jury whether the negligence of the defendant was the proximate or a contributing cause of the injuries, or whether they resulted solely from the negligence of the driver of the mule. If the injuries were caused solely by the negligence or want of- ordinary care of the driver, without any contributing negligence of "the defendant, the plaintiff could not recover. If the negligence of the defendant and the driver concurred in .causing the injuries, the plaintiff could recover, provided he could not by the exercise of ordinary care have avoided being injured; and his damages should not be diminished on account of the driver’s negligence, even if such negligence amounted to the want of ordinary care on the driver’s part, as the negligence of the driver could not be imputed to the plaintiff—a guest of the driver. East Tennessee &c. Ry. Co. v. Markens, 88 Ga. 60 (2) (13 S. E. 855, 14 L. E. A. 281). See also Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (5) (89 S. E. 383). If, however, the plaintiff himself, by the exercise of ordinary care, could have avoided being injured, he would not be entitled to recover.

It was also for the jury .to decide whether the plaintiff and. the defendant were both at fault. I-f they were, the plaintiff, if not lacking in ordinary care, could still recover, but his damages should be diminished by the jury in proportion to the amount of default attributable to him. Civil Code (1910), § 2781. ■ It was for the jury to determine whether he had an opportunity to get out of the buggy after the defendant’s negligence became operative and before the mule ran away, and whether his failure to do so amounted to a lack of ordinary care for his own safety, or was a less degree of negligence, or amounted to any negligence whatever on his part. The jury should also have passed upon the question whether he was at fault in seizing one of the driving lines of the buggy and in dropping two zinc well-buckets into the bottom of the buggy after, the mule had started running away and before the buggy was overturned and the plaintiff thrown out. These questions should have been submitted to the jury. The failure of the court to submit to them the question as to the plaintiff’s exercise of ordinary care, even though not requested so to do, requires a new trial. Atlanta, Knoxville & Northern Ry. Co. v. Gardiner, 122 Ga. 82 (7) (49 S. E. 818); Southern Ry. Co. v. Gore, 128 Ga. 627 (58 S. E. 180); Southern Cotton Oil Co. v. Caleb, 143 Ga. 585 (1), 586 (85 S. E. 707). Especially is this true since the question as to his exercise of such care after the alleged negligent acts were discovered by him arose from the evidence adduced in his behalf.

The court erred also in instructing the jury that if they found for the plaintiff they could, in assessing the damages, consider the pain and suffering or “humiliation” which he had sustained. Under the facts of the case a recovery for humiliation was not authorized.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


text:
    10173, 10174.
    Biggers v. Bank of Ringgold.
    Decided May 7, 1919.
    Affidavit of illegality; from Catoosa superior court—Judge Tarver. August 6, 1918.

      J. R. Johnston, Maddox, McCamy & Shumate, for plaintiff in error.

      M. L. Harris, contra.
   Stephens, J.

There being no service of the bills of exceptions upon the defendant in error, or its counsel, and service not having been waived, this court is without jurisdiction to entertain these eases, and the writs of error are

Dismissed.

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


text:
    10176.
    Louisville & Nashville Railroad Co. v. Tatum.
   Bloodworth, J.

1. The declaration as amended set out a cause of action, Tatum v. Louisville & Nashville Eailroad Co., 253 Fed. 898.

Decided May 7, 1919.

Action for damages; from Bartow superior court—Judge Tarver. September 7, 1918.

1-2. In a collision with a train at Main-street crossing in Cartersville the plaintiff’s horse was killed and his buggy destroyed.

- This suit was for the loss of his property. The case referred to in the decision (253 Fed. 898) was a suit for personal injuries to his son, who was driving the buggy. His petition alleged: (4) As his son drove the horse and buggy down Main street the horse took fright at an automobile and began to run towards the railroad crossing, and as the horse approached the crossing the defendant’s flagman stationed at the crossing waved violently.a red flag at the horse; which, in the horse’s frightened condition, caused the horse to swerve towards the right. The horse, turning toward the right, caused the buggy to strike against a rock, which, in connection with the smoke coming from a passenger-train of the defendant (a car being between the horse and the train) and the fright of the horse generally, caused the horse to turn again to the left and run into Main street and run over the railroad street-grade crossing. (5) Had the flagman not waved his red flag at the horse when the horse was first attempting to go over the crossing, the horse would have made the crossing before the defendant’s passenger-train reached it, as the train was then a sufficient distance south to have enabled the horse to pass over. (6) But with the time taken in the swerving of the horse to the right, striking the rock, and plunging again towards the left and getting into Main street, the train had approached much nearer the crossing. (7) The horse had gotten completely beyond the driver’s control in its fright, and went over the crossing, and just as the horse reached the tracks on the crossing the defendant’s north-bound train ran into the horse and buggy, demolishing them. (8) The injury was due to negligence of the defendant in the following particulars: The crossing was a public, street-crossing in a city and well traveled, but the defendant negligently failed to obey the requirements of the blbw-post law of Georgia and failed to blow.the whistle or ring the bell of the locomotive, and failed to begin checking at a point 400 yards away from the crossing and to continue checking until the crossing was reached, so as to be able to stop in time should any person or thing be on the crossing. (9) The defendant was negligent in that the engineer failed to keep a proper lookout ahead and was negligently running at a speed of from thirty to forty miles per hour. (10) The defendant was negligent in that the engineer and crew of the train violated a valid municipal ordinance of Cartersville (set out) which provides that it shall be unlawful to run a train..over the Main-street crossing or certain other crossings at a greater speed than six. miles an hour. The defendant violated this ordinance in the speed of the train. (11)' Notwithstanding the fact that the horse was running away and beyond the plaintiff’s control, the collision would not have occurred but for the criminal act of the defendant in violating the blow-post law and the ordinance as stated, and also in failing to exercise ordinary care, and in negligently running at a speed of thirty to forty miles an hour.

2. The court did not err in any of the rulings on the pleadings.

3. When considered in connection with all of the facts of the case and in the light of the entire charge of the court, there is no error in the instruction complained of.

4. The declaration as amended was supported by evidence.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.

Demurrer was made on the ground that no cause of action was set forth; and special demurrer was made to the allegations of paragraph 4 as to the smoke from the train; to paragraphs 5 and 6, and to the paragraphs relating to non-compliance with the statute and the ordinance, the defendant contending' that the averments failed to show that the statute and the ordinance were legal and binding on the defendant as to the particular crossing, und failed to show that they were not unconstitutional and void in that they were a direct burden upon the defendant’s operation of its trains as an interstate carrier. The court overruled the demurrer except as to an allegation not stated above.

Amendment of the petition was allowed, over the objection that the amendment was not germane and set up a new cause of action. It states in substance that Main street, where the horse and buggy were approaching the railroad-crossing, was straight for 250 yards and the defendant’s watchman at the crossing.had ahelear view of them for that distance. He could see the train more than a quarter of a mile away, and when he saw it the horse and buggy were more than 150 feet away. His customary warning on the approach of trains or danger was to step to the center of the crossing and hold up and wave his large stop signal, but on this occasion he stood with-the stop signal down by his side and not disr played,—the position which it was his custom to assume when the crossing was safe,—and gave no warning until the horse was within 25 to 30 feet of the main line of the railroad, when he suddenly sprang up in front of the horse, waved and displayed, his huge stop signal with violent gestures and in such a manner as would ordinarily frighten any gentle horse, and did cause it to take fright and become uncontrollable, and it plunged to the right, 'and, going a distance of from 20 to 30 feet, struck - a large boulder, then came back to the crossing, and, while on the'crossing and going over it, was run into- by the defendant’s passenger-train coming from the south. When the plaintiff’s son was driving toward the crossing his view in the direction from which the train was coming was shut / off by buildings and box-cars. If he had been given timely warning he could easily- have turned the horse into Public Square street which intersected with Main street 161 feet from the railroad crossing, or could have stopped the horse before reaching the railroad; the horse was under perfect control until it reached the place where the watchman frightened it. The watchman was negligent in allowing him to approach so near to the railroad before undertaking to warn him, and the fright of the horse was caused by the watchman’s negligence in the method of communicating the warning.' The horse was trotting when the watchman did this, the train- was then 300 feet away, and'the horse, if allowed to pass, could have crossed the track before the train reached the crossing, and ordinary care would have required that the watchman at .that time should have allowed the horse to pass. The amendment concluded with the statement that the plaintiff “hereby strikes all the allegations in the original declaration which are inconsistent with this amendment.” This concluding statement, however, the court struck on demurrer. Grounds of demurrer of a general nature were overruled.

3. The instruction referred to in the decision was as follows: “If the defendant company and its employees were violating the. statutes in question, or the ordinance in question, but the injury and damage did not result solely because of such violations and as the proximate result of such violations, but if such violations contributed substantially to the injury or destruction of the plaintiff’s ' property, and, together with the other alleged acts of negligence on the part of the defendant and its employees, specified in the petition, were the producing and preponderating canse of the injury or destruction of the plaintiff’s property, then the plaintiff might recover, provided, as I have stated, his son in charge of his property at that time could not by the exercise of ordinary care have avoided the consequences of the defendant company’s negligence.” It was contended that this instruction authorized a recovery on the allegations of negligence whether material or immaterial and whether proved or disproved, and it should have been restricted to material allegations sustained by evidence; and that the instruction was not authorized by evidence.

Tye, Peeples & Tye, Neel, Findley & Neel, D. W. Blair, for plaintiff in error, cited:

As to proximate cause: 12 Ga. App. 289; Id. 125; 103 Ga. 848-850; 93 Ga. 253; 114 Ga. 761; 118 Ga. 676; 116 Ga. 171; 6 Ga. App. 306; 22 Ga. App. 554; 28 Cyc. 1414; 163 N. Y. Supp. 1071. Amendment on new theory and contradictory: 7 Ga. App. 313, 317; 147 Ga. 570 (4); 116 Ga. 325; 148 Ga. 429; 126 Ga. 463; 16 Ga. App. 5; Id. 745; 119 Ga. 835; 121 Ga. 38; 129 Ga. 388. Diligence of watchman with reference to horse: 21 Ga. App. 219. Tatum v. L. & R. Co., 253 Fed. 898 (supra), distinguished.

Reuben R. Arnold, A. W. Fite, contra, cited:

On amendment: Civil Code (1910), § 5681; 87 Ga. 691; 78 Ga. 525, 530-1; 120 Ga. 785. Statute and ordinance as to speed, etc., as affecting interstate trains: 143 Ga. 237; s. c. 16 Ga. App. 504; s. e.244 U. S. 310; 131 Ga. 287; 124 Ga. 1004; 160 Fed. 332; s. c. 217 U. S. 524; 141 U. S. 47; 177 U. S. 584; 20 Ga. App. 559. Rule as to allegations of negligence: 29 Cyc. 570; 122 Ga. 695. Negligence, question for jury: 29 Cyc. 630; 144 U. S. 408; 149 U. S. 43; 78 Ga. 525, 536; 79 Ga. ’44; 82 Ga. 801, 807. Proximate cause: 94 TJ. S. 496; 1 Thomp. Neg. (2d ed.) § 161. Liability for fright of animal: 1 Thomp. Neg. (2d ed.) § 163; 2 Id. §§ 1911-12; 55 Me. 438; 66 Md. 149; 56 Mich. 430; 57 Mich. 589; 49 Minn. 245; 52 Minn. 79; 35 Neb. 867; 71 Hun, 431; 74 Hun, 198; 59 Pa. 259; 88 Pa. 405; 110 Pa. 226; 120 Ga. 683; 70 N. E. 183; 77 N. W. 1064; 78 S. W. 172; 38 Atl. 155; 46 Atl. 996; 53 N. W. 970; 65 N. J. L. 421 (47 Atl. 586); 43 Atl. 208; 42 S. W. 642; 25 Tex. Civ, App. 632 (60 S. W. 314); 107 Iowa, 287; 95 Ya. 453 (28 S. E. 569). Watchman’s negligence: 134 Ill. 586; 75 Iowa, 393; 155 Mass. 493 (29 N. E. 1148); 107 Mich. 516; 117 N. Y, 640; 88 Hun, 263; 90 Hun, 1; 65 Vt, 126; 45 Mo. App. 535; 55 N. J. L. 342; 42 Hun, 306; 112 N. Y. 234; 56 Hun, 648; 124 N.Y. 414; 59 Hun, 617; 61 Hun, 624; 69 N. H. 354; 66 N. J. L. 307; 67 N. J. L. 581; 78, N. Y. Supp. 653; 195 Pa. 485. Comparative negligence: Civil Code (1910), §§ 2781, 4426; 87 Ga. 675; 79 Ga. 44; 113 Ga. 708. Negligent operation of train made case for jury: 60 Ga. 474 ; 68 Ga. 834; 18 S. W. 996. Liability where accidental fright of horse is primary cause of injury: 18 L. R. A. 750; 184 Ill. 487; 54 Kan. 98; 20 Wash. 586. Identical case: 253 Fed. 898.


text:
    10178.
    Swift Spinning Mills v. Crouch.
    Decided May 7, 1919.
    Action for damages; from Muscogee superior court—Judge Howard. October 19, 1918..
    The petition alleges that the Swift Spinning Mills injured and damaged the plaintiff in the sum of $25,000, by reason of the facts here stated: (Paragraph 3) On August 15, 1917, plaintiff was a carpenter employed by defendant and doing carpenter work at the defendant’s plant. (4) Defendant maintained as a part of its machinery a rip-saw, operated by a belt from the shafting in the defendant’s machine shop. (5) About 2 o’clock p. m. it became plaintiff’s duty to rip or saw a small piece of plank to finish a box for a roller covering machine. (6) Plaintiff was attending to his said duties in a proper manner and was free from fault in every particular, and the defendant was guilty of gross negligence which caused the injury to him hereinafter set forth. (7) The rip-saw was defective and dangerous, in that it was worn in the bearings, and the bearings were worn to such an extent that the saw did not run true. The saw had not been properly inspected, and had not been properly repaired by defendant, in that there were long and short teeth on it when the teeth should have been uniform; which condition caused the plank to kick back, and threw plaintiff’s left hand on the rip-saw, which was revolving at a very rapid rate of speed, and the rip-saw almost completely severed his hand. (8) Plaintiff’s duties were not to inspect said machinery, nor was it his duty to repair said machine, and he did not know of its dangerous condition; but it was the duty of the defendant to inspect and repair and keep said machinery in a safe condition. At the time of the injury said machinery was revolving rapidly, .and plaintiff could not by the exercise of ordinary care, and did not, know that the machinery was not running true or that the teeth of the machine were not cut down correctly, but the defendant did know and could by proper care and inspection have ascertained said defective and dangerous condition. (9) The condition of said machine was known to defendant but unknown to plaintiff, and he could not ascertain the same by all due care and caution on his part. (10) The injury described is permanent and plaintiff cannot follow his former-occupation as a carpenter and mechanic, and his earning capacity is thereby decreased two thirds of what his former earnings were. (11) Plaintiff was a strong and ablebodied man capable of earning $5 per day as a carpenter and mechanic and was in good health and forty-five years of age at the time of said injury. (12) The following acts of negligence on the part of the defendant contributed to and caused the said injury: 1. In not providing reasonably safe machinery with which plaintiff was to work. 2. In not having said rip-saw properly inspected and repaired. 3. In not having the teeth of the rip-saw uniform as to length. 4. In not having said saw to run true. 5. In allowing the rip-saw to run untrue and causing said plank to kick and jerk about while the saw was being run at a very rapid rate. 6. In cutting, injuring, and damaging plaintiff’s hand. 7. In not having the master mechanic to true up the rip-saw and repair it, so that it would run true.
   Broyles, P. J.

I. The petition was good as against the general grounds of the demurrer.

2. Two of the special grounds of the demurrer to the petition should have been sustained: (a) The 11th paragraph of the petition was subject to the special ground of the demurrer interposed. (6) Sub-paragraph 7 of paragraph 12 was subject to the special demurrer.

3. The court erred in overruling the special grounds of the demurrer referred to, but properly overruled the general grounds, and the other special grounds thereof.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

Paragraph 5 was amended by adding that the plank was about 2 feet long and about 6 inches across and was soft pine without knots.' The petition was further amended as follows: (a) The saw was a circular rip-saw 12 inches in .diameter and extended through ajp. iron table (from the under side), and the table was about é feet long and about 3 feet wide, and the opening in the table was about a half inch wide where the saw protruded about two inches. The teeth on the saw when properly filed were a half inch long. The saw revolved toward plaintiff as it cut the pieces, of wood he was holding, and, on account of the small size of. the teeth and their being gummed with sawdust and gum or rosin from wood that had been cut with it, he could not tell that some of the teeth were long and some short, without cleaning or inspecting them; which it was not his duty to do. The bearings were two cast metal boxes filled with bobbitt metal, in which were set the two ends of the shaft on which the saw was set, and- the babbitt metal was worn and allowed considerable play or loss in the-running of the saw, which was not apparent while the saw was revolving or running idle, but it would wabble and run untrue when it was sawing; which was not apparent without an inspection of the bearings and removing the boxes, which it was not plaintiff’s duty to do. (b) The rip-saw was located at the south end of the machinery department of the winder room on the first floor, and' plaintiff started the saw by a pulley that threw the belt on the shafting, he not being able to tell, from the small distance that the saw protruded through the iron table, that it was not set true and running true in the bearings, and not being able to tell the varying length of the teeth, from the small protrusion of the saw and also from the gummed condition of the sawdust collected on the saw and table. After the saw started to running he took the said piece of board and held it against the saw with both of his hands until it became necessary to held the board back of the saw, on account of its being ripped near where he was holding it.. Then he caught the said board back of the saw with Ms left hand until he could move his right hand from the end of the board near himself “(pushing) to end beyond the saw pulling, when the saw caught the plank and kicked it out and jerked his hand against the saw, inflicting said injuries.”

The demurrer to the petition as amended was on the grounds-: (1) It appears that there is no right in the plaintiff to maintain the action. (2) No cause of action is set forth. (3) It appears that the plaintiff by ordinary care could have.avoided the injury. (4) It appears that the injury was caused by the plaintiff’s own negligence. (5) It appears that the alleged defects in the saw and its bearings were not the. proximate cause of the injury. (6) It appears that the plaintiff had equal means and opportunity with the defendant of ascertaining the alleged looseness in the bearings. (7) It appears that the plaintiff had a better opportunity than the defendant of knowing that the saw would wabble and run untrue when sawing. (8) The petition does not show how long before the injury the plaintiff had been operating the saw and to what extent he had been using it. (9) There is no allegation showing that by ordinary care the plaintiff could not have known of the danger of pulling the b.oard at the rear of the saw with his left hand. (10) The allegations in paragraph 6 are (a) mere conclusions of the pleader, and (5) are contradicted by other allegations of fact. (11) It is not shown how, why, or in what manner the alleged dangerous condition of the rip-saw caused the plank to kick back and threw the plaintiff’s hand on the rip-saw. (12-15) Allegations in paragraphs 7 and 12 are demurred to as conclusions of the pleader and as not showing how the alleged negligence caused the plank to kick back and injure the plaintiff. Subparagraph 1 of paragraph 12 was demurred to on the ground that it appears from the allegations of the petition as amended that the alleged defects of the machinery were not the proximate cause of the injury. (16) Subparagraph 7 of paragraph 12 was demurred to as a conclusion and because no facts are alleged showing that it was the duty of the master mechanic to true up the rip-saw and repair it. (17) Paragraph 11 is demurred to on the ground that the allegation that the plaintiff was capable of earning $5 per day is irrelevant and immaterial, and vague and indefinite, in that there is no averment of what the plaintiff had been earning before or at the time of the accident. (18) The allegation in paragraph b of the amendment, that “it became necessary to hold said board back of said saw,” is demurred to as a mere conclusion.

The court overruled each ground of the demurrer.

Slade & Swift, A. W. Cozart, for plaintiff in error.

McCutchen & Bowden, Love & Fort, contra.


author: Bloodwoeth, J.

text:
    10184.

      Jones et al. v. Funston.
    Decided May 7, 1919.
    Action on bond; from city court of Hinesville—Judge W. C. Hodges. August 19, 1918.
    An action was brought in the city court of Hinesville by Florence Funston against Maury Jones and L. Q. Yeomans on a condemnation-money bond purporting to have been given by Maury Jones, with L. Q. Yeomans as security, for the purpose of obtaining a certiorari in a case of Florence Funston against Maury Jones in the county court of Liberty county. The petition alleged: (1) Maury Jones and L. Q. Yeomans are residents of said county of Liberty. (2) Maury Jones as principal and L. Q. Yeomans are indebted to petitioner in the sum of -$100, besides interest, on a bond, a copy of which is attached and marked Exhibit A. (3) Petitioner brought an action against Maury Jones for the recovery of a certain cow (described) of the value of $100, in the county court of said county. (4) On February '14, 1916, she recovered judgment for the said cow, of the value of $100. A copy of the said judgment is attached to this petition and marked Exhibit B. (5) Maury Jones, being dissatisfied with the judgment, carried the same to the superior court by writ of certiorari. (6) In order to get certiorari in said case he was required to give bond and security for the eventual condemnation money, which he did by giving L. Q. Yeomans as security on said bond, a copy of which is hereto attached, marked Exhibit A. (7) On September 22, 1916, said certiorari was by the judge of the superior court dismissed, and thereby the judgment of the county court affirmed; a copy of which judgment is hereto attached marked Exhibit D. (8) TJpon the affirmancé of the judgment of the county court and the dismissal of the said certiorari, Maury Jones as maker and L. Q. Yeomans became liable to petitioner in the sum of $100, besides interest thereon from the date of the judgment dismissing the certiorari. (9) Said Maury Jones, principal, and L. Q. Yeomans, security, fail and refuse to pay said sum of money under their said bond. Wherefore petitioner prays judgment against them for $100 as principal, and lawful interest thereon from September 22, 1916, and that process issue, etc.
   Bloodwoeth, J.

1. Where facts are charged to be within the knowledge of a party, or where from all the circumstances such knowledge is necessarily presumed, and he fails to answer altogether, or makes an evasive answer, the charge is to be taken as true. -Civil Code (1910), § 5637.

2. “The surety on a bodd given by a defendant in an action of trover for the eventual condemnation money is bound by the judgment against the defendant, and can not, after judgment, raise any question which could have been raised by the principal before judgment. Waldrop v. Wolff, 114 Ga. 610 (40 S. E. 830) ; Jackson v. Guilmartin, 61 Ga. 544; Thomas v. Price, 88 Ga. 533 (15 S. B. 11) ; Holmes v. Langston & Woodson, 110 Ga. 861 (36 S. E. 251) ; Hogan v. Scott, 146 Ga. 126 (90 S. E. 863).” Johnston v. Sheppard, 22 Ga. App. 207 (95 S. E. 743).

3. “An oral motion to strike a plea can be made at any time before the verdict, if the motion is in the nature of a general demurrer. Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280) ; Cooney v. Sweat, 133 Ga. 511 (66 S. E. 257, 25 L. R. A. (N. S.) 75).” Blount v. Radford, 16 Ga. App. 95 (2) (84 S. E. 591) ; Civil Code (1910), § 5629.

4. Applying the principles stated above, the court did not err in sustaining the oral motion to strike the plea as amended.

5. When this case was first before this court (22 Ga. App. 410, 95 S. B. 1003), it was held: “Where personal property is recovered in a bailtrover action, and no alternative judgment is rendered, and thereafter the defendant sues out a writ of certiorari, giving the usual condemnation bond, and at the hearing the certiorari is dismissed for want of legal notice, and judgment is rendered against the plaintiff and his surety on the certiorari bond for the cost of the proceeding only, suit on that bond may thereafter.be instituted against the principal and the surety for the value of the property recovered in the original trover action, to be ascertained by proof, where the property itself cannot be found to answer the judgment therefor, or has been destroyed or has ceased to exist. See, in this connection, Civil Code (1910), § 5205.” This ruling is therefore the law of the case, and in a suit on the certiorari bond, the property itself not having been produced to answer the judgment, it was a condition precedent to a recovery that the value of the property recovered in the original suit he ascertained by proof. ' This is true even though the pleas were stricken. See Civil Code (1910), § 5657; Palmer v. Ingram, 2 Ga. App. 200 (2) (58 S. E. 362) ; Lamb v. McElwaney, 143 Ga. 490 (3) (85 S. E. 705), and eases cited. No proof of the value of the property having been submitted, the judgment must be

Reversed.

Broyles, P. J., and Stephens, J., concur.

There was a general demurrer to the petition, and the defendants filed an answer “that for want of sufficient information they can neither admit nor deny the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 of plaintiff’s declaration, except that defendants say there was suit in the county court of Liberty county over a cow, between plaintiff and defendant Maury Jones, and that defendant L. Q. Yeomans signed a bond of some kind, but don’t know whether or not it is the bond set out, and defendants are residents of said county.” A judgment overruling the demurrer was affirmed by the Court of Appeals (22 Ga. App. 411).

By subsequent amendment of the answer it was alleged, that when the trover suit from which this case arose was tried and judgment rendered therein, the said cow was dead, and that it died from providential cause, unmixed with any fault of either of the defendants, and could not be delivered to the plaintiff, and therefore the defendants did not damage the plaintiff. The plaintiff moved to strike the answer as amended, for the reason that it was not sufficient in law. The bill of exceptions states that “the court, without requiring plaintiff to put his motion in writing (the same having been requested by defendants’ counsel), ruled that both the original and amended answer should be stricken, and entered judgment for plaintiff by default; to all of which defendants excepted,” etc. It is alleged that “no judgment could properly be rendered by default in' said suit, and, there being no evidence introduced to prove any amount of damage, no judgment could be legally rendered.”

N. J. Norman, for plaintiffs in 'error.


text:
    10186.
    BUSSEY v. GRANTHAM & SON.
    Decided May 7, 1919.
    1. Where the clerk of the trial court transmits to this court a bill of exceptions, and certifies that solely on account of the pressure of business in his office he was unable to transmit the record sooner, and from the certificate it does not appear that the plaintiff in error or his counsel'caused or contributed to the delay or was in any way at fault, a motion to dismiss the bill of exceptions because of delay in transmission will be overruled. Fricker v. Americus Manufacturing & Improvement Co., 124 Ga. 165 (3) (52 S. E. 65).

      (a) Where the clerk has certified the cause of the delay in transmitting the record, a second certificate by him, contradictory of his first, is, in effect,' aliunde evidence, and will not be considered by this court. Hancock v. Cloud, 65 Ga. 209 (2). See also Gordray v. Savannah Union Station Co., 134 Ga. 865 (68 S. E. 697).
    2. The verdict for the plaintiff was unauthorized by the evidence.
    Complaint; from Calhoun superior court—Judge Harrell. April 18, 1918.
    C. J. Taylor, for plaintiff in error. E. L. Smith, contra.
   Broyles, P. J.

This was an action against the alleged agent of an “unauthorized” fire-insurance company, under sections 2443 and 2445 of the Civil Code of 1910. The suit was based upon an insurance policy, a copy of which was attached to the petition, and the petition alleged that the petitioners had “complied with the terms of said policy all the way through.” This allegation was denied in the defendant’s answer; consequently the burden was upon the plaintiff of establishing its truth. Among the printed conditions upon the face of the policy was the following: “This entire policy . . shall be void, if . . there be kept, used, or allowed on the above-described premises . . fireworks.” It was also provided in the policy that “This policy is made and accepted subject to the foregoing stipulations and conditions.”

Upon the trial the only witness introduced for the plaintiff was a member of the plaintiff firm, who, upon the question of having fireworks in the store (the building containing the property insured), testified as follows: “There were no fireworks; no, sir. I did not have fireworks. I did not have fireworks there at the store, that I know of.” (Q.) “You mean to say that you did not have any fireworks at all?” (A.) “No sir, none that I know of. There were no fireworks in there just before sundown that afternoon, that I know of.” (Q.) “Did you not get some fireworks on a wagon that came from Edison with some goods ?” (A.) “Well, the wagon brought the goods from Edison. Well, I would not be positive to say there were mo fireworks in there.” Under the familiar rule that in a ease where the plaintiff’s or the defendant’s testimony is contradictory in itself, vague, or equivocal, it must be construed most strongly against him, this evidence was not sufficient for the jury to find that no fireworks were kept in the store. Moreover, the undisputed evidence of a witness for the defense showed that on the Christmas night on which the fire occured and prior to the fire, there were some fireworks inside the store. The witness said: “I don’t know how many, just about the usual stock for a country store through the Christmas times, which he had there for sale.”

Under the provisions of the policy and the foregoing evidence, the verdict for the plaintiff was unauthorized, and the court erred in overruling the general grounds of the defendant’s motion for a new trial. In view of this ruling it is unnecessary to consider the special grounds of the motion for a new trial.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


text:
    10189.
    Perry v. Simpson.
    Decided May 7, 1919.
    Certiorari; from Webster superior court—Judge Littlejohn.' October 9, 1918.

      M. A. Walker, W. T. Lane, for plaintiff in error.

      J. F. Souter, J. R. Lunsford, contra.
   Stephens, J.

“Before an applicant can have obstructions removed from a private way he must show, not only that there has been an uninterrupted use for more than seven years, but that it is not more than fifteen feet wide, that he has kept it open and in repair, and that it is the same fifteen feet originally appropriated.” Collier v. Farr, 81 Ga. 749 (7 S. E. 860). The evidence failing to show that the applicant kept such private way open and in repair, the judge of the superior court should have sustained, on certiorari, the exceptions to the order of the ordinary ordering the defendant to remove obstructions erected by him in the alleged private way. Johnson v. Sams, 136 Ga. 448 (2) (71 S. E. 891).

Judgment reversed.

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


text:
    10198.
    Medlock v. Morgan County Bank.
   Broyles, P. J.

1. Under the facts of the case, the writing, on the back of the mortgage-note, signed by the payees, was in effect a transfer of the note to the Morgan County Bank.

2. The. assignments of error in the petition for certiorari, upon, certain rulings of the court during the trial of the- case, to vwit, “to which ruling of the court claimant then excepted, and now excepts and assigns the same as error of the court,” are not specific enough to raise any question for determination by this court, it not being alleged that the ■ rulings excepted to were contrary to law or to the evidence, or in what particulars they were erroneous.

3. In the state of the record it does not appear that the plaintiff made out a prima facie case. The trial court therefore erred in directing that the jury find the property subject.

4. The trial court erred also in rendering a judgment that the plaintiff in fi. fa. and the security on the bond have judgment against the defendant for $225 principal and $41.90 interest to date. In a claim case, where there is no supplemental equitable pleading converting it into an equitable-or quasi-equitable proceeding, the only issue is: Is the property subject? Timmons v. Mathis, 9 Ga. App. 713 (2) (72 S. E. 279). Even if the city court of Madison could “recognize and apply equity principles to such an extent as to permit equitable pleas to be filed, which, if sustained, would have the effect of defeating altogether the plaintiff’s legal cause of action” (Hecht v. Snook & Austin Co., 114 Ga. 921, 927, 41 S. E. 74), no such plea was filed in this case, and it remained a simule claim case.

Decided May 7, 1919.

Certiorari; from Morgan superior court—Judge Park. October 10, 1918.

On October 15, 1915, the Morgan County Bank, as transferee, foreclosed a mortgage executed by G. H. F. Chandler as security for a note embraced in the same instrument, dated May 1, 1915, by which he promised to pay on October 1, 1915, “to C. 0. Medlock and E. A. Chandler two hunderd and twenty-five dollars,” with interest. On the back of the note was written: “For value received we hereby guarantee the collection and payment of the within note to Morgan County Bank and consent to any extension, protest, demand, and notice of non-payment. C. 0. Medlock, E. A. Chandler.”

The mortgaged property was described in the mortgage as the mortgagor’s crop of cottoh consisting of 30 acres and crop of corn of 6 acres, and his half interest in his crop of 55 acres in cotton “being worked on halves with Mr. C. 0. Medlock,” on lands known as the old Walton place. The mortgage ii. fa. was levied on what was described in the entry of levy as a half interest in two bales of cotton weighing 500 pounds each, 3300 pounds of seed-cotton in the house on C. 0. Medlock’s farm, and 55 acres in cotton “on said farm worked on halves by G. H. F. Chandler, estimated at 7 bales of cotton in the field, pointed out by defendant and found in possession of C. 0. Medlock.” Medlock filed a claim to the crops on his 55 acres of land. The claim ease was tried in the city court of Madison, and, the verdict and judgment being adverse to the claimant, he sued out certiorari; the certiorari was overruled, and he excepted.

The petition for certiorari, after setting out testimony of the claimant (the only witness), says: “The court, on objection of the plaintiff, made the following ruling: I hold that the claimant in this case, having taken a mortgage to this half of the crop to himself and having transferred that mortgage to the Morgan County Bank, -is estopped from setting up any claim to the property described in this mortgage. I rule out everything that Medlock has testified to in the ease.’ To which ruling of the court claimant then excepted, and now excepts and assigns as error to th.e court. Medlock further swore as follows: ‘G. Ií. F. Chandler was a cropper and worked for half of the crop, and the crops made on the land were not sufficient to pay the indebtedness on the supplies and labor upon it for that year in which the crop was grown/ By the court: ‘I hold this: that if Chandler had given a mortgage on Medlock’s mule to the Morgan County Bank and -Medlock stood there and saw him mortgage the mule to the Morgan County Bank, and did not object to it, and let the Morgan County Bank furnish money to the mortgagor in this case, he would be estopped from setting up a claim to the property as against the Morgan County Bank/ To which ruling of the court claimant' then excepted, and now excepts and assigns the same as error of the court. C. 0. Medlock further testified: ‘There had never been any division of this crop at the time of the levy, and the supplies furnished to make it had not been paid for to me/ Whereupon the court directed the jury to find the following verdict: ‘We, the jury, find the property subject/ ” TJpon this verdict the court entered a judgment that the mortgage fi. fa. proceed againt the property levied on and “that the plaintiff in fi. fa. and the security in said bond have judgment against the defendant” for $225 principal and $41.90 interest to date. It is alleged: (1) That the directing of the verdict was error because it was contrary to law and the evidence and without evidence to support it. (2) That it was error because the mortgage fi; fa. and the mortgage as introduced in' evidence-showed that the Morgan County Bank had full knowledge and notice of the interest claimed by the mortgagee in the crops levied upon, and that the title to them was in C. 0. Medlock. (3) That the judgment entered on the verdict is error because it is a money judgment, when it should only have directed that the fi. fa. proceed against the mortgaged property. (4) That the court erred in ruling out the evidence of C. 0. Medlock as before set out, “to which exception was and is now taken, and claimant says same was error.” (5) That the direction of the verdict was error because the undisputed evidence showed that the title to the crops at the time of the levy was in the claimant, and, while the mortgagor had a mortgageable interest in the crops, they could not be seized under mortgage foreclosure. On the contention that no ease was made out by the plaintiff, counsel for plaintiff in error cited: 117 Ga. 749; 119 Ga. 196 (4); 88 Ga. 721. Title in.landlord: Civil Code (1910),.§§ 3705, 3707; 10 Ga. App. 758; 20 Ga. App. 704; 16 Ga. App. 42 (2 a); 14 Ga. App. 311; 46 Ga. 583.

5. The judge of the superior court erred in overruling the certiorari and refusing to grant a new trial.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

M. C. Few, S. H. Sibley, for plaintiff in error.

E. H. George, contra.


author: Beoyles, P. J.-

text:
    10272.
    Hattaway v. The State.
    Decided May 7, 1919.
    Indictment for manufacture of liquor; from Glascock superior court—Judge Walker. November 29, 1918.

      M. L. Felts, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Beoyles, P. J.-

The motion for a new trial contained only the usual general grounds; the evidence amply authorized the verdict, and the court did not err in overruling the motion. t

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10294.
    Hill v. Evansville Metal Bed Co.
    Decided May 7, 1919.
    Certiorari; from Eulton superior court—Judge Pendleton. December 4, 1918.

      Albert Kemper, Thomas E. Scott, for plaintiff in error.

      Anderson & Slate, contra.
   Bloodworth, J.

Under the particular facts of this case, the judge did not err in overruling the certiorari.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10300.
    TRAVIS v. SAMS.
    1. Where one of the signers of a promissory note on which was an entry showing that after maturity it was paid by him brought an action thereon against the other signer, alleging that he signed it merely . as an accommodation indorser for the defendant and did not receive any part of the loan which was the consideration recited in the note, the suit was not subject to demurrer on the ground that it appeared that the note had been paid. Under the allegations of the petition the plaintiff, being merely a surety, was, on his payment of the note, subrogated to the payee’s rights against the principal.

      Decided May 7, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. December 2, 1918.

      R. R. Jackson, for plaintiff in error.

      R. Low Reynolds, Dorsey, Shelton & Dorsey, contra.
    2. The defendant having pleaded and proved his discharge in bankruptcy, and it not appearing that the debt sued on had not been scheduled in the bankruptcy proceeding, although the plaintiff testified that he received no notice of the bankruptcy and did not know of it, the trial judge erred in rendering judgment for the plaintiff.
    3. A question of fact being involved, the judge of the superior court, on certiorari, did not err in granting a new trial instead of rendering final judgment for the defendant.
   Broyles, P. J.

A surety who has paid the debt of his principal is subrogated both at law and in equity to all the rights of the creditor. Civil Code (1910), § 3567. In this case S. Sams sued J. G. Travis on a promissory note signed by both parties and which recited that it was “for money loaned.” On the back of the note was the following indorsement: “Feb. 28, 1912, paid by S. Sams, Brooks, Ga.” By an amendment to the petition it was alleged that Sams signéd the note merely as an accomodation indorser for Travis, and-received none of the money loaned on the note, that when the note matured Travis did not pay it, and that he (Sams) paid it on February 28, 1912. Under this amendment the court did not err in overruling the demurrer which set up that the petition showed on its face that the note had been paid by one of the joint obligors and that the plaintiff accordingly had no right of action, on the note. This ruling is not in conflict with the holding in Cason v. Heath, 86 Ga. 438 (12 S. E. 678), cited by counsel for the plaintiff in error; for there the note was paid by the maker, and not by a surety or accommodation indorser.

The discharge of a bankrupt is not operative against a creditor who had no notice or actual knowledge of the proceedings in bankruptcy, and whose claim was not duly scheduled; but mere want of such notice or knowledge will not prevent the discharge from becoming operative if the debt was duly scheduled. Beck & Gregg Hardware Co. v. Crum, 127 Ga. 94 (56 S. E. 242); Marshall v. English-American Loan & Trust Co., 127 Ga. 376 (56 S. E. 449). In this ease the evidence showed that the plaintiff had no notice or knowledge .of the proceedings in bankruptcy, but it was silent as to whether his claim was duly scheduled therein. The trial court, therefore, erred in rendering judgment in his favor, and the judge of the superior court, on certiorari, properly granted a new trial, and, as a question of fact was involved, did not err in failing to render a final judgment for the defendant.

Judgment affirmed.

Bloodworfh and Stephens, JJ., concur.