text:
    10995.
    Allen et al. v. Brooke.
    Decided April 8, 1920.
   Stephens, J.

1. Where an attorney at law accepts employment and agrees for a stipulated fee to handle certain litigation through the courts, and where the complete performance of such service is rendered impossible through no .fault on his part, but by the act of his client in settling the case before trial, the attorney may recover the entire fee, where he remains in readiness to render complete performance.

2. Such an agreement is not to do or perform certain specific services such as looking up testimony, examining witnesses, consulting with client, etc., but is to do generally all that is necessary, including such specific services when necessary, to a successful handling of the litigation and achieving the desired result.

3. Even though the attorney may have stated his intention to perform such specific services mentioned, yet where it appears that he did after employment consult with the client with reference to the litigation, but where it does not appear that the performance of such services was necessary to the successful handling of the litigation under the general contract of employment, it cannot be said that the attorney has failed to comply with his obligation under the contract.

4. The evidence demanding a finding of the facts as above stated, the verdict for the plaintiff for the stipulated attorney’s fee agreed upon was properly directed.

Judgment affirmed,.

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

Complaint; from Forsyth superior court—'Judge Morris. August 37, 1919.

J. P. Brooke sued Allen and Hill for $100 and interest thereon from August 31, 1917, alleging that the defendants were indebted to him in that amount upon account for fees to be paid to him by them for services rendered and to be rendered in specified cases in Forsyth superior court, which were settled and dismissed by agreement of the parties. The defendants in their answer denied the allegations of the petition, and pleaded that they had tendered to the plaintiff $50 in settlement of his claim, and made a continuing tender of that sum. The court, after hearing the evidence on the trial, directed a verdict against the defendants for the amount sued for, and they excepted.

In the plaintiff’s testimony it was stated that after negotiations between him and the defendants Allen and Hill in regard to his employment as counsel for them in several cases pending in Forsyth superior court, in which it was desired that he should 'assist Judge Gober, who was already counsel in the cases, Mr. Allen agreed to give him a straight fee of $100 for his services, regardless of the termination or result of the cases; he was “just to appear in them,” and if they were stricken from the docket of the court he would be entitled to his fee, under the contract: that he was employed before the February term, and was at the court at that term, and these cases were passed over, and that just before the next term (August term, 1917), he came to Cumming (where the court was held), and, with Mr. Allen and Mr. Hill and in the absence of other counsel, “worked through the papers and decided on quite a number of little things to get ready for the approaching term of court,” made several suggestions about amendments that, ought to be made in the pleadings and about the evidence, and asked them if they could get up the evidence, and they thought they could; the pleadings were already prepared and he was to assist on the trial; he suggested a line of defense in one of the cases that would require the production of other witnesses, and they said they would get up those witnesses; he and they spent a large part of the day in getting through the papers and getting ready; he came to the court at the August term, and when he got there Judge Gober told him that he (Judge Gober) had been there before court and had the cases settled; there was no trial on them; he asked the defendants for his fee and they refused to pay him.

The defendant Allen testified: “Judge Gober had prepared the cases and Judge Patterson was to help in the trial. . . I agreed to give Mr. Brooke $100 to represent me in these cases on the trial through the courts. . . Our agreement was I should pay Mr. Brooke $100 to represent me in the cases through the courts. Mr. Brooke said he would come up here and spend a week in looking up the testimony and examining the witnesses and getting the cases ready for the court; he was to work in connection with Judge Patterson, and Judge Gober. Mr. Brooke stayed at my house when he came on return day, anywhere from half an hour to an hour, and discussed the matter in general with me and Mr. Hill; he then 'agreed to come back two days before court, . . but he didn’t come, and this settlement that was made was made on Saturday before court convened on Monday; he .hadn’t come up to that time and didn’t come that day. Mr. Brooke has not rendered any services in the way of preparing the cases that I know of. . . I authorized my attorneys to settle the cases on opposing parties paying all attorney’s fees 'and all costs.” In the settlement Mr. Brooke was to receive $50. “I admit the $50 going to him.” “I don’t deny I promised to give Mr. Brooke $100; that did not depend on how the cases went;” he was to assist in all the cases through the courts. The defendant Hill testified that he was to be jointly liable for the fee of Mr. Brooke. His testimony was substantially in accord with that of the defendant Allen. Judge Gober testified that Mr. Brooke told him that he (Brooke) would come to Gumming and spend two days before a term of court, to get up evidence; and he (the witness) was there on Friday before the August term when the cases were settled, and Mr. Brooke was not there; if Mr. Brooke ever did any work in the cases he did not know it. In rebuttal Mr. Brooke denied that he had promised to be in Cumming two days before court.

George F. Gober, H. L. Patterson, for plaintiffs in error,

cited: Civil Code (1910), §§ 5926, 4953; 55 Ga. 283; 128 Ga. 155 (2), 156.

J. P. Brooke, contra.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    11001.
    Cope v. Pettit.
    Decided April 8, 1920.
    Action for damages; from Bartow superior court — Judge Tarver. September 22, 1919.

      J. T. Norris, for plaintiff in error.

      A. W. Fite, J. R. Whitaker, contra.
   Jenkins, P. J.

1. The verdict for $150, recovered by the plaintiff in this case for injury to his crops and land alleged to have been occasioned by the breaking of the defendant’s dam, and the washing and overflowing of the land and crops with mud, was amply sustained by the evidence, under the charge as given by the court.

2. An exception based upon the refusal of the court to award a nonsuit will not be considered, where, subsequently thereto, the ease is submitted to the jury, and a verdict being rendered against the defendant, a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to support it.” Trapnell v. Bird, 21 Ga. App. 21 (1) (93 S. E. 498), and cit.

3. The reference In the charge to the amount of damages claimed by the plaintiff had manifest reference to the allegation made by the petition, which was stated to be without probative value, and while such reference was inapt, since the evidence for the plaintiff only authorized a recovery in a much lesser sum, still, since the charge as a whole clearly and correctly limited the jury to a finding in the amount of damages proved, such reference could not have been misleading, and will not justify setting the verdict aside.

4. The remaining grounds of the motion for a new trial, relating mainly to exceptions taken to the charge of the court, are all based upon the theory of the movant that the evidence fails to sustain the plaintiff’s contentions, and none of them authorize the court to set the verdict aside.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11005.
    Thompson v. Metropolitan Life Insurance Co.
   Jenkins, P. J.

Under the law of this particular ease, as fixed and determined by this court (Metropolitan Life Insurance Co. v. Thompson, 20 Ga. App. 706, 93 S. E. 299), the question is not whether the special agent had agreed with the applicant to advance for him the first premium called for by the policy of insurance, but whether he had actually done so. The plaintiff admits that the applicant' himself did not pay this premium. The evidence is in conflict as to whether or not the agent had promised the applicant to advance it for-him; but there is no evidence which can be taken to dispute the testimony for the defendant to the effect that no such advance by the agent had in fact been made; nor is there any evidence going to show that the company had accepted an obligation of the agent on behalf of the applicant in lieu of such payment by the applicant, since the policy was sent to the agent for delivery only on the agent’s statement that the applicant had himself made payment. The court, therefore, committed no error in directing a verdict in favor of the defendant.

Decided April 8, 1920.

Action on insurance policy; from city court of Wayeross •—• Judge Crawley. September 15, 1919.

See same case, 23 Ga. App. 421.

Parker & Parker, for plaintiff.

Parks, Reed & Garrett, for defendant.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11009.
    Ball v. Foundation Company.
    Decided April 8, 1920.
    Action on contract; from city court of Savannah' — Judge Freeman. October 10, 1919.
    In 1918, the Foundation Company was engaged in the construction of thirty-eight steel vessels, known as “mine sweepers,” for the Eepublic of France. On August 7, 1918, it entered into a written contract with Oliver G-. Ball, by which he was employed to bend the steel frames to be used as the ribs in the construction of these vessels. He sued the Foundation Company upon this contract (a copy of which was attached to the petition), alleging that after he had bent the frames for six of the thirty-eight vessels, the contract was, without legal cause, terminated by the defendant. He sought to recover as damages what he alleged to be the net loss of profits occasioned by the breach, and also five per cent, of the contract price for the work actually performed under the terms of the contract, which he alleged the defendant had failed and refused to pay. The petition was based on the theory that the contract was in fact to be performed by the petitioner in conjunction with a number of other persons, the petition alleging that “it was provided that petitioner and the other three men working in conjunction with him should receive the sum of $4.00 per frame complete in ships 1-38 inclusive,” and he sued for a fourth of the net damage from the loss of profits.
   Jenkins, P. J.

1. While it is true that where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, a modification, by way of a quasi new agreement, will be implied (Civil Code (1910), § 4227), still, in order for this rule to have application, it is necessary that the circumstances be such as will in law imply a mutual new agreement, whereby new, distinct, and definite terms are supplied in lieu of those provided for by the original contract. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695.

2. Construing the allegations of the petition, together with the proposed amendment, more strictly against the pleader, it cannot be ascertained therefrom what portion of the work set forth in the writing the plaintiff was obligated to perform. The court, therefore, did not err in sustaining the special demurrer entered by the defendant.

3. The petition set forth a valid cause of action in so far as it sought to recover for the unpaid portion of the services actually performed. The court, therefore, erred in dismissing the petition on general' demurrer.

Judgment reversed.

Stephens and Smith, JJ., concur.

The defendant demurred to the petition generally and specially. The judge sustained the general demurrer and also the special ground to the effect that “it appears from the allegations of the petition that no contract such as alleged therein was ever entered into between plaintiff and this defendant,” but the plaintiff was granted the right to amend so as either to stand on the contract as written or to show a legal subsequent agreement changing its terms to conform to the allegations of the petition. The plaintiff sought to amend the petition, but did not thus seek to set forth any express agreement altering the terms of the original contract. Paragraph 2 of the proffered amendment is as follows: “Hnder the terms of the contract and under the actual interpretation and working thereof by petitioner and the defendant company, the contract attached to the petition contemplated, and was known to both petitioner and the defendant to contemplate, that petitioner should bend all of the frames in the said thirty-eight vessels which it was possible for him to bend, under the circumstances under which the petitioner and defendant were working. When petitioner first began the performance of his contract there were three frame benders, including himself, but before the completion of the six ships heretofore mentioned another frame bender was added, making four frame benders' altogether. Under the actual working of the contract both before and after petitioner was denied the privilege of completing his contract by the defendant company, two of said frame benders, with their helpers, worked a ten-hour shift, at the conclusion of which the other frame benders, with their helpers, worked a ten-hour shift. In this manner the four frame benders were actually bending the frames in the ships, and it was intended that they should bend the frames for all the vessels in this manner. In each ship there were to be one hundred and fifty-eight whole frames. In the thirty-two ships there were to be five thousand and fifty-six frames. Of these five thousand and fifty-six frames it was contemplated that petitioner should bend as many as one fourth, and as many more as possible, and petitioner avers that under the system which he was following he would easily have bent as many as one fourth' of the entire number of frames, or one thousand two hundred and eighty-four frames altogether in the remaining ships. Under petitioner’s contract he was entitled to the sum of four dollars per frame, and he would therefore have been entitled to receive for the one thousand two hundred and eighty-four frames, which it was contemplated that he should bend, and which he would have bent had he been permitted to complete his contract, the sum of five thousand one hundred and thirty-six dollars.

The judge refused to allow the amendment and sustained the general and 'special demurrer.

Oliver & Oliver, for plaintiff.

Stephens, Barrow & Heyward, for defendant.


text:
    11040.
    American Agricultural Chemical Co. v. Ryan, administrator.
   Jenkins, P. J.

1. Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them on demurrer, except in plain and indisputable cases. In this case it can not be said that the allegations of the plaintiff’s petition as amended show, as a matter of law, that no other legal conclusion could be reached than that the plaintiff’s injuries were the result of his failure to exercise ordinary care, or that by the exercise of such care the consequences of the defendant’s alleged negligence could have been' avoided.” Western Union Telegraph Co. v. Spencer, 24 Ga. App. 471 (101 S. E. 198), and cit.

Decided April 8, 1920.

Action for damages; from Chatham superior court — Judge Meldrim. September 18, 1919.

From the petition it appears that the plaintiff, in the discharge of his 'duty as an employee in the defendant’s manufacturing plant, was flushing out a nitrate tank with water from a hose, when he became asphyxiated with fumes from an open receptacle or reservoir, known as a boot, the top of which was flush with the floor, at a distance of a few feet from the tank, and into which the accumulations of nitrate from the bottom of the tank were thus washed through a pipe; that in his asphyxiated condition he sat down near a puddle of acid and his clothes became saturated and he was burned by the acid, and he suffered serious injuries from the asphyxiation as well as from the burning by the acid. The defendant’s foreman Williams, whom it was his duty to obey, had told him to wash out the nitrate tank, and he (the plaintiff) instructed his coemployee Shorter to cover the boot with a bag, in order to prevent the fumes from arising. It was Shorter’s duty to cover the boot as directed by him, but the foreman, Williams, who was in authority over both of them, instructed Shorter to hold up' the hose instead of covering the boot with a bag. This the plaintiff did not know and could not by the use of ordinary care have ascertained, and, supposing that Shorter had covered the boot, he continued to flush the tank until, before he was aware of it, the fumes arising from the boot had rendered him dazed and partly unconscious. Another employee told Williams that something was wrong with the plaintiff, and when the plaintiff sat down near the puddle of acid this coemployee urged Williams to get him away from the acid, as he was certainly going to be injured. It is alleged that Williams did not render ordinary care for his protection, and because of his proximity to the "acid his clothes became saturated with it as stated above; that finally Williams, leaving him in his overcome condition in a dangerous situation, went off and called up a police ambulance and said that he had a crazy man out there, to come get him; and that Williams permitted him to be carried to the police barracks, where he was permitted to remain several hours and until his wife found him, at which time he was sent to a charity hospital for treatment. 'It is alleged that his injuries were due to negligence of the defendant; that it was negligent in not furnishing a safe place and safe and suitable means and appliances for his work; and that through its foreman Williams it was negligent in various specified acts and omissions as stated above. By amendment it is alleged that when the plaintiff was flushing the tank his back was turned to the boot, and for this reason he could not see that his coemployee Shorter, whose duty it was to place the sack over the boot, had not done so; that he was intently engaged in his work and in watching the process of flushing out the tank; that it was necessary that he should stoop down and have his face on or about the level of the top of the tank and look over its side; that it was impossible for him to see that any fumes were arising from the boot, because the fumes were invisible, and there was nothing to indicate that they were arising and enveloping him to such an extent as to cause injury; that although he noticed a slight odor of gas, he considered that it arose from the tank and would not be sufficient to injure him, as he had never suffered injury from that cause before.

2. Applying the foregoing principle of law to the petition as amended, the court did not err in refusing to dismiss it on demurrer.

Judgment affirmed.

Stephens and Smith, JJ., concur.

Seabrook & Kennedy, for plaintiff in error.

Oliver & Oliver, contra.


author: Per Curiam.

text:
    11150.
    GILBERT v. DALTON COUNCIL NO. 30, JUNIOR ORDER UNITED AMERICAN MECHANICS.
    Under the provisions of the policy or death-benefit certificate sued upon, which had been issued to the plaintiff’s deceased husband as a member of a local eouneil of the Junior Order United American Mechanics, the right of action thereon, if there was any, was against the national council of the order, and not against the local council. If the local council failed to perform its duty to the member by failing to pay the premium due to the funeral-benefit department of the national council, the beneficiary might have a right of action against the local council for damages, and in such ease the measure of damages would be the value of the policy.
    Decided April 8, 1920.
    Action on insurance policy; from Whitfield superior court — Judge Wright presiding. October 9, 1919.

      W. E. & W. G. Mann, for plaintiff.

      F. K. McCutchen, for defendant.
   Per Curiam.

Mrs. J. J. Gilbert brought suit against the Dalton Council No. 30, Junior Order United American Mechanics, alleging substantially that her deceased husband was in good standing with the defendant at the time of his death, and that she was the widow and sole dependent of her deceased husband. To the petition was attached, as a part of it, a copy of the policy or death-benefit certificate, which provided that the National Council of Junior Order United American Mechanics of the United States of North America would pay to the Dalton Council or the legal dependent of J. J. Gilbert within 30 days from the receipt of the proof of his death the sum of $500. The policy contained a condition that at the time of the death of J. J. Gilbert the Dalton Council should be in good standing with the National Council, that is to say that it had paid all assessments due to the funeral benefit department, and was otherwise in good standing with the National and State Council having jurisdiction over the local council. It also contained the further condition that the member had not been received to membership or retained as a member in violation of the laws and decisions of the order, and that at the time of his death he was in good standing with the local council, and entitled to the death benefits in accordance with the constitution and laws of the local council as well as of the State and National Council. The plaintiff prayed for a judgment against the Dalton Council (the local council) for the amount of said policy. The defendant filed a general demurrer, upon the grounds: (1) that there was no cause of action set out in the petition, and (2) that the petition and the copy of the policy showed upon their face that the right of action, if any, was against the National Council and not against the local council. The plaintiff then amended her petition, and in the amendment alleged, that her husband was in good standing as provided in the contract sued on; that proof of death had been made as provided in the policy, and that the defendant, the local council, had failed to pay to the funeral benefit department of the National Council the premium necessary to keep her husband in good standing. To the petition as amended the general demurrer was renewed, and the court sustained the general demurrer and dismissed the petition. Held, that in the petition as amended the right of action, if any, in a suit upon the policy or contract of insurance, was against the national council, and not against the local council. If the local council had failed and refused to perform its duty to the member by failing to pay the premium due to the funeral benefit department of the national council, a right of action, if any, would arise in favor of the legal dependent against the local council for damages, and the legal measure of the damages would be the value of the policy. See Woelfer v. Heyneman, 2 N. Y. City Ct. R. 15; 7 Corpus Juris, 1110.

Judgment affirmed.

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


author: Smith, J.

text:
    11160.
    FIRST NATIONAL BANK OF BLAKELY v. WADE et al.

    1. A partner’s incumbrance of liis undivided interest in partnership property to secure his individual debt is subject to the prior claims of creditors of the partnership.
    2. A mortgagor’s statement to the mortgagee at the time of executing a mortgage purporting to cover an undivided interest in partnership' property, that he is the owner of such an interest, is not admissible as evidence in favor of the mortgagee, as against a prior purchaser of the mortgagor’s interest in the partnership.
    3. 4. Notice of the dissolution of a partnership or of the withdrawal of a partner is required for the benefit of creditors of the partnership, and not of creditors of a partner as an individual; and in this case the failure to give such notice before the retiring partner executed a mortgage purporting to cover his interest in partnership property did not estop the partners to whom he had conveyed his partnership interest from claiming title to the property, as against the mortgagee.
    5. Failure to give to the jury an instruction not requested in writing, as to a particular conflict in the evidence, was not error. The charge of the court fully covered the substantial issues in the case.
    6. The court did not err in admitting in evidence the writing showing the sale of the interest of the defendant in fi. fa. in the Wade Company.

      Decided April 8, 1920.
    7. There was ample evidence to support the. verdict in favor of the claimants.
    Levy and claim; from Early superior court — Judge Worrill. December 13, 1919.
    As security for the payment of his individual debt to thé First National Bank of Blakely, P. FL Wade executed on March 23, 1918, a mortgage to that bank upon what was described as “one-fourth undivided interest in twenty-four mules owned by the Wade Company, of Early county, of which the said P. H. Wade is manager.” Under a foreclosure of the mortgage a fourth undivided interest in certain mules was levied on as the property of the defendant in fi. fa. A claim to the property was interposed by T. W. Wade, J. W. Wade, and Adelaide Wade Sheppard, “doing business as the Wade Estate,” and on the trial of the case it was contended that the interest of P. H. Wade in the property of the Wade Company was sold by him to the claimants before he executed the mortgage to the bank. From the evidence it appeared that a farming partnership designated as the Wade Company was formed in 1912 between P. FI. Wade and the claimants, for the purpose of operating the lands of the estate of J. M. & E. W. Wade, under a written agreement which recited that it was between P. II. Wade and “the estate of J. M. & E. W. Wade as represented by executor,” T. W. Wade, and which provided that P. FI. Wade should be “the active manager of the company.” T. W. Wade testified that under this partnership P. FL Wade took charge of the partnership property, and, as manager of the Wade Company, managed the property until February 8, 1917; that he (the witness) then made a trade with P. FI. Wade in which P. FL Wade’s interest in the partnership was bought; and that P. FL Wade had no interest in the mules in question or in the partnership since February 8, 1917, and the mules were owned by himself and the other claimants; that he (the witness) had “a writing or receipt from P. FI. Wade, showing his release of any interest he had in the property mentioned in this contract (referring to a writing exhibited which the witness said he saw P. FL Wade sign); that “from that date P. FL Wade still acted as manager for the Wade Company, but after that date he had no interest in the property or the enterprise of the Wade Company except to look after it and manage it on a salary;” “he still had control, management, and eondnct of the business,” and this arrangement continued until October, 1918. The witness “never published any notice of the release of his partnership,” and “never put anybody on notice of the dissolution of the partnership,” “ nor of the original partnership either.” The witness further testified that in 1917, after he had bought P. H. Wade’s interest, he told J. S. Sherman, the president of the plaintiff bank, that P. H. Wade did not own “ any part of this property, either real or personal, and that if they loaned him money 'they would do it at their own risk.” This statement and other statements as to what this witness said to Sherman were contradicted in Sherman’s testimony.
    It was contended on the part of the plaintiff that notice of the withdrawal of P. II. Wade from the partnership should have been given, and that, under the facts of the case, the claimants were estopped from setting up .title to the property in question, as against the bank. The trial judge ruled against this contention,, and held that the only issue in the case was whether or not the claimants had acquired title to P. M. Wade’s interest in the property prior to the date of the execution of his mortgage to the plaintiff; and the jury were so instructed.
    The writing referred to by T. W. Wade as the one given to him on February 8, 1917, and to which the 6th division of the decision relates; was admitted in evidence over the objection that it was “mere hearsay and irrelevant, not a sworn statement in any way, and because nothing that P. H. Wade may have said, in writing or otherwise, would be binding on the First National Bank.” In the brief of counsel for the plaintiff it is contended that this writing is incomplete and fails to identify the property, and that even if it can be treated as a bill of sale, it does not show a sale to the claimants, the purchasers named in it being “J. M. & E. W. Wade.” The writing is as follows: “Blakely, Ga. Feb. 8th, 1917. Know all men by these presents that having originally contributed to the Wade Company personal property specified in the attached list, of the value of three thousand dollars ($3,000), for value received I have this day sold and conveyed to J. M. & E. W. Wade all the above described property, being all my interest in the Wade Company. Witness my hand and seal the clay and year first above written. Perry H. Wade (Seal).” No list of the property referred to was attached to the writing.

      Glessner & Collins, for plaintiff.

      A. H. Gray, contra.
   Smith, J.

1. “A partner may not only encumber his undivided interest to secure a partnership debt, but he may also encumber such interest to secure his individual debt, subject, however, to the superior claim of the partnership creditors to be first paid.” Taylor v. McLaughlin, 120 Ga. 703, 707 (48 S. E. 203, 205), and cit. Under the evidence in this ease the claimants were creditors of the partnership.

2. The court did not err, as contended in the 4th, 5th, and 6th grounds of the motion for a new trial, in excluding the testimony of J. S. Sherman, a witness for the plaintiff, to the effect that while he was acting as president of the plaintiff bank he took from P. H. Wade, the defendant in fi. fa., a mortgage in favor of the bank, covering a fourth undivided interest in. the property in controversy, and that Wade at that time told the-witness that he owned a fourth interest in the Wade Company. The evidence shows that the bank took the mortgage a considerable length of time after P. H. Wade had sold out his interest in the partnership, and a statement by him after such sale that he owned an interest in the partnership property would not be admissible in evidence. All the other evidence, the exclusion of which is complained of in these grounds of the motion for a new trial, was properly ruled out by the lower court.

3. The court did not err, as contended in the 1th, 8th, and 9th grounds of the motion for a new trial, in holding that there was no duty on the part of the partnership to give notice of the dissolution of the partnership or the withdrawal of one of the partners, so far as it related to the plaintiff, a creditor of an individual partner. The notice which the law requires to be given of the dissolution of a partnership or the withdrawal of a partner (Civil Code of 1910, § 3163) is intended to apply only to the creditors of the partnership, and not to the creditors of an individual partner. Under this ruling there is no estoppel as against the claimants.

4. The excerpts from the charge of the court set out in the 10 th and 11th grounds of the motion for a'new trial, which in effect excluded the theory of estoppel or of the duty to give notice of the dissolution of the partnership, are not erroneous for any of the reasons assigned, but contain a correct statement of the law as applicable to the facts in this case.

5. There was no error, as contended in the 12th ground of the motion for % new trial, in the failure to charge the jury on the conflict in the testimony of T. W. Wade and J. S. Sherman. The charge of the court fully instructed the jury as to all the substantial issues in the case, and, in the absence of a timely appropriate written request for further instructions, failure to charge on this particular matter was not error.

6. There is no merit in the contention contained in the 13th ground of the motion for a new trial, as the writing or bill of sale from P. H. Wade to the claimants was properly admitted in evidence.

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

Judgment affirmed.

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


text:
    11178.
    Bingham v. Haines.
   Smith, J.

1. A possessory warrant lies only for the recovery of personal property, and not for the recovery of realty. Gainous v. Martin, 10 Ga. App. 210 (72 S. E. 1100).

(a) “A crop of corn not detached from the soil, whether mature or immature, is a part of the realty.” Newton County v. Boyd, 148 Ga. 761 (98 S. E. 347), and cit. Shrubbery and flowers planted by a tenant are, when not detached from the soil, realty, and cannot be removed by him, Wright v. DuBignon, 114 Ga. 765, 771 (40 S. E. 747, 57 L. R. A. 669).

2. It follows that a possessory warrant will not lie to recover shrubbery and flowers attached to the realty. Even had this been the proper remedy, the municipal court of Savannah did not have jurisdiction to entertain and try such a suit (Ga. L. 1915, p. 124, § 3) ; and while jurisdiction of the person may be waived by appearance and pleading to the merits, a party to an action cannot thus confer jurisdiction upon a court which has no jurisdiction of the subject-matter of the suit. Chapman v. Silver, 18 Ga. App. 476 (2) (89 S. E. 590).

3. Moreover, the first grant of a new trial by a judge of the superior court,- on certiorari to review a verdict and judgment of a municipal court, will not be disturbed where the verdict was not demanded by the evidence. Charles W. Tway Co. v. Hedenburg, 24 Ga. App. 520 (101 S. E. 199), and cit.

Decided April 8, 1920.

Certiorari; from Chatham superior court —• Judge Meldrim. November 10, 1919.

Simon N. Gazan, for plaintiff.

Anderson, Cann, Cann & Walsh, for defendant.

Judgment affirmed.

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


text:
    11189.
    Mackle Construction Co. v. Hotel Equipment Co.
   Smith, J.

1. “While agency may he proved by the testimony of the alleged agent as a witness, it cannot be proved by his more declarations, either spoken or written. Such declarations ought not in any event to be received in evidence, unless the party tendering the same offers in good faith to supplement them by other and independent evidence of agency; and if such offer' is not made good, the declarations ought to be excluded from consideration by the jury. The safer and better practice, in all cases, is to require proof of the agency before admitting such declarations at all.” Abel v. Jarratt, 100 Ga. 732 (2) (28 S. E. 453). Under this ruling it was not reversible error for the court to admit testimony of T. M. Turner to the effect that goods included in the account sued on were bought for the Mackle Construction Company, the defendant, by E. W. Roberts. Roberts was later introduced by the plaintiff and testified that he was the agent of the Mackle Construction Company and purchased the goods for that company.

2. The court erred in admitting evidence as to purchases of goods for the Mackle Construction Company made for the commissary at Camp Gordon at some time previous to the purchase of the goods included in the account sued on in this case, this being a suit on an account for goods alleged to have been sold to the defendant for a commissary at Camp Jesup, and that testimony being as to an entirely different transaction.

3. The evidence in the case being in strong conflict as to whether the goods included in the account sued on were bought by the Mackle Construction Company through E. W. Roberts, or whether he bought them on his own account and not as agent of that company, the court erred in directing a verdict for the plaintiff, as the question of agency and the question as to whom credit was given and who was the real purchaser were all questions of fact for the jury to determine.

4. Such of the assignments or error not dealt with above as are insisted upon in this court are without substantial merit; and under the above ruling tlie judge of the superior court erred in overruling the certiorari and entering judgment in favor of the plaintiff.

Decided April 8, 1920.

Certiorari; from Fulton superior court — Judge Humphries. October 27, 1919.

Norman I. Miller, for plaintiff in error.

Burress & Dillard, contra.

Judgment reversed.

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


text:
    11192, 11216.
    WILLIAMS et al. v. MITCHEM; and vice versa.

    Decided April 8, 1920.
    1. As bail-trover lies only to recover personalty, such an action is not maintainable to recover ungathered crops, whether mature or immature, since, under the law of this State, crops not detached from the soil are realty.

      (a) Moreover, there was no such conversion shown by the evidence in this case as to authorize a recovery.
    2. Where a plaintiff in bail-trover replevies the property in controversy, on the defendant’s failure to do so, and suffers nonsuit on the trial of the case, the defendant may enter up judgment against the plaintiff and the sureties on his bond for the value of the property; and if the defendant is content with the value stated in the plaintiff’s affidavit to obtain bail, no further proof or assessment of value is necessary.
    (Certiorari was granted by the Supreme Court).
    Trover; from city court of Morgan — Judge Miller. November 5, 1919. ' •

      C. J. Taylor, R. R. Jones, for plaintiff.

      B. W. Fortson, for defendant.
   Smith, J.

T. J. Williams and Y. D. McCollum brought an action of trover against C. E. Mitchem to recover certain described crops, not detached from the soil, alleged to be of the value of $10,000. The plaintiffs, at the time of filing their trover suit, also filed an affidavit to obtain bail. The defendant failed to give bond, and the plaintiffs, exercising their statutory right, gave the required bond, took possession of the crops, and gathered them. The crops were all matured, but were in the fields ungathered. The trial of the trover action resulted in a non-suit, and the court, upon motion of defendant’s counsel, entered judgment against the plaintiffs and the sureties on their bond for the sworn value of the property as set out in the bail affidavit made by the plaintiffs, with interest from the date of the conversion. The plaintiffs excepted to the judgment of nonsuit and to the judgment on the bond, and the case was duly brought to this court for review.

What seems to us to be the main and controlling question in the ease is whether or not bail-trover will lie to recover matured but ungathered crops. The fact that this question is not argued' or referred to in the briefs of counsel does not, of course, preclude us from deciding the case upon this theory, for this court is not concerned with the reasons given for or against the judgment of nonsuit, but with the correctness of that ruling.

In determining whether trover lies, there is often much confusion as to whether the property in question is personalty or realty; and different conclusions have been reached by text-writers and appellate courts in determining whether ungathered crops are personalty or realty. Since, however, no good purpose would be served by citing or discussing cases from States other than Georgia on this subject, and certainly it would be 'impracticable to try to reconcile the many decisions, both English and American, in which this question has been dealt with, we will confine our discussion to the law of this State relating to the classification of crops not detached from the soil.

In order to avoid possible confusion, we deem it necessary to state at the outset that it is wholly immaterial whether the crops in this case were growing or matured, for the Supreme Court has held in the recent case of Newton County v. Boyd, 148 Ga. 761 (98 S. E. 347), that “A crop of corn not detached from the soil, whether mature or immature, is a part of the realty, and passes by sale of the land without contractual reservation of the crop.” Section 3617 of the Civil Code defines realty as follows: “Kealty or real estate includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereonWith this definition before it (Civil Code of 1883, § 3318), the Supreme Court in the ease of Coody v. Gress Lumber Co., 82 Ga. 793 (10 S. E. 218), held that trees growing upon land were a part of the realty; and that, under the statute of frauds, a sale of them must be in writing. In Frost v. Render, 65 Ga. 15, it appears that a sheriff sold under execution land upon which were growing crops, and it was there held that “A levy being on certain land as the property of the defendant in fi. fa., a sale under such levy carries with it the crops growing on the land, and the sheriff cannot limit the sale by an announcement that the rent of the current year is reserved” That holding was based on the principle that the law considers growing crops part and parcel of the land itself. Again, we find that in the early case of Pitts v. Hendrix, 6 Ga. 452, it was decided that “A growing crop of corn, after it is laid by, and before maturity, passes to the purchaser of the land.” That case was cited and followed in Ferguson v. Hardy, 59 Ga. 758, wherein the question arose as to whether the title to crops growing on lands sold under execution passes to the purchaser as against the defendant in fi. fa. In the case of Dollar v. Roddenbery, 97 Ga. 148 (25 S. E. 410), it was held that a purchaser of lands did not acquire title as against a tenant who planted certain crops on the land, and whose estate was suddenly terminated by the sale of the lands. That decision was based upon the common-law doctrine that the tenant was entitled to the crops as “emblements,” and it was unnecessary to - decide whether the crops were to be considered as personalty or realty, for no greater interest than the landlord had therein could be sold as his property, and of course the purchaser got only that which was in- fact sold. In a contest between a judgment creditor of a tenant and one who claimed cotton levied on, by virtue of prior purchase from the tenant of his unmatured crops, and who had accordingly entered upon the land, cultivated the crops, and gathered them when ripe, the Supreme Court said: “Before maturity, the crops only constitute an element of value, and are not themselves distinct chattels. We know of no ruling to the contrary by this court.” In that case- the case of Pitts v. Hendrix, supra, was cited with approval.

Another case which bears somewhat upon the subject under consideration is that of Hamilton v. State, 94 Ga. 770 (21 S. E. 995), wherein the accused was charged with having fraudulently sold and disposed of personal property upon which she had previously given a mortgage. The point raised was that ’a mortgage given upon a growing crop could not properly be treated as a mortgage upon personalty; and the Supreme Court, in dealing with this question, drew the distinction between growths that are fructus naturales and those designated as fructus industriales. However, what was said as to this distinction was merely obiter, for, as will be seen from the concluding remarks of the opinion then delivered, the court rested its decision not upon the character of the crops when mortgaged, but upon the ground that if the accused fraudulently disposed of them after maturity, so that they were removed from the land and carried beyond the reach of the mortgagee, the offense with which she was charged would unquestionably be complete. Therefore in that case it was simply held that, irrespective of whether the crops should be considered as personalty while yet immature and growing in the field, “the crop in question being personalty when sold and being then subject to the mortgage, it does not matter whether it was personalty or not at the time it was mortgaged.” As far as we have been able to find, there is no decision of our Supreme Court which has unqualifiedly approved and adopted as sound the distinction drawn by many text-books and courts between property that is fructus naturales and that which is fructus industriales. We come now to the case of Bagley v. Columbus So. Ry. Co., 98 Ga. 626 (25 S. E. 638, 34 L. R. A. 286, 58 Am. St. R. 325), and while in that case it was held merely that “ as a general rule unmatured crops growing upon land belonging to the owner of the crops are to be regarded as part and parcel of the land,” special attention is called to the very able and thorough opinion of Chief Justice Simmons, which is one of the best discussions to be found anywhere upon this troublesome subject, and one which has been repeatedly referred to by leading text-writers.

Since it seems to be indisputable, from what is said above, that' crops not detached from the soil, whether mature or immature, cannot properly be classified as personalty, under the law obtaining in this State, it follows that the plaintiffs in this case could not legally maintain bail-trover to recover ungathered crops. Consequently it cannot be said that the judgment awarding a non-suit was error.

Moreover, even if the crops in this ease were to be considered as personalty, there was no sufficient evidence of ^ conversion of them, and for this additional reason the nonsuit was proper. While it is true the evidence showed a demand and refusal, this was not, under the particular facts of the case, sufficient proof of a conversion, for the uneontradicted evidence established that the plaintiffs went into possession and gathered the crops several months prior to the first of November, whereas the defendant had, under the terms of a valid written contract, the right to purchase at any time before this date the plantation upon which the crops were raised, and in case he exercised • this right he became the owner not only of the land, but of all the crops grown thereon. The defendant’s option to buy not having expired when the ¡plaintiffs demanded that he surrender possession of the crops, it cannot be said that his refusal to do so amounted to a conversion. In other words, their demand for possession was prematurely made.

2. The nonsuit being proper, the defendant had his choice of one of three remedies, to wit: A judgment (1) for the specific property, or (2) for the market value of the property at the date of the conversion, with the addition of hire or interest, or (3) for the highest proved value of the property between the date of the conversion and the date 'of the trial, without hire or interest. Kaufman v. Seaboard Air-Line Ry., 10 Ga. App. 248, 250 (73 S. E. 592); Barfield Music House v. Harris 20 Ga. App. 42 (92 S. E. 402). The defendant took advantage of the second remedy and asked for judgment for the value placed upon the property by the plaintiffs in their affidavit for bail. The court allowed judgment to be entered upon the bond, for the sworn value of the property with interest from the date of the conversion. The plaintiffs excepted to this action of the court, but their exception is, we think, without substantial merit, for, as was said •by Judge Powell in the case of Kaufman v. Seaboard Air-Line Ry., supra: “The defendant in any of these events may ask for the question of value to be submitted to the jury for assessment; but, if he is content with the value sworn to by the plaintiff in his affidavit for bail, verdict is unnecessary, and he may, upon the sworn admission of the plaintiff as contained in this affidavit, take judgment against the plaintiff and his sureties for the sum stated in the affidavit, with interest thereon.” See also, in this connection, Mallary v. Moon, 130 Ga. 591 (61 S. E. 401); Block v. Tinsley, 95 Ga. 436 (22 S. E. 672); Thomas v. Price, 88 Ga. 533 (15 S. E. 11); Hays v. Jordan, 85 Ga. 741 (11 S. E. 833); Jaques v. Stewart, 81 Ga. 82 (6 S. E. 815). It is true that there was evidence introduced in behalf of the plaintiffs tending to show that the property in dispute sold for only $5573.06, but we do not deem this testimony sufficient to alter our ruling sustaining the action of the court in permitting defendant to take judgment for $10,000, the amount stated in the bail affidavit to be the value of the property, for, as above indicated, the defendant elected to take a judgment for the market value of the property at the date of the conversion, and the evidence as to what the crops sold for relates to the value of the. property after its conversion by the plaintiffs. Evidence of what crops brought when sold is wholly insufficient to prove what they were worth on a date prior to the sale, for it is 'a matter of common knowledge that the market value of crops is subject to fluctuation from day to day. The only evidence in the case, therefore, as to the value of the crops at the time of their conversion was that sworn to by the plaintiffs in their bail affidavit,- and the court did not err in entering judgment for $10,000, the amount stipulated in the affidavit as the value of the property.

It is contended that the general rule as above stated and upon which our affirmance of the judgment for $10,000 is based does not apply, and would work a grave injustice in this case, because the defendant had at most only a part interest in the crops in controversy; but as was- said by Judge Powell in the Kaufman case, supra, “the rule does apply, and no injustice is done. The plaintiff took the goods from the defendant’s possession without having the right to do so. When his lack of right was judicially established, it was obligatory on him, under his replevy bond, to put the property or its value in money back into the defendant’s hands. When, under the restitution, the defendant company takes money instead of the property, it will hold the money on terms like those on which it held the property. The defendant will hold the money not for its own ultimate benefit, but for its protection.” Therefore in the present ease the plaintiffs may take, such steps in law or equity as shall be necessary to give adequate protection to all parties concerned. The only real ultimate hardship, if any, on the plaintiffs is that they will have to pay the costs; and this hardship they imposed upon themselves by mistaking their remedy.

Judgment on the main bill of exceptions affirmed; cross-bill dismissed.

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


author: Smith, J. Stephens, J.,

text:
    11196.
    Odum v. Edgar Brothers Company.
    Decided April 8, 1920.
    Rehearing denied May 21, 1920.
    Action for damages; from Wilkinson superior court—Judge Park. December 8, 1919.
   Smith, J.

1. “ Except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.” Civil Code (1910) § 3129.

2. Although employed in different departments of fluty, employees are fellow-servants within the purview of the above code-section when they are subject to the general control and direction of a common master, and are engaged in labor for’ the furtherance of the general purpose of the business in which they have contracted to serve. Falla v. Pine Mountain Granite Co., 22 Ga. App. 651 (97 S. E. 114), and cit.

(а) Thus, one employed to couple and uncouple tram-cars is a fellow-servant of an engineer in charge of the operation of the engine pulling the cars, where both servants are working for the same master and engaged in furtherance of the same business, and therefore is not entitled to recover damages from the master for injuries shown by the undisputed evidence to have been attributable to the engineer’s negligence in attempting to make repairs on the engine, caused by defects occurring after the engine had been turned over to him in good condition by the master, and that the master did not know, or have an opportunity to know, of the defects.

(б) The uneontradieted and undisputed evidence further showed that in attempting to make the repairs the engineer was acting without the scope of his duties, and therefore could not have been acting as the alter ego of the master.

3. Also, “ a servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself ” (Civil Code, § 3131); and since the uncontradicted proof shows that the plaintiff was injured while attempting to make a coupling when the train was running at a high and dangerously rapid rate of speed, he assumed the hazards of his undertaking and was not entitled to recover.

4. Under the rulings made in the preceding notes a verdict for the defendant was demanded, and the court did not err in so directing.

Judgment affirmed.

Jenkins, P. J., concurs. Stephens, J., dissents.

Application for certiorari was denied by the Supreme Court.

Allen & Pottle,Sibley & Sibley, for plaintiff.

George H. Carswell, for defendant.

Stephens, J.,

dissenting. On motion for rehearing it appears to me that the decision first announced is wrong. The evidence shows that the plaintiff was an employee of the defendant, and, while in the discharge of his duty in attempting to make a coupling, was injured by the backing of the defendant’s engine, which failed to stop in time to prevent the injury, on account of the inability of the engineer to shut off the- throttle, which “hung” by reason of the fact that certain bolts had been screwed too tight; that the engineer himself had a short while before the accident caused this condition by tightening the bolts for the purpose of preventing steam from escaping and scalding his arm while operating the throttle.

Where one is employed by a master as an engineer to run and operate an engine, it is reasonably inferable that it is his duty to perform all duties necessary and incident to the running and operating of the engine. The Century Dictionary defines “engineer” as: “An engine-driver; one who manages an engine; a person who has charge of an engine and its connected machinery.” If it is necessary to adjust bolts for the purpose of preventing the escape of steam which scalds the engineer’s arm while he operates the throttle, and thereby interferes with the running and operating of the engine, the engineer presumably has authority to make such adjustments. The duty to render machinery safe being one of the absolute and nondelegable duties of the master, whoever performs such duty with authority, either express or implied, although in all other respects employed and acting as a fellow-servant, acts in the performance of such nondelegable duty as the alter ego of the master. If the master knew or ought to have known of the unsafe condition of the engine after the bolts had been adjusted, and he failed to exercise due care to render the engine safe, he would be liable to another servant for injuries legally resulting from such unsafe condition of the engine, provided the injured servant did not know and had not equal means with the master of knowing of such defects and could not by the exercise of due care have known thereof. Where the injured servant was not an inspector, and his duty did hot require him to go upon the engine, he cannot be said to have had equal means with the master of knowing of the defective condition of the engine. He presumably did not know of its condition and by the exercise of due care could not have discovered it.

It was for the jury to determine whether the plaintiff was injured by his own or by the defendant’s negligence.

It was error to direct a verdict for the defendant.


text:
    11207.
    Georgia Railway & Power Company v. Shaw et al.

   Smith, J.

1. In a suit by the husband, and children against a street-railway company to recover for the death of a wife and mother, alleged to have been caused by a collision between one of the defendant’s streetcars and a jitncy-bus in which the deceased was riding, it was error to charge the jury that “ it is the duty of a motorman of a street-railway car, in propelling a car through the public streets, to notice the presence of pedestrians, and at all times be watchful to see that the way is clear, and where he has reason to apprehend danger, or should in the exercise of ordinary care be cognizant of danger, he should regulate the speed of his car so that it could be quickly stopped should the occasion require.” Such a charge was tantamount to instructing the jury that the facts recited were sufficient to render the defendant negligent (West End & Atlanta Street-Railway Co. v. Mozely, 79 Ga. 463 (1) (4 S. E. 324) ; Richmond & Danville R. Co. v. Howard, 79 Ga. 44, 53 (3 S. E. 426) ) ; for to charge that it was the duty of a person to do a specific thing was equivalent to an instruction that the omission to do that thing would be negligence. Macon Ry. & Light Co. v. Barnes, 121 Ga. 443, 446 (49 S. E. 282). Whether or not the defendant was negligent was a question for determination by the jury. See also Alabama &c. Railroad Co. v. Brown, 138 Ga. 328 (3) (75 S. E. 330); Macon &c. Ry. Co. v. Holmes, 103 Ga. 655 (3) (30 S. E. 563).

(a) The fact that the charge complained of was in the exact language used by the Supreme Court in Perry v. Macon Con. St. R. Co., 101 Ga. 410 (29 S. E. 304), is insufficient to alter our ruling, since there are many things said by the Supreme Court and this court that are sound law, but which nevertheless would be grossly improper instructions to a jury. See Savannah Ry. Co. v. Evans, 115 Ga. 318 (41 S. E. 631, 90 Am. St. R. 116); Merritt v. State, 107 Ga. 679, 680 (34 S. E. 361); Florida C. & P. R. Co. v. Lucas, 110 Ga. 127, 128 (35 S. E. 283); Hudson v. Hudson, 90 Ga. 582 (3) (16 S. E. 349).

2. The court did not err in refusing to permit counsel for the defendant to elicit from a witness an answer to the question, “You had a lawsuit about this too, didn’t you?” While it is generally competent to show by proper evidence the present interest of a witness in a case on trial, or its results, the inquiry as to interest must relate to the time when the testimony is given, and should be confined to the case on trial. Even if this evidence was competent, its rejection would not work a new trial (Van Winkle v. Wilkins, 81 Ga. 94 (9)) (7 S. E. 644, 12 Am. St. R. 299), since it was not of such a character as would probably have materially effected the finding of the jury. Daughtry v. Savannah & Statesboro Ry. Co., 1 Ga. App. 393 (2) (58 S. E. 230).

Decided April 8, 1920.

Action for damages; from Fulton superior court — Judge Bell. December 6, 1919.

Colquitt & Conyers, for plaintiff in error.

Hines, Hardwick & Jordan, George F. Gober, contra.

3. In estimating the value of domestic service rendered by a wife and mother, the jury are authorized to take into consideration what may be the value of many services incapable of exact proof, but measured in the light of their own observation and experience. '“There need be no direct or express evidence of the value of the wife’s services, either by the day, week, month, or any other period of time, or of any aggregate sum.” Metropolitan St. R. Co. v. Johnson, 91 Ga. 466, 471, 472 (18 S. E. 816). See also Standard Oil Co. v. Reagan, 15 Ga. App. 600 (3) (84 S. E. 69), and numerous cases there cited. Applying these rules, the verdict will not be set aside as being excessive, since there is no direct proof of prejudice or bias, nor does the amount thereof appear to be so exorbitant, flagrantly outrageous, and extravagant as to shock the moral sense. Realty Bond & Mortgage Co. v. Harley, 19 Ga. App. 187, 188 (91 S. E. 254).

4. The other exceptions all refer to excerpts from the charge of the court. These instructions of which complaint is made state merely the provisions of several ordinances which were made a part of the plaintiff’s petition and introduced as evidence. No ruling by demurrer was invoked as to the paragraphs of the petition asserting liability for violation of the ordinances therein set forth; nor was any objection urged to their admission in evidence on the trial. In order to present for consideration of this court the question as to the liability of the defendant under the charter and ordinances of the City of Atlanta, the point should have been raised in the lower court by demurrer or other appropriate and timely exception.

.5. The verdict for the plaintiff not having been demanded, a new trial is required by the error pointed out in the first paragraph above.

Judgment reversed.

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


text:
    11260.
    Newsome v. Smith et al.

    Decided April 8, 1920.
    Complaint; from city court of Statesboro — Judge Proctor. December 9, 1919.

      W. G. Neville, Anderson & Jones, for plaintiff.

      Fred T. Lanier, for defendants.
   Smith, J.

1. The record in this case discloses that the plea designated a plea in abatement is in reality a plea of res judicata, and the judgment of the lower court sustaining the plea is a final disposition of the case. The motion to dismiss the writ of error on the ground that it was premature is therefore without merit, and must be denied.

2. A plea by the defendant that the matters set up by the plaintiff in the present suit could have been pleaded as a set-off to a former suit, brought by the defendant against the plaintiff, on an account, in the same court, is not, without more, a good plea of res judicata. While the plaintiff in the present suit could have pleaded a set-off, he was not, under the law, compelled to do so, unless the claim or claims upon which the present suit was brought and the matters adjudicated in the other suit grew out of the same transaction. See Johnson v. Reeves, 112 Ga. 690, 691, (37 S. E. 980) ; Ray v. Fleetwood, 106 Ga. 253, 257 (32 S. E. 156).

3. There was no evidence to authorize the judgment sustaining the plea of res judicata.

Judgment reversed.

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


text:
    11263.
    Roddenberry et al. v. Fouche.
   Smith, J.

1. Although a mortgage is not sufficient to sustain an action of trover (Civil Code, § 3256; Horton v. Murden, 117 Ga. 72, 43 S. E. 786), the instrument which is the basis of this trover suit was in all respects in the form of a bill of sale reserving title to the personalty sold, and cannot properly be treated as a mortgage merely because it contains the following clause: “ As soon as the said first party shall pay or cause to be paid all of the aforesaid notes as they become due, then and in that event title to the said Eord automobile car shall become hers, and the said party of the second part agrees that upon the payment as aforesaid of said notes to make to the said party of the first part a warranty title to the said Ford car.” See Pitts v. Maier, 115 Ga. 281 (1) (41 S. E. 570), reviewing and overruling Frost v. Allen. 57 Ga. 326, and Pirkle v. Mortgage Co., 99 Ga. 524 (28 S. E. 34).

2. Where a deed or bill of sale described tlie property sold as “ one Eord automobile that the said party of the first part has this day purehased of the said party of the second part,” and an action of trover was brought by the seller to recover the automobile from two parties who had purchased it from the original buyer, it was not error, upon the trial of the case, to overrule an objection by the defendants to the admission in evidence of this instrument on the ground that the property sued for was not sufficiently described therein. The case of Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 333), is controlling on this question. See also Farkas v. Duncan, 94 Ga. 27 (20 S. E. 267); Nichols v. Hampton, 46 Ga. 253; Beaty v. Sears, 132 Ga. 516 (1) (64 S. E. 321). The case of Reynolds v. Tifton Guano Co., 20 Ga. App. 49 (92 S. E. 389), is not in conflict with anything here ruled, for in that case the description properly held to be legally insufficient was clearly too general, vague, indefinite and uncertain to claim the aid of extrinsic parol evidence.

Decided April 8, 1920.

Trover; from city court of Brunswick — Judge Krauss. December 20, 1919.

Conyers & Wilcox, for plaintiffs in error.

Robert W. Durden, Frank H. Harris, contra.

3. The charge of the court was free from reversible error, there was evidence to authorize the verdict returned, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    11274.
    DIXIE COTTON COMPANY v. JACKSON.
    Decided April 8, 1920.
    1. The question whether the contract for the sale of cotton to the plaintiff was joint and several, or only a joint contract, on the part of the defendant and the third party signing it with him, was one of fact, for determination by the judge, who by agreement of the parties tried the ease without a jury; and he having found that it was a joint contract, and there being evidence to sustain this finding, he did not err in holding that a receipt of the plaintiff, releasing the co-obligor of the defendant, operated to release the defendant also.
    2. There was sufficient evidence of the agency of the person who signed the receipt in the name of the - plaintiff, and the court did not err in admitting the receipt in evidence.
    Action on contract; from Dodge superior court — Judge Mathews presiding. December 20, 1919.
    Application for certiorari was denied by the Supreme Court.

      Larsen & Crockett, for plaintiff.

      Charles W. Griffin, D. D. Smith, Mallet & Bell, for defendant.
   Smith, J.

The Dixie Cotton Company sued C. M. Jackson for breach of contract in failing to deliver 50 bales of cotton, which it alleged were bought from him by the company. The petition alleged that on July 31, 1918, the contract for the purchase of the cotton was entered into between the parties. Paragraph 4 of the petition alleged: “The said contract covers the sale of 100 bales, and is also signed by J. B. Hinson Company as seller, but this said company has complied with its part of the contract by the delivery of 50 bales under the terms of the contract.” The petitioner further alleged that it had been damaged in the sum of $2,437.50, the difference in the market price at the time and place of delivery and the contract price, and prayed for judgment for that amount. The contract was attached to the petition, and in the body thereof it appears to have been a contract between the plaintiff and C. M. Jackson, in' which Jackson sold and agreed to deliver to the plaintiff the 100 bales of cotton within a certain time and at a certain price, the grade of the cotton being described in the contract. The contract was signed C. M. Jackson, with the word “Seller” before the signature. Below was signed: “J. B. Hinson Co., J. B. Hinson, Sec’y,” “Dixie Cotton Company, Izzie Bashinski, President,” with the word “Buyer” prefixed to the signature of the latter company. The contract was witnessed by B. W. Wynne. The plaintiff amended his petition by striking paragraph 4 and inserting in lieu thereof the following: “The said contract stipulates for the sale and purchase of 100 bales of cotton, but 50 bales have been delivered under the contract according to its terms, and the contract has been breached only as to the failure by the said C. M. Jackson to deliver 50 bales for the breach of which petitioner sued.” The defendant filed an answer admitting he was a resident of said county and denying all the other paragraphs of the plaintiff’s petition. t The defendant amended his answer by alleging (1) that the plaintiff, before the bringing of this suit, “released this defendant’s joint obligor, J. B. Hinson Co., a corporation, from said joint obligation, declared on, in the following manner, to wit: By recovery [receiving?] from said J. B. Hinson Company 50 bales of cotton, on said contract and entering on said contract the following: ‘ Chester Ga., 9/9-1918, received on the within contract fifty (50) bales of cotton in full of J. B. Hinson Co. part of contract, Dixie Cotton Co., by R. W. Wynne;” and (2) “that this defendant never consented to nor satisfied [ratified?] said release of said J. B. Hinson Company;” and (3) “that by reason of the facts set out in this amendment the defendant has been released and discharged.”

By agreement of counsel the case was tried before the judge of the superior court without a jury. On the trial the defendant admitted a prima facie case for. the plaintiff. He admitted the execution of the contract sued on, the breach by a failure to deliver the cotton to the plaintiff, and the value of the cotton at the time specified for delivery. The plaintiff then introduced the original contract. The defendant introduced the duplicate of the original contract with the receipt on the back of the same, the receipt being in the following language: “Chester, Ga.', 9/9-1918, Received on the within contract 50 bales of cotton in full, J. B. Hinson Co. part of contract. (Signed) Dixie Cotton Co., by R. W. Wynne.” The defendant also introduced the fourth paragraph of the plaintiff’s original petition. The defendant testified, in his own behalf, that he knew R. W. Wynne, and had sold him his cotton as the agent of the Dixie Cotton Company for a number of years, and had been paid by him for the cotton, as the agent of the Dixie Cotton Company; that he told Wynne that he and J. B. Hinson wanted a contract with the Dixie Cotton Company to sell them 100 bales of cotton; that in a few days Wynne brought this contract to him, and that he and Hinson signed it in Hinson’s office in the presence of Wynne; that Wynne turned one copy over to Hinson and the defendant and retained one himself; and that the entry of receipt on the duplicate contract held by the defendant and Hinson was in Wynne’s handwriting, and the signature following" the Dixie Cotton Company was Wynne’s. After hearing the evidence and argument the court rendered a judgment in favor of the defendant.

1. It was for the judge, who heard the case without a jury, to determine as to whether the contract was a joint and several contract Or a joint contract, and he having found that it was a joint contract, and there being evidence to sustain this finding, there was no error in his holding that the receipt releasing J. B. Hinson Company operated to release C. M. Jackson.

2. The court did not err in admitting, over objection, the receipt on the back of the duplicate contract, accepting “50 bales of cotton in full, J. B. Hinson Co. part of contract. (Signed) Dixie Cotton Co., by E. W. Wynne.” The objection urged was that it was not shown that Wynne was authorized to give such a receipt for the Dixie Cotton Company, and that it was not binding on the company. There was ample evidence showing the agency of R.'W. Wynne for the Dixie Cotton Company, and this evidence was properly admitted.

Judgment affirmed.

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


text:
    11282.
    Tennessee, Alabama & Georgia Railroad Co. v. Timmons.
   Smith, J.

1. The petition as amended set out a cause of action, and the court did not err in overruling the general demurrer thereto.

2. “ When it appears from a bill of exceptions that a motion for a new trial was amended, and the amendment to the motion is specified in the bill of exceptions as one of the papers material to a proper consideration of the errors assigned, it is too late, after the certification of the bill of exceptions, to raise the objection that the grounds of the amendment to the motion for a new trial were not formally approved by the trial judge. Acts 1811, p. 150, sec. 3.” Carraway v. State, 16 Ga. App. 161 (1) (84 S. E. 615). See also Chicago & Northwestern Ry. v. Elliott, 16 Ga. App. 388 (1)(85 S. E. 615); Farmers Mutual Fire Association v. Steed, 20 Ga. App. 329, 330 (93 S. E. 75).

3. In the trial of a suit for a continuing nuisance consisting of damage to crops and land by reason of the overflow and backing up of waters, alleged to have been caused by an embankment of a railroad company, it being contended by the plaintiff that the company, after the building of the embankment and drain or trestle thereunder, permitted and caused cross-ties, trash, and rubbish to be thrown into tlie creek running under the embankment, thereby damming up the flow of the water and causing the same to back up and overflow the lands of the plaintiff, any negligence on the part of the company in the construction of the roadway or embankment, or any acts of negligence on the part of the company more than four years prior to the bringing of the suit, would be barred by the statute of limitations, and the plaintiff, if he recovered at all, would be entitled to recover only damages caused by the negli.gence of the company within the period of four years prior to the bringing of the suit. It was therefore error for the court, upon the trial of the case, to charge the jury in the following language: “I charge you, as a matter of law, the plaintiff, the owner of this property,' is entitled to have the water flow from his property in its natural way, and if the defendant railroad company, in constructing their railroad or in keeping and maintaining their railroad, did within the four-year period obstruct this flow, of the water in either of the ways charged by the plaintiff in his petition, to such an extent that it overflowed and damaged his land in the way he has alleged, then in that event he would be entitled to recover just such damages as you think from the evidence has accrued to him by reason of the defendant’s negligence.” This charge, connecting up the construction with the other acts of negligence alleged to have been committed within four years prior to the bringing of the suit, tended to cause the jury to take into consideration any defective construction of the drain or trestle as a part of the negligence of the defendant company for which a recovery could be had.

Decided April 8, 1920.

Action for damages; from Walker superior court — Judge Wright. December 23, 1919.

The suit was filed on July 8, 1918. The original petition in substance alleged: The plaintiff is now and since January 18, 1897, has been the owner and in uninterrupted possession of described land situated west of and adjoining the right of way of the defendant railroad company where some twenty-seven years ago the defendant constructed on the right of way a considerable embankment, upon which it built its track and has run its cars since the year 1891. There was at the time and there is now running in a southeastern direction through the plaintiff’s land a stream which strikes this embankment, and to permit the passage of the stream the defendant put a small tile under its track and through the embankment. “Said tile was not large enough to permit and receive the water of said stream during and immediately after hard or excessive rainfalls, causing the collection of much mud and earth at or near the tile, or which now is a bridge, and a great lake of water to stand upon plaintiff’s lands, frequently submerging some five acres of his said lands for hours, injuring and damaging his crops more or less for the past several years, and as a direct result of said negligence said lands are now useless for -agricultural purposes.” The defendant has negligently thrown or left unmoved considerable wreckage, decayed cross-ties, and timbers cut and thrown or allowed to fall into the stream upon its right of way, and negligently fails or refuses to drain or keep cleaned out the channel of said stream, which largely contributes to the damage here complained of. Said injuries and damage are the direct result of the defendant’s negligence in not exercising due care and diligence in the construction of its roadway through or near said land, “ and for the additional reason that the said defendant . . has persisted in its negligence for a long period of years, in fact about thirty years, in failing to keep the channel cleared and cleaned;” all to the damage of the plaintiff in the sum of $1,000, for which he sues. By amendment it was alleged: that there was a freshet or Heavy rain about July 20, 1914, which caused the flow of much water from the stream mentioned above, which when swollen is unable to pass under and beyond the defendant’s railroad, the bridge constructed being too near the earth, and the passage being too narrow to permit the passage of water during the excessive rains, as it was at this date, and there was a backflow of .much water, submerging about four acres of plaintiff’s corn there growing and damaging said coin crop at least to the extent of 225 bushels of the value of $225. Damages accruing in the years 1915, 1916, 1917, and 1918 were also set forth by amendment.

Judgment reversed.

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

Shattuck & Shattuck, for plaintiff in error.

Henry & Jackson, D. F. Pope, contra.


text:
    11287.
    RIDLEY v. RIDLEY.
    1, 2. In an action of trover by a wife to recover from her husband a diamond ring and an automobile, where she contended that by threats and duress he forced her to deliver the ring to his representative, and where the verdict was in his favor as to the ring, although in her favor as to the automobile, he was not entitled to a new trial because of the admission of testimony tending to support her contention that she was coerced into delivering up the ring, or because her counsel, in his opening statement to the jury, was allowed to state what he expected to show in support of that contention.
    1 (a). No timely special demurrer attacked the allegation of the petition as to the defendant’s ill treatment of the plaintiff; and the refusal of an oral motion to strike the allegation was not error.
    3. Oral testimony as to the making of a tax return was properly excluded, the return itself being higher evidence.
    4. Refusal to allow questions to the plaintiff as to how often she had been married and had sued for divorce, and as to other litigation, was not error, these matters being irrelevant.
    5. It is not ground for a new trial that an automobile-tag license which the plaintiff obtained in her own name for the automobile in question, and her application for the license, were admitted in evidence, the plaintiff testifying that the defendant, after giving the automobile to her as a wedding present, went with her to have the license issued, and told her to have it taken out in her name. This evidence tended to support her claim of title.
    Decided April 8, 1920.
    6. Exception to the refusal to grant a nonsuit will not be considered as a ground of a motion for a new trial where the motion complains also of a verdict for the plaintiff as not supported by evidence.
    7. The admission of evidence not apparently prejudicial to the complaining party does not require a new trial.
    8. Error in allowing a witness to answer a certain question is not shown by a ground of the motion for a new trial which omits the answer.
    9. Eailure to give to the jury certain instructions not requested in writing will not require a new trial where all the substantial' issues in the case and the law applicable were fully, fairly, and correctly submitted by the charge of the court.
    10. Where there is evidence to support a verdict approved by the trial judge, his judgment overruling a motion for a new trial will not be reversed by this court because of evidence in conflict with it.
    Trover; from Heard superior court — Judge Terrell. December 29, 1919.

      Frank S. Loftin, Smith & Smith, for plaintiff in error.

      M. V. Mooty, contra.
   Smith, J.

Mrs. Louise Gartrell Eidley brought an action of trover in the superior court of Heard county against her husband, William D. Eidley. The petition was in the usual form' and sought to recover a diamond ring and a Buick automobile, the value of which was set out in the petition and the amendment thereto. The plaintiff elected to take a money verdict. The evidence developed that the contentions of the plaintiff were: that she and the defendant were married in Atlanta about April 15, 1917; that a day or two before the marriage the defendant gave her the ring and the automobile in question; that after the marriage she went with him to his home in Heard county, and lived with him for a period of something like a year; that he became dissatisfied and demanded that she return the ring to him, and that he either carried or sent the automobile away to some other place. She further contended, that, because of her failure to return the ring, he kept’her under guard in the house and would not permit her to leave; that finally her father and mother came to the place and an agreement was made that she should go home with her father and mother,, the defendant sending a man along with them, she agreeing to turn over the ring to this man. She contended that she was the owner of the ring and of the automobile, claiming that her husband had given them to her, and that she took possession of them, but that the defendant by threats and duress forced her to turn the ring over to his representative, and refused to deliver to her the ring or the automobile. The defendant admitted that he had married the plaintiff, but denied that he had given either the ring or the automobile to her, or that she had any title to either. He insisted that upon her persuasion he lent the ring to her to be worn by her temporarily, and as to the automobile he contended that he bought it for himself, to be used by both of them. He denied that the plaintiff had any title to either the ring or the automobile, and he denied that he had used any force or duress, or that he had driven her from his home. A verdict was rendered awarding the ring with costs to the defendant, and finding the value of the automobile in favor of the plaintiff, and judgment was entered thereon. The defendant filed a motion for a new trial upon the general grounds, and also an amendment to the original motion, assigning error in the admission of certain testimony and the exclusion of other evidence, and upon the failure of the court to charge certain principles which the defendant insisted were material to the issues in the case, and should have been charged without any written request therefor.

1. Hnder the peculiar facts in this case, the court did not err, as contended in the motion for a new trial, in allowing counsel for the plaintiff, in the opening statement of the case to the jury, and over objection of counsel for the defendant, to state that the plaintiff expected to show that she was driven from the home of the defendant, and guarded by two hired men and held for ransom for the ring, and that she was mistreated and allowed to go nowhere. The evidence of the plaintiff tended to support this statement of counsel, and the judge did not abuse his discretion in' permitting counsel to state this contention. Nor was it error on the part of the court to deny an oral motion of counsel for the defendant to strike that part of the petition alleging that the plaintiff was driven from home by the defendant, no special demurrer having been filed attacking this allegation in the petition.

2. The court did not err, as contended in the 2d, 3d, 4th and 12th grounds of the amendment to the motion for a new trial, in permitting the evidence set out therein to go to the jury, over the objection of the defendant’s counsel. This evidence tended to support the contention of the plaintiff that she was coerced into delivering up the ring in question, and that the defendant refused to permit her to leave his house until she agreed to give up the ring.

3. The court did not err, as contended, in excluding oral testimony that after the separation and after the suit was brought, the plaintiff made a return of the property in litigation to the tax-receiver. The tax return was not produced, and that was the highest evidence.

4. The court did not err in rejecting the testimony set out in grounds 6, 7, 8, and 9 of the motion for a new trial, in which exception is taken to the refusal to allow questions to the plaintiff as to how often she had been married and divorced, and as to other litigation. The evidence sought to be elicited was not relevant to the issues in this case.

5. The court did not err in admitting in evidence the automobile-tag license and the copy of the application therefor. This evidence tended to support the claim of title by the plaintiff, as the license was in her name, and she testified that the defendant told her to take out the license in her name.

6. An exception based upon the refusal to award a 'nonsuit will not be considered, where subsequently the case is submitted to the jury, and, a verdict being rendered against the defendant, a motion for a new trial is made which pre'sents the complaint that the verdict is contrary to the evidence and without evidence to support it. See Dudley v. Isler, 21 Ga. App. 615 (94 S. E. 827), and citations.

7. There is no substantial merit in ground 13 of the motion for a new trial. The evidence admitted over the objection of defendant’s counsel, even if not legally admissible, is not' shown to have been prejudicial. The ground is incomplete and not understandable without reference to other parts of the record.

8. There is no merit in ground 14 of the motion for a new trial, as the answer of the witness nowhere appears. This ground gives only the question, and fails to set out the evidence objected to.

9. It was not error, in the absence of an appropriate written request, to fail to charge the jury in the terms set out in grounds 15 and 16 of the motion for a new trial. The charge of the court, taken as a whole, fully, accurately, and fairly submitted to the jury all the substantial issues of the parties and the law applicable thereto.

10. Though the evidence was conflicting, there is evidence to support the verdict; and, the trial judge having approved the same, this court will not disturb his judgment overruling the motion for a new trial.

Judgment affirmed.

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


text:
    11293.
    Terry Shipbuilding Corporation v. DuBose.
   Smith, J.

The defendant, being engaged in building ships, employed the plaintiff to operate a drill motor and to countersink holes in the side of a ship, and in order to perform this' work the plaintiff stood on a scaffold, some 35 or 40 feet high, and while so engaged one of the unnailed and loose planks of the scaffold upon which he was standing “gave way, slipped, and turned,” causing him to be precipitated to the ground; and for the injuries occasioned by the fall he brought this suit against the master, alleging that the latter was negligent in failing to provide for him a reasonably safe place upon which to work. Held-. A petition which amplifies but alleges in substance only the above facts does not set out a cause of action, and is subject to general demurrer, since no reason is alleged “why the master should have taken the unusual' protection of nailing down the planks, or why the servant should have had any reason to believe that the planks were nailed down. Planks upon temporary scaffolds of this kind are not usually nailed down, the natural inference arising in the mind of any man of ordinary intelligence and experience [and the plaintiff was such a man] upon approaching such a platform is that the planks are unsecured; and this petition suggests no reason why the plaintiff conceived any other notion. It would be far fetched indeed to say that the master ought to have foreseen that any servant would presume that the planks were nailed down.” Riverside Mills v. Brooks, 6 Ga. App. 67, 69 (64 S. E. 282). See also Daniel v. Forsyth, 106 Ga. 568 (32 S. E. 621); Ludd v. Wilkins, 118 Ga. 525 (45 S. E. 429) ; Bolden v. Central Ry. Co., 130 Ga. 455 (60 S. E. 1047); Quinn v. Allen, 1 Ga. App. 807 (57 S. E. 957).

Decided April 8, 1920.

Action for damages; from Chatham superior court — Judge Meldrim. January 15, 1920.

David S. Atkinson, for plaintiff in error.

E. S. Fuller, contra.

Judgment reversed.

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


text:
    11299.
    American Realty Company v. Bramlett.
    Decided April 8, 1920.
    Action on contract; from Fulton superior court — Judge Bell. December 3, 1919.
    Application for certiorari was denied by the Supreme Court.
    On September 12, 1918, Mary Hobson Bramlett brought suit against the American Eealty Company, alleging, substantially, that on September 15, 1915, she agreed to purchase a described lot from the defendant for the sum of $600,— $420 cash, and the remainder payable 36 months from the date of the agreement; that she paid the $420, and gave notes for the remainder of the purchase-price, receiving a bond for title (a" copy of which was attached to the petition) in which the defendant made the following warranties and guaranties: (1) “that the street or streets on which said lot faces will be graded and have trees planted;” and (2) “that either cement or tile sidewalks will be laid in front of said lot, all without cost to purchaser.” She alleged that there was a breach of the contract in the part of the defendant; that approximately three years had elapsed since the making of the agreement; that the street on which the lot faces was not properly graded, and no cement or tile sidewalk was laid in front of the lot; and she prayed for a judgment for'the $420 paid by her to the defendant, with interest thereon. The defendant in its answer admitted substantially the alleged contract, but denied that it had breached the contract, and denied that the plaintiff was entitled to recover the amount sued for. There was undisputed evidence that the contract was made and the money paid as alleged, that no sidewalk had been laid in front of the lot, that nearly three years had elapsed since the making of the agreement, and that before the filing of the suit the plaintiff demanded of the defendant that it carry out the agreement to lay the sidewalk. There was evidence for the defendant as to the grading of the streets and planting of trees, and to the effect that the failure to lay the sidewalk in front of this property was due to war and labor conditions; that when the war came on the defendant did not have any demand for this class of property; that building material was so high and labor so scarce that it would not be economical and would be almost impossible to do the work; that it had laid sidewalks within a block of this lot, but quit and had not laid any since. The court, at the conclusion of the evidence, directed a verdict for the plaintiff, for the amount sued for, and the defendant excepted.
   Smith, J.

1. The court did not err in ruling out the answer of the witness Martin to the question, “ Would it have been economical to have laid sidewalks even if you could have gotten material,” the witness answering that it was not, and explaining that “ Camp Gordon soldiers were parading out there, and they wanted this property to parade on.” Clearly this evidence was not relevant to the issues in the case.

2. Generally what is a “reasonable time” is a question to be passed upon by the jury, in the light of the facts of the particular case, under proper instructions from the court (Baldwin Fertilizer Co. v. Cope, 110 Ga. 325, 35 S. E. 316) ; but where the facts are undisputed and different inferences cannot be drawn from the same facts, the question oi- what is a reasonable time is one of law for determination by the court. 2. Elliott on Contracts, § 5050, p. 836. See also Pattillo v. Alexander, 96 Ga. 60, 63 (22 S. E. 646, 29 L. R. A. 616); Fleming v. Foran, 12 Ga. 594 (2).

(a) In the instant case it was undisputed that the agreement by the defendant company to lay the sidewalks was entered into approximately three years before the filing of the suit by the plaintiff for a breach of that agreement, and the court therefore did not err in holding, as a matter of law, .that the time claimed by the defendant was unreasonable, and in directing a verdict for the plaintiff, the evidence not disclosing any reasonable excuse for the delay and failure to comply with the contract.

3. Not being convinced that this case was brought to this court for delay only, the request of the defendant in error that ten per cent, damages be assessed against the plaintiff in error is refused.

Judgment affirmed.

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

Evins & Moore, for plaintiff in error.

Anderson & Slate, contra.


text:
    11301.
    GROSSMAN v. CITY OF ATLANTA.
    Decided April 8, 1920.
    The order sustaining the demurrer to the petition and allowing a stated time in which to amend it, to which no exception was taken, fixed the law of the case; and the plaintiff’s amendment having failed to meet the objections raised by the demurrer, the court did not err in dismissing the petition, on oral motion Of the defendant when the case came up for trial.
    Action for damages; from Fulton superior court — Judge Ellis. December 1, 1919.

      J. L. Anderson, for plaintiff.

      J. L. Mayson, J. M. Wood, for defendant.
   Smith, J.

The court overruled the general demurrer to the petition, but sustained all the grounds of the special demurrer, and allowed the plaintiff 20 days within which to amend his petition to meet these special grounds. The order provided that upon failure to meet the grounds of the special demurrer the ease should stand dismissed. To this ruling no exception was taken, nor is error assigned thereon in the bill of exceptions. Therefore the ruling that the petition was subject to the special demurrer_ became the law of the case. The plaintiff, within the 20 days allowed, filed a purported amendment to his petition. This amendment was in all substantial respects merely a reiteration of the various allegations contained in the original petition, and though it did set out somewhat more at length the contentions of the plaintiff, these contentions were substantially the same, and the amendment clearly failed to meet the objections raised by the special grounds of the demurrer. No further amendment was tendered within the 20 days allowed in the court’s order. IJnder these facts, when the case came up for trial before a jury, the court did not err in dismissing it upon oral motion made by the defendant. Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241); Baker v. City of Atlanta, 22 Ga. App. 483 (96 S. E. 332).

Judgment affirmed.

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