text:
    8673.
    Supreme Circle of Benevolence v. Smith.
    Decided January 29, 1918.
    Action upon life insurance policy; from Randolph superior court —Judge Worrill. January 10, 1917.

      George H. Perry, Pope & Bennet, for plaintiff in error.

      J. PI. McDonald, contra.
   Luke, J.

1. The fact that Supreme Circle of Benevolence is a fraternal organization chartered by Dougherty superior court, having its principal office and place of business in Dougherty county, does not render the superior court of Randolph county without jurisdiction to entertain a suit upon a “death certificate” issued by Supreme Circle of'Benevolence to a member of a subordinate lodge created by its authority and controlled by by-laws provided by it, located in Randolph county, in which county the subordinate lodge is in existence at the time the suit is brought and service effected upon its officers in charge of the office and place of business of the súbordinate lodge. Supreme Circle of Benevolence v. Beall, 18 Ga. App. 425 (89 S. E. 630); Heralds of Liberty v. Bowen, 8 Ga. App. 325 (68 S. E. 1008).

(a) Such jurisdiction is not ousted by the following by-laws of the organization: “The bureau of endowment shall in no event be responsible to the individual members for neglect or failure of their lodges to send in to the Supreme Secretary the names or money of its members under the requirements of this act, nor shall the bureau of endowment be responsible for the actions of the officers of the local lodges; but it is expressly understood that said officers are agents of the local lodges, and not of the bureau of endowment.” “There is no magic of words to change the real into the unreal; a device of words can not be imposed upon a court in place of an actuality of facts.”

2. Upon the evidence the court did not err in finding against the traverse of the return of service and against the plea to the jurisdiction.

3¡ The evidence did not authorize the jury to find that the plaintiff had paid his dues as required by the “death certificate” upon which suit was brought. For this reason the court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, C. J., and Jenhins, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8518.
    District Grand Lodge Number 18 v. Wright et al.

   Luke, J.

1. This case, upon the question of service and jurisdiction, is substantially controlled by the decision in Supreme Circle of Benevolence v. Smith, ante, 678 (94 S. E. 1034); and the assignments of error not so controlled are without merit.

Decided January 29, 1918.

Action upon life insurance policy; from Bibb superior court— Judge Mathews. February 2, 1917.

Q. P. Gpree, for plaintiff in error. G. S. Garrett, contra.

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

Judgment affirmed.

Wade, G. J., and Jenhins, J., eoneur.


text:
    8517.
    District Grand Lodge Number 18 v. Hall et al.

    Decided January 30, 1918.
    Description and counsel as in case next preceding.
   Luke, J.

1. This case, upon the question of service and jurisdiction, is substantially controlled by the decision in the case of Supreme Circle of Benevolence v. Smith, ante, 678 (94 S. E. 1034) ; and the assignments of error not so controlled are without merit.

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

Judgment affirmed.

Wale, O. J., and Jenhins, J., concur.


text:
    8681.
    SMITH v. JACKSONVILLE OIL MILL COMPANY.
    1. The declaration contained the usual endorsements on its cover. The' plaintiff sought to treat them as a part of the pleading. The defendant contended that they were not even a part of the official record. Seld, that both parties were wrong.
    (a) Pleadings are the written allegations of what is affirmed on the one side, or denied on the other; disclosing to the court or the jury trying the cause the matter in dispute between the parties. 6 Words and Phrases, 5410.
    (b) The record in the trial court embraces not only all pleading legally of file in the case, but also all the official entries thereon or in connection therewith, bearing in any way upon the issues decided or to be determined. White v. TJewton Mfg. Go., 38 Ga. 587 (3).
    (c) The endorsements on the cover of the declaration in this case consisted of the docket number of the attachment case, the term of the court to which the attachment was returnable, the name of the court, the names of the parties, the words “Declaration in attachment,” and the name of the plaintiff’s attorney, together with the clerk’s entry of filing. Presumptively these endorsements were placed there by the clerk, or by his authority, at the direction of the plaintiff or her attor- ■ ney. Under the foregoing definitions such endorsements can not be , treated as a part of the plaintiff’s-pleading; but they should be treated as a part of the record, and may be resorted to as such whenever any part of that portion of the record becomes pertinent to the issue between the parties. The fact that the attorney who drew the declaration may have prepared the form for the cover does not affect the application of the principle involved.
    2. A declaration in attachment may be filed either at or before the first term of the court to which the attachment is returnable. The word “at,” as used in- the Civil Code (1910), § 5102, is equivalent to the words “not later than.”
    3. A declaration in attachment, like any other petition, must show the jurisdiction of the court. If the plaintiff seeks a judgment in rem, the declaration must also show upon what.property or fund the judgment is to operate. Mehring v. Charles, 58 Ga. 378; Kolb v. Cheney, 63 Ga. 688; Wilson v. Strieker, 66 Ga. 575 (2).
    4. A plaintiff in attachment has the right to amend his declaration as in other eases at common law; and a defective prayer or a failure to show the jurisdiction of the court are amendable defects. Civil Code (1910), §§ 5110, 5691; Kolb v. Cheney, supra; Guokenheimer v. Day, 74 Ga. 1 (2b).
    5. The declaration in this case contained enough to amend by, especially when considered in connection with the entire record, and the court erred in disallowing the plaintiff’s proffered amendment and in dismissing the case.
    Decided January 29, 1918.
    Attachment; from Bartow superior court — Judge Tarver. January 25, 1917.

      A. H. Davis, Paul F. AMn, for plaintiff.

      Watt Ft. Milner, for defendant.
   Luke, J.

Mrs. Martilla Smith sued out an attachment against the Jacksonville Oil Mill Company, on the ground that the defendant is a non-resident of this State. It is averred in the affidavit for attachment that the defendant is indebted to the plaintiff “in the sum of five hundred dollars, on a claim for damages for the homicide of her husband.” The attachment was sued out on October 10, 1910, and was returnable to the January, 1911, term of Bartow superior court. On October 13, 1910,- it was duly levied, returned, and docketed; and the clerk’s entry thereon was made to show the docket number of the case, along with the other matter mentioned in the first of the foregoing headnotes. On the next day the plaintiff filed a petition against the defendant, to recover $500 for the homicide of her husband, alleging therein that the defendant is a non-resident of this State. Her petition is entitled in the attachment cause by a statement of the ease at the beginning thereof, wherein the petition is designated by her as her “declaration in attachment.” It contains no other reference to the attachment, and concludes with the usual prayer for process and without any other prayer, and no process is annexed thereto. On the cover of this petition the clerk placed the same docket number as upon the attachment, labeled it “Declaration in attachment,” and placed it with the other papers in the attachment case. The defendant, appearing specially and under protest, moved to dismiss the “attachment proceedings,” because “no declaration in attachment was filed at the first term of the court after the levy of said attachment.” To meet this motion the plaintiff offered an amendment to her declaration, wherein she .fully and specifically set forth the levy of the attachment and added a prayer that the attached property be sold to satisfy such judgment as she might obtain. The plaintiff also offered to show by parol that the clerk’s acts respecting the declaration were in accordance with the direction of the plaintiff’s attorney. The court refused to hear the evidence, disallowed the proffered amendment, and sustained the motion to dismiss the entire proceeding. Each of these rulings is assigned as error.

The headnotes fully cover the case and need no elaboration.

Judgment reversed.

Wade, O. J., and Jenkins, J., concur.


text:
    8706.
    Adams et al. v. Jackson.
    Decided January 29, 1918.
    Certiorari; from Eulton superior court — Judge Ellis. ■ March 9, 1917.

      M. C. Few, for plaintiffs. B. B. Blackburn, for defendant.
   Luke, J.

Mrs. Jackson executed a warranty deed conveying to Friedman a certain tract of land, and subsequently executed a warranty deed conveying another tract to Atkinson and Adams. Later Adams bought, the interest of Atkinson. Adams and Friedman jointly sued Mrs. Jackson in a justice’s court, alleging breach of warranty, each depending upon the separate warranties in their respective deeds. The jury returned a verdict in favor of Mrs. Jackson, and a petition for certiorari was sanctioned. Upon the hearing, on the answer of the trial justice, the judge of the superior court overruled the certiorari and denied a new trial. Held, that this ruling was not error.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


author: Wade, C. J.

text:
    8736.
    PITTSBURG PLATE GLASS COMPANY v. MARIL.
    Where, in a former suit between the same parties, relating to the same subject-matter, a judgment was rendered against the defendant, and its motion for a new trial was overruled, and the judgment overruling the motion' for a new trial was affirmed by this court by the dismissal of the bill of exceptions assigning error thereon, and the defendant subsequently brought a petition to review and set aside the original judgment, the petition was properly dismissed oñ general demurrer, when it appeared'that the grounds for review were known, or could by reasonable diligence have been discovered, in time to incorporate them in the motion for a new trial made in the former case.
    Decided January 29, 1918.
    Motion to set aside judgment; from city court of Savannah— Judge Freemen. March 16, 1917.
    On November 22, 1911, J. Maril brought suit on a certain rent contract against Adella C. Boswell, as principal, and B. S. Jones, as. surety, the suit being made returnable to the February term,' .1912, of the city court of Savannah. On the same date, but after the filing of the suit, Maril caused a summons of garnishment to issue from a justice’s court, returnable to the February term, 1912, of the city court, and directed to the Pittsburg Plate Glass Company, requiring that company to answer what money, property, or effects it had on hand belonging to the defendants Adella C. Boswell and Bl S. Jones. The summons of garnishment was duly served on the Pittsburg Plate Glass Company on November 22, 1911. At the February term, 1912, of the city court the defendants Boswell and Jones duly filed pleas in abatement, which the ' court sustained, and Maril thereupon sued out a writ of' error to the Court of Appeals of Georgia, and this court on December 21, 1912, rendered a decision of reversal. On February 24, 1913, ■-the defendant Jones filed an application in writing for a stay of the proceedings in the ease, upon the ground that on February 15, 1913, he was duly adjudged a bankrupt. A judgment was ’ taken against the defendant Boswell on March 14, 1913, and on May 14, 1913, the defendant Jones was discharged as a bankrupt. On April 24, 1916, the case of Maril against Jones, and the case against the Pittsburg Plate Glass Company, as garnishee, came on for trial before the judge, of the city court, sitting without the. intervention of a jury, and a judgment was rendered against Jones for $340, besides interest and costs, with a perpetual stay of execution against him, and on that judgment the court ordered that a judgment be taken by the plaintiff against the Pitts-burg Plate Glass Company, as garnishee, for the full amount of the judgment against Jones, on the ground that the garnishee had not filed an answer at the February term, 1912, of the said court, or at any time thereafter to the summons of garnishment served on it, and had therefore been in default as such garnishee since that term. On April 27, 1916, after the rendition of these judgments, and within the time allowed by law, the defendant Jones and the garnishee filed a joint and several motion for a new trial, which was overruled; they excepted to the overruling of the motion and carried the case to the Court of Appeals, and on February 1, 1917, this court rendered a judgment dismissing the writ of error. See Jones v. Maril, 19 Ga. App. 216 (91 S. E. 445). After the remittitur from the Court of Appeals had been made the judgment of the lower court the Pittsburg Plate Glass Company filed a motion to set aside the judgment against it, and Maril filed a demurrer to this motion, the court sustained the demurrer and dismissed the motion, and it is to the dismissal of this motion that the plaintiff in error now excepts.

      Payne & Jones,'Shelby My rick, for. plaintiff in error.

      David S. Atkinson, Morris D. Bernstein, contra.
   Wade, C. J.

(After'stating the foregoing facts.) In the case .of Leathers v. Leathers, 138 Ga. 740 (76 S. E. 44), our Supreme Court said: “Where in a former suit between the same parties, and relating to the same subject-matter, a verdict and judgment were rendered against the defendant, whose motion for á new trial was overruled, and such judgment was affirmed by the Supreme Court, a petition subsequently brought by the defendant, to review and set aside the verdict and judgment, was properly dismissed on general demurrer, where it appeared that’the grounds for review were such as were known, or could by reasonable diligence have been discovered in time to incorporate them in the motion for new trial made in the former case.’-’ In the case of Frank v. State, 142 Ga. 741 (83 S. E. 645, L. R. A. 1915D, 817), division a of the second headnote is as follows: “Where a motion for a new trial is made by the defendant, with knowledge of the fact that the verdict was rendered in his absence, and such motion does not contain that fact as a ground for new trial, though it is recited therein, it is too late, after the motion for new trial has been denied and the judgment has been affirmed by this court, to make a motion to set aside the verdict on that ground.” In discussing this ruling the court said: “When, therefore, the defendant by motion for a new trial invoked from the court a ruling upon alleged errors that had been committed upon the trial, . . he will not be heard to say that the verdict was a nullity . , . after the motion for a new trial has been denied and the judgment denying it affirmed by this court. . . He had the right to invoke the ruling on that question on the motion for new trial, and, failing to do so, he can not now be heard to say that he will treat • the verdict as a nullity and move to have it set aside as such. It would be a reproach upon the court’s administration of the law to allow a defendant to make a motion for new trial, with a knowledge of his absence when the verdict against him was rendered, and have the grounds of the motion adjudicated by the court, and-then move to set the verdict, aside as void. . . It would be trifling with the court to allow one who had been convicted of crime, and who had made a motion for new trial ... to have the motion heard hy both the trial court and the Supreme Court, and, after a denial by both courts of the motion, to now. come in and by way of a motion to set aside the verdict include matters which were or ought to have been included in the motion for a new trial.” The United States Supreme Court (237 U. S. 309,'35 Sup. Ct. 582, 59 L. ed. 969), in discussing this feature of the decision in the Frank ease, said: “His contention that his lawful rights were infringed because he was not permitted to be present when the jury rendered its verdict, has been set aside, because it was waived by his failure to raise the objection in due season when fully cognizant of the facts” (italics ours). In the case of Lowther v. State, 18 Ga. App. 461 (89 S. E. 536), this court 'held: “The plaintiff in error can not, by motion in arrest of judgment, raise for the first time the point that the sitting of the court at which he was tried and convicted was not during a legal term of the court; it appearing that he made a motion for new trial. Lowther v. State, 16 Ga. App. 289 (85 S. E. 208): If it was not a legal term of the court, he could and ought to have raised the point in the motion for a new trial. He is precluded as to all points that he could have made at the time of the hearing and overruling of his motion for new trial” (italics ours).

It is manifest from these decisions that if the Pittsburg Plate Glass Company knew, or by the exercise of reasonable diligence could have known, all the facts or points raised in the motion to set aside when it made its motion for new trial, the demurrer objecting to the motion to set aside upon this ground was well taken, and the court did not err in dismissing the motion. This court will take judicial cognizance of its own records (Frank v. State, supra); and, upon an inspection of the motion for a new trial in the record brought to this court on the former writ of error in this case (Jones v. Maril, supra), we find the points therein raised to be practically the same as are now raised in the motion to set aside the judgment; or, to say the least of it, the questions raised' at this time could by, the exercise of reasonable diligence have been raised in the motion for new trial. In fact counsel for the plaintiff in error admits this to be true, but contends that, since the motion for a new trial filed jointly and severally by Jones and the Pittsburg Plate Glass Company was held by this court to be a nullity, it should not be now precluded from raising these questions. To assent to this contention would be to permit one to take advantage of his own laches. The plaintiff in error made a motion for a new trial, and by the exercise of due diligence could certainly have raised the identical questions which it now.seeks to urge. The objection to the motion to set aside, raised by this ground of the demurrer, being, as above suggested, amply sufficient to warrant the court’s dismissal of the motion to set aside, any discussion of the numerous other objections raised by the demurrer is unnecessary.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
    8750.
    Boston Oil and Guano Company v. Williams.
   Jenkins, J.

1. The admission of the parol testimony of the plaintiff, complained of in the first- assignment of error, was not such harmful error' as to require the grant of a new trial, since the defendant admitted in its answer the quantity, quality, and price of the cottonseed meal sold by it to the plaintiff.

Decided January 29, 1918.

Complaint; from city court of Thomasville^-Judge W. H. Hammond. March 24, 1917.

Titus, Delete & Hoplcins, for plaintiff in error.

Branch & Snow, Merrill & Grantham, contra.

2. “Cottonseed meal is a ‘commercial fertilizer’ and ‘fertilizer material’ within the meaning of the act ’of the General Assembly, approved August 22, 1911, (Acts 1911, pp. 172, 173; Park’s Ann. Code, §§ 1778 (a), 1778 (b), 1778 (c), 1778 (d), and 1778 (e)).” Williams v. Boston Oil & Guano Co., 19 Ga. App. 190 (91 S. E. 222).

3. Since cottonseed meal is a commercial fertilizer and fertilizer material, the provisions of section 1773 of the Civil Code (1910), that “A copy of the official analysis of any fertilizer or chemical, under seal of the department of agriculture, shall be admissible as evidence in any of the courts of this State, on the trial of any issue involving the merits of said fertilizer,” are applicable to a suit involving the merits of cottonseed meal as well as to a suit involving the merits of any other fertilizer material or commercial fertilizer. Arlington Oil & Guano Co. v. Swann, 13 Ga. App. 562 (5), 568 (79 S. E. 476).

4. The court did not err in admitting in evidence the certified copy of the analysis of the cottonseed meal, since any analysis which is of record in the agricultural department is prima facie official, and the evidence in this case in fact showed that it was made from samples furnished by an inspector of fertilizers. Jones v. Cordele Guano Co., 94 Ga. 14, 20 (20 S. E. 265).

5. The question whether or not the plaintiff is estopped from maintaining his suit for the penalty prescribed by statute, and for the recovery of the shortage in commercial value, by reason of his having used the cottonseed meal with full knowledge of its deficiency after the defendant had offered to take it back or pay the difference in commercial value, can not now be considered, since this question was not raised in the pleadings. Rowe v. Sam Weichselbaum Co., 3 Ga. App. 504, 506 (60 S. E. 275); Madison Supply &c. Co. v. Richardson, 8 Ga. App. 344 (3) (69 S. E. 45).

6. The other assignments of error are without merit. The evidence demanded a verdict for the plaintiff, and the court did not err in so directing.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


text:
    8762.
    Simmons v. Lanford.
   Jenkins, J.

1. A ruling of the court in disallowing an amendment to the pleading can not be made a ground of a motion for a new trial. Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. R. 190); Turner v. Barber, 131 Ga. 444 (62 S. E. 587); Clark v. Havard, 133 Ga. 160 (65 S. E. 380); Young v. Germania Savings Sank, 134 Ga. 602 (68 S. E. 321); Lynah v. Citizens & Southern Bank, 138 Ga. 583 (75 S. E. 652); Boyee v. Day, 3 Ga. App. 275 (59 S. E. 930); McFarland v. Lee, 10 Ga. App. 698 (63 S. E. 1091).

Decided January 29, 1918.

Action for damages,' from Gwinnett superior court — Judge Hardeman presiding. February 19, 1917.

M. D.'Irwin, George F. Gober, W. I. Heyward, for plaintiff in error. O. A. Nix, contra.

2: While a charge on a material contention not supported by any evidence is reversible error (Birmingham Railroad Co. v. Walker, 101 Ga. 183 (3), 28 S. E. 534), in the instant case there was testimony sufficient for the jury to find that a permanent injury had been inflicted (Wilkins v. Georgia Casualty Co., 19 Ga. App. 162 (3), 91 S. E. 224), by reason of which a decreased earning capacity resulted.

3. The refusal to give the requested charge set forth in the third ground of the amendment to the motion for a new trial was not error, it being covered, so far as pertinent and legal, by instructions given.

4. The evidence authorized the verdict, and for none of the reasons assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Wade,' C. J.,- and Luke, J., concur.


text:
    8802.
    Chronicle Building Company v. New Hampshire Fire Insurance Company.
   Jenkins, J.

A policy of insurance provided that “the intention of this insurance is to make good the loss of rents caused by fire or lightning actually sustained by the assured on occupied or rented portions of the premises which have become untenantable, for and during such time as may be necessary to restore the premises to the same tenantable condition as before the fire.” Held:

1. Irrespective of any purpose and intention which may have existed on the part of both the insurer’s agent and the insured that the policy should cover the gross' rental, under the principles of law governing the contract the obligation can be enforced as one of indemnification only, and the liability of the insurer could extend no further than to indemnify against such actual', loss as insured might sustain by reason of' the happening of the contingency covered by the contract of insurance. Williamsburg Ins. Co. v. Gwinn, 88 Ga. 65 (13 S. E. 837); Fireman’s Fund Ins. Co. v. Pekor, 106 Ga. 1 (31 S. E. 779); Exchange Bank of Macon v. Loh, 104 Ga. 446 (31 S. E. 459, 44 L. R. A. 372); Quillian v. Johnson, 122 Ga. 49 (49 S. E. 801); Georgia Cooperative Fire Asso. v. Lanier, 1 Ga. App. 186 (57 S. E. 910); Norwich &c. Society v. Cambridge Grocery Co., 16 Ga. App. 432 (85 S. E. 622). Under such a policy the liability of the insurer for such actual loss is to be measured by what would have been the gross rental during the period covered by the policy, less the expenses of operation devolving upon the insured. Rice v. Caudle, 71 Ca. 605; McMillan v. Quincey, 137 Ca. 63 (2), 64 (72 S. E. 506); Betts Co. v. Mims, 14 Ga.App. 786 (82 S. E. 474).

Decided January 29,

— Rehearing denied February 12, 1918.

Action upon fire insurance policy; from Richmond superior court —Judge H. C. Hammond. March 30, 1917.

Barrett & Hull, for plaintiff.

King & Spalding, for defendant.

2. Since, under the terms of the policy, the indemnification is expressly limited to such actual loss as might be sustained during the necessary period of reconstruction, its language can not be construed to embrace losses which might accrue by reason of necessary delay attendant upon the retenanting of the building subsequently to such period and after its actual reconstruction.

Judgment affirmed.

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


author: Wade, 0. J.

text:
    8829.
    DAWSON COTTON OIL COMPANY v. KENAN, McKAY & SPEIR.
    1. The suit as amended remained an action ex contractu, notwithstanding the addition of allegations relating to the manner in which the contract which was its basis was breached, and characterizing the breach as wrongful or in bad faith.
    2. Notwithstanding the estimate which the contract contained as to the probable output of cotton linters to be produced by the defendant during a particular season, the contract by its terms covered the entire output of such linters by the mill for that season, when operated at normal capacity and in good faith, and the delivery of the estimated number of bales by the defendant would not serve to discharge the defendant from liability on account of its unexplained failure to operate the mill and produce the usual and normal output for the period covered by the contract.
    3. The petition as amended set out a cause of action, and the court did not err in overruling the demurrers.
    Decided January 29, 1918.
    Action for breach of contract; from city court of Dawson — Judge Edwards. April 17, 1917.

      Yeomans & Willcinson, for plaintiff in error.

      Payne & Jones, W. II. Gurr, contra.
   Wade, 0. J.

This was an action of complaint by Kenan, McKay & Speir against the Dawson Oil Company, growing out of the following contract:

“No. 7002. Atlanta, Ga., July 12, 1915.
Dawson Cotton Oil Company,
, Dawson, Georgia.

I have this day sold for your account to Messrs. Kenan, McKay & Speir, Atlanta, Georgia:

Quantity: Season’s output — approximately five hundred (500)
bales linters.
Quality: Cotton linters, clean mill run.
Price: Four and 00/100 cents (4c) per pound net sellers,
f. o. b. cars Dawson, Georgia.
Shipment: As produced, beginning August, 1915.
Terms: Sight draft with B/L attached.
Bules: Cottonseed Crushers Association rules to govern. Arbitration, if any, at Atlanta, Georgia, buyers paying brokerage.
Accepted: Dawson Cotton Oil Company.
G. G. Riley, Manager.
M. O. King, Broker.”

The petition shows: that on July 12, 1915, the plaintiffs entered into the foregoing contract, and by virtue thereof they purchased from the defendant its season’s output, approximately 500 bales of clean mill run linters, at the purchase-price of four cents per pound, to be shipped as produced, commencing August, 1915; that the contract sued on was made subject to the rules of the Cottonseed Crushers Association of Georgia, rule 15, section 3 thereof, which was as follows: “When a sale is made of season’s or balance of season’s output of linters, the seller must ship and the buyer must receive all the linters the seller makes to the end of the season. When estimated number of bales is stated in contract or in confirmation of sale or purchase, the buyer must ship, or may ship, whether demanded or not, 15% in excess of estimated quantity, if he makes a sufficient number of bales to enable him to do so, and buyer must receive and pay for same at contract price. Should seller not make the quantity estimated, he shall deliver the number of bales made, and shipment of 85% of the estimated quantity shall be deemed a fulfillment of the contract. The limitation of each season to be the 31st of July, so that the season’s output of linters shall include everything made up-to July 31st.” Plaintiffs also set out in their petition section 5 of said rule 15, as follows: “Weights and packages. A bale of linters for contract purposes is 500 pounds gross weight, with a maximum or minimum allowance of 5 per cent. No claim shall be made unless loss in weight exceeds one per cent. Bales weighing less than 350 pounds may be rejected by buyer.” Petitioners further allege that under said contract, and by virtue of the rules of the Cotton Association of Georgia (which are made a part of said contract), and more especially by virtue of the two sections (3 and 5) of rule 15, quoted above, defendant became obligated to deliver to them in carload lots “during the season 1915-1916, • beginning August, 1915, as said linters were produced, 425 bales of the gross weight of 475 pounds per bale, of clean mill-run linters, at the contract price of 4 cents per pound;” but that the defendant delivered only 186 bales of linters under said contract, leaving a balance of 239 bales, of the gross weight of 475 pounds per bale yet to be delivered under the contract. It is alleged that the breach of the contract was occasioned as follows: that on or about April 29, 1916, defendant refused to make any more linters, and declined absolutely to deliver the remaining bales due under the contract; that the plaintiffs have made demand on the defendant for delivery of the balance of bales due under the contract, and that defendant has failed and refused to deliver the same; that in order to secure the number of bales of linters due by the terms of the contract, the plaintiffs were compelled to purchase in the open market on April 29, 1916, 239 bales at 7% cents per pound, thereby causing a resulting loss of $4,256.59 to the plaintiffs, through the failure of the defendant to perform its contract.

The plaintiffs amended their petition in several respects, but the only amendments which we deem necessary for the decision of the case are as follows: “Defendant became obligated to deliver the output of its mill for the season 1915-1916, approximately 500 bales, amounting to at least 425 bales,” etc. “Had defendant’s mill been operated in good' faith during said season of 1915-1916, as it was the duty of the defendant, under the said contract, to have done, instead of discontinuing the operation of said mill during said season, and before the expiration thereof, as defendant wrongfully did, as will be hereinafter more fully shown, defendant could and would and should have produced, as the season’s output thereof, and delivered to petitioner, as defendant should have done, had it not breached its contract, as aforesaid, at least 425 bales, of the gross weight of 475 pounds each of clean mill-run linters, of the contract price of 4 cents per pound.”

The defendant demurred both generally and specially to the petition as finally amended, the demurrers were overruled, and the defendant excepted.

According to the brief of counsel for the plaintiff in error, the sole question in the ease “ultimately resolves itself into the construction of a contract, a determination of the character of the action, whether ex contractu or ex delicto.”

1. The contention of the plaintiff in error is that the petition as amended should have been dismissed upon demurrer, for the reason that the amendment added a new cause of action,' in that it was thereby attempting to supplement an ex contractu action by the addition of an ex delicto count; or that the suit as finally amended is duplicitous, being both ex contractu and ex delicto. The ground upon which this contention rests is that the plaintiffs effectually converted an ex contractu action into an action ex delicto when, by amendment, they alleged that the “defendant wrongfully and in bad faith refused to make any more linters, shutting down its mill,” etc. By reference to the petition, which is substantially set out in the foregoing statement of facts, it is obvious that the action is expressly bottomed upon a breach of contract, and the mere fact that the plaintiff by way of' amendment characterized the manner in which the defendant breached said contract as “wrongful,” or “in bad faith,” would not be sufficient to change the- form of the action. . This is not an action in tort, but an action to recover damages for a breach of contract. The action was not maintainable without pleading and proving the contract, and where it is manifest from a proper construction of the contract that the gist or pith of the action is the breach thereof, either by misfeasance or nonfeasance, it is in substance, regardless of what may be the form of the pleadings, an action ex contractu. See City of Grand Forks v. Steel, 121 Minn. 296 (141 N. W. 181, 45 L. R. A. (N. S.) 205, Ann. Cas. 1914C, 720); Whitaker v. Collins, 34 Minn. 299 (25 N. W. 632, 57 Am. R. 55).

Waiving, for the sake of the argument, what is said above, and proceeding upon the idea, as contended by plaintiff in error, that in view of the unequivocal allegations contained in the petition, setting np a contract as the basis, and the breach thereof as the gravamen of the action, the petition became ambiguous (as to whether it was proceeding ex delicto or ex contractu) by reason of the amendment denominating the defendant’s breach of duty as “wrongful” or “in bad faith,” it should nevertheless be construed as proceeding ex contractu (rather than ex delicto), if under that form the suit could be upheld and a recovery had thereunder. See Benjamin-Ozburn Co. v. Morrow Transfer &c. Co., 13 Ga. App. 636 (79 S. E. 753); Wright v. Southern Ry. Co., 7 Ca. App. 545 (67 S. E. 272); Payton v. Gulf Line Ry. Co., 4 Ga. App. 762 (62 S. E. 469); Southern Express Co. v. Pope, 5 Ga. App. 689 (63 S. E. 809). It is true that when the allegations of a petition are ambiguous as to whether the suit arises ex delicto or ex contractu, courts usually favor a construction making the action one ex delicto. The reason for this is readily seen, as generally such a construction is more favorable to the plaintiff, and a recovery thereunder can be more easily had, as the measure of damages in tort actions is usually broader than in actions upon contracts. This rule of construction is not in conflict with the well-settled practice, that as,, to allegations of fact in pleadings, the courts construe them, when they are ambiguous or equivocal, most strongly against the pleader. The true rule is aptly stated in the case of Southern Express Co. v. Pope, supra, as follows: “Where, however, .a petition is filed and the facts alleged are such as would be proper or adequate under either of two forms of action, the courts,. in endeavoring to ascertain the plaintiff’s intention, will’ prima facie presume that he intended to serve his best interest and to declare in that form of action which would allow him-the highest recovery permissible under that state of facts; or if to construe the pleadings as setting forth the transaction under one form of action would make it such that it might be upheld in the court in which it was filed, when otherwise it would not be, or would authorize a recovery when otherwise it would not, the courts will adopt the construction which will uphold the action and not defeat it.” See also, in this connection, Jenkins v. S. A. L. Ry., 3 Ga. App. 381 (59 S. E. 1120).

In view of the foregoing, we hold that the lower court did not err in .treating the action as one arising ex contractu, and overruling the demurrer seeking to dismiss the petition on the ground that it set out an action ex delicto.

2. Another contention insisted upon by the plaintiff in error is that even if the court should decide that the petition presents a cause of action ex contractu, it was nevertheless subject to demurrer for the reason that under the terms of the contract sued upon, the defendant was only required to deliver to the plaintiffs its actual output, regardless of whether the mill was operated in good faith, at its normal capacity, during the season named in the contract. This question finally resolves itself into a determination of whether the allegation in the plaintiff’s petition that the mill was closed down in lad faith before the expiration of the season named in the contract saved the petition from dismissal on demurrer, since it was clearly alleged that the defendant actually delivered the entire output of its mill up to the time it discontinued operation. Of course, had the defendant discontinued the operation of its mill for some providential cause, or for any cause or causes not in anywise attributable to it, a delivery on the part of the mill of its output up to the time it ceased to operate would be all that the law would require. However, the contention that the defendant is not liable under its contract merely because it delivered its entire output up to the time it closed down is without merit, since the petition distinctly and specifically alleges that the mill was discontinued “wrongfully” and “in bad faith” before the season named in the contract had expired, and therefore with the deliberate purpose of breaking the contract. In the case of Loeb v. Winnsboro Cotton Oil Co. (Tex. Civ. App.), 93 S. W. 515, where a contract for the sale of cotton linters stipulated that the seller confirmed the sale to the buyer of the “season’s output of linters , . . estimated at 200 to 250” bales (a contract very similar to the one under review), it was held that “the contract was for the sale of the output [italics ours], regardless of the number of bales, especially in view of the evidence that the buyer was buying linters generally, and wanted all he could get, and the buyer was required to tahe the output, consisting of 66 bales in excess of the maximum estimate” (italics ours). It will be observed that the question determined in that case was whether the contract bound the buyer to take the full amount of the season’s output, or whether he was only bound to take 250 bales, the maximum estimate; it being held that “the season’s output” was the subject-matter of the contract, and therefore that the estimate of 200 or 250 bales would not suffice to render the buyer only liable for the maximum estimate of 250. The rule, applicable to cases of this character is well stated by Justice Bradley in Brawley v. United States, 96 U. S. 171 (24 L. ed. 622), as follows: “Where a contract is made to sell or furnish certain goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may be manufactured by the vendor in a certain establishment, or that may be shipped by his agent or correspondent in certain vessels, and the quantity is named with the qualification of ‘about’ or ‘more or less,’ or words of like import, the contract applied to the specific lot; and the naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party malcing it” (italics ours). It was said in the case of Inman v. Dudley, 146 Fed. 449 (76 C. C. A. 659), “This was an agreement to sell and deliver the entire cut of 1903, whatever it should be. . . Good faith was all that was required from the parties in making the estimate, or in the future operation of the mill.” See also, in this connection, Rib River Lumber Co. v. Ogilive, 113 Wis. 482 (89 N. W. 483). In Marx v. American Malting Co., 169 Fed. 582 (95 C. C. A. 80), it was held, that “contracts for the supply of the material to be used in a certain business for a certain time limited, or for the purchase of the entire output of a certain plant or manufactory, for a certain time or season, are valid; this specification of the quantity contemplated by the parties is held to be sufficiently certain; that the certainty can be ascertained from the means to be supplied by the future exercise of the business in good faith and in the normal manner of such business” (italics ours). In Kellog v. Norman, 74 N. T. 596, the court, in ruling upon an action brought to recover damages for the non-performance of' a contract for the sale and purchase of a quantity of oil cake, rendered the following memorandum decision: “The material portions of the contract are as follows: ‘Said first parties [plaintiffs] contract to sell to said second party [defendant] about 2,000 tons of good merchantable oil cake, of their manufacture, from domestic seed, packed in good well-sewed gunny bags, and to deliver the same in good shipping order, free, alongside ships in New York, as follows : About 350 tons per month, from September, 1875, to February, 1876, both inclusive, . . . being all the oil cake made by said parties at their f mill at Amsterdam, from domestic seed, during the period named, excepting that said parties may, at their option, reserve for their local meal trade a quantity not exceeding fifty tons per month.’ Defendant received and paid for, at the contract price, nearly 2,053 tons. Plaintiffs did not avail themselves of the limits of their option to retain fifty tons per month; they shipped to defendant about 1351/2 tons manufactured in February, which defendant refused to receive under the contract. Plaintiffs thereupon, upon notice, sold the same, and claimed to recover the difference between the contract price and the market price. Held, that under the contract defendant was bound to take and pay for all the oil cake made by plaintiffs for the time agreed upon, in the absence of proof that the power of their mill was unduly urged.”

From these decisions, and many others to the same effect, it is clear that the “output” of the defendant’s mill for the season named in the contract, regardless of the estimated number of bales to be delivered, was the subject-matter of the contract, and that the buyer was bound to take the “output” of the mill during the specified, season. This being true, certainly the seller was equally bound to operate his mill in good faith for the season or time specified in the contract, at its normal capacity, in order to make and deliver its “output” to the buyer. Otherwise we would have a unilateral contract, binding on one of the parties and without obligatory force on the other; that is to say, the Dawson Oil Company (the seller) would not be bound to operate its mill, and deliver to the plaintiffs the output of cotton linters for the period therein specified, whereas Kenan, McKay & Speir (the buyers) would nevertheless be obliged to accept the output of the mill for the season, even though in excess of the maximum estimate, if the seller so desired and elected to operate the mill for the full period. In the construction of a contract under which one of the parties is by law bound, the principle of mutuality, which is an essential element of every contract, compels a ruling that the other party shall also be bound by the terms of the 'contract, in order to make it a binding agreement. In the ease of McCaw Manufacturing Co. v. Felder, 115 Ga. 408 (41 S. E. 664), it was held that an offer to. supply a manufacturer with all of the boxes of a described character “which should be rendered necessary to pack the output of - the factory” of the promisee during a specified time, and an acceptance by the latter of such offer, constituted a contract which bound the promisor to furnish and the promisee to order, during the time specified, all the boxes necessary to pack the products manufactured by the latter’s company. This ruling has been approved in Swindell v. First National Bank, 121 Ga. 714 (49 S. E. 673); Floyd v. Kicklighter, 139 Ga. 133, 143 (76 S. E. 1011).

It is therefore apparent to us, from the allegations of the plaintiffs that the subject-matter of the contract sued upon was the “output” of cotton, linters for a specified time or season, and an unexplained failure on. the part of the defendant company to operate its mill until the expiration of the season amounted to a breach of the contract, notwithstanding it actually delivered the “output” up to the time it ceased operation; and consequently the lower court properly overruled the demurrer insisting upon a different construction of the contract and of the allegations of the petition. A cause of action was set forth, and the court did not err in overruling the demurrer upon all of the grounds thereof.

Judgment affirmed.

Jenkins and Luke, JJ„ concur.


text:
    8891.
    Central Trust Company v. Fargason.
    Decided January 29, 1918.
   Jenkins, J.

“If the holder [of a negotiable instrument] receives it after it is due, its non-payment at maturity is notice to him of dishonor, and he takes it subject to all the equities existing between the original parties thereto” (Civil Code of 1910, § 4287), arising out of and connected with the original contract (Civil Code of 1910, § 4344) ; but the fact that a note is overdue does not destroy its character of negotiability (see authorities cited in note 1 to ease of Young Men’s Christian Association Gymnasium v. Rockford National Bank (179 Ill. 599, 54 N. E. 297, 70 Am. St. R. 135), as reported in 46 L. E. A. 753) ; and equities between the maker and the payee, originating after a transfer to a third person, will not affect the rights of the holder, though the transfer be made after the note becomes due. Whittaker v. Kuhn, 52 Iowa 315 (3 N. W. 127; 7 Cyc. 820 (3); 8 C. J. 389, § 576; Civil Code (1910), § 3653; Guerry v. Perryman, 6 Ga. 119.

Judgment reversed.

Wade, O. J., and Luke, J., eoncttr.

. Complaint; from city court of Dawson — Judge Edwards. May 12, 1917.

Parles & Paries, Miller & Jones, for plaintiff.

Yeomans & Wilkinson, for defendant.


author: Bloodwoeth, J.

text:
    8606.
    DeLAIGLE et al. v. SHUPTRINE.
    The defendant’s plea as amended stated a substantial defense, and the court erred in sustaining an oral motion to strike it.
    Decided January 29, 1918.
    Complaint; from Toombs superior court — Judge Hardeman. February 27, 1917.

      W. T. Burkhalter, Hines & Jordan, for plaintiff in error.

      Giles & Sharpe, contra.
   Bloodwoeth, J.

Although the plea and the amendment thereto were loosely drawn, and were lacking in particularity and certainty, the plea as amended states a substantial defense and was sufficient to withstand the oral motion to strike it, made at the trial, on the ground that the amendment, “in connection with the original plea and answer of the defendant, sets up no defense to the note sued upon.” _ In’ support of this ruling we quote the following: “The answer filed by the defendant contained some averments constituting, in substance, at least a good partial defense against the plaintiff’s petition; and hence it should not have been stricken on general demurrer.” Higginbotham v. Conway, 113 Ga. 1155 (39 S. E. 550). “While a plea or answer which sets up no legal or equitable defense, being bad in substance, may be stricken on motion at the trial term, yet such a motion is not available where the plea states a substantial defense, but is merely deficient in certainty or particularity.” Bailey & Carney Buggy Co. v. Guthrie, 1 Ga. App. 350 (3) (58 S. E. 103). “It is error to strike, on oral motion or general demurrer, a. plea which, though defective in several paragraphs, contains one paragraph which properly presents a substantial issue.” Hicks v. Hamilton, 3 Ga. App. 112 (2) (59 S. E. 331). “The answer of a defendant will resist a general demurrer or motion to strike, no matter how defective in some respects the answer may be, if it contains any matter of substantial right which the defendant can properly present by plea.” Medlock v. Wood, 4 Ga. App. 368 (3) (61 S. E. 516). “A general demurrer, directed to a plea as a whole, is not sufficiently specific to require the court to strike the entire plea, if any part is good.” Epstein Co. v. Thomas, 15 Ga. App. 741 (3) (84 S. E. 201). See also Simmons Furniture &c. Co. v. Reynolds, 135 Ga. 595 (69 S. E. 913).

The court having erred in striking the plea, all subsequent proceedings were nugatory.

Judgment reversed.

Broyles, P. J., and Harwell, J., concur.


author: Bloodworth, J.

text:
    8866.
    KING v. LUCK ILLUSTRATING COMPANY.
    In charging the jury the court must give “the law of the case , to the extent of covering the substantial issues made by the evidence, whether requested or not, or attention be called to it or not; otherwise the verdict will be set aside.”
    Decided January 29, 1918.
    Complaint; from Dekalb superior court — Judge Smith. April 17, 1917.

      Brewster, Howell & Heyman, Mark Bolding, .for plaintiff in error.

      Napier, Wright & Wood, contra.
   Bloodworth, J.

Dr. J. Cheston King was erecting a sanitarium “on beautiful Peachtree road, ten miles from Atlanta,” and wished to advertise the opening thereof and to have some stationery in keeping with the magnificence of his plant. W. J. Luck, representing the Luck Illustrating Company of Cleveland, Ohio, came to Atlanta and contracted to furnish the necessary advertising matter in the form of a booklet, and the letter-heads, envelopes, etc., and to design and furnish plates for printing the same. The sanitarium was to be opened on August 15, 1914. The booklets and stationery (except 300 each of booklets, envelopes to match, letter-heads and envelopes to match them, which were sent by special request to Chicago in the early part of July) were shipped from Cleveland on July 31, 1914, and as to their arrival in Atlanta the defendant testified as follows: “I got notice on the 13th of August that this stationery, the folders, envelopes, and letterheads were in Atlanta. The opening was to be on the 15th of August. The folders did not come in time to be used for the purpose that I got them. As to what use I could make of these folders after they arrived in Atlanta — I could make no use whatever of them. I refused to accept the stationery. I refused to accept the booklets and letter-heads. I did not accept any part of the shipment. I wrote the Luck Illustrating Company at once that I refused to accept them, and why I refused. Before I received the notice from the Southern Bailway Company on August 13th that the shipment was in Atlanta, I had no notice from the Luck Illustrating Company that it had been shipped — none whatever. I received the bill for this work just about the time the shipment came into Atlanta.”

The defendant having refused to accept • the goods, suit was brought by the Luck Illustrating Company, the petition being in part as follows: “3. That during the spring of 1914, and extending over a period up to and including the month of July, 1914, your petitioner did, at the special instance and request' of the. said defendant herein, perform services in designing a booklet for the opening of defendant’s new sanitarium, located near the City of Atlanta, and also prepared and furnished certain letter-head designs and envelope designs, with drawings and plates, and further furnished the material and labor for printing ten thousand booklets, ten thousand envelopes for booklets, twenty thousand second sheets, and for printing twenty thousand envelopes to match letterheads, and also prepared one bird’s-eye wash drawing of said defendant’s sanitarium; all of which will more fully appear by reference to the statement of account hereto attached, showing the work done and the charges made for the respective items, said' statement of account being hereto attached, marked Exhibit ‘A’ and made a part hereof; to which reference is prayed as often as may be necessary. 4. That all of said services so rendered, work and material furnished, were and are of the reasonable value of the amount sued for herein, to wit, $1,745.32.” The defendant filed a plea denying liability. The trial resulted in a verdict for the plaintiff for the full amount sued for. The defendant moved for a new trial on numerous grounds. The motion was overruled, and he excepted.

In the decision in the ease of Gainesville & Northwestern Railroad Co. v. Calloway, 17 Ga. App, 702 (87 S. E. 1093), it was said: ‘'From an early date the Supreme Court has uniformly held that the law of the case must be given the jury to the extent of covering the substantial issues made by the evidence, whether requested or not, or attention be called to it or not; otherwise the verdict will be set aside/ Central Railroad v. Harris, 76 Ga. 511, citing Terry v. Buffington, 11 Ga. 337 (56 Am. D. 423); Amos v. Amos, 12 Ga. 100; Formby v. Pryor, 15 Ga. 258; White v. Dinkins, 19 Ga. 285; Fain v. Cornett, 25 Ga. 184; Glass v. Cook, 30 Ga. 133; Foster v. Jenkins, 30 Ga. 476; Collins v. Collins, 44 Ga. 128, 132; Van Arsdale v. Joiner, 44 Ga. 173; Schofield v. McNaught, 52 Ga. 69; Evans v. Arnold, 52 Ga. 170; Bryson v. Chisholm, 56 Ga. 596; Clark v. Hulsey, 54 Ga. 608; Wylly v. Gazan, 69 Ga. 506, 510. ” Under the principle announced above, we think a new trial should be granted in this case because the court failed to charge on two material and substantial issues made by the evidence and urged by the plaintiff in error: (a) The plaintiff in error insists that the contract provided for the delivery of the goods in Atlanta, and that this contention was not submitted to the jury and was not even referred to by the judge in the charge. Under the facts in this case we think this was error, at least so far - as it relates to the booklets delivered in Atlanta. As to the place of delivery the defendant testified: “The booklets were to be delivered to me by the Luck Illustrating Company in Atlanta, Georgia.” In addition to what is quoted in the statement of facts above, relative to the necessity of delivering the books promptly, the defendant testified as follows: “This advertising matter should have been sent out soon enough to announce the opening of my sanitarium on August 15,1914. . . As to what knowledge Mr. Luck had that I wanted these booklets in time to send out before the opening of my sanitarium on August 15th — the whole proposition was based upon the' opening of the sanitarium. The booklets stated in the reading matter that the sanitarium was to be opened on the 15th of August, and I impressed upon Mr. Luck the necessity of having these booklets here in time — I told him that the folders were to be sent throughout the’ entire South. That-is what I wanted the folder for. That was stated to him when we first took up the proposition to get them out, and then, when I was at his home in Cleveland, I impressed upon him the necessity of sending me the booklets so that I would have them to distribute before the opening, as I could not use them after the opening of the sanitarium. . . I discussed with Mr. Luck about the opening, that it was to be August 15th; the whole thing was based on that. . . I wrote this letter of June 8th, 1914, but it had been discussed and settled sometime before that. We had had conversations, and I put it in writing. When Mr. Luck was at my office, soliciting my business, he asked me when I would be ready to open the sanitarium, and I said I would be ready about August 15th.” If this evidence is true, the Luck Illustrating Company was put on ample notice that the booklets were to be sent “throughout the entire south” for the purpose of advertising the opening of the sanitarium prior to August 15th, the date named in the booklets for the opening. This being true and the court,, having given in charge the contention of the plaintiff that “delivery to a common carrier is in law delivery to the purchaser,” the contention of the defendant, supported by proof, that the booklets were to be delivered in Atlanta, should have been also submitted to the jury, with proper instructions. If the plaintiff contracted to deliver the booklets in Atlanta, it-should have adopted that method of delivery which would have put them in the hands of the defendant such a reasonable time before the 15th of August as would have enabled him to advertise the opening of the sanitarium “throughput the entire south.”

(1) The 31st ground of the motion for a new trial is as follows : “Because the court failed to charge the jury the law relating to the contention of the defendant that under the agreement entered into between the plaintiff and defendant th,e plaintiff agreed to furnish free of charge the necessary designs, drawings, and plates, for the purpose of carrying out said agreement, and defendant was not [to] be liable to the plaintiff in any amount for these articles. Defendant contends that said contention on his part was supported by evidence and became one of the issues in said case, and that it was the drity of the court to charge the jury that if they believed that the plaintiff agreed to furnish such designs, drawings, and plates free of charge, in no event could the plaintiff recover for said drawings, designs, and plates; that the court required the jury, if they found at all for the plaintiff, to find against the defendant whatever it was reasonably worth to furnish such designs, drawings, and plates. Defendant contends that in no event, if the jury believed his evidence in said cause on the subject, was the plaintiff entitled to recover for said designs, drawings, and plates, and the court should have so charged the jury, and the failure to charge the jury was error, prejudicial to the defendant.” We think the court erred in not charging as herein contended. The bill of particulars attached to the petition shows the following items relative to designs, plates, and drawings: “To designing booklet opening new sanitarium, ‘Afton Villa/ complete with color plates, $334.32; letter-head design; envelope design, drawings and plates, $50.75; one bird’s-eye wash drawing of Afton Villa Sanitarium, $200.00.” The defendant testified that Mr. Luck said to him, “I will get you up designs and let you see what kind of work I will give you, and the designs will not cost you one cent.” “The first time I saw any of these particular drawings that I have been asked about is since they have been on exhibition in the court-room here. This large drawing whs sent to me and returned by me. As to what knowledge I had of the wash drawings and of the cost of getting out the plates, and of the character of the work, as detailed here by Mr. Luck on the stand — none whatever. As to what was said hy Mr. Luck in reference to having a wash drawing made at a cost of $200, at the time he talked to me about this booklet-nothing was ever mentioned except that he was sending a beautiful bird’s-eye view that.I could frame.. That was all that was ever mentioned regarding any drawing. Not a word was mentioned about the price of it. No, he never intimated to me that he expected to charge me $200 for a drawing, not a word was mentioned.” There was also some evidence that it was not customary to charge for such preliminary work for the “designs, dummies, and sketches.” •

We find no other error in the trial of the case.

Judgment reversed.

Broyles, P. J., and Harwell, J., concur.


text:
    8312.
    Cherokee Brick Company v. Ocean Accident and Guarantee Corporation Limited.
   Jenkins, J.

This was a suit based on an insurance policy issued to ifr- ■ demnify against loss resulting from accidents to employees of the assured while engaged in work usual in the manufacture of brick, and in other operations also written into the policy as being incident thereto, including the digging of clay, in which policy, after the printed words, “No explosives are used except as follows,” appear the typewritten words “No exceptions.” The petition alleged, that the accident to the employee “occurred while he was in the act of discharging a gun charged with powder, known as a muzzle-loaded gun, into the firebox of one of the brick kilns at the plant of petitioner, for the purpose of blowing out the soot which had accumulated in said kiln; that the use of a gun charged with powder as aforesaid is a necessity incident to the conduct of petitioner’s business, and the firing of said gun charged with powder as aforesaid was necessary to remove the soot which occasionally accumulated in said kilns and interfered with the manufacture of said brick;” that “the use of powder as aforesaid or some explosive is a necessary and usual incident in the manufacture of brick in removing soot from kilns.” A general demurrer to the petition was sustained. Held: A contract of insurance should be so construed as to avoid forfeiture, if possible, and to carry out the true intention of the parties, according to the natural and reasonable meaning of the language used, viewed in the light of the attendant circumstances. Civil Code (1910), § 2475; Olay v. Phoenix Insurance Co., 97 Ga. 44 (25 S. E. 417). It should not be construed otherwise than as literally expressed, unless, when so viewed, its substantial purpose should so require. Johnson v. Clarke, 22 Ga. 541. The plaintiff should have been allowed to show that such explosive was so used only in such manner and to such extent as was a customary, usual, and necessary incident to the manufacturing of brick; and that such occasional and necessary use must therefore have been in contemplation of the parties at the time the warranty relating to the non-use of explosives was made and accepted. Upon such facts being satisfactorily shown, it will not be presumed that the insurer accepted the premium and issued the policy with full knowledge of its inevitable forfeiture by reason of the necessary breach of the warranty contained; but the issuance of the policy with such implied knowledge amounted to a waiver of the warranty to the extent indicated; and under such circumstances the true purpose and intent of the statement embodied must be construed as a warranty that explosives would not be employed in the mining and digging of clay, or otherwise in the conduct of the business, not known by the insurer as necessarily incident thereto. Maril v. Connecticut Fire Ins. Co., 95 Ga. 604, 612 (23 S. E. 463, 30 L. R. A. 835, 51 Am. St. R. 102); Powell v. Commonwealth Ins. Co., 3 Ga. App. 436 (60 S. E. 120); Thompson v. Equity Fire Insurance Co., 3 B. R. C. 1, with annotations.

Decided January 30, 1918.

Action upon indemnity-insurance policy; from Bibb superioi court — Judge Mathews. December 9, 1916.

Hatcher & Smith, for-plaintiff.

Harris, Harris & Witman, for defendant. •

Judgment reversed.

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


text:
    8641.
    Atlantic Coast Line Railroad Company v. Tomlinson.
   Wade, C. J.

1. Where a section foreman was required, under the terms of his contract of employment, to maintain the safety of a portion of railroad-track used in interstate commerce by the company employing him, and in the performance of his duty, acting (according to his testimony) upon information to the effect that a washout had occurred on that portion'of the track, immediately undertook to go, on the handcar furnished him for emergencies of this character, to the point where he was advised the trouble existed, accompanied by the section-hands under his control, and with all the appliances reasonably necessary to effect contemplated repairs in the track, and was injured while on the way and before arriving at his intended destination, the jury were-authorized to infer" that at the time of the injury he was engaged in interstate commerce, notwithstanding it later appeared that the washout in question was on a private connecting spur-track owned by a different corporation, and not on the carrier’s line which was used in interstate commerce, and that no repairs whatever were in fact necessary at or near this point on the main line itself. Under the ruling in the Pederson case (229 U. S. 146, 57 L. ed. 1125, 33 Sup. Ct. 648, Ann. Cas. 1914C, 153), where the plaintiff was held to be employed in interstate commerce because at the time he was injured he was engaged in carrying certain bolts or rivets “which were to be.usect” that night or the next morning in repairing a bridge, regularly in use in interstate commerce, what the employee in this case was seeking to accomplish, and was actually at the time he was injured engaged in ■ attempting to accomplish, in order to render safe, or with the design of rendering safe, the track regularly used in interstate commerce by the railroad company for which he was working, and which it was his duty to render safe, would determine the character of his employment, regardless of whether he succeeded in achieving the object attempted, and regardless of the actual existence or non-existence of the emergency which called forth his efforts. See also the decision in North Carolina Railroad Co. v. Zachary, 232 U. S. 248 (58 L. ed. 591, 34 Sup. Ct. 305, Ann. Cas. 1914C, 159), holding it to be a jury question, in a similar case, whether the employee was engaged in interstate commerce. If a brakeman “is hurt in the course of his employment while- going to a car to perform [italics ours] an interstate duty, or if he is injured while repairing an engine [intended to be used] for an interstate trip, he is entitled to the benefits of the Eederal act, although the accident occurred prior to the actual coupling of the engine to the interstate cars.” New York Central &c. R. Co. v. Carr, 238 U. S. 261 (35 Sup. Ct. 780, 59 L. ed. 1298, 1299). See also St. Louis &c. R. Co. v. Seale, 229 U. S. 156 (57 L. ed. 1129, 33 Sup. Ct. 651, Ann. Cas. 1914C, 156). Here the plaintiff was, according to his testimony, going to a point on the track of a railroad used in interstate commerce, in the performance of his regular duty, with the purpose and intention “to perform an interstate duty” by making certain necessary repairs in the track so used and to be used. The decision in Erie Railroad Co. v. Welsh, 242 U. S. 303 (37 Sup. Ct. 1116, 61 L. ed. 319), holding that a yard-conductor on an interstate railway, injured while alighting from a slowly moving freight-engine for the purpose of reporting to the yardmaster’s office for further orders, after having executed all previous orders, was not employed in interstate commerce, is not in conflict with what is herein ruled, as there was more than a mere expectation that the plaintiff in this ease would presently be called upon to perform a task in interstate commerce, for he was then actually engaged in such a task, since he was actually proceeding on his way, in the line of his regular duty, with the purpose and intention of repairing the interstate track at the time he was injured, and was in fact doing that which under his contract of employment he was bound to do. See Lamphere v. Oregon R. &c. Co., 196 Fed. 336 (116 C. C. A. 156, 47 L. R. A. (N. S.) 1).

2. The doctrine of assumption of risk is not abrogated by the Federal “employer’s liability act” of April 22, 1908 (35 Stat. 65, U. S. Comp. St. 1916, §§ 8657-8665), except in so far as relates to injuries resulting in whole or in part from the negligence of the officers, agents, or employees *of an interstate carrier, or by reason of any defect' or insufficiency due to its negligence as to its ears, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. The plaintiff in this ease assumed the ordinary risks of his employment, among which was the danger to be apprehended from encountering trains upon that section of the railroad-track in his charge, while working upon or moving backward and forward along it, and also the danger of injury resulting from the necessity for hurriedly removing his hand-car from the tracks of the railroad upon the near approach of its trains. The rules of the company required him to send forward a flagman in advance of his car when approaching a curve in the track; and this he omitted'to do, because, on bringing his car to a . standstill where the curve commenced, he failed to hear an approaching train, and, relying upon the statement of the agent and telegraph operator of the defendant at the station from which he began his jour- ' ney, that he had ample time to reach a certain point on the road before a belated train approaching from that direction could arrive thereat, he allowed his hand-ear to proceed along the said curve, which extended through a cut, until it so closely approached the advancing train that it was necessary to remove the hand-car from the tracks in great haste, in order to prevent a collision with the said train, and he thereby severely strained himself and thus brought about certain permanent physical injuries.

(a) No negligence on the part of the coemployees of the plaintiff in removing the hand-car from the track was alleged or proved, nor was any negligence shown in the running of the freight-train with which, the plaintiff so nearly collided and in escaping which he incurred injury; but whether the injury resulted solely in consequence of an ordinary risk of his employment, which the plaintiff assumed when engaging to perform the duties of a section-foreman, or was one which was obvious under the information imparted to him by the telegraph operator, or whether it resulted in part from a risk arising on account of the negligence of an employee of the defendant company, acting within the score of his authority, which' was not assumed by him and recovery for which was not barred, were questions of fact for determination by the jury.

Decided January 30, 1918.

Action for damages; from Brooks • superior court — Judge Thomas. December 2, 1916.

Bennet & Branch, Russell Snow, Sam. T. Harrell, for plaintiff in error. Theodore Titus, J. B. Morris Jr., contra.

(&) The court therefore erred in failing to instruct the jury touching the • doctrine of assumption of risk, and in failing to give in charge the fourth section of the Eederal- “employer’s liability act,” providing what risks are assumed; as complained of in the 6th ground of the amendment to the motion for a new trial.

3. There is no substantial merit in the ground of the motion for a new trial which complains that the court declined to admit testimony offered by the defendant to show the purpose of the railroad company in requesting telegraphic and written reports from section-foreman as to accidents occurring to them or to the employees under their control; for, even if admissible, it does not reasonably appear that the exclusion of this testimony could. have affected the verdict.

4. The 5th and 7th grounds of the motion for a new trial, which complain of the admission of certain testimony touching pain and suffering endured by the plaintiff, and of the charge of thb court that pain and suffering was an element of damage for which a recovery might be had, if resulting from the injury sustained, are expressly abandoned in the brief of counsel for the plaintiff in error. It may not be amiss, however, to call attention to the ruling of the United States Supreme Court in St. Louis &c. R. Co. v. Craft, 237 U. S. 648 (35 Sup. Ct. 704, 59 L. ed; 1160), construing the amendment of April 5, 1910 (36 Stat. 291), to the Eederal “employer’s liability act” of April 22, 1908, and definitely holding that damages for pain and suffering may be recovered under the act.

5. The only remaining ground of the motion for new trial is that the verdict (for $6,000) was excessive; but, since it does not appear that tlie verdict was the result of bias or prejudice on the part of the jury, and there being some testimony to authorize the recovery, this court can not invade the province of the jury and grant a new trial for that reason.

Judgment reversed.

Jenhins and LuJce, JJ., coneur


text:
    8716.
    DRAPER v. GEORGIA, FLORIDA AND ALABAMA RAILWAY COMPANY.
    1. The court did not err in overruling the demurrers.

      (а) An interstate carrier must make and publish a rate open to all, in order to exact a higher rate for a special service; but “it can not be assumed, merely because the contrary has not been established by proof, that an interstate railway carrier is conducting its affairs in violation of law.” The contract on its face was valid, and nothing appears therein from which it may be inferred that this and similar contracts for a special service therein agreed upon were not provided for by tariffs regularly made and published in conformity with law according the same privileges and rights to all other shippers similarly situated.
    (б) The allegations in the petition are not subject to the ground of the demurrer insisting that the facts pleaded therein show a rescission of the delivery made under the contract between the parties.
    (o) The statement in the brief of counsel for the plaintiff in error that “we insist on all of the grounds of the general demurrer” does not amount to an argument (see Pelham Phosphate Co. v. Daniels; ante, 547 (94 S. E. 84'6), and numerous cases there cited) ; and other grounds of the demurrer not referred to above will not be passed upon.
    2. The refusal of the court to award a nonsuit will not be considered when there is also an assignment of error upon the overruling of a motion for a new trial in which a verdict for the plaintiff is complained of as not supported by the evidence. See Collins v. Striehland, ante, 542 (94 S. E. 1035),.and numerous cases there cited.
    3. The various special grounds of the motion for a new trial in support of which argument is presented are without such substantial merit as to require a reversal.
    4. There was no evidence which tended to show that an unlawful preference was extended to the defendants under the contract sued upon, and the court did not err in directing a verdict for the plaintiff.
    Decided January 30,
    — Rehearing denied February 14, 1918.
    Action on bond; from city court of Bainbridge — Judge Spooner. February 26, 1917.
    The Georgia, Florida and Alabama Eailway Company brought suit against H. C. Draper upon a bond. The petition alleged that so much of the bond was breached as is contained in the following excerpt therefrom: “As to all ‘order notify’ shipments it is further understood and agreed that the Georgia, Florida & Alabama Eailway Company will properly place after arrival at Bainbridge on consignee’s track near its warehouse all shipments consigned to ‘order notify’ Draper-Garrett Grocery Company. And the said Draper-Garrett Grocery Company on its part agrees to deliver to the local station agent of said Georgia, Florida & Alabama Eailway Company the original bills of lading covering such ‘order notify’ shipments within six hours after the opening of the bank holding such bills of lading and following the delivery of such shipments by the said railway company. In case of failure on the part of said Draper-Garrett Grocery Company to deliver to said agent of the railway company the original bills of lading covering such ‘order notify’ shipments, then the said surety H. C. Draper hereby agrees to protect the said railway company against any loss for the value of such shipments so delivered, and hereby binds himself, his heirs, executors, and administrators firmly by these presents for whatever amount it may be necessary for said railway company to pay to the consignors of such ‘order notify’ shipments, either direct or through connecting lines of the said railway company, and caused, by the failure of the said Draper-Garrett Grocery Company to deliver such original bills of lading as herein agreed by it.” It was alleged that the breach of this bond occurred as follows: that on or about May 13, 1910, the Blish Milling Company, of Seymour, Indiana, shipped from that place to Bainbridge, Georgia, a carload of flour, consigned to itself, with order to notify Draper-Garrett Grocery Company, specifying a routing over plaintiff’s lines; that the carload of flour arrived at Bainbridge June 2, 1910, and was delivered to the Draper-Garrett Grocery Company on' its private side-track, as provided by the said contract, without demanding the surrender of the bill of lading; that the grocery company thereupon opened the car and unloaded a part of its contents, but, discovering that some of the flour was wet, reloaded all that had been 'removed from said car, and turned the car back to the plaintiff railway company, stating that the flour was damaged and that the grocery company would not accept it; that, being unable to induce either the consignor or the Draper-Garrett Grocery Company to accept it, the carrier thereupon proceeded to dispose of the flour under the law of- Georgia relative to unclaimed perishable freight. Thereafter the Blish Milling Company brought suit in trover against the railway company (the plaintiff in the present case) alleging a conversion of the shipment by the carrier, because it had delivered the flour to the grocery company without surrender of the bill of lading; and, the plaintiff having elected to take a money verdict for the value of the property, the jury returned a verdict in its favor for $1,084.50, with interest from June .2, 1910, at seven per cent.; that this verdict was affirmed by the Court of Appeals of Georgia (see G., F. & A. Ry. Co. v. Blish Milling Co., 15 Qa. App. 142, 82 S. E. 784), and the case was then carried to the Supreme Court of the United States, where the judgment of the Court of Appeals was affirmed, and the railway company required to pay to the Blish Milling Company the amount of the judgment recovered by that company (241 U. S. 190, 36 Sup. Ct. 541, 60 L. ed. 948) ;'and that the present suit was then filed by the Georgia, Florida & Alabama Railway Company against H. C. Draper, as surety on the bond which is above referred to and a copy of which was attached to the petition. The petition further alleged: that Draper had full knowledge of the previous suit and testified as a witness at the trial; that the cause of action of the Blish Milling Company against the present plaintiff was predicated upon the contention that the delivery by plaintiff to the Draper-Garrett Grocery .Company of the car of flour, without first demanding and obtaining the bill of lading, amounted to a conversion; which contention was in effect sustained by the-Court of Appeals of Georgia and by the Supreme Court of the United States in affirming the judgment against the plaintiff; that the said Draper contracted and agreed, as surety on the said bond, “to protect the said railway company against any loss” (italics ours) for the value of “order notify” shipments delivered to the Draper-Garrett Grocery Company before surrendering to the carrier the bills of lading therefor, or,,as stated in the petition, “to hold plaintiff harmless and to make good to plaintiff whatever amount [it] was required to expend;” that the Draper-Garrett Grocery Company .was a corporation which had been dissolved and was legally dead when the suit under consideration, was instituted; and that the plaintiff incurred various items of expense in‘addition to the amount .of the judgment recovered against it in defending the suit, all of which are specifically set forth. The defendant interposed certain demurrers, both general-and special, which were overruled. The court, on the trial of the case, directed a verdict for the plaintiff. The bill of exceptions complains of the overruling of the demurrers and of the refusal .to grant the defendant’s motion for a new trial.

      W. V. Custer, for plaintiff in error. T. S. Hawes, contra.
   Wade, C. J.

(After stating the foregoing facts.) Only two grounds of the demurrer are insisted upon in the briefs of counsel for the plaintiff in error, to wit: that the instrument sued on is void and unenforceable, because it created a preference in favor of Draper-Garrett Grocery Company, in violation of the act of Congress commonly known as the “Elkins act;” and also because “said declaration showed upon its face that if there was a delivery of the property, of which suit is brought, to Draper-Garrett Grocery Company, under said obligation sued upon, that there was an absolute rescission of said delivery and an acceptance of the property by the Georgia, Florida & Alabama Bailway Company in lieu of the bill of lading.” That portion of the Federal act which counsel for plaintiff in error contends renders the instrument sued upon void is as follows: “It shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect of the transportation of any property in interstate or foreign com.merce by any common carrier subject to said act to regulate commerce and the acts amendatory thereto whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is.required by said act to regulate commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced.” Act of February 19, 1903, c. 708, 32 Stat. 847 (10 Fed. Stat. Ann. 171, U. S. Comp. St. 1916, §§ 8597-8599). Applying this portion of the act to the petition in the case under review we can not say, as a matter of law, that the pleadings show on their face that the instrument sued on constituted a “preference” or “discrimination” in' favor of the defendant, since there are no allegations in the petition (nor was there even proof adduced at the trial) to the effect that similar contracts were not made with other shippers, or that the published tariffs filed with the commission contained no provision authorizing such a contract as forms the basis of this suit. There being no such allegations or proof, it must therefore be presumed that the railway company, in executing the contract sued on, acted in accordance with the law, until the contrary is shown. In the case of Cincinnati &c. R. Co. v. Rankin, 241 U. S. 319 (36 Sup. Ct. 555, 60 L. ed. 1022, 1026), it is said that “it can not be assumed, merely because the contrary has not been established by proof, that an interstate railway carrier is conducting its affairs in violation of law. Such a carrier must comply with strict requirements of the Federal statutes or become subject to heavy penalties, and, in respect of transactions in the ordinary course of business, it is entitled to the presumption of right conduct. The law (presumes that every man, in his private and official character, does his duty, [and] until the contrary is proved i,t will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donee probetur in contrariumJ ” The view here expressed is not in conflict with the ruling in C. & A. R. v. Kirby, 225 N. S. 155 (32 Sup. Ct. 648, 56 L. ed. 1035, 1037, Ann. Cas. 1914A, 501), cited and strongly relied upon by the plaintiff in error, since that case was clearly dealing with facts in evidence which showed that “the railroad company had established and published through joint rates and charges upon carload shipments. . . The rates furnished the defendant in error [the shipper] were the .regularly published rates. Those rates and schedules did not provide for an expedited service, nor for transportation by any particular train. Neither was Kirby [the shipper] required to pay any other or higher rate for the promised special service, by which his car was to be carried so as to be attached to the fast stock special and carried by it to New York.” The contract sued on in the case under consideration may have provided for a special service, and if so, as was said by Mr-. Justice Lurton in the Kirby case, supra, “for such a special service and higher responsibility it might clearly exact a higher rate, but to do so it must make and publish a rate open to all.” The facts in the Kirby case showed, however, that no such steps had been taken, and the railroad based its defense on this ground; whereas in the instant case neither the pleadings nOr the evidence adduced even intimated that the published tariffs did not provide for the precise kind-of contract sued upon, or that similar contracts were not made with others. It is suggested by counsel for the plaintiff in error that a mere reading of the contract will convince the court that it was the intention of the railway company to extend to the Draper-Garrett Grocery Company a preferential privilege. We can not assent, to this contention, since it does not thus appear as stated aboye, that similar contracts were not made with other shippers, or that tariffs were not filed covering this, and other like contracts.

It is well settled that “a railroad company which is an interstate common carrier can not enter into a contract with a shipper which constitutes an unlawful or undue preference under the interstate commerce act.” Florida. R. Co. v. Cherokee Sawmill Co., 137 Ga. 815, 821 (74 S. E. 523). See also Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498 (31 Sup. Ct. 279, 55 L. ed. 310). "General statements that there must be no difference in charges not based on difference in service, that rates must be equal to all under like conditions, and that unjust and unreasonable discrimination is forbidden, may be found in the opinions of the courts and of the Interstate Commerce Commission in cases in which they were discussing radical differences in the direct charges for transportation under like conditions (see Western Union Tel. Co. v. Call Publishing Co., 181 U. S. 92, 100, 21 Sup. Ct. 561, 45 L. ed. 765; Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. ed. 935; United States v. Vacuum Oil Co. [D. C.] 153 Fed. 598, 606, 607 [and other cases cited]; and in cases in which the carriers absolutely refused to carry the property tendered on any terms, as in Crescent Liquor Co. v. Platt (C. C.), 148 Fed. 894, 903, or to furnish cars at proper times and places where the rates were the same, as in Castle v. Baltimore & Ohio R. R. Co., 8 Interst. Com. R. 333, 344. Opinions of State courts may also be cited under statutes which depart from the language and the true interpretation of the interstate commerce act, and require certain carriers to grant ‘equal terms, facilities, accommodations and usages/ and forbid them from ‘granting any terms, credit, privileges, advantages, usages or facilities’ to one that are not granted to all (Burns’ Ann. St. Indiana, 1901, § 3312b), which hold that every person or corporation is lawfully entitled to every privilege and courtesy extended to any other similarly situated, so that under these statutes and decisions no carrier may waive any right or extend any courtesy to any person or corporation without becoming legally bound to do likewise to every other person or corporation under similar conditions.” Gamble-Robinson Com. Co. v. Chicago and N. W. Ry. Co., 168 Fed. 161, 166, 167 (94 C. C. A. 217, 21 L. R. A. (N. S.) 982, 16 Ann. Cas. 613). From a careful study of the briefs of the plaintiff in error we infer that it is in the light of these statutes and opinions that the contract under consideration is complained of. The interstate-commerce act has' been differently construed, however. The correct interpretation of this .act was clearly given by Judge Jackson (afterwards Mr. Justice Jackson of the United States Supreme Court), in the case of Interstate Commerce Commission ¶. Baltimore & Ohio E. Co. (C. C.), 43 Fed. 37, in the following language, which was subsequently several times approved-and adopted by the United States Supreme Court: “Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not' unjustly discriminate, so as to give undue preference or advantage, or subject to undue preference or disadvantage persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are regarded as sound, and adopted in other trades and pursuits.” In view of this clear statement of the law, we can not hold that the railway company discriminated against any competitor of the defendant, located at Bainbridge, merely by contracting with the Draper-Garrett Grocery Company to deliver all “order notify” shipments upon its private side-track before, receiving from it .the bills of lading for the same; nor can we say that this contract constituted what is commonly known as a “preference” in favor of the giocery company and against others similarly situated. The railway, in delivering “order notify” shipments to the grocery company before obtaining from' it bills of lading therefor, was in effect merely extending credit, and surely the equality of treatment and denial of preferences contemplated by the statute would not compel the carrier to extend the same credit to all others, some of whom might be less responsible commercially, and therefore not entitled to such indulgence, for sound ■ business or financial reasons; and, as already suggested, it does not appear that other solvent and responsible parties were denied the same privilege. See further, in this connection, Gamble-Robinson Com’n Co. v. Chicago & N. W. Ry. Co., supra.

In the next ground of the demurrer insisted upon by plaintiff in error it is contended that the petition shows on its face that there was an absolute rescission of the delivery of the' shipment to the Draper-Garrett Grocery Company, and an acceptance by the railway company of the property when refused and returned to it, in lieu of the bill of lading. This contention is likewise without merit. The petition did not show on its face that there had been a rescission of the delivery under the contract, since, before there could be such a rescission, there must have been a voluntary acceptance of the returned shipment by the railway company, and it nowhere appears that the carrier ever consented to the return of the shipment to it, but, to the contrary, the car was reloaded by the “order notify” consignee, and the petition distinctly alleges that thereafter the “plaintiff, having the flour on hand and being unable to get it accepted by the Draper-Garrett Grocery Company, proceeded to dispose of the same under the law of Georgia relative to unclaimed freight.” In order that the ruling on this point may be understood more clearly, it will be well to recall, in this connection, that the contract sued on provided that the railway company should deliver to the grocery company all “order notify” shipments without demanding the surrender of the bills of lading; and, by way of self-protection for this special privilege extended to the grocery company, the railway company had the grocery company execute the bond containing the provision that the surety (H. C. Draper, the defendant) would protect the railway company against any loss for the value of such shipment so delivered, and the surety bound .himself “for whatever amount it may be necessary for said; railway company to pay to the con- . signors of such order notify shipments, either direct or through connecting lines of the railway company, and caused by the failure of the said Draper-Garrett Grocery Company to deliver said original bills of lading as herein agreed by it.” By a reference to the decision of the United States Supreme Court in the case of G. F. & A. Ry. Co. v. Blish Milling Co., supra, it will be seen that by complying with the exact terms of its contract with the grocery company,' the railway company was held responsible in damages to the consignor, the Blish Milling Company; and, unless there was a complete rescission of the contract, we see no reason why Draper, as surety on the bond executed by the grocery company, should not "be held liable under his agreement, which in effect declared that he would be responsible to the railway company for whatever loss resulted because of its compliance with the terms thereof. In the absence of a voluntary acceptance of the carload of flour by the railway company, nothing appears which could amount to a legal and binding rescission of the contract on the part of the railway company; for the refusal of the shipment by the Draper-Garrett Grocery Company, whereby the railway was forced to retake control of the flour reloaded in the ear by the grocery company, and its subsequent sale to reduce the loss as much as possible, did not constitute such a rescission.' The railway company, in the premises, was powerless to. do anything else after the refusal by the grocery company, as well as by the Blish Milling Company, to receive the flour, than to assume possession again and dispose of it in accordance with the statute law of our State relative to unclaimed perishable freight. Surely the mere fact that the railway company took possession of the flour under these circumstances could not release Draper from a liability which became fixed when the car was delivered without the- surrender of the bill of lading. There are numerous decisions by the Supreme Court and this court holding that a contract can not be abrogated by one of the parties only. “A written contract can not be abrogated by one of the parties without the assent of the other.” Starling v. State, 5 Ga. App. 171 (62 S. E. 993); Oklahoma Vinegar Co. v. Garter, 116 Ga. 140 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112); Central of Georgia Ry. Co. v. Gortatowsky, 123 Ga. 366 (5), 375 (57 S. E. 469); Phosphate Mining Co. v. Atlanta Oil &c. Ga., 20 Ga. App. 660 (6), 662 (93 S. E. 532).

As suggested’ above, no intention on the part of the railway company to rescind the delivery under the contract can properly be inferred from the simple fact that it retook possession of the shipment refused by the consignee- and the consignor, and therefore this ground of the demurrer is without merit.

The numerous special grounds of the motion for a new trial which are argued in the briefs of counsel for the plaintiff in error are without substantial merit.

The pleadings and the evidence demanding a verdict in favor of the plaintiff, the court did not err in so directing. _

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8851.
    Williams, administratrix, v. Sumter County.
   Jenkins, J.

1. “County treasurers in the several counties of this State are entitled to receive two and one-half per cent, commission for receiving, and two and one-half per cent, commission for paying out, all sums up to ten thousand dollars; and one and one fourth per cent, for receiving, and one and one fourth per cent, for paying out, the excess over ten thousand dollars, for receiving and paying out county funds.” Polit. Code (1910), § 588.

2. The constitution of Georgia (art. 7, sec. 7, par. 1; Civil Code of 1910, § 6563) • provides that any county may incur a .debt without first submitting the matter to a popular vote, “for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of taxable property therein.” Lewis v. Lofley, 92 Ga. 804, 808 (19 S. E. 57).

3. The word “casual” means that which happens by accident, or is brought about by an unknown cause; and “casual deficiency” means some unforseen or unexpected deficiency, of an insufficiency of funds to meet some unforeseen and necessary expense. Lewis v. Lofley, supra; Hall v. County of Greene, 119 Ga. 253, 254 (46 S. E. 69).

4. The power to make provision for the safe-keeping and for the constant and diligent employment of the chain-gang composed of convicts, having been vested in the county commissioners, included the right to use those means and incur those expenses reasonably necessary for their execution, not exceeding the constitutional limit. Hence county commissioners may incur a debt (when too late to levy a tax, there being a casual deficiency) for the purchase of necessary tools or implements, not exceeding the limit set by the constitution. Pennington v. Gammon, 67 Ga. 456.

5. Where a county treasurer receives from the county authorities, by virtue of his office, money which has been illegally borrowed by them, and disburses it-for current expenses of the county, and the illegal loans are repaid from money coming from taxes or other legitimate sources, he is not entitled to commissions for handling the illegally borrowed money, to be paid out of county funds proper. Roberts v. Dancer, 144 Ga. 341 (87 S. E. 287); Hall v. County of Greene, supra. But moneys received from a temporary loan or loans to supply casual deficiencies of revenue) lawfully made, are “county funds” within the meaning of the Civil Code (1910), § 588. See Chattooga County v. Megginson, 139 Ca. 509 (77 S. E. 579); Aaron v. German, 114 Ga. 587 (40 S. E. 713); City of Baxley v. Holton, 114 Ga. 724 (40 S. E. 728); Board of Roads & Revenue v. Clark, 117 Ga. 288 (43 S. E. 722).

Decided January 30, 1918.

Illegality of execution; from 'Sumter- superior court — Judge Littlejohn. April 28, 1917.

J. A. Hixon, E. A. Hawkins, for plaintiff in error.

B. L. Maynard, contra.

0. While the evidence specifically shows that some'of the borrowed money was disbursed through the county treasurer for defraying current expenses of the county, and not borrowed and used to supply casual defieiences of revenue, it does not show, as it must do, that it was all so borrowed and used; and since the evidence did not demand the verdict, it was error for the court to direct the jury to find in favor of the plaintiff and against the affidavit of illegality.

Judgment reversed.

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