text:
    9462.
    MORRIS, administrator, v. SHEPPARD.
    In a suit in trover brought under the present short form (which contains no ad damnum clause in the conclusion of the declaration), where the plaintiff elects to take a money verdict for the highest proved value of ■ the property between the date ‘ of the conversion and the date of .the trial, the recovery can not exceed the value alleged in the petition, without an amendment covering the excess.
    Decided July 31, 1918.
    Trover; from city court of Eloyd county—Judge Nunnally. November 5, 1917.

      Nathan Harris, for plaintiff in error. O. I. Qarey, contra.
   Broyles, P. J.

The plaintiff’s petition alleged that the value of the two' bales of cotton sued for was $115. The petition was not amended. Upon the trial the plaintiff elected to take a money verdict for the highest proved value of the property between the date of the> .conversion and the date of the trial. The jury returned a verdict for $241.50, which, on motion for a new trial, was approved ,by' the court, and the defendant excepted to the refusal to grant him á new trial.

Under the ruling of the Supreme Court in Moomaugh v. Everett, 88 Ga. 67 (13 S. E. 837), and of this court in Pitts v. Bank of Shiloh, 20 Ga. App. 143 (92 S. E. 775), and in Sappington v. Rimes, 21 Ga. App. 810 (95 S. E. 316), the plaintiff in a trover Suit can not recover an amount greater than he is suing for, as shown by his pleadings. As said by Judge Bloodworth in the Pitts case, supra: “In this ruling there is no conflict with those decisions which hold generally that a recovery can be had for the highest proved value between the date of the conversion and the date of the trial. As an abstract principle this is true, but.it must be applied within the limitations of the pleadings.” Neither is this ruling in conflict with the decisions in Macon & Western R. Co. v. Meador, 67 Ga. 672, or in Phillips v. Taber, 83 Ga. 565 (10 S. E. 270), cited and strongly relied on by counsel for the defendant in error. In the Meador case the holding was “that if the recovery of the pmncipal does not exceed the alleged value of the property sued for, interest thereon may be recovered as profits without reference to the value of the profits alleged in the writ.” In the Phillips case (in which the writer was of counsel), the verdict returned was for the value of the property at the date of its conversion, plus its rent, and the total amount of the verdict exceeded the value of the property as alleged in the affidavit and bond solely because of the large amount of the verdict returned by the jury for the rent of the property. Eliminating from that verdict the amount found as “rent,” the remaining amount was not more than the value of- the property ag stated in the affidavit and bond. And the Supreme Court held substantially in that case, as it had previously held in the Meador ease, that interest on the principal may be recovered as profits or rent, without reference to the value of the profits or rent as alleged in the declaration. It is obvious that these two cases are quite different from the case at bar, where, under the election of the plaintiff, no part of the verdict returned was for interest, profits, or rent, but all of it for the highest proved value of the property. In our opinion the amount of the verdict and judgment was excessive and unauthorized, and the court erred in overruling the motion for a new trial. This ruling is not in conflict with anything said in the decision of this court in Johnston v. Sheppard, 22 Ga. App. 206 (95 S. E. 743), for in that case the record did not disclose that upon the trial the plaintiff elected to take a money verdict for the highest proved value of the property between the date of the conversion and the date of the trial.

While this court, has the authority to order the judgment remolded by writing off a portion thereof, yet under all the particular 'facts of this ease, it being a very close question as to whether the plaintiff was entitled to recover at all, this authority will not be ' exercised, but a new trial is ordered.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8933.
    MUTUAL LIFE INSURANCE CO. v. BOLTON, administrator.
    ■ Í. Representations made in an application for insurance which is attached to and made a part of the policy are considered as covenanted to be true by the applicant, and the policy will be voided by any variation which changes the nature, extent, or character of the risk. Any material representation of facts by the assured, to induce the acceptance of the risk, will void the policy if untrue; and while .failure to state a material fact will not void a policy unless, such failure be fraudulent, a wilful concealment of such a fact, which would enhance the risk, will void the policy.
    2. While the question as to the truth and materiality of representations is generally one for determination by the jury, yet where all the testimony relating to an issue .of fact excludes every reasonable inference but one, it becomes a question of law, for determination by. the court.
    Decided August 1, 1918.
    Action upon insurance policy; from Wilkes, superior court— Judge Walker. May 9, 1917.
    C. D. Bolton, administrator of Batnum Ñ. Ford, brought suit against- the Mutual Life Insurance Company of New York upon a life-insurance policy for $1,000, issued by the defendant upon the life of Batnum N. Ford on April 10, 1914, and made payable -to the executors, administrators, or assigns of the insured. In the application the insured made the following agreement: “This.application is made to the Mutual Life Insurance Company of New York. All the following statements and answers and all those that I make to the company’s medical examiner in continuation of this application are true, and are offered to the company as an inducement to issue the proposed policy. . . • The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been delivered to and received by me during my continuance .in good health.” A copy of the application, with the statements made by the insured in answer to questions by the medical examiner, was attached to the policy. Among these questions and answers were the following:
    “17. What illnesses, diseases, injuries, or surgical operations have you had since childhood.
    Name of disease, etc. Number of attacks. Date of each. Duration.
    Pneumonia, 1 1878. 3 weeks.
    Jaundice, 1 1908. 3 months.

      Severity. Results. Date of complete recovery.
    Mild. ' Good. 4 weeks.
    Light. Good. 6 months.
    18. State every physician or practitioner who has prescribed for or treated you, or whom you have consulted in the past five years. Name of physician or practitioner. Address. When consulted.
    L. J. Pharr.. Newborn. Some 2 years.
    Nature of complaint. Give full details under Q. 17.
    Bilious.
    19. Have you stated in answer to question 17 all illnesses, diseases, injuries, or surgical operations which you have had since childhood? (Ans. Yes or No.) Yes.
    20. Have you stated in answer to question 18 every physician and practitioner consulted during the past five years and dates of consultation? (Ans. Yes or No.) Yes.
    21. Are you in good health? Yes."
    At the close of the questions propounded by the examiner and the answers of the insured the following appears: “I certify that each and all of the foregoing statements and answers were read by me and are fully and correctly recorded by the medical examiner. (Signed) Batnum Napoleon Ford. Witness: J. C. Smith, M. D."
    The insured died June 21, 1915, and proofs of'death were presented by the plaintiff. The defense rested upon two grounds'; first, that the policy never took effect, because it was never- delivered to and received by the insured duririg his continuance "in good health; and second, that the above-quoted representations of fact made by the insured in his application to induce acceptance of the risk were, as to matters material to the risk, untrue, and that for this reason the policy was void. Hpon the trial of the' case the, plaintiff introduced in evidence the policy, with the application attached thereto, proofs of death, and closed. The defendant then introduced as a witness Dr. P. Wilson, a practicing physician, who testified that he had examined applicants for life-insurance for several insurance companies, including the defendant-; that he had known B. N. Ford since 1905, and had, part of the time between 1912 and 1914, boarded in the same house with him, and saw him every day; that he as a physician had treated Ford; that the first time was for jaundice, in 1908, and that the duration of that attack was from five to six months; that following that the insured had enlargement of the liver, accompanied with the usual digestive ^disturbances and nervous troubles; that when he first treated him in 1908 the insured weighed 260 pounds, and that, beginning with the attack of Jaundice which lasted five or six months, his weight decreased gradually, for eighteen to twenty months, to 180 pounds, and that his weight remained between 180 and 190 pounds through 1910 and 1911; that in the latter part of 1912 he had occasion to take the in'sured’s blood pressure, and found it decidedly above normal, and that from then on until September, 1914, the insured continued with an excessively high blood pressure, with an enlarged liver, and a tolerably bad condition or a hardening condition of the arteries, called arterial sclerosis; that in the same way you describe stiffening of the arteries, it would be the same way with the tissues in the valves of the heart; that he couldn’t say Ford was in good health at any time between 1908 and 1914, when he saw him. The witness further testified that the proofs of death state that the insured died suddenly, and in one place it is stated with disease of the heart, and of apoplexy; that the condition of health in which he found the insured could be connected up with the cause of death. This witness further testified: “From my, experience as an examiner of risks or applicants for life insurance, I will say that I think that the conditions that I have; described in connection with this application and this applicant are material to the risk that the company was trying to secure; it is material to' the issuing of the policy.” He further testified that he advised the insured as to his condition, and told him what was the matter with him; that he couldn’t say he explained it to him as fully as he had on the witness stand, but that he told the insured enough to let him know his condition generally, and that he put him on a diet. Defendant also introduced Mrs. H. C. Pitts, who testified: that the insured boarded with her from April 1, 1913, to September 6, 1914, and that she saw him every day; that he was on a diet while staying there; that Dr."Wilson treated him; that the insured appeared to be in feeble health, and was rather nervous; that he would talk to her about his physical condition, and would say he didn’t feel well. The plaintiff then introduced Dr. E. W. Ragsdale, who testified that he had known the insured for fifteen years immediately preceding his death; that most of the time he seemed to be in good health, but that for some three or four years previous to his death, the insured’s health was not good; that he would see him occasionally, and he seemed to be somewhat emaciated and thin. He further testified that he saw the insured a few minute's after his death, and that in his opinion he died from valvular disease of the-heart. The brief of evidence shows that the physician who examined the insured was dead. The' plaintiff introduced evidence as to the good character of the deceased. The jury returned a verdict for the plaintiff. The defendant made a motion for a new trial on the general grounds only, which was overruled by the trial judge, and the defendant excepted.

      J. H. Gilbert, Bi 0. Norman, for plaintiff in error.

      J. M. Pitner, contra.
   Jenkins, J.

(After stating the foregoing facts.) The question presented for our consideration is whether the evidence warranted the verdict. Section 2479 of the Code of 1910 provides that “Every applicátion for insurance must be made in the utmost good faith, and the representations contained in such application are considered as. covenanted to b.e true by the applicant. Any variation by which the nature, or extent, or character of the risk is changed will void the policy.” It has been held that “It is immaterial whether the statements made by thd applicant for insurance were representations or warranties, since the effect of such statements must be determined by the provisions of these sections of the code, without reference to whether the statements may be regarded technically as representations or as warranties. If the representations were untrue and the nature or extent or the character of the risk was changed by the representations, the policy was void under the express terms of § 2479.” Ætna Life Insurance Co. v. Conway, 11 Ga. App. 553, 560 (75 S. E. 915). Section 2480 provides that “Any verbal or written representations of facts by the assured to induce the acceptance of the risk, if material, must be true, or the policy is void.” Code-section 2481 provides that “A failure to-state a material fact, if not done fraudulently, does not void; but the willful concealment of such a fact, which would.enhance the risk, will void the policy.” In the case of a representation the important inquiry is: 1st. Was the representation false? 2d. If' false, was it made in reference to a matter material to the risk? In general, it may be said that the test, in determining whether questions contained i'n an application for insurance are material, is whether knowledge or ignorance of the facts sought to be elicited thereby would materially influence the action of the insurer. Ætna Life Insurance Co. v. Conway, supra; Empire Life Ins. Co. v. Jones, 14 Ga. App. 647, 656 (82 S. E. 62). The insured in this case stated unequivocally that he was in good health, and, under the undisputed evidence introduced upon the trial of the case, this was untrue, and, under the'testimony of Dr. Wilson, the insured was suffering from a number of serious disorders, both at the time the application' was made and at the time the policy was issued, which, under his testimony, were material to the risk, and under the ruling made in the ease of Ætna Life Insurance Co., supra, the policy was void. See also Southern Life Ins. Co. v. Hill, 8 Ga. App. 857 (70 S. E. 186). While it is true that the truth and materiality of the representations made by the insured are generally questions of fact for determination by the jury, yet where all the testimony relating to a question of fact excludes every reasonable inference but one, as we think it does in this case, since even the physician introduced by the plaintiff testified that the insured was not in good health at the time the application for insurance was made, and at the time the policy was issued, and the testimony of the other witnesses to the same effect is undisputed, the issue becomes an issue of law for determination by the court. Empire Life Ins. Co. v. Jones, supra.

Under the facts appearing in the record -in this case, the evidence as adduced in the trial in the court below did not authorize a verdict in favor of the plaintiff, and the court erred in refusing a new trial.

Judgment reversed.

Wade, C. J., and Lulce, J., concur.


author: Bloodworth, J.

text:
    9186.
    Ocilla Southern Railroad Company v. Taylor.
    Decided August 1, 1918.
    Action for damages; from Ben Hill superior court—Judge Crum. August 18, 191-7. ' •
   Bloodworth, J.

The court did not err in overruling the demurrer to the petition as amended.

Judgment affirmed.

Harwell, J., concurs; Broyles, P. J., dissents.

Wall & Grantham, Quincey & Rice, for plaintiff in error.

Wallis & Fort, McDonald & Bennett, contra.


author: Harwell, J.

text:
    9190.
    MIMS, administrator, v. McKENZIE, administrator.
    When a plaintiff dies after judgment has been entered in his favor and before the issuance of execution thereon, the execution should follow the judgment and may be issued in his name.
    Decided August 1, 1918.
    Affidavit of illegality of execution; from Crisp superior court— Judge Crum. July 24, 1917.
    The ordinary of Crisp county issued an execution against the estate of Ran Harris, deceased, in the hands of R. D. Mims, administrator, and also against R. D. Mims, to be-levied in the first instance on the goods and chattels of the said Ran Harris, deceased, if to be found, and if not to be found, then on the personal goods etc. of the said R. D. Mims. The execution recited that it was issued on a judgment recovered by Emma Harris on the 5th day of February, 1912, in the court of ordinary of Crisp county upon her application for a year’s support as the widow of said Ran Harris. The execution was dated June 2, 1915. It was levied on certain personal property of R. D. Mims. Mims filed an affidavit of illegality, in which he alleged that the-fi. fa. was proceeding illegally for certain reasons therein stated, one of which (paragraph -4) was that “on the day and at the time the said fi. fa. issued, the plaintiff in fi. fa., to wit, Emma Harris,' was dead,- and that no administrator had been appointed to take charge of her estate and made a party to the proceeding that-it is alleged that the fi. fa. issued from.” The sheriff made affidavit that he had made diligent search for other property belonging to the estate of Ran Harris, deceased, and failed to find any, and that his failure to make a formal entry of nulla bona on the fi. fa. was an oversight. After this affidavit had been made, the court permitted the sheriff to make a nulla bona entry on the fi. fa. The plaintiff interposed a general demurrer ore tenus to the affidavit of illegality. The court sustained the demurrer and’ dismissed the affidavit of illegality, and to this judgment exception was taken.

      Pearson Ellis, for plaintiff in error. J. T, Hill,- contra.
   Harwell, J.

(After stating the foregoing facts.) 1. At common law it seems that a valid execution could not issue in favor of a deceased' plaintiff without a revival of the judgment by scire facias. 17 Cyc. 993. Such does not appear to'be the law in this State. By statute in Georgia it is provided, in the first place, that “All executions must follow the judgment from which they issue, and describe the parties thereto as described in such judgment.” Park’s Ann. Code, § 6022. Section 5605 of the code provides that when either the plaintiff or the defendant shall die pending a trial, or after trial and before the expiration of the time to enter an appeal, the legal representative of the party dying may enter an appeal within thirty days, etc.; and if such appeal is not entered within the time prescribed, “judgment may be entered and execution issued as though the deceased were in life, without making the representative a party.”

“At common law, if a party died after judgment but before the issuing of execution, it was necessary to issue a scire facias to. make the heir or legal representative of such decedent a party to the judgment, but since the passage of the judiciary act of 1799, which makes the judgment a lien on all the property of the defendant from the time of its rendition, the reason of the rule, and consequently the rule itself, has ceased to exist in this State.” Smith v. Lockett, 73 Ga. 104. From the foregoing it appears that when a plaintiff dies after judgment is entered and before execution is issued thereon, execution may nevertheless be issued in the .name of the plaintiff. Compare' code-section 5616. There is no merit, therefore, in the contention of the defendant as set out in the fourth paragraph of the affidavit of illegality.

2. Certain other grounds were set out in the affidavit of illegality, but the plaintiff in error did not argue them in his brief, and they will be treated as abandoned.

Judgment affirmed.

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


text:
    9309, 9310.
    SMITH v. CENTRAL OF GEORGIA RAILWAY COMPANY; and vice versa.

    . 1. The allegations make a suit for the entire damage, to the land from the alleged tortious acts of the railway company.

      2. “When, by reason of a trespass thereon, realty has been so injured as to'render it permanently useless and valueless to-the owner, the damages thus occasioned are recoverable in a single action.”
    3. The petition in this ease being for permanent injury to the land, and not having been filed until August, 1914, and the last of the alleged acts of trespass having been committed in 1909, the action was barred by the statute of limitations.
    4. “A vendee of land upon which a trespass had been committed while it was the property of his vendor has no right of action against the trespasser for damages thus occasioned, which were recoverable by thé vendor.”
    5. The court erred in allowing the amendment to the petition.
    6. There was no error in dismissing the petition as amended.
    Decided August 1, 1918.
    Action for damages; from Talbot superior court—Judge Howard. September 10, 1917.

      J. J. Bull & Son, for plaintiff.

      Battle & Hollis, for defendant.
   Bloodworth, J.

Mrs. Smith brought suit against the Central of Georgia Bailway Company, alleging: that on August 1, 1910, and at the time of filing her petition, which was in August, 1914, she was the owner of certain valuable farm lands through which runs Hpetoi creek; that certain acts of the railway company, beginning in 1904 and ending in 1909, “caused the channel of said creek to fill up, and caused the water to be set back and to overflow said lands, and therefore charges the lands with water, making the soil wet and spongy' and the said lands totally unfit for cultivation; that said lands would otherwise be dry and valuable cultivatable lands; that the water overflowing and backing over said lands has caused a large quantity of sand to be deposited upon them, which renders them unfit for cultivation; that the channel of the creek being changed by the dam and raft aforesaid has been a permanent, continuous damage to said lands, as it leaves a large body of said lands, between the natural channel or run of the creek and the one made by said dam, entirely unfit for cultiyation; that the two channels are flooded with water that overflows the lands aforesaid, making the soil wet and spongy and unfit for cultivation; that by the wrong acts as aforesaid her lands have been rendered absolutely unfit for farming, and damaged as herein set forth, and that the damage is permanent as herein set forth, and is all to the damage of your petitioner in the sum of five thousand dollars as aforesaid, and [she] prays judgment for the said sum.”

The railway company filed a demurrer'as follows: “1. The plaintiff’s petition affirmatively shows upon its face that the cause of action sought to be alleged and set forth in her petition is barred by the statute of'limitations, in that more than four years have elapsed since the accrual of said cause of action. %. Plaintiff’s petition affirmatively shows upon its face that the alleged damage to her land is a permanent damage which accrued more than four years prior to ,the filing of the suit, and said petition affirmatively shows that said damage is not a continuing damage, in that the damage became complete and was complete more than four years prior to the filing of her suit. 3. Said petition shows upon its face that the alleged damage to.her land is a permanent damage which accrued more than four years prior to the filing of her'Suit, and that said injury or damage to her land would not be and would not have been, within four years prior to the filing of her suit, abated by a removal of the alleged raft or dam alleged to have been caused or constructed by the defendant.” The following order was passed by the court: “The above-stated case coming, on for trial, the defendant moved in writing to dismiss the same, whereupon the plaintiff offered an amendment, to the allowance of which amendment the defendant objected. The court allowed the amendment and the defendant renewed its motion to dismiss the case as amended, and did demur orally to the petition as amended. Whereupon, it is considered,- ordered and adjudged that the motion to dismiss be and the same is hereby sustained and said case dismissed.” This ruling of the court is before us for review.

An examination of the above quotations from the original petition will show that .the cause of action as therein set out is for permanent damage to ..the land of petitioner. The allegations in the petition make a suit to recover for the entire damage resulting to the land from the alleged tortious acts of the railway company. The nuisance and the damage inflicted thereby were treated in the petition as> permanent. It is alleged that the land was cut through by a new channel, separating one part from another, and the land was covered over with sand and saturated with water, and was thus rendered unfit for cultivation. There is no allegation of any act of the railway company that entailed a fresh injury to the land not comprehended by its original trespass.. There is no complaint of the annual loss of crops or rents, nor any facts alleged showing continuing or recurring trespasses and consequent damage to the land. In the case of Danielly v. Cheeves, 94 Ga. 263 (21 S. E. 524), the 3d headnote is in part as follows: “If, however, the effect.of the nuisance, at any stage, was to destroy wholly and permanently, the -fertility of the land, so that abating the nuisance and withdrawing the excess of water occasioned thereby would not restore the land and render it again fertile, the right to maintain successive actions relatively to subsequent years ceased, and a single action and recovery for such destruction could be maintained and would be final.”

Under the facts alleged in the original petition the owner of the land in 1909 could have brought suit in a single action for the entire damage resulting from the alleged trespass. . “When, by reason of a trespass thereon, realty has been so injured- as to render it permanently useless and valueless to the owner, the damages thus occasioned are recoverable ,by him in a,single action.” Allen v. Macon, Dublin & Savannah R. Co., 107 Ga. 838 (4), 846 (33 S. E. 696); Cobb v. Wrightsville & Tennille R. Co., 129 Ga. 377 (2), 380 (58 S. E. 862). In the case of City Council of Augusta v. Marks, 124 Ga. 365 (52 S. E. 539), Justice Lumpkin said: “If by reason of a trespass upon realty it has been so injured as to render it permanently .useless and valueless -to the owner, he should recover the damages thus occasioned in a single action. Thus, where a petition alleged that by the ereetion and maintenance of a dam certain land of the plaintiff and the timber thereon had been rendered worthless and of no value, and a recovery was had, the plaintiff could not maintain against the defendant another action alleging the same facts as to the injuries sustained and their cause-.” There is no claim in the original petition that if the obstructions in the stream were removed the land would be restored to its fertility and made fit for cultivation. Indeed, the allegations in the petition show that this would not be possible

The petition in this case being for permanent injury to. the land, and not having been filed until August, 1914, and the last of the alleged acts of trespass having been committed in 1909, the action was barred by the statute of limitations. Civil Code (1910), § 4495; Adams v. Macon, Dublin & Savannah R. Co., 141 Ga. 701 (81 S. E. 1110); Lang v. Camp Phosphate Co., 113 Ga. 1011 (39 S. E. 474).

I't appearing that the last of the alleged acts of trespass was before tl}e petitioner became the owner of the land, the right of action therefore, if any, was in her predecessor in title. “A vendee of land upon which a trespass had been committed while it was the property of his vendor has no right of action against the trespasser for damages thus occasioned, which were recoverable by the vendor; aliter, as to new and additional damages growing ont of a continuation of the original trespass after the vendee acquired title.” Allen v. Macon, Dublin & Savannah R. Co., supra; Green v. South Bound, R. Co., 112 Ga. 849 (38 S. E. 81); Civil Code (1910), § 4458. The original petition showed no “new and additional damages growing out of the continuation of the original trespass after the vendee acquired title.”

The amendment to the petition was inconsistent with the theory set up by the original petition, and was inconsistent with material allegations therein not stricken by thé amendment, and, the petition containing but one count, the court erred in allowing the amendment, over the objections of the defendant. Flynt v. Southern Railway Co., 7 Ga. App. 313 (66 S. E. 957).

The petition as. amended, construed most strongly against the pleader, fails to set forth .a cause of action, and, was properly dismissed. Davis v. Boyett, 120 Ga. 649 (48 S. E. 185, 66 L. R. A. 258, 102 Am. St. R. 118, 1 Ann. Cas. 318; Curtis v. College Park Lumber Co., 145 Ga. 601 (4) (89 S. E. 680); Smith v. Central of Georgia Ry. Co. (this case), 146 Ga. 59 (90 S. E. 474).

Judgment affirmed on the main bill of exceptions.

Cross-bill dismissed. Broyles, P. J., and Harwell, J., concur.


text:
    9346.
    Seneca Company Incorporated v. Schell, administratrix.
   Harwell, J.

1. The record does not show what were the defendant’s objections, which were sustained by the trial magistrate, to the admission in evidence of the original order, or what were the plaintiff’s objections, which were overruled, to the admission of the testimony complained of. It is therefore not made to appear^ that the judge of the superior court erred in overruling the third and fourth grounds of the petition for certiorari.

Decided August 1, 1918.

Certiorari; from Putnam superior court—Judge Park. October 26, 1917.

The Seneca Company Incorporated brought suit upon an account for $16.56, in a justice’s court against S. M. Schell, doing business under the name of Phoenix Supply Company. The justice rendered, judgment in favoi of the defendant. The plaintiff obtained certiorari, which the judge of the superior court overruled on the hearing; and the plaintiff excepted. The errors complained of in the petition for certiorari are: that the judgment is contrary to law and without evidence to support.it; contrary to the evidence; that “the court erred in refusing to allow the original contract or order given by Phcenix Supply Company to the Seneca Company for the purchase of the said goods to be introduced in evidence, said contract or order being set out in full'in par. 8 of this petition; as the said contract or order was the best evidence to be had by the court in the trial of the case;” and that “the court erred in allowing the testimony of S. M. Schell and S. E. Maddox to be introduced over the objection of plaintiff.”

It was insisted by counsel for the defendant that, as the amount involved was under $50, and as appeal and not certiorari was the remedy, the judgment of the judge of the superior court in overruling the certiorari was correct.

B. C. Jmhins, M. F. Adams, for plaintiff.

Davidson & Callaway, for defendant.

2. No real issue of fact was raised upon the trial of the case; hence certiorari was the proper remedy. Toole v. Edmondson, 104 Ga. 776-784 (31 S. E. 25); Shultes v. Campos, 5 Ga. App. 277 (63 S. E. 23). However, in the state of the record, it does not appear that the court erred in overruling the certiorari, and the judgment is

Affirmed.

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


author: Bloodwobth, J.

text:
    9379.
    TWIN CITY LUMBER COMPANY v. DANIELS.
    1. There was no error in striking paragraph 10 of the petition, because: (a) the allegations therein were as to matters arising after the refusal of the defendant to comply with his contract. (6) The “bad faith” which will ^authorize recovery of attorney’s fees in actions of this character is “ ‘bad faith’ in the transaction out of which the cause of action arose.”
    2. (a) “Where a party contracts to deliver goods at a particular time and place, and no payment has been made, the true measure of damages is the difference between the contract price and that of like goods at the time and place where they should have been delivered.” (6) “Where the delivery is to be made in installments, the measure of damages is the sum of the differences between the contract price and the market price at the several times of delivery.” (c) “If there is no market at the place of delivery at the time fixed therefor, resort may be had to the nearest available market, with cost of transportation to the place of delivery usually added.”
    3. A vendor failing to coipply with his contract to deliver goods ordered would not be liable for special damages because of consequent inability of the purchaser to fulfil a particular contract of resale, unless at the time of accepting the order he had notice that the goods ordered were the subject of a resale.
    4. “In a suit for special damages alone, where the plaintiff is not entitled to recover the special damages sued for, there can be no recovery of general or nominal damages.”
    Decided August 1, 1918.
    Action for breach of contract; from city court of Blakely— Judge Sheffield. October 2, 1917.
    The Twin City Lumber Company brought suit against J. B. Daniels, alleging in part that “On July 21, 1916, the defendant was, as he still is, the owner of a sawmill and a valuable tract of valuable pine timber in said county, located near Rowena, a small station on the line of the Georgia, Florida & Alabama Railway. On said date petitioner was, as it still is, engaged in - the manufacture of lumber, and in buying and reselling pine lumber at wholesale, as was known to defendant the date aforesaid. On said 21st day of July, petitioner entered into an executory agreement with the defendant for the purchase by it from him of two bills of lumber, to be manufactured by defendant at his said sawmill and delivered to petitioner at said railway station.” One of said bills of lumber was for 480,000 feet and the other for 60,000 feet. The order for the 480,000 feet was to be delivered on cars at Rowena, Georgia, “at the rate of 100,000 feet or more, month by month, and entire amount to be shipped complete on or before January 1, 1917.” The other lot was also to be loaded at Eowena and shipment “to be completed on or before January 1, 1917.” The 60,000 feet was to consist of three lots, and each lot to be shipped separately. On September 19, 1916, the defendant delivered a portion' of the 480,000 feet, but he “has since failed and refused to manufacture and deliver any of the other lumber stipulated for in said writing, although petitioner has from time to time urged the defendant to do so, and he has-at all times since had ample means and opportunity to manufacture and deliver the same in accordance with his aforesaid written agreement.” On January 1, 1917, “petitioner, with a view to decreasing the amount of damages flowing to it from defendant’s aforesaid breach of contract, made diligent effort to procure from other manufacturers in Georgia of pine lumber some agreement whereby petitioner might be furnished with pine lumber such as that which defendant obligated himself to manufacture and deliver to petitioner as aforesaid; but in this endeavor petitioner was unsuccessful, as the market price of lumber had steadily advanced from month to month after defendant had entered into his aforesaid undertakings with petitioner, and other manufacturers had previously sold in advance the entire product of their mills. On January 15,1917, petitioner, acting by and through its authorized attorneys - at law, urged defendant to comply with his aforesaid written obligations in the premises, notifying him that petitioner still wanted the lumber, as they were under contract for the resale of it, and informing him that petitioner was willing to extend the time for delivery any reasonable time, if defendant would only assure petitioner that he would deliver to it as much as six cars of lumber a month. A copy of the written communication sent to defendant by petitioner’s attorneys is hereto attached and marked Exhibit 0. But defendant wholly ignored said communication and has ever since persisted in his wrongful refusal to make any effort to atone for his said-breach of contract or to lessen the damages necessarily flowing to petitioner therefrom.” It was necessary for the petitioner to incur $250 traveling expense “in its effort to find an open market in which it could buy a substitute for said lumber.” It is alleged that on January 1, 1917, there was not, and there has not since been, any market for lumber such as the defendant agreed to furnish to petitioner, nor any substitute therefor, and petitioner could not in the open market at that point, nor in any neighboring town, purchase any such lumber at any “price; that as it could not in the open market at'Eowena or elsewhere in that vicinity purchase any substitute for the lumber which defendant had contracted to deliver to it, it was necessary for petitioner, in order to meet its obligations to other parties to whom it had resold the lumber, to find a substitute for same, which it succeeded in doing at Cochran, Georgia; that “the price which petitioner was thus forced to pay to said Cochran Lumber Gompany for sufficient lumber to supply that which defendant had failed and- refused to de- • liver to petitioner under his aforesaid agreement was, owing to the advance in the price of lumber in the open market after said contract with defendant was made .by petitioner, $2,500 over and above said contract price at which defendant had agreed to furnish the lumber to petitioner; and by reason of the defendant’s said • breach of his contract, he has become liable to respond in damages to petitioner for that amount, as well'as for the additional sum of $250 incurred by petitioner in the way of traveling expenses, as aforesaid, in its effort to find an open market in which it could buy a substitute for said lumber which defendant failed and refused to deliver to petitioner under the terms and conditions of his aforesaid contract, as hereinbefore set forth;” that on account of the bad faith of the defendant the petitioner was forced to incur an expense of $500 in the employment of “legal counsel to institute and prosecute this suit;” and it prays for judgment against the defendant for the $2,500' which it was necessary for him to expend “over and above said contract price at which defendant had agreed to furnish the lumber to petitioner,” and for the $500 as attorney’s fees. The plaintiff, by amendment, struck from the petition its claim for $250 for traveling expenses.
    The defendant demurred as follows: “First: That said petition sets forth no cause of action. Second: Defendant demurs specially to paragraph 10 of plaintiff’s petition, because the same is immaterial and irrelevant. Third: Defendant demurs to paragraph 14 of plaintiff’s petition, wherein it alleges the amount of damages, and says that the plaintiff does not allege any facts to show that it has been damaged in the sum of $2,500 over and above the contract price, or an additional sum of $250 for traveling expenses; for that it fails to show what price it had to pay for the lumber bought, or where plaintiff had to travel, and what amount of traveling expenses were incurred.” The trial judge passed the following order: “The within demurrer having been argued before the court, and the court having sustained the second ground of the demurrer and the third ground of the demurrer, except in so far as it refers to plaintiff’s claim for $250 traveling expenses; and the court having given the plaintiff an opportunity to amend in accordance with the ruling of the court, and the plaintiff having refused, to amend in accordance therewith, it is considered, ordered, and adjudged that plaintiff’s petition be and the same is hereby dismissed.” To this order the plaintiff excepted.

      GTessner & Collins, for plaintiff.

      H. M. Calhoun, L. M. Rambo, for defendant.
   Bloodwobth, J.

(After stating the foregoing facts.) There was no error harmful to the plaintiff in error in striking paragraph 10 of the petition. The allegations therein were as to matters arising after the refusal of the defendant to comply with his contract. Plaintiff in error insists that this paragraph should not have been stricken, because “such bad faith on his part was specifically alleged as a basis for the recovery of attorney’s fees.” The “bad faith” which will authorize recovery of attorney’s fees in actions of this character (Civil Code of 1910, § 4392) is “ ‘bad faith’ in the transaction out of which the causé of action arose.” Traders Ins. Co. v. Mann, 118 Ga. 381 (6,7), 384 (45 S. E. 426); McKenzie v. Mitchell, 123 Ga. 72 (51 S. E. 34); Lovell v. Frankum, 145 Ga. 106 (88 S. E. 569).

Plaintiff in error also insists that paragraph 10 should not have been stricken, because it illustrated “the good faith and diligent conduct of the plaintiff in seeking to avoid damages resulting from defendant’s breach.” Even if it was error for this reason to strike this ground of the petition, the error was harmless. Other paragraphs of the petition set out sufficient facts to show the alleged good faith of the plaintiff in error.

"Where there is a contract of sale and the goods are to be delivered at a future time, the general rule is that “the measure of damages recoverable of the seller for failure to deliver goods sold is the difference between the contract price and the market value at the time and place for delivery; and it is incumbent on one who seeks to recover such damages to submit evidence as to the market price at the time and place for delivery, in order to recover compensatory damages.” Sizer v. Melton, 129 Ga. 143 (7), 151 (58 S. E. 1055); Hardwood Lumber Co. v. Adams, 134 Ga. 821 (68 S. E. 725, 32 L. R. A. (N. S.) 192); Ford, v. Lawson, 133 Ga. 237 (6), 238 (65 S. E. 444); Huggins v. Southeastern Lime & Cement Co., 121 Ga., 311 (5), 313 (48 S. E. 933); Pitcher v. Lowe, 95 Ga. 423 (4), 429 (22 S. E. 678); Piedmont Wagon Co. v. Hudgens, 4 Ga. App. 393 (61 S. E: 835). “Where the delivery is to be made in installments, the measure of damages is the sum of the differences between the contract price and the market price at the several times of delivery.” Sizer v. Melton, supra; Bainbridge Oil Co. v. Crawford Oil Mill, 138 Ga. 741, 745 (76 S. E. 41); Byrd Printing Co. v. Whitaker Paper Co., 135 Ga. 865 (3), 869 (70 S. E. 798, Ann. Cas. 1912A, 182). “If there is no market at the place of' delivery at the time fixed therefor, resort may be had to the -nearest available market, with cost of transportation to the place of delivery usually added.” Hardwood Lumber Co. v. Adam, and Ford v. Lawson, supra; Peninsular Naval Stores Co. v. State, 20 Ga. App. 501 (93 S. E. 159).

In the petition in this case we find nothing that should take it out of the application of these general rules. The petition shows contracts for the delivery of lumber at different times, and shows breaches thereof, but alleges in effect that the measure of damages is the difference in the contract price and “the price which the plaintiff was forced to pay” in a different market, “owing to the advance in the price of lumber.” Under the facts as shown by the pleadings, we do not think this is the measure of- damages in the instant case. As shown by the bill of exceptions, the plaintiff was given, and it refused, an opportunity to so amend its petition as to show “the difference, if any, between said contract price and the market price of the lumber contracted for at the time and place of delivery.” While the petition alleges that “at Rowena, Ga., the railway station at which defendant contracted, as aforesaid, to deliver to petitioner the lumber purchased from him, there was not on January 1, 1917, nor has there since been, any market for lumber such as that he agreed to furnish to petitioner, nor any substitute therefor, but, on the contrary, petitioner could not in the open market at that point, nor in any neighboring town, purchase any such lumber at any price; the fact being that there is at Rowena, Ga., no open market for the purchase of lumber nor at any other point in that immediate vicinity, nor has there been at any time since defendant’s said breach of contract on January 1, 1917; and that “since petitioner could not in the open market at the point of delivery, of elsewhere in that vicinity, purchase any substitute for the lumber which, as aforesaid, defendant contracted to deliver to it, there was presented to petitioner the necessity, in order for it to meet its obligations to other parties to whom it had resold the lumber, to endeavor to find a market in which it could buy, at a. reasonable price, a suitable substitute for the same;” yet there is nowhere' in the petition any allegation that there was at Rowena, Ga., no market value for such lumber. "While there may not have been.a market for so large an amount of. lumber as that stipulated in the contracts attached to the petition, yet it would not follow that there was no market value at Rowena, Ga., for the kinds and character of lumber therein described.

There is- a great difference between the existence of a market for a thing and its market value. There may be no market for cotton at Kirkwood, a suburb of Atlanta, but it can not be said that cotton at Kirkwood has no market value. The rule is thus stated in Ford v. Lawson, supra: “If there was no market at the town where the, delivery was to be made at the time fixed therefor, the price at the nearest market, with the expense of transportation to the-place of delivery, could be shown.” See also case of Hardwood Lumber Co. v. Adam, supra. In Berry v. Dwinel, 44 Me. 255, the rule is stated as follows: “Where a party contracts ‘to deliver goods at a particular time and place, and no payment has been made; the true measure of damages is the difference between the contract price and that of like goods at the time and place where they should have been delivered; but if there be no market value at the place of delivery, the value of the goods should be determined at the nearest place where they have a market value, deducting the extra expense of delivering them there.” In Tuttle-Chapman Coal Co. v. Coaldale Fuel Co., 136 Iowa, 382 (113 N. W. 827), the 3d headnote is as follows: “If there is no market value of like property at the place of delivery provided in the contract, then its value at other places not too remote' can be shown, for the purpose of fixing the damages for a breach of the agreement.”

While it will be seen from the above that in fixing the market price some latitude is'allowed, both as to the place and time, and that “where there is no market price some other criterion must be adopted,” yet before this “other criterion” can be adopted, as was attempted in the instant case, the pleading must show that the goods to be delivered had no market value at the time and place of delivery, under the foregoing rulings.

It was contended that the measure of damages insisted on by the plaintiff in error is correct because the lumber was bought for resale. The 3d paragraph of the petition is as follows: “ On said date petitioner was, as it still is, engaged in the manufacture of lumber, and in buying and reselling pine lumber at wholesale, as was known to defendant the date aforesaid.” This is not sufficient to bring home to the seller, “at the time the offer was accepted,” knowledge that this particular lumber was bought to be resold. The 5th headnote in Huggins v. Southeastern Lime & Cement Co., supra, is in part as follows: “If, at the time the offer was accepted, the seller was not notified that the goods ordered had been resold, the buyer would not be entitled to recover either the difference between the contract price and the price of the resale, or damages which he had sustained growing out of his inability to deliver to the person to whom the goods had been resold.” In the decision Justice Cobb said: “That portion of.the plea, taken-in connection with the other parts of the plea, alleges facts which would be sufficient to authorize a recovery of an amount representing the difference between the price of cement stated in the contract and the market price in Athens at the time delivery should have been made. But the plea does not claim damages of this character, the damages claimed being the difference between the contract price and the price at which the cement was sold to the Tallassee Company, together with the amount of damage which that company claims against Huggins on account of his failure to comply with his contract of sale. Huggins is not entitled to recover damages of this character, unless the Cement Company had notice that the order was for cement which was to be the subject of a resale. Wappoo Mills v. Guano Co., 91 Ga. 396 (18 S. E. 308). Of course the Cement Company knew that Huggins as a dealer would buy only for the purpose of reselling; but before it would be liable for tire special damages resulting from a failure to fulfill a particular contract of resale, it was entitled to notice that the goods embraced in the particular order were the subject of a resale.”

The decision last quoted from was predicated upon the decision in Wappoo Mills v. Guano Co., therein cited. In Sanders v. Allen, 124 Ga. 684 (52 S. E. 884), the Supreme Court sustained a judgment granting a new trial upon the ground that the verdict was plainly based upon an erroneous theory as to the measure of plaintiff’s damages. In that ease “the amount of damages claimed by the plaintiffs was the difference between the contract price of the cotton and the price which they were compelled to pay for other cotton in order to fill contracts that they had made on the basis of their contracts with the defendants. It was not alleged or shown that the defendants had any notice that the cotton they contracted to sell the plaintiffs had been resold by them; and in the absence of such a showing no such basis of calculation could be used to compute their damages, the correct measure of damages being the difference between the contract price and the market price at the time the cotton should have been delivered.” In the case last referred to, the defendants did not attack the petition by any appropriate special demurrer, pointing out the defect, and the evidence was in accordance with the allegations ,of the petition, but, notwithstanding, it was held that the verdict for damages was based on an erroneous theory of law and had no legal foundation on which to rest. As against the authorities above cited, it is argued that it was alleged in the petition that the defendant had knowledge and notice of the resale of'the lumber specified in the contract, but an inspection of the petition will clearly show the erroneousness of this conclusion. It is true, as above stated, that it is alleged in the third paragraph of the petition: “ On said date [July 21, 1916, on which the contract was made], petitioner was, as it still is, engaged in the manufaóture of lumber and in buying and reselling pine lumber at wholesale, as was known to defendant at date aforesaid;” but this is not an allegation of notice to' the seller that the goods embraced in the particular order were the subject of a resale. This distinction was clearly pointed out by Mr. Justice Cobb in the opinion in the case of Huggins v. Southeastern Lime & Cement Co., supra, where he said: “Of course the Cement Company knew that Huggins as a dealer1 would buy only for the purpose of reselling, but, before it would be liable for the special damages resulting from a failure to fulfil a particular contract of resale, it was entitled to notice that the goods embraced in the particular order were the subject of a resale'.” Mr. Chief Justice Bleckley clearly pointed out the same distinction in Wappoo Mills v. Guano Co., supra. He said: “There was no evidence showing, or tending to show, that the Wappoo Mills had, at the time of making its contract with the company, any notise of any particular contract of resale which the .company had made or would make. Nothing appears which would justify the assumption that the profits or losses resulting, or-which might result, from any particular resale, were in the contemplation of the parties, so as to make these the measure of damages rather than that measure which the law prescribes in ordinary cases where a contract for the sale and delivery'of goods'is made and broken. Commercial fertilizers have long been a commodity of general commerce, and there would seem to be no reason why damages for the breach of a contract of sale of which they are the subject-matter, should not be measured with reference to market price at the time and place appointed for delivery, instead of the price which a particular purchaser from the first purchaser might agree to pay. The general rule is that one who, by his contract, is entitled to have goods, not yet paid for, delivered to him at a particular time and place, is compensated for his disappointment when 1m is allowed the difference between the price at which he purchased and the market price of the article in the market of delivery. This rule excludes any reference to a particular sale, except in so far as it may be evidence of the market price; and it wholly excludes any addition to the damages by reason of payments, voluntarily or involuntarily made on contract of resale, as a result of a breach thereof occasioned by 'an antecedent breach of the original contract of sale.”

The plaintiff in error relies largely on the case of Hardwood Lumber Co. v. Adam, supra. That ease is easily differentiated 1 from the instant one. There the seller had knowledge at the time of the execution of the contract, and at the time of each extension thereof, that the lumber was purchased for the purpose of resale. The petition in this case does not disclose such a condition. Again, in that case the seller, in answer to letters offering to extend the time of performance, accepted the proffered extension and promised to comply with its contract, so that the purchaser was deprived of the purchased lumber until long after the expiration of the time when, under the original contrkct, the lumber should have been delivered, and at last, long after the lumber should have been delivered, was forced to enter the market and buy lumber to make good the contracts of resale, which the seller had knowledge of from the beginning. In the case at bar it appears from the petition that no lumber was shipped under either contract after September 19, 1916, and that nothing was done by the defendant after that date to encourage the plaintiff in the belief or hope that he would continue to ship lumber under the contracts. All of the lumber specified in the contracts wa§ to be delivered by January 1, 1917. Certainly the plaintiff would have no right to buy lumber 43 days after the date fixed for the delivery of the last installment (and much longer after some of the breaches of the contract), and recover the difference between the contract price and the price so paid. Especially is this so where it procrastinated, with knowledge (as is alleged in paragraph 9 of the petition) that the "market price of lumber had steadily advanced from month to month after defendant had entered into his aforesaid undertakings with petitioner.”

Plaintiff in error insists that the court erred in dismissing the petition because he was 'at least entitled to recover nominal damages for the breach of the contract. In the case of Haber, Blum, Bloch Hat Co. v. Southern Bell Telephone Co., 118 Ga. 874 (45 S. E. 696), by a full bench it was held: "While the breach -of contract would entitle the party injured to nominal damages at least (Code [1895], § 3801), this principle of law does not apply in cases in which only actual and punitive damages are sued for, construing the pleadings most strongly against the pleader.” ' In Sparks Milling Co. v. Western Union Telegraph Co., 9 Ga. App. 728 (72 S. E. 179), it was said: "In a suit for special damages alone, where the plaintiff is not entitled to recover the special damages sued for, there can be no recovery of general or nominal damages.” In Hadden v. Southern Messenger Service, 135 Ga. 372 (69 S. E. 480), the 3d headnote is as follows: "Generally the rule that in every ease of breach of contract the other party has the right to recover nominal damages does not apply where only special and punitive damages are sued for, and where such damages are not recoverable;” and in the decision Fish, C. J., said: “It is true that in every case of breach of contract the other party has a right to recover at least nominal damages, which will carry the costs. Civil Code [1895], § 3801. And where, in a suit for breach of contract, nominal damages are specifically claimed, or such special damages as are recoverable or general damages are alleged, the petition should not be dismissed on demurrer, as setting forth no- cause of action, if it shows a valid contract and a breach of the same. Sutton v. Southern Railway Co., 101 Ga. 776 (29 S. E. 53); Roberts v. Glass, 112 Ga. 456 (37 S. E. 704); Graham v. Macon, Dublin & Savannah R. Co., 120 Ga. 757 (5) (49 S. E. 75); Cowdery v. Greenlee, 126 Ga. 786 (55 S. E. 918, 8 L. R. A. (N. S.) 137). In this case, however, there was no special prayer for nominal damages nor any allegation of general damages, but the only damages sought to be recovered were special damages for the loss of the services of the plaintiff’s wife and punitive damages; and as such damages were not recoverable and there was np allegation of damages in the petition which could possibly cover nominal damages, the cause falls within the general rule, that where only special and punitive damages are sued for, a judgment sustaining a demurrer to the petition will not be reversed because the plaintiff would have been entitled to recover nominal damages if the allegations of the petition as to damages had been sufficient to cover the same. Haber, Blum, Bloch Hat Co. v. Southern Bell Telephone & Telegraph Co., 118 Ga. 874 (4) (45 S. E. 696).” See also Adams v. Bridges, 141 Ga. 418 (d), 419 (81 S. E. 203).

We are therefore constrained to hold that the court did not err “in holding that the proper measure of damages was not set forth in the fourteenth paragraph of the petition, but that plaintiff was entitled to recover only the difference, if any, between the contract price and the market price of the lumber at the time and place of delivery.” Nor did the court err in “dismissing plaintiff’s petition upon its refusal to abide by said ruling and amend its petition accordingly,” for the alleged reason that plaintiff was entitled to recover nominal damages and damages based upon defendant’s alleged bad faith, including reasonable attorney’s fees.”

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    9405.
    Central of Georgia Railway Company v. Haden.
    Decided August 1, 1918.
    Action for damages; from city court of Columbus—Judge Tigner. November 12, 1917.

      Battle & Hollis, for plaintiff in error.

      Hatcher & Hatcher, contra.
   Bloodwortii, J.

1. Under the pleadings and evidence in this case the court erred in refusing to give to the jury certain instructions, duly requested, as follows (this issue not havipg been fully and clearly covered by the charge given) : (a) “In cases where a railway company is sued for an alleged injury, caused by the fright of a horse at the noise of or sight of an engine or ears, the plaintiff can not recover for an injury received from such cause, unless it appears that the noise made by the engine and' cars was both unusual and unnecessary at the time and place set forth and alleged.” (b) “If the engine or cars made an unusual noise, but at the same time a noise necessary, then the plaintiff can not recover. Before she can x-eeover it must appear that the noise made was both unusual and unnecessai-y.”

2. If there were other errors committed they are of such character that they will not likely occur upon a second trial.

Judgment reversed.

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


author: Blood worth, J.

text:
    MAYOR & COUNCIL OF GAINESVILLE v. HANES.
    1. When the chai-ge of the coux’t is considered as a whole, the defendant’s exceptions are not well taken as to the instruction to the effect that, in order to recover, the plaintiff must prove that the defendant was negligent in one or more of the ways alleged in the petition, and that it is not necessaxy that all the grounds of negligence alleged shall be proved; that it would be sufficient if one or more of them were sus- < tained by evidence, under the rules of law given in charge, “if that negligence was the proximate cause of the injury,” and the person injured was in the exercise of ordinary care at the time of receiving the injury. ‘
    2. The charge of the court as to whether notice to a policeman would be notice to the city was not harmful errox-, when considered in connection with the rest of the charge and the facts of the case.

      3. As to tlie damages recoverable where disability from injuries is merely . temporary, and not permanent, the charge of the court was sufficient, in the absence of a request for more full instructions on the subject.
    4. It is not cause for a new trial that the court, after correctly stating to the jury the defendant’s contention that the defect in question was a latent defect, failed to explain what is meant by “latent defect.”
    5. The requests to charge, so far as correct and appropriate, were covered by the charge of the court.

      6. There was ample evidence to support the verdict.
    Decided August 1, 1918.
    Action for damages; Horn city court of Hall county—Judge Wheeler. November 8, 1917.
    The second division of the decision relates to the following ground of the motion for a new trial: “Because the court charged the jury as follows: ‘ As before charged you, the question of notice to the municipal corporation is one for you to determine from the evidence. In that connection I charge you this: that notice to a police officer would not, as a matter of law, be notice to the city. As tp whether or not it would constitute notice to the city would depend upon the relation, of that officer to the municipal corporation, and whether or not notice to a policemán would be notice to the city would depend upon the facts and circumstances surrounding the case.’ Movant contends that this charge was error for two reasons: (a) Because there was no evidence introduced which would . . show that the police officers had any duties with reference to the streets and sidewalks, and the court should have so instructed, the jury; and (5) because, the notice to a policeman which would have bound the city does not depend upon his duties with reference to the municipality, but depends on what his duties are with reference to the streets and sidewalks.”

      C. N. Davie, for plaintiff in error.

      H. H. Perry, W. A. Charters, W. N. Oliver, contra.
   Blood worth, J.

Lester C.-Hanes sued the mayor and council of the City of Gainesville, alleging that his wife, Eula Hanes, while walking on a sidewalk of the city “fell into a meter hole on said sidewalk made there by the said defendant,” and was injured thereby. The following acts of negligence were alleged: “The said corporation was negligent in having said meter hole on and in the sidewalk where individuals constantly passed. The said hole and the said cap over the same was dangerous in character, and said cap or -cover [of] said hole was insecurely fastened. The condition of said sidewalk and said hole and said cap or cover- had been known by the mayor and council of said city for a long time, and had been in its dangerous condition so long that they were charged with the knowledge thereof. The said mayor and council were negligent in not having said cap in a safe condition, were negligent because said hole and said cap had not been properly constructed by the said mayor and council and was originally of unsafe design, and were negligent in allowing said cap to remain in said condition. Said corporation was negligent in not notifying the public of the imperfect condition of said cap that covered said hole, and in not guarding the same, and in not having inspected the same.” The petition furthef alleged that the plaintiff and his “said wife did not know the existence of said hole or that said cap over said hole was not secure, and were without fault on their part.” It was prayed that the plaintiff be awarded $5,000 for the services of his wife, of which he was deprived, and $500 for doctor’s bill and other expenses. There was no demurrer to the petition. The defendant denied liability, and denied “that the cap was in an imperfect condition and that this defendant should have guarded the same.” The trial resulted in a verdict of $500 for the plaintiff. The defendant’s motion for a new trial was overruled, and the movant excepted.

The 4th ground of the motion for a new trial (the first special ground) alleges error in the following excerpt from the charge of the court: “The plaintiff must recover, if at all, by proof to your satisfaction, by a preponderance of the evidence, that the defendant was negligent in one or more of the ways in which'the plaintiff alleges in his petition that the defendant was negligent. I charge you that it is not necessary, in order to give the plaintiff the right to recover, that all of the- grounds of negligence set out in the petition be-proved—it would be sufficient for that purpose if any one or more of the grounds of negligence set out in the petition be sustained by the evidence, under the rules of law which the court has given you, if that negligence was the proximate cause of the injury, and the plaintiff’s wife was herself in the exercise of ordinary care at the time the injury was received, if one was received.” This portion of "the charge is not erroneous for any reason alleged. It is specifically alleged that it is 'erroneous because it withdrew from the consideration of the jury “what is and what is not negligence, and instructed them that each allegation of the allegations in the petition stated negligence.” When considered in connection with the whole charge, we do not think the jury could have put this construction upon it. The court was guarding the jury against basing a verdict on any negligence not alleged, and the charge, properly construed, was not that the jury could base a verdict on any act or omission of the city that was alleged, but that a verdict for the plaintiff could be based only on one or more of the acts alleged to be negligence, and shown to be such by the. evidence. After charging as above set out, the judge charged the jury that before they could find for the plaintiff they “must believe from the evidence, under the rules which the court has given . . in charge, that the defendant was negligent and that that negligence was the proximate cause of the injury. [Italics ours.] It will thus be seen that the words “proximate cause” were expressly used in the charge, and this idea was noi “conveyed indirectly,” as in the case of Atlantic Coast Line R. Co. v. Moore, 8 Ga. App. 185 (68 S. E. 875). In the opinion in that case (p. 186) it appears that the injury was alleged to have been caused by sgven acts of negligence. In discussing these alleged acts of negligence Judge Bussell (p. 192) said: “The plain-' tiff in error insists that a plaintiff can not detail in a petition a number of absurd allegations of negligence and then have the court submit them to the jury, without reasonable evidence to prove them. In regard to this it is only necessary to say that if the allegations of a petition are absurd or unreasonable, and it palpably appears that the statement of facts in the petition would not constitute actionable negligence, a timely demurrer would serve to raise the issue of law and to cause the elimination of those allegations which should not properly be submitted to the jury.” It will be noted that in the instant ease there is no demurrer to the petition. In the case referred to above, Judge Bussell said further: “We do not think that the jury could have failed to understand that the plaintiff could only recover on account of such negligence as was the proximate cause of the injury, even though the term ‘proximate cauge’ was not used. In actions for damages for personal injuries the jury should of course be informed that .an act of negligence which is not the proximate cause of the injury should not be considered; but in the ábsenee of a request for specific instructions upon that point, the fact that the idea is conveyed indirectly, and otherwise than by a pointed statement to that effect, though plainly, does not afford ground for a new trial.” An examination of the charge complained of in this case will show that it is quite different from the one in the case of Alabama Midland Ry. Co. v. Guilford, 114 Ga. 627, 631 (47 S. E. 794), relied on by plaintiff in error, and from which the Moore case, supra, is differentiated by Judge Russell. See also Cavanaugh v. Biggin, 9 Ga. App. 466 (1); Western and Atlantic Railroad Co. v. Watkins, 14 Ga. App. 389 (8).

When considered in connection with the entire charge of the court and the facts of the case, there is no error harmful to the plaintiff in error in the charge complained of in the 5th ground of the motion for a new trial.

The 6th ground of the motion for a new trial is that “the court failed to charge the jury the contention ¿f movant that the liability [disability?] of the respondent’s wife was temporary and not permanent, partial and not total, and failed to distinguish between the two so that the jury could correctly measure the- damages. Movant insists that there was evidence introduced which could support a finding of temporary or partial disability, and the court should have charged upon this contention.” In addition to charging the jury that in fixing the amount of the damages they could “take into consideration the nature of the services and the circumstances of the case” and the extent to which the injury “impaired her services,” the court charged as follows: “The jury may consider all the facts and circumstances in determining the amount, if they determined that the plaintiff is entitled to recover at all, and in that connection you may consider whether those injuries are temporary in their nature, or whether they are permanent in their, nature—that is, whether the loss occasioned by the injuries is temporary, or whether it is permanent. At last your verdict must be based, if for the plaintiff, upon the loss caused to the husband.” If a fuller charge was desired, a request for it should have been made as provided by statute.

There is no merit in the 7th ground,of the motion for a new trial. In this ground it is admitted that “the court, in stating the contention of the defendant, correctly stated that the defendant contended that the defect was a latent defect,” b\it it is insisted that the judge nowhere explained “to the jury the meaning of a latent defect, or what would or would not constitute a latent or a patent defect.” “The failure to charge a proposition of law applicable to the case can not be taken advantage of by assigning error upon a charge which is abstractly correct.” Roberts v. State, 114 Ga. 450 (2), 452 (40 S. E. 297).

As far as correct and appropriate, all the requests to charge were covered by the charge of the court.

There was ample evidence to support the verdict.

Judgment affirmed.

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


text:
    9356.
    Central of Georgia Railway Company v. McRee.
    Decided August 1, 1918.
    Action for damages; from Early superior court—Judge Worrill. October 2, 1917.
    The petition as amended alleges, that the defendant 'has damaged the plaintiff in the sum of $50, by reason-of the following facts: “That on or about the ninth day of June, .1915, the defendant, by negligence of its servants, in and by the running and operating of its cars, engines, and other machinery, carelessly threw or otherwise set out fire from an engine on defendant’s railroad in said county and set fire to the grass and fence on plaintiff’s lands; which fire destroyed a considerable portion of plaintiff’s fence and damaged him in the above-named amount.” “Wherefore plaintiff prays judgment against defendant in the sum of $50, and. that process do issue,” etc. The grounds of the demurrer are: that no cause of action is stated; that “it is not alleged how much fence was destroyed, and the value of the fence alleged to have been destroyed is not alleged;” that “it is not alleged what the acts of negligence complained of consisted of;” and thát “the date on which the plaintiff claims that he was damaged is not alleged” (no date was given in the original petition).
   Bloodworth, J.

1. A petition' to recover damages from a railroad company, which alleges that the defendant “destroyed a considerable, portion of plaintiff’s fence,” is too indefinite to withstand a special demurrer which makes the objection that “it is not alleged how much fence was destroyed.”

2. The other grounds of the demurrer ar.e without merit. See, in this connection, Ellis v. Pullman, 95 Ga. 445 (3), 446 (22 S. E. 568); Augusta & Savannah Railroad Co. v. McElmurry, 24 Ga. 75, 78; Sims v. Western & Atlantic Railroad Co., 111 Ga. 820 (35 S. E. 696); Southern Pine Co. v. Smith, 113 Ga. 629 (38 S. E. 960); Atkinson, v. Dismuke, 11 Ga. App. 521 (75 S. E. 835).

3. The erroneous ruling on the demurrer, as set out above, rendered the further proceedings nugatory.

Judgment reversed.

Broyles, P. J., and EgrweJl, J., concur.

A. H. Gray, L. M. Bambo, for plaintiff in error.

Park & Stone, contra.


text:
    9051.
    Cincinnati, New Orleans and Texas Pacific Railway Company v. Malsby Company.
    Decided July 10, 1918.
    On rehearing, September 17, 1918.
   Jenkins, J.

1. Since no limitation of time for the bringing of actions by carriers for the collection of freight charges in interstate shipments is prescribed by act of Congress, the statute of limitations of the particular State must govern and control in such cases (South Georgia Railway Co. v. South Georgia Grocery Co., 17 Ga. App. 349, 86 S. E. 939); and since liability of the shipper or the consignee for such charges arises by virtue of an expressed or implied promise to pay, and not merely by operation of law, the law of this State governing the limitation of ' actions under statutory rights (Civil Code of 1910, § 4360) is not applicable.

2. While a bill of lading issued by a common carrier is.a “contract in writing” within the meaning of section 4361 of the Civil Code (1910), and as such is binding not only upon the carrier and the shipper, but upon the consignee as well, when the latter' ratifies its provisions by talcing possession of the goods shipped thereunder (Seaboard Air-Line Railway v. Luke, 19 Ga. App. 100, 90 S. E. 1041), .still, where an action by a carrier against a consignee for freight, storage, and demurrage is shown to have been commenced more than four years after the refusal of the shipment by the consignee, the suit is barred under the provisions of section 4362 of the Civil Code. See Central of Georgia Ry. Co. v. Eatonton Lumber Co., 14 Ga. App. 302 (2) (80 S. E. 725).

3. Upon the consignee’s refusal of a shipment it becomes the duty of the carrier to notify the shipper as to the refusal, and to hold the goods subject to the shipper’s order. American Sugar Co. v. McGhee, 96 Ga. 27 (21 S. E. 383). The mere fact that the consignee, on rejecting the shipment, may have given verbal directions for their return to the consignor'would not alter the rule, or amount to a ratification by the consignee of the terms of the bill of lading under which the rejected goods were moved.

Judgment affirmed.

Adhered to on rehearing. Wade, C. J., and Luhe, J., concur.

Certiorari; from-Fulton superior court—Judge Pendleton. June 6, 1917.

McDaniel & Blade, Charles Ciarle, for plaintiff.

A. M. Brand, for defendant.


author: Luke, J.

text:
    9423.
    BLUMENTHAL v. CAIN.
    Where no authority for a private sale of property of a testator’s estate was conferred by the will, a contract privately made in behalf of the executors, by one of them, for a sale of land of the estate, providing that title should be perfected, was contrary to public policy; and an action for breach of the contract was not maintainable. v
    Decided July 30, 1918.
    Rehearing denied September 17, 1918.
    Action for breach pf contract; ■ from Chatham superior court— Judge Meldrfm. November 22, 1917.
    As to individual liability of an executor making an unauthorized contract ¡in behalf of the estate, counsel for the plaintiff cited: Walton v. Reid, 148 Ga. 176 (96 S. E. 214); King v. Johnson, 96 Ga. 498; 18 Cye. 248; 11 E. C. L. 166; Civil Code (1910), § 3613; Anderson v. Foster, 105 Ga. 563; Parlcer v. Barlow, 93 Ga. 700 (2); Allen v. Hurst, 120 Ga. 763.

      Osborne, Lawrence & Abrahams, for plaintiff.

      Adams & Adams, for defendant.
   Luke, J.

Blumenthal sued Cain, not as executor but as an individual, for $4,125 damages, alleging: that Cain, as executor of the Downs estate, and in behalf of the other executors, contracted with him in writing to sell to him certain land of the estate for $10,000 when the executors should perfect title to the property; that, under the will the defendant did not have authority to sell said property at private sale, but'the plaintiff did not know, this at the time the contract was made; that the plaintiff was at all times ready, able, and willing to pay to Cain the purchase-price stipulated, but Cain, instead of complying with the contract, in behalf of himself and the executors, offered the property for sale at public outcry, and it was then and there bid off by another person for $14,125, the market price of the property, and Cain thereby became indebted to the plaintiff in the sum sued for. The defendant demurred on the ground that no cause of action was set forth; The trial court sustained the demurrer on the ground “that the ■contract is contrary to public policy and void, because sales by, executors, unless otherwise provided by the will, must be by public .outcry.”

Section 4035 of the Civil Code of 1910 declares .that “A private sale of land, under an obligation to perfect by legal formality, is contrary to public policy, and renders such sales always open to review at the option of parties at interest.”. “While such contracts are executory, being contrary to public policy, they can not be enforced either at law or in equity.” Campbell Coal Co. v. Baker, 142 Ga. 434 (83 S. E. 105). See also Logan v. Gigley, 9 Ga. 114; Bond v. Watson, 22 Ga. 637; Downing v. Peabody, 56 Ga. 40; Park’s Annot. Code, § 4253. It follows, therefore, that the court did not err in sustainiiig the demurrer and - dismissing the; petition.

judgment affirmed.

Wade, C. J., concurs. Jenkins, J., not presiding.


author: Bboyles, P. J.

text:
    9024.
    Anderson v. Bibb Manufacturing Company.
    Decided July 30, 1918.
    Rehearing denied September 17, 1918.
    Action for damages;'from Bibb superior court—Judge Mathews. June 23, 1917.
    ■ Napier & Maynard, for plaintiff.

      Miller & J ones, for defendant.
   Bboyles, P. J.

Under the facts of this case as disclosed by the record, it does not appear that the court erred in granting a nonsuit, or in thereafter refusing to reinstate the case.

Judgment affirmed.

Harwell, J., concurs; Bloodworth, J., dissents.


text:
    9339.
    STALLINGS v. DeBARDELEBEN COAL COMPANY.
    Under the particular facts of this ease the’court did not err-in granting a nonsuit or in refusing to reinstate the case.
    Decided July 30, 1918.
    Rehearing denied September 17, 1918.
    Action for breach of contract; from Colquitt superior court-judge Thomas. October 30, 1917. ' ■
    L. Y. Stallings brought suit by attachment against the DeBardeleben Coal Company. The suit was for damages for failure of the defendant to ship 500 tons of Sipsey coal to the plaintiff according to the terms of a contract between them, dated April 12, 1916. The plaintiff, by amendment, alleged that he ordered 50 tons of coal on October 13, 1916, and 50 tons on October 18, 1916, and that on December 27, 1916, he ordered 200 tons to be shipped in January, 1917, and 200 tons to be shipped in February, 1917; all of which orders .the defendant failed and refused to fill, stating to him that it refused to ship any coal at all to him, and renounced and repudiated the contract. The defendant answered, admitting the contract as alleged, and pleaded certain provisions of the contract, which, so far as material, are stated in the following opinion. It pleaded the failure of the plaintiff to place any orders for coal with the defendant until October 15, and that it then received orders from its contract .customers for all of the Sipsey coal that could be mined and marketed prior to December 15. Further, that floods curtailed the output of the mines and that the shortage of cars prevented shipments from being made. Further, that it never declined or refused to ship to the plaintiff coal in conformity with the terms of the contract, but, on the contrary, that it agreed repeatedly to comply with the contract and to furnish to the plaintiff coal in such amounts as it was able to supply under a pro-rata division of available supply with other obligations, etc. After introduction of evidence by the plaintiff the court, on motion of the defendant, granted a nonsuit. The plaintiff made a motion to vacate the judgment of nonsuit and to reinstate the'case. The judge overruled the motion, and the plaintiff'excepted.

      Parker & Gibson, for plaintiff.

      Branch & Snow, Shipp & Kline, for defendant.
   Harwell, J.

(After stating the foregoing facts.) Was there a breach of the contract by the defendant by its failure to ship coal as ordered by the plaintiff? The contract is admitted by the defendant, It is further admitted by the defendant that it shipped no coal to the plaintiff under this contract. It also appeared from the correspondence that two ears of coal of 50 tons each were ordered by the plaintiff to be shipped under this contract, one on October 13th, 1916, to be shipped at once, and one on October 18, 1916, to be shipped November 15, 1916. The defendant, however, relies on the following clauses of the contract to relieve it from any breach for failure to ship the coal as ordered by the plaintiff: “This contract is one of a number of contracts made by the seller and is made subject to strikes, accidents, car supply, or other causes beyond their control. The buyer and seller, in entering into this contract, realize the uncertainty of absolute deliveries growing out .of. strikes, casualties, or other causes beyond the control of either party; and it is hereby mutually acknowledged that the intent of this agreement is not to bind either party, as to the failure to perform or modify performance by reason of the matters beyond the control of the party in default,.but that the material shall be shipped by the seller and accepted by the buyer as per delivery specified, so far as labor, the physical condition of the respective plants, and the ability of carriers will permit. It is mutually understood and agreed, however, that in the event of only (partial fulfillment of this contract through restriction of output from causes beyond the control of the seller, then the buyer shall accept without recourse such amount of Sipsey coal as seller may'be able to supply under a pro-rata division of available supply with other obligations.” • .

It is necessary to determine the proper construction to be put upon this contract. The contract is 'one of a number of contracts for the delivery of coal made by the seller. Of.this the buyer was put on notice by the contract and he accepted it with this understanding. - In the event of any partial fulfillment of the contract “though restriction of output from causes beyond the control of seller, then the buyer shall accept without recourse such amount of Sipsey coal as the seller may be able to supply under a prorata division of available supply with other obligations.” The -defendant was obligated to its customers to ship “as ordered.” It. must await orders from the buyer,, and if no orders came it could not ship. After receiving and accepting orders' from customers, if the available supply of coal was exhausted by reason of floods, or if , the coal company was unable to supply the coal as ordered, or upon the date ordered by the buyer, by reason of its inability to > ship on account of the shortage of cars or other conditions provided for by the contract, it could not be held liable for a breach thereof. It is true that súch a contract is favorable to the coal company. The plaintiff must accept without recourse what- the coal company is able to supply under a pro-rata division of the available supply with other obligations. The buyer cannot, under such a condition, be certain that he will get the coal which he purchases. Courts, however, must enforce contracts as they find them.' '. '

The plaintiff introduced the entire correspondence between the parties. This includes the letters from the .defendant. The defendant insists that if it be true that a primá facie case of breach was made out by the failure to ship as ordered by the plaintiff, it was completely rebutted by the evidence introduced by the plaintiff, to wit, the letters from the defendant, and that, having introduced this evidence, the plaintiff is bound by it, and that this evidence completely relieves the defendant from any breach of the contract. We do not think the plaintiff is conclusively bound by the declarations of the defendant in these letters. In Christian v. Macon &c. Ry. Co., 120 Ga. 314 (47 S. E. 923), it wasasaid: “Where a party introduces statements of his adversary which are partly in his favor and partly against him he is not concluded by the self-serving portions of said statements, nor estopped to contradict them. . . These cases show that a party who introduces a witness is not absolutely bound by his testimony, but may contradict him and show the real facts of. the case. Nor are the jury bound to believe that part of the declaration which is in favor of the party making them. They may believe or reject the whole, or for sufficient reasons they may believe part and reject the remainder.” Mr. Chief Justice Simmons quoted from the case of Bearss v. Copley, 10 N. Y. 93, as follows: “The referee was also right in denying the motion for a nonsuit. Plaintiff had given evidence tending to establish his employment and the length of time he had labored for the defendant. He then showed by the declarations of the defendant his dismissal and the amount of his salary. In the course of the same conversation defendant said that the plaintiff got drunk, was absent and neglected his duties. Defendant insists that the admission must be taken together, and in this he is correct; but as there was other evidence the referee was not obliged to give equal credit to every part of the transaction.”

While the plaintiff was not bound conclusively by this evidence, it is nevertheless evidence which must be considered, the plaintiff having introduced it; and unless there' is some evidence which would authorize the jury to reject the declarations of the defendant, and to find that no such conditions existed as insisted on by the defendant in this correspondence, the court was right in holdT ing that no breach was shown. Compare Johnson v. Sun Fire Ins. Co., 3 Ga. App. 430 (60 S. E. 118); Donaldson v. Marsh Cypress Co., 9 Ga. App. 267 (2) (70 S. E. 1121).

The declarations of the defendant as contained in its letters introduced by the plaintiff show such a curtailment of output on account of conditions provided for in its contract and the shortage of cars as made it impossible for the coal company to deliver the coal to the plaintiff except upon delayed shipments. The coal company offered to make delayed shipments, but the plaintiff refused to accept these offers of delayed shipments, and insisted upon delivery as requested in his- orders. These declarations of the defendant as contained in its letters relieve the deféndant of any breach. " ■

On October 2 the plaintiff received a letter from the defendant, apprising him of the curtailment of the output of the mines on account of July floods and the shortage of railroad cars, and that the coal company had not completed all of its August orders, and would have to carry its September business to October, and that it could not accept orders for Sipsey lump coal for shipment sooner than November. Notwithstanding this notice, the plaintiff sent no order until October. 13. The correspondence further shows that before any -orders were received from the plaintiff, the defendant had received and accepted orders from contract customers for all Sipsey lump coal that could be shipped prior to December. The correspondence further shows an offer of the defendant top make delayed shipments of - coal to the plaintiff in December, and that the plaintiff rejected this offer.

The correspondence, considered in connection with the contract, we think makes, out a complete defense for the coal company and negatives any breach of the contract. It is true that this comes from letters of'the defendant, but it is evidence, nevertheless, introduced by the plaintiff. The plaintiff attempted to rebut this evidence by offering .evidence of shipments of coal made by the defendant to other parties. But this evidence, without attempting to discuss it, is not, In our opinion, sufficient to show,any breach of the contract by the defendant.

The burden was on the plaintiff to show that he was damaged. It was incumbent on the plaintiff to submit evidence showing tbe market price of Sipsey coal of the special grade ordered at the time of the alleged breach, f. o. b. the mines, or to 'furnish data from which the jury could arrive at this' market price. It may here be noted that the orders sent on October 13 and October 18 did not specify the grade of Sipsey coal to be delivered, and there were three grades with varying prices named in the contract. Moreover, upon a careful examination of the evidence, we hardly think there,is evidence sufficient to show the market price, or data by which the market price at the mines could be determined. The court did not err, therefore, in granting the nonsuit or in refusing to reinstate the ease, and the judgment is ,

Affirmed.

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


text:
    8305.
    Morrison, adm’r, et al. v. Slaton, Governor, for use, etc.
    Decided September 17, 1918.
    Action upon bond; from Richmond superior court—Judge IT. C. Hammond. August 8, 1916.

      William PL. Fleming, Bryan Gumming, Barrett & Hull, for plaintiffs in error. Callaway & Howard, contra.
   Jenkins, J.

This case was formerly passed upon by the. Supreme Court, and is reported in 144 Ga. 471 (87 S. E. 390). There it was held that the suit was upon the official bond of the sheriff, and set forth a cause of action. Upon the second trial in the court below a verdict was directed against each of the defendants. Upon its being thén brought here for review, on exceptions to the overruling of their motion for a new trial, certain questions of law involved in the record were certified by this court to the Supreme Court. In view of the instructions of that court (148 Ga. 294, 96 S. E. 422), it is now held by'this court that as to- H. C. Morrison, administrator de bonis non of Mary E. O’Connor, the plaintiff’s petition set forth no cause of action; and as to him the judgment of the court below is reversed. As to the other defendant, the Fidelity & Deposit Company of Maryland, the judgment is affirmed, with direction that the amount recovered by the plaintiff be reduced by calculating and including interest only from October 2, 1911, on which date an administrator was appointed upon the estate of J. P. Wilde.

Judgment reversed in part, and affirmed in part, with direction.

Wade, G. J., and Luloe, J., concur.


author: Wade,. C. J.

text:
    8601, 8739.
    Glynn County v. Dubberly; and vice versa.

    Decided September 17, 1918.
   Wade,. C. J.

Under the answers of the Supreme Court to questions certified in this case by the Court of Appeals (148 Ga. 290, 96 S. E. 566) the following rulings necessarily result:

1. Under the provisions of sections 1202 and 1235 of the Civil Code of 1910, a tax-receiver is not entitled to one half of the commissions on the amount which the tax-collector of his county receives for collecting taxes from public-service corporations which make their tax returns directly to the comptroller-general, and which make no returns whatever to such receiver. These sections fix the rate of compensation where the tax return is entered on the digest of the tax-receiver, but have no ap'plication to returns made exclusively to the eomptroíler-general of the State and which are not entered on the tax-receiver’s digest.

(a) The trial court therefore erred in not ordering that the execution proceed for the full amount of the several principal sums claimed therein, and in sustaining the affidavit of illegality as to a part of said sums.

2. Where a tax-receiver is paid by the county authorities larger amounts than are lawfully due him as commissions, and thereafter fails and refuses to pay back such excess on demand, and execution issues against him and his sureties for the amount or amounts unlawfully retained by him, the legal ra.te of seven per cent, per annum only should be collected on the principal amount or amounts, and he is -not liable for interest at the rate of twenty per cent, per annum as provided in section 1187 of the Civil Code of 1910, relating to tax-collectors. There is no statute (as in the case of a county treasurer,—see Civil Code, § 585) putting the tax-receiver on the same basis as the tax-collector in this respect; and the same reasons for exacting a penalty of twenty, per cent, do not exist.

(o) The court therefore did not'err in directing that the execution should proceed for interest at seven per cent, per annum only, instead of at the rate of twenty per cent, per annum as claimed in the execution, and in sustaining to this extent the affidavit of illegality.

3. A defendant in execution cannot by demurrer or motion to quash raise issues and matters of defense which could have been included in the original affidavit of. illegality, or could have been added to it by way of amendment (by making oath that he did not know of such additional grounds when the original affidavit was made, as provided by section 5704 of the Civil Code), even though he had made or attempted to make the following reservations in his original affidavit of illegality: “that he makes this affidavit without prejudice to and' expressly reserving unto himself the right to hereinafter make and take ' any and all manner of exception that can or may be had by way of demurrer, mption to dismiss,' or otherwise, to the aforesaid execution, both in form and in substance, and as to the proceedings previous to its issue and upon which it is founded, the manner of its issuance,'-'the levy made thereon, and all things appertaining to the sam'e.”

Judgment reversed in part and affirmed in part on main 5ill of exceptions; cross-bill dismissed.

Jenlcins and Tnihe, •/,/., concur."

Affidavit of illegality of execution; from Glynn superior court— Judge Highsmith. .February 13, 1917.

B. D. Meader, for Glynn County. J. T. Colson, contra.