text:
    10485.
    Standard Pharmacy v. Commercial Security Co.
    Decided December 23, 1919.
    Complaint; from city court of Waynesboro—Judge W. H. Davis. March 3, 1919.

      Brinson & Hatcher, for plaintiff in error.

      Moore & Pomeroy, F. 8. Burney, C. F. CoUerill, contra.

   Stephens, J.

In a suit upon promissory notes by a transferee of the notes, where the defendant admitted a prima facie case and assumed the burden of proving as its defense that the plaintiff purchased the notes with notice of an infirmity therein, the trial judge did not err in directing a verdict for the plaintiff upon the failure of the evidence to disclose any fact or circumstance within the knowledge of the plaintiff prior to the purchase of the notes which would put a prudent man on his guard as to any defense which the defendant might have had against the payee of the note.

Judgment affirmed.

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


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    10574.
    Hammond v. Director-General of Railroads.
    Decided December 23, 1919.
    Action for damages; from Henry superior court—Judge Searcy. April 22, 1919.
    Application for certiorari was denied by the Supreme Court.

      Reagan & Reagan, Reuben R. Arnold, for plaintiff.

      Harris, Harris & Witman, Smith & Turner, for defendant.
   Jenkins, P. J.

The judgment of the court below in this case having been based upon the decision of this court in Knight v. Savannah Electric Co., 20 Ga. App. 314 (93 S. E. 17), and the principle involved in the Knight case having been overruled by the recent decision of the Supreme Court in Central of Georgia Ry. Co. v. Moore, 149 Ga. 581 (101 S. E. 588), on a question certified to it by this court, the judgment of the court below in the instant ease, sustaining the demurrer to the plaintiff’s petition, must be reversed. The ruling here made disposes of the only question argued in the briefs of counsel.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10582.
    Bernhardt v. Federal Terra Cotta Co.
   Jenkins, P. J.

1. The mere acceptance of purchased goods after the agreed time of delivery, will not of itself, and unaccompanied by attending circumstances manifesting such an intention on the part of the buyer, amount to a waiver of the resulting damages on account of the delay. Van Winkle v. Wilkins, 81 Ga. 93 (7) (7 S. E. 644, 12 Am. St. R. 299); Poland Paper Co. v. Foote & Davies Co., 118 Ga. 458 (45 S. E. 374); Tuttle v. Stovall, 134 Ga. 325, 329 (67 S. E. 806, 20 Ann. Cas. 168); Greene County Oil Co. v. McCaw Mfg. Co., 9 Ga. App. 39 (70 S. E. 201). See also Johnson v. North Baltimore Bottle Glass Co.; 7 L. R. A. (N. S.) 1114, and note (74 Kan. 762, 88 Pac. 52, 11 Ann. Cas. 505). Where the seller has broken the terms of the contract as to the time for the delivery of the goods, an offer by the buyer to accept them and waive all damages for previous delays, on the express condition that the goods be delivered on a specified day, would be conditional only, and would not be binding on the buyer until compliance with the condition. Gude v. Bailey Co., 4 Ga. App. 226 (61 S. E. 136); Georgia Creosoting Co. v. McIntosh Land & Timber Co., 23 Ga. App. 561 (99 S. E. 166); Alabama Construction Co. v. Continental Car Co., 131 Ga. 365 (8) (62 S. E. 160). Thus, the plaintiff in this case having failed to deliver the goods on the day named in the offer to waive, but having delivered only a portion thereof on the day following that specified, it can not be said as a matter of law that the acceptance by the buyer of the delivery of the portion thus made was a waiver of damages resulting from the original breach. Anything said in Hollister v. Bluthenthal, 9 Ga. App. 176 (8) (70 S. E. 980), in conflict with the ruling here made must yield to the decisions of the Supreme Court and the former decisions of this court above cited.

2. Where the parties to a contract mutually agree therein that in case one of them fails or refuses to comply with the terms thereof, he shall pay to the other a stated sum of money, which is reasonable in amount, and it appears, from 'the proper construction of the entire contract, that the actual damages resulting from a breach thereof were the subject-matter of calculation and adjustment between the parties, and that the sum thus specified was really intended by the parties as actual compensation and not as a mere deterring penalty, the law will enforce the contract as made, according to its true intent and purpose, even regardless of any mere descriptive name by which the parties may have designated such sum in the contract. Allison v. Dunwoody, 100 Ga. 51 (28 S. E. 651); Heard v. Dooly County, 101 Ga. 619 (28 S. E. 986); Florence Wagon Works v. Salmon, 8 Ga. App. 199 (68 S. E. 866). But in this case, although the defendant contractor sets up by amendment that the sum provided for by his contract with the owner as a penalty for delay does in point of fact represent the actual rental value of the property, and while such an allegation would be proper, and perhaps a necessary one, in order for such a contract for liquidated damages to bind the plaintiff, still the amendments nowhere nor in any way undertake to strike the several different averments contained in the original plea, wherein the sum pi-ovided for in the contract with the owner was plainly sued for as, and in terms repeatedly stated to be, a penalty; nor do the amendments show that the sum Still sued for as a penalty was arrived at and agreed upon by the contractor and owner as liquidated damages, representing the actual rental value; nor is there any allegation that such sum had been paid by the contractor to the owner. The trial court therefore did not err in construing the plea as seeking to enforce an illegal penalty as to this portion of the defendant’s claim.

Decided December 23, 1919.

Complaint; from Fulton superior court—Judge Pendleton. March 13, 1919.

William A. Fuller, Troutman & Troutman, for plaintiff.

Mayson & Johnson, for defendant.

3. It not being alleged in the defendant’s plea why or wherein it was necessary that he should have made a trip to New York by reason of the plaintiff’s failure to deliver the purchased building material within the agreed time, it does not appear that such expenses set up as damages directly or logically resulted from the delay on the part of the plaintiff. The trial judge did not err in treating them as an improper charge. Harrell v. Southern Ry. Co., 14 Ga. App. 451 (81 S. E. 384).

4. Where by breach of contract one is injured, he is bound to lessen the damage as far as practicable by the use of ordinary care and diligence. Thus, expenses reasonably and necessarily incurred for such a purpose by the contractor, and made necessary by reason of the breach of plaintiff in failing to furnish the material according to its contract, may properly be pleaded in defense to an action on the contract by the defendant. Civil Code (1910), § 4398; Gore v. Malsby, 110 Ga. 893 (2) (36 S. E. 315). It appearing from the plea that the plaintiff had knowledge of the terms of the contract between the contractor and the . owner, under which the contractor had agreed to complete the work by a specified time, it was proper for the contractor to set up against the plaintiff’s suit certain alleged extra necessary and reasonable sums actually expended by him in his effort to reduce the damages for delay to which the owner, under the law, would be entitled. Whether or not such alleged sums were reasonable and proper would be a question for the jury to determine. The court therefore erred in striking this portion of the plea.

(a) While a part of the extra expense alleged to have been thus incurred was for extra priced labor performed on Sunday, which was illegal, and for which the defendant could not recover (Williams v. Allison, 10 Ga. App. 840, 74 S. E. 442), the disallowing of such illegal portion of the claim was matter for special and not general demurrer. Gould v. Atlanta, 60 Ga. 164; Munnerlyn v. Augusta Bank, 88 Ga. 333, 339 (14 S. E. 554, 30 Am. St. R. 159, 339); Harris County v. Brady, 115 Ga. 767 (42 S. E. 71). Eor the reason stated in this paragraph, the judgment of the trial court in striking the entire plea on general demurrer is

Beversed.

Stephens and Smith, JJ., concur.


author: Stephens, J.

text:
    10639.
    Central of Georgia Railway Company v. Payne.
    Decided December 23, 1919.
    Certiorari; from Walker superior court—Judge Wright. May 3, 1919.

      Rosser & Shaw, for plaintiff in error.

      Henry & Jackson, contra.
   Stephens, J.

This case was brought by the plaintiff in the justice’s court against the railroad company, charging defendant with negligently killing plaintiff’s hog by running against it with a car while the hog was upon the defendant’s railroad-track. In addition to the presumption, there was some evidence from which the jury could infer negligence on the part of the defendant. The errors complained of in the petition for certiorari being contained only in the general grounds, and the judge of the superior court having overruled the same, this judgment will not be disturbed. A. B. & A. Ry. Co. v. Poncell, 22 Ga. App. 713 (97 S. E. 103).

Judgment affirmed.

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


text:
    10665.
    Tift v. Shiver & Aultman.
   Jenkins, P. J.

Shiver & Aultman, a partnership, brought an action to recover $303.16, of which sum $250 was alleged to have been deposited by them with the defendant, A. C. Tift, as a bonus, in accordance with the provisions of a dealer’s contract entered into between them, which contract, under authority contained therein, had been cancelled by the defendant, and which provided that upon its cancellation by either party the defendant was to return this deposit to the plaintiffs, or so much thereof as should remain due, after applying such part of the deposit as might be necessary to settle and pay all indebtedness and claims owing by the plaintiffs to the defendant. The defendant set up as a defense certain damages alleged to have been sustained by him because of the failure of the plaintiffs to order out and pay for certain automobiles under the contract, and also that the plaintiffs were indebted to him in the sum of $22.32 for certain advertising matter furnished by the defendant and accepted by the plaintiffs under the terms of the contract. He also contended that the suit for the deposit paid in under the terms of the contract could not be maintained for the reason that the plaintiffs had not themselves complied with the contract, for the reason already stated. The defendant made a motion to dismiss the petition, upon the ground that it did not really allege “that the deposit sued for had actually been paid to the defendant. This motion the court overruled, and to this judgment the defendant entered exceptions pendente lite. The jury returned a verdict in favor of the plaintiffs for the full amount sued for, but judgment was only entered up for the principal sum of $300, since two of the items sued for were not proved. The defendant made a motion for a new trial, and to the judgment overruling the motion he excepted. Held:

1. “Exceptions pendente lite can not be considered unless error is assigned thereon either in the main bill of exceptions or in the reviewing court by counsel for plaintiff in error before argument begins.” Jones v. State, 21 Ga. App. 22 (93 S. E. 514). While the bill of exceptions recites that exceptions pendente lite were duly taken to the overruling of the motion to dismiss the plaintiff’s petition, no assignment of error was made either in the bill of exceptions or in this court, and the judgment overruling the motion to dismiss can not be considered.

2. The court did not err in permitting the witness for the plaintiff to testify to the payment made by check to the defendant, without first introducing in evidence or accounting for the check by which the payment was made. While evidence of the manner of payment, identifying the specific checks claimed to have thus been turned over in payment, would add probative value to the proof relied on to establish such payment, the act of payment is the essential fact to be shown. Armour Fertilizer Works v. Dwight, 22 Ga. App. 144 (1) (95 S. E. 746).

3. An executory contract for the future sale of a commodity is not enforceable unless by the terms of the agreement it is so intended, and there is mutuality of obligation and certainty as to the subject? matter and the price. Under the rule just stated, a dealer’s contract establishing such a relationship between the local dealer and the defendant distributor of automobiles, which provides that the distributor Í3 to furnish (provided he is able to do so), and in which the dealer, acting in his capacity as such, agrees to accept, a certain number of cars to be selected from an attached schedule of models at prices which are subject to change by the distributer, does not constitute a binding executory contract of purchase and sale; and it is necessary that the dealer shall, during the life of the contract, particularly specify the cars which are to be thus furnished, in order to consummate the agreement as one of absolute purchase and sale (Overland Motor Car Co. v. Hill, 145 Ga. 785, 89 S. E. 833); especially is this true where it is also provided that either party has the arbitrary right to cancel the agreement on notice at any time. White Co. v. American Motor-Car Co., 11 Ga. App. 285 (75 S. E. 845). While it is the general rule that a party claiming solely under and by virtue of the terms of an alleged executed contract must show performance on his own part (Bennett v. Burkhalter, 128 Ga. 154, 57 S. E. 231), still, even if the purport of the present suit be so construed, the expressed purpose and intent of the contract being considered, and the agreement being inchoate as to any purchase and sale, the failure of the dealer to specify and order out any of the cars would not, therefore, constitute such non-performance on his part as would prevent a recovery by him of the bonus paid in under the terms of the dealer’s contract, nor could such failure be pleaded by way of damages in answer io such a suit.

4. The evidence demanded a verdict in favor of the plaintiffs in the amount of the judgment rendered, less the item set up by the defendant for advertising matter; for which sum, under the terms of the contract and the undisputed evidence, the plaintiffs are liable. This ruling being controlling, the special grounds of the motion for a new trial not specifically disposed of need not be considered, and the judgment is affirmed, -with direction that when the judgment of this court is made the judgment of the court below, the plaintiffs write off from the judgment rendered the sum of $22.32.

Decided December 23, 1919.

Rehearing denied February 7, 1920.

Action on contract; from city court of Tifton—Judge Price. June 2, 1919.

Fulwood & Hargrett, for plaintiff in error.

J. 8. Bidgdill, contra.

Judgment affirmed, mth direction.

Stephens and Smith, JJ., concur.


author: Smith, J.

text:
    10746, 10773.
    Central of Georgia Railway Co. v. Bibb Brick Company; and vice versa.

    Decided December 23, 1919.
    (Certiorari granted by the Supreme Court.)
    Appeal; from Bibb superior court—Judge Mathews. July 1, 1919.

      T. 8. Felder, B. C. Jordan, for plaintiff.

      John B. L. Smith, Grady G. Harris, for defendant.
   Smith, J.

1. “A party who is dissatisfied with the award in condemnation proceedings which have been instituted to assess the damages to private property taken for public use, and who desires to appeal from-the decision of the assessors to the superior court, is not required to give bond for the eventual condemnation money as in case of other appeals.” Alderman v. Valdosta &c. R. Co., 9 Ga. App. 526 (71 S. E. 931).

2. Where, in condemnation proceedings instituted to assess the damage to private property taken for public use, the condemnor desires to appeal from the decision of the assessors to the superior court, an appeal entered by the attorneys at law for the condemnor is good in law. Civil Code (1910), § 4955.

3. Under the above rulings the court erred in dismissing the appeal.

Judgment reversed on the main hill of exceptions, and affirmed on the. cross-hill.

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


text:
    10911.
    Central of Georgia Railway Co. v. Sparks.
   Smith, J.

The allegations in the petition in this case and the amendment thereto are substantially the same as those in the case of Smith v. Central of Georgia Ry. Co., 22 Ga. App. 572 (96 S. E. 570), and the ruling made in that case controls the decision of this case. The court erred in allowing tlie amendment, and in thereafter overruling the demurrer to the petition as amended.

Decided December 23, 1919.

Action for damages; from Talbot superior court—Judge Howard. September 1, 1919.

Battle & Hollis, for plaintiff in error.

J. J. Bull & Son, contra.

Judgment reversed,

Jenlcins, P. J., and Stephens, J., concur.


author: Luke, J.

text:
    9698.
    City of Warrenton v. Smith.
    Decided January 6, 1920.
    Action for damages; from Warren superior court—Judge Walker. April 3, 1918. See 23 Ga. App. 241.

      E. P. Davis, for plaintiff in error.

      E. T. Shurley, Holden, Jennings & Holden, contra.
   Luke, J.

The petition set out no cause of action, and the court erred in overruling the general demurrer. See City of Warrenton v. Smith, 149 Ga. 567 (98 S. E. 71).

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10504.
    Linsley v. McCrackin.
    Decided January 6, 1920.
    Rehearing denied January 28, 1920.
    Complaint; from city court of Yaldosta—Judge Cranford. March 14, 1919. -
    Application for certiorari was denied by the Supreme Court.

      Dan. R. Bruce, for plaintiff in error.

      Patterson & Copeland, contra.
   Luke, J.

In this chse the issues raised by the pleadings and the evidence were fully and fairly submitted to the jury. The evidence, though in some respects conflicting, authorized the verdict, which has the approval of the trial judge. Eor no reason assigned can we find error requiring a reversal of the judgment overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10520.
    Smith et al. v. Rome Hardware Co., for use, etc.
    Decided January 6, 1920.
    Action on bond; from Floyd superior court—Judge Wright. February 7, 1919.

      M. B. Súbanles, for plaintiffs in error.

      Maddox &■ Boyal, contra.
   Luke, J.

1. While, as a general rule, a new party is entitled to the same time within which to prepare for trial as if he had been one of the original parties to the cause (Civil Code of 1910, § 5602), and while, as a further general rule, consent of all the parties is necessary to a trial of the cause at the first term after service (Id. §§ 5421, 5659), yet where a rule nisi is duly issued and served upon a proposed new party, who at the first term thereafter appears by counsel and applies for a continuance,, which is denied, and sits silently by while a final judgment and decree is being rendered in the cause, without objecting or thereafter excepting to such final judgment, he will not, in any suit subsequently brought, be permitted to attack such final judgment collaterally. Even if voidable in a direct proceeding brought for the purpose of setting it aside, such a judgment is not absolutely void. Civil Code (1910), §§ 5963, 59G8; and see Kennedy v. Redwine, 59 Ga. 327 (2); Ga. R. Co. v. Pendleton, 87 Ga. 751 (1) (13 S. E. 822).

2. The court did not err in admitting in evidence on the trial of this case the final judgment referred to above, which had been rendered in a former case and at a former term of the same court, and which was objected to on the ground that it was absolutely void.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eoneur.


text:
    10551.
    Morrow v. Young.
    Decided January 6, 1920.
    Trover; from Dougherty superior court—Judge Harrell. March 26, 1919.
    Application for certiorari was denied by the Supreme Court.
    The petition of Walter Morrow against E. B. Young, as amended, alleges, in substance: The said Young is in possession of certain property described, located at 405 North Washington street, Albany, Georgia, in the building formerly occupied by M. S. Woods, trading as Albany Ice Cream Company. The description given includes an itemized list of machinery, fixtures, supplies, and other property. The property described “is the same property a one-half undivided interest in which Walter Morrow sold to M. S. Woods on June 25, 1914, the other one-half interest being owned at that time by M. S. Woods. All of said property, prior to said sale, had been used by the said Walter Morrow and the said M. S. Woods in the operation of a business known as the Albany Ice Cream Company, at 405 North Washington street, Albany, Georgia, and the same was used by M. S. Woods, doing business in the same name—Albany lee Cream Company—at the same place from June 25, 1914, until the date he was adjudicated a bankrupt in October, 1917.” The said sale of the undivided half interest of Morrow to Woods is evidenced by a contract and retention-of-title notes, dated July 25, 1914, and duly recorded on the same day, copies of which are attached to the petition. The contract recites, in substance, that the parties entered into a contract on September 7, 1912, in which it was agreed that Morrow was to purchase an undivided half interest in the Albany Ice Cream Company from Woods, who was the sole owner of the said company at that time, Morrow agreeing to pay Woods $6,-883.58, and paying $2,000 of this sum in cash, the remainder to be paid on or before December 1, 1914, with interest; that Morrow is desirous of selling his undivided half interest back to Woods, and it is therefore agreed that Woods shall pay to Morrow the amount he has invested in said Albany Ice Cream Company—$5,-920—for Morrow’s undivided half interest “in said Albany Ice Cream Company, including all property, machinery, merchandise, books of account, of every kind and description, connected with and belonging to said ice-cream business,” $2,000 of said amount to be paid in cash, and the remainder to be evidenced by retention-of-title notes for stated sums due on given dates in 1914, 1915, 1916, and 1917; that the contract of September 12, 1912, mentioned above, is hereby cancelled and Morrow is relieved from paying to Woods the balance due under that contract. The notes referred to state that they are given for the purchase-money of an undivided half interest “in the Albany Ice Cream Company this day sold me by the payee, Walter Morrow,” and that the title to said property is to remain in the payee until payment of the notes.
   Luke, J.

Under the facts of the ease as disclosed by the pleadings, the court did not err in dismissing the amended' petition, on general demurrer.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eoneur.

The petition further alleges: “After the said Woods was adjudicated a bankrupt, in October, 1917, Guy 0. Buckner, as trustee for said bankrupt, advertised all of said property for sale, and refused to recognize petitioner’s right, title, or claim to an interest in the same. Petitioner was present at said sale, which occurred on the 8th day of November, 1917, and announced at said sale that he had a retention of title to a half interest in said property as security for the balance of the purchase-money due him for his interest, and that any one purchasing said property would do so subject to petitioner’s interest. Despite this, said trustee announced that he was selling the entire interest in said Albany Ice Cream Company, free of petitioner’s rights; which petitioner then and there denied and still denies.” “The said E. B. Young, the defendant in this case, bid in said property at said sale and took exclusive possession and control of the same, and denied that . . petitioner had any right or interest in the same, and refused to deliver to . . petitioner any interest in said property, or to recognize petitioner’s rights to the same, though demand was made on him so to do prior to the institution of this suit.” The first two of said retention-of-title notes were paid by said Wood and delivered to him, and the last two of said notes, amounting to $2,420, with interest thereon, less certain credits shown on the notes, represent the amount of petitioner’s claim, for which he holds said retention of title as an assurance of payment. “Petitioner claims title to a one-half undivided interest in all of said property described above, and alleges that his said interest in the same is of the value of $2,875.” Defendant refuses to deliver to petitioner a one-half undivided interest in said property, or recognize the validity of petitioner’s claim for the same, or pay him the profits thereof, though demand has been made on him so to do. The yearly value or hire of said property is $230. Wherefore petitioner prays process, etc.

The defendant demurred to the petition generally, and demurred specially to the description of .the property as being too indefinite and uncertain. The court sustained the general demurrer and dismissed the petition, and the plaintiff excepted.

In the brief of counsel for the defendant it was contended: (1) that trover would not lie to recover an undivided interest in specific property incapable of division in kind, where a court of bankruptcy had custody of the res and jurisdiction to administer on it; (2) that in the retention-of-title paper the plaintiff did not retain title to any specific property, and therefore could not maintain trover for specific property; and (3) that the description in the retention-of-title paper is too indefinite, and is void because of uncertainty; and the plaintiff can not maintain trover based on such an uncertain description as against the purchaser from a trustee in bankruptcy having the rights of a judgment creditor.

B. J. Bacon, W. G. Martin, B. II. Bedfearn, for plaintiff,

cited: 137 Ga. 154; 141 Ga. 313; 147 Ga. 27; 24 Ga. App. 474; 120 Ga. 880; 132 Ga. 516; 137 Ga. 324; 94 Ga. 27.

Pottle & Hof mayor, for defendant,

cited: 222 U. S. 300; 211 U. S. 562; 42 Am. Bkr. R. 232; 20 Am. Bkr. R. 573; 8 Ga. App. 262 (1); 7 Ga. 530; Collier, Bkr. (11th ed.) 716; 30 Cyc. 458, 605; 51 Ga. 372 (1); 138 Ga. 568-9; 101 Ga. 136; 43 Ga. 325; 40 Ga. 328; 77 Ga. 536; 84 Ga. 294; 124 Ga. 669; 144 Ga. 375; 19 Ga. App. 69 (2), and cit.; 20 Ga. App. 49, 52.


text:
    10567, 10568.
    Edwards v. Andrews Brothers; and vice versa.

    Decided January 6, 1920.
    Attachment; from city court of Americus—Judge Harper. April 30, 1919.

      W. W. Bylces, for plaintiff in error.

      T. O. Marshall, W. T. Lane, contra.
   Luke, J.

1. In order for a broker to earn a commission on account of the sale of property, he must either have sold it or been the procuring cause of the sale. The owner may sell the property, and if he does not use the broker’s labor to help in the sale, he owes the broker nothing, but if a purchaser procured by the broker buys from the owner, even at a less price than that given the broker, the owner would be liable for the broker’s commission if the broker’s effort was the procuring cause of the sale. See Doonan v. Ives, 73 Ga. 295; Case Threshing Machine Co. v. Binns, 23 Ga. App. 45 (3) (97 S. E. 443), and- cases cited.

(a) The court did not err in overruling the general and special demurrers of the defendant, nor in overruling the motion to dismiss the case.

(7)) The charge of the court, when read in its entirety, was full and fair. The evidence authorized the verdict, which has the approval of the trial judge, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment on main hill of exceptions affirmed j cross-hill dismissed.

Broyles, G. J., ancl Bloodworth, J., concur.


text:
    10575.
    ADAMS v. WALKER.
    Where a promissory note given for the purchase-price of a mule and reserving to the seller the title to the property until payment of the note contains a stipulation that the seller “makes no warranty, either express or implied, as to the soundness, health, or habits of said property, but the maker hereof assumes all risk in reference thereto, and shall not be entitled to an abatement of the amount of this note for any reason whatsoever,” it is no defense to a suit on the note that the mule died without fault of the purchaser, while in his possession.
    Decided January 6, 1920.
    Complaint; from city court of Tifton—Judge Price. May 8, 1919.

      Fulwood & Hargett, for plaintiff. B. D. Smith, for defendant.
   Luke, J.

Adams brought suit upon a promissory note given for the purchase-price of a mule, title to which was retained in Adams until payment of the note. Walker pleaded that he was sued on a retention-of-title note; that after the execution of said note and before it became due, and while the title to the mule for which the note was given was in the plaintiff, the mule died, without fault of the defendant, and that under the law the loss occasioned by the death of the mule fell upon the seller. Upon hearing the evidence the court directed a verdict for the defendant; to which the plaintiff excepted.

This brings up squarely for decision the question as to whether it was “otherwise agreed” in the contract, and involves a construction of that contract. The cardinal rule of construction is to ascertain the intention of the parties. Civil Code of 1910, § 4266. The whole contract should be looked to in arriving at the construction of any part; and words generally bear their usual and common signification. Id. § 4268. Section 4123 states the law invoked in this case, and is as follows: “Where property is sold and delivered, but title is not to pass until payment in full of the purchase-money, and the property is lost, damaged, or destroyed without the vendee’s fault, he is entitled to a rescission of the contract or to an abatement in the price, unless it is otherwise agreed in the contract of sale.” That portion of the contract material in this ease, and which will, for convenience, be hereinafter referred to as “the contract,” is as follows: “It is fully understood and agreed between the parties hereto that said S. N. Adams makes no warranty, either express or implied, as'to the soundness, health, or habits of said property, but the maker hereof assumes all risk in reference thereto, and shall not be entitled to an abatement of the amount of this note for any reason whatsoever.” The first portion of the contract, stating “it is fully understood and agreed between the parties hereto that said S. N. Adams makes no warranty, either express or implied, as to the soundness, health or habits of said property,” undoubtedly is the mere negation of á warranty, referring, since nothing to the contrary appears, to the condition of the mule at the time of the sale. Whigham v. Hall, 8 Ga. App. 509 (1) (70 S. E. 23); 30 Am. & Eng. Enc. Law, 174. The next part of the contract, separated from the foregoing clause only by a comma, is, “but the maker hereof assumes all risk in reference thereto.” It is hardly reasonable to suppose that it was the intention of the parties that the word “thereto” in the foregoing clause should refer merely to the word “property,” and that the meaning is that the buyer assumed all risk in regard to the “property” and would be responsible for its loss, damage, or destruction without the buyer’s fault while in his possession. The outstanding thought in the first clause is the negation of warranty as to the soundness, health, and habits of the mule, and it seems more reasonable to believe that the next clause is merely an amplification of the first, whereby the matter of warranty is more fully set out, the parties saying, in effect, “The seller does not warrant the soundness, health, or habits of the mule, and the buyer assumes the risk as to those things.” The next clause is, “and shall not be entitled to an abatement of the amount of this note for any reason whatsoever.” Considering this clause in connection with the context, why was it inserted? What meaning was it intended to convey? Does it relate to the subject of warranty, the condition of the mule at the time of the sale, or is it intended to bring the parties within the exception of the statute, and to cause the loss of the mule to fall upon the vendee instead of the seller? The subject of warranties is not entirely covered by the preceding part of the contract, and, as the outstanding thought of that part of the contract is the subject of warranty, it might be reasoned with considerable plausibility that the parties, after stating that the seller would not warrant the mules in certain particulars, should then negative all other warranties by stating in substance that the seller refused to make any warranties whatsoever as to the mule’s condition at the time of the sale. Let us then examine carefully the first part of the contract.

When Adams stated that he made “no warranty, either express or implied,” he might have gone no further and been absolutely protected as to the condition of the mule at the time of the sale. However, he does go further, and particularly designates exactly those things he refuses to warrant, omitting other warranties from which he would have been released by his prior refusal to make any warranty whatsoever. Assuming, for the sake of the argument, that the parties did not know the legal effect of the clause, “makes no warranty, either express or implied,” is it not more reasonable to suppose that the subject of warranty would have been exhausted in the clause detailing the exact warranties which were refused, than that the parties should have attempted to set out the things not warranted, that they failed to set out all those intended, and that the clause under consideration, “and shall not be entitled to an'abatement of the amount of the note for any reason whatsoever,” was inserted to exclude all other warranties not specified in the “itemized statement” of warranties? In short, we think an analysis of the entire contract shows that the parties covered the subject of warranty as fully as they intended when they categorically set out those things that were not to be warranted, and that this last clause of the contract, employed as it is in a retention-of-title note, using words identical in meaning with those words employed in the latter part of code-section 4123 (that section employing the words “abatement in the price,” and the contract the words, “an abatement in the amount of this note”), was intended to make the loss of the animal fall upon the buyer rather than upon the title-holder, where the loss would ordinarily fall.

The adjudicated cases give, but little assistance in ascertaining the meaning of the contract under consideration. The decision in the case of Avery v. Midddebrooks, 142 Ga. 830 (83 S. E. 944), construes a retention-of-title contract wherein the buyers “guaranteed the sellers against any damage to the machinery by fire while in their possession, and that they would keep the machinery insured for at least oir half of the purchase-money for the benefit of the seller,” the court holding that “this constituted such a contract within the meaning of the Civil Code (1910), § 4123, as made the loss fall on the buyers, if the machinery was destroyed by fire.” It was self-evident in that case that the parties had no reference to the condition of the machinery at the time of sale, .and that they intended to cover the contingency of a loss after the sale and while the property was in possession of the vendees, and that the loss covered was a loss by fire. In the case of McKinney v. Battle, 13 Ga. App. 255 (79 S. E. 92), the retention-of-title note, after reciting that the mare “is bought after a full inspection, and without warranty, either express or implied,” states that “it is expressly understood that Battle Brothers do not insure the health, life, soundness, or work of said mare, . . but in case of loss or damage to said property, same shall be the loss of the buyers.” It was not even questioned there that the parties intended that the loss should fall on the seller, but the sole question discussed was whether the words “loss or damage” covered the loss of the mare by “death.” The court appeared to think it necessary to infer that the word “loss” related back to the word “life” in the previous clause, and held that “loss of life is nothing more nor less than death,” and that consequently the loss by death fell upon the buyers. It may be noted that the subject of warranty had been completely covered, and that when it was stated that the sellers “did not insure” the health, life, or soundness, or work of said mare, the parties undoubtedly had reference to the loss of the mule by some cause arising after the sale. "We are of the opinion that the words “loss or damage” were broad enough to cover loss or damage of the mule from any cause, including death, and that it was really not necessary to construe the word “loss” as referring to any particular word previously used. In other words, the cardinal rule of construction of contracts being the ascertainment of the intention of the parties at the time of contracting, we think that in a retention-of-title contract such as the one we are considering, the contracting parties may, if they so desire, particularize the loss the buyer is to suffer, as was done in 142 Ga., supra, or they may, without specifying any particular liability assumed by the buyer, use such general and comprehensive expressions as will cause all loss to fall upon the seller. It appears to the court that the expression, “and [the maker] shall not be entitled to an abatement of the amount of this note for any reason whatsoever,” was intended to cover, and did cover, the loss of the mule by death before the purchase-money was paid and while it was in possession of the buyer. It follows that the court’s refusal to sustain the demurrer to the plea in this case was error. Everything occurring thereafter was nugatory, and it was error to direct a verdict for the defendant.

Judgment reversed.

Broyles, G. J., and Bloodworfh, J., concur.


text:
    10607, 10608.
    Port Wentworth Terminal Corporation v. Leavitt; and vice versa.

    Decided January 6, 1920.
    Attachment; from Chatham superior court—Judge Meldrim. February 5, 1919.

      Hilch & Denmark, for Port Wentworth Terminal Corporation.

      W. W. Gordon, contra.
   Luke, J.

1. A demurrer which is general and attacks the petition as a whole is properly overruled if any part of the petition sets out a legal cause of action. See Hudson v. Hudson, 119 Ga. 637 (1) (46 S. E. 874). The petition in this case was not subject to the motion to dismiss upon the grounds of misjoinder of causes, nor subject to the demurrers urged against it.

2. The motion attacking the plea of the defendant, upon the grounds thereof and as presented, is without merit. The court did not err in overruling the demurrers to the suit, nor in overruling the motion to strike the defendant’s answer.

Judgment affirmed on hoth the mam hill of exceptions and the cross-hill.

Broyles, O. J., amd Bloodworth, J., concur.


text:
    10640.
    GUGGENHEIMER & CO. v. WHITEHURST.
    The evidence was insufficient to establish the contract set up in the defendant’s plea, and the verdict in his favor was without evidence to support it.
    Decided January 6, 1920.
    Complaint; from Twiggs superior court—Judge Kent. May 1, 1919.

      Hardeman, Jones, Park & Johnston, for plaintiff.

      L. D. Moore, for defendant.
   Luke, J.

Suit was brought upon an open account, the defendant admitted the correctness of the account, and pleaded that the plaintiff had become indebted to him by reason of the breach of a certain contract for the shipment of other goods; the defendant alleged that the contract had been lost, and undertook to establish the contract. The evidence for the defendant was to the effect that he could but estimate the goods enumerated in the original contract, and there was no positive evidence from the defendant as to the exact items named in the contract. The evidence of the plaintiffs #was positive that no such contract as the defendant sought to establish was entered into; that they had no knowledge of any such purported agreement. The jury found a verdict in favor of the defendant.

From a careful examination of the record it appears that the defendant is unable to show a positive contract, or to show the essential of a contract,—that the minds of the parties were in accord as to the same agreement. The verdict for the defendant was without legal evidence to support it, and it was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    10704.
    Pickett v. Brooke.
    Decided January 6, 1920.
    Complaint; from Milton superior court—Judge Morris. June 14, 1919,
   Luke, J.

1. Any act of the creditor which injures the surety or increases his risk or exposes him to greater liability will discharge him. Under the evidence in this case the jury were authorized to find, and did find, that the creditor had, for a consideration, extended the time of payment of the note signed by the surety, and in addition thereto had calculated, and undertook to and did collect, usurious interest from the principal, and by reason of such payment did indulge the principal debtor and extend the payment of the note, all of which, according to the evidence, was without the knowledge or consent of the surety. See Civil Code (1910), § 3544; Camp v. Howell, 37 Ga. 312 (2).

2. The charge of the court, when read in its entirety, was full and fair and not subject to the criticisms urged against it. The verdict being supported by the evidence and having the approval of the trial judge, it was not error, for any reason assigned, to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., eoneur.

Application for certiorari was denied by the Supreme Court.

G. B. Walker, E. W. Coleman, for plaintiff.

J. P. Brooke, George F. Gober, B. B. Bussell, for defendant.


author: Luke,' J.

text:
    10813.
    Wing v. Flournoy & Kernaghan.
    Decided January 6, 1920.
    Action on contract; from city court of Macon—Judge Guerry. June 16, 1919.

      Herring & Sparks, for plaintiff. Miller & Jones, for defendant.
   Luke,' J.

When one employed for a definite time becomes 'secretely engaged in a business which necessarily renders him a competitor and rival of his employer, he has an interest against his duty, and may be summarily dismissed. Such a dismissed employee cannot recover from his employer upon an allegation that the employer violated the terms of employment by discharging him without cause and without notice. See 18 R. C. L. 519, § 31.

(a) Under the evidence in this case it was not error for the court to direct a verdict in favor of the defendant. See Haag v. Rogers, 9 Ga. App. 650 (2) (72 S. E. 46); Parker v. Farlinger, 122 Ga. 315 (2) (50 S. E. 98).

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10847.
    Wellons v. McCartha.
    Decided January 6, 1920.
    Action for damages; from Crisp superior court—Judge Gower. June 17, 1919.

      Pearson Ellis, for plaintiff in error.

      Max E. Land, contra.
   Luke, J.

The evidence in this case authorized the verdict, which has the approval of the trial judge, and this court cannot interfere with it. It was not error to overrule the demurrer to the suit, nor did the court err in admitting the evidence objected to by the defendant. The admission of such evidence was not harmful to the defendant. Eor no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10989.
    McDuffie v. The State.
    Decided January 6, 1920.
    Accusation of possession of intoxicating liquor; from city court of McRae—Judge W. B. Smith. September 22, 1919.

      W. S. Mann, for plaintiff in error.
   Luke, J.

Where section 5751 of the Civil Code of 1910, as to the relative weight of positive and negative testimony, is applicable, it is error for the court to give that section in charge to the jury without further instructing them, in the same connection, that in weighing such testimony they should take into consideration the credibility of the witnesses. See Georgia Ry. & Power Co. v. Pounds, 20 Ga. App. 201 (92 S. E. 1026), and eases cited. Under this ruling and the facts of the case, a new'trial is required.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    11011.
    Edwards v. The State. Parks v. The State. Scott v. The State.
    11012.
    11013.
   Broyles, C. J.

1. The defendants were convicted of a misdemeanor,— larceny from the house. The accusation charged that the articles stolen were “of the personal goods of J. L. Brannon and Company, and in the storehouse of the said J. L. Brannon and Company.” No demurrer to the accusation was interposed. Upon the trial the proof showed that all the property in the storehouse belonged to J. L. Brannon, but that the business was conducted in the name of J. L. Brannon & Company. This did not amount to a substantial variance between the allegata and probata, but was a mere technical and immaterial difference. See, in this connection, Rogers v. State, 90 Ga. 463 (16 S. E. 205); Hainey v. State, 107 Ga. 711 (33 S. E. 418); Weaver v. State, 116 Ga. 550 (42 S. E. 745); Smith v. State, 121 Ga. 618 (49 S. E. 677); Thomas v. State, 125 Ga. 286 (54 S. E. 182).

2. In a criminal case both the corpus delicti and the identity of the stolen property can be shown by circumstances. In this case the circumstantial evidence adduced to establish these two essential facts was extremely weak, but this court can not hold, as a matter of law, that the finding of the jury thereon was unsupported by any evidence; and, the finding having been approved by the trial judge, this court has no authority to interfere.

3. Under the well-settled principle of law that all persons who assist or abet another in the commission of a misdemeanor are equally guilty as principals, the evidence in this case authorized the conviction of all three of the defendants, and the court did not err in refusing the ■written request to charge set out in the motion for a new trial.

Decided January 6, 1920.

Accusation of larceny from bouse; from city court of Floyd county—Judge Nunnally. October 6, 1919.

W. B. Mebane, for plaintiffs in error.

J. F. Kelly, solicitor, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., coneur.


text:
    11020.
    Conner v. The State.
    Decided January 6, 1920.
    Accusation of cheating and swindling; from city court of Thomasville—jítdge W. H. Hammond. October 8, 1919.

      Eldon L. Joiner, for plaintiff in error.

      E. J. MacIntyre, solicitor, contra.
   Broyles, C. J.

While the evidence in this case was conflicting upon the material issues, and would have authorized the defendant’s acquittal, it also authorized his conviction; and the finding of the jury having been approved by the trial judge, ^tliis court is without authority to interfere. Bor a ease similar in several material respects, see Garner v. State, 100 Ga. 257 (28 S. E. 24).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11026.
    Smith v. The State.
   Broyles, C. J.

1. Conceding, but not deciding, that the court erred in admitting in evidence the testimony as complained of in the first special ground of the motion for a new trial, a reversal of the judgment below is not required, since other testimony to the same effect was introduced without objection. See Matthews v. Richards, 19 Ga. App. 489 (2) (91 S. E. 914), and citations.

2. The special grounds of the motion for a new trial which complain, in effect, that the judge in his charge failed to state fully and fairly the contentions of the defendant are without substantial merit.

(a) While the contentions of the State were given more at length than were the contentions of the defendant, the statement of the defendant’s contentions was apparently full and fair, and, in the absence of a timely and appropriate request for fuller instructions as to his contentions, no error appears in this respect. It is well settled that the mere fact that contentions of one side are stated more at length than those of the other does not show that undue stress was laid upon or undue prominence given to the contentions so stated. Millen &c. Railroad Co. v. Allen, 130 Ga. 656 (1) (61 S. E. 543), and. cit.

Decided January 6, 1920.

Conviction of assault and battery; from McDuffie superior court —Judge Henry C. Hammond. September 21, 1919.

Application for certiorari was denied by the Supreme Court.

John T. West, J. B. Burnside, for plaintiff in error.

A. L. Franklin, solicitor-general, John M. Graham, contra.

(6) The fact that the court, in charging that the State contended that the defendant was intoxicated, added, in immediate connection therewith, “I charge you, gentlemen, that intoxication is no excuse for crime,” affords no ground for complaint.

(c) The judge’s charge as to the contentions of the State and the defendant was not erroneous for any other reason assigned.

3. The alleged newly discovered evidence was largely cumulative and impeaching in its character, and it does not appear that the judge abused his discretion in overruling those grounds of the motion for a new trial which were based thereon.

4. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bboyles, O. J.

text:
    11030.
    Tuggle v. The State.
    Decided January 6, 1920.
    Indictment for burglary; from'Troup superior court—Judge Terrell. September 29, 1919.

      L. L. Meadors, for plaintiff in error.

      OE. Hoop, solicitor-general, contra.
   Bboyles, O. J.

1. The court did not err in excluding the testimony of a witness given on the defendant’s commitment trial, it not appearing that the witness had died, or become disqualified or inaccessible, since that trial. See Penal Code (1910), § 1027.

2. The 2d special ground of the motion for a new trial is expressly abandoned in the brief of counsel for plaintiff in error.

3. Under the repeated rulings of the Supreme Court and of this court that a special ground of a motion for a new trial must be complete and understandable within itself, the 3d special ground of the motion for a new trial is too defective to be considered.

4. The defendant’s conviction was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11039.
    Walker v. The State.
    Decided January 6, 1920.
    Indictment for possession of intoxicating liquor; from Newton superior court—Judge Hutcheson. October 25, 1919.

      Rogers & Knox, for plaintiff in error.

      George M. Napier, solicitor-general, contra.
   Broyles, C. J.

1. The defendant, upon the hearing of his motion for a continuance on account of an absent witness, not showing that the witness had been subpoenaed, or that he expected to have the testimony of the witness at the next term of the court, the court did not err in overruling the motion.

2. There being both direct and circumstantial evidence connecting the defendant with the transaction charged, the court did not err, in the absence of a timely written request, in failing to instruct the jury upon the law of circumstantial evidence.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    11061.
    Griffin v. The State.
    Decided January 6, 1920.
    Conviction of “unlawful shooting;” from Putnam superior court —Judge Park. October 23, 1919.

      8. T. Wingfield, R. C. Jenldns, for plaintiff in error.

      Doyle Campbell, solicitor-general, A. G. Foster, solicitor, contra.
   Broyles, C. J.

1. “While in every criminal case, where it is sought to show the guilt of the defendant by circumstantial evidence alone, the jury should be instructed and cautioned that he should not be convicted on circumstantial evidence, unless the proven facts exclude every possible reasonable hypothesis save the guilt of the defendant, still it is immaterial what language is employed to convey this instruction. If all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury are told that if they believe any one of these hypotheses the defendant should be acquitted, the principal above referred to would be sufficiently presented.” Mangum v. State, 5 Ga. App. 445 (2) (63 S. E. 543). Under this rule and the facts of the instant case (conceding that the defendant’s conviction depended entirely upon circumstantial evidence), the charge of the court sufficiently presented to the jury the law of circumstantial evidence.

2. The 2d special ground of the motion for a new trial, not having been referred to in the brief of counsel for the plaintiff in error, is treated as abandoned.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Bboyles, C. J.

text:
    11068.
    Barlow v. The State.
    Decided January 6, 1920.
    Conviction of sale of intoxicating liquor; from Wheeler superior court—Judge Graham. October 4, 1919.

      O. M. Dulce, for plaintiff in error.

      W. A. Wooten, solicitor-general, contra.
   Bboyles, C. J.

1. The exceptions pendente lite, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

2. The excerpt from the charge of the court complained of, when considered in connection with its context, was not erroneous for any reason assigned.

3. The alleged newly discovered evidence was largely cumulative and impeaching in its character, and it does not appear that the judge abused his discretion in overruling the special ground of the motion for a new trial based thereon.

4. The verdict was authorized by the evidence, and, having been approved by the trial judge, this court has no authority to set it aside.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11200.
    Britt v. Howard, judge.
    Decided January 6, 1920.
    Petition for mandamus.

      G. Y. Tigner, for petitioner.
   Bboyles, C. J.

A bill of exceptions was tendered to the judge, and he refused to sign it, and returned it, within ten days, to the movant’s counsel, with his written objections, pointing out therein, among other things, that the bill of exceptions contained material statements of fact which were not true. It not appearing that the objections specified by the judge were met and removed, this court will not require him to sign the bill of exceptions. Civil Code (1910), § 6158; Campbell v. Foute, 6 Ga. App. 113 (64 S. E. 292); Covin v. Willie, 19 Ga. App. 259 (91 S. E. 278), and citations.

Mandamus nisi denied.

Luke and Bloodworth, JJ,, concur.


author: Luke, J. Broyles, C. J.,

text:
    10346.
    BRADFIELD v. ATLANTA COCA-COLA BOTTLING CO.
    Whether the bottling company was negligent in the bottling of the beverage sold to the plaintiff, which contained small particles of glass, was, under the evidence, a question for the jury; and the court erred in directing a verdict for the defendant. Bboyles, P. J., dissents.

      Action for damages; from Fulton superior court—Judge Bell. January 11, 1919.
    Application for certiorari was denied by the Supreme Court.

      E. F. Childress, McOdllum & Sims, for plaintiff,
    cited: 83 Ga. 457; 124 Ga. 121; 10 Ga. App. 762; 17 Ga. App. 487; 18 Ga. App. 266; 108 Miss. 864; 21 Ga. App. 557 (15); 23 Ga. App. 25 (2, 3); 112 Ga. 197; Civil Code (1910), § 5926; 100 Ga. 163; 15 Ga. App. 571; 29 Cyc. 484, 634; 136 Ga. 383; 6 Ga. App. 47.

      Candler, Thomson & Rirsch, for defendant,
    cited: 10 Ga. App. 762; 166 Fed. 651; 77 N. E. 387; 187 S. W. 179; 117 Ga. 109; 118 Ga. 91; 5 Ga. App. 794; 119 Ga. 842-3; 111 Ga. 812; 108 Ga. 807; 145 Fed. 577; 136 Penn. 618, 626; 45 N. Y. 549, 553; 66 Atl. 209; 21 Ga. App. 671; 129 Ga. 349; Thayer, Ev. 339; Chamb. Ev. §§ 1021, 1085; 124 Ga. 121; 179 S. W. 155; 1 Thomp. Neg. § 31; 122 Ga. 695; 64 So. 791; 72 So. 157.
   Luke, J.

The plaintiff sued for damages, alleging that she had sustained injury by swallowing small particles of glass contained in a bottle of coca-cola put up and sold by the defendant, the Atlanta Coca-Cola Bottling Company. The defendant proved that it bottled the coca-cola with the latest and most improved machinery, and that most careful inspection was had and made of every bottle of coca-cola sold by it. The evidence was to the effect that the defendant sold the bottle of coca-cola to one person, who in turn sold it to the retail dealer, who in turn sold it to the plaintiff. The evidence further was that some considerable period elapsed between the time of filling the bottle with the coca-cola syrup and the time of purchase of the same by the plaintiff. Upon the idea that the plaintiff had failed to show negligence in the manufacture or1 filling of the bottle by the defendant the court directed a verdict in favor of the defendant. That ruling is here for review.

While it was incumbent upon the plaintiff to prove negligence of the defendant in the bottling of the coca-cola, yet on proof by the plaintiff that the bottle did contain glass, it was in our opinion a question for the jury whether the defendant in filling the coca-cola bottle exercised the care required by law. If the jury were satisfied that there was no negligence attributable to the defendant, then they would not return a verdict in favor of the plaintiff. Proof that the bottle contained glass is a circumstance which the jury may consider in determining whether or not such glass was left in the bottle by the defendant when the bottle was filled with the coca-cola. If the jury should determine that the particles of glass were not in the bottle of coca-cola when it left the custody of the defendant, but that their presence in the bottle was due to subsequent handling or opening of the bottle, then the plaintiff could not recover against the defendant. These are questions which must necessarily be determined by a jury. We are convinced that this case should have been submitted to a jury upon the issues of fact; and, upon appropriate instruction, it was for them to say whether the glass in the bottle was there because of negligence of the defendant. The court erred in directing a verdict for the defendant. See Blood Balm Co. v. Cooper, 83 Ga. 457 (10 S. E. 118, 5 L. R. A. 612, 20 Am. St. R. 324); Watson v. Augusta Brewing Co., 124 Ga., 121 (52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. R. 157); Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App., 762 (73 S. E. 1087).

Judgment reversed.

Bloodworfh, J., concurs.

Broyles, C. J.,

dissenting. I think that the evidence demanded a finding in favor of the defendant, and that the court, therefore, did not err in directing a verdict for that party. Even if it be conceded that under all the particular facts of this case the presence of loose pieces of glass in the bottle of coca-cola purchased by the plaintiff raised an inference of negligence against the defendant, this inference was completely rebutted by the undisputed evidence introduced by the defendant, which clearly showed that it had exercised ordinary care in the bottling of the beverage. The defendant, not being an insurer, was therefore not liable for the plaintiff’s injuries. In my opinion the judgment of the lower court should be affirmed.


text:
    10379.
    GEORGE W. MULLER BANK FIXTURE COMPANY v. LEWIS THOMPSON & COMPANY, INCORPORATED.
    Under the particular facts of this case it was error for the judge to charge: “If the defendant did not put the'plaintiff on notice that this material was to be used for any specific purpose, then what I have charged you with regard to going into the open market and buying other material would not apply to this case or to this condition.”
    Decided January 7, 1920.
    Complaint; from Fulton superior court—Judge Bell. January-18, 1919.
    The action was upon an open account for lumber, veneers, etc. The defendant company contended that it was entitled to certain deductions from the amount of the account, because of failure of the plaintiff to ship certain flitches bought to be used in a special job. The trial resulted in a verdict for the plaintiff, in which no such deduction was made. In the defendant’s motion for a new trial exception was taken to the instruction to the jury quoted in the decision.

      Brewster, Howell & Heyman, Marie Bolding, for plaintiff in error. >.

      Anderson & Slate, contra.
   Luke, J.

1. Where a purchaser of goods makes known to the vendor at the time of the purchase that he has resold the goods, and the sale is completed with full knowledge of this fact, failure of the vendor to comply with his contract would entitle the purchase to recover the difference between the contract price and the price at which the goods were resold. Wappoo Mills v. Commercial Guano Co., 91 Ga. 396 (1) (18 S. E. 308); Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (2, 3), 581, 584 (96 S. E. 437), and cit. But this rule is not applicable to the case sub judice, for while the answer alleges and the evidence for the defendant shows that the goods purchased were to be used for a special job for wKS(p. defendant had a contract, the particular goods were not to be resdld, but were only to go into and be used as material in completing the contract. The 7th paragraph of the answer of the defendant is as follows: “Defendant further shows that, as stated above, the flitches referred to in the preceding paragraph were bought and the plaintiff contracted to sell them for a special job for the First National Bank of Gastonia, N. C. After plaintiff failed to ship the flitches bought by it for said special job, and failed and refused to ship the same, defendant was thereupon compelled to go into the market and to buy other flitches in lieu of the flitches which the plaintiff had contracted to sell and to ship for said special job. Defendant did not buy said flitches in the market of the kind and quality contracted by plaintiff to sell and which plaintiff failed and refused to sell and ship according to the contract, and defendant was compelled to pay for said flitches in the market at said time the sum of $671.28. Defendant, therefore, is entitled to recover from the plaintiff the sum of $419.55, which is the difference between what defendant was forced to pay for said flitches and the price at which it bought them from the plaintiff, to wit, $251.73.”

The rule applicable to this case is laid down in the case of Hardwood Lumber Co. v. Adam, 134 Ga. 821 (1) (68 S. E. 725, 32 L. R. A. (N. S.) 192), as follows: “The general rule is that in a suit for breach of contract for failure to deliver goods of a certain quality sold at a specific price, the measure of damages is the difference between the contract price and the market price at the time and place of delivery.” See also Twin City Lumber Co. v. Daniels, supra. This general rule being applicable to the case now under consideration, and the evidence for the plaintiff showing that the defendant did not put him on notice that the materials were purchased to be used for the specific purpose, it was error requiring the grant of a new trial for the judge to charge as follows: “If the defendant did not put the plaintiff on notice that this material was to be used for any specific purpose, then what I have charged you with regard to going into the open market and buying other material would not apply to this case or to this condition.”

2. There is no substantial merit in the other assignments of error. The court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    10408.
    AYASH v. GEORGIA SHOW-CASE COMPANY.
    1. In view of tlie charge of the court, by which the purpose for which the contract admitted in evidence could be considered by the jury was limited to that of showing title, the introduction of the contract was not cause for a new trial.
    2. The charge of the court was not subject to the criticisms urged, and the court did not err in admitting testimony.
    3. The case being an action of trover, the verdict for-the plaintiff should have been for a lump sum, and not for a stated sum “with interest at 7%.” The judgment overruling the defendant’s motion for a new trial is therefore reversed, with direction that it be affirmed if interest be written off by the plaintiff in a specified time.
    Decided January 7, 1920.
    Trover; from city court of Americus—Judge Harper. January 27, 1919.
    Application for certiorari was denied by the Supreme Court.
    In the motion for a new trial it is alleged that the court erred in allowing counsel for the plaintiff to read to the jury certain “material evidence,” to wit, the “original order-contract” (set out); the defendant, when it was offered, objecting “to the reading of said contract as a whole,” on the ground “that the contract was admissible only for the purpose of showing title for the purpose of identifying the property, and the court had so admitted the contract, and that it was improper to allow counsel for the plaintiff to read the inadmissible parts of the same to the jury, as the minds of the jury would thereby become prejudiced against defendant.”
    The verdict was, “We, the jury, find in favor of the plaintiff $1,000 with interest at 7%.” One of the grounds of the motion for a new trial is that the verdict and judgment are contrary to law and evidence, and should be set aside, because: (a) The verdict is too uncertain, since it is not apparent whether the jury intended to find a verdict for damages with interest, or for the highest proved value of the property and interest; and if for damages, interest is not allowable “as a find in the verdict;” if the principal' sum was the highest proved value, no interest was allowable. (6) The verdict fails to fix any time from which interest should be calculated, or how interest could be calculated on the principal, (c) The judgment entered on the verdict includes $373.35 as interest, besides principal, and there is no way to determine how said interest could have been lawfully calculated and added; and the judgment should not include interest above the principal, except from the date of the verdict.

      Ellis, Webb & EUis, T. 0. Marshall, Moise & Riddell, for plaintiff in error.

      Shipp & Sheppard, contra.
   Luke, J.

This is the second appearance of this" case in this court, and error is assigned again upon the admission in evidence of the contract referred to in the former decision. 17 Ga. App. 467 (87 S. E. 689). Hpon the trial now under review, however, the court, in charging the jury as to the contract, limited its use by them as follows: “With reference to the contract, and plans and specifications, including also the supplemental contract of May 28, 1913, which you will find in evidence before you, I charge you that the only purpose for which you would be authorized to consider the contracts and the plans and specifications is with reference to determining where the title to the property is.” There is no merit, therefore, in the assignment of error complaining of the introduction of the contract in evidence.

The charge of the court is not subject to the criticisms urged, nor did the court err in the admission of testimony.

This case being an action, of trover and the jury having found in favor of the plaintiff a verdict for a stated sum as principal and interest thereon, the verdict is too uncertain to be upheld. There should have been a verdict for a lump sum. Consequently the verdict as written can not stand; and it is adjudged that the verdict and judgment be set aside and a new trial be granted, unless, within twenty days after the remittitur from this court shall be made the judgment of the court below, the plaintiff shall write off from the verdict and judgment the amount allowed as interest. Should the plaintiff write off the interest, the judgment is affirmed. See Drury v. Holmes, 145 Ga. 558 (89 S. E. 487).

Judgment reversed, with direction.

Broyles, G. J., and Blood-worth, J., concur.


text:
    10467.
    Metcalf v. Peoples Grocery Co.
   Luke, J.

Non-residence of a plaintiff who submits himself to the jurisdiction of the courts of this State affords equitable ground for the filing by the defendant of a plea of set-off. See Hecht v. Snook & Austin Co., 114 Ga. 921 (41 S. E. 74), and eit.

(а) In a suit by an individual upon an open account due him the debtor cannot set off a claim due by a corporation or partnership of which the individual creditor is a member. The cross-demand lacks mutuality. Civil Code (1910), §§ 4340, 4341, 5668. It is well settled that a debt due by a partnership cannot be set off against a debt due by a third person to one of the firm. The firm and its individual members are different contractors; each is, in the eye of the law, a separate person. The rule is not different in equity. See West v. Kendrick, 46 Ga. 527; Kinard v. Sanford, 64 Ga. 630-632 (2); Dalton City Council v. Dalton Manufacturing Co., 33 Ga. 243.

(б) The mere fact that the plaintiff and the partnership debtor of the defendant are non-residents does not amount to such a “special equitable circumstance” as will take the case out of the general rule and authorize an equitable set-off. See Ingram v. Jordan, 55 Ga. 357 (4).

Decided January 7, 1920.

Complaint; from Crisp superior court—Judge Gower. February 8, 1919.

E. F. Strozier, for plaintiff. M. M. Ealces, for defendant.

2. D. D. Metcalf, trading as Metcalf Manufacturing Company, sued the Peoples Grocery Company on an opon account. The defendant answered, among other things, that “said D. D. Metcalf (plaintiff) is a member of a partnership known as Holt Milling Company, of Nashville, Tenn., of which partnership D. D. Metcalf and W. P. Holt are members, and were members on the 4th day of June, 1917, neither firm nor members having any property or place of residence in said State, but entirely without its jurisdiction.” The remainder of the plea and answer alleges a claim against the Holt Milling Company for damages growing out of a breach of contract between the Holt Milling Company and the defendant. There is no allegation therein of insolvency of the Holt partnership, nor is any fact recited which shows mutuality of the cross-demand, but the allegations are merely as to the non-residence of the plaintiff and of the other partnership of which he was incidentally a partner. The court erred in overruling the demurrer to the defendant’s plea of set-off, and the subsequent proceeding were nugatory.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    10535.
    ROBERTS et al. v. GEORGIA RAILWAY & POWER COMPANY.
    Although it appeared that the defendant’s dam and reservoir constituted a nuisance from which the plaintiffs suffered damage, no liability on the part of the defendant was shown, it appearing that the dam and reservoir were constructed by a predecessor in title of the defendant and were not changed by the defendant, and there being no evidence of any negligent act of the defendant or of any damage to the plaintiffs after ‘.notice to the defendant to abate the nuisance.
    Decided Jaunary 7, 1920.
    (Certiorari was granted by tlie Supreme Court.)
    Action for damages; from Cobb superior court—Judge Morris. March 20, 1919.

      Richard B. Russell, Fred Morris, Campbell Wallace, for plaintiffs.

      Colquitt & Conyers, contra.
   Bloodworth, J.

On June 26, 1917, I. M. Eoberts and J. P. Brooke brought suit against the Georgia Eailway and Power Company, to recover $153,950, alleging that certain land owned by them in Cobb County, Georgia, known as the Laurel Hill Manufacturing Company, had been damaged by the construction of a dam, known as the Bull Sluice dam, across the Chattahoochee river, in the year .1902; that this dam was about three miles below the properties of petitioners, and that the construction of the dam created a large reservoir which extends up to, alongside of, above, and beyond the properties of petitioners; that this dam was used in connection with the defendant’s power-house and machinery, in generating electricity; that this dam and reservoir was a nuisance and had been a nuisance since the time of its construction, and that this nuisance had been maintained by the defendant, the Georgia Bailway & Power Company, since on or about the 6th day of March, 1912 (at which time said power company acquired title thereto), and was maintained by the defendant as a permanent nuisance; that on account of the ponding of said water and its back-flow and the deposit of sand and mud and other substances in the bed of said river, “there now emanates therefrom foul odors and obnoxious stenches, causing miasma and malaria, which has caused and rendered petitioners’ property along the banks of said river to become unfit for residential purposes.” It was also alleged that on June 8, 1917, petitioners gave notice, as required by law, to the defendant, the present owner and successor in title and alienee of the land upon which was located said dam and reservoir, to abate said nuisance, but said defendant failed and refused to do so, and suit was filed to recover the amount of damage already set out.

The evidence shows that in the year 1902 the Atlanta Water & Electric Company, a corporation chartered under and by virtue of the laws of the State of Georgia, constructed what is known as the Bull Sluice dam, that the said dam and plant were for the purpose ©f generating electricity by water to be used for the purpose of lighting towns and cities and supplying motive power to railroads and street-car lines, and supplying power to the public for the operation of plants and for general lighting purposes. The evidence further showed that at the time of the construction of said dam in the year 1902 the property now owned by the plaintiffs and for damage to which the suit at bar was instituted was owned by the Laurel Hill Manufacturing Company; that this company went into bankruptcy, and on August 5, 1911, the trustee in bankruptcy deeded the said property to J. P. Brooke, I. M. Roberts, and George W. Wing for $31,600, and that on June 11, 1917, George W. Wing deeded his third interest in said property to I. M. Roberts and J. P. Brooke for $8,000; that the Bull Sluice dam, reservoir, and plant were owned and operated by the Atlanta Water & Electric Company until March 8, 1912, when the said company deeded said property to the Georgia Railway & Power Company; that since the said Bull Sluice property was acquired by the Georgia Railway & Power Company no change had been made in the dam> or the construction of said plant by said company, but the same were used by it for the generating of electricity by water for the same purpose for which it was used by its predecessor in title. There is no evidence that the dam was improperly constructed, improperly operated, or improperly maintained. There is no negligence of any kind claimed either as to the Atlanta Water & Electric Company or against the Georgia Railway & Power Company with reference to construction, maintenance, or operation. There is no evidence to support the allegations in the petition that “foul odors and obnoxious stenches causing miasma and malaria” were produced by the dam and reservoir. While the evidence shows that the property now owned by plaintiffs has suffered great damage from the building of the Bull Sluice dam, yet there is no evidence of any act of negligence of the defendant, or of any damage to the property of plaintiffs subsequent to the notice to abate, which defendant admits was given on June 8, 1917. At the conclusion of the evidence for the plaintiffs a nonsuit was granted, and the plaintiffs excepted.

The court did not err in ordering the nonsuit and dismissing the case. The evidence shows that no change in the dam or the construction thereof was made by the Georgia Railway & Power Company after it acquired the same. In Middlebrooks v. Mayne, 96 Ga. 450 (2) (23 S. E. 398), the Supreme Court said: “While one who erects and maintains a nuisance under circumstances rendering him liable in damages to another whose property is thereby injured may be sued without notice to abate the nuisance, an alienee of the person erecting such nuisance must have such notice, and refuse to comply with it, before becoming liable for simply maintaining the nuisance as it existed when he purchased the property on which it was located (italics ours). Such notice, however, would not be essential to the maintenance of an action against the alienee for injuries occasioned by changes made by himself in the character or structure of the nuisance.” See also Civil Code (1910), § 4458; Bonner v. Welborn, 7 Ga. 297 (7), 314, 316, 327, 330, 347; Felker v. Calhoun, 64 Ga. 514; Central Railroad v. English, 73 Ga. 366; Western & Atlantic R. Co. v. Cox, 93 Ga. 561, 563 (20 S. E. 68); Southern Railway Co. v. Cook, 106 Ga. 450 (4), 453 (32 S. E. 585); Central of Ga. Railway Co. v. Americus Construction Co., 133 Ga. 393 (3) (65 S. E. 855); Blackstock v. Southern Ry. Co., 120 Ga. 416 (47 S. E. 902).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Bloodworth, J. Luke, J.,

text:
    10557.
    Newberry v. Terrell Land Company.
    Decided January 7, 1920.
    Action for damages; from city court of Americus—Judge Harper. April 2, 1919.
    The petition of M. M. Newberry against the H. D. Terrell Land Company, as amended, alleges, in substance: The defendant (a corporation), acting through its officers and agents, has injured and damaged, and become indebted to petitioner in the sum of $6,000, as shown by the facts hereinafter set out. Petitioner has been engaged in the lumber business and in cutting and marketing round timber, purchased from different owners, as it stood in Elintriver swamp above where the S. A. L. Eailway crosses the river, for more than two years; and in order to carry on said business successfully he leased and procured easements from the Stackhouse Land Company on and over certain portions of what is commonly known as the Hugenin plantation, near Elint-side in Sumter county, Georgia. His contract with the Stackhouse Land Company included his right to build a boom across the river to catch the logs that he would raft down the river, including the right of a landing for said logs, and to take them out and over the land of the Stackhouse Land Company to Elint-side station, that they might be loaded on railroad-ears, and including the right to build houses and live upon the lands of that company, and to cultivate and have free and full possession of some 20 or 25 acres of said Land Company on and over certain portions of what is commonly good faith just prior to March 1, 1916, and it was to begin on that date. The contract was verbal when made, but it was agreed therein that it should be reduced to writing, which, however, was never done. Petitioner, with the knowledge of the Stackhouse Lumber Company, entered into possession of the leased premises thereunder, in March, 1916, and there was part performance thereof, on the part of both parties in that petitioner did the things set forth in this petition as contemplated by the contract, and the Stackhouse Lumber Company received the price stipulated to be paid to it by petitioner, for such privileges, to wit $100 per annum for five years, or $500 for the entire period. He set up a sawmill on the premises, built five tenant houses, boats for use in rafting timber, and a number of roads and bridges, and made other specified improvements and purchases for the operation of said business, expending between four and five thousand dollars for his equipment do carry on the business under said contract. He had been in ¡possession of the rented premises, residing and .carrying on said business thereon, for about a year, and was still in possession 'thereof, when the said Hugenin plantation on which the business ,was conducted was sold by the Stackhouse Lumber Company to ¡H. D. Terrell, C. D. Terrell, and J. B. Terrell, whose partnership name was then Terrell Land Company, and who were incorporated on May 12, 1917, by order of the superior court of said county; and said corporation has since that date owned and operated said Hugenin plantation, under the name of H. D. Terrell Land Company. Said company was organized and officered and has ever since been officered by H. D. Terrell, president, C. D. Terrell, general manager, and J. B. Terrell, secretary and treasurer; they were the only original incorporators, and have always held and now hold all the stock ever issued by said corporation. About August 1, 1917, said corporation, acting through its officers, agents and employees, caused a wire fence to be built around the land used by petitioner in taking his logs from the said river, thereby so obstructing the entrance and exit to said landing and his boom for rafting timber as to make it impossible for him to operate his business. Acting under the advice of counsel he removed enough of said wire-fence obstruction to enable him to use said landing; whereupon said defendant corporation procured and caused a criminal warrant to be sued out for him, charging him with trespass or malicious mischief, thereby forcing him to spend $50 for the employment of counsel to represent him in said criminal case, and subjecting him to the painful humiliation of being charged, arrested, and tried as a criminal. TJpon the trial the jury rendered a verdict of not guilty. The said warrant was sworn out by C. D. Terrell, general manager of said corporation, on the advice and with the co-operation of H. D. Terrell, president, and J. B. Terrell, secretary of the corporation, these three acting jointly and in concert, and representing in said act and in the prosecution based on said warrant the entire board of directors, all the officers, and all the stock of said corporation. The said warrant was vindictively and maliciously sued out, without any probable cause, the suing out of the same being prompted alone by malice, and the same was maliciously prosecuted until the verdict of acquittal was rendered.
   Bloodworth, J.

“A demurrer going to the whole hill should be overruled if any part thereof be sustainable.” Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874). Under this ruling the court erred in sustaining the general demurrer to the petition and dismissing the same.

Judgment reversed.

Broyles, O. J., concurs. Lulce, J., dissents.

It is further alleged: The defendant corporation, acting through its officers, agents, and employees, posted notice in petitioner’s mill-yard and at various places on the premises petitioner had rented as aforesaid, threatening to prosecute any trespassing on the premises, and said C. D. Terrell stated to him, in the presence of his laborers, that he would have petitioner and his laborers arrested if they did not remove from said premises, and that he would die before logs should be taken out on said landing. Said notices were tacked up in conspicuous places on and about the premises at the express direction of said C. D. Terrell, general manager, acting in concert with H. D. Terrell, president, and J. B. Terrell, secretary of said corporation, and were so placed for the sole purpose of frightening" and disturbing the employees of petitioner, so as to drive them from the premises and thus damage and destroy petitioner’s business. The said notices, taken in connection with said verbal threats, and the suing out of the said warrant against petitioner, so frightened and disturbed the laborers then employed by him that they forthwith left his employment, and he was never able to induce them to return to his employ; and the said warrant, threats, and notices, which petitioner says were wanton and malicious, made it impossible for him to secure or employ other labor to operate his said business. Similar allegations are made as to the cutting of the cable and the destruction of the braces that held the petitioner’s derrick used in loading logs on railroad-ears, and as to other interference with and damage to his business; and amounts of money expended in repairing the damage to the derrick, etc., are set out. It is alleged that all of said acts on the part of the defendant corporation were without warrant or authority, were malicious and vindictive, and done for the sole purpose of harassing and annoying petitioner and destroying his business and forcing him to remove from his said premises; and that said malicious and vindictive conduct resulted in the destruction of his business, which was good and profitable before said Terrell and said corporation undertook to destroy the same. Various items of actual damages are specified, besides $1,000 claimed as vindictive damages; and it is alleged that by reason of the foregoing facts the petitioner has been injured and damaged by the defendant corporation in the sum of $6,000, for which he prays judgment.

The defendant demurred to the petition generally and specially. The general demurrer was sustained and the petition dismissed, in an order in which it is said: “The court is of the opinion, and now holds, that while the contract of lease, or license, as set up by the plaintiff, as between himself and the Stackhouse Land Company, did not, establish the relation of landlord and tenant, but created an estate for years in said plaintiff, yet the petition as a whole, as amended, does not set out or complain of any ac.ts or conduct on the part of the officers or agents of the H. D. Terrell Land Company which, under the allegations of the petition as amended, the corporation would be in law chargeable with, or [could be] mulcted in damages because of.”

W. T. Lane, for plaintiff.

E. F. Strozier, Shipp & Sheppard, for defendant.

Luke, J.,

dissenting. I do not question that part, of the ruling of this court in this ease to the effect that “a demurrer going to the whole bill should be overruled if any part thereof be sustainable.” In my opinion, however, in this ease there is no part or paragraph of the petition which sets forth a cause of action. Having this view, I do not think that it was error for the court to sustain the demurrer and dismiss the plaintiff’s suit.


text:
    10636.
    JONES v. STAPLER.
    The second grant of a new trial to the defendant in this- case was not an abuse of the discretion of the trial judge.
    Decided January 7, 1920.
    Rehearind denied January 28, 1920.
    Action for damages; from city court of Macon—Judge Guerry. April 28, 1919.
    Application for certiorari was denied by the Supreme Court.

      J. F. Urquhart, Hall & Grice,_G. J. Bloch, for plaintiff.

      J. B. L. Smith, G. C. Harris, P. F. Brock, Reagan & Reagan, for defendant.
   Luke, J.

Twice has this case been tried by a jury. The verdict on the second trial was for just double the amount found by the jury on the first trial, and was for the full amount sued for. The order granting the new trial after the second verdict was in general terms. In Richie v. Louisville & Nashville Railroad Co., 23 Ga. App. 741 (99 S. E. 309), this court held: “It appears to be conclusively 'settled that, notwithstanding the return of a second verdict in favor of the same party, the trial judge may still exercise his discretion in granting or refusing a new trial, though that discretion may not then be as ample as on the hearing of the motion for a first new trial (Morgan v. Lamb, 16 Ga. App. 484, 85 S. E. 792, and cases there cited), and under the particular facts of the instant ease the second grant of a new trial was not an abuse of the discretion vested in the trial judge.” As in that case we held that “under the particular facts of the instant case the second grant of a new trial was not an abuse of the discretion vested in the trial judge,” so we hold-in this case.

As a new trial is to be had, the errors (if errors they are) complained of in the special grounds of the motion for new trial are such as will not likely recur on another trial, and it is not necessary to pass upon them.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J. concur.