text:
    430.
    Gurr v. Carter.
    Complaint, from city court of Dawson — Judge Park presiding. February 27, 1907.
    Argued June 25,
    Decided July 4, 1907.

      W. H. Gurr, for plaintiff in error.

      A. M. Raines, M. J. Yeomans, contra.
   Powell, J.

The court erred in not granting the defendant’s motion for a continuance, upon the plaintiff’s having tendered a material amendment to his petition, whereby the defendant was surprised and rendered less prepared for trial. Judgment reversed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    439.
    Groover, Conoly & Davis v. Melton.
    Affidavit of illegality, from city court of Quitman — Judge Shipp presiding. March. 11, 1907.
    Submitted June 25,
    Decided July 4, 1907.

      Samuel S. Bennet, Stanley S. Bennet, for plaintiffs in error.

      J. A. Wilkes, contra.
   Powell, J.

This case is controlled by the decisions of the Supreme Court in the cases of Harris v. Kittle, 119 Ga. 30 (2), 45 S. E. 72, McCrory v. Hall, 104 Ga. 666, 30 S. E. 881, Smith v. Brown, 96 Ga. 274, 23 S. E. 849, New Eng. Mge. Co. v. Watson, 99 Ga. 733, 27 S. E. 160, and Baker v. Aultman, 107 Ga. 339, 33 S. E. 423, 73 Am. St. R. 132, holding that some overt act of constructive seizure by the levying officer is essential to the validity of the levy of an attachment upon real estate. Judgment affirmed.


author: Russell, J.

text:
    444.
    PORTER v. TERRELL.
    1. Exhibits attached to a hill of exceptions, following the certificate of the judge thereto and which are not identified by the trial judge, can not be considered by this court. Assignments of error, the determination of which is dependent upon such exhibits, therefore, can not be-passed upon.
    2. Proof of the relationship of husband and wife, and that work was done and material furnished to improve real estate belonging to the wife,, without, more, is not sufficient evidence to establish the fact that she is an undisclosed principal and the husband merely her agent, so as to-render her liable for contracts made by him with third parties.
    Foreclosure of lien, from city court of Douglas — Judge Roan. March 19, 1907.
    Submitted June 25,
    Decided July 4, 1907.

      Rogers & Heath, J. W. Quincey, for plaintiff in error.

      F. Willis Dart, contra.
   Russell, J.

The plaintiff sought a-general judgment against the- defendant and a special judgment against certain real estate belonging to her, against which he alleged he was entitled to-enforce his lien as a contractor and materialman. The petition alleged a balance to "be due for material furnished and work done by him under a contract with the defendant as to certain water connections, sewerage connections, and plumbing in a certain house and on real estate alleged to have been owned by defendant in the city of Douglas. The petition averred, that the material was, furnished and work performed under a contract made with the defendant, Mrs. Alice C. Terrell, herself, and that she paid him on said contract the sum of $68.63, leaving the balance sued for, which she refused to pay. It was further alleged, that plaintiff was entitled to a lien “upon said real estate and the house and improvements put therein for the balance of said sum of $44.94,” and that he had recorded his claim of lien as required by law and brought his action within the time prescribed. Iiis prayers were for a general judgment against the'defendant and a special judgment against the real estate described. The defendant filed an answer in which she denied generally the allegations as thus pleaded, and specially denied that she was indebted to the plaintiff in any manner or form; and further alleged that the plaintiff was not entitled to and had no valid lien on the premises described in his petition, and was not entitled to any judgment against her.

The testimony for the plaintiff showed, that W. W. Terrell, the husband of the defendant, alone had employed him and contracted with him to do the work and furnish the material set out in the bill of particulars attached to his petition; that the plaintiff had done the work and furnished the materials, and that it was all worth $113.57; and that this had been paid by the said W. W. Terrell, except $44.94, which he refused to pay, claiming that what he had paid was as much as the material and work were worth. After the plaintiff had completed his work and furnished the material therefor, and when he went to record his lien for the balance claimed by him, he discovered that the real estate in question did not belong to W. W. Terrell, but was the property of his wife, Mrs. Alice C. Terrell; and the plaintiff thereupon made out and recorded his lien against the wife. There was not the slightest suggestion even that the plaintiff had any contract, agreement, or understanding, directly or indirectly, with Mrs. Terrell in regard to the material or work in question; and the only reference made to her at all was the fact that she was present a part of the time while the work was being done and made some suggestion as to putting in an extra wash basin, coupled, however, with the injunction to see her husband about the matter first; which the plaintiff did. Such contract as the plaintiff had was solely with W. W. Terrell, the account was charged to him, and he made all of the payments thereon, as heretofore stated.

The plaintiff also offered in evidence a certified copy of the lien recorded at his instance, which was in the following language: “Georgia, Coffee County. The undersigned, C. B. Porter, a mechanic, claims a lien upon certain waterworks and sewerage erected .and put in one dwelling-house and premises, owned and occupied by Mrs. Alice C. Terrell, situated on the corner of Sycamore and Madison streets in the city of Douglas.. Said lien is claimed for material and plumbing work done by the undersigned in said structure and on the premises. The amount for which the undersigned claims this lien is forfy-four dollars and 94 cents. And now, within three months since the same was done, the undersigned records this lien therefor in the office of the clerk of the superior •court of the county where said property is situated as aforesaid, pursuant to the provisions of §2804 (2) of the Civil Code. This December 14, 1906. C. B. Porter.” “Becorded December, 14, 1906. Sessions Fales, Clerk Superior Court.” “Clerk’s office, Coffee superior court. I, J. B. Overman, clerk of the superior court •of Coffee county, do hereby certify that the above and foregoing is a true copy of the original lien now of record in my office, on Mortgage Becord, No. 14, page 501... This March 18, 1907. J. R. Overman, Clerk superior court, Coffee county Georgia.” This certified copy was objected to upon the ground that the proper foun■dation h'ad not been laid, and generally upon the ground that the evidence in the case showed a contract with W. W. Terrell, instead •of with the defendant, and did not show any right of the plaintiff to connect the defendant, with the contract. The court sustained the objections and ruled that the copy lien could not be admitted as evidence. The plaintiff then closed, and; upon motion ■of the defendant’s counsel, the court awarded a nonsuit, passing the following judgment: “Dpon motion of defendant a nonsuit is hereby granted in this case, upon the ground that the plaintiff fails to show such facts as entitle him to recover in said case.” The plaintiff in error excepts to the ruling of the court excluding the •certified copy of lien, and to the judgment of nonsuit.

The evidence may have been sufficient to establish the loss of the ■original claim of lien, but it is immaterial whether this is so or :not. If this paper was properly identified before us, we could not reverse the judgment of the trial judge, although he may have (excluded the paper for the wrong reason. It would have been properly excluded because it failed to set forth a claim of lien on anything except the waterworks and sewerage put in the dwelling-house and premises. It did not claim a lien on the real estate as provided by the code. But even if the judge of the city court erred in excluding this paper, under the well-settled rulings of the Supreme Court, we can not ourselves consider the paper, by reason of the fact that it is neither included in the bill of exceptions nor identified by the trial judge, and does not precede his certificate. For want of this identification we can not lawfully know the contents of the paper excluded by the trial court, so as to be able to determine whether the ruling was in fact erroneous. Whether this paper be defective or not, without it a special judgment could not be rendered, and no special lien could be created.

We come next to consider whether there was error in awarding the nonsuit for the reason that the plaintiff was entitled to a general judgment. We do not think the court erred in adjudging a nonsuit. The evidence did not establish the fact that the defendant was an undisclosed principal and that the husband was her agent. There is in the evidence no suggestion that the plaintiff' had any contract, agreement, or understanding with 'Mrs. Terrell in regard to the material or work in question. The only reference made to her in’ the evidence is the statement that she was present part of the time while the work was being done, and made a suggestion as to putting in a certain wash basin, coupled, however, with the injunction to see her husband about the matter first; which the plaintiff did. There was no stipulated price to be paid for the-work to be done, and no evidence that the defendant authorized it to be done. Nor does any reason appear from the evidence why the plaintiff would not have done the work for the husband. Such contract as plaintiff had was with W. W. Terrell only, the account, was charged to him, and he made all the payments thereon. There-was, no escape from a nonsuit; because the plaintiff alleged contractual relations with the defendant, and there was no testimony-tending to support this allegation. “A materialman’s lien does, not arise against the real estate of the true owner unless the material is furnished directly to the true owner or ‘to one who occupied the legal relation of a contractor, or one who had some contractual relation with the true owner in connection with the improvements to be made.’” Pittsburgh Glass Co. v. Peters Land Co. 123 Ga. 726, 51 S. E. 725; Jennings v. Huggins, 125 Ga. 340, 54 S. E. 169. The title of the true owner can not be incumbered by a lien without some act on his part signifying his assent. Re-, pairs or additions might be made at the direction of a disseisor, trespasser, or tenant, and “might even be improvements and add to the value of the property, and y.et might not be of a character which the owner desired placed on his land. If the real estate could be .subjected to a lien under such circumstances, he might be called upon to pay for that which the next week he would cause to be torn down and removed. It frequently happens that [he lot and a new house sell for less than the cost of building, and it is unfortunately true that one is often improved out of his estate. But before this can be done, he must at least consent to the making of the disastrous improvement.” Reppard v. Morrison, 120 Ga. 30, 47 S. E. 555.

We have only referred to these decisions upon the subject of liens because the plaintiff in error strenuously insists that plaintiff was entitled to a general judgment, and the same doctrine of agency or authority to act would be applicable to bind the defendant for the contract of her husband and subject her to a general judgment as would be necessary were the'assignment as to the special judgment properly before us. The only real question, therefore, is whether, the relation of husband and wife being shown, a finding is required that the latter shall, in any and all events, be bound therefor, where the husband for any reason sees fit, of his own accord and upon his own responsibility, to make expenditures upon premises which happen to be owned by the wife, but which were not the basis of the credit extended; or whether the creditor in such cases shall be required to prove other facts or circumstances in addition to the relationship, showing it to be right and proper that the wife shall be bound for the contract. If the husband is acting as agent for his wife and she is simply the undisclosed principal, of course her liability can not be questioned any more than if he had, with her assistance, concealed or misled the contractor as to the true ownership of the property, to improve which work or material was furnished. The authorities cited by the plaintiff in error upon the subject of an undisclosed principal are not applicable to the facts of this case. Where the wife is the principal and the husband agent, there are generally at least some circumstances pointing to that conclusion. None such appear in this ease. In the absence of evidence of any peculiar circumstances, no conclusive presumption arises, from proof of the relation of husband and wife, that a husband may not present his wife with a new bath-tub, or that he may not have it put in the house for his own use and benefit, although the wife may own the real estate.

Under the decisions in the cases of Colquitt v. Solomon, 61 Ga. 494, Masland v. Kemp, 70 Ga. 786, and other cases cited, there can be no question that even if the copy lien tendered should have been allowed as evidence, it can not be considered by this court. It is attached to the bill of exceptions on a separate sheet and following the judge’s certificate. It is not identified by the judge’s signature as being the “exhibit A” referred to in the bill of exceptions. Certainty, therefore, there could not have been a special judgment against the defendant; and as, in our opinion, the plaintiff’s evidence fails to show that the wife was the undisclosed principal of her husband, and the evidence showed, without contradiction, that the employment was procured by the husband, the work done according to his suggestion and wishes, and all the payments made by him, there could have been no general judgment against the defendant. There was no error in the judgment awarding a non-suit. Judgment affirmed.


text:
    450.
    LIVINGSTON v. ANDERSON & SON.
    1. Delivery of a warehouse receipt is constructive delivery of the articles which it represents; but constructive delivery will not suffice if actual delivery at the time of the sale is impossible.
    2. The delivery of a warehouse receipt implies a guaranty on the part of the seller that the articles represented by the receipt are in existence and in the custody of the bailee therein specified; and for a breach of this implied warranty the purchaser, on failure of actual delivery, may recover the purchase-price paid by him, or proceed against the warehouseman, at his option. The right of action against the warehouseman is not exclusive of the purchaser’s remedy against the vendor, should the purchaser elect to rescind the contract of purchase for the reason that delivery was impossible at the time of his purchase.
    Complaint, from city court of Eastman — Judge Gale presiding. March 21, 1907.
    Submitted June 25,
    Decided July 4, 1907.

      DeLacy & Bishop, W. M. Morrison, for plaintiff in error.

      D. M. Roberts & Son, Tye, Peeples, Bryan & Jordan, contra.
   Russell, J.

Livingston brought suit against U. Anderson & Son, alleging that between the 24th and 31st days of December, 1903, he bought from them a bale of cotton, represented by a warehouse receipt as follows:

“Eastman, Ga., Nov. 7th, 1906.
Harrell’s Eire-proof Warehouse.
W. F. Harrell, Proprietor. Received of T. L. Kirkley, Marks, 1; No. 477; Weights, 611.
One bale cotton. Marks, numbers, etc., as per margin, subject to the presentation of this receipt or order on paying expenses and all advances. Acts of providence and fire excepted.
W. F. Harrell, for the proprietor.”

Petitioner further alleged payment to the defendant of $76.38 for said cotton, and that thereupon the warehouse receipt representing the cotton was delivered to him; that petitioner presented the receipt and the warehouseman failed to deliver the cotton; and that thereupon petitioner took the receipt back to defendants and tendered it to them and demanded of them the return of the purchase-money paid for the cotton; which the defendants refused. The petition further alleged, that the bale of cotton in question was not in the warehouse at the time of his demand, but' had in fact-been shipped out of the warehouse some time before defendants sold the same to plaintiff, of which fact plaintiff had no knowledge or notice until after his purchase from defendants, and until after said receipt was presented to the warehouseman and delivery of the cotton demanded thereunder. ■ The petitioner further averred, that by reason of this purchase and the payment of the agreed price it was the duty of the defendants, and the law implied a contract, to deliver to petitioner the bale of cotton represented by said warehouse receipt, and that it would be delivered to him by said warehouseman on presentation of the receipt. The petitioner alleged, that he had fully complied with the terms of the contract of purchase for the bale of cotton, by paying defendants the en-' tire purchase-price, relying upon their undertaking and contract to deliver the bale of cotton to petitioner; and that defendants received and accepted from petitioner the full purchase-price, to-wit $76.38. 'The failure and refusal of the warehouseman to deliver the cotton, and the failure and refusal of U. Anderson & Son to deliver it to petitioner in pursuance of the sale and of defendants’ contract and agreement to deliver to him, is alleged as a breach of contract by the defendants, and judgment is asked “(a) for the recovery of said bale of cotton and the hire thereof, or its value; or (5) for the damages resulting to petitioner from the breach of contract; or (c) for the recovery of the purchase-money of said cotton paid to TJ. Anderson & Son, and interest thereon from November 7, 1903, treating the contract for the sale of said cotton to petitioner as rescinded by reason of the facts hereinbefore set forth,, and petitioner, before the commencement of this suit, having tendered and now hereby continuously tendering back to said U. Anderson & Son said warehouse receipt delivered by them to petitioner.”

The defendants admitted, in their answer, the sale of the cotton to the plaintiff, and the' delivery of the warehouse receipt as above set out; that the bale of cotton was not delivered by the warehouseman, and that the plaintiff tendered back the warehouse receipt and demanded back the purchase-price, and that they refused to^ pa3r the plaintiff the value of the bale of cotton or to deliver the cotton to him, or to return to him the amount of the purchase-money paid therefor. -The defendants set up, as their defense, that, they purchased the bale of cotton in the usual course of business ; that they bought by sample and sold the same way, obtaining the warehouse receipt from the party to whom it was issued, *and delivered the receipt to the plaintiff; .that the plaintiff knew the warehouse in which the cotton was stored, as shown by the receipt, and knew that the defendants did not have the cotton at their place of business; that the defendants acted in good faith, believing that a warehouse receipt meant something, and that when a warehouseman issued a receipt, agreeing to hold the cotton represented by it until the cotton was delivered back to him, this agreement would be kept and the bale of cotton would remain in the warehouse until the cotton was surrendered. Defendants insisted that plaintiff’s cause of action was against the warehouseman, and that plaintiff’s petition drew them into useless litigation, and they asked for damages against the plaintiff. . • ■

The case was submitted to the judge, without the intervention of a jury, upon the following agreed statement of facts-: “It is agreed by and between the parties and. their attorneys in_ the above stated case that the facts are asp follows: Plaintiff bought from defendants, during the latter .part of December, 1903, the bale of cotton described in the warehouse-receipt set forth in plaintiff’s petition, the same being the original warehouse receipt given for said cotton, and paid defendants .the agreed price of $76.38 therefor, and defendants delivered to plaintiff or his agent said warehouse receipt. As a matter of physical fact the cotton was not in the warehouse at the time of said sale, but had some time previously been shipped away by M. H. Edwards & Brother, who claimed it under a duplicate receipt issued on the same day as said ■original receipt but after the issue of said original'receipt; but Livingston did not know of the claim of Edwards & Brother, or of said shipment, until after he bought from defendants and until plaintiff presented the receipt he got from defendants to the warehouseman and demanded the cotton; but both plaintiff and defendants supposed the cotton was in the warehouse at the time of the .sale by defendants to plaintiff. When plaintiff presented the receipt to the warehouseman and demanded the cotton and learned that it was not there, but had been shipped away before the purchase from defendants, he took the receipt back to the defendants and demanded of them either the bale of cotton or the return of the prrrehase-money he had paid to them for it; and defendants refused either to deliver the cotton or return the purchase-money, and still refuse to do so; and plaintiff has never in fact received the ■cotton or the return of the money he paid for it. Defendants ■claim that his claim or right of action, if any, should be against the warehouseman. Defendants paid T. L. Kirkley $62.63 for said bale of cotton by their check on the Citizens Banking’ Co., November 7, 1903, and then received from Kirkley said original warehouse receipt, which they delivered to the plaintiff at the time of •selling said bale of cotton to plaintiff, and said check was paid by said bank.” The trial judge rendered judgment for costs in favor •of the defendants; and the plaintiff asks for a review of that judgment, by direct bill of exceptions.

The question in the case is, whether the plaintiff’s right of action against the warehouseman is his only remedy, or, whether, he has not also the right of recovery against the defendants for the amount paid to them for the bale of cotton represented by the warehouse receipt which he tendered back to them with a demand for his money. It is undisputed that at the time the warehouse receipt was delivered to him there was no cotton in the warehouse subject to delivery by virtue of that receipt. It is likewise undisputed that that fact was not known to either of the parties. It is unquestioned that the plaintiff made his tender of the receipt within thirty days from the time that he became aware 'that the bale of cotton would not and could not be delivered by the warehouseman. The plaintiff can maintain an action against the warehouseman, and he could have brought such an action. Defendants contend that this was his only remedy; and this seems to have been the view of the trial judge. In our opinion the plaintiff not only had the right to bring an action against the warehouseman, but he might, at his option, have treated the contract as rescinded; and having tendered back the receipt within a reasonable time, he was, under the agreed statement of facts, entitled to recover the $76.38 paid by him, with interest from the time of demand for repayment.

The cases cited by the learned counsel for the defendant in error establish only a proposition as to which there can lo no dispute,— that this plaintiff could have brought an action of trover against the warehouseman, or. could sue and recover the value of the bale of cotton from the warehouseman. To this effect is the ruling in Nall v. Farmers Warehouse Co., 95 Ga. 770, 22 S. E. 665, Zorn v. Hannah, 99 Ga. 634, 25 S. E. 829, Citizens Bkg. Co. v. Peacock, 103 Ga. 171, 29 S. E. 752, and Peacock v. Citizens Bkg. Co., 110 Ga. 284, 34 S. E. 851, so far as affects this case. In Central L. Co. v. Exchange Bank, 101 Ga. 353, 28 S. E. 866, it is said: "Cotton packed into bales is certainly personalty. The transfer or surrender of warehouse receipts, or other symbols representing cotton, may very properly be regarded as equivalent to an actual physical delivery of the cotton itself, and therefore will operate as a constructive delivery passing title.” But in that ease the cotton in question was at the warehouse, was levied upon by an officer;' and the only question involved, as stated by the Supreme Court, on page 351, wasy "In whom was the legal title to this cotton at the time of the levy?” That'question was to be answered by determining whether one Eoosevelt was Or was not the agent of the claimant, and the court decided that he was not such agent. That was the only issue passed upon by the court. In Farmers Bank v. Bennett, 120 Ga. 1012, 48 S. E. 398, the defendant came into possession of warehouse receipts without the consent or knowledge of the plaintiff, presented them at the warehouse, and received two bales of cotton and disposed of them without any authority from the plaintiff; and it was held that the bank, as pledgee, might either bring an action of trover against the defendant, or waive the tort and sue in assumpsit for the market value of the cotton. In the ease of Rawls v. Saulsbury, 66 Ga. 397, nothing more is held, so far as applicable to this case, than that the plaintiff could have brought an action against the warehouseman; and the same thing; may be inferred from Gunn v. Knoop, 73 Ga. 510. All of these cases, as well as Shepard v. King, 96 Ga. 84, 23 S. E. 113, recognize that the transferring of a warehouse receipt is a mode of' effecting delivery, and that it is further true that a sale may be completed without actual delivery of the goods sold.

In all of the eases we have been able to examine, the personal property was in the hands of the bailee at the time of the transfer of the symbol representing such property. In this case it is admitted that, unknown to either partjr, the bale of cotton described in the warehouse receipt delivered by the defendants to the plaintiff was not, at the time of such transfer, in the custody of the bailee, — the warehouseman. The warehouseman could not deliver the cotton. He might not be able to respond to a judgment for the value thereof, and in either event the plaintiff had received nothing for his money except a demand and right of action against the warehouseman. This makes a case, as to its facts, unlike any which has been expressly ruled in this State. If the Supreme Court has ever held (while holding that the pledgee or transferee of a warehouse receipt can proceed against the warehouseman), that the holder of such receipt, where the cotton or other goods can not be reached, is confined solely to an action against the warehouseman, we have been unable to find it. And in the absence of a distinct ruling to that effect we think that the plaintiff has his option to proceed, if he chooses, against either the warehouseman or the defendants in this case; because there was no cotton which could be delivered by the warehouseman; and upon his discovery of that fact he promptly treated the contract as rescinded, offered to restore the receipt, and made timely demand for the purchase-price. When Livingston brought this action on the case, he elected to take, and asked for, a judgment against Anderson & Son for the purchase-moneyhe paid them for the cotton, with interest thereon. At the time of the purchase there was no such cotton; and to deny ■ Livingston the right of recovery would be to permit Anderson & Son to sell him a bale of cotton which they did not have, but which they wore supposed to have, and get his money for it, and thereafter neither deliver the cotton nor return the purchase-money, and thus get Livingston’s money for absolutely nothing.

It is clearly held in Biggers v. Pace, 5 Ga. 172, that notwithstanding title may have passed from seller to buyer, jret if the seller refuses to. deliver the goods, the buyer may either bring trove1-to recover the goods, or a special action on the case for damages. Where one party to a contract is ready and willing to perform and the other is not, the first may maintain an action against the other. So that, granting that the title would have passed, if the defendants had had the cotton in the warehouse, by the delivery of the warehouse receipt, under the doctrine in the Biggers case we think this plaintiff can recover. As we have stated above, the effect of the rulings of our Supreme Court is simply that the delivery of warehouse receipts is such constructive delivery of the articles therein described as will pass title; and a provision to the same effect in favor of pledgees is contained in the Civil Code, ■§2956. But as a person selling personal property is bound to de- ■ liver the thing sold to the purchaser, and as the law makes it his -duty to do so whether he jn express terms agrees to deliver the .articles sold or not, the very fact of selling the thing raises an implied contract of delivery. A constructive delivery by delivering a bill of sale or a warehouse receipt for the articles sold will not relieve the seller from making actual delivery of the thing which such bill of sale or warehouse receipt represents, where the uncontradicted evidence shows that such article was not in the possession of the bailee at the time of the sale. The constructive delivery relies upon the presumption that the property is, as it purports to be, in the possession of the warehouseman or the bailee. If, as a matter of fact, the property of which the warehouse receipt was a symbol has already passed from the possession of the bailee, there is no constructive delivery. The-seller must then rely upon actual delivery, or the purchaser may treat the contract as rescinded, and recover damages for the breach of the contract. 'The law declares the delivery of a warehouse receipt for cotton to be a constructive delivery of the cotton represented thereby, for the sole purpose of passing the title, so that an action in trover against the warehouseman issuing the receipt can be predicated thereon by the holder, just as if there had been an actual delivery of the cotton itself, in the event of a conversion by the warehouse■man or his refusal to deliver the cotton to the holder; and in such case the warehouseman will not be heard to -deny the title of the holder of his own receipt, whereby he obligated himself to deliver the cotton'upon the presentation and surrender of the receipt. But this does not relieve the seller from making an actual delivery of the cotton when demanded by the purchaser; and a refusal to make such actual delivery subjects the seller, in case the receipt really represented nothing tangible at the time of the sale, to an •action by the purchaser for the recovery of the cotton or the purchase-price paid therefor. The sale of the cotton, and the delivery ■of the warehouse receipt therefor to a purchaser, is equivalent to a warranty on the part of the seller that the cotton is in the warehouse. This must be conceded to be true, or, at best, the purchaser would be only buying a lawsuit'; and but few are anxious for that •class of property. If the property represented by the receipt is not in fact in the warehouse (as the purchaser has a right to expect it to be), there has been, on the part of the vendor, a breach of the implied warranty arising from the fact of ¡jale and delivery of the receipt. In making such a sale the vendor not only says that he has title, but he in effect, says to the purchaser, “I own a bale of cotton, and it is in the warehouse, with the marks and numbers and the weight shown in the warehouse receipt which I now deliver to you, and all you have to do is to take this receipt to the warehouse and get the cotton. I guarantee that you: will now find it there and get it on presentation of this receipt.” If in fact the seller had no such bale of cotton in the warehouse at the time, 'but it had previously been carried away to parts unknown, it seems ■to us that if it is out of the power of the vendor to deliver the ihing sold, he should at least be liable to the purchaser for 'the return of the purchase-money paid him.

In 'this case the defendants prevented the completeness of the plaintiffs title, by selling him a bale of cotton that they did not actually have and could not deliver in pursuance of the sale, and upon the representation, necessarily implied from the circumstances of the transaction, that the cotton was in the warehouse, when in fact it had been several weeks previously taken out of the warehouse and shipped away by an adverse claimant. The defendants can not dispute the plaintiffs title; for it came through them; and the-defendants can not defend by questioning the sufficiency of the-plaintiffs title, because the act of the defendants themselves prevented the completeness of their title. See Holton v. Carter, 90 Ga. 299, 15 S. E. 819.

According to the evidence there was a mutual mistake of fact on. the part of both parties in this case. When Anderson & Son undertook to sell the bale of cotton to Livingston and he paid them for it, Anderson & Son, as well as Livingston, erroneously believed that the cotton was in the warehouse. As a matter of fact it was not there at that time, but, some time before the transaction, had been shipped away to parts unknown. As soon as this fact became known to Livingston he undertook to rescind the contract of purchase, and treated it as rescinded, and took the warehouse receipt back to Anderson & Son and tendered it, demanding that the purchase-price be refunded, and they refused to accept the receipt or refund the purchase-money. A contract predicated upon a mutual mistake of fact may be rescinded. It is undisputed that in this case both parties were laboring under the belief that the cotton, was in the warehouse, and based their contract upon that belief, when as a matter of fact it was not there. Livingston, having tendered back the warehouse receipt to Anderson & Son when the mistake was discovered, rescinded the contract. And Livingston having done all that a court of equity could have required him to do, and the exercise of affirmative chancery powers or extraordinary equitable relief not being asked, it was not necessary for the plaintiff to go into a court of equity, but, the contract of purchase being treated as rescinded, the plaintiff could sue for the recovery of the purchase-money paid. The action was-properly brought, and, under the admitted facts, the court erred in not rendering a judgment for the plaintiff for the amount of the purchase-price, with interest thereon.

Judgment reversed.


text:
    257.
    GOLDSMITH v. THE STATE.
    A solicitor of a city court may amend an accusation in that court at any time before the defendant therein has pleaded to the merits, provided the affidavit of the prosecutor will legally support the accusation as amended, unless such amendment is forbidden by the act creating such city court.
    Accusation of misdemeanor, from city court of Kichmond county- — Judge Eve. February 18, 1907.
    Argued March 21,
    Decided July 10, 1907.

      Isaac S. Peebles. Jr., Wallace B. Pierce, for plaintiff in error.

      James C. C. Black, Jr., solicitor, John M. Graham, contra.
   Russell, J.

The only assignment of error to be passed upon in this case is the complaint that the court erred in allowing the accusation against the plaintiff in error to be amended, and in refusing to quash it. The amendment was permitted before the defendant pleaded, and it consisted in changing the ownership of a pistol alleged to have been stolen, and of the house in which it was said to have been contained. The question is thus squarely presented whether the solicitor of the city court of Kichmond county has the right to amend an accusation originating in that court and based upon an affidavit of a prosecutor; and if so, under what circumstances can such amendment be allowed? The 32d section of the act creating the city court of Kichmond county provides: “Defendants in criminal causes where the prosecution originates in said city court, or where such defendants are bound over to said city court by any justice of the peace or notary public, shall be tried on written accusations, setting forth plainly the offense charged, founded on affidavit containing the name of the accuser, and signed by the solicitor of said court. The proceedings, after accusation, shall conform to the rules governing in the superior court, except there shall be no jury trial, unless demanded, as hereinbefore provided, by the accused. In all cases tried upon accusations, the offense shall be thereip charged with the same particularity, both as to matter of form and substance, as is required by the laws and rules of criminal pleading to be observed in bills of indictment in the superior courts.” (Acts 1880-1881, p. 580.) The plaintiff in error insists upon the latter portion of the section, that the proceedings after accusation shall conform to the rules governing the superior courts, and the offense shall be charged with the sánie particularity as is required to be observed in bills of indictment in the superior court.

We confess that the determination of the question is no't without some difficulty, in view of the language of the act which,we have •quoted, if considered alone and without reference to the difference between the word “accusation” (as used with special reference to a city court, and not considered in a generic sense) and an indictment. There is, however, a marked difference between an accusation and an indictment, which would furnish reasons for allowing an accusation to be' amended, while an indictment can ‘not be, except by the grand jury itself before the defendantrpieads. 'The indictment is found upon the oaths of a grand jury, whereas •an accusation in a city dr county court is based upon the affidavit of the prosecutor; and' if the affidavit of the prosecutor' is not amended, the analogy between the two is complete, although an indictment can not be amended. An accusation is the equivalent •of the common-law “information;” and we apprehend, therefore, that when the act says that the proceedings after the accusation shall conform to the rules governing in the superior court, the legislature intended to refer to the accusation as it stands when the defendant is finally put upon trial, and not to preclude the right of amending the accusation, either to make it conform to ‘the affidavit on which it is based,' or to amplify the charge contained in the affidavit,' so as to comply with the requirement of the act as to the particularity with which the charge should be set forth. We are satisfied that this is the proper construction to be .given the section, of the act creating the city court of Richmond •county, above quoted. It clearly appears from the following decisions. In Gordon v. State, 102 Ga. 679, 29 S. E. 446, Mr. Justice Cobb said: “The term [accusation], as used in our law in reference to trials in courts having jurisdiction of misdemeanor cases, is but the equivalent of an information at common law;” and Justice Fish, speaking for the court, in Wright v. Davis, 120 Ga. 676, 48 S. E. 173, says: “Under the common law, from which most of our ideas of ‘due process of law’ are derived, an information lies for all misdemeanors, and an information by the attorney •or solicitor-general . . is the mere allegation of the prosecuting officer by whom it is preferred.”

If it Be true that an áccusation takes the place of a common-law information, an accusation in a city court, in the absence of . a statutory provision to the contrary, is subject to amendment. In Rex v. Wilkes, 4 Burrows, 2527, Lord Mansfield says, “There is a great difference between amending indictments and amending informations. Indictments are found upon the paths of a. jury, and ought only to be amended by themselves; but informations are as declarations in the King’s suit. An officer of the-crown has the right of framing them originally, and may, with leave, amend, in like manner as any plaintiff may do. If the-amendment can give occasion to a new defense, the defendant has leave to change his plea.” There can be no question that the. solicitor could have withdrawn the accusation and have preferred a new one. The motion to quash was based upon the fact that he had merely amended the original accusation. If the accusation was not amendable, the motion to quash the accusation should have been sustained; and as this would have been a final disposition of the cause, the overruling of the motion properly presents the allowance of the amendment to this court for review.

The question has not been directly raised in any case which has. come under our observation, but, from what has been said above, we are convinced that the allowance of the amendment in this-case was not error; because it was made before the defendant, pleaded to the merits. The amendment did not conflict with the. affidavit, and the act creating the court did not forbid it. In the case of Barlow v. State, 77 Ga. 448, the court did not .settle the-question now before us, but rather decided what we have already held, that the solicitor could have withdrawn the accusation and have presented another; and held that the defendant would not be. heard to complain because, instead thereof, the accusation was. amended; because he himself consented to be tried on the accusation as amended, rather than require another accusation. In the case of Conley v. State, 83 Ga. 498, 10 S. E. 123, the defendant. was tried in the city court of Atlanta upon an accusation which failed to allege venue; and an amendment was allowed alleging-venue, after the evidence had closed. The judgment finding him guilty was reversed because the court did not sustain a'motion in arrest of judgment; and the court held that it is too late to amend after the party has been put ripon his trial. This was the real question in the case that was to be decided; and the court held. that tbe accusation takes tbe place of an indictment. But while this was the only issue in that case, the court, in deciding the case, we think, decided this. What might have been considered obiter in that case is based upon the principles announced in the ■ authorities to which we have referred, and is sound law. “The solicitor of the city court, before trial of a criminal case, and before the selection of a jury, can at any time amend the accusation as he may deem proper.” This-rule does not admit in its fullness the statement made by Justice Blandford, that “the accusation takes the place of an indictment.” The rule is based upon a recognition that there is -a substantial difference between the two, and that if the affidavit upon which the accusation sought to be amended is based is for any reason insufficient, or incompatible with the accusation as amended, the amendment can not be allowed, but the State will be forced to procure a new affidavit and a new accusation thereon. In this case, as the defendant was charged in the affidavit with misdemeanor, — larceny from the house, without more, the affidavit was as applicable to the accusation as amended as to the original. Judgment affirmed.


text:
    306.
    Schofield v. Little.
   Russell, J.

1. A plaintiff in error who has excepted in a proper bill of exceptions to the denial of his motion for a new trial may, at the hearing in this court, assign error on exceptions taken pendente lite to the overruling of his demurrer to the plaintiff’s petition, though no mention of this interlocutory matter be made in the final bill of exceptions, Such exceptions pendente lite, if transmitted in the record, having once been certified, need not be certified again.

2. When exceptions are made pendente lite to the ruling of the trial court, and error is not assigned thereon in the main bill of exceptions, error must be assigned, as to such interlocutory exceptions, before the beginning of the argument in this court, or, if there is no such argument, erro:' may be assigned in the brief.

3. There was no error in overruling the demurrer. The petition set forth, as a cause of action, a contract of employment, with an implied assumpsit for the reasonable value of the plaintiff’s service.

4. The extracts from the charge of the court to which exceptions are taken, numbered 1 to 6, when considered in connection with the entire charge, are not erroneous.

5. The charge of the court that “it is admitted by the defendant in this case that he (the defendant) owed the plaintiff for the trip to Milledgoville and attention to liis brother while in jail” does not require a new trial, in view of the subsequent agreement of counsel for both parties that the defendant did make the admission as stated by the court. The admission is an abandonment of the contention of plaintiff in error on this point.

Complaint, from city court of Macon — Judge Hodges. September 29, 1906.

Argued May 1,

Decided July 10, 1907.

Miller & Jones, for plaintiff in error.

M. Felton Hatcher, Richard Curd, contra.

6. To charge the jury that “a party to a contract has a right to recover when he has performed his services in pursuance of such agreement and contract” is equivalent to instructing the jury that the services must have been such as were called for by the contract, and must have been performed according to the terms of the contract. Both ideas are included in the words “in pursuance of.”

'7. The jury having returned a verdict finding for the plaintiff without naming an amount, it was not error for the court to instruct the jury, before they retired to perfect such verdict, that their verdict in favor of the plaintiff should be “for such a sum as the evidence shows the services rendered by the plaintiff in the case were reasonably worth.” Such instructions were harmless, as, by reasonable intendment, the verdict announced by the jury was a finding in favor of the plaintiff for the full amount sued for.

.8. Where the court in its charge fully defines to the jury the meaning of the contract and fully and fairly explains to them the contentions of both parties, as embodied in their respective understanding of its contents, the omission to further instruct the jury specially that they must determine what the contract was, its exact terms, the consideration, .and the respective obligations, liability, and undertakings of each of the parties thereunder, is immaterial. The evidence for the plaintiff clearly establishing all of the essentials and the evidence for the defendant explicitly denying the same, the recital of the contentions of •each party, fully and fairly, and appropriate instructions to the jury .as to their finding in either event, dispensed with any statement that the jury should determine' exactly what the contract was. If they believed the defendant, there was no contract as to the major portion of plaintiff’s demand. If they believed the plaintiff, the court’s rehearsal supplied the proper instructions.

'9. While no statute in Georgia allows or prohibits fees to expert witnesses, and while there can be no charge beyond the legal fees of ordinary witnesses for attendance on the court in obedience to subpcena, still, as a physician can not be required to make any examination or preliminary preparations, or to listen to the testimony, in order the' better to give Lis opinion as an expert, he may for such services demand extra compensation. Judgment affirme'd.


author: Hill, C. J.

text:
    345.
    EARLY COUNTY v. FAIN.
    1. “A bridge which constitutes a portion of the public road is necessarily-a public bridge.”
    2. It matters not by what authority such bridge is constructed, whetherby act of the General Assembly or an order of the county officers, by the road hands or by an individual, if it is a part of the public county road and the public authorities use it, it becomes a public utility, and the duty of keeping it in repair is imposed upon the county authorities,, and the county is liable for an injury resulting from a negligent performance of such duty.
    Appeal from Early superior court — Judge Reagan presiding. December 5, 1906.
    Argued May 13,
    Decided July 10, 1907.

      R. H. Sheffield, for plaintiff in error. L. M. Rambo, contra.
   Hill, C. J.

Fain brought suit in a justice’s court against Early County, o'n account of damages resulting from injuries received by his horse in falling through a public bridge of said county. By consent the case was appealed to the superior court without a trial in the justice’s court. The judge of the superior court, without the intervention of a jury, tried the case on the following agreed' statement of facts: "That on the 14-th day of February, 190-1-, J.. B. Fain was driving along the Fort Gaines and Damascus public road in a bugg}'- with a horse 'attached thereto, which was the property of J. B. Fain; that on said public road, about one fifth-of a mile south of Gaines cross-roads in the 1535th district, G. M.,. of Early County, a bridge was constructed over a gully or drain, said bridge being under ten feet in length, by the County of Early by its proper officers, to wit, the superintendent of roads of Early County, Georgia, and not constructed under sections 344, 345, or 346 of the code, since December 29th, 1888; that said described bridge formed a part of the Fort Gaines and Damascus public-road, and was a continuation of said public road over a drain, and ivas used by the public as a public bridge; that on the 14th day of' February, 1904, the flooring of said bridge was in an inferior,, insufficient, and decayed condition, and that the timbers of said bridge were in an inferior and decayed condition, which was unknown to J. B. Fain, and which was known to the superintendent of the public roads of Early County and the county commissioners of Early County; that on the said 14th of February, 1904, the. liorse which the said J. R. Fain was driving fell, without fault on the part of J. R. Fain, through said bridge, on account of the inferior and decayed condition of the flooring- and the timbers of which said bridge was constructed, and sustained permanent injuries, which decreased the value of the horse in the sum of $75.00, in which sum the said J. R.. Fain was and is damaged.” The court found for the plaintiff $75.00, and judgment was entered accordingly. Defendant’s motion for a new trial was overruled.

The single question submitted for our decision is, whether the bridge, whose defective condition caused the injury to plaintiff’s horse, was a public bridge within the meaning of the code. The Supreme Court in the cases of Tattnall County v. Newton, 112 Ga. 780, 38 S. E. 48, and Howington v. Madison County, 126 Ga. 700, 55 S. E. 942, defines a public bridge as follows: “A bridge which constitutes a part of a public road is necessarily a public bridge.” The pleading in this case alleged that the bridge in question was constructed by the county authorities since the passage of the act of December 29, 1888, and was a public bridge.' The stipulation as to the facts is that the bridge was so constructed since the passage of said act, and “formed a part of the Fort Gaines and Damascus public road, and was a continuation of said public road over a drain, and was used by the public as a public bridge.” The court in the Tattnall County case, supra, says, “If a public bridge, and not within the limits of-an incorporated municipality, it seems inevitable that it must be regarded as a county bridge. No matter how the bridge comes into being, if it does so or remains in place with the assent of the proper county authorities, its character as a public concern becomes established.” “If an individual builds a bridge, and the public use it, and it becomes a public utility, the public authorities must repair it.” Elliott on Roads and Streets (2d ed.), §§ 28, 30, 32; 4 Am. & Eng. Enc. L. (2d ed.) 921. We therefore conclude that a bridge which constitutes a portion of the public road is necessarily a public bridge. To make it a public bridge, it is not' necessary that it be established by an act of the legislature or an order of the ordinary or county commissioners as a public bridge, and built and repaired according to the Political Code, §§ 344, 345, 346, with funds raised under § 404, par. 4. It may be built by the road hands and kept in repair by theuq or it may be built by private individuals and given to the public; it is nevertheless a public bridge if a part of the public road, and becomes a public utility by public use. It is admitted that the bridge in question was “constructed by the County of Early by its proper officers; that it formed a'part of the public road and was used by the public as a public bridge.” Its character as a public bridge is thus established by these admissions under the rulings of the Supreme Court and other authorities above cited. The act of December 29, 1888, (Pol. Code, § 603) very largely extends the liability of counties for injuries caused by defective public bridges. It makes counties primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities. It is admitted that the bridge now under consideration was constructed by the county authorities since the act of 1888. It seems clear that under these admissions, coupled with the other admissions that the bridge was defective, that the county authorities knew of such defective condition, and that the injuries occurred to the horse because of such defective condition and without fault of the plaintiff, the judgment of the court against the.county was inevitable.

The tendency of modern legislation is to greatly enlarge the statutory liability of counties with reference to highways. This is due to the fact that counties are becoming more populous, and are invested with greater powers and provided with larger means of performing their public duties: The distinction which now exists between municipalities and counties as to the duty of keeping in repair highways and bridges, and correlative liability for failure to exercise such duty, will gradually disappear as the reason for such distinction ceases. “Both cities and counties are governmental corporations invested with authority over a designated locality, and what is the duty of one is, in its essential nature, the duty of the other.” Elliott on Roads and Streets (2d ed.) § 52; 2 Dill. Mun. Corp. (3d ed.) § 978.

Judgment affirmed.


text:
    351.
    ALLEN & CO. v. HASTINGS INDUSTRIAL CO.
    1. A stock subscription is a transaction between the subscriber and the corporation, and the obligation of one can only be sustained by the corresponding obligation of the other. If both are not bound, neither is bound. Therefore a subscription which is not binding upon the corporation until a stipulated amount has been secured and accepted by the corporation is also not binding upon the subscriber; and until these conditions have been fully accomplished and the subscription has ripened into a binding contract, any party may withdraw therefrom without the consent of the others. - The subscriber may withdraw his subscription, and the corporation may refuse to accept.
    2. As to a tentative contract between the subscribers to the formation of a proposed corporation and a third person, conditioned that it shall not become binding until a certain sum is subscribed, one who has signed as a subscriber may withdraw his subscription, without the consent of such third person, at any time before the sum named has been subscribed.
    Complaint, from city court of Bainbridge — Judge Harrell. December 11, 1906.
    Submitted May 14,
    Decided July 10, 1907.

      E. S. Longley, for plaintiffs in error.

      Russell & Hawes, contra.
   Hill, C. J.

The Hastings Industrial Company, a corporation under the laws of the State of Illinois, brought suit in the city court of Bainbridge against Allen & Company, a partnership doing business in the city of Bainbridge. The suit was based on a contract of subscription for stock, for a canning factory to be erected at Bainbridge by the Hastings Industrial Company. The material portions of the contract are as follows: “We, the subscribers hereto, desiring a canning factory of the following description located at and near the town of Bainbridge, county of Decatur, State of Georgia, hereby enter into this agreement with the Hastings Industrial Company of Chicago, Illinois, party of the first part, the subscribers hereto being second parties, for the construction and equipment of a canning factory, to be built and equipped according to the descriptions endorsed hereon, on the following terms and conditions, for $6,900. This contract is not binding unless the amount of $6,900 or more should be subscribed; and it is understood that no subscriber is liable for a greater interest in said factory when same is completed than is represented in bis or her amount of subscription. Each subscriber agrees to pay the amount subscribed by him or her to the first party when the factory is completed, and no more. Subscriptions to this contract may be secured for any amount; and for this purpose one or more duplicates of this form of this agreement may be circulated by second party, and at any time after the subscriptions on all forms to' be circulated shall equal or exceed the purchase-price, it may be closed by the first party’s special agent signing the same, and such form shall be taken together and constitute the sole contract between the parties. First party shall have the right to first collect from said subscription if it sees fit the entire amount due under this contract, but all money, notes, or subscriptions, remaining after the first party has been fully paid, is the property of the second parties, and may be used by them as surplus. Second parties agree to appoint an executive committee of three when this contract is closed, with full power and authority in a majority to represent them in all of their business herein, and from time to time to inspect the work and material of the first party while it is building said factory and placing said material. Said second parties shall within ten days from the date of this contract select and furnish at the expense of second parties suitable and reasonably level land, with water ready on same, with which to connect pump for the use of said factory, and designate to first party in writing the land so selected, and it is further understood that in ease second parties should fail to furnish said land and water within ten days after the execution of this contract, said party of the first part, at its option, may select and furnish land and water in behalf and at the expense of the subscribers. Said factory to be completed by first party within ninety daj’S, or thereabouts, after the same is located as above provided, and payment for same shall be’ due from, date of completion. In case first party shall be delayed in the execution of this contract by strikes, storms, unavoidable accidents, and other causes over which it has no control, then the time limit, for the completion of this contract shall be extended for a period of time equal to such delays. For the purpose of forming a corporation to own and operate said factory and fully carry out the intention of subscribers, it is hereby agreed that when this contract is closed, second ]3arties are to incorporate under the laws of the State, fixing the aggregate amount of the capital at not less than the contract price, divided- into shares of one hundred dollars each, or in accordance with the laws of the State,, which are to he issued to the subscribers in proportion to their paid-up interests in said factory. The specifications and description of said factory building and machinery attached hereto, and the provisions following same, are a part of this contract. First party agrees to furnish at the expense of second parties an experienced processor for the first season, if second parties give first party thirty dajrs written notice that they desire one. All contracts with agents must be in print or writing. For the full and faithful performance of our respective parts hereof, we bind ourselves and successors. Executed and dated this 8th day of February, 1906. The Hastings"' Industrial Company, per O. Pressprick, special agent.”

The .aggregate amount of $6,900 was subscribed by various citizens of Bainbridge under this contract. The defendants subscribed for three shares, or $300. The suit is for this unpaid subscription. The defense relied upon was, that this contract was not binding until the amount of the contract price, $6,900, had been subscribed and the contract closed by the special agent of the plaintiff signing the same; that defendants were released from • this subscription by the special agent of the plaintiff, who stated that he had authority to make such release, almost -immediately after they had made the subscription, before the requisite amount of $6,900 had been subscribed and before the contract had become executed by the special agent signing and accepting the same for the plaintiff. This verbal agreement releasing the defendants was entered into while the contract was unilateral and before it became binding on either party. It was not denied that the agent Bad released the defendants from the contract. His right to do so was challenged. Nor was it denied that this release was made by the agent before the $6,900 had been subscribed, and before he lad closed the subscription and accepted the contract. We do not think the agent’s authority to release is.material. He was the special agent charged with the work of getting .the- subscriptions and closing the contract for the industrial company. He certainly was the proper agent for the defendants to notify of their intention to withdraw from the contract.. .It can not be doubted that the contract was executory and not binding .upon either party unless the $6,900 was subscribed and the subscription closed and the contract accepted. Until these conditions were fully performed, the contract was inchoate and incomplete, and either party had the right to withdraw therefrom. The right of withdrawal was given by law, and did not .depend upon the assent of the other party.

Whether the defendants’ proposition be considered as an agreement to pay so much for the erection of a canning factory, or as an offer to subscribe so much to the stock of a corporation on certain conditions, they withdrew this proposition or offer, before acceptance and completion of the contract; and we think they had a clear right to do so. Any unaccepted offer either to pay money or to subscribe for stock may be-legally withdrawn. Civil Code, §3645; % Clark & Marshall on Private Corporations, §451, and notes. We do not deem it important to decide the other questions in the record, as our judgment of reversal on the foregoing point is conclusive of the case. Judgment reversed.


text:
    376.
    Atlantic and Birmingham Railway Company v. Smith.
   Hill, C. J.

1. In a suit against a railroad company for killing stock,, the court instructed the jury as follows: “If you believe from the evidence in the case, and from all the facts and surrounding circumstances, that the defendant did use all the means he possibly could, or such as the law requires; if you believe that he used all diligence in his power to keep from killing the mule,.it would be your duty to find, for the defendant.” The court immediately corrected the error complained of in this charge, as follows: “Now what I said about all diligence just now I correct that to this extent — exercise all reasonable care and diligence. That is the class of diligence required in the matter of stock; all ordinary and reasonable care and diligence; that is the class required.” Held, that the error was sufficiently cured and rendered harmless. Especially is this true when in the body of the charge the court gave to the jury section 2321 of the Civil Code, and specifically instructed them that the diligence required of railroads to ' prevent the killing of stock was as laid down in said section. Savannah Railway Co. v. Hatcher, 118 Ga. 273, 45 S. E. 239; Morrison v. Dickey, 119 Ga. 701, 46 S. E. 863; East Tenn. R. Co. v. Miller, 95 Ga. 738, 22 S. E. 660.

2. In the absence of a written request for the court to define to the jury the meaning of the words “ordinary and reasonable care and diligence,” there was. no error in .the omission to, do so. It is doubtful if any specific definition would enlighten the jury, or make any clearer the plain meaning of these simple words.

Action for damages, from city court of Vienna — Judge Henderson. February 18, 1907.

Argued June 19,

Decided July 10, 1907.

Rosser & Brandon, Crum & Jones, for plaintiff in error.

George & Woodward, contra.

3. This court again emphasizes the fact that where there is no error of law, it has no authority to disturb a verdict supported by any evidence. Neither has it any inclination to do so where such verdict is approved by the trial court. Judgment affirmed.


text:
    386.
    BUSH v. WEST YELLOW PINE COMPANY.
    1. In a suit by a servant against his master on account of injuries received through a defective instrumentality furnished to the former by the latter, the servant’s knowledge, actual or constructive, of the defect may usually be ' considered in establishing either or both of two-defenses open to the master; the one, assumption of the risk by the servant; the other, contributory negligence on the servant’s part.
    2. While ordinarily the law reads into contracts of employment an agreement on the servant’s part to assume the known risks of the employment, so far as he has the capacity to realize and comprehend them, yet this implication may be abrogated by an express or implied contract to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands him to proceed with the work and assures him there is no danger the law implies a quasi new agreement whereby the master relieves the servant of his former assumption of the risk and places responsibility for resulting injuries upon the master.
    3. “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” The servant by continuing to work after knowledge that the instrumentality is dangerous may defeat his case on the theory that such conduct is within the rule just stated; but. the command of the master and his assurances of safety may be shown by the servant as a circumstance tending to excuse him from the exercise of that caution which otherwise would lawfully be expected of him. Unless the - exposure to the danger is obvious and rash, the question whether the servant under the circumstances has been guilty of a breach of due care is for the jury.
    4. The court erred in sustaining the demurrer to the plaintiff’s petition.
    Action for damages, from city court of Valdosta — Judge Han-sell presiding. January 30, 1907.
    Submitted June 20,
    Decided July 10, 1907.

      Woodward & Smith, G. A. Whitaker, for plaintiff.

      W. E. Thomas, for defendant.
   Powell, J.

This ease comes to us upon the sustaining of a demurrer to the plaintiffs petition. The allegations of the petition as amended are, that the plaintiff was employed as a servant of the defendant, in loading ears with heavy lumber. He was unskilled and inexperienced in his work, and unfamiliar with the use of the appliances furnished. This fact was known to the defendant. Pieces of timber called “jumpers” were furnished, with which the lumber was to be slided and loaded. The plaintiff called the attention of the defendant’s superintendent in charge of «the work to the fact that these “jumpers” did not appear to be of sufficient size and strength to withstand the strain upon them, and also told him that he (the plaintiff) was unfamiliar with the character of the work and the sufficiency of the appliances; the superintendent told him that he (the superintendent) knew his business, that the “jumpers” were properly adjusted and were all right, and perfectly safe, that there was no danger, and ordered plaintiff to go ahead with the work. Belying upon these assurances plaintiff continued in the work. As a matter of fact the “jumpers” proved to be too short, and under the strain gave way; and as a result a piece of timber fell upon plaintiff and injured him.

The servant’s knowledge, actual or constructive, of the dangerous condition of an instrumentality furnished him by his master becomes an important matter of investigation, from two distinct phases of the case, when he has been injured through that instrumentality and attempts to hold the master responsible for the injury; first, it may be considered in relation to his assumption of the risk, a matter included by implication in the contract «of employment; and then in relation to the question of his contributory negligence. These two aspects are. sometimes confounded, but they are distinct. Every student of the law of master and servant recognizes the correctness of Labatt’s statement (M. & S. §1) : “The doctrines which define the extent of a servant’s right to recover damages for personal injuries received in the course of his employment represent, broadly speaking, the results of a compromise between the principle that a servant agrees to assume all the risks incident to the work undertaken by him, and the principle that a master is answerable for the consequences of any negligent acts which may be committed by himself or his agents. In the last analysis, therefore, every problem in the law ■of employer’s liability consists essentially in the determination of the question whether, the facts under review shall be controlled by the one or by the other of these principles.” As a part of the compromise referred to, the law reads into every contract of ■employment a prima facie agreement on the servant’s part that he assumes all the known risks of the employment so far ais (his mental and physical development considered) they are within his •capacity to comprehend; and also that he will use a corresponding due care and diligence to become informed of and to understand such other risks as are not immediately known and comprehended. This element of assumption of risk may therefore, in a suit by the servant against the master for personal injuries, be considered as a matter of contract, whereby, if it be applicable under the particular facts of the case, the piaster escapes civil responsibility, notwithstanding he would otherwise be liable; jiist us in a suit ex delicto against a carrier for a breach of its public fluty to safely carry goods a special contract of carriage may be shown by the carrier to limit his liability. Thus the servant’s hnowledge of a defect in an instrumentality furnished by the master is a relevant matter of investigation, as tending to show that as to such defect he has assumed the risk; but it is also relevant upon the other phase of the case, that which relates to his contributory negligence. Since no plaintiff can recover for an injury of which his own negligence is the proximate cause, or which' he could have avoided by the exercise of ordinary care, it frequently becomes a matter of defense to the master that the servant’s exposure ■of himself to a known danger amounted to a failure to exercise ■due care, or amounted to contributory negligence. Thus, by viewing the element of the servant’s knowledge in separate aspects, we shall the better be able to see the particular effect’ to be given to the insertion into the case of the new elements of a direct order ■of the master and of his assurances that the work may be safely done with the instrumentalities furnished.

Now, since the assumption of risk is a contractual result, it may be varied as any other term of the contract might be. For instance,,it would be competent for the master and the servant to make an express agreement that the servant should not assume any •of the risks of the employment, and such a contract would be enforced by the court; that which otherwise would be implicit yields to that which has become explicit to the contrary. Not only-may terms which the law would ordinarily imply into a contract, be varied by express agreement to the contrary; but also, where the circumstances warrant it, the original implication may cease- and new and distinct terms may be implied. Even express terms, may sometimes be subsequently varied by implication. Our Civil Code, § 3642, upon the subject of mutual temporary disregard of' contract, is an express recognition of this principle. So, although, primarily the servant contracts to assume the risks of the character we have been discussing, still, pending the course of the-employment, transactions may occur between the master and servant wherefrom the law will imply a quasi new agreement as to-this matter, and will hold that the master has implicitly agreed to-release the servant from his promise to assume the risk. To make-file specific application, the servant, recognizing that the risk is. on himself, says to the master, “This instrumentality furnished, by you to me is unsafe;” the master replies, “Use it; it is safe,” or “Use it temporarily, and I will repair it and make it safe;”' the servant obeys the order and is injured. What effect will the-law give to such transactions ? In the first, where the master says-“it is safe,” the law -will construe these words as such a warranty that a breach of it will release the servant from the assumption of the risk. In the other case, where the master says, “Use it; I will repair it and make it safe,” the law implies an agreement on the master’s part that the temporary use pending the time necessary to get the repairing done shall be at his risk, and not at that of the servant, who has complained of the instrumentality. Just here the quotation from Cooley on Torts (2d ed.), §559, reproduced with approval in the case of Cheeney v. Ocean Steamship Co., 92 Ga. 731, is directly in point: “If the servant, having a right to abandon the service because it, is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless- or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned, the implication of- law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that the parties may and should, where practicable, come to an understanding between themselves regarding matters of this nature.” See also Labatt, M. & S. § 260.

Viewed from the standpoint of the servant’s contributory negligence, the master’s direct command to use the instrumentality, and his assurance that it is safe, stand in this relation to the servant’s right to recover: the law recognizes that under normal circumstances the knowledge and means of knowledge possessed by the servant' are inferior to those possessed by the master; and the former is, as a general rule, justified in relying upon any express statement made by the latter in respect to the extent? of the danger of the employment; and in view of this disparity of information an assurance of safety, or a specific order, may be regarded as having had the effect of lulling the servant into a feeling of security, and as having given him good reason for relaxing that vigilance for his own safety which he otherwise would have exercised; and it is therefore usually a question for the jury whether such command and such assurance do not operate to relieve the servant from an imputation of contributory negligence or failure to use’ due care, which otherwise would be imputed to him. Labatt, M. & S. §§ 407, 440, 451. "The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged through the neglect of the master, it is but meet that he should be recompensed.” Patterson v. Pittsburgh & C. R. Co., 76 Pa. St. 389 (18 Am. R. 412). "A prudent man has a right, within reasonable limits, to rely upon the ability and skill of the agent in whose charge the common master has placed him, and is not bound at his peril to set his own judgment above that of his superior.” See Indiana Car Co. v. Parker, 100 Ind. 181; Shortel v. St. Joseph, 104 Mo. 114, 16 S. W. 397, 24 Am. St. R. 317; Hissron v. Denver R. Co., 7 Utah, 503; 27 Pac. 728; Kain v. Smith, 89 N. Y. 375; Connally v. Poillon, 41 Barb. 366. The Supreme Court of Massachusetts, in the case of McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542, expresses the idea thus: "When we say that a man appreciates a danger, we mean that he forms a judgment as to the future, and that his judgment is right. But if against this judgment is set the judgment of a superior, — one, too, who from the nature of the callings of the two men, and of the superior’s duty, seems likely to make the more accurate forecast, — and if to this is added a command to go on with his work and to run the risk, it becomes a complex question' of the particular circumstances whether the inferior is not justified, as- a prudent man, in surrendering his own opinion and obeidng the command. The nature and the degree of the danger, the extent of the plaintiff’s appreciation of it, and the exigency of the work, all enter into consideration, and no universal rule qan be laid down.” In the footnote to the case just cited, as it is reproduced in 48 L. R. A. 543, is a lengthy citation of '’authorities supporting this proposition. ' This court, in the case of Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 58 S. E. 249, and the Supreme Court in Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S. E. 839, have recently discussed the effect of a direct order of the master as tending to relieve the servant from the exercise of that degree of caution which would lawfully be expected of him in the absence of such a command. Of course ihe servant 'is only the more excusable for relying upon such an order when it is accompanied by an assurance of safety.

It is actionable negligence for the master to order his servant to work with an unsafe instrumentality; an assurance of safety coupled with the order not only aggravates the master’s negligence, but also relieves the servant from the assumption of the risk; the assurance of safety likewise makes the question of the servant’s contributory negligence one for solution by the jury, unless the danger be so obvious that to undertake to encounter it amounts to plain rashness. The master’s command and assurance of safety to the servant prevents the former escaping liability on the theory that the latter has assumed the risk; it is for the jury to say whether the servant’s conduct in continuing to work in the light of his knowledge of the danger, even after the assurance of safefy is given due weight, was or was not negligence; for a person who has failed to exercise ordinary care to protect himself can not recover. This is a maxim of the law applicable to all suits predicated upon negligence, and is wholly independent of the question as to who has assumed the risk as a matter of contract. This is a jury question which the court did not-have the power to determine on demurrer.- Judgment reversed.


text:
      429.

    HENDRIX v. ELLIOTT.

      1. An account attached to a summons in a justice’s court, and set forth in the following language, to wit: “A to B, dr., to commissions to sales on real estate to Dr. Grove, as per agreement, $75.00,” sufficiently indicates and specifies “some particular fact or transaction as a cause of action” to authorize an amendment amplifying the details and circumstances of the particular transaction.
    2. A .rule of liberal construction is to be applied to §4116 of the Civil Code, because the same degree of strictness and precision is not required in justices’ courts as in courts of higher jurisdiction. If a defendant in the justice’s court is informed of the nature of the plaintiff’s demand against him, the purpose of the law is fulfilled.
    Appeal, from Fulton superior court — Judge Pendleton. February 3, 1907.
    Argued June 25,
    Decided July 10, 1907.

      W. H. Terrell, for plaintiff in error.

      Aldine Chambers, W. M. Smith, contra.
   Russell, J.

This suit started in the justice’s court. It was appealed to the superior court. The summons called the defendant to answer to an action of debt due on account. Attached to the summons was the following copy of the account:

“J. H. Hendrix, to J. H. Elliott, dr., to commissions on sales of real estate to Dr. Grove, as per agreement, $75.00.”

After the appeal to the superior court the defendant moved to dismiss the case, “on the ground that no cause of action was set forth in the case of the alleged account attached to the summons.” The court overruled this motion, and allowed the plaintiff to amend by setting forth with greater particularity the sales referred to, and how the 'indebtedness for commissions was created. The defendant excepted pendente lite to the overruling of his motion to dismiss, and to the allowance of the amendment. There is no assignment of error in the bill of exceptions as to the rulings to which exceptions were taken pendente lite; and while error may be assigned as to the subject-matter of exceptions pendente lite by distinct assignment of error in the brief or written argument in this court, it is doubtful in this case -whether there is anything even thus presented to our consideration in the brief of counsel for plaintiff in error. As, however,' several authorities ■are referred to, and the point is made that there was nothing to .amend by so far as the amendment allowed was concerned, we will consider the brief as containing an assignment of error as to the orders complained of in the exceptions pendente lite.

We think the trial judge did right in requiring the plaintiff to .amend, and in refusing to dismiss the case. Really no amendment was necessary. As held by this court in Georgia So. Ry. Co. v. Barfield, 1 Ga. App. 203, 58 S. E. 236, niceties in pleading are not required in justices’ courts. The requirement of the Civil Code, § 4116, was certainly sufficiently complied with by the allowance* •of the amendment, and the statement, “to commissions on sales of real estate to Dr. Grove, as per agreement, $75.00,” set forth a cause of action. The use of the word “commissions” indicated clearly that the plaintiff claimed either a percentage or a fixed amount for services as an agent, representing either the seller or-the buyer in the purchase of property. The word “sales” put the defendant on notice thát there was more than one of the transactions involved. It was clearly stated that the sales for which plaintiff claimed compensation were of real estate. The transactions were then particularly identified by stating that one Dr. Grove was the purchaser of the pieces of real estate in the sale of which plaintiff was concerned and for which he claimed compensation, and the mutter was still further identified by the statement that there had been an agreement in reference to the commissions, which, in the absence of anything to the contrary, could only be inferred to be between plaintiff and defendant. “A petition showing a plaintiff, and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction .as a cause of action, is enough to amend by.” Civil Code, § 5098. The plaintiff in error cites us to the cases of Thomas v. Forsyth Chair Co., 119 Ga. 693, 46 S. E. 869, Powell v. Alford, 113 Ga. 979, 39 S. E. 449, and M. & B. R. Co. v. Walton, 121 Ga. 275, 48 S. E. 940, to establish the proposition that the cause of action is not set forth with sufficient certainty. None of these cases would be applicable to the cause of action attached to the summons in this ■case. As we have shown, the statement as to the account indicates and sufficiently specifies a particular transaction as required by the •code. The defendant is given notice of what he is required to meet. In the first case cited by counsel for plaintiff in error the judgment was reversed, not only because no bill of particulars was attached to the summons, but because there was nothing to furnish reasonable notice to the defendant as to the character of the plaintiff’s demand. By an examination of the original record in Thomas v. Forsyth Chair Co., in the clerk’s office of the Supreme Court, we find that the account attached in that case to the an mm nns contained no reference whatever to what it was for,' — no bill of particulars. It was as follows: “Thomas & Blake in account with Forsyth Chair Company. Chairs and rockers, 1901. April 30, $22.00; Sept. 12, $8.50. $30.50.” Following that account are two statements, both dated September 12; one for one dozen 156, duplicate, $8.50; the other two dozen 60, $17.00, half dozen 156, $23.00, less rebate $1.00, leaving $22.00. It is clear from these accounts that no one could tell what was purchased.

In Powell v. Alford, Alford was sued as a guarantor, and judgment was rendered against him as a principal. The case was taken by certiorari to the superior court, where the certiorari was . sustained and the judgment against Alford set aside on the express ground that, having been sued as a guarantor, a judgment against him as principal could not be sustained; the court holding as .follows: “The suit was against J. F. Wood and G. W. Alford ■ as guarantor. No amendment was made either to the summons or ■ the account sued on, both of which stated Alford to be guarantor. I can not surmise a possible amendment or send the case back on such a surmise. The plaintiff, having so sued Alford, must so recover against him, if at all. He could not, in such a suit, recover against him as sole principal debtor.” The case was then carried to the Supreme Court by writ of error and the judgment of the trial court affirmed, the court holding: “The plaintiff in an action in a justice’s court must set forth with some degree of certainty his ' cause of action, and, having done so, must recover, if at all, upon the cause as laid, and can not recover upon a different and distinct ground of liability.” The holding thus embraced two ideas only: one, that the cause of action in that ease was set forth with ■ certainty, and the other that, being thus set forth, the plaintiff must recover on his cause of action as laid, and can in no event recover ■ cn a totally different cause of action.

While in the third case cited by counsel for plaintiff in error, it was held that a motion to dismiss the action was proper where no cause of action was set forth (even after an appeal had been entered to the superior court) and that that motion should have' been sustained in the case then being considered, still the decision in that ease is authority for “what we' now hold. The court, in deciding that there was nothing in the statement of account in that case to put the defendant upon notice of the character of plaintiff’s claim, inferentially decided, in the spirit of the' code, that where, as in this case, there is ample statement to put the defendant on notice and enable him to prepare his defense, the suit should not be dismissed.

The plaintiff in error also relies upon the decision of Atlanta Ry. Co. v. Shippen, 126 Ga. 784, 55 S. E. 1031. The decision in that ease is simply that the suit should have been dismissed because it was doubtful what was the character of the claim sought to be recovered. As said by the Supreme Court, “It might be construed to be r, claim for an overcharge. It might be construed to be a claim for a penalty. . . The penalty for the use of . . such equivocal language is a dismissal, if the most unfavorable construction would oust the court of jurisdiction. . . There was. no amendment in this case, and the penalty for equivocal language should have been imposed and the case dismissed.” (The only points in the decision are, that, under the facts stated, the-suit could be construed as one for penalty, without an amendment,, and should therefore have been dismissed; and that by amendment it could have been saved, the court referring to Atla. R. Co. v. Ga. Ry. Co., 125 Ga. 798, 54 S. E. 753, in which the plaintiff' saved his case by amendment. The defendant in error seems to have had the latter case in mind in preparation of the amendment-allowed in this case. If there were ambiguity in the cause of action as originally set forth, it was relieved by the amendment. There was no error in allowing the amendment, or in overruling the motion to dismiss. The exception taken to the order overruling the motion for new trial is without merit. The plaintiff fully established his case, if the jury preferred to believe him qnd his witnesses in preference to the testimony of the defendant,, which was uncorroborated; and the trial judge having approved the finding of the jury, we have neither the power nor the disposition to disturb their verdict as to the facts nor to interfere witlx the proper judgment of the court in the jnemises.

Judgment affirmed.


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    441.
    ATLANTIC COAST LINE RAILROAD CO. v. BUNN.
    1. Each party in a civil cause has the right to a panel of twenty-four impartial men from which to select the jury. To be entitled to sit on a case a juror must be omni exceptione major, and where it appears, before beginning to strike the jury, that any juror is, for any reason, disqualified, such juror should be excused for cause.
    2. An employee is not a competent juror to try a ease in which his employer is a party. Eailure to remove jurors thus disqualified and to fill . the panel as provided by the act of 1878, p. 145, is ground for new trial.

      3. A road crossing, such as is referred to in the Civil Code, §2222, is the crossing by a railroad of a public highway, not only used but maintained as such by the proper authorities having the same in charge. The evidence must show the road to be a public highway or street, and that such crosses the railroad, before there is proof of a road crossing. See Johnson v. State, 1 Ga. App. 195, 58 S. E. 265.
    4. No other error appears.
    Action for damages, from city court of Waycross — Judge Myers. March 23, -1907.
    Submitted June 25,
    Decided July 10, 1907.

      Bennet & Conyers, John C. McDonald, for plaintiff in error.

      Wilson, Bennett & Lambdin, contra.
   Russell, J.

This case comes to this court on exceptions taken to the refusal to grant a new trial. Several assignments of error are presented, but in our view of the case it is only necessary to discuss one of them. The fourth ground of the amended motion for a' new trial alleges, that “the court erred in refusing the motion made by counsel of movant to excuse from service on the jury, from the panel of jurors called to try said ease, W. A. Sweat, J. P. Lide, and Will Youmans, who were employees of the plaintiffs, and by reason thereof disqualified to serve as jurors in said case; said motion having been made before commencing tp strike or select the jury in said ease; the same being error because; (a) The employees of parties litigant are presumed to be prejudiced. (5) The jury trying a cause should be perfectly impartial between the parties, (c) Any cause which would prompt a juror to lean in favor of one side or the other should be excuse or cause for such juror from serving on the jury, and thereby not force the side against which he would lean, to strike him therefrom and thereby lose any right as to strikes.-”

The employees of the" plaintiff were disqualified as jurors. It would not be questioned that under the express rule in the case of Central Railroad v. Mitchell, 63 Ga. 173, the employees of the defendant corporation should be held to' he disqualified; and no reason appears to us why the employees of one party would bo more likely to have a leaning, or to have prejudged the case, than the employees of another party to the cause. An employee, whether of an individual, a partnership, or a corporation, may be, in rare instances, an impartial juror in passing upon the rights of his employer. It is possible for a judge or juror to be so absolutely fair that he could try his own cause. But there must be a rule upon the subject, and the only rule that can be adopted with safety is one which recognizes the influence to which humanity is generally susceptible, and not a rule based upon rare exceptions.

As said by Justice Jackson, in Central Railroad v. Mitchell, supra: “It is almost impossible, however incorruptible one may be, not to bend before the weight of interest; and the power of employer over employee is that of him who clothes and feeds over 3dm who is fed and clothed. Hence, the common law excluded all servants, and our statutes have nowhere altered the rule, and it should not be altered.' A close relative is a less dangerous juror, if not a dependent kinsman, than one who is dependent on his employer. See 3 Chit. Black., side p. 363; Bacon's Abridg., Juries, 2, 347, 5, 353. Tidd’s Prac. 852, 3.” The employees of a plaintiff should be disqualified as jurors for the same reason that they would be if they were the employees of the defendant; and employees of a person or partnership should- be disqualified for the reason that would disqualify them if they were the employees of a corporation. A juror must be omni exceptione major. If, then, these three jurors were in fact employees of the plaintiffs, they should have been excused for cause if proper objection was made at the proper time. A jury trial is a travesty unless the jurors are impartial.

But it is insisted bjr learned counsel for the defendants in error that the assignment of error is not in such legal shape as to inform us what action was taken by the court below on the motion submitted by counsel for the defendant (now plaintiff in error); that the defendant was not entitled to have the jurors excused simply by calling the attention of the court to thoir disqualification; that this court is not informed by the assignment of error what action was taken in the court below on the question; and that the trial' court may have found some evidence. that the jurors were not disqualified'to serve, for the reason alleged. .For these'reasons it is insisted by the defendant in error that the assignment of error does not bring to the attention of this court sufficient facts to enable it to determine whether the lower court committed error in refusing to excuse the jurors from service in the cause. We disagree with learned counsel as to this. The recitals of fact'in the motion are fully approved and certified by the trial judge. We, of course, can not tell whether evidence was heard by the court touching the disqualification or not, but it is certified that the jurors objected to were employees of the plaintiff. It is immaterial to this court how knowledge of this fact was obtained by the trial judge; because no point is made that he became possessed of the fact improperly. The trial judge, by approving, without qualification, the grounds of the motion for a new trial, states that it was a fact that the jurors were employees of the plaintiff, and that he knew that fact before passing.upon the motion of defendant’s counsel. It would have been proper for the trial judge, if the question, as to whether the jurors were or were not employees of one of the parties, had been in issue, to hear evidence upon that subject; but from the wording of the assignment of error (which is certified by the judge to contain a true statement of fact) it can easily be inferred either that the statement by counsel of the employment of the jurors was admitted by the opposite party, or rested in the court’s own knowledge; and in either event evidence would be unnecessary for the information of the court. The language of the* fourth ground is “W. A. Sweat, J. P. Lide, and Will Youmans, who were employees of the plaintiffs,” not who movant insisted or alleged were employees of the plaintiffs. If the wording of this ground had been W. A. Sweat, J. P. Lide, and Will Youmans, who movant contended were employees of the plaintiffs, the contention of learned counsel for the defendant in error would be sustained. It appears from the testimony.of J. P. Lide, set forth in the record, that he was an employee of the plaintiffs, and it can reasonably be assumed that it was not insisted before the trial court that any one of the three jurors objected to was not an employee of the plaintiffs at the time that the defendant asked to have them excused for cause.

The jurors, then, were disqualified. Was the objection properly presented to the trial court? A party in a civil case is only required, where a juror is for any reason disqualified, to request the presiding judge to cause the panel to be filled. Penal Code, § 854. The counsel for the plaintiff in error properly requested that the disqualified jurors be excused, and we think the refusal of the court to comply was such an error as demands a new trial. “The defendant had the right to a panel of twenty-four from which to-strike — -all twenty-four impartial men. 7 Ga. 139; 15 Ga. 39; 59 Ga. 145. He was denied this right. . . The denial was erroneous and hurtful. A big part of the battle is the selection of the jury, and an impartial jury is the corner-stone of the fairness of trial by jury.” Melson v. Dickson, 63 Ga. 686. As the cause will be remanded for another hearing, we do not deem it necessary to deal more fully with the other assignments of error, than by reference to what is contained in the headnotes.

Judgment reversed.