text:
    8036.
    Brown, adm’r, v. Wilkes, guardian.
   Bloodworth, J.

1. The decision of the court in overruling a demurrer to a portion of a plea, or in allowing an amendment to a plea, can not properly he made a ground of a motion for new trial. Paulk v. Creech, 8 Ga. App. 738 (70 S. E. 145) ; Kelly v. Malone, 5 Ga. App. 618. (63 S. E. 639); Tompkins v. American Land Co., 139 Ga. 377 (2) (77 S. E, 623); Lee v. McCarty, 132 Ga. 698 (3) (64 S. E. 997); Turner v. Barber, 131 Ga. 449 (62 S. E. 587).

2. Each ground of a motion for a new trial must he complete within itself; and in this case grounds 6 and 7 of the motion are each too indefinite and uncertain to authorize this court to say that error prejudicial to the movant was committed in the admission of evidence, complained of in the latter ground, or in the rejection of evidence, complained of in the former ground.

3. When considered in connection with the explanatory note of the trial judge, and in the light of the whole charge of the court, there is no error harmful to the plaintiff in error in the instruction complained of in the 8th ground, of the motion for a new trial. New trials should not be granted on account of slight inaccuracies of expression, not calculated to .mislead the jury.

Decided May 11, 1917.

Action on bond; from Tattnall superior court—Judge Sheppard. May 20, 1916:

H. G. Beasley, for plaintiff. Way & Burlchalter, for defendant.

4. The 9th ground of the motion for a new trial complains that the jury erred in their calculation and rendered a verdict for too small an amount, and is but an amplification of the general ground that the verdict is contrary to the evidence, “If it be found by any one calculation authorized by law and evidence, whether it be the same adopted by the jury or not, [that] the verdict can be sustained, then this court will not control the discretion of the presiding judge in overruling the motion for a new trial.” Donaldson v. Dothrart, 60 Ga. 604 (1) ; Doster v. Arnold, 60 Ga. 317 (2).

5. There is evidence to support the verdict, no error of law was committed, and the judgment should be •

Affirmed.

Broyles, P. J., and Jenhins, J., concur.


source: Caselaw Access Project

author: Broyles, P.' J.

license: Public Domain

text:
    8129.
    Stovall & Strickland v. McBrayer.
   Broyles, P.' J.

1. As a general rule, the dissatisfied party to a horse swap is not entitled to a rescission of the trade, unless he shows absolute fraud on the part of the other party. In other words, before he can rescind the trade he must show that the other party’s warranties as to the animal traded by him were untrue, and that the party making them knew that they were untrue when made, that on account of such .misrepresentations he was injured, and that he offered to rescind the trade within a reasonable time. Barnett v. Spier, 93 Ga. 762 (21 S. E. 168) ; Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100) ; Houze v. Blackwell, 144 Ga. 700 (87 S. E. 1054); Sasser v. Pierce, 6 Ga. App. 321 (64 S. E. 1100).

(a) Where, however, in a mule swap between A and B, it was agreed between them, as a part of the contract, that A was to take B’s inule, which B represented to be perfectly sound, and, if the mule proved to be unsound, A should have the right to bring it back to B and rescind the trade, and where in fact the mule proved to be unsound and A was damaged thereby, A is entitled to a rescission of the trade, whether or not B knew that his representations as to the soundness of the mule were untrue. Barnett v. Spier, supra.

(b) The offer to rescind, however, must be made within a reasonable time. Jordy v. Dunlevie, 139 Ga. 325 (77 S. E. 162).

Decided May 11, 1917.

2. This was a suit on a promissory note given as “boot” in a mule swap, and the defendant pleaded actual fraud on the part of the plaintiffs—the vendors; that-the mule was unsound at the time of the trade; that the plaintiffs, knowing it to be unsound, warranted it to be sound in every particular, and agreed to rescind the trade if it proved otherwise; and that there was a partial failure of consideration. On the trial the defendant abandoned the plea of actual fraud, but insisted on his other defenses. The jury returned a verdict setting aside the contract and awarding $50 to the defendant as the price of the mule which he traded to the plaintiffs. The evidence, while in acute conflict, authorized a finding that the plaintiffs made untrue representations as to the qualities and worth of the mule, traded to the defendant, that he was damaged thereby, that at the time of the trade it was agreed that he could rescind the trade if the plaintiffs’ representations proved to be untrue; and that his offer to rescind was made within a reasonable time. Under the facts of the case, this court can not hold as a matter of law that the defendant’s offer to rescind, made five or six weeks after the trade, and after he discovered that something was the ‘matter with the mule, was not within a reasonable time.

3. Under the facts of the case there is no material error in the instructions complained of in the first ground of the amendment to the motion for a new trial.

4. The 4th ground of the amendment to the motion for a new trial excepts to the refusal of the court to give to the jury the following requested charge: “In order to rescind a contract of sale, the defendant must promptly, on the discovery of the fraud, offer to rescind the contract of sale.” While-the Civil Code (1910), § 4305, provides that in order for a party to a contract to rescind it, he must promptly, on discovery of the fraud, restore or offer to restore to the other party whatever he has received under the contract, if it be of any value, yet the word “promptly,” as used in this code-section, does not mean “immediately,” but means within a reasonable time. Jordy v. Dunlevie, supra. See also, as to the principle herein involved, Newburger v. Hoyt, 86 Ga. 508 (12 S. E. 925) ; Dickey v. Winston Cigarette Machine Co., 117 Ga. 131 (43 S. E. 493) ; Furst v. Commercial Bank, 117 Ga. 472, 475 (43 S. E. 728). The court in this case having instructed the jury that the defendant, before he could rescind the trade, must have carried the mule back to the plaintiff and offered to rescind the trade within a reasonable time after he discovered that the mule was diseased, did not err in refusing to give to the jury the requested charge, as it was substantially covered by the instructions given..

5. The 2d, 3d and 5th grounds of the amendment to the motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, are treated as abandoned.

6. There was some evidence to support the verdict, and the judgment overruling the motion for a new trial must be

Affirmed.

Jenkins and Bloodworth, JJ.; concur.

Complaint; from Paulding superior court—Judge Bartlett. January 15, 1916.

A. J. Camp, Griffith & Matthews, for plaintiffs.

W. E. Spinks, C. B. JMcGarrity, for defendant.


author: Bboyles, P. J.

text:
    8047.
    Waterman & Company v. Troutman.
    Decided May 11, 1917.
    Complaint; from Houston superior court—Judge Mathews. June 23, 1916.

      John R. Cooper, Akerman & Akerman, for plaintiffs.

      C. L. Shepard, for defendant.
   Bboyles, P. J.

1. The dissatisfied party to a horse swap is not entitled to a rescission of the trade unless he shows actual fraud on the part of the other party, or unless the right to rescind was expressly reserved at the time of the sale. Barnett v. Spier, 93 Ga. 762 (21 S. E. 168); Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100); Houze v. Blackwell, 144 Ga. 700 (87 S. E. 1054) ; Sasser v. Pierce, 6 Ga. App. 321, 323 (64 S. E. 1100); Stovall v. McBrayer, ante, 93 (92 S. E. 543).

Z. This was a suit on a promissory note given as “boot” in a horse swap, and, the defendant’s answer and cross-petition not setting forth, that the plaintiff’s representations (which were alleged to be untrue), as to the qualities and worth of the horse which the defendant received, were 'known to be untrue by the plaintiff at the time they were made, or that the right of rescission was expressly reserved as a part of the trade, the defendant was not entitled to a rescission. The answer as a whole was insufficient in law to set up any legal defense to the suit, and the court erred in overruling the motion to strike it.

3. The error in overruling the motion to strike the answer rendered the subsequent proceedings nugatory, and it is unnecessary to consider the other rulings complained of.

Judgment reversed.

Jenlcins and Bloodworth, JJ., concur.


author: Jenkins, J.

text:
    8061.
    Hudson v. Gunn.
   Jenkins, J.

1. In this State the lien of a mortgage does not pass title or carry with it the right of possession by the mortgagee. Civil Code (1910), § 3256.

(o) The mortgagee can not, by an attempted purchase of mortgaged property, divest an intervening title of which notice is had. McIntyre v. Ferst’s Sons & Co., 101 Ga. 682 (28 S. E. 989; Booze v. Neal, 6 Ga. App. 279 (2), 281 (64 S. E. 1104).

Decided May 11, 1917.

Trover; from Warren superior court—Judge Walker. October 4, 1916.

L. D. McGregor, for plaintiff in error. M. L. Felts, contra.

(6) The issue in an action of trover is ordinarily one of title. Berry v. Jackson, 115 Ga. 196 (41 S. E. 698, 90 Am. St. R. 102) ; Harden v. . Lang, 110 Ga. 392, 397 (36 S. E 100) ; Campbell v. Trunnell, 67 Ga. 518. The object of such a suit is the recovery of specific property' claimed, or its equivalent in money. Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (63 S. E. 270). In such an action it is only incumbent on the plaintiff to show his title, conversion by the defendant, and, where he elects to take a money judgment, the value of the property. Pryor v. Brady, 115 Ga. 848, 850 (42 S. E. 223); Rushin v. Tharpe, 86 Ga. 779, 780 (15 S. E. 830) ; White v. White, 71 Ga. 670 (2).

2. While one holding title under a mortgagor can not acquire an interest in the property adverse to rights of the mortgagee of which he had previous notice (Towler v. Carithers, 4 Ga. App. 517, 61 S. E. 1132), still a judgment for the property sued for may be rendered in trover in favor of one so claiming and against such a mortgagee in possession, without a tender of the amount due on the mortgage, such a recovery being in fact'subject to the mortgagee’s right of foreclosure. In those jurisdictions in which a mortgage passes title a different rule may obtain, and the plaintiff in trover might be required to tender the amount due on such mortgage as a prerequisite to his action.

Judgment affirmed.

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


text:
    8066.
    Bank of Elberton v. Vickery.
   Jenkins, J.

1. “A promise by a debtor to pay a previously existing debt to his creditor, made after the former’s adjudication as a bankrupt but before his discharge, will not be impaired by the subsequently acquired disehai'ge,” as the discharge relates back to the adjudication in bankruptcy, and the effect of such a promise to pay a debt provable in bankruptcy is to renew the obligation. Moore v. Trounstine, 126 Ga. 116 (54 S. E. 810, 7 Ann. Cas. 971); Dicks v. Andrews, 132 Ga. 601 64 S. E. 788, 16 Ann. Cas. 1070); 7 Corpus Juris, 413.

2. The provisions of section 4384 of the Civil Code of 1910, that “no promise made after discharge in bankruptcy to pay a debt provable in bankruptcy, and from the liablity of which the debtor was discharged, shall be valid or binding upon such debtor or promisor unless the same shall have been made in writing, signed by the party making the same, or to be charged therewith, or by some one by him duly authorized,” must be construed to include such a promise to renew made subsequent to the adjudication but before formal discharge, for the same reason that. the discharge of the bankrupt relates back to the adjudication in bankruptcy. See also Shumate v. Williams, 34 Ga. 245, 248, 251.

Decided May 11, 1917.

Complaint; from Elbert superior court—Judge Worley. March 13, 1916.

George 0. Grogan, for plaintiff in error. B. 0. TJpson, contra.

Judgment affirmed.

Broyles, P. J., and Bloodnoorth, J., concur.


author: Broyles, P. J.

text:
    8133.
    Banks v. Giles.
   Broyles, P. J.

The affidavit of illegality in this case is based on the fol-

lowing four grounds: (1) That the defendant in fi.'fa. was not given an opportunity to point out what part of her property she desired the fi. fa. levied upon. (2) That no written notice was served upon the defendant or the tenant in possession of the property within five days after the levy was made. (3) That the defendant in fi. fa. was not served with process, did not acknowledge service, and did not appear and plead in the original suit on which the judgment was rendered, and did not have her day in court. (4) That the levy was excessive. Held:

1. Under the ruling in Douglas v. Singer Manufacturing Co., 102 Ga. 560 (2) (27 S. E. 664), there is no merit in the first ground of the affidavit of illegality.

2. The provision of the statute as to the giving of notice of levy to the tenant in possession is merely directory, and the failure to give such notice does not render the levy ipso facto void. Solomon v. Peters, 37 Ga. 251 (92 Am. D. 69); Cox v. Montford, 66 Ga. 62 (3). The levy not being void through the failure of the sheriff to perform this ministerial duty, this irregularity affords no ground for staying the execution by an affidavit of illegality. In this case the defendant herself was in possession of the property levied on.

3. An excessive levy is not ground for an affidavit of illegality. Pinkston v. Harrell, 106 Ga. 102 (2) (31 S. E. 808, 71 Am. St. R. 242) ; Manry v. Shepperd, 57 Ga. 68 (7); Rogers v. Felker, 77 Ga. 46.

4. The only ground of the affidavit of illegality which is good upon its face is the third. This ground having been traversed by the general traverse filed to the affidavit, an issue of fact was raised, and the court properly sent the case to the jury. However, the record in the original case, which was put in evidence, clearly showed that the defendant in fi. fa. had appeared and pleaded therein; and it further appearing, from the recitals in the bill of exceptions, that it was admitted on the trial of this issue that the verdict in the original case was taken in open court by the consent of both parties, and that counsel representing the defendant “wrote and had the court presiding sign the decree set out in this bill of exceptions, upon which decree the execution in question on October 26, 1915, was issued by the clerk of Douglas superior court, and later levied on the property named in the levy by the sheriff of Douglas county, to which levy the illegality in question was interposed by Mrs. M. F. Banks,” the defendant, a finding against this ground of the affidavit of illegality was demanded.

Decided May 11, 1917.

Affidavit of illegality; from. Douglas superior court—Judge Bartlett. March 24, 1916.

W. H. Bwoford, J. S. James, J. R. Bedgood, for plaintiff in error. J. H. McLarty, J. R. Hutcheson, contra.

(a) In the absence of a special demurrer calling for further particulars, the traverse was sufficiently full.

5. It appearing that this writ of error must have been sued out for delay only, the prayer of the defendant in error for ten per cent, damages is granted. Civil Code of 1910, § 6213.

Judgment affirmed, with damages.

Jenhins and Bloodworth, JJ., concur.


text:
    6151.
    NORDEN & COMPANY v. COLLIER.
    Where a special demurrer to the plaintiff’s petition, on the ground that the petition failed to set forth copies of the contracts sued on, was sustained by an order which provided for dismissal of the petition unless the plaintiff should supply the omission within a stated time, the order was substantially complied with by a proposed amendment, offered within that time, which set forth copies of contracts, which it alleged to be copies of the contracts referred to in the petition, although the petition gave the date of the contracts as July 12, 1912, and the proposed amendment showed the date to be July 15, 1912. The court erred in sustaining the objections to the proffered amendment and in dismissing the suit.
    Decided May 11, 1917.
    Complaint; from Pike superior court—Judge Searcy—October 6, 1916.

      O. D. Dominick, Albert H. Mayer, for plaintiffs.

      Persons & Persons, for defendant.
   Broyles, P. J.

The suit was based upon' certain contracts alleged to have been made for the defendant’s account with members of the New York Cotton Exchange. The substance of these contracts was set forth in paragraphs 3 and 4 of the petition, but no copies were attached as exhibits. The defendant filed a general and a special demurrer to the petition. The general demurrer was overruled, as were also all of .the grounds of the special demurrer, except the ground that copies of the above-mentioned contracts should be set forth. The court passed the following order: “Upon hearing the within demurrer, it is ordered by the court that the general demurrer is overruled, and the special demurrer requiring the plaintiff to attach copies of the written contracts made for the defendant is sustained and the petition' ordered dismissed, unless supplied by amendment to be made on or before the first Monday in March, 1914.” On February 28, 1914, the plaintiffs tendered an amendment, which was allowed, subject to demurrer. On the trial of the case, in October, 1916, the defendant filed objections to this amendment, alleging that the plaintiffs had not complied with the court’s order requiring them to attach copies of the contracts made for the defendant, but that the amendment set up other contracts than those sued upon in the original petition, and asked that the suit be dismissed. The trial judge sustained this motion and dismissed the petition.

It is our opiriion that, under the facts of the case, this amendment was a substantial compliance with the court’s order. The amendment did not set up other contracts than those sued upon in the original petition because of the fact that the original petition, in paragraph 4, gave the date of the contracts as July 12, 1912, and the amendment showed the date to be July 15, 1912, since the amendment distinctly alleged that the contracts were those referred to in paragraph 4 of the plaintiffs’ petition. The plaintiffs’ mistake in setting forth dates can be cured by amendment, either by striking from his petition the incorrect dates, or by inserting in the amendment the correct dates. Quillian v. Johnson, 122 Ga. 49, 55 (49 S. E. 801). Where the original petition shows a contract to have been executed upon a certain date, and the amendment sets forth that the same contract was executed on a different date, the amendment controls, and it is not essential that the incorrect date should be’ stricken from the original petition, though it is better practice to do so. The other slight discrepancies, as to the contracts, between the original petition and the amendment offered, and between the amendment and the exhibits attached thereto, were not material, and, under all the facts of the case, the amendment did not set up other contracts than those sued upon in the original petition. In our judgment the court erred in sustaining the objections to this amendment and in dismissing the petition.

The court did not err in rejecting the second amendment to the petition, it being tendered long subsequent to the time in which amendment was permissible under the order of the court.

Judgment reversed.

Jenldns and Bloodworth, JJ., concur.


text:
    8159.
    Persons-Phillips-Oxford Company v. Morris Fertilizer Company.
   Broyles, P. J.

1. When a corporation is a party to a cause the general manager of the corporation is not such a party within the meaning of section 5717 of the Civil Code of 1910, which provides when the absence of a party to an action shall be cause for a continuance. This is true although the general manager may be the agent of the corporation who had entire charge of all matters pertaining to the suit, and no other agent of the corporation knew any of the facts connected therer with. If the presence of such an agent is necessary to the corporation on the trial of the ease, he should be subpoenaed as a witness, and, if he is providentially unable to attend court, the motion for a continuance on that account should be made under code-section 5715, which provides for continuances for the absence of witnesses. In this case the court did not err in holding that the general manager of the defendant corporation was not a party to the cause within the meaning of the first-mentioned code-section, and in declining to continue the case because of his providential absence.

2. The motion for a continuance because of the absence of the general manager of the corporation, who had been subpoenaed as a witness, was defective, for the reasons that it was not shown to the court at the time the motion was made that the witness was not absent by the permission of the movant, or that the movant expected to be able to procure the testimony of the witness at the next term of court; and the court did not err in overruling the motion. Civil Code of 1910, § 5715; Simons v. Mathis, 17 Ga. App. 588 (87 S. E. 845).

3. There is no merit in that ground of the motion for a new trial which complains of the action of the court in suspending the proceedings and announcing that “the court wanted to do what’was right, and the proceedings would be suspended for thirty minutes, in which time counsel for defendant would be allowed the use of the court stenographer to take the testimony of J. B. Persons before the court commissioner at his home in Monticello, Georgia, Jasper county, three blocks from the ■ court-house.” This ground does not allege that the plaintiff in error made any objection to the action or statement of the court. Moreover, it is affirmatively shown by the record and the note of the judge that counsel for the plaintiff in error assented to such action.

4. The various excerpts from the charge of the court upon which error is assigned were authorized by the pleadings and the evidence, and were not erroneous for any reason assigned.

5. The remaining grounds of the amendment to the motion for a new trial are based upon alleged errors of the court in “failing and refusing” to charge certain principles of law. It is not shown that any timely written requests for such instructions were presented to the court, and in the absence of such requests, and when the facts of the case and the entire charge are considered, no error is shown in the omission of the court to give these charges.

Decided May 11, 1917.

Complaint; from Jasper superior court—Judge Park. June 10, 1916.

A. 8. Thurman, E. M. Baynes, for plaintiff in error.

A. G. Foster, 8. H. Sibley, contra.

6. There was evidence authorizing the verdict, and the court did not err in overruling the motion for a new trial.

■Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Bboyees, P. J.

text:
    8172.
    McMurria v. Scaife.
    Decided May 11, 1917.
    Suit to revive dormant judgment; from Miller superior court— Judge Worrill. July 17, 1916.

      W. I. Geer, for plaintiff in error.
   Bboyees, P. J.

1. If the point be raised by timely special- demurrer, the plaintiff who relies on the privilege of renewal under the Civil Code (1910), § 4381, to escape the bar of the statute of limitations, may be required to attach to his petition a copy of the- petition in the first suit, so that the court may determine, as a matter of law, whether the two suits were for the same cause of action and between the same parties, and whether the first suit was brought before the bar had attached, and in a court having jurisdiction of the subjec.t-matter. Atlanta, Knoxville & Northern Ry. Co. v. Wilson, 119 Ga. 781 (47 S. E. 366).

2. In this case the court erred in not sustaining 'the special demurrer, which raised the point that a copy of the petition in the first suit was not attached to the petition in the present suit.

3. The error in the judgment upon the demurrer rendered the further proceedings in the case nugatory, and the other rulings complained of will not he considered.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


text:
    8197.
    Fields v. Burlington.
   Broyles, P. J.

1. Under the facts disclosed by the record it does not appear that the court abused its discretion in refusing to grant a second continuance in the case.

2. Where A agrees orally to pay to B a debt which C owes to B, to take the transaction without the operation of the statute of frauds it must appear that A, B, and C—all three—concurred in this agreement. Palmetto Manufacturing Co. v. Parker, 123 Ga. 798 (51 S. E. 714). In the instant case the alleged oral agreement was made solely between the plaintiff and the defendant. The defendant promised to pay to the plaintiff the debt due to the plaintiff by a corporation, in which both of them were stockholders and officers. According to this agreement the defendant was to become by substitution the debtor in the place of the corporation. The evidence does not show, however, any official act of the corporation agreeing to this substitution, or that the plaintiff and the defendant had any authority to act for it in this transaction. A corporation can act only in a formal way through its proper officers, as duly authorized. Monroe Mercantile Co. v. Arnold, 108 Ga. 449 ( 34 S. E. 176); Lowry Banking Co. v. Empire Lumber Co., 91 Ga. 624 (17 S. E. 968). Ordinarily the official acts of a corporation should be shown by the minutes or other records kept; but where no records are kept, oral evidence is admissible in their stead. Childs v. Ponder, 117 Ga. 553 (43 S. E. 986). In the case at bar there was no evidence or contention that the corporation itself had ever officially passed on this matter. The record does not show that the corporation was ever legally dissolved, under the provisions of the act of 1910 (Acts 1910, pp. 106 to 109), 2 Park’s Ann. Code, §§ 2823 (b) to 2823 (g), inclusive. Under these facts the oral promise by the defendant to pay the plaintiff the debt owed to the latter by the corporation was clearly within the statute of frauds.

3. The writing relied on to satisfy that provision of the statute of frauds which requires the promise to pay the debt of another to be in writing must, either itself or in connection with other writings, identify the debt which is the subject of the promise, without the aid of parol evidence. Pearce v. Stone Tobacco Co., 125 Ga. 444 (54 S. E. 103). The writing relied on in the instant case as a promise by the defendant to pay the debt of the corporation was therefore insufficient to prevent the provisions of the statute of frauds from applying, and the court erred in admitting it in evidence over the timely objections of the defendant.

4. The promise declared upon in the plaintiff’s petition was the promise alleged to have been made on March 14, 1913; and upon the trial the undisputed evidence showed that this promise, if made, was an oral one and was made on the date alleged in the petition. The written agreement was signed on February 10, 1913, and was not declared upon or even mentioned in the petition. Under such circumstances the plaintiff could recover only on the promise declared upon, and the court erred in charging the jury, in substance, that if they found there was such a written agreement, they should find for the plaintiff.

Decided May 11, 1917.

Complaint; from Turner superior court—Judge Cox. February 7. 1916.

J. W. Haygood, Eldridge Quits, for plaintiff in error.

Qrum & Jones, contra.

5. The legal evidence in the case was not sufficient to authorize the verst for the plaintiff, and the court erred in refusing to grant a new trial.

6. These rulings are controlling in the case, and it is unnecessary to consider other assignments of error than those dealt with above.

Judgment reversed.

Jenlcins and Bloockvorth, JJ., concur.


text:
    8206.
    HENDRICKS v. KELLEY.
    In a money-rule proceeding it is within the sound legal discretion of the trial judge to allow a traverse to the answer to be filed at the second term and after the trial of the case has actually begun; and his discretion will not be controlled unless manifestly abused.
    Decided May 11, 1917.
    Money rule; from Berrien superior court—Judge Thomas. March 23, 1916.

      E. K. Wilcox, for plaintiff in error. J. P. Knight, contra.
   Broyles, P. J.

This was a money-rule proceeding against an attorney, and the rule nisi required the defendant to show cause at the March term, 1915, why he should not pay over the sums of money alleged to have been collected, and why the rule should not be made absolute.. The defendant not having been served prior to the March term, an order to perfect service was granted at the March adjourned term, 1915, and the September term, 1915, of the court was made the return term for the hearing of the rule. At the latter term the defendant appeared g.nd filed a plea in abatement and his answer to the rule. No traverse to the plea or answer was filed by- the plaintiff, and during the March term, 1916, the case was called in its order for trial, and, both sides having announced ready, a jury was empanelled. The plaintiff was sworn and his examination was begun. At this point the defendant objected to the introduction of any evidence in behalf of the plaintiff, on the ground that the defendant’s answer was sufficient in law, and that, no traverse having been filed by the plaintiff, there was no issue to try; and he further moved that the rule nisi be discharged and that the rule absolute.be refused and denied. The plaintiffs counsel then offered a traverse to the answer of the defendant, to which counsel for the defendant objected, on the ground that it came too late-. The court overruled the objection, allowed the plaintiff to file the traverse, and refused to discharge the rule. To this judgment the defendant excepted.

The record shows that the answer was subscribed, sworn to, and filed on September 22,-1915. The plaintiff’s traverse to the answer, which was duly verified, contained the following recitals: “It has just come to his [plaintiff’s] attention that the defendant,, R. A. Hendricks, has filed his answer in above-stated case, and that he has just learned the contents of said defendant’s answer; that both he and his attorney at law, J. P. Knight, have carefully made search from time to time to try to find out if such answer had been filed, and if so [to] see it, but that each time they called they were told that no such paper was of file in the clerk’s office in said case; that the allegations set forth in each and every paragraph of said answer of said R. A. Hendricks are untrue as therein stated, and deponent traverses the truth of the allegations as set out in each and every paragraph of said answer.”

Section 5347 of the Civil Code of 1910 provides that the movant in a money rule may traverse the truth of such answer, in which case an issue shall be made up and tried by a jury at the same term, unless good cause of continuance be shown. It is well settled that this section does not require the traverse to be filed at the return term, but that it may be filed at the trial term. Brantley v. Southerland, 1 Ga. App. 804 (57 S. E. 960); Melton v. Hicks, 7 Ga. App. 462 (67 S. E. 116). In each of those cases the question involved was whether the traverse had to be filed at the first term, or could be filed at the trial term. In neither ease was the question narrowed down to the point involved in the instant case, to wit: Can such a traverse, when made at the trial term, be- filed after the trial of the case has actually begun? Therefore, the language in those two cases, which in-effect says, that the traverse must be. filed before the case is called for trial, is obiter, and not binding precedent in this case.. In Lane v. Brinson, 12 Ga. App. 760 (4) (78 S. E. 725), it is distinctly held that “a traverse to an attorney’s answer to a money rule may be filed at any time before the rule is discharged,” and in the opinion (P- 763) Judge Pottle discusses the question as follows: “By express enactment, the entry of an officer of court is taken as true, unless traversed at the first term after notice. Civil Code (1910), § 5566. But in garnishment cases the statute provides generally for traversing the garnishee’s answer, without providing when the traverse must be filed. Civil Code (1910), § 5283. It has been held that the answer of a garnishee may be traversed at any time before the garnishee is discharged. Smith v. Wellborn, 73 Ga. 131. Section 5347 provides, that the movant in a money rule ‘may traverse the truth of such answer, in which case an issue shall be made up and tried by a jury at the same term, unless good cause of continuance be shown.’ There is nothing in this section which requires a traverse to be filed at the term at which the answer is filed. The requirement is merely that the case shall be tried at the term at which the traverse is filed, unless continued for good cause. The principle announced in Smith v. Wellborn, supra, is applicable, and the traverse may be filed at any time before the officer ruled is discharged.”

In matters of pleading in money-rule actions the trial court has a wide discretion. Kelly v. Murphy, 135 Ga. 515 (69 S. E. 826).

Under the above rulings, and under all the particular facts of this caes, as disclosed by the record, it is not shown that the trial judge abused his discretion in allowing the traverse to be filed and iu refusing to discharge the rule.

Judgment afp/rmed.

Jenkins and Bloodworth, JJ., concur.


author: Bloodworti-i, J.

text:
    8211.
    Purity Extract & Tonic Co. v. Holmes-Hartsfield Co.
   Bloodworti-i, J.

1. Suit was brought by Purity Extract & Tonic Company against Holmes-Hartsfield Company on an unitemized account. Defendant filed a plea to which plaintiff orally demurred on the ground that it set up no valid defense and was insufficient in law. The plea alleged that plaintiff contracted to sell defendant an article called “special,” and that plaintiff knew that the same was being bought for resale “outside of Moultrie and in Colquitt county,” and represented and guaranteed that the sale of said “special” was not prohibited by the laws of Georgia, and the same was not a substitute for “near beer” or a substitute for beér, ale, and malt liquor, whereas said “special” was in truth and in fact a “near beer” and was manufactured and intended as a substitute for beer, ale, and malt liquor, the sale of which at the time of said contract was prohibited in said city of Moultrie and said county of Colquitt, which facts plaintiff knew and defendant did not know. The demurrer was properly overruled. Bush v. Hessig Ellis Drug Co., 10 Ga. App. 589 (3) (73 S. E. 1097).

Decided May 11, 1917.

Complaint; from Colquitt superior court—Judge Thomas. July 17, 1916.

McKenzie & Dowling, for plaintiff in error.

T. II. Parker, contra.

2. It is never reversible error for a judge to refuse to direct a verdict. Stewart v. Attaway, 18 Ga. App. 158 (88 S. E. 992).

3. “It is not error requiring a new trial to fail to charge upon the subject of the burden of proof, when there is no written request for such an instruction.” 'Whittle v. Central of Ga. Ry. Co., 11 Ga. App. 257 (74 S. E. 1100); Matthews v. Richards, 19 Ga. App. 489 (91 S. E. 914), and cases cited.

4. The charge of the court, when considered in its entirety, embraced the general principles of law applicable to the facts in this case; and the excerpts therefrom upon which error is assigned are not erroneous for any reasons set forth in the assignments- of error. If any instruction amplifying the general principles which the charge contained had been desired, it should have been requested in writing, as is provided in the Civil Code of 1910, § 6084.

5. There was no error in the portion of the charge complained of in the 7th ground of the motion for a new trial. Watkins v. Rugen, 118 Ga. 372 (2), 373 (45 S. E. 262).

6. The 4th ground of the motion for a new trial is but an amplification of the general grounds, there was evidence to support the verdict, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8237.
    General Accident, Fire and Life Assurance Corporation Limited v. Way.
   Bboyles, P. J.

1. “All parties, whether plaintiffs or defendants, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or substance, provided there is enough in the pleadings to amend by.” Civil Code (1910), § 5681. The plaintiff was within her rights in amending her petition to meet the demurrer interposed by the defendant.

2. A demurrer to the original petition does not cover the petition after it has been materially amended. Powell v. Cheshire, 70 Ga. 357 (2 b) (48 Am. R. 572). If the demurrer is still relied upon it should be renewed or insisted upon after the amendment has been allowed. Where, the amendment materially changes the cause of action, the petition is opened anew to demurrer, and the defendant should be allowed reasonable time for answering such amendment. Civil Code (1910), § 5652.

Decided May 11, 1917.

Rehearing denied June 7, 1917.

(a) There is no provision of law that notice of an amendment to the petition shall be given to the defendant. Miller v. Georgia Railroad Bank, 120 Ga. 17 (2) (47 S. E. 525). In this case the demurrer was interposed to the original petition, but was not renewed or insisted upon after the petition had been amended in regard to material matters; nor was there any new demurrer to the amended petition, nor was there any request for time for the purpose of preparing a demurrer or answer to the petition as amended; it appearing that the plaintiff in error and its counsel were not present in court when the amendment to the petition was allowed, and. such counsel apparently being absent without a leave of absence. Under such circumstances the judgment refusing to set aside the judgment in the original case, on the grounds that it was rendered without any disposition having first been made of the demurrer, and without any notice being given to the defendant of the amendment to the petition, and without any time being allowed him to answer it, will not be reversed.

3. The original suit was on a. contract of life insurance, brought by the wife of the insured, the beneficiary under the policy; and the original petition stated that notice and proof of the death of the insured had been duly given to the insurer, that she had surrendered the policy of insurance to the latter, which had been retained, that she had demanded payment of the amount of the insurance, to wit, the sum of $300, which payment had been refused, and that, not having possession of the policy of insurance, she was unable to attach a copy of it to her petition. Apparently the original petition was demurred to upon the ground that a copy of the insurance policy was not attached thereto, although this does not clearly appear from the petition to set aside the judgment in the original case. In the amendment to the original petition, which was allowed, the plaintiff alleged that the said policy was of force, and that all premiums due thereon had been paid, that it bound the insurer to pay to the plaintiff $300 upon the death of the insured, that the policy had been delivered to the insurer, who had retained it, and she therefore called upon the defendant to produce the policy in order that it might be used as evidence in the case. There was no demurrer or answer to the amended petition, nor did the defendant produce the policy (the defendant and its counsel, as above stated, apparently not being present in court when the amendment was allowed). Under these facts the court did not err in permitting the plaintiff to introduce secondary evidence as to the provisions of the policy of insurance, there being no objection then offered to this evidence, and in permitting her to prove the other facts necessary for a recovery under the terms of the policy, or in allowing the case to proceed to a verdict and judgment in favor of the plaintiff.

4. It does not appear that the court abused its discretion in denying the petition to set aside the verdict and judgment rendered against the defendant in the original case, or in refusing to grant the rule nisi as prayed for.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

’ Petition to set aside judgment; from Camden superior court— Judge Highsmith. August 7, 1916.

Payne & Jones, Bolling Whitfield, Alfred II. Orovait, for plaintiff in error.


text:
    7895.
    MORSE v. TURNER.
    1. Where judgment is entered against the principal and the surety on a bail-bond given by the plaintiff in a suit in trover, the' surety is not a necessary party plaintiff to a writ of error taken thereto.
    2. Where in such a suit no process is attached to the petition or served on the defendant, and the defendant causes the dismissal of the suit on that ground, the court is without jurisdiction to enter up judgment against the plaintiff and the surety on the bond, for the value of the property sued for.
    Decided June 7, 1917.
    Trover; from city court of Nashville—Judge Christian. October 9, 1916.

      William Story, for plaintiff.

      Hendriclcs, Mills & Hendricks, for defendant.
   Jenkins, J.

Morse sued out bail-tro ver against Turner, in the city court of Nashville, praying for process, and filed his affidavit requiring the defendant to give bond or produce the property. The clerk of the court failed to attach process to the original peti-' tion or to the copy served upon the defendant; the bail affidavit was attached to the original petition.. The sheriff served upon the defendant a copy of the petition and of the affidavit for bail, the defendant failed to give the bond required by law, and the sheriff took charge of the property, and, upon the plaintiff making bond required of him, delivered the property to him. At a subsequent term of the court, on motion of counsel for the defendant, the case was dismissed, for the reason that there had never been a process in the case, and a judgment was entered against the plaintiff in the case, for $100 and costs. Plaintiff excepted.

A motion to dismiss the bill of exceptions is made upon the ground that although judgment was entered in the court below against both the principal and the surety on the bail-bond given by the plaintiff in the suit in trover, yet the principal alone now appears as plaintiff in error in the exceptions taken thereto. Undey the original practice which obtained in this State, every person who would be directly affected by the judgment of the Supreme Court . was a necessary party to the writ of error. ' Dill v. Jones, 2 Ga. 79; Morris v. Wiley, 2 Ga. 287; Long v. Strickland, 2 Ga. 348. The statute approved December 22, 1847 (Acts 1847, p. 81), provided that “it shall in no ease be considered as necessary to join with ■the parties to the suit in the superior court, carrying a case therefrom up to the Supreme Court, by bills of exceptions and writs of error, the security on appeal or on any injunction;” and that “no writ of error shall be dismissed or delayed in its hearing and decision, where the parties to the writ or declaration below are included in said writ of error.” In Carey v. Giles, 10 Ga. 8 (7), it was said by Judge Nisbet: “By this act, it is manifest that the legislature intended that all the parties to the writ or declaration below should be made parties' to the writ here.” And in the opinion ■ reference was made to ihe abrogation by this statute of the rule previously announced in the cases first cited, supra (2 Ga. 79, 287, 348). Following this legislation it was held in Johnson v. Wilson, 68 Ga. 290, that “Where a ease .is carried by appear from the county court to the superior court, and from the judgment there a writ of error is taken by the appellant, the security on the appeal is not a necessary party in this court.” In discussing this statutory enactment, Chief Justice Fish, in the case of Western Union Telegraph Co. v. Griffith, 111 Ga. 551, 553 (36 S. E. 859), said that it “wrought no change in the rules of procedure save to provide that thereafter it should not be necessary to join in the writ of error securities on appeal or upon injunction bonds, but that such persons only as were formal parties to the pleadings in the lower court should be considered indispensable parties to a writ of error sued out to review a judgment therein rendered.”

Omitting any reference to the provisions of statutes relating to the right of amendment by which parties could be added in the appellate court (since that question is not here involved), the remaining legislation upon the subject was the act of 1881, partly embodied in the Civil Code (1910), § 6176, which did not undertake to change the prevailing practice concerning a proper alignment of parties, save the one change declaring that “no party shall be considered as interested in the litigation in the Supreme Court who will not be affected by the judgment to be rendered in that particular case, such as sheriffs upon a money rule,” etc., and other like nominal parties. On the other hand it is likewise clear that interest alone on the part of a person who is not a party to the litigation does not necessitate his being made a party to the writ. Chason v. Anderson, 119 Ga. 495 (46 S. E. 629). Before the necessity shall exist for a person to be made a party here, he must have an interest in the result of the judgment to be.rendered, and he must be an actual and not merely a nominal party to the litigation. The question, however, which now presents itself for our determination is whether the requirement that all the actual parties at interest be joined shall be held to include all who may properly be considered such by reason of the fact that judgment has been rendered against them, or whether this requirement relates only to the formal parties to the litigation, or (to use the language of Judge Nisbet) “all the parties to the writ or declaration below.” In the headnote to the case of Western Union Telegraph Co. v. Griffith, supra, the rule is announced as follows: “All formal parties to the pleadings in the trial court are proper parties to a writ of error; though since the passage of the practice act of 1881, such of them only as will really be affected by the judgment to he rendered in this court are to be regarded as indispensable parties.”

While it appears to be true that upon judgment being rendered against the surety on an appeal or trover bond, he is to be considered as a party to the litigation (Hogans v. Dixon, 105 Ga. 171, 31 S. E. 422), still, after giving the question our best consideration, we are brought to the opinion that under the statutory enactments and the decisions construing them, only those at interest who are formal parties to the litigation are to be taken as both proper and necessary parties to a writ of error. In the case of Holmes v. Langston, 110 Ga. 861 (3), 869 (36 S. E. 251), while it was recognized that upon judgment being rendered against the security he .became a party to the case, the court said: “The relation of securities on a bail-bond in an action of trover to the suit is peculiar. They are bound by the judgment against their principal, but they do not become parties to the case until judgment is entered. If there is any law authorizing such securities to be heard in the ease, we are not aware of its existence. Their liability is absolutely fixed by the judgment against their principal, and they must stand or fall by the result of his defense, such being the express undertaking in the bond. If judgment has been rendered against him by a court of competent jurisdiction, they are absolutely bound by it, and will not be heard to impeach or attack it in any way for causes which were or could have been matter of defense by their principal. See Jackson v. Guilmartin, 61 Ga. 544. After becoming securities on the bond they must remain silent witnesses to the conflict between the parties to the suit, standing ready to fulfill at the end of the litigation the obligation they have undertaken—to pay the judgment if the plaintiff elects to recover- a money verdict, or deliver the property or’ pay damages in lieu thereof if an alternative verdict is rendered.” In the case of Kimbrough v. Pitts, 63 Ga. 496 (6), it was held that a surety on a claim bond could not maintain a writ of error on appeal. In Crawford v. Jones, 65 Ga. 524 (2), it was held that “Where a defendant in bail-trover brings the case to this court, he is not compelled to make the security on his bail bond a party to the bill of exceptions.” See also Thomas v. Price, 88 Ga. 533 (15 S. E. 11). In Hogans v. Dixon, supra, the court said, “A security on a forthcoming, bond in bail-trover proceeding is not a necessary party to a writ of error brought by the plaintiff, assigning error in the ruling of the court dismissing plaintiff’s action.” In that ease, however, the surety referred to was that of the defendant.

Counsel for the movant strongly insists that in the opinions rendered in the cases last cited, there are statements which inferentially sustain his position, and he contends that in the Hogans case, supra, the rule announced in the early decisions cited (2 Ga. 79, 287, 348, supra) is recognized as binding whenever it appears that judgment has been actually rendered against the security. But we can not think that the interpretation put upon the reasoning of the court in the Hogans case, where these early decisions were differentiated from the Crawford case, can be the correct one, since in the Crawford case there must have been a money judgment against the defendant and his surety, and the motion to dismiss was based upon the ground that the defendant’s surety was not joined as a party plaintiff in error. The rule announced in these early decisions referred to was, both in Carey v. Giles, supra, and Western Union Telegraph Co. v. Griffith, supra, held to have been abrogated by virtue of statutory enactment. And whether or not the act of 1847 was intended to have reference to sureties'on bailtrover bonds, the cases we have cited clearly show that the early rule as first announced does not now apply in a case such as is now before us. It does not appear that the precise point now before us has ever been directly passed upon by the Supreme Court or by this court. In the case of Fricker v. American Improvement Co., 124 Ga. 165 (52 S. E. 65), it appears that the application for the appointment of a receiver was refused by the trial judge upon the condition that the defendant give,bond with surety to pay to the plaintiff such sums as he might be chargeable with for the use of the property, should the plaintiff prevail. The bond was given, the plaintiff did prevail, and a decree was entered which included a judgment on the bond against the surety. The defendant alone excepted. A motion to dismiss was made on this ground, although in that case the surety asked; by way of amendment, to be made a party plaintiff in error. In passing upon this motion the court used the following language: “If it [the surety] was in fact a necessary party to the bill of exceptions, which we understand to be the point intended to be raised by the motion to dismiss, it could be added by amendment, from the record.” While in that case it was not necessary for the Supreme Court to pass upon the question now presented, still the voluntary intimation there would seem to indicate the opinion held by the court. As shown by the reasoning in the case of Holmes v. Langston, supra, the surety is to be bound by the final judgment against him whether or not he becomes a party to the writ of error here, and it therefore does not appear that any injustice can result to the opposite party by .his failure so to appear.

As a general proposition, the procedure in the court below, was in accordance with law; for ordinarily, where the plaintiff in a bail-trover proceeding has given the bond therein and on the trial fails in his suit, or where, either upon his own motion or upon that of the defendant, his pétition is dismissed, the defendant is entitled, if he so elects, to a judgment against the plaintiff and his surety on the bond for the value of the property, and that without intervention of a jury. Lauchheimer v. Jacobs, 126 Ga. 261 (5) (55 S. E. 55); Thomas v. Price, supra; Marshall v. Livingston, 77 Ga. 21; Underwood Typewriter Co. v. Veal, 12 Ga. App. 11 (76 S. E. 645); Kaufman v. Seaboard A. L. Ry., 10 Ga. App. 248 (73 S. E. 592). The reason is that the court, having both the property and the parties before it, has jurisdiction to do full justice and to make an end to the litigation. Underwood Typewriter Co. v. Veal, supra. But where, as in this case, the defendant refuses to submit to the jurisdiction of the court, on account of not having been served with process, and for this reason obtains the dismissal of the suit, we do not think that the court then has such jurisdiction of the parties and the subject-matter as would authorize it to make final determination of the case. Where no process is' attached to the suit and such deficiency has not been waived, either in terms or by appearance or pleading, it is manifest that the court would have no jurisdiction to render judgment against the defendant. The appearance made by the defendant was special and for the sole and specific purpose of denying jurisdiction of himself by the court, and on this ground he obtained a dismissal of the suit. It therefore does not seem that, while denying that he was a party, he could maintain the suit in his own behalf under the bond given therein and recover a judgment thereon.

We do not think 'that any of thé decisions which hold that the voluntary or involuntary dismissal of such a suit gives the right to the defendant to enter up judgment on the plaintiffs bond authorize such a procedure where the defendant, though within his rights, refuses to submit to the jurisdiction of the court and the suit is dismissed for that reason and on that specific ground. The code provides that process can be waived. Had the defendant desired to avail himself of the rights and benefits given him under the bail-bond as executed by the plaintiff, he could, by submitting to the jurisdiction of the court, have claimed for himself any right that he had thereunder. Nor do we think the case is altered by the fact that the plaintiff had given bond for the property, after the defendant had failed to do so, and was permitted by the defendant to take possession thereof under the proceeding. Counsel for the defendant in error contend in their able brief that this was such acquiescence by the plaintiff in the jurisdiction of the court as would- estop him from denying the validity of the judgment rendered by it against him. It certainly would seem to be true that after rights had arisen to the defendant under the bond, the plaintiff could not have dismissed his suit even where process had not issued, without becoming liable on the bond. Forbes Piano Co. v. Hixon, 8 Ga. App. 51 (68 S. E. 487). But the challenge to the jurisdiction of the court was made in this case not by the plaintiff, but by the defendant, who alone had the right to object to or to waive the defect caused by lack of process. It has been held, however, that the giving of such a bond by the defendant does not constitute a waiver of jurisdiction. Hall v. Roehr, 10 Ga. App. 379 (73 S. E. 550).

A familiar rule of law pertains to the right of the plaintiff to dismiss the action at any time so long as he does not thereby prejudice any right of the defendant; but after a claim bf way of set-off is pleaded by the defendant, a dismissal is not allowed so as to interfere with a determination of the claim so set up. The reason of this rule is identical with that which does not allow a-plaintiff in bail-trover to dismiss his suit after giving the bond therein without being liable thereon. But if, in a suit where a set-off is claimed, the defendant should first plead specially to the jurisdiction and cause the petition to be thereby dismissed, could he still proceed on his cross-action in such a proceeding? Manifestly such could not be the rule. Even where the suit is dismissed on general demurrer, it has been held that it can not be retained for the purpose of maintaining the plea of set-off. Freeman v. Savannah Electric Co., 130 Ga. 449 (60 S. E. 1042). In the opinion in that ease it was said, “The defendant can not put his adversary’s case out of court and at the same time retain it in court.” This court held, in the case of Beach Lumber Co. v. Baxley Banking Co., 8 Ga. App. 252 (68 S. E. 946), “In any case where, through no fault of the plaintiff, there is an absolute failure to issue process, as also in a case where process may have issued, but, for some reason with which the plaintiff is not chargeable, there has been no service, it is within the power and discretion of the court to preserve the status of the case upon the docket, and to order the issuance of process, returnable to a future appearance term, and service thereof.” In order to preserve the rights of all parties, let the status of the case on the docket be preserved and process be issued and service made, returnable to a future appearance term of the court.

Judgment reversed, with direction. Broyles, P. J., and Blood-worth, J., concur.


author: Bloodworth, J.

text:
    7995.
    MORGAN v. GOLDSTEIN, receiver.
    1. Under the facts there was no error in refusing to dismiss the plaintiff’s petition, which was filed in the city court of Zebulon, although the original petition was addressed, “To the City Court of Pike county.”

      (a) “All claims arising ex contractu between the same parties may be joined in the same action.”
    2. The judge did not abuse his discretion in refusing to open the default.
    Decided June 7, 1917.
    Complaint; from city court of Zebulon—Judge Dupree. June 15, 1916.

      W. Y. Allen, for plaintiff in error. Bvins & Moore, contra.
   Bloodworth, J.

The act creating the city court of Zebulon (Georgia Laws 1909, p. 342) provides for quarterly terms, to be held on the second Monday in March, June, September, and December, and further provides that “in all cases founded upon unconditional contract in writing, in which there has been personal service on the defendant, and wherein no issuable defense has been filed thereto in writing, or is then offered to be filed, under oath, or if filed or thus tendered to be filed, the same is adjudged by the court to be insufficient in law, either in form or substance, and the same shall be stricken, then judgment shall be rendered by the court of such appearance term, without the intervention of a jury.” On April 24 and June 24, 1912, and February 20, 1913, the American Investment Loan Company lent to Mrs. Willie B.' Morgan different sums of money, taking fo.r each a series of monthly notes. In November, 1914, the American Loan and Investment Company was placed in the hands of a receiver. Mrs. Morgan defaulted in the payment of all three series of notes, and. M. F. Goldstein, as receiver, brought suit against her to the June term, 1915, of the city court of Zebulon. The suit was in three separate counts, but only one process was prayed for. Copies of the notes sued on and a copy of the notice served on the defendant for the purpose of recovering attorney’s fees were attached to the petition. •This notice stated that unless settlement .was made, suit would be brought to the June term, 1915, of the city court of Zebulon. The original petition was headed “City Court of Zebulon,” but was addressed “To the City Court of Pike county.” The petition was filed in the city court of Zebulon, and the process attached thereto was headed “City Court of Zebulon,” and directed the defendant to appear at the next “ City Court of Zebulon" to be held in and for said county on the second Monday in June, 1915.” The copy of the petition, served on the defendant, was directed to the “City Court of Zebulon,” and the sheriff served the defendant personally with a copy of the writ and process. No plea, answer, or demurrer was filed at the June term, 1915, of the city court of Zebulon, but the case on the docket was marked “default.” On account of certain correspondence between the attorneys for the plaintiff and the defendant looking to an adjustment of the case, no judgment was taken until the March adjourned term, 1916, of the said city court. On March 7, 1916, the defendant filed a motion to dismiss the suit on the following grounds: (1) that there was no legal suit filed, as shown by the face of the petition, and no law authorizing such a suit; (2) because the petition set forth three separate and distinct actions; and (3) that the petition was addressed to the “City Court of Pike county,” when there was no such court. This motion was overruled; whereupon the defendant filed a motion to open the default and file an answer. This motion also was overruled, and judgment was entered for principal, interest, attorney’s fees, and costs, as sued for, less the payment of $200 made after the filing of the suit.

There was no error in refusing to dismiss the suit. “All claims arising ex contractu between the same parties may be joined in the same action. Civil Code, § 5521; Tygart v. Albritton, 5 Ga. App. 412 (2), 415 (63 S. E. 521). “Different counts may be joined in all cases where the same plea applies and the same judgment can be rendered.” Mahaffy v. Petty, 1 Ga. 261; Lewis v. Douglas County Co-operative Store, 111 Ga. 837 (36 S. E. 222). While the original petition was addressed to “The City Court of Pike county,” it was headed “City Court of Zebulon;” the defendant was served personally with a copy of the petition and process, and this copy petition was headed “City Court of Zebulon,” and the process was headed “City Court of Zebulon,” and required the defendant to appear at the June term of the “City Court of Zebulon.” This being true, the direction of the original petition to the “City Court of Pike County” did not deprive the defendant of any right, and could not have injured her. There is no other city court in Pike county, and the jurisdiction of this court extended to all residents of Pike county. Wolf v. Kennedy, 93 Ga. 219 (18 S. E. 433); Chapman v. Atchison, 18 Ga. App. 317 (89 S. E. 344).

A motion to open a default is addressed to the sound legal discretion of the judge; and his discretion can not be said to have been- abused when, after a hearing upon the grounds of the motion, upon conflicting testimony, it was adjudged that the motion was not sustained by the evidence. Bowman v. Winn, 16 Ga. App. 546 (85 S. E.787).

Judgment affirmed.

Broyles, P. J., and Jenhins, J., concur.


author: Bloodwoeth, J.

text:
    8055.
    Agee v. Rhodes.
    Decided June 7, 1917.
    ■ Complaint; from Warren superior court—Judge Walker. January 22,1916.

      B. P. Davis, Alvin G. Goluche, for plaintiff.

      M. L. Felts, for defendant. —
   Bloodwoeth, J.

1. Grounds of a motion for new trial not specifically urged in the brief of counsel for plaintiff in error will be considered to . have been abandoned. “Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will . be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit.” Youmans v. Moore, 11 Ga. App. 66 (4) (74 S. E. 710); Muse v. Hall, 18 Ga. App. 651. (3) (90 S. E. 222); Jefferson v. Perry, 18 Ga. App. 690 (3) (90 S. E. 366).

2. The court charged the jury: .“If you find that J. P. Rhodes got this cotton, bought it in good faith, for a valuable consideration, and without any knowledge of the intention of the tenant Robert Rhodes to hinder or delay his landlord, Mrs. Agee, in the collection of her rents, or to defraud her in the collection of her rents, if you find that . there, was any such intention on the part of the tenant, that J. P. Rhodes bought this cotton in good faith, and credited the amount of . the cotton on an account that he contends that Robert Rhodes owed him, then I charge you that J. P. Rhodes got a good title, and that the plaintiff would not be entitled to recover anything in this case, so far 1 as Mr. J. P. Rhodes is concerned.” It was contended that this is error, because J. P. Rhodes credited the cotton on the account of Robert Rhodes and parted with no consideration at the time he received'the cotton. This contention is not sound. “The surrender and satisfaction : of an existing debt, if done bona fide, operates as a present consideration.” Sutton v. Ford, 144 Ga. 588 (87 S. E. 799); Harris v. Evans, 134 Ga. 161 (4) (67 S. E. 880).

3. There was evidence to authorize the verdict, and the trial judge did not err in refusing to grant a new trial.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8072.
    BROWN, adm’r, v. RUTLEDGE & SUMMEROUR et al.

    1. The allegations in the petition state a case against the defendant, and the court did not err in overruling the demurrer.
    2. The court did not err in admitting in evidence the assignment to the plaintiffs.
    3. There was evidence to support a judgment for the plaintiff; and where no error of law is shown, this court will not interfere with such a finding by the judge who, by agreement, tried the case without a jury.
    Decided June 7, 1917.
    Complaint; from Gwinnett superior court—Judge Brand. June 30, 1916.
    D. W. Wilson, Knox, Lewis & Co., Lowe, Pittard & Co., D. E. Bennett, A. M. Bell, and Rutledge & Summerour brought suit against S. C. Brown, administrator of E. A. Robertson, and alleged that as such administrator he was indebted to the plaintiffs in the sum of $300, besides interest, by reason of the following facts: On or about the 1st of February, 1900, Gwinnett and Milton counties .contemplated the building of a bridge across the Chattahoochee river between said counties. Before any contract for the building of the bridge was let, and as an inducement to said countiés, upon the strength of which the bridge was later built, a bonus of $1,000 was to be paid to them, of which Gwinnett county was to receive $800, and Milton $200. In order to obtain this bonus, subscriptions were obtained, amounting to $1,000, a part of which was á note for $500, signed by A. M. Bell, R. M. Medloek, and A. J. Roach, and payable to the road commissioners of Gwinnett county and to the ordinary of Milton county. Gwinnett county, in order to be further protected as to its part of the said bonus, had the plaintiffs to ..execute and deliver to it a contract, by which they guaranteed the payment of the $800, its part of the bonus. This agreement as to the bonus was entered into at Lawrenceville, during a session of the board of county commissioners of Gwinnett county, at which A. M. Bell represented the ordinary of Milton county. The meeting and the agreement were followed by advertisements for the letting of the contract to build the bridge, and the contract was awarded and the bridge built. The $500 note and the subscription list were turned over to the chairman of the board of county commissioners of Gwinnett county, who in turn delivered them to the cashier of the Bank of Duluth, for safe-keeping, and for collection when due, and subsequently $500 was collected on the subscription list and paid to Gwinnett county, leaving still $300 due to that county and $200 to Milton county. As against this $500 there was outstanding the $500 note heretofore referred to. A. J. Roach, one of the signers of the $500 note, died, and an administrator was appointed on his estate, and as the administrator, in settling up the estate, desired to see this note, in order to satisfy himself as to the genuineness of the signature of the intestate so that, if it was genuine, he could pay the proportionate part thereof due by the estate, E. A. Robertson, the ordinary of Milton county, requested the cashier of the Bank of Duluth to send him the note for this purpose, and the request was complied with. The petition further alleged, that "after said Robertson came into possession of said note in the manner aforesaid, he collected the entire amount and appropriated the same to his own use, or otherwise diverted it from its proper channel, and failed and refused to pay to these defendants [?], or to the said D. W. Wilson, or to Gwinnett county, the $300 due said Gwinnett county out of said note, and still refuses to do so.” The plaintiffs prayed process against S. C. Brown, administrator of the estate of E. A. Robertson.
    The defendant filed a demurrer, on the following grounds: !‘l. That the said petition does not state facts sufficient to constitute a cause of action against defendant. 2. Because it appears, from the allegations of plaintiffs’ petition throughout, that if any one is liable to plaintiffs under the facts alleged in the petition,_it is Milton county, and not the administrator of the estate of the deceased E. A. Robertson.” In his answer the defendant denied liability, and pleaded specially that "E. A. Robertson, then acting ordinary of Milton county, in his official capacity as such, when he collected the note for $500.00, payable to Gwinnett and Milton counties jointly, deposited the said amount in the Milton County Bank, of Alpharetta, Ga., to his account as ordinary of Milton county, and the same was later by said ordinary' disbursed for Milton county in the payment of road hands and other Milton county expenses, and charged in the regular .channels of the county affairs of Milton county. Although plaintiffs and the present ordinary of Milton county, successor to said Robertson, well knowing or fully informed of ‘the above facts, all of them have failed to collect Milton county’s liability, on account of the facts alleged, but prefer to place the burden upo nthe personal estate of the dead, whose lips are closed.” The demurrer was overruled, and 'by agreement the ease was submitted to the presiding judge; who found in favor of the plaintiff.

      N. L. Hutchins, for plaintiff in error. - ■

      O. A. Nix, I. L. Oalces, contra.
   Bloodworth, J.

(After stating the foregoing facts.) According to the allegations in the petition, Milton county had-no connection whatever with the collection of the money for which suit was brought. The allegations in the petition state a case against the defendants, and the court did not err in overruling the demurrer. “When money is received by one and belongs to another, the party entitled to it may maintain action for its recovery.” Norway v. Clear Lake, 11 Iowa, 506. “In such an action, it was not essential that any privity of contract between the plaintiff and . defendant should have been shown. If the plaintiff’s right to the money received by the defendant was established, and the defendant was shown to have received it under such circumstances that it ought not to have retained it, the law implied a promise to pay it to the party who ought to have had it.” Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (2) (33 S. E. 175); M. & W. R. Co. v. Holt, 8 Ga. 166; Merchants Bank of Macon v. Rawls, 7 Ga. 195 (50 Am. D. 394); B. & W. R. Corporation v. Dana, 1 Gray (Mass.), 83; Calais v. Widden, 64 Me. 249; 4 Waite’s Actions and Defenses, 469, 506.

The court admitted in evidence, over objection of the defendant, a writing of which the following is a copy: “Georgia, Gwinnett County: For value received we, the undersigned Board of County Commissioners of said county, hereby transfer arid assign to A. M. Bell, Eutledge & Summerour, D. W. Wilson, Knox, Lewis & Company, Lowe, Pittard & Company, and D. E. Bennett any and all claims and liability which the county of Gwinnett may have or may have had against E. A. Eobertson, deceased, former Ordinary of Milton county, Georgia,- growing out of ‘the bonus guaranteed to the county in connection with the building of the bridge across Chattahoochee river at Eogers ferry in the year 1911. This August 2nd, 1915, J. A. Deaton, W. J. Tribble, E. E. Hill, C. A. McDaniel, J. H. Britt. Board of Commissioners of Gwinnett County.” The objections urged to the admission of this evidence were as follows: “I object to it upon the ground that it doesn’t appear to be a transcript of the proceedings of the board of county commissioners, or any certified copy. It doesn’t appear it was ever a proceeding of the board of county commissioners, because it is not a transcript of the record of the minutes. The -mere fact that it is signed by the county commissioners amounts to nothing. They sign it as having been acted upon by the commissioners. Before it goes into evidence it must come up properly as being a copy of the minutes or a certified copy of the proceedings of the board. It is objectionable because it is a mere statement by which a cause of action, it looks like, was sought to have been made against this defendant. I object to it upon this ground: even if they had authority to make such transfer, they exceeded their authority. I object to it upon those grounds. I don’t think it is admissible.”

The plaintiff in error relies on section 386 of the Political Code of -1910 to sustain his contentions. The writing admitted in evidence was not such a contract as is contemplated by that section. Before admitting the evidence, it was shown that , the paper was signed by the board of county commissioners of Gwinnett county when in regular session, and it was further shown that it had never been entered upon the minutes of the board. There was no error in allowing the paper in evidence. Bank of Garfield v. Clark, 138 Ga. 799 (7) (76 S. E. 95); Caudell v. Athens Savings Bank, 140 Ga. 713 (79 S. E. 776).

This ease was, by agreement, tried by the judge without a jury. There is evidence to support his finding, and this court will . not interfere therewith. Small v. Charleston Bagging Mfg. Co., 102 Ga. 585 (27 S. E. 763); Victor v. Broad Street Hotel Co., 19 Ga. App. 592 (91 S. E. 931).

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8074.
    Atkins National Bank et al. v. Wiley.
   Jenkins, J.

1. The jury has twice found in favor of the plaintiff and against the-defendants in this ease, and the trial judge has refused to grant a second new trial. It can not he said that the verdict is without evidence to support it. This court therefore is without power to set it aside on the general grounds of the motion for new trial.

2. The plaintiff contended that at the suggestion of and upon the advice

Decided June 7, 1917.

Exceptions to auditor’s report; from Banks superior court— Judge Brand. July 6, 1916.

A. J. Griffin, TI. H. Perry, for plaintiffs in error.

W. W. StarTc, contra.

of a bank cashier, in order to evade garnishment proceedings, in the avoidance of which the bank had an interest, he deviated from the usual and ordinary method of deposit, by leaving with that official certain funds belonging to the county, under the following cashier’s receipt, to wit: “Maysville, Ga., Dec. 6, 1910. Received of Geo. W. Wiley, tax-collector of Banks county, $1,250.00, to be turned over to the treasurer of Banks county. Mr. Gillespie, please receipt Mr. Wiley for above amount. E. S. Comer, Cashier; ” and that against the fund so deposited he drew on the said bank a check as follows, to wit: “Maysville, Ga., Dec. 6, 1910. Atkins National Bank. Pay to the order of (for County Treasurer), $1,250.00—twelve hundred and fifty dollars. Geo. W. Wiley, T. C.;” that the amount of this check was credited by the bank to the said treasurer, but that the cheek was not paid with the said fund as directed, but was paid out of and charged against his general deposit account, and that he has never recen ed any benefit or credit from the fund so receipted for. This court can not hold as a matter of law that the bank was not responsible for the alleged deposit for the reason that the deposit was not intended to be regularly entered to the credit .of the plaintiff on its books; and this is true, under the facts and circumstances of the case, even though the plaintiff in his testimony may have used language which, taken by itself, might indicate that such procedure was not intended as a bank transaction. The only reasonable interpretation of this evidence of the plaintiff would seem to be that in his opinion such unusual method of deposit, by which the funds were not to pass in his name through the books of the bank, could not be deemed a deposit or a bank transaction in the accepted sense, and not that he was not dealing with the bank, whose receipt he had taken and on which his check was drawn. The mere fact that the alleged bank deposit and the contemporaneous bank check, alleged to have been drawn thereon, were not intended to be carried through the books of the bank in the name of plaintiff would not of itself operate to extend the transaction beyond the scope of the cashier’s authority and employment. The effect of the alleged transaction amounted to a deposit by the plaintiff of the said fund in the bank to the credit of the treasurer, and the bank became the agent of plaintiff to consummate the transfer. Hill v. Arnold, 116 Ga. 45 (2) (42 S. E. 475).

3. There is no merit in the exceptions taken pendente lite.

Judgment affirmed.

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


text:
    8080.
    SLOAN v. FARMERS AND MERCHANTS BANK.
    No substantial defense being set up in the defendant’s plea, there was no error in striking it on oral motion at the trial term. “An oral motion „ to strike a plea can be made at any time before the verdict, if the motion is in the nature of a general demurrer.”

      (a) “A party who can read must read, or show a legal excuse for not doing so. Fraud which would relieve a party who can read must be fraud which prevents him from reading.”
    (&) When a purchaser of real estate is not prevented by fraud on the part of the seller from inspecting it, and fails to exercise diligence in inspecting it, a plea of failure of consideration on account of its physical condition or environment .will not be entertained.
    Decided June 7, 1917.
    Complaint; from Hall superior court—Judge J. B. Jones. July SI, 1916.

    Suit was brought by the Farriers & Merchants Bank on a promissory note payable to “the order of myself” and signed and indorsed “W. W. Sloan;” the petition alleging that the plaintiff was the legal holder of the note, and that it had not been paid. In his plea the defendant admitted the execution of the note, that the copy attached to the petition was correct, and that the plaintiff was the legal holder of the note, but denied that the plaintiff was a hona fide purchaser, for value, of the note before it became due, and denied all indebtedness thereon. The defendant further pleaded as follows:
    “1. That J. T. Terrell and T. J. Sandridge came to defendant’s home and stated that they wanted to sell defendant a city lot in Atlanta, Georgia; that defendant told said Terrell and said Sandridge that he did not .care to buy any property in Atlanta, and that he would not buy such property without first examining the same. Sandridge and Terrell stated to defendant that all they wanted was for him to sign an agreement to go to Atlanta to examine the property, and that they (the said Sandridge and Terrell) would carry him to Atlanta, and that if he liked the property they could close the trade. Hnder these circumstances and by virtue of these representations, which were false and fraudulent, this defendant signed the note. Defendant would not have signed said note except for the fraud and deception which was thus practiced upon him, and he is not liable for said note.

      “2. Defendant shows that the purported note sued upon represents the purchase price of a certain lot which said Terrell and Sandridge was to sell him in Atlanta, Georgia, and that said note has totally failed of consideration; that said Sandridge and Terrell represented to defendant that the said lot was located within three miles of the Union car-shed in the city of Atlanta, and was located within the incorporated limits of the city, and that a con- . tract was already let for the building of a street-car liné that wduld run in front of said lot and was to be finished by January 1, 1915, and that the property was worth the price asked; whereas in truth and in fact said lot is not located within the incorporated limits of the city of Atlanta, but is outside of said city limits, a distance of more than six miles from said Union station, according to defendant’s information, in a sparsely settled section, and the property surrounding the same is not improved, and the lot is located in an old field and having very little value for a resident lot, and for the uses intended [he] would hot build upon it. Defendant farther shows therefore that said note has failed entirely of consideration.
    “'3. Defendant further shows that said Farmers & Merchants Bank took said note with notice of the defense which this defendant had against the same, with notice that said note was obtained through fraud and deception practiced upon this defendant. Defendant further shows that said Farmers & Merchants Bank is not an innocent purchaser for value before due, but took the same subject to all the equities existing between the defendant and the original taker of said notes.”
    At the trial term, on motion of the plaintiff’s attorney, the court struck the plea and directed a verdict for the plaintiff. To this the defendant excepted.

      C. N. Davie, B. P. Gaillard Jr., for plaintiff in error.

      W. A. Charters, W. M. Johnson, W. B. Sloan, R. B. Russell, contra.
   Bloodworth, J.

Granting that the third paragraph of the plea was sufficient to withstand a general demurrer, and that the plaintiff was not a bona fide purchaser for value of the note sued on, the striking of this paragraph, along with the others, was harmless to the defendant; for, treating the case as though it was between the original parties to the note, no substantial defense was set up by the plea, and it was properly stricken. “An oral motion to . strike a plea can be made at any time before' the verdict, if the motion is in the nature of a general demurrer.” Blount v. Radford, 16 Ga. App. 95 (2) (84 S. E. 593); Cooney v. Sweat, 133 Ga. 511 (2) (66 S. E. 257, 25 L. R. A. (N. S.) 758). Was the plea subject to general demurrer? Admitting everything in the plea as true, would the defendant be entitled to a verdict? We are certain he would not.

(a) Attention is called to the first subdivision of the plea and especially to the following sentence therein: “Sandridge and Terrell stated to defendant that all they wanted was for him to sign an agreement to go to Atlanta to examine the property, and that they (the said Sandridge and Terrell) would carry him to Atlanta, and that if he liked the property they corrld close the trade. Under these circumstances and by virtue of these representations, which were false and fraudulent, this defendant signed the note.” This court has said: “Negligence in failing to read a written contract and in relying upon representations of the other party to the contract bars the defense of fraud.” See Gibbs v. Fourth National Bank, 17 Ga. App. 388, 391 (87 S. E. 155), and cases cited. There is no allegation that the defendant can not read; and, as he appears to have signed the note, the presumption is' that he can. The specific facts relied on in the instant case are not sufficient to constitute fraud. “Eolly is not always fraud.” “A party who can read must read, or show a legal excuse for not doing so. Fraud which would relieve a party who can read must be fraud which prevents him from reading.” Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915). “One able to read, who executed a written contract without reading it, can not avoid liability thereon because he signed without knowing the contents of the contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.” Georgia Medicine Co. v. Hyman, 117 Ga. 851 (45 S. E. 238). “One who executes and delivers a promissory note without reading or knowing its contents can not avoid liability thereon because he acted ignorantly, without showing some justification of his ignorance, either by reason of his inability to read or by some misleading device or contrivance amounting to fraud on the part of the person with whom he was dealing.” Radcliffe v. Biles, 94 Ga. 480 (20 S. E. 359); Jossey v. Ga. S. & F. Ry. Co., 109 Ga. 439, 446 (34 S. E. 664) ; Walton Guano Co. v. Copeland, 112 Ga. 319 (37 S. E. 411, 52 L. R. A. 268); Harrison v. Wilson Lumber Co., 119 Ga. 6, 9 (45 S. E. 730).

(&) The note sued on was a plain, unambiguous, and complete contract, and the .effect of refusing to strike the plea would have been to vary by parol the express terms of the writing. In Bank of Lavonia v. Bush, 140 Ga. 594 (79 S. E. 459), it was said: “The objection urged to the admissibility of the testimony was that it was irrelevant and sought to vary the terms expressed in the note. The note was an unconditional promise to pay a specified sum for value received, and apparently expressed the entire agreement between the parties. The testimony would in effect engraft conditions upon it which would materially change the contract, and there was no pleading or evidence that the conditions thus sought to be en-grafted were intended to be put in the note and were omitted therefrom through fraud or mistake. It was erroneous, therefore, to admit the evidence. Smith v. Baker, 137 Ga. 298 (72 S. E. 1093); L. & N. R. Co. v. Willbanks, 133 Ga. 15 (65 S. E. 86, 24 L. R. A. (N. S.) 374, 17 Ann. Cas. 860).”

In the case of Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485, 81 Am. St. R. 28), Castlen brought suit against the manufacturing company to recover the purchase price of 150 bales of lint cotton in good merchantable order. After delivering 100 bales of cotton, which he had raised on his farm, Castlen tendered to the manufacturing company other cotton, a portion of which was not raised by him on his plantation. The manufacturing company refused to accept the cotton, on the ground that it was not raised upon the land of Castlen, and sought to show by parol evidence that the contract was for 150 bales of cotton, which Castlen himself raised on his land. In the decision (p. 212) Justice Cobb said: “The contract between the parties evidenced by the writing calls for a certain number of bales of cotton of a certain description. It is clear that, so far as the terms of the contract are concerned, the parties did not intend that the plaintiff should be limited to cotton raised by him. It was a plain and unambiguous contract for the delivery of any cotton, answering to the description specified in the contract, which the plaintiff might see fit to offer to the defendant at the times specified in the contract. Such being the legal effect of the paper, parol evidence tending to show that the real contract was that the cotton was to be raised on the land of the plaintiff contradicted and varied and altered the very terms of the written instrument. There being no patent ambiguity in the contract, of course parol evidence was not admissible on the ground that such an ambiguity might be explained. Evidence showing that it was- the intention of the parties to make a contract whereby plaintiff should be confined to cotton raised on his own lands did not raise a latent ambiguity, but directly impeached an unambiguous instrument. If such evidence could be-held to raise a latent ambiguity, then the rule prohibiting the introduction of parol evidence would be, in effect, abrogated. If such was the intention of the parties, and this was omitted from the contract by fraud, ' accident, or mistake, of course the defendant would have the right in a court of equity to reform the contract, but he can not in a court of law be allowed in this manner to contradict the terms of a plain, unambiguous paper by parol evidence.”

See also Bond v. Perrin, 145 Ga. 200 (88 S. E. 954), s. c. 18 Ga. App. 179 (89 S. E. 79); Cabaniss v. Dallas Land Co., 144 Ga. 511 (87 S. E. 653); Smith v. Baker, 137 Ga. 298 (72 S. E. 1093); Morgan v. Cobb, 137 Ga. 545 (73 Ga. 844); Brack v. Brantley Co., 134 Ga. 495 (67 S. E. 1128); Bullard v. Brewer, 118 Ga: 918 (45 S. E. 711); Johnson v. Cobb, 100 Ga. 139 (28 S. E. 72); Dendy v. Gamble, 59 Ga. 434, 435; Brannen v. Brannen, 135 Ga. 590 (a, b) (69 S. E. 1079).

The defendant claimed that the parties who sold the land to him made certain false representations in reference to the physical condition of the property and its environment. If these representations were false, the defendant could have ascertained this fact by the exercise of ordinary diligence and by inspecting the property before signing the note. A purchaser can not close his eyes to defects in the thing purchased, so patent that by mere inspection he could ascertain their existence. It has frequently been held by the Supreme Court of our State that a purchaser of land could not defeat an action for the price thereof on the ground that he had been deceived by false representations regarding it by the seller, when it appeared that the purchaser had sufficient opportunity to examine the premises and was not deterred or prevented from so doing by the seller’s fault, and yet failed to make the necessary examination. In the case of Stone v. Moore, 75 Ga. 565, the headnote is as follows: “Where to a suit on certain promissory notes a plea was filed, alleging that the notes were'given for the purchase-money of land, and that the consideration had wholly failed, because the vendor represented the land to be fertile, to have a spring on it, and to be covered with hickory wood, all of which was false, such plea was properly stricken on demurrer, there being no plea’ of damages in abatement of the purchase-money, and no offer to annul the contract, and it not appearing that the purchaser was deprived of the opportunity of inspecting the land for himself by the fraudulent acts or conduct of the vendor. Such things as the soil, timber, or springs on land are open to inspection, and the purchaser is wilfully negligent if he fails to look and see for himself, and neither law nor equity will relieve him from his own want of diligence.” The headnote in the case of Allen v. Gibson, 53 Ga. 600, is as follows: “That a defendant paid too much for .land is no defense to notes given for the purchase-money, where he had opportunity of examination, even though he acted upon the representations of the plaintiff and another.” The first and second headnotes in the case of Collier v. Harkness, 26 Ga. 362 (71 Am. D. 216), are as follows: “[1] It is no ground for relief in a court of equity that the vendee of real estate has got worsted in the contract. He must have been defrauded, and that, too, after using reasonable precaution on his part to guard against imposition. [2] A contract for the sale of land will not be set aside by the mere false assertion of the vendor as to the productiveness of the property, especially where no rescission has been applied for.”' In Tindall v. Harkinson, 19 Ga. 448, our Supreme Court held: “A contract for the sale of land will not be vitiated by a. mere false assertion of the vendor, as to the quality and value thereof, where the buyer has full opportunity of forming a correct judgment and is not prevented by the artifice of the seller from making the necessary examination; especially where the rescission is not applied for within a reasonable time after the injury is discovered.”

It will thus be seen that the uniform holding of our Supreme Court is that, in the absence of fraud preventing the inspection of real estate, no plea of failure of consideration on account of its physical condition or environment will be entertained against a note given for the purchase-money of land, where the maker of the note fails to exercise diligence in inspecting the property. In the instant case there was no allegation in the plea that the defendant was prevented by fraud from inspecting the premises; no allegation of any emergency calling upon the defendant to sign the note without inspecting the land; no allegation of any character which would excuse the negligence of the defendant in signing the note without first making an inspection; no allegation whatever of any confidential relationship between the sellers and the defendant, and no peculiar reason to induce him to accept the representations made to him by strangers, and no offer to amend when the plaintiff made the.motion to strike the plea. The court therefore did not err in striking the plea, and the judgment must be

Affirmed.

Broyles, P. J., and Jenlcins, J., concur.


text:
    8079.
    HANES v. FARMERS AND MERCHANTS BANK.
    This ease being controlled by the ruling in Sloan v. Farmers & Merchants Bank, ante, 123 (92 S. E. 893), there was no error on the part of the trial judge in striking the original plea and refusing to allow the proposed amendments to it, or in directing a verdict for the plaintiff and entering up judgment thereon.
    Decided June 7, 1917.
    Description is the same as that of the case next before.
   Jenkins, J.

This case and the case referred to in the headnote of this decision were suits by the same plaintiff, and the defenses relied upon in each case were in substance identical. The divisions of the plea are numbered in like manner in each case. In the instant case an amendment was offered amplifying the third division of the fourth paragraph of the answer, but as the former case was treated by this court as though it had been a suit between the original parties to the note, this proffered amendment does not alter the rule announced there. Another amendment was offered, amplifying the first and second divisions of the said paragraph of the answer. Since, however, the substance of these grounds was set forth in the original plea, and this court has ruled that suph does not constitute a good defense, the fact that such amplification was attempted by amendment can not alter the rule already announced. This was a suit on two separate notes for the purchase price of one tract of land, and it may be remarked that the last of the amendments offered undertakes to set forth that the defendant’s “signature to the instrument was procured by fraud;” “that at the time he signed the instrument sued on, Sandridge and Terrell read to him a paper which they represented to him was the instrument he was to sign and which he did sign was an application, but defendant states that the said Sandridge or Terrell did not read to him the note but wilfully, wantonly, and fraudulently misled the defendant into signing a note which they did not read and represented to him to be an application for this property.” It would seem to have been incumbent upon the defendant to specify which of the two notes sued upon this defense applied to. Even if the rule that “the singular or plural number shall each include the other, unless expressly excluded” (Polit. Code, § 4, par. 4), can be applied to pleading, pleadings are to be construed most strongly against the pleader; and where, as in this case, each note was not only .signed, but indorsed by the defendant, it would seem that the proposed amendment, alleging that the defendant thought his signature to “the note” was an application for the lot to be purchased, is altogether indefinite. The additional statement that the defendant did not have his spectacles with him, and therefore could not read at the time the notes were signed, is not sufficient, under the authorities cited in the other case, to alter the rule.

Judgment affirmed.

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