text:
    8557.
    Watson v. American National Bank.
   Wade, C. J.

1. Tlie note sued upon was by its terms payable to the order of the maker. It appeared to have been duly indorsed by him, and suit thereon was brought by the American National Bank as holder. “A promissory note payable to the order of the maker thereof and properly indorsed by him is a negotiable instrument, and the holder is presumed to be such bona fide and for value, and is protected from any defense set up by the maker, acceptor, or indorser, except non est factum, gambling, or immoral and illegal consideration, or fraud in its procurement by the holder.” Pryor v. American Trust &c. Co., 15 Ga. App. 822 (84 S. E. 312).

{a) The “fraud in its procurement” which would enable the maker of a promissory note to avoid paying it, when in the hands of an innocent holder for value, has been time and again judicially interpreted to mean fraud on the part of the holder, and has no reference to fraud id the contract out of which the instrument arose; and the holder of a note is presumed to be such bona fide and for value. Robenson v. Vason, 37 Ga. 66; Hogan v. Moore, 48 Ga. 162; Grooms v. Olliff, 93 Ga. 789 (20 S. E. 655); Pryor v. American Trust &c. Co., supra.

(b) The plea interposed by the defendant in the justice’s court, which was stricken on demurrer, did not allege any fraud on the part of the holder of the note, or any knowledge on the part of the holder, at the time it obtained the note, that fraud had been practiced upon the maker in procuring the execution thereof. Waiving the question whether .the specified acts of fraud on the part of the original taker would he sufficient to defeat its collection even in the hands of such original taker, the plea reciting the representations made for the purpose of inducing the defendant to execute the note simply makes the further averment, “all of which inducements were false and fraudulent and known to the plaintiff” (the holder), without distinctly alleging, in- this connection or elsewhere, that “the plaintiff took the note [italics ours] with no-1 tice of such fraud and failure of consideration” at the time the plaintiff acquired the note. Citizens Bank of Roswell v. Reese, 145 Ga. 110 (88 S. E. 570). Pleadings are always to be construed most strongly against the pleader.

Decided June 27, 1917.

Certiorari; from Bleckley superior court—Judge Graham. January 12, 1911. ,

O. A. Weddington, H. M. Boyer, for plaintiff in error.

J. M. Bleckley, contra.

■ 2. The justice of the peace properly sustained the demurrer to the plea attempting to set up fraud in the original procurement of the note, and that the consideration thereof had totally failed, in the absence of.any definite and precise allegation' that the alleged fraud was known to the plaintiff at the time it purchased or acquired title to the instrument sued upon. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.,

George and LuTce, JJ., concur.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    8593.
    McKay v. Rowland & Company.
   Wade, C. J.

1. “Where a case in which there are no contested issues of fact is tried in a justice’s court, the judgment of the justice rendered therein is reviewable by certiorari. Though the amount claimed in such a ease is less than fifty dollars, the same may be carried by certiorari to the superior court without appealing to a jury in the justice’s court.” Grimsley v. Alexander, 106 Ga. 165 (32 S. E. 24). See also Toole v. Edmondson, 104 Ga. 776 (4), 783 (31 S. E. 25); W. & A. Railroad Co. v. Pitts, 79 Ga. 532 (4 S. E. 921) ; Cruse v. Southern Ex. Co., 72 Ga. 184; Boroughs v. White, 69 Ga. 841. There were no contested issues of fact in this case; and the judgment of the justice in a suit for the sum of $35 principal, besides interest and cost, was reviewable by certiorari. The petition for certiorari presented for determination only the correctness of the legal deductions drawn by the trial magistrate from facts established by the sole witness introduced, and-not controverted in any manner.

2. The undisputed testimony showed that at the time the summons of garnishment’ was served, and at the time the issue created by a traverse to the answer of the garnishees was tried, the garnishees were not indebted to the defendant in any amount, as under’ his contract with them he would receive, at the end of the current year, a certain percentage on all seed sold by him for the garnishees, after deducting therefrom any losses incurred; that “he was not to be paid anything until the year was up, and it is impossible for the profits to be determined before that time;” that nothing had been paid the defendant between the date of the summons of garnishment and the filing of their answer denying indebtedness; and that the garnishees owed the defendant nothing whatever.

Decided June 27, 1917.

Certiorari; from Richmond superior court—Judge Henry C. Hammond. February 12, 1917.

E. Foster Brigham, Paul T. Chance, for plaintiff in error.

W. Inman Curry, contra.

3. The judge of the superior court properly entertained jurisdiction of the certiorari, and correctly sustained it.

Judgment affirmed,

George and Luke, JJ., concur.


author: George, J.

text:
    7862, 7874.
    EDISON v. DUNDEE WOOLEN MILLS; and vice versa.

    1. The trial court had authority, and it was its duty, to enter the judgment to which the defendant excepted. The motion-to dismiss the writ of error must be denied.
    2. ' A declaration which alleged that the plaintiff and the defendant entered into a written contract of employment, under which the plaintiff was employed by the defendant for one year at a specified salary payable weekly, that after the plaintiff had entered upon' the performance of his services under the contract he was wrongfully discharged by the defendant, and that he was ready, able, and willing to perform the services, but the defendant wrongfully breached the contract, and which contained a prayer for his damages for a designated part of the term of his employment, was not subject to a plea in abatement or in bar, which alleged the commencement, and the prosecution to verdict and judgment, of a prior suit by the plaintiff against the defendant for breach of the same contract, which judgment had been fully paid by the defendant, where it appeared that the former suit was in fact a suit for only a part of the salary which would have been earned by the plaintiff during a designated period covered by the contract, the salary for the time covered by the first suit being expressly excluded in the pending action.
    Decided June 29, 1917.
    Rehearing denied August 3, 1917.
    Attachment; from city court of 'Atlanta—Judge Reid. December 1, .1915.
    Edison brought suit by attachment against the Dundee Woolen Mills, a non-resident; the suit being No. 24,301 in the city court of Atlanta, November term, 1912. The indebtedness claimed of the defendant was $250. The attachment was levied • on' certain cloth of the defendant, and the defendant gave a replevy bond in the sum of $500 and took possession of the goods. On November 21, 1912, Edison filed his declaration in attachment, alleging, that he was employed by the defendant under a written contract by the terms of which he was to receive $30 per week, payable each Saturday night, and an additional 25 cents on each suit of clothes sold by him; that the employment was to begin on September 11, 1912, and terminate on September 11, 1913; that the defendant had violated the terms of the contract, and had refused to allow the plaintiff, who was at all times ready, able, and willing to perform his contract, to enter upon his duties thereunder; that under the contract he would have earned, from September 14, 1912, to October 12, 1912, the sum of $150 as salary, besides a commission of 25 cents on every $18 suit sold during that period; and that by the defendant’s breach of its contract the plaintiff was damaged in the sum of $250 during the period from September 14 to October 12, 1912. The defendant, on January 7, 1913, filed a general answer substantially denying all the allegations of the declaration except the making of the contract of employment.
    On January 30, 1914, Edison brought a second suit by attachment against the defendant (Suit No. 25,947 in the city court of Atlanta), claiming an indebtedness of $1,200, and this second attachment was levied, January 31, 1914, on merchandise belonging to the defendant. On February 2, 1914, the defendant gave a replevy bond in the sum of $2,400, and took possession of the property seized under the attachment. On February 26, 1914, the plaintiff filed his declaration in the second attachment suit, again alleging the making of the contract on September 7, 1912, referred to in the first suit; and further: that the plaintiff’s compensation thereunder was to be $30 per week, payable each Saturday night, and a commission of 25 cents on each $18 suit sold; that the said employment was to begin on September 11, 1912, and terminate on September 11, 1913; that the defendant refused to allow the plaintiff to enter upon his duties as manager under the contract; that he was at all times ready, willing, and able to fulfil his obligations under the contract; that he was unable to obtain other employment of any kind prior to October 14, 1912; that after October 14, 1912, and up to September 11, 1913, he would have earned, under the contract, $1,440 as -a salary, but he was able to earn only $640 during said period, thereby incurring a loss of $780 besides his commission upon each suit sold by him during that time; and that the defendant had, by the said unlawful breach of contract, damaged him in the sum of $1,200. On April 11, 1914, the defendant filed its answer, generally denying the allegations of the declaration.
    . On June 15, 1914, the plaintiff offered an amendment to his declaration in the first suit, alleging that since the filing of the attachment the life of the contract sued on had terminated, and setting up in substance the facts alleged in his declaration in the second attachment suit, and praying for a recovery of his whole loss arising out of the breach of the contract. The amendment was allowed over objection, and on June 19, 1914, the defendant filed exceptions pendente lite, averring that the plaintiff had offered an amendment, which came on to be heard at the May term, 1914; that the defendant objected to the allowance of 'the said amendment, on the grounds, that it introduced a new and distinct cause of action; that it incorporated and included the identical cause of action which is included in the second attachment sued out by the plaintiff against the defendant, to which the defendant had duly answered, and which second attachment suit was then pending in the city court of Atlanta; and that the second attachment was sued out and levied after the period covered by the contract had expired. These exceptions pendente lite were duly certified by the presiding judge, and were entered of record. On July 13, 1914, the defendant filed another pleading in the first suit, and alleged, that on January 3.0, 1914, the plaintiff sued out his second attachment and made affidavit that the defendant was indebted to him in the sum of $1,200; that this attachment was duly levied on the defendant’s stock of merchandise, and duly returned to the city court of Atlanta; that the defendant gave a replevy bond on February 3, 1914; that on February 26, 1914, the plaintiff filed his declaration therein; that on April 11, 1914, the defendant filed its answer thereto; and that the said second attachment case is between the same parties and for the same cause of action alleged by the plaintiff in his amendment to the first attachment suit; and the defendant pleaded the second attachment suit in abatement of so much of the first attachment suit and cause of action as was set out and alleged in the amendment. This plea in abatement was duly verified. This plea stood of record and undisposed of on .September 9, 1914, when the first attachment- case came on for trial on its merits. The plaintiff, by proper amendment, withdrew its amendment of June 15, 1914. The amendment thus withdrawn was the amendment alleging that,’ since the filing of the first attachment, the life of the contract had terminated, and asking fdr a recovery for the whole damages by reason of the breach of the contract of employment, substantially as claimed in the declaration filed in the second suit. Upon- the trial of the first suit the plaintiff amended his declaration by adding a second count which was in all respects the same as the original declaration, except that the added count alleged that the plaintiff was discharged without legal justification after he' had entered upon his duties under the contract of employment. The defendant amended its answer, and averred, in substance, that the plaintiff was incompetent and was discharged on that account; and that the contract was by its terms to be governed and construed by the laws of the State of Illinois.
    The plaintiff obtained a verdict against the defendant for $180 and costs of suit. The defendant made a motion for a new trial, which was overruled; and the judgment of the trial court was affirmed by the Court of Appeals. The judgment was paid by the defendant. On December 1, 1915, the second suit came on for trial, and plaintiff amended the declaration therein by adding a second count in substance and effect the same as the-second count added to the declaration in the first attachment case; and further amended, alleging, that the verdict and judgment in the first suit established and adjudicated the plaintiff’s right of recovery under his contract; that the first suit covered a period of time only from September 14, 1912, to October 12, 1912, and that the claim set up in the second suit was for the time from October 12, 19.12, to September 12, 1913, the end of the contract. The defendant offered a special plea, by which it pleaded, in bar and abatement of the second suit and cause of action, the filing of the first attachment proceeding, the prayers, verdict, judgment, motion for "a new trial, affirmance, and payment of the judgment therein. In this plea it is alleged that “plaintiff has elected to sue immediately for his damages, for a breach of the same contract as that now alleged and declared upon,” and that said first attachment suit was a bar to the plaintiff’s suit and right of action in the present case. For further plea in bar, the defendant alleged that the contract, by its terms, was to be governed by the law of Illinois, and that under the law of Illinois but one suit could be maintained for the breach of a contract of employment; the doctrine of constructive service not being recognized in that State. The plaintiff objected to the allowance of this special plea, upon the ground that it set forth no legal defense in bar of his suit. The plea was allowed over this objection. Exceptions pendente lite to the order allowing it were duly certified and filed. Thereupon the plaintiff offered further amendment to his declaration, as follows: “That plaintiff, by amendment filed and allowed in said case No. 24,301, set up his claim for the same items as are sought to be recovered in this case; that to the allowance of such amendment the defendant then and there objected on the ground that it introduced a new and distinct cause of action, that it came too late, that it incorporated and included the identical cause of action which is included in a second attachment suit (this suit) now pending in this honorable court; and, upon the court’s overruling such objections and allowing the amendment, the defendant then had certified and filed its exceptions pendente lite to the allowance. The defendant also filed a plea, therein averring that, as amended, the suit should be abated and dismissed because such amendment introduced the same cause of action as that embraced in a suit that was then pending (to wit, this case), setting up such cause of action, and by and between the same parties hereto, which suit had not been disposed of. Thereupon the plaintiff herein and therein, to meet these objections of and positions taken by the defendant, withdrew, by proper amendment, the amendment setting up such additional items as are sued for in the ease at bar, and said case No. 24,301 was then tried as originally brought, and for only the items claimed in the original petition filed therein. By reason whereof plaintiff alleges that defendant is estopped herein to contend or insist that the suit at bar is not maintainable because of said suit No. 24,301 and the pleadings, or verdict and judgment therein, or any or all thereof.” The court refused to allow this amendment, and the refusal was duly excepted to pendente lite.
    By agreement of counsel the defendant’s special plea in bar was submitted to the court on condition that if the plea should be sustained the plaintiff would not be required to produce any evidence on the merits of his ease. After the introduction of evidence on the special plea the court directed a verdict in favor of the plea, and judgment was thereupon rendered against the plaintiff for costs only. Thereupon the plaintiff made a motion for a new trial, which was overruled, and he brought the case to the Court of Appeals, excepting to the allowance of the defendants’ plea in bar, to the disallowance of the plaintiff’s plea of estoppel, to the verdict directed by the court, sustaining the plea in bar to- plaintiff’s suit, to the overruling of the plaintiff’s motion for a new trial, and to the judgment entered upon the verdict so directed by the court on the special plea in bar. The Court of Appeals dismissed the writ of error, with this statement: “The bill of exceptions in this case relates only-to interlocutory matters, and there was no final judgment. The writ of error was therefore premature, and this court has no jurisdiction to entertain it. Direction is given, however, that the copy of the bill of exceptions, of file in the office of the clerk of the city court of Atlanta, may operate as exceptions pendente lite.” The remittitur from the Court of Appeals was duly made the judgment of the lower court, and the copy bill of exceptions was duly certified as exceptions pendente lite; and on September 15, 1916, the judge of the city court of Atlanta rendered a final judgment in favor of the defendant, upon the verdict returned by direction of the court, sustaining the defendant’s special plea in bar. Whereupon the plaintiff sued out the present bill of exceptions. The defendant objected to the court’s signing and entering the final judgment of September 15, 1916, and contended that the court was without jurisdiction, power, or authority to render any judgment, because of the facts appearing of record, to wit: A verdict was returned in favor of the defendant, on its special plea in bar, on December 1, 1915, and a judgment for costs was entered upon the same date. No direct bill of exceptions to the judgment of the court in directing the verdict was taken, but a motion for a new trial was duly filed, and on January 8, 1916, was overruled. A bill of exceptions to the Court of Appeals was presented to, and certified by, the trial .judge more than thirty days from the verdict in the case. It did not contain the motion for a new trial or the judgment overruling the motion, nor did it specify such motion or judgment as a part of the record, although it was recited that such motion was made and overruled; and the order overruling the motion was excepted to and assigned as error. ' The 'defendant invoked the ruling of the court on the effect of its judgment overruling the motion for new trial on January 8, 1916, and contended that this judgment was final in the case. The court disregarded the contentions of the defendant, and entered the judgment hereinbefore stated. The defendant presents its contentions by cross-bill of exceptions.

      Smith, Hammond & Smith, for plaintiff.

      0. B. Rosser Jr., for defendant.
   George, J.

(After stating the foregoing facts.)

Counsel for the defendant moved the court to dismiss the writ of error on the main bill of exceptions, upon substantially the same grounds as urged in its cross-bill of exceptions.' In view of the ruling of this court on a former writ of error in this case (18 Ga. App. 460, 89 S. E. 536), the motion to dismiss the main bill of exceptions is denied. The third headnote in the case of Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047), is also in point. We quote it: “If the'-ruling or decision complained of as erroneous is One preceding the final judgment, and if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment and an exception to and a specific assignment of error on the antecedent ruling will suffice, relatively to the point now under consideration, to give the reviewing court jurisdiction.” It was the duty of the trial court to give effect to the ruling of 'this court, made in this case; and this, we understand from the record, the learned trial judge undertook to do by entering a final judgment in favor of the defendant in the lower court, on September 15, 1916. These observations dispose not only of the motion to dismiss, but of the question presented by the cross-bill of exceptions.

Whatever may be the rule -in other jurisdictions, the law of this case is controlled by the decision in Moore v. Kelly & Jones Co., 111 Ga. 371 (36 S. E. 802), and cases there cited. In that case it was ruled: “If the contract of employment was for one year at a stipulated salarjq payable monthly, and the employer wrongfully discharged the employee, the latter can bring his action at the expiration of each month for the amount of his salary for that month, there being a partial breach iof the contract each time the monthly salary is refused.” In Blum v. Holitzer, 53 Ga. 82, it was said: “Where the plaintiff was employed for one year, at a stipulated sum per month, but was discharged before the expiration of his term, and thereupon sued and obtained a judgment for the amount due up to the time of such discharge, he is not thereby estopped from instituting proceedings to recover the balance due him for the remaining portion of the year.” In Isaacs v. Davies, 68 Ga. 169, it was held: “If a servant be employed for five months at a specified rate per month, payable monthly, and pending the employment he be wrongfully discharged, he may, in his option, sue at the end of each month, and a recovery for one month will be no bar to a suit at the end of the next month.” We fully appreciate the reasoning upon which a contrary rule, announced in many jurisdictions, is based; but the foregoing decisions of the Supreme Court are binding upon this court. The declarations as amended, in both the first and second attachment suits, plainly and distinctly declared upon the contract of employment. The breach of the contract is in each suit alleged; and, fairly interpreted, the damages claimed in each case represented only that portion of the compensation which the plaintiff would have earned during a specified period under the contract had he been allowed to perform the contract. Aside from the merits of the plea of estoppel urged by the plaintiff to the plea in bar filed by the defendant (and the defendant was certainly estopped, by its position of record, to plead the recovery in the first suit in bar of the present suit, under' the laws of this State and the State of Illinois), the pleadings, verdict, judgment, affirmance of the verdict and judgment, and the payment of the same, in the first ease, constituted no bar to the cause of action alleged in this, the second, suit. Since the court erred in overruling'the objections urged by the plaintiff to the plea in bar filed by the defendant, and likewise erred in refusing to entertain the plea of estoppel interposed to defendant’s plea in bar, all subsequent proceedings were nugatory. The final judgment, or the judgment which this court considered the necessary final judgment in the case, was 'duly excepted to, not for inherent error'therein, bnt for matters antecedent to it, and which necessarily entered into, affected, and controlled the further progress and final disposition of the case. The plaintiff preserved his right, by timely exceptions, to urge his objections to these antecedent rulings of the court; and we have concluded that his contentions are good.

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

Wade, C. J., and Lulce, J., concur. ■


text:
    8026.
    ESKIND et al. v. HARVEY, sheriff.
    1. A judgment for costs must be in favor of a party to the action, and can not be entered in favor of one who is not a party.
    2. As a general rule costs are not taxable against a person not a party to the record.
    3. At common law no costs were recoverable eo nomine.
    4. A sheriff is not entitled to payment for any services for which payment is not expressly provided by statute.
    5. A party cast in a suit is liable for all costs, and when the law omits to prescribe the amount, as in a case where property has been seized under process, the necessary and reasonable expense incurred by the sheriff in preserving and taking care of the property is to be awarded by the court.
    Decided June 29, 1917.
    Motion to amend judgment; from city court of Americas—■ Judge Harper. October 7, 1916..

      Shipp & Sheppard, Nathan Coplan, for plaintiffs in error.

      B. L. Maynard, contra.
   George, J.

On December 15, 1914, Eskind and Levy foreclosed a chattel mortgage against one Glanz in the city court of Amerieus, and the fi. fa. issued thereon was levied by Q. W. Fuller, sheriff of Sumter county, on a stock of merchandise owned by Glanz. Hogg, as trustee in bankruptcy of Glanz, filed an application to the court, praying that the sheriff be required to delivér to him, as trustee in bankruptcy, the stock of goods seized under the mortgage foreclosure. The court denied the prayer -of the trustee in bankruptcy, and this judgment was, on January 20, 1916, reversed by the Court of Appeals. Hogg v. Fuller, 17 Ga. App. 442 (87 S. E. 760). In this proceeding Eskind and Levy were parties of record. Fuller, the sheriff, having died, Harvey, who succeeded him in office, was made a party to the record. Following the decisión by the Court of Appeals, a judgment was entered in the city court of Americus, in favor of the trustee in bankruptcy, and the cost of the appeal, amounting to $56.50, was taxed against Harvey, the sheriff. Subsequently Harvey filed a petition praying that the cost judgment against him be amended and the cost retaxed against Eskind and Levy, plaintiffs in fi. fa. In his petition he alleged: that the stock of goods remained in the hands of the sheriff from the date of the levy to the date of final judgment on the remittitur in the city court of Americus, a period of thirteen' months; that during this time the stock remained in the storehouse where Glanz, the defendant in fi. fa., was engaged in business, and for which Glanz was paying $50 per month as rent. He asked that the sum of $650, as expense incurred in keeping the stock of merchandise, be taxed against the plaintiffs in fi. fa., and that the cost of the foreclosing proceeding he likewise taxed against them. On the hearing of the motion it was shown that the stock of merchandise had remained in the storehouse occupied by Glanz prior to the levy; that Glanz paid $50 per month for the rent of the storehouse, and that this was a reasonable rental. The judge passed an order amending the cost judgment and retaxing the cost against the plaintiffs in fi. fa. The items of cost awarded were: $56.50, cost on appeal; $5, cost in the foreclosure proceeding; and $650, expense incurred in earing for and preserving the stock of merchandise. Eskind and Levy, demurred to the sheriff’s petition to retax the cost, upon the ground's: (1) that Harvey, the sheriff, had no interest in the subject-matter of the amendment; (2) that the trustee in bankruptcy was not a party to the proceeding; (3) that the representative of Fuller, the deceased sheriff, was not a party to the proceeding; and (4) that the petition did not disclose that any costs were omitted from the original judgment, and no sufficient facts were alleged to authorize the amendment of the judgment. The demurrer was overruled, and Eskind and Levy excepted, alleging error in the overruling of their demurrer, and in the judgment taxing the cost against them.

The general principle announced in the first and second headnotes is supported by the ruling in Lewis v. Beck & Gregg Hdwe. Co., 137 Ga. 515 (73 S. E. 739). See also 7 R. C. L. 788, 789. In the instant case Eskind and Levy were parties to the record. The first, second, and third grounds of the demurrer were therefore properly overruled. The fourth ground of the demurrer is without merit.

In support of the third headnote, see Leonard v. Eatonton, 126 Ga. 63 (54 S. E. 963); Bowles v. Malone, 139 Ga. 115, 116 (76 S. E. 854).

The mortgage of Eskind and Levy was held by this court to be invalid. 17 Ga. App. 442 (87 S. E, 760). A party cast in a suit is liable for all costs. Civil Code (1910), § 5980. Under the facts appearing of record, the defendant in error was entitled to have the costs of the appeal and the costs accrued in the foreclosure proceeding taxed against the plaintiffs in error. He was likewise entitled to a judgment against the plaintiffs in error for the necessary and reasonable expense incurred by him in preserving and taking care of the property; but the evidence in the record did not authorize the court to find that the rental of the storehouse during the period intervening between the levy and the final delivery of the stock of merchandise over to the trustee in bankruptcy was necessary and reasonable expense incurred by the sheriff. It was the duty of the sheriff to take such steps as were necessary to preserve the stock of goods pending the litigation. He is entitled to recover as costs the expenses incurred by him so doing, but only . the necessary and reasonable expenses. Robertson v. Smith, 37 Ga. 604; Reynolds v. Howard, 113 Ga. 349 (38 S. E. 849). The court erred in taxing the item of $650 against the plaintiffs in error. It is the duty of the court to ascertain the necessary and reasonable costs incurred by the sheriff in taking care of the stock of goods; and only the necessary and reasonable expense of the sheriff in this regard should be taxed as costs against the plaintiffs in error.

Reversed.

Wade, G. J., and Lulce, J., concur.


author: Luke, J.

text:
    8450.
    Barber v. City of Rome.
    Decided June 29, 1917.
   Luke, J.

Where, upon the trial of an action for damages against a city, for physical injuries alleged to have been caused by a nail in a plank which the city had placed in the street for pedestrians to walk on, it did not appear, from the evidence, that the city had in fact placed the plank as alleged, or how long it had been so placed, the court did not err in granting a nonsuit.

Judgment affirmed.

Wade, O. J., and George, J., concur.

Action for damages; from Floyd superior court—Judge Wright. January 12, 1917.

Eubanks & Mebane, for plaintiff.

Max Meyerhardt, for defendant.


author: Geobge, J.

text:
    8488.
    City of Atlanta v. Swiney.
    Decided June 29, 1917.
    Action for damages; from city court of Atlanta—Judge Eeid. January 13, 1917.

      J. L. May son, 8. D. Hewlett, for plaintiff in error.

      George B. Bush, contra.
   Geobge, J.

1. The alleged error in allowing the amendment to the petition is not presented by exceptions pendente lite, or by direct exception timely made, and can not be considered.

2. An assignment of error on the overruling of a motion for a nonsuit will not be considered, if the case proceeds to verdict, and if the defendant excepts to the overruling of a motion for a new trial, based upon the general grounds.

3. It is not error for a judge to refuse to direct a verdict.

4. Where an act of officers and agents of a municipal corporation is within the corporate power and may lawfully be accomplished if the municipal authorities proceed according to law, the corporation will be liable for the consequences if they proceed contrary to law or in an irregular manner. If the authorities of a city are clothed with the power to grade its streets, and without authority of law -they take soil from the private property of a citizen and use it in grading the streets, the city will be liable for the trespass. Langley v. Augusta, 118 Ga. 590 (4, 5, 6) (45 S. E. 486, 98 Am. St. R. 133).

5. Where soil is wrongfully taken and removed from land, the owner may waive his right of action for trespass to the realty and recover for the soil severed and taken away; or he may recover for the diminished market value of the land. He can not recover both the market value of the soil severed and removed and the amount of the diminution of market value of the land. The charge of the court to which exception was taken authorized the recovery of double damages. A new trial will therefore be ordered.

Judgment reversed.

Wade, G. J., and LuLe, J., concur.


text:
    8555.
    Lucky Brothers v. Phillips.
    Decided June 29, 1917.
    Certiorari; from Richmond superior court—Judge Henry C. Hammond. January 37, 1917.

      J. T. Olive, for plaintiffs in error. J. B. Burnside, contra.
   Luke, J.

Where the judgment overruling a certiorari recites that the petition for certiorari came on to be tried “upon the answer as made by the magistrate to the petition, together with certain amendments agreed upon by the parties verbally,” and that after considering the same the certiorari was overruled, and it does not appear what the amendments or verbal agreements were, this court can not say that the court erred in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    8867.
    MARSHALL v. THE STATE.
    1. Where a petition for change of venue is presented to a judge of the superior court whose term of office is about to expire, and who verifies the brief of evidence adduced at the hearing thereof, and continues the motion or passes it to his successor in office for consideration, the judge who at a subsequent time considers the motion, in the absence of any testimony in behalf of the movant or the State tending to show that conditions have changed since the time of the original hearing or the time when the original evidence was adduced, should pass upon the motion in the light of the record as presented to him.
    2. The trial judge, in passing upon the motion in this case, did not indicate any doubt that at the time the evidence before him was taken, it was sufficient to require the grant of the motion; and in the opinion of this court the evidence both authorized and required a change of venue.
    Decided June 29, 1917.
    Rehearing denied August 12, 1917.
    Indictment for murder—petition for change of venue; from Irwin superior court—-Judge Crum. April 35, 1917.

      Melvin Meelcs, Walter M. Rogers, H. J. Quincey, for plaintiff in .error. J. B. Wall, solicitor-general, Jesse Grantham, H. E. Oxford, contra.
   Wade, C. J.

At the October term, 1916, of the superior court of Irwin county Wiley Marshall was indicted for the murder of C. B. Jeffries, alleged to have been committed on September 3, 1916. On October 36, 1916, the defendant filed his application for a change of venue, in which he set forth that he was an old negro who had resided in the county of Irwin about 10 or 13 years only, and during that time had lived largely apart from the-general public, among his negro friends, without acquiring any extended acquaintance with the white population of the.county or-even of the community in which.he lived; whereas the deceased, Jeffries, was a white man who had resided there for many years, and was well and favorably known and had a great number, of influential friends and relatives and was both popular and prominent in the county. He alleged further that ever since the commission of the homicide continuous and numerous threats had been made by citizens of Irwin county to lynch him,, in the event he should ever be brought back to that county from the county of Crisp, where he was then confined as a prisoner, in .the common jail at Cordele, and that his life would be in grave danger because of mob violence if he should be brought -into Irwin county for trial, from his present place of safety. He further set forth that immediately 'after the commission of the homicide he went to the home of a white.man, who at his request telephoned the sheriff of Irwin county to inform the sheriff where he was and that he was ready to place himself in the legal custody of that officer, to abide the consequences of his acts and to escape mob violence, and, upon the arrival of the sheriff in response to this message, he delivered himself up to the officer, who at once placed him in an automobile and promptly conveyed him to the town of Osierfield in Irwin county, and there procured the sheriff’s brother to convey- him safely to the common jail at Cordele in Crisp county, to escape the danger of threatened mob violence, and the defendant was so conveyed to said jail. The petition further alleged that the defendant was only kept from the hands of a mob of citizens of -Irwin county by the -immediate action of the sheriff in thus quickly conveying him to a place of safety without the limits of the county, and that under the conditions which still existed at the time his petition for a change of venue was filed (which conditions would still exist at the trial of the case, if he were tried in Irwin county), even should he make good his defense against the charge preferred in the indictment, and be discharged or receive a sentence other than death, he would immediately be lynched.

In an amendment to his application the .defendant further, set out that on the night of the homicide a large number of. friends and relatives of the deceased formed themselves into a mob ■ and scoured the locality in and around the scene of the homicide, searching for the defendant, with the avowed intention and purpose of lynching him should he be apprehended, and that the purpose of the mob was frustrated only by the hasty and immediate action of the sheriff of Irwin county in conveying the defendant to Osier-field, some fifteen miles away, and there placing him on a train for Cordele, Georgia, to be consigned to the common jail at that place for safe-keeping; that the place where the defendant delivered himself up to the sheriff was pnly two or three miles from Oeilla, the county seat of Irwin county, but the sheriff did not take the defendant to Oeilla either for imprisonment or to be from thence conveyed to a place of safe-keeping, because of the fear entertained by the sheriff that mob violence against the defendant would follow. The amendment suggested that in the event the defendant should be returned to the county of Irwin for trial and should receive at such trial a sentence less than death, and the friends and relatives of the deceased should attempt to lynch him or do other bodily harm to him, the sheriff of the county would be unable to prevent it, since there were no available State militia or troops that could be called to his assistance as contemplated by law, to prevent bodily harm to him, the troops being then absent from the State, in the service of the general government.

Evidence of several persons was submitted to sustain the charge that on the night after the homicide there was intense excitement, that threats of lynching were made by many, and that a number of persons were seeking the defendant, and possibly or even probably would have taken his life had they succeeded in capturing him at that time. It was further shown that immediately after he had been placed under arrest, the sheriff conveyed him out of the county, because of fear that violence would follow if he should be incarcerated in- the county jail of Irwin county. The following affidavits were introduced in behalf of the defendant and movant: “C. A. Walker, by affidavit, testified:. Am a citizen of Irwin county, residing in Oeilla for the past nine years; know Cord Jeffries, for whose alleged murder one Wiley Marshall has been indicted by grand jury of Irwin county. Said Jeffries was a man who had quite a number of friends over the county, especially in the community in which he lived. Have heard more or less comment as to the advisability of bringing Wiley Marshall back to Irwin county to be tried. While I think there would be no disturbance, or violence done to said Wiley Marshall if he were brought back, tried, and found guilty, and hanged forthwith,,yet believe that if he were tried and acquitted, or should be found guilty of an offense the penalty for which is less than death, there would be a probability of his being lynched.” “William Henderson, by proper affidavit, testified: Am a resident of the county of Irwin, and have been for many years past; am well acquainted with the people generally all over said county, also well acquainted with the general sentiment of the people all over said county. Have talked to, and heard quite a few people talk of the death of Cord Jeffries since on or about the second day of September, 1916, and concerning the safety of Wiley Marshall, the alleged murderer of said Cord Jeffries, if he should be returned to the county of Irwin for trial. The sentiment of the people, and especially of the close friends and relatives of said Cord Jeffries, is very strong against the said Wiley Marshall. There is a strong current of ■ opinion that if the said Wiley Marshall should be returned to the county of Irwin and tried upon the charge of murder of the said Cord Jeffries and should receive at said trial any other sentence or punishment, less than the death penalty, he would be lynched at the hands of a mob if his body could possibly be obtained, and that much trouble would be had in preventing his being lynched, if in fact his lynching could be prevented.” Testimony as to the prominence and popularity of the deceased, and as to the probability that the defendant would have been lynched had he been captured on the night after the homicide, was given by witnesses for the State, who, together with other witnesses introduced in behalf of the State, asserted the opinion that there was at the time they gave their testimony no danger of mob violence should the defendant be returned to Irwin county, and there tried and acquitted, or convicted and a penalty less than death imposed upon him. The movant introduced a witness who testified that he doubted if the. accused would be safe from violence or attempted violence if brought back to Irwin county and tried, and this witness said that he had heard threats the night before from one man. The ordinary of the county testified that he did not know whether the defendant could be brought back to Irwin county and receive a sentence of twenty years or less than death and be safe from mob violence or attempted violence, but admittéd that he may have stated to one of the 'witnesses for the movant the day before that he had reason to apprehend that the defendant might receive bodily harm; but he stated that he had further said that it was not necessary to get a change of venue.

The application for change of venue was made to Hon. Walter F. George, then judge of the superior courts of the Cordele judicial circuit. Judge George resigned his position as -judge of the Cordele circuit to enter upon his duties, on January 1st, 1917, as a member of this court (though he is not presiding in this case), and before the. expiration of his term of office he entered the following order:

“State of Georgia v. Wiley Marshall—Indictment for murder in Irwin superior court. Petition and motion for change of venue, at October term, 1916.
“I, W. F. George, do hereby certify that during the month of October, 1916, I was the duly constituted presiding judge of the superior court of Irwin county; that the petition and motion above stated was duly made by the said defendant, Wiley Marshall, at the October term, 1916, of said court. I further certify that evidence, both oral and by affidavit, was introduced by the petitioner and movant, and also by the State, on said motion, October 26th, 1916; that said evidence was, by agreement of counsel, transcribed by the official stenographer in brief form rather than in narrative form. I -do hereby further certify that the attached and foregoing is the ti;ue and correct official brief of the oral and affidavit evidence introduced before me in said cause, both by the petitioner and movant as well as by the State, and the same fully and accurately sets forth all the material evidence introduced either by the movant or State- touching said motion, and the same is hereby unqualifiedly approved by me as a correct brief of such evidence. Having in contemplation the early termination of my term of office as such presiding judge, and there being no term of Irwin superior court before the date of my resignation, I did not pass upon said petition and motion for change of venue, but passed the same over, together with the record in said matter, including the said official brief of the evidence hereto annexed in said cause, to my successor in office, Honorable D. A. E. Crum, for his consideration.
“In witness whereof I hereunto set my hand and seal.
“W. F. George.”

Hon. D. A. R. Crum succeeded Judge George as judge of the superior courts of the Cordele circuit, and, the motion for a change of venue having been brought to his attention, he passed the following order on April 25, 1917:

“State of Georgia v. Wiley Marshall—Indictment for murder in Irwin superior court. Motion by defendant for change of venue, filed October 24, 1916.
“The above-stated motion for change of. venue is brought before me for the first time this day. I understand the facts to be that this motion for change of venue was submitted to his honor Walter F. George, former judge of the superior court of this county, whose term of office expired January 1st, 1917, shortly after the same was made; that he heard evidence on such motion, and the same has been reduced to writing, and is now a part of the record of this motion; that said motion was never passed upon by his honor Judge George, and the same has never been read by myself,it never’ having been brought before me by anyone connected with the case. As I understand, motions for change of venue on the ground as stated in this motion relate to the present, and not to the past. For these reasons, and the fact there is no- evidence before the court, other than that which relates to the time at which it was taken, going to show that movant would at this time be in danger of mob violence if brought to trial in this case for the offense with which he stands charged, or that he could not secure a fair and impartial trial in this county at this time, the motion is hereby -overruled and denied. This judgment is made for the reason; not that the evidence contained in the record would not have authorized a change of venue at the time it was taken, but because in my judgment the motion for change of venue must be upon grounds going to show danger of mob violence or inability to secure a fair and impartial trial at the time it is sought to place the movant upon trial.
“Done in open court, this 25th day of April, 1917.
■ “D. A. R. Crum, Judge Superior Courts Cordele Circuit.”

The defendant filed a bill of exceptions, in order that the ruling on the application for change of venue might be reviewed by the Supreme Court; and, because of the jurisdictional changes made by the constitutional amendment of 1916, the ease was by order of the Supreme Court transferred to this court on May 18, 1917. ...

The act of 1911 (Acts of_1911, p. 74), providing for a change of venue under conditions and for reasons not recognized by then existing law, embodied in section 964 of the Penal Code of 1910, may be found in 6 Park’s Annotated Code, as a part of or appended to that section, enclosed in brackets. It is now the law of this State that “If a motion by petition shall be made by the accused for a change of venue, said judge shall hear the same at chambers, with or without the presence of the accused, at such time and place in the State as he may direct. And if the evidence submitted shall reasonably show that there is a probability or danger of lynching, or other violence, then it shall be mandatory on said judge to change the venue to such county in the State as in his judgment will avoid lynching. The petitioner shall have the right to except to the ruling of the court at such interlocutory hearing,” etc. It will be observed that the law just quoted makes it mandatory on the judge to change the venue upon application by the accused not only where the evidence submitted “shall reasonably show that there is a probability” of lynching or other violence, but also where there is “danger of lynching, or other violence.”

Whether or not there be a “probability” of violence, should the accused in this case be carried back to Irwin county and there tried, we think that undoubtedly (under a fair and reasonable construction of the entire testimony) “danger” of lynching or other violence in the event he should be tried in Irwin county and should not be convicted, or, if convicted, any penalty less than death be imposed upon him, is so far indicated by the testimony as a whole as not only to authorize but to require a change of- venue, in order that the dignity of the law may be preserved and that the sovereign power of the State to determine the guilt or innocence of those accused of crime within her borders by orderly and impartial trial may be upheld, and, in case of conviction, only such punishment be imposed as may be authorized by the calm unbiased judgment of the courts. Suffice .it to say, the leárned trial judge, in his order denying the motion for a change of venue, states that his reason for denying the motion is that the evidence before him does not “show danger of mob violence, or inability to secure a fair and impartial trial, at the time it is sought to place the defendant on trial” (italics ours), and not “that the evidence contained in the record would not have authorized a change of venue at the time it was taken.” The evidence in hehalf of the movant being held to be sufficient at the time it was taken, the question remaining for determination is therefore whether or not the judge of the superior court erred in declining to allow a change of venue for the reason that the movant did not by additional evidence show that the same state of affairs, proved to exist at the time this evidence was collected, still in fact existed; or, in other words, that no change in the temper of the people of Irwin county had occurred since that evidence was taken, and that at the time the judge passed upon the motion the same probability of danger of lynching or mob violence yet remained that in fact existed when the motion was originally presented, or the evidence in its support was adduced.

It is the opinion of this court that where the evidence produced at the hearing of such a motion shows that the public mind was so inflamed against one accused of crime at any time after the alleged commission of the crime that there was then a probability or danger of lynching or mob violence, and the judgment of the court upon such an application is for any reason delayed, the judgment finally rendered should he based upon the record before the court. Considering the purpose of the act of 1911, supra, it is not properly within the province of a judge, passing upon a motion to change the venue, to assume, in the absence of proof, notwithstanding the length of the intervening time from the daté when the evidence accompanying such a motion was taken to the date when the motion is disposed of by the judge, that there has been a change in the temper of the people or in other controlling circumstances and that all probability or danger of violence has passed. Any other rule would in effect allow the trial judge absolute power to refuse a motion for ‘a change of venue, without fear of reversal, even where the overwhelming weight of evidence and all connected circumstances clearly indicate to every other person than himself that at the time the evidence was taken or presented, not only the probability or danger of lynching or violence was to be apprehended, but that such violence was to be anticipated almost to a moral and reasonablé certainty; for, himself doubting the necessity for a change of venue to insure the proper enforcement of the law, the judge might, with the best intentions possible, wilfully delay passing upon such a motion for a short period of time, and then refuse to allow the change of venue, upon the ground that at the precise time when judgment was rendered upon the motion there was no satisfactory showing that the former or recent conditions shown by the evidence previously taken still existed. Thus, the personal impression or opinion of the judge alone might be sub-' stituted for that of the witnesses who testified on the point as provided by law, and the opportunity to review the ruling upon such a motion be practically nullified in cases where any considerable time elapsed between the taking of the evidence in support of the motion and the rendition of the judgment thereon, and no additional evidence was presented by the movant up to or at the time the motion was denied. Giving the law a reasonable .construction, and having in mind its evident purpose, and remembering the distinct provision therein for reviewing a judgment denying a change of venue, it is clear that the legislature did not intend to invest the trial judge in such case with autocratic power to render judgments, a review of which he might prevent, and thus render his own decision final, by simply delaying the time of its rendition.

Generally a condition of facts once proved to exist is presumed to continue until the contrary is shown; the degree of probability as to this continuance depending on the chance that intervening circumstances have ’occuired to bring it to an' end. “The presumption of continuance, as it is called, is simply a mode of determining on which party lies the burden of proof. In this sense we are justified in holding that the continuance of an existing condition is a presumption of fact, dependent for its intensity on the circumstances of the particular case. The burden is on the party seelcing to show change’’ (italics ours). 2 Wharton’s Criminal Evidence (10th ed.), 1574. See, in this connection, Green v. Atlanta, 16 Ga. App. 511, 580, 581 (85 S. E. 815). “When the existence of a person, a personal relation, or state of things is once established by proof, the law presumes that the person, personal relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” 10 R. C. L. § 15, p. 872. See also Anderson v. Blythe, 54 Ga. 501, 508, 509; Coleman & Burden v. Rice, 105 Ga. 163 (31 S. E. 424) ; Taylor v. State, 110 Ga. 150, 154 (35 S. E. 161); Drawdy v. Hesters, 130 Ga. 161 (4) (60 S. E. 451, 15 L. R. A. (N. S.) 190). It may very properly be suggested that proof showing great excitement soon after the commission of a crime would not raise a rational presumption that the public mind would continue indefinitely or for a great length of time in this inflamed condition. But, on the other hand, where it is shown, as in this case, that the deceased was both prominent and popular and had a large circle of relatives and friends, it may be safely assumed that 'the desire for revenge against his slayer, which found expression immediately after the homicide by the assembling of many of those who not only lamented his loss but were angered at his tragic removal from life, and found further expression in their widespread efforts to capture the alleged slayer, and the open threats to do him bodily violence, would not soon be removed from the minds and hearts of those who yet cherished the memory of their deceased relative and friend, and whose hearts, ■ governed'by ordinary human impulses, would glow with a resentment scarcely to be assuaged until vengeance should be ultimately visited upon his slayer. If the State, in opposing the motion for a change of venue, relied upon any change in conditions, or in public sentiment in the county of Irwin, the burden was upon it to present evidence tending to rebut the presumption that the probability and danger of lynching or violence, which, according to the testimony previously submitted, had formerly existed, was not in fact either a “probability” or a “danger” at the time when the motion was finally passed upon. In the absence of any testimony in behalf of the State or of the movant which suggested additional reasons why the motion should be granted or refused, it was incumbent upon the court to pass upon the application in the light of the existing record, or of the evidence properly before the court for consideration.

The fact that a considerable time had elapsed between the taking of the evidence accompanying the motion and the rendition of the judgment thereon did not of itself authorize the presiding judge to assume that a change of sentiment had necessarily followed, or even to exact of the movant proof that there had been no change in public sentiment or in the danger originally shown to exist. The killing occurred on September 2, 1916, the defendant was indicted for murder at the October term of the superior court thereafter, and on October 26, 1916, the application for a change of venue was submitted to the then presiding judge of the Cordele circuit, and on April 25, 1917, the motion was refused upon the ground that it did not show danger of mob violence at the time it was sought to place the defendant and movant on trial. So it will be seen that six months elapsed between the original submission of the case to Judge George, upon the record then made, and the refusal of the motion by his successor, Judge Crum, on the same record. The evidence therefore showed that there was danger that the defendant would be lynched at the time that evidence was adduced, six months before the motion was finally denied. The case of Bivins v. State, 145 Ga. 416 (89 S. E. 370), furnishes at least a physical precedent for the ruling that we make on this point; for in that case the following recital appears: “The evidence submitted on the hearing of the motion for change of venue very strongly tended to establish the fact that during the trial of the accused (about a year prior io the hearing of the. motion [italics ours]) there was imminent danger that he would be lynched.” Here, six months before the judge refused the motion, witnesses testified that in their opinion there was danger then existing that the defendant would be lynched if brought back to Irwin county; and there is nothing to show that this condition of affairs had changed by or before April 25, 1917, and that the danger had been thus removed.

Much of the evidence offered in behalf of the State is negative and uncertain, while some of the evidence in behalf of the movant is absolute and positive; so that, considered as a whole, the testimony in the case was in our judgment sufficient to authorize, if not to require, a change of venue. See Bivins v. State, supra; Kennedy v. State, 141 Ga. 314 (80 S. E. 1012).

The Supreme Court, in Wilburn v. State, 140 Ga. 138, 141 (78 S. E. 819), made the following ruling: “We are of the opinion that where the evidence is conflicting upon the issue as to whether or not under the petition such a case is made as requires the judge to grant the motion, the judge hearing the same passes upon the issues that are to be determined upon evidence, and that his finding and judgment upon the same" is final and controlling, unless manifestly erroneous. In the present case the evidence was conflicting upon the material issues, and it can not be said that it was manifestly erroneous to refuse to grant a change of venue.” Applying this ruling, if the judge of the superior court who denied the motion had based his denial upon his opinion as to the insufficiency of the evidence as a whole to show the existence of any probability or danger that lynching or violence would result if the defendant were tried in the county where the crime was alleged to have been committed, we might not be able to say that “it was manifestly erroneous to refuse to grant a change of venue;” since the evidence was undoubtedly conflicting upon the material issues as to the state of the public mind at the time the evidence was taken. However, as already suggested, the learned judge of the superior court strongly intimates the opinion that the evidence adduced in behalf of the movant was sufficient to require the grant of the motion at the time the same was adduced, and bases his refusal upon the ground that there was no proof that the conditions established by this evidence still existed. Hence the finding of the judge upon the issues of fact can not be considered as “final and controlling” in this case, even though an adverse ruling could not be characterized as “manifestly erroneous,” for there has been in fact no finding by the trial judge against the sufficiency of the evidence to require the grant of the motion, but his finding is rather to the contrary, and the language of the act of 1911 is mandatory.

■ We can not, however, reverse and send this case back with instruction that the trial judge pass upon the record as made, and base his judgment thereon without considering any possible change of conditions which may have arisen since the said evidence was originally adduced; for the order as entered specifically provides that “the motion is hereby overruled and denied;” and we therefore hold, in the absence of any ruling to the contrary from the trial judge, that the evidence was sufficient to require the grant of the motion, and that the judge of the superior court erred in refusing to allow the change of venue.

Judgment reversed.

Luke and Bloodworih, JJ., concur.


author: Jenkins, J.

text:
    7603.
    Town of Whigham v. Gulf Refining Company.
   Jenkins, J.

1. The city court of Cairo has jurisdiction to entertain a suit ex contractu against a municipal corporation within the county of Grady, but any judgment so obtained against such a municipality could be enforced only by virtue of the writ of mandamus.

2. A municipal corporation can make a cash contract for necessary current supplies to be used i-n carrying on the legitimate business of the city, including the operating of its system of lights and waterworks, when made through its appropriate officers or committees, as effectually as .when done by formal order or resolution of council entered in its minutes, where it appears that such contract of purchase has become obligatory through implied ratification by reason of the acceptance and use by it of the articles or supplies so contracted for. City of Conyers v. Kirk, 78 Ga. 480 (3 S. E. 442) ; Diamond Specialty Co. v. City of West Point, 11 Ga. App. 533 (75 S. E. 903).

3. By article 7, section 7, paragraph 1, of the constitution (Civil Code of 1910, § 6563), it is declared that the debt of a municipal corporation shall not exceed seven per centum of the assessed value of all the taxable property therei'n; and no municipality shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed valuation of taxable property therein,' without the assent of two thirds of the qualified voters thereof at an election for that purpose, to be held as prescribed by law.

4. A liability for a legitimate current expense may be incurred, provided there is at the time of incurring the liability a sufficient sum in the treasury of the municipality which may be lawfully used to pay the same, or if a sufficient sum to discharge the liability can be raised by taxation during the current year. Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244).

5. Under such constitutional provisions municipal officers have not the right to borrow money or create debts, except as therein provided, for •the reason that the municipality has sources of revenue from the income received from its light and water plants, from which it is contemplated that money will arise which can be used to discharge such indebtedness. Tate v. Elberton, 136 Ga. 301 (4) (71 S. E. 420).

6. Where a suit is brought to recover the purchase price of supplies alleged to have been furnished the town as necessary to the current operation of its light and water plant, the municipality is entitled to plead and prove, by way of defense thereto, that at the time such alleged liability was incurred there was not a sufficient sum in its treasury which might have been lawfully used to pay the same, and a sufficient sum could not have been raised by taxation during the current year for such purpose. City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 733 (6) (32 S. E. 907). While in the present suit the defendant failed to plead and prove such matter of defense, still where by the petition and the evidence in the case it is made to appear that the payment of the debt so contracted for was, by the terms of the agreement, deferred for a period of about eight months, and made to mature after the end of the then current fiscal year, it not being further shown that special provision for the payment of such indebtedness had been made at the time such liability was incurred, the petition was subject to the demurrer based upon that ground, and • the verdict rendered for the plaintiff was contrary to law. Gaines v. Dyer, 128 Ga. 586 (7) (58 S. E. 175); Town of Wadley v. Lancaster, 124 Ga. 354 (52 S. E. 335); Butts County v. Jackson Banking Co., supra; McCord v. City of Jackson, 135 Ga. 176 (69 S. E. 23) ; Renfroe v. City of Atlanta, 140 Ga. 81 (78 S. E. 449, 45 L. R. A. (N. S.) 1173).

Decided June 29, 1917.

Complaint; from city court of Cairo—Judge Willie. May 19, 1916.

R. R. Terrell, for plaintiff in error..

Bell & Weathers, W. V. Custer, contra.

Judgment reversed.

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


text:
    7808.
    Peck v. Precision Machine Company.
   Jenkins, J.

1. Where an instrument does not express an absolute and present guaranty, but its import is merely to carry an offer or proposal of such a guaranty, the contract is not complete until the minds of the parties have met by acceptance of the offer. Sanders v. Etcherson, 36 Ga. 405; 409; Barnes Cycle Co. v. Schofield, 111 Ga. 880 (36 S. E. 965). But where the undertaking of guaranty sued on recites that it is made in accordance with the request of the party extending the credit, and it amounts to an absolute promise to become responsible in a stated sum, then the mere extension of the ^credit while the promise is unrevoked is sufficient to render the contract complete and binding, without further notification of acceptance to the guarantor. Sheffield v. Whitfield, 6 Ga. App. 763 (65 S. E. 807) ; Sheppard v. Daniel Miller Co., 7 Ga. App. 760 (68 S. E. 451).

2. If, by the terms of the contract of guaranty, the intent of the parties is ascertained to be that the liability on the part of the guarantor is conditioned upon the furnishing to him of information of acts of default by the party for whose benefit the gu'aranty is made, the guarantor may stand upon the precise terms of the condition to the obligation; and in a suit on such a contract the plaintiff must allege and prove the performance of the condition which was prerequisite to his cause. Williams Valve Co. v. Amorous, 19 Ga. App. 155 (91 S. E. 240). But in a suit against a guarantor, under the following terms of agreement: “In accordance with your request I will guarantee the account of W. H. Peck with your company to the amount of $1,000.00. In ease accounts are not settled promptly in thirty days, please notify me of same. Address 235 West Peachtree St., Atlanta, Ga. Very respectfully, [Signed] E. H. Peek,” the court did not err in overruling . a ground' of demurrer which set up that the petition failed to show that the plaintiff had given to the defendant the notice mentioned in the agreement. In construing such a contract of guaranty, with reference to whether or not the notice referred to amounted to a condition precedent to liability thereunder, the instrument is not to be eonstruad most favorably either for or against the guarantor, but the terms and the language employed are to have a reasonable and ordinary interpretation, according to the intent of the parties as disclosed by the instrument read in the light of the circumstances and the purpose for which it was made. But if, after the application of such general rule governing the interpretation of contracts, there still remains an ambiguity, such doubt will be resolved by construing the instrument most strongly against the person who prepared it; and such a construction as would create a condition fhe breach o'f which would entirely relieve the guarantor, in the absence of such intention appearing in the contract, will not be favored. Carson v. Hurst, 137 Ga. 642 (74 S. E. 52, Ann. Cas. 1913A, 1086) ; Small Co. v. Claxton, 1 Ga. App. 83 (57 S. E. 977). In this case, as in the Carson case, supra, the most that can be said of the clause in the contract, when relied upon as a condition precedent to liability, is that it is ambiguous. In the Williams Valve Co. case, supra, there was no ambiguity, but on the contrary the liability was clearly expressed to be dependent upon the performance by the obligee of the condition imposed. Thus, in that case, the guarantor was entitled to stand upon the strict and precise terms of the plain condition' to the agreement.

Decided June 29, 1917.

Action on guaranty; from city court of Atlanta—Judge Keid. June 24, 1916.

G. S. Peck, for plaintiff in error. May son & Johnson, contra.

3. The rulings above made cover all the contentions urged by the counsel for plaintiff in error in his brief; and the court did not err in overruling the defendant’s demurrer to the petition.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    7981, 8008.
    Sovereign Camp Woodmen of the World v. McDaniel et al.; and vice versa.

   Bloodworth, J.

1. The motion to dismiss the main bill of exceptions is overruled.

2. The instructions complained of in grounds 4, 5, 6, and 7 of the motion for a new trial are not subject to the criticism that they are argumentative and unauthorized by evidence. “There may be facts on which to' base a charge of the court without any direct evidence on the point to which the charge relates. It is enough if there be data from which a legitimate process of reasoning can be carried on.” Holland v. Long, 57 Ga. 37 (3). Union Central Life Insurance Co. v. Estes, 160 Tenn. 472 ( 62 S. W. 149, 52 L. R. A. 915, 82 Am. St. R. 892).

3. Complaint is made that the judge erred in the following charge: “If the defendant collected with full knowledge of the facts, as the court has already instructed you, any amount of premiums, and retained it beyond the time specified by the by-laws, or beyond such time as would be reasonable time to return it, that a tender after that time would not relieve them from the consequences of their contract.” This excerpt carries the qualification, “as the court has already instructed you;” and, as the entire charge was not brought up, this court has not before it the previous instructions referred to, and can not say whether the alleged error was harmful. The exceptions to this excerpt are the same as those discussed in the preceding paragraph of this decision.

Decided June 29, 1917.

Action on. insurance policy; from city court of Hall county—■ Judge Wheeler. October 34, 1916.

O. R. Faulkner, John J. & Roy M. Strickland, for plaintiff in error. F. 0. Stark, J. G. Collins, contra.

4. The remaining grounds of- the motion for a new trial contain copies of requests to charge, and error is alleged on the refusal of the court to give them. Under the following rulings of this court these grounds of the motion will not be considered: (a) “Where error is assigned upon a refusal of the trial judge to give certain requested instructions to the jury, and it is not shown that the request was not substantially covered by the charge given by the court, and the entire charge was not brought .up, this court is unable to determine whether such refusal was erroneous or not; and where it does not appear, from the bill of exceptions or from the record brought up, that the charge of the court was reduced to writing or was on file in the office of the clerk of the court below (Penal Code, §§ 1056, 1057), this court will not order it sent up under section 6149 (4) of the Civil Code.” Perdue v. State, 17 Ga. App. 299 (86 S. E. 661). “This court can not consider exceptions to the refusal of the trial judge to comply with written requests to. charge, unless it is made to appear that they were tendered to the court before the jury retired to consider their verdict. Shirley v. State, 5 Ga. App. 611 (63 S. E. 583); Seaboard Air-Line Ry. v. Barrow, [18 Ga. App. 261 (89 S. E. 383)]. In this case it does not appear that any of the requests to charge which were refused were so tendered to the court.” Seaboard, Air-Line Railway v. Lyon, 18 Ga. App. 267 (6) (89 S. E. 384).

5. No error of law appears and the evidence authorized the verdict.

Judgment affirmed on main bill of exceptions; cross-bill of exceptions dismissed.

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


text:
    8049.
    Hawkinsville & Western Railroad Co. v. Beckham.
   Jenkins, J.

1. In a contractor’s suit against a railroad company, to ■ foreclose a lien for work done in building a portion of the railroad, it was alleged: that under a contract for the grading of a certain section of the road, entered, into on August 12, 1911, the defendant was indebted to the plaintiff in the sum of $5,405.42, and that under a contract made April 2d, 1913, for laying the track on that portion of the road, the defendant was indebted to the plaintiff in the sum of $4,179.50; that on January 22, 1914, and on January 26, 1914, the plaintiff recorded in Houston and Pulaski counties his lien as follows: “E. M. Beckham, a contractor, claims a lien on the Hawkinsville & Western Railroad Company, extending from the town of Hawkinsville, in the county of Pulaski, to the town of Perry, in the county of Houston, together with the right of way, franchise, road-bed, track, and ties, for grading, laying ties and rail, and general construction of said railroad in building the same, in the sum of $8,097.59. That said work being completed within the last three (3) months. This January 17th, 1914. E. M. Beckham. Executed in presence of L. D. Moore. Notary Public Bibb County, Ga. Recorded in Houston county, January 22d, 1914. Recorded in Pulaski county, January 26th, 1914.” By amendment to the suit it was set up that so much of the amount sued for as applied to the grading of the said road had been settled and was no longer an issue to be determined by the court and jury, and that the only lien which the plaintiff sought to foreclose pertained to the laying of the track, in the amount named,-as set forth in one of the paragraphs of the petition. Held, that the claim of lien, as recorded, seeking to set up under one claim the amounts due under the two contracts relative to the same general undertaking, where a lien for each was authorized by the statute, did not render the petition subject to demurrer, where it was therein declared what part had been due under each of the contracts, and what amount was then claimed under the latter agreement. Cartter v. Rome & Carrollton Construction Co., 89 Ga. 158 (2) (15 S. E. 36) ; Loudon v. Coleman, 59 Ga. 653 (3) ; Hillburn v. O’Barr, 19 Ga. 591. Nor did the fact that the claim of lien was not attested in accordance with the registry act for deeds and mortgages to realty render it invalid. Jones v. Kern, 101 Ga. 309 (28 S. E. 850) ; Calhoun Bride Co. v. Pattillo Lumber Co., 10 Ga. App. 181 (73 S. E. 23).

2. Under the foregoing ruling, there was no error in allowing the recorded claim of lien to be admitted in evidence. Nor would the fact that the cl,aim of lien did not specify the particular portion of the road upon which the work was done, or the date on which the work was completed, render it invalid. Arnold v. Farmers Exchange, 123 Ga. 731 (51 S. E. 754); Ford v. Wilson, 85 Ga. 109 (11 S. E. 559); Broxton Artificial Stone Works v. Jowers, 4 Ga. App. 91 (60 S. E. 1012).

3. Under the particular facts of the case, there was no error in admitting in evidence the transcript of the “force account,” taken from the original books of entry then in existence, where it appeared that the identical memoranda had been submitted to the defendant and the corrections were made and entered by it thereon.

4. The court, in the charge to the jury, fairly submitted to them the question as to whether the plaintiff had transferred to another his contract with the defendant, although it appears that the evidence for the defendant might not have been such as to require the submission of such an issue. It was, therefore, not error to charge that if the plaintiff was entitled to recover, he would be entitled to the lien as claimed.

Decided June 29, 1917.

Foreclosure of lien; from Houston superior court—Judge Mathews. June 23, 1916.

J. H. Hall, H. E. Coates, Duncan & Nunn, for plaintiff in error.

L. D. Moore, contra.

5. The evidence authorized the verdict; and, there being no material error of law, it will not be disturbed.

Judgment affirmed.

Broyles, P. Jand Blood/worth, J., concur.


author: Bloodwokth, J.

text:
    8075, 8076.
    CHAFIN v. TUMLIN; and vice versa.

    1. This court will not reverse a judgment granting a first new trial, unless it is made to appear that no other verdict' than the one rendered - could possibly have been returned, under the law and the facts of the case.
    2. Under the facts of this case there was no “necessity” for filing and serving on Sunday the bail-trover proceeding.
    Decided June 29, 1917.
    Trover; from Gwinnett superior court—Judge Brand. August 17, 1916.

      C. 7. Hohenstein, for plaintiff. E. 0. Dobbs, for defendant.
   Bloodwokth, J.

. “It may be now considered as settled that this court will not under any circumstances reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of law; unless it is made to appear that no other verdict than the one rendered could possibly have béen returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Southern Fertilizer &c. Co. v. Peacock, 19 Ga. App. 592 (91 S. E. 928), and cit.

This was a bail-trover proceeding. In the cross-bill of exceptions it is complained that the judge, to whom by agreement the issues raised by the plea in abatement were submitted, erred in overruling the plea, the grounds of which were: “1. The same appears to have been filed on Sunday, July 4, 1915, and in fact •was filed on that day. 2. The copy of the same was served upon defendant on said day, to wit, Sunday, July 4th, 19Í5, and said filing and service of civil suits is null and void and of no effect.” The defendant insists that by the common law Sunday was “dies non juridicus.” That is true, and our Supreme Court has several times so decided. Sawyer v. Cargile, 72 Ga. 290; Hayden v. Mitchell, 103 Ga. 446 (30 S. E. 287). In the former of the above cases it was said: “Sunday is dies non juridicus, and service can not be made or legal notice given on that day, or the business or work of ordinary callings done;” and this was quoted with approval in the latter case. In the case of Weldon v. Colquitt, 62 Ga. 449 (35 Am. R. 128), a warrant was issued and a court of inquiry'held on the Lord’s day. In the opinion (p. 452) Mr. Justice Bleckley said: “In Georgia,"as in England, Sunday is a holy day. The Code denominates it the Lord’s day, and as the Lord’s day all courts and magistrates are to consider it. This they are to do as matter of mere law, irrespective of religious obligation and duty. On it there can be performed no judicial labor which does not come fairly within the description of works of necessity or charity. . Sunday is no day for trial and judgment, being, by the common law, dies non juridicus. . . The current of decision by this court has been prosabbatic in full measure, and with that current runs, we think, the true law, as well as the general moral sentiment of the people of the State. Courts, high or low, are no less bound to abstain from ordinary labor on the Sabbath day than are private individuals. In a time of peace, and when the magistrates of the country are not overwhelmed with police business', to . an extent rendering it impracticable to dispatch the same without encroaching upon the Sabbath, a court of inquiry can not be begun and held on Sunday for the examination and commitment of offenders, not even of Sabbath-breakers, rioters, or disturbers of public worship. Warrants may issue and arrests be made, but ex- . animation and trial' can not be commenced until Monday. In the record before us there is no trace of any necessity, physical or moral, which made it incumbent upon the magistrate to disregard the legal restraints appertaining to the Sabbath, and engage in the exercise of judicial functions on that day. Doubtless he sup- • posed himself to. be in the line of duty, but he was mistaken. All he did judicially in the premises was absolutely void; and in strict law, he was himself amenable to the penalties of section 4579 of the Code [Penal Code 1910, § 416], as the violator of the Sabbath day, the holdings of the court of inquiry being a part of his ordinary calling as a judicial officer.” See also Bass v. Irvin, 49 Ga. 440.

The general law touching Sunday observance in Georgia is found in section 416 of the Penal Code, supra. In deciding against the plea in abatement the judge based his decision upon the idea of necessity; the necessity as alleged in the amendment to the affidavit and the evidence of plaintiff, “as to his fear of the car being gotten out of the way.” Section 5150 of the Civil Code of 1910 is as follows: “Where any person who is about to commence an action for the recovery of personal property shall require bail, such person, his agent, or attorney shall make affidavit that the property is in the possession, custody, or control of the defendant, and that he has reason to apprehend that the said personal property has been or will be eloigned or moved away, or will not be forthcoming to answer the judgment, execution, or decree that shall be made in the case; and shall also state in his affidavit the value of the same, and the amount of hire claimed, if any, and add that he does verily and bona fide claim said personal property, or some valuable interest therein.” The original affidavit for bail in this.case followed this statute, and, after describing the property, alleged that “defendant believes, and is advised, and has reason to apprehend that the same will be eloigned and moved away, and will not be present to answer the judgment, execution, and decree that shall be made in this ease.” The amendment allowed to this affidavit .was as follows: “That it was necessary to file said case on July 4, 1915, a Sunday and legal holiday, on account of the fact . that the plaintiff, from his own knowledge, and from the information and belief furnished him by others, had reason to apprehend that the property involved in this case would be moved away and concealed, and would not be available for the purpose of the levy and seizure under the bail affidavit filed in this case unless said petition had been filed on said date. Plaintiff shows that a fail- • ure of justice was imminent by reason of the foregoing facts, and it was necessary to file said suit immediately in order to prevent such failure of justice.” The allegations in the amendment are practically the same as in the original affidavit, and as required by the statute quoted above. It would hardly be, claimed that under the original affidavit the sheriff would have a right to execute the bail-process on the Sabbath day, and, inasmuch as practically nothing is added to the original affidavit by the amendment, no such necessity is alleged as would demand action by the sheriff on Sunday, and the judge, to whom the issue on the plea of abatement was submitted by agreement, erred in finding against the plea.

Judgment on main bill of exceptions affirmed; on cross-bill reversed.

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


author: Broyoes, P. J.

text:
    8094.
    Webb & Company v. Watkins.
   Broyoes, P. J.

1. “Every trading corporation, unless forbidden by its charter, has the power to issue negotiable paper, in the due and ordinary course of its business; and where a corporation having this power makes or indorses such paper, although for an unauthorized purpose, the defense of ultra vires will not avail it as against an innocent purchaser who bona fide and for value acquires title to the paper before maturity.” Jacobs’ Pharmacy Co. v. Southern Banking & Trust Co., 97 Ga. 573 (25 S. E. 171).

2. In the instant case there was an acute conflict in the evidence as to whether the defendant in error, when he acquired title to the note sued upon, before its maturity and for value, was an innocent bona fide purchaser of the same, and this question was finally settled by the finding-of the jury. Applying to this case the principle of law laid down in the preceding paragraph, the verdict for the plaintiff was not contrary to law or the evidence.

3. When the note of the trial judge, qualifying his approval of the 3d ground of the amendment to the motion for a new trial, is considered, . that ground is without merit.

4. This was a suit upon a promissory note signed by J. H. Gibson and the defendant corporation, and the latter pleaded that it had received no consideration whatever for signing the note, and that it was an accommodation indorser only. On the trial the plaintiff was asked the following question: “Doctor, what connection, if any, did you know that Gibson had with M. J. Webb & Company in the way of having any interest there?” The witness answered: “They were working together. Gibson was cutting lumber for them, and I understood that he had stock in the store.” Defendant’s counsel objected to the answer of the witness that he understood Gibson had stock'in the store, upon the ground that it- was wholly immaterial and irrelevant; the objection was overruled, and the answer admitted. The note of the trial judge, qualifying the ground of the motion for a new trial which complains of this ruling, is as follows: “The witness went on to give the facts upon which he based his understanding. Defendants insisted by their plea that they received no consideration for signing the note, [had no] interest in the consideration thereon, but were only securities, and that Dr. Watkins had notice of this fact at the time he let Gibson have the money. I do hot think the objection that this evidence was immaterial was good.” In the judgment of this court, this evidence was relevant and material to the issues in the ease, and, the only objection offered being that it was immaterial and irrelevant, it was properly admitted.

Decided June 29, 1917.

Complaint; from Gilmer superior court—Judge Patterson. June 28, 1916.

A. il. Burtz, D. W. Blair, for plaintiff in error.

William Butt, contra.

5. The following excerpt from the charge of the court is complained of: “If there should be admissions of a party in regard to the issue, I charge you that admissions are to be scanned with care. A man’s conclusion about a fellow admitting a thing—a witness admitting a thing, and the witness admitting it, is a question for the jury to pass upon, as to whether it.was really an admission or not; so you are to have and consider, as near as it can be given to you, the exact language the party used that they say constitutes an admission. The law says these admissions are to be scanned with care for these reasons: One of them is the possibility or probability of a man misunderstanding what the witness said, where there is an attempt to prove an admission; another is the frailty of the human memory in retaining exactly what was said, and reproducing it before a jury, so that they can apply it and give it its force; and the third is the possibility of the party'whose admissions are attempted to be proven not expressing himself exactly as he intended to express himself. Now with these safeguards thrown around him, the law does not give them any specific value, but an admission, when proven to the satisfaction, is to have just such weight as the jury shall see proper to give it, taking all the facts and circumstances surrounding it, and what is proven in connection with it—• is to have just such weight as the jury may see proper to give it.” The statement by the judge in this charge, that “the law does not give them [admissions] any specific value,” was an inapt expression, but does not require a new trial of the case, when it is considered in connection with its context. It is better practice, however, for a trial judge, when charging upon this subject, to confine himself to the language of the code.

6. The other excerpts from the charge of the court, as complained of in the special grounds of the motion for a new trial, while subject to some slight criticism, do not express or intimate any opinion by the court as to the facts of the ease, and, when taken in connection with the entire charge, are not erroneous for any other reason assigned.

Judgment affirmed.

Jenkins and Bloodworth, JJ., eoncw-


text:
    8095.
    HOUZE v. BLACKWELL.
    The' Supreme Court having decided that the petition in this case showed . the action to be for deceit, the court below erred in allowing the plaintiff to amend it so that he could proceed for money had and received.
    Decided June 29, 1917.
    Attachment; from Milton superior court—-Judge Patterson. October 30, 1916.
    In the original petition it is-alleged, that “defendant is indebted to petitioner in the sum of $139, together with interest from the 36th day of November, 1913, at 7 per cent., because of the following facts:” On that day the defendant offered for sale at auction, through an auctioneer, a certain horse. He authorized and directed the auctioneer to announce and guarantee to bidders that the horse was gentle and not afraid of automobiles, and was a good work' horse, and could be worked to plow, wagon, or- buggy. Under this recommendation and guaranty • the plaintiff hid on the' horse and it was knocked down to him for $139; and afterwards on the same day, when he went to the defendant to pay the bid, he asked the defendant fully in reference to the horse, the defendant guaranteed the horse in equally as strong terms as set out above, and told him that it was a good work horse, was biddable, would work anywhere, was easily controlled, was not afraid of automobiles, and was well worth $139; whereupon he paid the defendant $139. Had it not been for the personal guarantee and recommendation that the defendant gave the horse, he would not have bought it and paid his money. The plaintiff knew nothing of the horse or its qualities, and relied entirely upon the defendant’s recommendation and guaranty. The defendant did know and should have known all about the horse. The horse, as the plaintiff afterwards discovered, was not a good work horse, would not work satisfactorily to anything, was stubborn and obstinate, was afraid of automobiles, and was entirely worthless and without any value to the plaintiff. The plaintiff, ascertaining the worthlessness of the horse, took it to the defendant and tendered it back, and asked the defendant to make good his guaranty and return the plaintiff’s money. The plaintiff left the horse in the defendant’s possession and has since had no control over it and .nothing to do with it. The defendant failed and refused and still fails and refuses to pay the plaintiff his money. “Wherefore petitioner prays judgment for said money so paid by him to the said [defendant] as allowed by law.” On exceptions by the defendant to the overruling of a motion for a new trial, the Supreme Court held, among other things, that this “petition, properly construed, shows the action to be one for deceit to recover an amount paid as the purchase-price of a horse in pursuance of a contract of purchase induced by actual fraud upon the part of the vendor.” .144 Ga. 700.
    On a subsequent trial the court, at the close of the evidence, allowed the plaintiff to amend the petition as follows: “Said defendant agreed and contracted with plaintiff, at the.time he paid his bid, that if the horse was not as he recommended and guaranteed in every particular, that it was his horse and he would pay back plaintiff his money, and that he was not selling the horse unless he was a good work horse and a good family horse and all right in every way, and upon this statement plaintiff turned over to defendant his money and his check, and the defendant received the same and still has plaintiff’s money, and plaintiff is entitled to recover the same as money of plaintiff had and received by the defendant.” The defendant demurred, on the grounds, (1) that the amendment “adds a new cause of action, and adds an action ex contractu to a suit for tort;” and (2) that the amendment “is not in the form of a new count, but is added to the count in tort.” Error is assigned on the overruling of the demurrer and on the refusal of a motion for a new trial.

      George P. Gober, G. B. Walker, W. I. Heyward, for plaintiff in error. J. P. Brooke, contra. '
   Bloodworth, J.

When this case was before the Supreme Court (144 Ga. 700, 87 S. E. 1054), that court decided that the petition, properly construed, showed the action to be for deceit. An action for deceit is an action in tort. Civil Code, 1910, § 4410; Brooke v. Cole, 108 Ga. 252.(33 S. E. 849);. Brady v. Evans, 78 Fed. 558-560 (24 C. C. A. 236); Lamb v. Howard, 145 Ga. 847 (90 S. E. 63). “A tort is a legal wrong committed upon a person or property, independent of contract.” Civil Code (1910), § 4403. “When a transaction partakes of the nature both of a tort and .a contract, the party complainant may waive the one and rely solely upon the other.” Civil Code (1910); § 4407. “A claim arising out of an alleged tort can not be joined in the same action with a claim for money had and received, the rule of the code being that plaintiff may join all causes of action of like nature; causes ex-delicto can not be joined with causes ex contractu.” Teem v. Ellijay, 89 Ga. 155 (2) (15 S. E. 33); Sharpe v. Columbus Iron Works Co., 136 Ga. 483 (71 S. E. 787); Croghan v. New York Underwriters Agency, 53 Ga. 109 (2); Cheney v. Powell, 88 Ga. 633 (15 S. E. 750); Brooke v. Cole, supra; Hutchens v. Seaboard Air-Line Railway, 144 Ga. 313 (2), 315 (87 S. E. 28); Dunn v. Fairbanks-Morse Co., 19 Ga. App. 548 (91 S. E. 1005); Peel v. Bryson, 72 Ga. 335; Perdue v. Harwell, 80 Ga. 150 (4 S. E. 877). In the instant case plaintiff is bound by his election to sue for the tort, and the court erred in permitting the petition to be so amended that he could proceed for money had and received. As a new trial is to be granted on account of this error, it is unnecessary to discuss the other alleged errors.

Judgment reversed.

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