text:
    10824.
    Studstill v. Bergsteiner.
   Bloodworth, J.

1. The pleadings in this case do not make any distinct issue as to contributory negligence (comparative negligence affecting the amount of recovery), nor was there a proper and timely written request for a charge on this subject, and this theory was not so involved in the case as a distinct and essential issue that the court 'was required to charge thereon without a request. Savannah Electric Co. v. Crawford, 130 Ga. 421 (1), 424, 425 (60 S. E. 1056); Southern Railway Co. v. Weatherby, 20 Ga. App. 399 (2) (93 S. E. 31); Western & Atlantic Railroad Co. v. Jarrett, 22 Ga. App. 314 (3), 318-323 (96 S. E. 17).

2. The definition of “preponderance of evidence,” of which complaint is made in the ground 7 of the motion for a new trial, while inaccurate, is not so “vague, confusing, and misleading” as that the jury was likely to be misled thereby.

Action for damages; from city court'of Valdosta—Judge Cranford. July 9, 1919.

1. Because of a collision of their automobiles, Bergsteiner sued Studstill for damages, and the defendant by his plea claimed damages from the plaintiff, each alleging that the collision was caused by the negligence of the other. The plaintiff alleged, that the defendant and the defendant’s son, who were together in the defendant’s automobile, which was being driven by the son, were negligent in undertaking to cross from the plaintiff’s left in front of the plaintiff’s car, without giving notice of this intention, and in failing to comply with the rules of the road and to turn to and remain on-the right in passing the plaintiff’s car; that the defendant was negligent in permitting his son, who was under sixteen years of age, to drive his. car upon the public highway in violation of the statute; and that the plaintiff himself was without fault. The defendant in his plea as amended, after denying the plaintiff’s allegations, alleged, that at the time of the- collision the plaintiff’s car-was being driven at a reckless speed, 25 or more miles per hour, that the plaintiff saw; the defendant’s car and, if he had used the slightest care, could readily have avoided the collision, but made no attempt to cheek his speed; and that the plaintiff was negligent in not giving due warning of the approach of liis car, by blowing his horn or by using any signaling apparatus, and was further negligent in using a spot-liglit, by throwing the light into the eyes of the defendant and his son, thereby blinding them and preventing them from avoiding the collision. He prayed for damages on account of injuries to his ear and to his person. The verdict was against the defendant. In his motion for a new trial he contended that the court erred in not charging the jury as to contributory negligence and diminution of damages if the jury should find that there was mutual fault; the movant contending that the pleadings and the evidence raised the issue as to whether there was such negligence on the part of the plaintiff.

3. In the excerpt from the charge embraced in the eighth ground of the motion for new trial the judge does not “ express or intimate his opinion as to what has or has not been proved.”

4. There is nothing in the other special grounds of the motion for new trial which requires a disposition of this case other than is hereinafter given.

5. The plaintiff sued for damages to his automobile, caused from a collision with the automobile of the defendant, and alleged three items of damage,— $277.42 for labor and repairs, $250 for permanent injury to the automobile, and $80 for hire of the automobile for forty days, during which time thq petitioner was deprived of the use of his car. There was a verdict for the plaintiff for $350. The record shows no evidence to support a verdict for this amount. No legal verdict for permanent injury ” to the automobile, or for the value for the hire thereof, could have been rendered, because there is no evidence to show the amount of the permanent damage to or the valué for hire of the automobile, or any facts from which the jury could themselves arrive at the amount of such damages and hire. However, the verdict for the repair bill and interest was authorized by the evidence. This amounts to $310.61. If the defendant in error will write off from the verdict $39.39, thus reducing the amount of recovery from $350 to $310.61, the judgment will be affirmed; otherwise a new trial is ordered.

Judgment affirmed on condition.

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

2. The court charged: “By the preponderance of the testimony is meant that superior weight of testimony which, while not enough to wholly free a reasonable mind from doubt, is yet sufficient to turn the mind to one side of the issue rather than to the other.” In ground 7 of the motion for a new trial it is alleged that this is not a correct definition, and is vague, confusing, and misleading, the correct definition (Civil Code of 1910, § 5731) being: “ By preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.”

3. That the court intimated an opinion that the defendant was negligent is the exception taken in ground 8 to the following instruction: “If you believe . . that the defendant was negligent upon this occasion, and that this negligence was existing and was apparent to the plaintiff, or could have been apparent to him by the exercise of ordinary care, or that he could have discovered this negligence by the exercise of ordinary care and did not do it, he could not recover. Our law makes it the duty of every one to avoid the consequences of another’s negligence, provided that negligence is apparent.”

4. As to the contentions of the defendant the court charged tbe jury that they were set forth in his plea and in the amendment to the plea, which the jury would have out before them, and that the court would not go over the pleadings but would refer the jury to them for the issues to be passed upon; and in a subsequent part of the charge the court, after stating the specific acts of negligence alleged by the plaintiff, stated that the defendant made “certain specific allegations of negligence against the plaintiff,” the first of which was failure of the plaintiff to give due warning of the approach of his car, and the next of which was that he was negligent in throwing a spot-light into the eyes of the defendant ’and his son and thereby blinding them; but the court did not state the defendant’s allegations as to the speed of the plaintiff’s car, and the failure to use due care to check it; and in the motion for a new trial it is contended that the court thus excluded and withdrew from the consideration of the jury these omitted allegations of negligence.

5. One of the grounds of the motion for a new trial is that the verdict is excessive, because there was no evidence that would authorize a verdict for more than the cost of labor and repairs on the car, $277.42 and interest thereon. Instructions to the jury on other items of damage to the plaintiff are complained of.

James M. Johnson, Franklin & Langdale, for plaintiff in error.

Dan R. Bruce, contra.


source: Caselaw Access Project

author: Bloodwoktii, J.

license: Public Domain

text:
    10870.
    Howard v. The State.
   Bloodwoktii, J.

1. When considered in connection with all the facts of the ease and in the light of the remainder of the charge of the court, the excerpts from the charge of which complaint is made contain no error that would demand the grant of a new trial.

2. In the motion for a new trial it is alleged that “ the court, erred in not defining to the jury what would he involuntary manslaughter in the commission of a lawful act without due caution and circumspection.” The judge charged the section of the code covering this grade of homicide, and otherwise charged correctly on this subject, and if a fuller charge was desired it should have been requested by a legal and timely written request as required by law, and the failure of the judge to define specifically this grade of homicide is not cause for new trial, in the absence of such a request. See, in this connection, Pickens v. State, 132 Ga. 46, 47 (63 S. E. 783), and cit.

Decided June 16, 1920.

(Certiorari was granted by tbe Supreme Court.)

Indictment for murder; from DeKalb superior court — Judge Smith. August 21, 1919.

For the killing of a child by an automobile, David Howard was indicted for murder and was found guilty of involuntary manslaughter in the commission of an unlawful act. The child was killed in a public street of the town of Kirkwood, and according to some of the testimony the automobile was being driven by the defendant at a high rate of speed and in excess of 30 miles an hour, and ran a considerable distance after it struck the child, and no signal of approach was given by the blowing of a horn or otherwise. It was also testified that the speed was moderate and not more than 12 or 15 miles an hour, that the horn was blown as the child ran into the street, that every effort was made to avoid injury, and that the automobile was stopped within a few feet after striking the child.

1. On the trial it was contended on the part of the defendant that if the speed was not greater than 30 miles an hour he could not be convicted of manslaughter in the commission of an unlawful act; and in the motion for a new trial it is contended that the court erred in giving in charge .to the jury certain parts of section 10 of the motor-vehicle act of 1915 (Ga. L. Ex. Sess. 1915, p. 112), because those parts of the statute are too general and indefinite to be understood, and are void for uncertainty. In support of this contention Hayes v. State, 11 Ga. App. 371 (4), and Empire Life Insurance Co. v. Allen, 141 Ga. 415 (1), are cited by counsel in their brief in this court. The provisions referred to are set out in special grounds 1 and 2 of the motion, as follows:

3. There is no merit in ground 5 of the amendment to the motion for a new trial.

4. While there may have been a slight inaccuracy in the charge in stating the contention of the defendant (as complained of in ground 6 of the motion for a new trial), yet when the charge is viewed in its entirety this error is not of sufficient gravity to require a reversal. “Mere inaccuracies of expression or slight errors which are not likely to obscure the meaning of the court or mislead the jury will not authorize this court to set aside a verdict where the charge is otherwise comprehensive and correct.” Moreover, when the judge, after completing his charge, inquired of counsel (as shown by the record) if they desired any further instructions given, counsel for the defendant should have called the court’s attention to the fact that the charge did not actually state all of the defendant’s contentions.

5. There is ample evidence to support the verdict.

Judgment affirmed.

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

(1) “No person shall operate a motor-vehicle or motorcycle upon any public street or highway at a speed greater than is reasonable and safe, not to exceed 30 miles per hour, having due regard for the width, grade, character, traffic and common use of such street or highway; or so as to endanger life, limb .or property in any respect whatever.” This it is contended is too general and indefinite except as to the provision limiting speed to 30 miles an hour.

(2) “Upon approaching or passing any person walking in the roadway, traveling any public street or highway, or any horse or other draft animal being led, ridden or driven thereon, or upon any bridge or crossing at an intersection of public streets or highways, the operator of a motor-vehicle or motorcycle shall at all times have the same under immediate control.”

In the 3d special ground of the motion for a new trial it is complained that the judge, after giving to the jury in his charge the form of verdict to be rendered if they should find the accused guilty of involuntary manslaughter in the commission of an unlawful act, added: “ Get the wording of these particular verdicts, gentlemen.” It is contended that this was error because it was calculated to impress the jury that the judge thought that this form of verdict was the one that should be returned.

3. In ground 5 it is alleged that the court erred in not charging the jury in accordance with the contention of the defendant’s counsel that they must determine that the speed was in excess of 30 miles an hour, before they could find that the defendant was guilty of an unlawful act in operating the automobile at a rate of speed greater than was lawful.

4. In ground 6 it is complained that in charging the jury the judge omitted from his statement of the defendant’s contentions, as to efforts to avoid striking the child, the contention that the defendant applied the brakes of the automobile as soon as he saw that the child was running toward the portion of the street in, front of the automobile.

Branch & Howard, W. F. Buchanan, for plaintiff in error.

George M. Napier, solicitor-general, contra.


author: Luke, J.

text:
    10998.
    Todd v. The State.
   Luke, J.

1. At common law and under the Penal Code of 1910, § 34, sexual intercourse with a female child under the age of ten years, whether had with or without her consent, stands upon the same footing as if had forcibly and against her will, a child of that tender age being incapable of giving any consent which the law will recognize. Stephen v. State, 11 Ga. 238 (15). Even if the female be over the age of ten years, the presumption of capacity to consent is rebuttable. Jones v. State, 106 Ga. 365 (1) (34 S. E. 174).

2. By an act passed in 1918, illicit sexual intercourse with a female child under the age of fourteen years, whether had with or without her consent, also stands upon the same footing as if had forcibly and against her will, and shall be punished as prescribed by section 94 of the Penal Code (1910), “unless the jury trying the case shall recommend that the defendant be punished as for á misdemeanor, in which event the same shall be made the judgment and sentence of the court.” Ga. L. 1918, p. 259. By virtue of that act a female child under the age of fourteen years, though above the age of ten years, is, regardless of her mental and physical development, legally incapable of consenting to illicit sexual intercourse.

3. “ It is incumbent upon the legislature to make provision for preserv- ' ing the good order, peace, and security of society; and when an act passed for that purpose is susceptible of a construction which completely attains it, it is the duty of the courts to give the act that construction, rather than one which would exclude from its operation a portion of the cases essential to its complete aim and object.” Gravett v. State, 74 Ga. 191 (1-a). And where, as with the act of 1918, supra, the sole purpose of the act is to increase the protection afforded by law to the children of this State, it will not be so construed as to decrease the protection afforded by any prior law.

4. Under the act of 1918, an attempt to have illicit sexual intercourse with a female child under the age of fourteen years constitutes an assault with intent to rape. Suggs v. State, 24 Ga. App. 323 (100 S. E. 778) ; Griffin v. State, 26 Ga. 496-497.

5. Both rape and assault with intent to rape, as defined by the Penal Code of 1910, § 1062, are felonies which can not be reduced to misdemeanors. But as defined by the act of 1918, supra, even rape, not to mention the attempt, may be either a felony or a misdemeanor, as the jury trying the case shall recommend, the presiding judge having no discretion whatever in the matter, but being mandatorily required to make such recommendation “the judgment and sentence of the court.”

6. It was not error, but was entirely proper, for the trial judge to omit to instruct the jury in accordance with the rule applicable only to reducible felonies. While it is the duty of the jury in such a case to fix a punishment “within” the minimum and maximum prescribed by' law, yet the use of the word “between” in the place of the word “within,” in giving an otherwise correct instruction to the jury, is no cause for a new trial; especially so where, as in this case, the minimum penalty prescribed by law is one year, and that fixed by the jury is five years, thereby demonstrating the want of any disposition on their part to adopt the.minimum term authorized by law.

Decided June 16, 1920.

Conviction of assault with intent to rape; from Terrell superior court — Judge Worrill. October 4-, 1919.

Yeomans & Wilkinson, W. H. Gurr, for plaintiff in error.

B. T. Castellow, solicitor-general, R. R. Arnold, contra.

7. The evidence authorized the verdict, and the record shows no error requiring a new trial.

Judgment affirmed.

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


text:
    11096.
    Willingham, treasurer, for use, etc., v. Benton.
   Luke, J.

1. In the case of mutual written subscriptions for a charitable purpose, “ the promise of the others is a good consideration for the promise of each.” Civil Code (1910), § 4246; Miller v. Oglethorpe University, 24 Ga. App. 388 (100 S. E. 784), and cit.; Young Men’s Christian Asso. v. Eslill, 140 Ga. 294 (78 S. E. 1075, 48 L. R. A. (N. S.) 783; Ann. Cas. 1914D, 136).

(a) Such a subscription, being supported by a good consideration, can not be withdrawn at the will of the subscriber and without the consent of the obligee; and in the case at bar there was no evidence that such consent had been given. Wilson v. First Presbyterian Church, 56 Ga. 554 (3).

2. When a mutual written subscription is promised upon condition that a certain sum be secured in pledges on or before a fixed time, and the obligee introduces evidence showing that this condition has been fulfilled, a subscriber defending on the ground that such sum was not so subscribed must produce evidence of probative value, in order to sustain his defense; and where the evidence to sustain such contention is the declarations or admissions' of an agent of the obligee, in order to bind the principal it must 'appear that the declarations or admissions were made dum. fervet opus, and were so closely connected with an act done in behalf of the principal and in the scope of the agency as to be free from the suspicion of device or afterthought and thus become part of the res gestee. Civil Code (1910), § 3606; Southern Express Co. v. Cohen, 13 Ga. App. 174 (78 S. E. 1111), and cit.; National Bank of Tifton v. Smith, 142 Ga. 663 (2) (83 S. E. 526 (2), L. R. A. 1915B, 1116).

(a) The declarations of the.witness Hillyer were clearly inadmissible and of no probative value, because his agency had not been proved, and it was error to allow evidence of such declarations to go to the jury, over appropriate and timely objection.

(b) The only other evidence tending to prove that the condition in the contract as to procuring subscriptions liad not been met was that of tlie subscriber (admitted without objection), that Cobb and Ellis told him on December 5, 1909, that the required $40,000 had not been raised within the time limit. The evidence as to agency at most showed that Cobb, and perhaps Ellis, were agents to solicit and turn in subscriptions; and since, the contract was entered into “upon condition that $40,000 or more be secured in pledges on or before December 4, 1909,” and the declarations were made on December 5, 1909, at a time when the pledge sued on had been turned in to the person authorized to receive it for the building committee of the Young Men’s Christian Association, and was not in the possession or control of either Cobb or Ellis, the agency had terminated and the declarations were not binding as admissions on the obligee. Atlanta Savings Bank v. Spencer, 107 Ga. 629 (5) (33 S. E. 878); Harris v. Collins, 75 Ga. 97 (6 a). This is true although one Jones, a witness for the plaintiff, testified: “ It was determined then, in addition, to raise $75,000, and the campaign then, I think, went on until the 10th,” he testifying at the same time, “The drive was closed on the 4th; ” for the burden was on the defendant to show that the admissions were made in the scope of his business, i. e. during his agency (Wilcox v. Hall, 53 Ga. 635 (4) ), and the evidence adduced failed to do this.

Decided June 16, 1920

Complaint; from Jasper superior court — Judge Park. November 10, 1910.

3. The refusal to direct a verdict is not error in any case. Dudley v. Isler, 21 Ga. App. 615 (2) (94 S. E. 827), and cit.

4. Some of the testimony of the witness Roper being objectionable and some admissablo, an objection to “ all of his testimony ” was not well taken. Stoker v. State, 23 Ga. App. 11 (3 a) (97 S. E. 273).

(a) The testimony of Roper, the agent of the defendant, in answer to interrogatories, as to transactions and communications had exclusively with the payee’s agent, Cobb, who was alive at the time the testimony Was taken but dead when it was offered at the trial, would be inadmissible, on proper objection. The reason of' the rule applicable in such cases is the inequality that would arise because of inability to contradict such testimony (Moore v. Harlan, 37 Ga. 623 (2) ; Field v. Walker, 36 Ga. 522) ; and the competency of a witness is determined by his status at the time it is sought to introduce his evidence. Owrroll v. Barber, 119 Ga. 856 (47 S. E. 181) ; Civil Code (1910), § 5858 (3, 4) ; Register v. Aultmam & Taylor Co., 106 Ga. 331 (1) (32 S. E. 116).

5. The other exceptions to the admission of evidence are not good or relate to matters not material, and the conclusions above reached answer the various objections made to the judge’s charge. The plaintiff having proved his case as laid, and the defendant having failed to sustain any of his defenses, it follows that the judge erred in overruling the general grounds of the motion for a new trial.

Judgment reversed.

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

E. M. Baynes, Hardeman, Jones, Park & Johnston, for plaintiff in error.

Greene F. Johnson, contra.


author: Bloodworth, J.

text:
    11242.
    LOVEJOY v. LAMAR.
    Decided June 16, 1920.
    1. In recommitting this case to the auditor, it was not error for the trial judge, instead of recommitting the case generally, to- direct that- the auditor, from the pleadings, the testimony already introduced, and the record in the case, amend his findings and show whether Mrs. Lamar ratified the loan of her funds to the Lovejoy Company by the defendant; this direction being in accord with a direction previously given by the Court of Appeals in this case (20 Ga. App. 499, 93 S. E. 153).
    2. This court can not as a matter of law say that there is no evidence to support the verdict on the issue raised by the exceptions of fact to the finding of the auditor.
    Exceptions to auditor’s report; from Pulaski superior court — Judge Graliam. December 8, 1919.
    Application for certiorari was denied by the Supreme Court.
    H. E. Coates, W. L. Grice, Hall & Grice, C. J. Bloch, for plaintiff in error.
    H. F. Lawson, contra.
   Bloodworth, J.

1. When this case was first before .this court (20 Ga. App. 499, 93 S. E. 153) the judgment of the trial court was reversed and the case remanded with direction that “ the case be recommitted to the auditor, in order that he may return a specific finding upon the issue of ratification, as made by the pleadings and evidence.” (Italics ours.) After this ruling, and when the case was again reached in the superior court, the judge by order referred the case to the auditor, “with direction that the said auditor, from the pleadings, testimony already introduced, and the record in said case, amend his findings and clearly show in his said findings whether or not the said Mrs. Cornelia Lamar at any time ratified the making of the loan of her funds to the Lovejoy Company by said defendant.” To this order counsel for defendant excepted, and “assigns the same as error, and says that the court erred in limiting the re-referring or recommittment aforesaid, but should have, by appropriate order, recommitted the case generally to the auditor.” There is no merit in this exception, for the order re-referring the case was in complete accord with the direction given by this court referred to above.

2. Upon the hearing of the case after the recommitment the auditor found as follows: “I find that the plaintiff, Mrs. Cornelia Lamar, never at any time ratified the lending of her funds to the Lovejoy Company by defendant, T. E. Lovejoy.” To this finding the defendant filed exceptions of fact, and the issue thus raised was submitted to a jury, which sustained the finding of the auditor. This court cannot say, as a matter of law, that there is no evidence to support the verdict, and the judgment refusing a new trial is Affirmed.

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


text:
    11319.
    Ogain v. Imperial Cafe Incorporated.
    Decided June. 16, 1920.
    Action for damages; from Pulton superior court— Judge Pendleton. December 8, 1919.'
    The action was for damages on account of personal injuries alleged to have been caused by slipping and falling when the plaintiff— a waitress in the defendant’s café-—’Stepped upon “a great wad or chunk of butter” on a tile floor in an unlighted and dark part of the café. The petition as amended alleges, in brief, that she commenced work in the café at f o’clock a.m. on the 30th of June, 1919, and in the course of her work and at the direction of the manager of the café she went from the place of serving meals and delivering lunches to get for guests small pitchers of cream which were on a table where other servants were washing dishes at a place behind a partition in a corner at the back of the café, that the lights were all out in that place, and the shadow of a tall counter was upon the floor at the door opening into it, so that she could not see under her feet when she stepped upon the butter and grease and slipped and fell near the table on which were the cream pitchers; that she was without negligence, because she was doing exactly what she was directed to do by the person who was in charge of the café at the time, and, on account of the darkness, could not see; that she was a stranger and had just come into the café as a servant, a few minutes before that time, and knew nothing of the café, except as she was told by the management, and had no opportunity to protect herself, and could not by reasonable diligence have known of the condition of the floor where she fell. It is alleged that the defendant knew “ the circumstances and the unsafe condition and the darkness,” and was negligent in not having the café in a suitable condition to make it safe for the plaintiff to wait upon the guests as she was directed, in not having lights in the café so that she could see the place described, where she was directed to walk, and in not having the table out in the light where it could be seen and easily approached, and in directing her to go to the table when it was in an unsafe condition, which was unknown to her.
   Luke, J.

The petition did not set forth a legal cause of action for damages, and it was not error to sustain the general demurrer thereto. This case is controlled by Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759),.and cases cited. See also Civil Code (1910), § 3131.

Judgment affirmed.

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

Citations by counsel:

Park’s Ann. Code, § 3131; 145 Ga. 732; 92 Ga. 495; 11 Ga. App. 836; 18 Ga. App. 189, 190; 19 Ga. App. 521; Id. 714; 24 'Ga. App. 524.

James & Bedgood, John H. Hudson, for plaintiff.

McCallum & Sims, for defendant.


author: Broyles, C. J.

text:
    11450.
    DAVIDSON v. THE STATE.
    Decided June 16, 1920.
    1. The evidence authorized the instructions upon the law of manslaughter.
    2. Under the facts of the case, it does not appear that the trial judge abused his discretion in overruling tho'se grounds of the motion for a new trial which were based upon the alleged incompetence and misconduct of one of the jurors.
    3. The'verdict was authorized by the evidence.
    Conviction of manslaughter; from Wilkinson superior court — Judge Park. March 9, 1920.

      George H. Carswell, J. F. Bloodworth, Victor Davidson, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Broyles, C. J.

The second headnote alone requires elaboration. After his conviction of voluntary manslaughter, the defendant made a motion for a new trial, and alleged in an amendment thereto that one of the jurors was incompetent to serve as a juror in the case, for stated reasons, and that he was also guilty of certain stated misconduct which required a new trial. It was alleged in general terms, in the amendment to the motion for a new trial, that neither the defendant nor any of his counsel knew of the incompetency or the misconduct of the juror until after the return of the verdict, but it was not therein alleged that they could not have discovered the same by reasonable diligence. In support of these special grounds of the motion for a new trial the defendant presented his affidavit, in which he specifically alleged that he did not know of the incompetency or the misconduct of the juror until after the verdict, but he did not therein state that he could not have discovered the same by reasonable diligence. The only affidavit of counsel for the defendant presented was one signed by all of them, which merely stated that “to the best of their knowledge and belief” the statement of facts in the amendment to the motion for a new trial was true and correct.

Under the uniform rulings of our courts, we do not think these affidavits, especially the one from the defendant’s counsel, measured up to the rule. The affidavit of counsel should have specifically and unequivocally stated that none of them knew of the incompetency or the misconduct of the juror in question until after the verdict, and that they could not have discovered the same by the exercise of ordinary or reasonable diligence. In his order overruling the motion for a new trial the judge said: “ As to the ground No. 2, in the amended motion for new trial, complaining of the misconduct of the juror, W. E. Spears, from the facts stated in said ground and also in the grounds numbered 3, 4, and 5, the movant was in possession of such facts that by the exercise of proper diligence he could have ascertained said facts before the verdict was rendered in said case, and under the decision and authorities cited in the case of Josey v. State, 148 Ga. 468 (96 S. E. 1041), the alleged misconduct of said juror does not require a new trial.”

Under these circumstances we can not say, as a matter of law, that the court erred in overruling the motion for a new trial.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., not presiding.


text:
    11329.
    Hendricks v. Tyson.
    Decided July 13, 1920.
    Rehearing Denied July 29, 1920.
    Judgment modified September 23, 1920.
    Complaint; from city court of Nashville-—Judge Smith. February 20, 1920.
    In this case a judgment, reciting that no defense had been interposed, was rendered against the defendants by the judge of the city court of Nashville on December 18,. 1916, at the term to which the suit — an action on a promissory note —was brought; and on the same day one of the defendants filed a plea which set up- that the note sued on was procured by threats of a criminal prosecution against his brother. In November, 1919, he offered and the court allowed an amendment by which he added to the plea the following allegation: “At this the first term of the court and before judgment in the case, defendant files this his plea to the merits, and shows that he signed said note as surety . . because of threats and coercion used by the plaintiff E. A. Hendricks, the purpose of this amendment being to show constructively that the original plea was filed in terms of the law before any judgment was rendered in the case.” At the February term, 1920, on the call of the case, the plaintiff presented a written motion to strike the defendant’s answer, because judgment was rendered against the defendants at the December term, 1916, and, as there was no motion to vacate the judgment, they were bound thereby. This motion was overruled, and the judgment overruling it is the judgment complained of in the hill of exceptions, error being assigned thereon for the following reasons: (a) It appears from the record that on December 18, 1916, the ease was in default, and upon the call of the case the court entered up judgment in due and legal form, of which the defendants had notice, or under the law were charged with notice, and the judgment, until set aside and vacated upon proper proceedings, is binding on the defendants. (6) More than three years having intervened since the rendition of the judgment, it could not be set aside by motion, (c) No other legal direction could have been given to the case than to sustain the motion to strike the plea and let the execution in favor of the plaintiff proceed, (d) The sustaining of the motion would have been a final determination of the case, and the order overruling it was contrary to the law of the case.
   Bloodworth, J.

“ The only error assigned in this ease being the overruling of the demurrer to the plea and answer of the defendant in the court below, and there being no final judgment excepted to, the bill of exceptions is prematurely brought, and must be dismissed. Civil Code, § 6138.” Smith v. Leverette, 18 Ga. App. 582 (89 S. E. 1094), and cases cited. See also Montgomery v. Reynolds, 124 Ga. 1053 (53 S. E. 512).

Writ of error dismissed.

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

ON MOTION TO MODIFY JUDGMENT.

Bloodworth, J. Owing to the peculiar and unusual facts of this case, the motion to modify the judgment dismissing the plaintiff’s bill of exceptions, by ordering in lieu thereof that the copy of said bill of exceptions retained in the office of the clerk of the city court of (Nashville, Georgia, shall operate as a bill of exceptions pendente lite, is allowed, and the judgment formerly rendered in this case is so modified as to provide that the copy retained in the office of the clerk of the court below shall operate as exceptions pendente lite.

Broyles, C. J., concurs. Luke, J., absent.

A motion to dismiss the writ of error was made by the defendant, on the ground that the bill of exceptions was premature. After the dismissal of the writ of error the plaintiff filed a petition to the Court of Appeals to be allowed to file or use, as exceptions pendent lite, the copy of the bill of exceptions, then of file in the office of the clerk of the city court of Nashville.

W. G. Harrison, R. A. Hendricks, for plaintiff.

Story & Story, for defendant.


text:
    11461.
    TOWNS v. THE STATE.
    Decided July 13, 1920.
    A condition of the probation of the accused having been violated by failure to pay $10 per month for the support of his child, under the provisions of a sentence for the offense of abandonment of the child, in which the penalty imposed was a fine of $25 and costs (which he paid) and service in the county chain-gang for a term of six months, the court did not err in ordering that he be turned over to the warden of the chain-gang to serve the remainder of the term of six month's.
    Motion to set aside judgment; from city court of Eloyd county — Judge Nunnally. April 7, 1920.
    Application for certiorari was denied by the Supreme Court. The defendant moved to set aside the part of the order placing him on probation which requires payment of $10 per month to the probation officer, to be applied to the support of his child so long as the child “ is not in his custody,” because this part of the order “is illegal, contrary to law, void, beyond the authority and power of the court, because, defendant . . having paid the fine and costs assessed against him, the court has no further authority to impose a fine or penalty in shape of a monthly payment toward the support of said child; ” and “ it is illegal for the further reason that should said child remain out of the custody of said Lee Towns for ten years, the order would still be open and binding on him until set aside, and this extends beyond the time that a court can impose a sentence.” In the same motion he asked that the order remanding him to the warden of the chain-gang to serve the remainder of the term of six months be set aside, as being illegal, void, and beyond the power of the court, because he had paid the fine and costs assessed, and had not violated the order of probation except in not paying the $10 per month for the support of the child, and therefore he was entitled to be discharged. On the hearing of the motion the movant testified, without contradiction, that he had complied with the terms of the probation order except as stated above. The court overruled the motion, and the. movant excepted. In the brief of his counsel it is contended that the probation law (Penal Code of 1910, § 1081 (a) should be construed strictly, as to the conditions imposed, and not as meaning “to enlarge the power of -imposing a penalty beyond that already granted by the laws of Georgia; ” that the court could not impose a greater financial penalty for the offense than $1,000, and the effect of this order might be to exact payment of a larger amount.

      Harris & Harris, for plaintiff in error.

      J. F. Kelly, solicitor, W. B. Mebane, contra.
   Bloodworth, J.

In this case the following judgment was rendered: “Lee Towns having been convicted of abandonment of child is this day sentenced to pay a fine of $25.00 and all costs of this prosecution, and serve six months in the chain-gang of Floyd county. However, it is ordered that Lee Towns, upon payment of said fine and costs, is hereby given leave to serve said sentence without the confines of the chain-gang, provided the aforesaid person shall maintain a correct life and indulge in no unlawful, disorderly, injurious, or vicious habits; shall avoid places and persons of disreputable or harmful character; shall report to the probation officer of Floyd county as may be directed; shall not leave the jurisdiction of this court without permission of the court, and shall observe such other conditions as are specified below, and as may from time to time be required by the order of probation officer. The probationer shall pay the further sum of ten dollars per month to said probation officer, to be applied as follows: to the support of his child, to wit, Louise Towns, as long as said child is not in the custody of said Towns. This order is granted because to make the defendant support and care for his child, and for the benefit of said .child. This the 15th day of March, 1919.” On the 22d of December, 1919, the judge issued the following order: “ Georgia, Floyd County. To G. W. Smith, sheriff of said county: Lee Towns having been convicted in the city court of Floyd county, and sentenced to pay a fine and costs or serve a term in the chain-gang of Floyd county, and it now appearing to the court that Lee Towns has not complied with the sentence of this court as heretofore passed in this case, you are hereby commanded to arrest the said Lee Towns and bring him before the court that justice may appertain.” On April 5, 1920, a third order was signed by the judge, as follows: “Upon the defendant, Lee Towns, being brought before me under order heretofore issued by the court, and it appearing to the court that the defendant has not complied with the order and judgment of the court, by paying $10 per month for the support of said minor child, and in open court the defendant failing to comply with this part of the probation order of this court, it is ordered by the court that the defendant in this case be turned over to the warden of the chain-gang of this county, to serve the balance of said term in the chain-gang of this county.”

Under all the facts of this ease the judge did not err in ordering that the accused “be turned over to the warden of the chain-gang of-this county to serve the balance of said term in the chain-gang of this county.”

Judgment affirmed.

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


text:
    11497.
    Dalton Fruit & Produce Co. v. Connally, sheriff, et al.

    Decided July 13, 1920.
    Kule; from Whitfield superior court — Judge Tarver. April 8, 1920.

      F. K. McCutchen, for plaintiff.

      George G. Glenn, R. H. House, for defendants.
   Bloodworth, J.

The only exception to any ruling in this case is thus stated in the bill of exceptions: “ To the refusal of the court to allow the plaintiff to file traverses to the answers filed by the defendants in said case the plaintiff in error then and there excepted, and now excepts and assigns the same as error, because the same is contrary to law.” This is not an exception to a final judgment. “ A bill of exceptions .in which there is no exception to the final judgment does not confer jurisdiction upon this court, and the writ of error must be dismissed.” Simmons v. Peagler, 7 Ga. App. 252 (66 S. E. 629), and cit. See also Lyndon v. Ga. Ry. & Electric Co., 129 Ga. 354 (3) (58 S. E. 1047); Montgomery v. Reynolds, 124 Ga. 1053 (53 S. E. 512), and cit.

Writ of error dismissed.

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


text:
    11501.
    Taylor v. Holmes.
    Decided July 13, 1920.
    Certiorari; from Carroll superior court — Judge Terrell. March 17, 1920.

      Boykin & Boykin, for plaintiff in error.

      W. K. Fielder, contra.
   Bloodworth, J.

“ An affidavit of illegality is not the proper remedy to arrest an execution and set aside a judgment, upon the ground that at the time of its rendition by the court, as being by default, there was an issuable plea of file and undisposed of.” Tumlin v. O’Bryan, 68 Ga. 65 (1). See also Greene v. Oliphant, 64 Ga. 566 (1) ; Brown v. Webb, 121 Ga. 281 (1) (48 S. E. 917). The court properly refused to sanction the certiorari.

Judgment affirmed.

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


text:
    11509.
    Washington v. The State.
    Decided July 13, 1920.
    Rehearing denied July 29, 1920.
   Bloodworth, J.

There is no merit in any of the special grounds of the motion for a new trial; the evidence is ample to support the verdict, which is approved by the trial judge, and the judgment is

Affirmed.

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

Conviction of assault with intent to rape; from Emanuel superior court — Judge Hardeman. April 5, 1920.

As to the argument of counsel the court instructed the jury as follows: “ In determining the guilt or innocence of the defendant the court instructs you now that the opinion of counsel in the case is .not to control you at all. Assertions by counsel, either way, about a party’s guilt or innocence is a matter that the jury has no right to consider. The jury passes on the evidence; the province of counsel is to discuss the evidence and not express any opinion about what its conclusion ought to be; that is for the jury to pass on.” Error in so charging is alleged in the motion for a new trial, the movant contending that the court thereby curtailed the right of argument of counsel for the movant, and that it was violative of the provisions of the constitution of this State that “ No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State in person, by attorney, or both” (art. 1, sec. 1, par. 4), and that “Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel” (art. 1, sec. 1, par. 5). In a note to this ground of the motion the judge states that the charge complained of therein was given because the solicitor-general, at the conclusion of his argument, expressed his personal opinion that the defendant was guilty, and the defendant’s counsel objected to this expression of opinion and moved for a mistrial.

On the presumption of innocence the court charged as follows: “Hnder the law of this State every man who is charged with crime, when he pleads not guilty, is presumptively not guilty. That is a presumption of law, that he is not guilty. That is not a conclusive presumption. If it was, that would end the case as a matter of course. That is a mere prima facie presumption, what is known as a rebuttable presumption. There are presumptions of law and presumptions of fact; that is a presumption of law as to his innocence.” It is alleged that this was error because the doctrine as to the presumption of innocence is not stated therein as clearly and correctly as the movant was entitled to have it presented, and it tended to confuse the jury and failed to safeguard the interests of the accused to the degree that the law demands.

Alfred Herrington Jr., for plaintiff in error.

Walter F. Gray, solicitor-general, contra.


text:
    11517.
    Carson v. The State.
    Decided July 13, 1920.
    Indictment for assault with intent to murder; from Marion superior court — Judge Howard. March 20, 1920.

      George P. Munro, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Bloodworth, J.

1. The alleged newly discovered evidence is cumulative in its nature, and is not of such probative value that it would probably result in a different verdict should a new trial be granted.

2. There is evidence to support the verdict, which is approved by the presiding judge, and this court will not interfere.

Judgment affirmed.

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


author: Bloodworth, J. W.

text:
    11519.
    BUSH v. KIMBRELL, sheriff.
    Decided July 13, 1920.
    No mortgage or reservation of title in the vendor was contained in the purchase-money notes under which the petitioner for a rule against the sheriff in this case sought to have the debt paid from the fund in the sheriff’s hands arising from the sale of the property described therein; and the court did not err in denying the petition.
    Money-rule; from Miller superior court — Judge Worrill. April 19, 1920.

      P. D. Rich, for plaintiff,
    cited: Civil Code (1910), § 3257; 117 Ga. 72.

      W. I. Geer, for defendant.
   Bloodworth, J. W.

J. Bush filed an application for a rule against the sheriff, alleging in part that “your petitioner holds two purchase-money mortgages over certain property, therein described, which said property was in possession of said H. A. Vinson at the time of his death; that said mortgages have never been foreclosed and are past due, and a true copy of both of said mortgages are hereto attached and made a part of this petition as Exhibit CA\” Petitioner further alleged that under certain judicial proceedings said property had been sold by the sheriff, and that, as the proceeds of said sale, the sheriff had in his hands the sum of $300.00, and he praj’ed that the sheriff “show cause . . why said amount should not be paid to petitioner, or a sufficiency thereof to discharge his mortgage liens against the property sold for the purchase-money.” The copies of the ■ notes attached to the petition are as follows: “$225.00. Colquitt, Ga., Jan. 4, 1916. Oct. 1st next after date I promise to pay to the order of W. J. Bush, or bearer, two hundred and twenty-five dollars, for value received. This note given for the purchase-money of two bay mares, one about three years old, named Dola, other about two years old, named Maude, with interest after maturity until paid at eight per cent, per annum; and if I fail to pay this note at maturity, and the same is placed in the hands of an attorney for collection, then I admit that I have damaged the said W. J. Bush ten per cent, on the amount of said debt by forcing him to employ an attorney on account of my default, and said damage is hereby declared for value received to be liquidated and collectible as part of said original debt . . [All homestead rights waived.] Given under the hand and seal of each party. (Signed) H. A. Yinson (Seal).” “$116.00. Colquitt, Ga., Jan. 4, 1918. Oct. 1st next after date I promise to pay to the order of W. J. Bush, or bearer, one hundred and sixteen dollars, for value received. This note given for purchase-money of one bay mare about 12 years old. . . [Bemainder in same language as next above.] (Signed) H. A. Yinson (Seal).” The judge denied the application.

The judge properly denied the application. The notes in this case neither reserved title to the property sold, nor contained a mortgage to secure the purchase-money.

Judgment affirmed.

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


text:
    11540.
    Hogan v. The State.
    Decided July 13, 1920.
   Bloodworth, J.

1. The indictment in this case charged the accused with drunkenness on public highway.” There is no evidence to support the allegation of the indictment that the accused did “ appear in an intoxicated condition on a public highway, . . which said drunkenness and intoxication was caused by the excessive use of intoxicating wines, beers, liquors, and opiates.”

2. The allegations of error in the special grounds of the motion for new trial need not be considered, as they are of such a character as that they will not likely reappear when the ease is tried again.

Judgment reversed.

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

Indictment for misdemeanor; from Irwin superior court — Judge Bye. April 10, 1920.

H. E. Oxford, Quincey & Rice, for plaintiff in error.

R. S. Foy, solicitor, contra.


text:
    11565.
    White v. The State.
    Decided July 13, 1920.
    Indictment for the manufacture of liquor; from Upson superior court — Judge Searcy. April 24, 1920.

      W. Y. Allen, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Bloodworth, J.

1. “The conviction of the defendant not depending entirely on circumstantial evidence, the court did not err in failing to charge the law of circumstantial evidence, in the absence of a timely written request.” Garrett v. State, 21 Ga. App. 801 (3) (95 S. E. 301). See also Cook v. State, 22 Ga. App. 771 (12), 780 (97 S. E. 264), and cit.

2. The court did not err in charging the jury as follows: “ The issue in this case is whether this defendant did violate this law; that is the real and only issue in the case. The State charges that he did violate it, and he denies it. The question for you to settle is whether or not he is guilty of the violation of this law. It is a question of fact for you to determine. The court has nothing to do with it.”

3. The evidence is ample to support the verdict.

Judgment affirmed.

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


text:
    11574.
    Stanford v. The State.
    Decided July 13, 1920.
    Accusation of gaming; from city court of Macon—-Judge Guerry. April 20, 1920.

      John R. Cooper, W. O. Cooper Jr., for plaintiff in error.

      Will Gunn, solicitor, contra.
   Bloodworth, J.

The motion for a new trial in this ease contains the usual general grounds only; there is direct evidence of the guilt of the accused, and the judgment must be

Affirmed.

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


text:
    11587.
    CUMMINGS v. THE STATE.
    Decided July 13, 1920.
    The evidence relied upon by the State to connect the accused with the ofíense of having in his custody and control intoxicating liquor was wholly circumstantial in character, and did not exclude every reasonable hypothesis save that of the guilt of the accused. Accordingly the court erred in overruling the motion for a new trial.
    Indictment for possession of liquor; from Harris superior court — Judge Howard. May 3, 1920.

      J. R. Lunsford, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Bloodworth, J.

The indictment charged that the accused did “have in his possession, custody, and control alcoholic, spirituous, malt and intoxicating liquor.” He was convicted and made a motion for new trial, which -was overruled, and the case is before this court for review.

The evidence shows that the defendant and one other -occupied a house jointly, and jointly controlled and used a crib, each one having a key to the crib. An officer went to this house, told the defendant that he was going to search his premises, and that unless defendant unlocked the crib he would break it open. The defendant replied that his wife, who was at church, had the key, but he walked off, not out o'f sight of the officer, and returned witli the key. The officer unlocked the crib and “found a five-gallon keg with about four gallons of whisky in it.” The defendant stated: “I had not been in the crib that day and did not know there was any whisky there. The whisky didn’t belong to mo, and I didn’t know there was any whisky on the place until Mr. Hnling found it in the crib.” There was no direct evidence that the whisky belonged to the defendant, or that it did not belong to the party who had joint possession of the crib with the defendant (he not having, so far as the record discloses, been put upou the stand). See Lunceford v. Mayor &c. of Washington, 17 Ga. App. 730 (2) (88 S. E. 212). Certainly the evidence did not exclude every reasonable hypothesis save that of the guilt of the accused, for it is just as reasonable to conclude that the liquor belonged to the other party who jointly used the crib with the defendant. “The evidence relied upon by the State to connect the accused with the offense of having in his custody and control intoxicating liquor was wholly circumstantial in character, and did not exclude every reasonable hypothesis save that of the guilt of the accused. Accordingly the court erred in overruling the motion for a new trial.” Reeves v. State, 23 Ga. App. 9 (97 S. E. 263). See also Kennedy v. State, 23 Ga. App. 141 (97 S. E. 894).

Judgment reversed.

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


text:
    11590.
    Sturdivant v. The State.
    Decided July 13, 1920.
    Indictment for personating another; from Harris superior court — Judge Howard. May 3, 1920.
    The indictment charged Alonza Sturdivant with the offense of felony, for that on January 29, 1918, in Harris county, he unlawfully, falsely, and fraudulently personated another, “to wit, that he did then and there represent himself to the Bank of Chipley and to W. B. Wisdom, cashier of said Bank of Chipley, that he, the said Alonda Sturdivant, was the person of Alonza Gholston, a son of Tom Gholston,'with the intent of fraudulently obtaining money from said Bank of Chipley and said W. B. Wisdom, cashier, the said false and fraudulent representation as aforesaid being with the intention of fraudulently procuring and obtaining money in the sum of sixty-five dollars from said Bank of Chipley and said W. B. Wisdom, cashier, which said representations were false and fraudulent and made with the intent to cheat and defraud said Bank of Chipley and said W. B. Wisdom, cashier, contrary to the laws of said State,” etc. The defendant demurred on the grounds: (1) .The indictment fails to set out any crime under the laws of this State. (2) It does not set out with sufficient certainty the charge of personating another; it fails to set out the manner 'and details of any transaction showing fraudulent intent; it fails to set out any special manner in which false representation or personating another was done by issuing a check or otherwise; and the defendant was not, under the indictment, placed on notice of the facts or circumstances relied on for conviction.
   Bloodworth, J.

1. The demurrer to the indictment in this case (which charged the offense of personating another, under section 710 of the Penal Code of 1910), was properly overruled.

2. The check which the bank cashier swore that the-accused signed and presented to him for payment was properly admitted in evidence.

3. There was ample evidence to support the verdict.

Judgment afjvrmed.

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

On .the trial W. B. Wisdom testified, that on January 29, 1918, he was cashier of the Bank of Chipley and saw Alonza Sturdivant, the defendant, sign a certain check on the Bank of Chipley; the witness referring to a check exhibited to him and later introduced in evidence, which was for $65 and was signed: “Lonzy Gostie.” The witness further testified: "I had a conversation with the defendant. I had seen the negro around Chipley for a long time, and thought I knew him, and he wrote that check and said his name was Alonza Gholston, I said: ‘You are not Alonza Gholston; you are Alonza Sturdivant/ I says, ‘I know Judge Sturdivant, and know your folks/ I-says, ‘You live out here at Mr. Willie Williams’, or live on Mr. Willie Williams’ land/ He says, ‘No sir; I am Tom Gholston’s boy, and live here with Kube Collier.’ So I stepped out from behind the counter, and thought I would get outside there to some other darkeys out there and ask these negroes if this was Alonza Sturdivant. I didn’t think I was mistaken in the negro, but he stood up and told me so point blank that he was another darkey that I thought may be I might be mistaken. So I walked out right to the next door, . . and some darkeys were standing there, but before I could ask them and get back this darkey was gone. He didn’t wait to get his change. . . He presented the check to the bank; . . he just walked up to the window and asked for the money, and the check was written out, and he just signed it, and wanted to get the money on it; and right after that time was when I had my conversation with him. I didn’t give him any money. . . . Mr. Jordan . . filled out the check. Mr. Jordan .occupied the position of assistant cashier.” The witness testified that he knew Tom Gholston, a negro who prior to that time had a checking account at the bank, and that Alonza Sturdivant had an account at the bank in a previous year. “I told the solicitor that Gholston, the man whose name is signed there, did have an account with the bank prior to that. He did not have any money that day. He had no account at all. The records show . . he drew it out January 9th, . . twenty days prior to the time this check was written.”

The defendant in his statement at the trial said that he asked Alonza Gholston to lend him $65, and Alonza gave him permission to sign his (Alonza Gholston’s) name to the check and get it, and he (the defendant) did so. The defendant further said: "I told Mr. Wisdom, when he said, ‘That ain’t Alonza Gholston, that is Alonza Sturdivant,’ I told him I was writing the check on Tom Gholston’s son that lived out at Mr. Collier’s. He just misunderstood me to say that I was Alonza Gholston. I wouldn’t have said that to him and knowing me personally. I had been knowing Mr. Wisdom eight or ten years.”

One of the grounds of the motion for a new trial was that the court erred in admitting in evidence the check referred to, over the objections that it was ‘‘irrelevant, immaterial, and prejudicial,” and that under the indictment it was inadmissible.

J. B. Burnside, McLaughlin & Jones, for plaintiff in error.

C. F. McLaughlin, solicitor-general, contra.


text:
    10831, 10832.
    Atlanta Oil & Fertilizer Co. v. Phosphate Mining Co.; and vice versa.

    Decided July 14, 1920.
    Rehearing denied July 28, 1920.
   Bloodworth, J.

1. The motion to award damages against the plaintiff in error is refused.

2. In prior decisions relating to the contract involved in this case (144 Ga. 75; 20 Ga. App. 660; 23 Ga. App. 338) practically all the law of the case is settled, and under them two questions w'ere for submission to the jury in the last trial,—'One the “rule of avoidable consequences,” the other “whether the seller had in fact consented to the transfer of the contract.” Both questions were clearly and correctly submitted to the jury, and when all the facts and the entire charge as given are considered, no reversible error is found either in the excerpts from the charge or in the refusal to give certain requested charges.

3. The special grounds of the motion for a new trial not covered above are also without merit; the verdict is supported by the evidence, and the judge did not err in overruling the motion for a new trial.

Judgment affirmed on the mam till of exceptions; cross-bill dismissed.

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

Action on contract; from Fulton superior court — Judge Pen'dleton. July 1, 1919.

By a written contract made in 1906 between the Phosphate Mining Company and the Atlanta Oil & Fertilizer Company, the Phosphate Company agreed to sell and the Oil Company to buy certain phosphate rock to be delivered at the mines of the Phos.phate Company in Florida at a stated price and in specified amounts through a series of years ending in 1916. On October 15, 1912, the Phosphate Company brought an action against the Oil Company for an alleged breach of the contract. In the second count of the petition (the only count remaining in the case at the last trial)- it was alleged that on September 25, 1912, the plaintiff received written notice from the defendant to the effect that the defendant was unable to carry out the entire contract and declined to give any shipping instructions in regard to the movement of phosphate rock in the future, and that from time to time thereafter the defendant declared that it would not conform to the terms of the contract, and therefore the defendant breached the contract in toto to the end of its term. By amendment of this count, on the last trial, the plaintiff sought to recover as damages a sum representing .the difference in the contract price and the market price of the phosphate rock at the time and place of delivery agreed upon, besides interest, and prayed judgment for $38,999.30 as “principal damage,” and for $17,744.57 as interest. The trial resulted in a verdict in favor of the plaintiff for the principal sum stated;

In the defendant’s amended answer it is alleged that on or about July 1, 1912, the defendant made an agreement with the Empire Cotton Oil Company, the purchaser of its manufacturing plant, by which that company took over the contract in question and became the assignee of the contract and agreed to receive and pay for the rock contracted for therein; that on or about July 2, 1912, the plaintiff was notified of this by telegram and letter; that the plaintiff, by letters on July 3 and July 5,1912, consented to the transfer, and that it further recognized and acted upon its acceptance of the Empire Cotton Oil Company as transferee of the contract, by withholding the July, 1912, shipments under the contract, at the sole instance and request of the Empire Cotton Oil Company; that while the plaintiff and the Empire Cotton Oil Company subsequently undertook to recede from the position taken by them in regard to the transfer of the contract and the plaintiff’s assent to it, the plaintiff was not released, and the Empire Cotton Oil Company was bound to receive the phosphate rock and pay for it according to the terms of the contract; that “any release of the Empire Cotton Oil Company, either expressly or by the conduct of the plaintiff, was the sole cause of any loss to the plaintiff that it may have sustained under said contract, and this defendant is not liable therefor, and it was the duty of the plaintiff to hold the said Empire Cotton Oil Company to said contract, • and to save both itself and this defendant from any loss by reason of any nonperformance thereof; and so it says it is not liable to the plaintiff in any sum whatever.”

In the motion for a new trial it is contended that the effect of the decision in this case in 20 Ga. App. 662 (8), was to hold, as charged by the court below on the trial then under review, that if the plaintiff consented to the transfer of the contract to the Empire Cotton Oil Company, the defendant would be released from further liability; and that on the last trial the court erred in refusing to charge the jury to this effect, and in charging in effect that in order to release the defendant it must be shown not only that the plaintiff consented to the transfer of the contract by the defendant to its successor, but that the parties agreed, either by express language or impliedly, that the defendant should be released from further liability. It was contended also that the court erred in using the term “ novation,” and in not explaining to the jury the meaning of this technical term. These contentions cover substantially the exceptions in several grounds of the motion for a new trial as to parts of the following instructions to the jury: “The burden is on the defendant to establish the defense that there has been a novation in this case, and that therefore they are not liable. . . The defendant files a defense which it says prevents the plaintiff from recovering anything. It says that there has been a novation of the contract, and that it was released by novation, . . that it had a contract with the plaintiff with reference to the rock, and that it transferred that contract to the Empire Cotton- Oil Company, and I charge you that the transfer of that contract to the Empire Cotton Oil Company would avail, provided certain other things happened.” “If the transfer was made by the defendant company to the Empire Company, and if the plaintiff, the Phosphate Mining Company accepted the transfer, knew about the transfer and accepted it, and defendant was relieved from further liability, if the Empire Company was substituted for the defendant company, then that would be a novation, and the plaintiff would not have a right to recover, but. it would be necessary for you to determine with reference to these things. You look to the testimony in the case and see whether or not there was an acceptance — a notice of acceptance— on the part of the Phosphate Company of this transfer by the Oil Company to the Empire Company. Did they know about it, and did they accept that transfer? And if they accepted that transfer and the Oil Company was released, the Oil Company would not be further liable in the case. . . The Oil Company would be released either by express contract or by implication, and you look to the testimony in this case and see whether or not it had been so released. An express contract would be an express understanding between the parties. An implied contract would be a contract that would be inferred from the facts and. circumstances of the case. You look to all of the facts and circumstances in the case about these transfers and what was said about them, and all that passed between all the parties, and if it was understool between all three of the parties, understood and agreed by them, all three of them, that the Oil Company was released, why that would be a novation, and the plaintiff cannot recover, but, if otherwise entitled to recover, the plaintiff can recover from the Oil Company.”

In regard to the plaintiff’s duty to lessen the damage to it so far as avoidable, it was contended that the plaintiff, having accepted the defendant’s transfer of the contract to the Empire Cotton Oil Company, should have held the Empire Cotton Oil Company to the contract; and the defendant requested the court to charge the jury that if the plaintiff assented to the transfer of the contract and afterwards released the Empire Cotton Oil Company from its obligations under the transfer, “the plaintiff could not recover from the defendant such losses as would have been saved had the Empire Cotton Oil Company not been released from its obligations under the transfer; ” and requested the court to charge also as follows: “ I charge you as a matter of law that when the defendant transferred the contract to the Empire Cotton Oil Company it breached the contract, but that if the plaintiff accepted that breach, then the duty to minimize the damage arose, and the plaintiff was bound to avail itself of any circumstances which then existed which it ought reasonably to have availed itself of in order to minimize the damage.” The refusal to charge as requested is complained of in the motion for a new trial. On this subject the court charged as follows: “ It is also contended by the defendant that it was the duty of the plaintiff, if there had been a breach of the contract and that breach had been accepted by the plaintiff, and bringing suit would be an acceptance, that the Oil Company breached the contract, and transferring the contract to the Empire Cotton Oil Company would amount to a breach, and, if they breached the contract and the plaintiff accepted that breach expressly or by filing suit, then it was the duty of the plaintiff to avoid any damage that it could reasonably avoid under our law; and I will read you the section of the code which expressly provides for that: ‘Where by a breach of contract . . one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.’ [Civil Code of 1910, § 4398.] And ‘ordinary care’ means that care that every prudent person would exercise under the same or similar circumstances.” It is alleged that the court erred in so charging, because “ the jury might well conclude from the charge that the duty to minimize the damage did not result until the acceptance of the breach by bringing suit, when the court should have charged the jury that the acceptance of the transfer was the acceptance of the breach, and that then and at that time the duty to minimize the damage existed, and that if any loss resulted to the plaintiff by reason of the plaintiff’s failure to avoid any loss which it could reasonably avoid, then and in that event the plaintiff could not recover such loss or damage from the defendant.”

The court charged: If there was a breach of the contract, “ that is, if the defendant refused to accept the rock which it ought to have accepted under the contract, and it is otherwise liable under the instructions which I .will give you, the plaintiff would have the right to recover; and if it has the right to recover, the amount of the recovery would be the difference between the market value and the contract price for this rock.” It 'is alleged that the court erred in so charging, because (1) this charge ignores the defense that the plaintiff’s consent to the transfer of the contract justified the defendant in refusing to take and pay for phosphate rock after the date of the transfer and its acceptance by the plaintiff; and (2) it ignores the duty to minimize damages from the date of acceptance of the transfer. It is contended that the court should have charged the jury that the plaintiff could not recover in any event more than the difference between the contract price and the cost of production.

The court charged: “You determine what-the amount of tons is that ought to have been delivered under the contract; and if the plaintiff is entitled to recover, you determine what is the difference between the contract price and the market value; . . and if the plaintiff is entitled to recover, he will be entitled to recover the difference between the market value and the contract price.” This is alleged to be error for the following reasons: The contract is in writing, and its construction was for the court, and not for the jury. The contract provides: “Buyers are at liberty ... to diminish the quantity called for in any year to the extent of not exceeding 10 per cent., provided that the quantity to be taken shall not be less than buyer’s consumption, and provided further that notice of such diminished demand be given seller 12 months in advance of such change.” It is undisputed' that the seller was notified that the buyer had no demand for consumption and no capacity for consumption after July 1, 1912, and had sold its plant and transferred its contract to the Empire Cotton Oil Company; and the purchaser’s refusal to take any rock operated at least to diminish the quantity specified in the contract to the extent of 10 per cent., beginning one year from the date of that notice. The court should have charged that after that date the quantity named in the contract would be thus diminished. And the court should have charged that if the market price went below the cost of production, it would at that point cease to be the measure of recovery, and the measure of recovery would then be the difference between the contract price and the cost of production.

An expression of opinion that the jury should find for the plaintiff is alleged to have been made by the court in charging, “Yon look to all of the facts and circumstances in the ease and exercise your discretion as to whether or not, on this sum that you find as I have indicated to you, the plaintiff shall recover interest,” and if the plaintiff should recover interest, it should be added to the amount found for the plaintiff and the .verdict should be for one amount.

In charging as to credibility of testimony, the court said: “As a general rule, if there is no criticism of the witness in any way, his testimony must be received when it refers to the facts.” It is contended that this instruction was misleading and “ was calculated to unduly ■ impress the jury with the testimony of the witness Lang, who testified as to the market value,” when there was an admission in the pleadings that the cost of producing the rock was greatly in excess, of the market value to which this witness testified.

D. W. Blair, King & Spalding, Daniel MacDougald, for plaintiff in error.

Robert P. Jones, Evins & Moore, contra.


text:
    10976.
    BANK OF LEESBURG v. HOME MIXTURE GUANO CO.
    1. Where a ease has heen referred to an auditor, who duly reports thereon his several findings, both of law and of fact, each material finding to which no timely exception is filed becomes, when accepted and approved by the court, conclusive upon the parties litigant as to the matter covered by it. Civil Code (1910), §§ 5135, 5147; Ball v. Vason, 56 Ga. 264 (6); Anderson v. Usher, 59 Ga. 568 (1); Lewis v. Gordon County, 70 Ga. 486 (1); Wade v. Peacock, 121 Ga. 816 (1) (49 S. E. 826).
    2. Where numerous exceptions to an auditor’s report are filed but before a hearing thereon they are in part withdrawn, the report stands upon ■the same footing as if the withdrawn exceptions had never been filed. See Wade v. Peacock, supra.
    3. Where, as in this ease, the auditor’s report is accepted and approved by the court in its entirety, and no error of law is apparent upon its face, and' the only exception thereto filed and not withdrawn is an exception of fact to the auditor’s general finding against the defendant for a sum stated, and such general finding results as a necessary conclusion and as a mere matter of calculation from the unattacked definite and specific findings of the auditor stated in the same report, the exception is without any merit.

      Decided July 14, 1920.

      4. While in such a case the judge should have stricken the exception, yet the fact that he submitted it to the jury and then directed a verdict against it can not afford cause for a new trial.
    5. The record discloses no reversible error.
    Complaint; from Lee superior court — Judge Littlejohn. July 31, 1919.

      R. R. Forrester, Yeomans & Wilkinson, for plaintiff in error.

      Slade & Swift, Pottle & Hofmayer, contra.
   Luke, J.

This case comes here on exceptions to the report of an auditor. That report, prepared by Sam S. Bennet, Esq., the auditor, is unusually full and clear. In his findings o£ fact he deals specifically with every material averment of the plaintiff’s petition and of the defendant’s answer. In his findings of law he deals with various questions of law applicable to such facts. After setting out such specific matter the report concludes as follows: “The auditor therefore finds that the plaintiff is entitled to recover of the defendant the sum of $973.07, with interest thereon at 7% per annum from April 12, 1916 (the date when said suit was filed), the plaintiff having waived any right to interest from any earlier date.” To that report the plaintiff filed no exceptions whatever; the defendant filed no exceptions of law, but did file numerous exceptions of fact, the last of which was in the following language: “Further, that the auditor, in the 18th paragraph of his findings of fact, finds ‘that the plaintiff is entitled to recover of the defendant the sum of $973.07, with interest thereon at 7% per annum from April 12, 1916;’ which finding the defendant says is error, and now assigns the same as error, on the ground that the same is contrary to the evidence and without evidence to support it.” When the matter came on for trial the defendant withdrew all of its exceptions except the one herein set out. That exception was submitted to the jury, but the court directed a verdict for the plaintiff, and then entered a decree based upon the auditor’s report as filed. The defendant thereupon filed a motion for a new trial, which was overruled, and it brought the case here for review.

With this statement of the material facts the headnotes need, no elaboration..

Judgment affirmed.

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


text:
    11054.
    Central of Georgia Railway Co. v. Mansfield Trading Co.
    Decided July 14, 1920.
    Action for damages; from Newton superior court — Judge Hutcheson. October 11, 1919.

      Rogers & Knox, for plaintiff in error.

      King & Johnson, contra.
   Luke, J.

Several of the exceptions to interlocutory rulings in this case were not preserved by exceptions pendente lite, and therefore can not be considered. Likewise, numerous grounds of the motion for a new trial are not specifically argued in the brief of counsel for the plaintiff in error, and must therefore be treated as abandoned. The assignment of error upon the court’s refusal to grant a nonsuit will not be considered, since the case proceeded to judgment and the motion for a new trial contained the ground that the verdict was not authorized by the evidence.

After a thorough examination of the voluminous record, and a careful consideration of all the assignments of error that are properly before this court, we find none that requires a new trial. The evidence authorized the verdict; the charge of the court was full and fair; and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    11110.
    SOUTHERN RAILWAY COMPANY v. WINN.
    Decided July 14, 1920.
    Conceding for the purposes of this case that a presumption of negligence was raised against the railway company, under the Civil Code (1910), ' § 2780, by evidence that soon after a train had passed over its track a passenger’s dead body with bruises on the head was found beside the track, this presumption was raised only as 'to acts of negligence alleged in the plaintiff’s petition; and every alleged act of negligence which could have been the proximate cause of the death was disproved by the evidence. The plaintiff could not recover for other than the specific acts of negligence pleaded; and, the verdict rendered for the defendant being demanded by the evidence, the court erred in granting a new trial.
    Action for damages; from city court of Brunswick — Judge Krauss. October 3, 1919.

      Bennet, Twitty & Reese, J. T. Colson, F. M. Scarlett Jr., for plaintiff in error.

      Oliver & Oliver, D. M. Clark, contra.
   Luke, J.

Mrs. Mary Winn sued the Southern Bailway Company for damages, alleging that her minor son, upon whom she was dependent, boarded a passenger-train of the defendant, as a passenger, for the purpose of being transported from Brunswick, Georgia, to Jesup; that the train was crowded and her son could not get a seat in the coaches and was forced to ride on the platform of the rear car of the train; that among the passengers were five other persons (naming them) who were not seated and who were intoxicated and disorderly on the train, and that these persons had trouble with the ticket collector, and that the porter on the train restrained them from doing the ticket collector harm; that her son was sober and had not been drinking at all; that the persons named who were drunk went out on the platform where her son was standing, and invited him to take a drink with them, and he courteously declined; that the said persons stuck their bottles of whisky to his mouth and undertook to force him to drink, and that he still refused to drink; that three of the said persons, without any provocation whatever, assaulted her son and struck him several times, and knocked him off of the rapidly moving train, and he was instantly killed thereby. It was alleged that the company, its servants, agents, and employees, were negligent as follows: “in not providing sufficient cars for the accommodation of the passengers of the train, and in not providing sufficient seating capacity for all passengers on the train; in permitting drunken, riotous, and disorderly passengers to be upon the train; in not restraining drunken, riotous, and disorderly passengers from interfering with the peace, comfort, and safety of petitioner’s son; in not restraining the said drunken, riotous, and disorderly passengers from committing an assault upon petitioner’s son, and through said assault knocking him from the train.” The jury, after hearing the evidence, returned a verdict in favor of the defendant, and the judge granted the plaintiff a new trial. This being the first grant of a new trial, the question to be de-' termined is whether or not the evidence demanded the verdict.

(a) The jury were authorized to find that the plaintiff’s son was found beside the railroad-track, dead, with bruises about his head; the doctors disagreed (or perhaps we should say did not testify in accord) as to the kind of instrument that likely made the wound. For the purposes of this case it may be conceded that the jury were authorized to find that the deceased came to his death by falling off the train while a passenger thereon, and that the presumption of negligence, as provided by the Civil Code (1910), § 2780, was raised.

(6) The presumption raised by section 2780 is a rule of evidence and not a presumption of law, and may be rebutted, either by the testimony of the plaintiff or by that of the defendant.

(c) The presumption raised by section 2780 is raised only as to the specific acts of negligence alleged in the plaintiff’s petition as the proximate cause of the injury alleged. The presumption is not raised with respect to negligence (if there be such) which is not pleaded. See Georgia So. &c. Ry. Co. v. Thornton, 144 Ga. 484 (87 S. E. 388), and cit.

(d) The evidence for the plaintiff, (and it may here be stated that the defendant offered no testimony) disproved every act of negligence alleged by the plaintiff which could have been the proximate cause of the homicide. Indeed, the only deduction that can be drawn from the evidence is that there is no foundation in point of fact for any of the plaintiff’s allegations of negligence. Since the plaintiff must rcover upon the specific acts of negligence pleaded, if she recovers at all, the verdict in favor of the defendant was demanded. It was error to grant the motion for a new trial.

Judgment reversed.

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


text:
    11116.
    HERBENER & SON v. CUERO COTTON OIL & MANUFACTURING COMPANY.
    Decided July 14, 1920.
    Rehearing denied July 28, 1920.
    The evidence showed a binding contract between the parties, and a breach thereof by the defendant. The court (sitting by consent without the intervention of a jury) did not err in refusing to award a nonsuit, or in rendering a verdict for the plaintiff. None of the rulings upon the pleadings or the admissibility of evidence shows cause for a new trial. (Luke, J., dissents.)
    Action on contract; from Fulton superior court—Judge Pendleton. October 21, 1919.
    Application for certiorari was denied by the Supreme Court. Cuero Cotton & Manufacturing Company sued Herbener & Son for a sum of money alleged to have become due by reason of the breach of a certain contract. The judge of the superior court, who by agreement tried the case without the intervention of a jury, rendered a judgment in favor of the plaintiff; and to that judgment and the refusal to award a. nonsuit, and to certain rulings upon the pleádings and the admissibility of evidence, the defendant excepted. The evidence before the court is substantially as follows: Reid represented Kohl & Company, who were brokers. He opened up negotiations with Herbener & Son looking to the sale of linters, and telegraphed to them as follows: “December 6, 1916. Offer subject to being unsold 500 clean mill runs, 7% cts. f. o. b. mill. Texas common points January. Your privilege inspection interstate rules. Rush answer by telegraph here quick.” Herbener replied: “Dec. 6, 1916. Telegram received. We accept 500 January 7% cts. clean mill runs. Can use additional. Confirm.” Reid replied: “Dec. 6, 1916. Confirm five hundred clean millrun January shipment at seven one quarter.cents per pound f.o.b. cars Cuero Cuero certified weighers weight govern Cuero Cotton Oil (Company) sellers conditionally that you accept now on my inspection which made November sixth and personally found every bale to be clean mill-run about one hundred sixty pound cut fairly bright and absolutely free from foreign substance. Stop wire me here before ten A. M. Thursday.” Herbener & Son confirmed as follows: “Dec. 7, 1916. Night letter received and purchase confirmed.” The plaintiff on December 9, 1916, wrote to Herbener & Son as follows : “ Enclosed copy of letter is self-explanatory. We addressed a letter to you at Atlanta recently, but got your name on the envelope incorrect, and herewith hand you copy of said letter' in case you have not already received the original. We will appreciate it if you will forward us shipping instructions by telegraph at once in accordance with copy of letter herewith enclosed.” The letter referred to and enclosed in the foregoing letter was dated December 7, 1916, and was as follows: “This confirms sale to you of five hundred (500) bales of clean mill-run linters at 7Vi cts. per pound f. o. b. Cuero, January shipment, certified Cuero weights to govern. We have just received a telegram from Mr. Reid, of H. S. Kohl & Company, confirming this sale, and saying that you had accepted his inspection of Nov. 6th. This lint has been stored in the compress warehouse for the past two months, and was seen by Mr. Eeid on his last trip to Cuero, at which he pronounced the same excellent stock. Under the terms of the contract you have until the 5th of January in which to give us shipping directions. However, we are anxious to get this lint out immediately, if possible, so as to stop warehousing and insuring charges, and if you will give us shipping instructions on this, we will be glad to load the same out to you in the next 10 days, drawing draft on you payable January 5th, without exchange. Awaiting your wire, which will be appreciated, we beg to remain,” etc. On December 9, 1916, the plaintiff wrote to Kohl & Company as follows: “We are in receipt of yours of the 7th inst., enclosing contract number 1250 between us and J. H. Iierbener & Son of Atlanta, which is satisfactory, -with the exception that you omitted to say in same that shipping instructions were to be furnished by not later than Jan. 5th, and sworn Cuero weights to govern. We are signing this contract, inserting these changes, and sending a copy of this letter to the buyer with request that if not satisfactory, to wire us on receipt of this.” A copy of this letter was also sent to the defendant. The contract referred to was as follows: “Duplicate Contract No. 1250. New Orleans, Da., December 7th, 1916. To Cuero Cotton Oil & Mfg. Co., Cuero, Texas. Gentlemen: We have this day sold for your account, as agreed between you and our Mr. Eeid, to J. H. Herbener & Son, Atlanta, Ga. Quantity: five hundred bales (500) of your linters. Price seven and one-quarter cents (7%c) per pound f.o.b. cars Cuero, Texas. Terms: Sight draft attached to B/L. Swoi-n Cuero weights to govern. Quality: (Seller agrees to deliver and buyer agrees to accept the 500 bales personally inspected by our Mr. E. T. Eeid at Cuero on Nov. 6th.) Shipment January 1917. Shipping instructions to be furnished by not later than Jan. 5th. Brokerage: 25c per bale to be paid by seller. In accordance with Interstate Cotton Seed Crushers Association rules. Bales to be put in press box 27 x 54 inches. This contract is performable ai Cuero, Tex., in all respects. Subject to the rules of :...................... Yours very truly, H. S. Kohl & Co., by H. S. Kohl. Accepted ................ Buyer. Accepted: Cuero Cotton Oil and Mnfg. Co. Seller. Per Thornton Hamilton, Mgr. Please sign and return at once.” The words underscored were written in ink; the rest of the contract was in printing and typewriting. The pen-written parts were in the same handwriting as the signature, "Cuero Cotton Oil and Mnfg. Co. Per Thornton Hamilton, Mgr.” Kohl & Company, on December 11, 1916, wrote to Herbener & Son'as follows: “We are sending you enclosed duplicate contract No. 1250 properly signed by the sellers covering purchase for your account of 500 bales of clean mill runs from Cuero, Texas. The mill did not return the original as we had requested, but they retained same for their files.” With this letter was enclosed the contract set out above. Upon receipt of this letter Herbener & Son wrote Kohl &■ Company, declining to accept this contract, and pointed out the change in the contract and agreement as understood by them. Kohl & Company wrote to the plaintiffs of Herbener & Son’s refusal to accept the contract, and suggested that they take the matter up direct with Herbener & Son. In the meantime Kohl & Company wrote to, Herbener that they were satisfied that some arrangements could be made as to one of the terms in the contract as changed by the plaintiff, and advised Herbener that one of the other terms of the contract as altered ought to be more satisfactory to him than, the original agreement. In compliance with Kohl & Company’s suggestion, the plaintiff wrote to the defendant as follows: "Keferring your letter 15th. Kohl. Insertions made changed contract in no important essential, and insertions not binding on you until approved. We waive same and stand strictly on broker’s contract. If it is your intention cancel trade, wire if you will consent immediate arbitration before Texas Association, of which we are both members.” The defendant then wrote to Kohl & Company as follows: "Referring to your letter, in which you state we should have telegraphed Cuero before cancelling the contract, we beg to state that we have not cancelled the contract, we have only failed to confirm their altered contract. Instead of our telegraphing them, it was Cuero’s duty to telegraph us before they altered the contract, but as the market was up at that time, we suppose that they did not feel that it was necessary. They are the people that should have done the telegraphing, and not we. You know as well as we 'do that this is no time to discuss the terms on which linters were bought, two or three weeks after the purchase. We were perfectly willing to confirm a straight contract at the time, but we are certainly not willing to carry out the contract now, and we do not believe that you would.” There was further evidence showing that the plaintiff demanded of Herbener & Son that they abide by the contract made with Eeid, and notice was given by the plaintiff to the defendants that the Enters would be sold for his account, and damages would, be asked.
    TJpon the trial it was admitted that Kohl &• Company were brokers and were treated and dealt with as-such by both parties.

      C. T., L. C. & J. L. Hopkins, for plaintiffs in error.

      Smith, Hammond & Smith, contra.
   Luke, J.

(After stating the foregoing facts.) The opinion of the majority of the court is as follows: “We do not think that the formal written contract which the defendant refused to sign contained any material variations from the 'telegraph contract’ which had been previously agreed to by both parties. Conceding, however, for the sake of the argument, that it did, the telegraph contract had already been agreed to by both parties and was valid and binding upon both, and the plaintiff’s effort to vary it by the suggested changes was without avail and did not amount to a repudiation of it, and the contract stood as previously agreed to by both parties. The evidence plainly'showed a breach of that contract by the defendants, and the judgment for the plaintiff was not only authorized but demanded. It follows that the court did not err in refusing to award a nonsuit or in rendering a judgment for the plaintiff. The court’s rulings upon the pleadings and the admissibility of evidence show no material error, especially since, by consent, the judge was sitting without the intervention of a jury, and in such a case 'the niceties of the law touching the admissibility of evidence before a jury are of little weight.’ ”

The writer’s’ view of the case is as follows: The first and controlling question to be considered is whether there was a binding contract between the plaintiff and the defendants. Did the defendants accept a contract the like of which the plaintiff understood its broker had agreed to for it with the defendants. It is a well-settled principle that the agent must act for his principal within the scope of his authority. The principal (the plaintiff), immediately upon its agent furnishing the written terms of the contract of sale, made alterations and amendments to the contract, and advised its agent that such alterations and amendments were necessary, by stating that the contract was all right with the exception of such amendments and changes. The letter referred to only two exceptions, but the contract itself carried three material changes. The contract as prepared with such alterations and changes was the only contract that the plaintiff accepted in writing. The defendants never accepted it, and in my opinion are not bound by it until they do accept it. It is clear to my mind, as stated in Kohl’s letter to the plaintiff when the contract was enclosed and before it was altered, that the writing expressed what Herbener & Son and Keid understood the contract was to be. It is also clear that the plaintiff did not so understand it. It is clear, therefore, that the minds of Herbener & Son and of the plaintiff did not meet as to the terms, and the fact that Herbener & Son were telegraphed by the plaintiff that the changes were immaterial and would be waived could not act as a mandamus which in effect would then require their acceptance of the contract. In other words, the plaintiff could not forward a contract with certain terms in it for acceptance by the defendants, and, after the defendants’ refusal so to accept, waive, certain of its conditions and demand an acceptance. In fact there was no contract between the plaintiff and the defendants until acceptance by the defendants of the contract as sent to them by the plaintiff. When the agent of the plaintiff sent to it the contract, which did not express the terms as understood by the plaintiff, a ratification could have been had of the acts of the agent, by accepting the contract that the agent had entered into. Instead of there being a ratification, there was a repudiation, and such repudiation was evidenced by the alterations and changes made by the plaintiff. As contended by the plaintiff, they may not have been so very material, and as suggested by the broker, in his opinion, they may have been advantageous, but the defendants had the right to select the terms upon which they were willing to trade. I do not think the evidence authorized the judgment. See Florida Midland & Georgia Railroad Co. v. Varnedoe, 81 Ga. 175 (7 S. E. 129); Candler Investment Co. v. Cox, 4 Ga. App. 763 (62 S. E. 479).

Judgment affirmed.

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