text:
    7750.
    CITY OF ATLANTA v. SCIPLE.
    1. Each ground of a motion for a new trial should be complete within itself, or rendered so by exhibits attached thereto. Where the admission oí evidence is complained of it must affirmatively appear that specific objections were made thereto at the time it was offered, and the evidence itself must be set out literally or in substance.
    2. Tax returns as contained in the tax-receiver’s digest, while in the nature of admissions, are not conclusive as to the value of the property returned; and when such returns are introduced as evidence to show contradictory statements of the value of property by the person making the returns, he should be allowed to show in rebuttal the circumstances under which the returns were made; the weight of the testimony, under all the facts, to be determined by the jury. “
    3. Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted.
    4. Where a municipality, by changing the grade of a street, makes it necessary for an owner of property abutting thereon to incur expenses in adjusting the building on the property to the new level of the street, it is proper to admit in evidence the cost of such work, not as an independent item of special damage, but as a circumstance to throw light upon the general question as to the diminution of market value.
    5. Where checks are given in payment for material necessary for certain work, and the cost'of the work must be shown, the checks, when properly identified, are admissible as a part of the evidence to show the cost of the work.

      6. What is customary or usual for property owners to do in the construction of their buildings in one part of a city is not material or relevant evidence in determining the duty of a property owner in a different part of the city, as to the adjustment of his building to the new level of the street, caused by grading.
    7. When considered in connection with the entire charge, there is no error in the excerpts therefrom, complained of in the motion for new trial.
    Decided April 5, 1917.
    Action for damages; from city court of Atlanta—Judge Eeid. June 34, 1916.

      J. L. Maijson, 8. D. Heivlett, for plaintiff in error.

      Reuben R. Arnold, contra.
   Bloodworth, J.

Sciple brought suit against the City of Atlanta, alleging that the city had damaged him in the sum of $35,-000, because of facts briefly stated as follows: that he owned on Whitehall street in said city three pieces of property, on one of which was located a brick building known as 136 Whitehall street, and on the other lots a large two-story brick building known as Nos. 134, 136, 138 Whitehall street; that the city lowered the grade of said Whitehall street, and that the work in lowering the grade began about October 15, 1913, and lasted until about May 1, 1914, the street being closed in front of said building in the meantime; that in lowering said grade the plaintiff’s property was left high and inaccessible; that the lot on which was located the larger building was left approximately seven feet above the street, and the street and sidewalk in front of the other was cut down about ten feet, and he was forced to build a sub-story to put the stores on a level with the street as left after the grading; that the total rental value of said stores before the grading commenced was $635 per month, and that “during the time of said grading the street was entirely closed to vehicle traffic and almost' entirely closed to foot .traffic, and the transaction of any business was rendered, impossible, rendering the rental value of said stores nothing at all to the plaintiff.” By amendment the plaintiff alleged that prior to the grading, the market value of his property was $130,000, and after the grading only $105,000, and that he was damaged in the sum of $35,000 by the depreciation in the market value thereof.

The City of Atlanta denied liability, and alleged: that at no time was the street closed to traffic; that the stores thereon remained open, and that the stores of the plaintiff were not rented either before or after said work, either because of price or location, and that the loss of rental was not due to the change of grade ; that the change of grade increased'the rental value of said property-thirty per cent. A trial resulted in a verdict for plaintiff for $3,500. Thereupon the City of Atlanta filed a motion for a new trial, which was overruled, and the case is before this court for review.

1. In addition to the general grounds the motion for a.new trial contains about a dozen special grounds, and in these is included unnecessary, and irrelevant matter, the insertion of which required considerable time and labor on the part of counsel, and in addition placed upon this court the necessity of searching through a great mass of “entirely needless phraseology” to discover the points sought to be made by the motion. In this connection attention is called to the case of Gate City Gas-Light Co. v. Farley, 95 Ga. 796 (23 S. E. 119), where the Supreme Court ruled that grounds of a motion for a new trial in which there are “tedious recitals of irrelevant facts, statements taken from the stenographic notes of the trial, and other like things, to such an extent as to bury the point under a great mass of entirely needless phraseology and thus render it difficult, if not impracticable, for this court to ascertain what was really the ruling or other conduct of the court complained of, will not be considered.” While the motion for a new trial must not contain “tedious recitals of unnecessary facts,” yet a ground of a motion for a new trial should be complete in itself, or rendered so by exhibits attached to the motion. Accordingly, it has been repeatedly ruled that a ground based upon the admission or rejection of evidence presents nothing for adjudication when the evidence is not set forth therein, either literally or in substance, nor attached as an exhibit to the motion. Patterson v. Campbell, 136 Ga. 664 (71 S. E. 1117); Odum v. Rutledge, 16 Ga. App. 350 (85 S. E. 361). It must affirmatively appear also what specific objections were made to the testimony at the time it was offered. Carlisle v. Ragan-Malone Co., 17 Ga. App. 435 (87 S. E. 608); McFarland v. D. & W. R. Co., 127 Ga. 97 (56 S. E. 74); Cooner v. State, 16 Ga. App. 539 (85 S. E. 688); Avery v. Armour Fertilizer Wks., 17 Ga. App. 458 (3) (87 S. E. 698); Cochran v. Bugg, 131 Ga. 588 (62 S. E. 1048). “This court sits to review rulings of the trial courts, and it will not pass upon questions on which, no ruling has ever been made by the trial judge.” Bourquin v. Bourquin, 110 Ga. 440 (35 S. E. 710).

2. In the first ground of the amendment to the motion for a new trial it is alleged that the court erred “in admitting the following question and answer: Q. You were shown your tax returns for the State and county. Did you have any part in fixing the assessment by the city? A. No. In this ground it is stated that it was testified by plaintiff and admitted by defendant that the property was assessed by the city assessors “on a basis of sixty per cent, of its value, without any participation therein by the taxpayer.” It having been admitted on the part of the city that the property was thus assessed, it could not have been harmful to the city for the court to allow the plaintiff, a taxpayer, to testify that he had nothing to do in fixing the assessment of the city. Battle v. Braswell, 107 Ga. 128 (32 S. E. 838). In the case of W. & A. R. Co. v. Tate, 129 Ga. 526 (59 S. E. 266), the fourth headnote is as follows: “The return of a taxpayer, as contained in the tax-receiver’s digest, may be considered by the. jury on the issue of the value of the property therein included, as an admission. Such admission is not conclusive evidence of the value of the property. An instruction which does not in terms state that the jury may consider such return as in the nature of an admission, but states that they may consider it as a circumstance of the ease, will not require the grant of a new trial.” And in the opinion the court says: “The tax returns are in the nature of an admission by the taxpayer of the value of his property. It is not a conclusive admission of the true value of the property returned, but the admission in the return may be considered by the jury in estimating the value of the property.” By the tax returns in this ease it is sought to show contradictory statements made by the plaintiff as to- the value of his realty, and, could the tax returns be considered as an admission made by him, he ought at least be allowed to* show the circumstances under which the returns were made, the weight of the testimony under all the facts to be judged of by the jury. R. & D. R. Co. v. Kerler, 88 Ga. 39 (13 S. E. 833); Phoenix Insurance Co. v. Gray, 113 Ga. 424 (38 S. E. 992). In passing it might not be out of place to remark that should the tax returns of many of our “good men and true” be conclusive as to the value of their property,, numbers of fortunes in the State would shrink and shrivel even as a ripe plucked fig when exposed to a summer sun.

3. Grounds 2, 8, and 10 of the motion for new trial complain of the admission of evidence as to the length of time the street was torn up and obstructed, and business interfered with. A part of this evidence,—the testimony as to the length of time the street was closed on account of the work,—was admissible, but only for the purpose of fixing the time when the grading was commenced and when it was finished; this to afford 'a basis of comparison between the market value of the property at said times. Had separate and proper objections been made to the portions of evidence relative to the conditions of the streets and' loss of business, it would have been the duty of the court to exclude the evidence, but this was not done. No effort was made to separate the chaff from the wheat. Ray v. Camp, 110 Ga. 818 (3), 820 (36 S. E. 242); Barnard v. State, 119 Ga. 436 (3) (46 S. E. 644). ‘In ruling on the evidence the judge said: “I have held that it is competent to show the fact as to the length of time of the work. I have ruled that way because it is necessary to show the period, as you show any fact as to time.- It is immaterial as to the cause of it, and the jury will not pass on that and any injuries that anybody suffered on that account.” In the motion for a new trial it is stated that “all this evidence was admitted by the court under the general rule that this evidence would be admitted for what it was-worth to il- ■ lústrate the time when the work was completed.” In charging the jury relative to this evidence the judge said: “ The city would not be liable for any depreciation of value, if there was such, due to any other cause than the grading. The city is liable, if at all, only for such damage, if any, that its grading and work caused; and it was to enable you to decide this single question that all this evidence was admitted—-as to the cost of the property, cost of readjusting property to new grade, rental value of this and other near-by property before and during and after the grading, description of the property and street, comparison with other property and streets, sales of other property near by, offers to buy property in this vicinity, and the opinion of witnesses as to value of this and other near-by property for sale and for rent, and all such evidence as you have listened to in this ease. This is the evidence, as stated to you, that you are to consider in passing on. the sole question submitted to you. You are not bound to take the opinion of witnesses as conclusive on the subject of value. You will-take such evidence-into consideration and give it such weight as you think it is entitled to, along with all the evidence in the ease.” The judge clearly instructed the jury in his charge that the sole measure of damage was the difference between the market value of the property before the work began and after it ended.

4. Grounds 3, 4, and 7 of the amendment to the motion for a new trial are each based upon the court’s allowing a witness to testify as to the cost of adjusting the old building to the street after grading. Counsel for the plaintiff in error insist that this is not the proper measure for estimating the damage in such cases as this; that the real measure is “the difference in the market value of the property injuriously affected before and after the change of the grade of the street.” While this is true, this measure may be based on several elements, one of which, as in the present case, is the expense necessary to adapt the building to the level of the street, caused by the grading. The decisions in the cases of Mayor &c. of Macon v. Daly, 2 Ga. App. 355 (4), 359 (58 S. E. 440), and City Council of Augusta v. Schrameck, 96 Ga. 426 (23 S. E. 400, 51 Am. St. E. 146), are directly in point. In the Schramech case it was held: “The measure of damage to abutting property caused by raising the grade of a street is the difference between the market value of the property before and after the improvement; and upon the trial of an action for the recovery of such damages, it is competent to give in evidence the necessity of filling in the lot and raising the building thereon, with the probable cost of such' work, not as furnishing a reason for the allowance of such cost as an independent item of special damage, but as a circumstance throwing light upon the general question of the diminution of market value.” Thus it will be seen that the evidence objected to was properly admitted, not for the purpose of fixing the measure of damage nor as an independent item of special damage, but simply to throw light upon the question of the diminution of the market value.

5. The 5th ground of the amendment to the motion for a new trial alleges error in permitting the plaintiff to be asked the following question, and to give the answer thereto: “Q. Now I will ask you about those checks. A. Yes, they were given for materials that went into that building, the sub-basement.” This was objected to on the ground that the witness could not state generally that he paid bills, without producing the bills. The evidence is not inadmissible for the reason urged. It does not appear from the evidence that the witness paid any “bills.” This was but a part of the evidence of the witness to show the cost of adjusting the building to the grade. Relevant evidence is not rendered inadmissible because of failure to introduce in connection therewith other evidence.

6. The evidence referred to in the 6th ground , of the amendment to the motion for a new trial is clearly irrelevant. That it was “customary and usual” to put basements under stores near “Five Points” was not proper evidence to be considered by the jriry in determining the damage to the plaintiff’s property in this case, especially as the motion does not show where “Five Points” is located relatively to the stores of the plaintiff, whether far or near. It is, therefore, not made to appear by the record how this evidence related to or could have affected the issue involved, and there was no error in rejecting it.

7. The 9th ground complains that “the court erred in excluding the evidence of the witness Boynton, a witness for the defendant, who was asked the following question: Q. What was the cost of the expense of. this grading of Whitehall street from Mitchell down to, say, Garnett,—the grading, the replacing of the surface and readjusting it to the street as it was at that time, so far as you can recall, including the labor furnished by the county?” It does not appear from the motion that this question was answered. Such evidence was not admissible for the reason urged, to wit: “to show the magnitude of the work, that it was not a scab job, and that it cost about $30,000.”

8. While a part of the excerpt from the charge complained of in the 11th ground was inaptly expressed, it was but a slight inaccuracy,. and, when considered in connection with the whole charge, was not harmful to the cause of the defendant.

9. The portions of the charge complained of in the twelfth and thirteenth grounds are not subject to the criticisms made upon them by the plaintiff in error.

10. There was ample evidence to support the verdict.

Judgment affirmed.

George and Jenldns, JJ., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    7788.
    Herring v. Crawford et al., receivers.
    Decided April 5, 1917.
    Complaint; from city court of Cairo—Judge Willie. July 20, 1916.

      8. P. Gain, for plaintiff in error.

      M. L. Ledford, Roscoe Luke, Claude Christopher, contra.
   Jenkins, J.

Usury was pleaded to a suit on a notei payable to the Farmers State Bank for the principal sum of $124, dated October 2, 1914, due December 1, 1914, and bearing interest from maturity at eight per cent, per annum, and the defendant, who was the only witness, testified as.follows: “I gave the Farmers State Bank a note for $124 in October or November of 1914. On the day I gave note I borrowed $118 or $119. There were some odd cents. The amount I borrowed did not exceed $119. I do not know the exact amount.” Asked, on cross-examination, if he did not borrow as much as $121, the witness answered that he did not. “It was not more than $119. I can not tell the exact amount. I do not know how much I got. I only made the one loan from them. ” Reid, that the testimony was of sufficient certainty to establish the fact that a sum not exceeding $119 was received by the defendant from the plaintiff in the loan. This holding is not in conflict with the ruling made in the case of Equitable Mortgage Co. v. Watson, 116 Ga. 679 (43 S. E. 49). In that case nothing positive as to the amount received was testified to. Since the note does not purport to recite what amount was deducted for interest prior to its maturity, and the defendant offered the only testimony upon this subject, the judgment for the amount sued for was erroneous,' and it' is' ordered that the judgment of the court below be affirmed on condition that the plaintiffs shall, within twenty days after the remittitur from this court is made the judgment of the court below, write off from the judgment the usury therein, so that the judgment shall include only the principal sum of $119, with interest thereon at eight per cent, per annum from the date of the note. If the plaintiffs shall fail to comply with this condition, it is ordered that the judgment be reversed.

Judgment affirmed, on condition.

Broyles, P. J., and Bloodworih, J., concur.


author: Jenkins, J. Jenkins, J.

text:
    7835.
    Longley v. Bank of Parrott.
   Jenkins, J.

1. (a) Where a note is signed by a wife as principal and by the husband as surety, the presumption of law is that she gives it on her own contract and for value, to charge her separate property. Perkins v. Rowland, 69 Ga. 661; Love v. Lamar, 78 Ga. 323 (3 S. E. 90); Temples v. Equitable Mortgage Co., 100 Ga. 503 (28 S. E. 232, 62 Am. St. R. 326); Jones v. Weichselbaum, 115 Ga. 369 (41 S. E. 615).

(5) Where the creditor, at the time a debt is created, really intends in good faith to extend the credit to the wife, and not to the husband, and the consideration of the loan passes legally and morally from the creditor to the wife, and where the writings then executed are such as purport to bind her for the debt as her own, then, whatever may be the private understanding between the wife and the husband, in which the creditor is not concerned and in which he has no interest, as to the disposition-by the wife of the proceeds of the loan so received by her, the writings are to be treated as embracing the true substance of the contract. Nor does it matter in such case that the negotiations relating to the loan are in fact all had through the husband, where the transaction otherwise appears to be the'bona fide and voluntary contract of the wife. Schofield v. Jones, 85 Ga. 816, 819 (11 S. E. 1032); Nelms v. Keller, 103 Ga. 745 (30 S. E. 572) ; Johnson v. Leffler Co., 112 Ga. 670 (50 S. E. 488) ; Gross v. Whilely, 128 Ga. 79, 82 (57 S. E. 94); Third National Bank of Columbus v. Poe, 5 Ga. App. 113 (62 S. E. 826).

Decided April 5, 1917.

Rehearing denied April 24, 1917.

Complaint; from city court of Dawson—Judge Edwards. August 36, 1916.

W. E. Gurr, B. B. Jones, for plaintiff in error.

Yeomans & Wilkinson, contra.

2. Where, in a suit on a note signed by the wife as principal and by the husband as surety, it appeared that the proceeds of the loan were used in carrying on a farm owned by the wife, and she contended that her true relation to the contract was one of suretyship only, and that she received no benefit from the loan, and where it appeared from the evidence that the wife’s account to which the loan was credited by the lending bank was carried upon its books under the name of “Mr. and Mrs. Ered Longley,” by virtue of the following written order to it, signed by the wife, to wit: “Mr. Carter: Please change my account, Mr. & Mrs. Ered Longley, and honor cheeks drawn-by either of us, and oblige, Mrs. Fred Longley. October 8th, 1910;” and where it also appeared that checks drawn on such account by both the husband and the wife were recognized and paid by the bank, it was proper and relevant to admit in evidence the bank’s books of account, for the purpose of throwing light upon the question as'to whom the consideration of .the loan actually passed from the' bank. Maynard v. Maynard, 12 Ga. App. 279, 283 (77 S. E. 109).

3. The evidence was such as might warrant the verdict rendered, and the court did not err in refusing the grant of a new trial.

Judgment affirmed.'

Broyles, P. J., and Bloodtoorth, J., concur.

ON MOTION EOR REHEARING.

Jenkins, J.

In a motion for rebearing, by the plaintiff in error, it is contended that the law of special agency constitutes the controlling principle in this case. In this motion it is urged that the order which has been quoted, by which the wife gave direction to the bank as to the manner in which her account should be carxied, and in which the bank was directed to honor checks drawn thereon when signed either by herself or by her husband, did not constitute further authority, whereby the husband was authorized to bind the wife in borrowing money. We do not understand that such is the contention in the case. From the record it appears that the note sued on was personally signed by the wife as principal. The order referred to and the bank’s books of account were properly admitted in evidence as indicating the good faith of the lender in its contention that the loan was really made to the wife, and that the consideration thereof actually passed from it to her.

Upon consideration of the grounds of the motion, a rehearing is denied.


author: Bloodwokth, J.

text:
    7906.
    Thomasville Live Stock Company v. Burney.
   Bloodwokth, J.

1. The motion to dismiss the bill of exceptions in this case is denied, because: (a) The fund for distribution was raised by the levy of the execution of the plaintiff in error, and the rule and notice thereof served by the sheriff on the plaintiff in error made him a party. Civil Code (1910), § 5348; Crawford v. Williams, 76 Ga. 792; Morrison v. Ponder, 45 Ga. 167 (3) ; Mattox v. Barry, 136 Ga. 183 (2), 186 (71 S. E. 155); DeVaughn v. Byrom, 110 Ga. 904 (1), 906 (36 S. E. 267); Orr v. Webb, 112 Ga. 806 (38 S. E. 98). (6) The case having been passed upon by the judge without the intervention of a jury, a motion for a new trial was not necessary. Gleason v. Traynham, 111 Ga. 887 (36 S. E. 969).

2. The Thomasville Live Stock Company was the owner of a mortgage on realty. It did not foreclose the mortgage, but obtained a general judgment on the debt secured by it, and the property embraced in the mortgage was sold by the sheriff. Burney, another creditor, who had a judgment younger than the mortgage but older than the judgment of the Thomasville Live Stock Company, brought a rule against the sheriff for distribution of the funds realized from the sale of the property. In answer thereto the sheriff admitted the levy and sale, and alleged that the judgment of Burney was older than the judgment of the Thomasville Live Stock Company, but that the latter judgment was based upon a mortgage older than the judgment of Burney, and asked the.court’s direction in the distribution of the fund. The record does not show that the Thomasville Live Stock Company ever filed any pleading, equitable or otherwise, in answer to the rule; nor was it shown that the mortgagor consented to the sale of the entire estate, or that there was anything in the pleadings or the evidence to show that the entire estate was sold or brought its value, and there was no al- • legation of insolvency of the defendant, or that the holder of the younger judgment was otherwise remediless. The fund was therefore properly awarded to the older of the two judgments. “When the claimant alleges and proves such facts only as entitle him to strict legal rights, the court will enforce only his legal rights, and these according to the strict rules of law; but when he alleges and proves such facts as entitle him to equitable relief, the court will enforce his equitable rights.” Berrie v. Smith, 97 Ga. 782, 786 (25 S. E. 757). See also Baker v. Gladden, 72 Ga. 469; National Bank v. Exchange Bank, 110 Ga. 692 (36 S. E. 265); DeVaughn v. Byrom, supra; Hughes v. Mt. Vernon Bank, 4 Ga. App. 23 (60 S. E. 809); Bryan v. Madison Supply Co., 135 Ga. 171 (4) (68 S. E. 1106).

Decided April 5, 1917.

Money rule; from city court of Thomasville—Judge W. H. Hammond. September 30, 1916.

The motion to dismiss the writ of error was on the following grounds: (1) “As to the plaintiff in error, Thomasville Live Stock Company, the only exception taken, to the final judgment is that it is erroneous in that the judgment of the Thomasville Live Stock Company, under which sale was made, being on notes secured by mortgage recorded prior to the judgment of Burney, was entitled to the fund in preference to Burney’s judgment. This is not a sufficient assignment of error to the ■ judgment, although error is formally assigned thereon, so far as the Thomasville Live Stock Company is concerned, there being no written pleadings filed by said Thomasville Live Stock Company; and plaintiff.in error has no right to carry this ease to the Court of Appeals, no written pleadings having been filed by' it, making it a party thereto; nor is there any order allowing Thomasville Live Stock Company to adopt the sheriff’s answer, and nowhere is it shown, that they adopted his answer as their own, and the sheriff is the only party entitled to carry the same to this court. (2) Because no motion for a new trial was ever made.”

Merrill & Grantham, for plaintiff in error.

Titus, Dekle & Hopkins, W. I. MacIntyre, contra.

Judgment affirmed,.

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


text:
    7955.
    Drew v. Cone.
   Jenkins, J.

1. Where a petition shows that the plaintiff entered into a contract with the defendant whereby the plaintiff, as broker, was to receive a commission of $1,000 for his services in procuring a purchaser of certain corporate stock belonging to the defendant, on terms which, upon being first submitted to the defendant, should be declared acceptable to him, and where, from the plaintiff’s evidence, it appears that under such an arrangement the plaintiff submitted to the owner an offer of purchase, whereby it was proposed that the stock be exchanged for certain real estate, but that the offer .was declined by the owner, and the only acceptance shown was based upon the condition that the broker should receive his compensation from the purchaser; held, that under the provisions of the contract of employment and under the facts as here outlined, the commission claimed was not earned upon the theory that the broker had furnished a purchaser ready, able, and willing to buy, and who had actually offered to buy, on the terms stipulated by the owner. Civil Code (1910), § 3587; Gray v. Lynn, 139 Ga. 294 (77 S. E. 156); Phinizy v. Bush, 129 Ga. 479 (59 S. E. 259).

Decided April 5, 1917.

Complaint; from city court of Macon—Judge' Guerry. September 26, 1916.

Julian F. Urquhart, for plaintiff.

Martin & Martin, for defendant.

2. On such a trial it was not error to award a nonsuit, although the defendant owner of the stock may have subsequently effected an exchange of the property through different persons, where it further appeared that the plaintiff broker had not been given the exclusive sale of the stock, and there was nothing to indicate that the negotiations between the broker and the purchaser had not been terminated. The terms submitted by the broker never having been agreed to by the owner, this case differs from the'case of Fenn v. Ware, 100 Ga. 563 (28 S. E. 238). It is distinguished from Hill v. Wheeler, 2 Ga. App. 349 (58 S. E. 502), and Graves v. Hunnicutt, 8 Ga. App. 99 (68 S. E. 558), in that the contract of employment in both of those cases specified the terms of sale, and' in both of them there was evidence to show that the negotiations between the broker and the purchaser had not been terminated at the time the owner interfered and,' solely by means of a reduction of price, consummated the trade of which the broker was otherwise the procuring cause. In the instant case no such question of good faith on the part of the owner is raised.

Judgment affirmed.

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


text:
    7965.
    Jones v. Donaldson, deputy sheriff, for use, etc.
   Jenkins, J.

Where, upon the levy of a fi. fa. on personal property, the defendant executes a forthcoming bond, in which the quantities of the property levied on are set forth and á valuation of each article of property is stated and specifically agreed upon by the parties to the bond; and where the defendant in fi. fa., by reason of the levying officer’s acceptance of tlie bond, acquires a substantial benefit under it, he will not thereafter, when sued on the bond, be permitted to deny the existence of the property, by entering a plea to that effect, alleging that the levying officer did not measure the articles so enumerated, but only guessed at the quantities as therein stated; nor should he be permitted to deny the valuations of the property as set out and agreed to by the terms of such bond. Stroud v. Hancock, 116 Ga. 332 (42 S. E. 496).

Decided April 5, 1917.

Action on bond; from city conrt of Statesboro—Judge Proctor. October 12, 1916.

Anderson & Jones, for plaintiff in error.

Brannen & Booth, contra.

While, under section 6043 of the Civil Code of 1910, in such a suit the measure of damages is the value of the property at the time of the delivery, with interest thereon, up to the amount due the plaintiff in execution, with interest and cost, and not the penal sum named in the bond (Hatton v. Brown, 1 Ga. App. 747 (6), 750, 57 S. E. 1044), yet where the bond signed by the defendant in fi. fa. and under which he obtained possession of the property sets forth in detail the agreed valuations of the specific properties therein enumerated, the defendant, in the absence of special facts alleged to the contrary, should be bound thereby. The court did not err in sustaining the demurrer to defendant’s plea.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    7982.
    Powers v. Brunswick-Balke-Collender Company.
   Broyles, P. J.

1. There was some evidence which authorized an inference that the goods in question were shipped “order-notify;” If the goods were so shipped, then, under the other facts of the case, the plaintiff below had title to them at the time of the execution of the retention-of-title contract.

2. A corporation can not exist before its charter has been granted. Until the breath of life has been breathed into it by the law it is nothing— not.even a corpse; for a corpse is the remains of something that .once ' lived, and an embryo corporation has never even lived. Such an embryo corporation can not be a principal in any transaction, and, of course, not being a principal, can not have agents. In this case, the corporation not then being in existence, E. H. Spiro, the individual who attempted to act as its agent in purchasing the property in question, could not legally so act, and, under such circumstances, it must be held that the words following his name in the receipt and invoice, to wit, “in behalf of Macon Billiard Parlor,” are mere descriptio person®, or surplusage. It was a legal impossibility for a nonexistent corporation to become the purchaser of the property. An attempted sale .of the personal property to such a “corporation,” made to an individual who claims to be an agent of the corporation but who gives his individual promissory notes for the balance of the purchase-price of the property, and who signs his individual name to a retention-of-title contract (which is duly and properly recorded), is in law a sale to the individual, and, until the purchase-price is paid, the title remains in the vendor, and the latter, by a suit in trover, can recover the property or its value from an innocent third person who has possession of the property and who purchased the same at a sheriff’s sale, the goods having been sold as the property of “The Macon Billiard Parlors,” a corporation not in existence at the time of the execution of the retention-of-title contract. This is true although there may have been an attempt in the first instance to sell the property to the individual as the agent of the embryo corporation, and although part of the purchase-price thereof was paid from a general fund put up by this individual and the other persons who were petitioning for the grant of the corporation’s charter. The corporation not then being in existence, this fund was not the money of the corporation, but merely the money of the individuals. The fact that a charter was granted to the corporation shortly after the retention-of-title contract had been duly and properly recorded (in Spiro’s name), is immaterial, the controlling question in the case being, under the law: Was the property sold to the “Macon Billiard Parlors,” the- corporation not then in existence, or to E. H. Spiro, the individual who purported to buy the property as agent of such “corporation,” but who gave his individual notes for the balance of the purchase-price of the property, and who individually signed the retention-of-title contract for the purchase of the property? See Florida Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411 (2), 416 (71 S. E. 734) ; Greenfield v. Stout, 122 Ga. 303 (50 S. E. 111); McCandlass v. Inland Acid Co., 112 Ga. 291, 294 (37 S. E. 419); Atkinson v. Brunswick-Balke-Collender Co., 144 Ga. 694 (87 S. E. 891).

Decided April 5, 1917.

Trover; from city court of Macon—Judge G-uerry. November 20, 1916.

Hardeman, Jones, Parle & Johnston, for plaintiff in error.

W. 0. Turpin Jr., contra.

3. Upon the trial the plaintiff elected to take a money verdict for the value of'the property sued for, and there was evidence which authorized the finding of the trial judge, sitting by consent without the intervention of a jury, as to the value of the property. While the burden is upon the plaintiff to establish such value by a preponderance of the evidence, the finding 'of a jury, or of the court sitting without the intervention of a jury, upon this question, will not be disturbed by this court where there is any evidence to support it.

4. The special grounds of the motion for a new trial are merely amplifications of the general ground that the verdict is contrary to law and the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenlcins and Bloodworth, JJ., concur.


text:
    8019.
    Pace v. Tarver, sheriff.
    Decided April 5, 1917.
    Rehearing denied April 24, 1917.
    Money rule; from city court of Albany—Judge Clayton Jones. November 16, 1916.

      L. L. Ford, Pottle & Hofmayer, for plaintiff.

      W. H. Bwrt, Peacock & Gardner, for defendant.
   Broyles, P. J.

1. This was a money rule by W. W. Pace against a sheriff, and- the traverse to the answer of the sheriff raised no issue of fact, and accordingly there was nothing to be submitted to a jury, as provided by Civil Code (1910), § 5347. The only issue raised by-the traverse was one of law, as to whether the levy by the sheriff of the attachment fi. fa. of the Amerieus Grocery Company was legal, and, under the facts of the ease, the court did not err in striking the traverse as being insufficient in law.

2. After the traverse of the answer of the sheriff was stricken, the court did not err in entering up judgment directing the distribution of the fund in the hands of the sheriff as prayed for in his answer.

(a) That part of the traverse which specifically denied the sheriff’s entry of levy of the attachment fi. fa. of the Amerieus Grocery Company was in reality a traverse to the entry, and should have been made at the first' term after the notice of such entry, and moreover it could not have been made then by any one except the defendant in the attachment proceedings, who was Chris Baker, and not the plaintiff in error. Civil Code (1910), § 5566. Lamb v. Dozier, 55 Ga. 677; Griffith v. Shipp, 49 Ga. 231; Evans v. Smith, 101 Ga. 86 (28 S. E. 617) ; Rawlings v. Brown, 15 Ga. App. 162 (82 S. E. 803); Turpie v. Cox, 18 Ga. App. 424 (89 S. E. 492).

3. It does not appear from the record that the sheriff’s answer to the rule issued against him was verified. This omission, however, was an amendable defect, and, it not appearing that this point was made at the trial, the plaintiff in error will be held to have waived the irregularity. Kelly v. Murphy, 135 Ga. 515 (69 S. E. 826); Black v. Weaver, 7 Ga. App. 507 (67 S. E. 389).

Judgment affirmed.

Jenleins and Bloodworth, JJ., concur.


text:
    8043.
    Lewis, adm’r, v. Savannah Chemical Company.
   Broyles, P. J.

The record in this case is in the following state: The paper purporting to be the brief of evidence sets forth, first, the testimony of the defendant, and immediately under this testimony is the following approval of the trial judge: “The above and foregoing is approved as a true and correct brief of the oral and documentary evidence introduced on the trial of the case, and the same is ordered filed, as a part of the record thereof, Aug. 31,' 1916. At chambers. Walter W. Sheppard, Judge, S. C. A. J. C.” Following this approval of the trial judge is another purported brief of evidence, which contains the oral testimony of the attorney for the plaintiff, but this last “brief" is not approved or authenticated in any manner by the trial judge, and therefore can not be considered by this court. Neither can we consider the three pages of purported documentary evidence which are set forth in the record, but not attached as exhibits, four or five pages after the second purported brief of evidence, and which are not approved or authenticated in any manner by the trial judge.

Decided April 5, 1917.

Complaint; from Bryan superior court—Judge Sheppard. August 31, 1916.

W. B. Hewlett, for plaintiff in error.

The evidence of the defendant, as set forth in the approved brief of evidence, did not authorize the verdict rendered for the plaintiff, and accordingly a new trial must be granted.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


author: Broyles, P. J. Broyles, P. J.

text:
    8058.
    BANK OF NORWOOD v. CHAPMAN.
   Broyles, P. J.

1. The answer was not subject to general demurrer. The special demurrer interposed, not having been filed at the first term, could not legally be considered. By failing to object at the time fixed by law for that purpose, the plaintiff waived any defect in the form of the answer, and the court did not err in overruling the demurrer and in refusing to strike the answer. Civil Code (1910), § 5628; Calhoun v. Mosley, 114 Ga. 641 (2), 642 (40 S. E. 714); Green v. Hambrick, 118 Ga. 569 (5), 572 (45 S. E. 420) ; Brown v. Georgia, Carolina & Northern Ry. Co., 119 Ga. 88, 91 (46 S. E. 71) ; Ford v. Fargason, 120 Ga. 708 (48 S. E. 180); Potts-Thompson Co. v. Capital City Tobacco Co., 137 Ga. 648 (74 S. E. 279) ; Watson v. Parian Paint Co., 138 Ga. 621 (75 S. E. 608); Smith v. Ice Delivery Co., 8 Ga. App. 767 (70 S. E. 195). It matters not that the trial judge may have (as contended in the brief of counsel for plaintiff in error but not disclosed by the record) overruled the special demurrer and the motion to strike the answer on their merits. His ruling being correct, it is immaterial for what reason it was made.

2. There was no error in the admission of the evidence set out in the 1st and 9th grounds, respectively, of the amendment to the motion for a new trial. Such evidence was admissible for what it was worth, and it was for the jury to say whether it, in conjunction with the other evidence in the case, was sufficient to bind the plaintiff bank.

3. A ground of a motion for a new trial must be complete within itself. The 2d, 3d, 4th, 5th, 6th, 7th, and 8th grounds of the amendment to the motion for a new 'trial complain of the admission of certain documentary evidence, but, such evidence not being set forth therein, either literally or in substance, under repeated rulings of the Supreme Court and of this court'these assignments of error can not be considered.

Decided April 5, 1917.

Rehearing denied April 24, 1917.

Complaint; from Warren superior court—Judge Walker. May 20, 1916.

L. D. McGregor, fox plaintiff. M. L. Felts, for defendant.

4. The 10th ground of the amendment to the motion for a new trial is in substance a recapitulation, or omnibus complaint covering practically all, of the objections made to the evidence which was admitted, and to the rulings of the court thereon, which had been separately assigned as error in the preceding grounds of the motion. In the state in which this ground of the motion is presented it presents no question for consideration.

5. Under the facts of the case it was not error for the court to refuse to give the requested instructions set forth in the 11th, 12th, and 13th grounds of the amendment to the motion for a new trial.

6. - This was a suit brought by the Bank of Norwood upon a note signed by J. W. Chapman and made payable to “myself or order,” and apparently indorsed by the maker.’ The defendant, Chapman, having filed a verified plea of non est factum as to the indorsement of the note, the court did not err in “repeatedly” instructing the jury that “the burden was upon the Bank of Norwood to show, by a preponderance of the evidence, that J. W. Chapman indorsed the note on the back.” While it was held in Emory v. Smith, 54 Ga. 273 (2), that “slight evidence is sufficient to carry the issue of non est factum to the jury,” yet, under repeated rulings of the Supreme Court and of this court, the effect of the plea of non est factum is to put the burden upon the' plaintiff to prove by a preponderance of the evidence the execution .of the contract sought to be enforced.

7. There is no merit in the 15th ground of the amendment to the motion for a new trial, which excepts to the charge as a whole.

8. The verdict for the defendant was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenlcms (mid, Bloodtoorth, JJ., concur.

Broyles, P. J.

It is strongly contended by the able counsel for the plaintiff in error, in his motion fór a rehearing, that, under the ruling of the Supreme .Court in Emory v. Smith, 54 Ga. 273, and Jewell v. Walker, 109 Ga. 241 (34 S. E. 337), the trial judge erred in this case in instructing the jury that “the burden was upon the Bank of Norwood to show, by a preponderance of the evidence, that J. W. Chapman indorsed the note on the back.” In the Emory case, supra, it was held, that “On the trial of an issue of non est factum, very slight evidence'of the execution of the paper is sufficient to justify the judge in submitting the whole question to the jury;” and in the opinion by McCay, J., it was

ON MOTION ROE REHEAEING. said: “We think there was no error in the judge’s permitting the paper to be read. He did not by this decide it was proven; the issue was for the jury, and but very slight evidence was necessary to put the paper before them. Indeed, when the1 plea of non est factum is the issue, we are not prepared to say that the judge has anything to do with even a prima facie case.” In the Jewell case, supra, the third headnote is as follows: “In answer to a plea of non est factum it is only necessary for the plaintiff to make out a prima facie case of the execution'of the instrument sued on, in order to authorize its admission in evidence.” In the opinion in that case, written by Simmons, C. J., it is said: “The plaintiff tendered in evidence the note sued on. It seems from the record that the defendant filed a plea of non est factum. This plea put the burden upon the plaintiff to prove the execution of the instrument sued on, before it could be admitted in evidence. The plaintiff assumed this burden and proved by a witness the signature of the defendant to the note. It appeared from the note that it had been originally dated May 15, and changed to May 25, 1894. This witness, who testified as to the genuineness of the signature of the defendant, also gave it as his opinion that the figure '2 was in the handwriting of the defendant. This certainly made out a prima facie case which authorized the judge to admit the note in evidence, and it was for the jury to say, under proper instructions from the court, which were given in this case, from the whole evidence, whether the execution of the note had been fully proved” (italics ours).

In our judgment neither of these cases bears out the contention of counsel. In the first case cited the ruling is merely to the effect that on the trial of the issue of non est factum slight evidence of the execution of the paper is sufficient to carry the issue to the jury, but, as was said by Chief Justice Simmons in the language just quoted from the Jewell case, this issue should be submitted to the jury “under proper instructions from the court;” and in the latter case the original, record on file in the office of the clerk of the Supreme Court shows that the instructions by the court to the jury, which were characterized by the Supreme Court as proper instructions upon this subject, were as follows: “You observe that the pleadings make two issues for you to determine. The first is whether or not this is the act of the defendant so far as the note is concerned, and secondly, whether the deed was given to secure this note. As you may find these issues to be, your verdict must necessarily follow. It is the duty of the court to instruct you as to the burden of proof in the case, as to how you shall weigh and value testimony, as well as to instruct you as to the form of your verdict. The burden of proof in the case is on the plaintiff, that is, it is incumbent upon the plaintiff, Mrs. Wallcer, to satisfy you, by a preponderance of the evidence, that her contention is the true one. She is not required, to furnish testimony wholly freeing your mind from doubt, but a preponderance and weight of evidence” (italics ours).

It seems clear that the decisions in these two cases relied on by counsel for the plaintiff in error are not opposed to the ruling in the instant case. While “slight evidence”’for the plaintiff may make a prima facie case, sufficient to prevent a nonsuit and to carry it to the jury, it by no means follows, when this “slight evidence” for the plaintiff is met and combated by evidence introduced by the defendant, that the plaintiff is then entitled to prevail before the jury. The plaintiff’s slight evidence -may be sufficient to carry him safely to the jury, but when, after reaching the jury, this evidence is attacked by evidence from the defendant, then, befqre the plaintiff is entitled to prevail, it is incumbent upon him to bring up reinforcements in the shape of a preponderance of the evidence. If counsel’s contention were carried to its logical conclusion, it would mean that in any case where there was sufficient evidence to avoid a nonsuit, no matter what rebutting evidence had been presented by the defendant, it would be erroneous for the judge to instruct the jury that before the plaintiff was entitled -to recover he must prove his contentions by a preponderance of the evidence. This would be in the very teeth of that universally recognized principle of law, that the plaintiff has the burden of proving his ease by a preponderance of the evidence.

We are firmly of the opinion that where a verified plea of non est factum has been filed, although slight evidence as to the execution of the paper in question may prevent a nonsuit and carry the case to the jury, yet when this slight evidence has been met by evidence to the contrary, then the burden is upon the plaintiff to prove the execution of the paper by a preponderance of the evidence, and that a charge to this effect is not erroneous.

Rehearing denied.

Jenkins and Bloodworth, JJ., concur.


text:
    8102.
    Lexington Brewing Company v. Smith.
    Decided April 5, 1917.
    Complaint; from Dade superior court—Judge Fite. March 22, 1916.
    • Whitaker & Foust, Payne & Hale, for plaintiff.
   Broyles, P. J.

The controlling question in this case was whether the consideration of the notes sued on was the sale of intoxicating liquors, and the renting of a saloon and fixtures for the purpose of retailing' such liquors, in the city of Chattanooga, Tennessee, in violation of the laws of that State. There was an acute conflict in the evidence as to this question, and therefore the court erred in directing a verdict for the defendant.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


text:
    8110.
    Bishop v. Calhoun National Bank.
    Decided April 5, 1917.
    Complaint; from Gordon superior court—Judge Fite. August 31, 1916.

      F. A. Cantrell, Maddox, McCamy & Shumate, for plaintiff in error. Starr & Paschall, contra. .
   Broyles, P. J.

1. The instructions excepted to, although subject to some slight criticism when standing alone, do not require a new trial when considered in the light of the charge of the court as a whole, which was a full and fair presentation of the issues of the case and of the law applicable thereto.

2. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Luke, J.

text:
    8027.
    Naylor v. Chickamauga Quarry and Construction Company.
    Decided April 9, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. December 19, 1916.
    The petition as amended alleges, that the plaintiff was employed by the defendant company as timekeeper and keeper of stores at the work performed by the company on a certain warehouse which was being constructed. The defendant was constructing the concrete floor of the warehouse and had complete charge of the same. On September 4, 1916, the plaintiff, in the performance of his duties, was going from the defendant’s office into a compartment in the northwestern section of the building, on the concrete floor constructed by and in the charge of the defendant, over the path or way usually traversed by the employees of the defendant, when he stepped upon a'forty-penny nail sticking through a piece of board lying with its point upward on the concrete floor, and received injuries described. The nail was negligently and carelessly left on the floor by the defendant in a place where the plaintiff was required to go in the performance of his duties. The plaintiff was not warned by the defendant that the nail was on the floor. A piece of paper about four inches wide and five inches long had blown up against the nail and board, so that, coming upon it from the direction from which the plaintiff came, he could not see the nail or board, but it was apparent from the other side. He was free from fault, he was where he had a right to be, he was in the performance of the duties of the defendant at the place of work provided for him by the defendant, he did not know the nail was sticking up on the floor, and he did not have equal means with the defendant of knowing .this fact, and could not by the exercise of ordinary care have known of it. The defendant was charged by law with furnishing him with a safe place of work, and, if there were dangers, of warning him what such dangers were. The defendant left the nail, or caused it to be left, on the floor, and by the exercise of ordinary care could have discovered it. A reasonable inspection of the premises would have disclosed the nail, but the defendant' did not make an- inspection of the premises to learn of dangers to the employees. The defendant was negligent, (1) in leaving the nail on the floor in such manner that it would injure the plaintiff or his fellow laborers, (2) in not causing the nail to be removed from the floor so as to keep the plaintiff.and his fellow laborers from being injured, (3) in not inspecting the premises so as to discover that the nail was so exposed on the floor, and (4) in not warning the plaintiff that the nail was on the floor and dangerous to him in going over the floor in the discharge of his duties. Each of these acts of negligence concurred in causing the injuries complained of.
   Luke, J.

The petition did not set forth a cause of action, and the court did not err in sustaining the demurrer. Cowart v. Southern Marble Co., 144 to. 254 (87 S. E. 282); Wadley Southern Ry. Co. v. Durden, 142 Ga. 361 (82 S. E. 1055).

Judgment affirmed.

Wade, C. J., and George, J., concur.

The defendant demurred to the petition on the ground that no cause of action was set forth, and by special demurrer made the contentions, among others, that the petition did not affirmatively allege facts showing why the plaintiff did not have equal means with the defendant of knowing the facts referred to; and that the petition did not allege why the premises should be inspected or what employee failed in the duty of inspection. The court sustained the general demurrer, as well as these special grounds, and dismissed the petition.

David 8. Afkinéon, for plaintiff,

cited: Austin v. Appling, 88 Ga. 54 (2); Duke v. Bibb Mfg. Co., 120 Ga. 1074; Moore v. Dublin Cotlon Mills, 127 Ga. 609 (3); Woodson v. Johnstone, 109 Ga. 454; Eagle & Phenix Mills v. Herron, 119 Ga. 389 (1); Pierce v. Seaboard Air-Line Ry., 122 Ga. 664; Southern States &c. Co. v. Helms, 2 Ga. App. 308 (1b); Green v. Babcock, 130 Ga. 469 (2); King Mfg. Co. v. Walton, 1 Ga. App. 403 (3); Ga. Railroad v. Hunter, 12 Ga. App. 294; Chenall v. Palmer, 117 Ga. 106 (4); Burns v. Ocean Steamship Co., 84 Ga. 709.

Osborne, Lawrence & Abrahams, for defendant,

cited: Cowart v. Southern Marble Co., 144 Ga. 254; Wadley Southern Ry. Co. v. Durden, 142 Ga. 361; 3 Labatt, Master and Servant, 2466.


text:
    8056.
    Pitman v. McKeon.
    Decided April 9, 1917.
    Eviction; from Taliaferro superior court—Judge Walker. February 28, 1916.

      J. A. Beazley, for plaintiff in error.

      Hawes Cloud, contra.
   Luke, J.

1. A dispossessory warrant and affidavit may be amended by adding to and making more full the description of the property from which it is sought to evict the defendant. Civil Code (1910), § 5706. In this ease the court did not err in allowing the amendment, or in overruling the motion to dismiss the proceeding.

2. There is no merit in the assignment of error' upon the excerpt from the charge of the court.

3. The evidence authorized the verdict in favor of the plaintiff.

Judgment affirmed.

~Wade, G. J., and George, J., concur.


text:
    7770.
    INTERNATIONAL HARVESTER COMPANY OF AMERICA v. MORGAN et al.

    On the trial of a suit on an unconditional promissory note which recites as its consideration the purchase of described personal property, but which does not purport to integrate the terms of sale in pursuance of which the note was given, a prior written agreement of the parties, governing the terms of the sale, is admissible to rebut a plea setting up the breach of a verbal warranty, even though the written agreement be not set forth in the plaintiff’s pleadings.
    Decided April 9, 1917.
    Complaint; from city court of Springfield—Judge Shearouse. March 13, 1916.

      H. P. Cobb, for plaintiff in error. Paul B. Seabroolc, contra.
   Jenkins, J.

The International Harvester Company of America brought suit in the city court of Springfield against E. G. Morgan, as maker, and H. L. Elzey,. as guarantor, on three promissory notes for the purchase-price of one two-roll Deering shredder, specified in the notes. The answer of the defendants admitted the execution and delivery of the notes sued on, and that the plaintiff was entitled to recover as prayed, unless the defendants should sustain the defenses therein set forth, which were as follows: (1) That the notes represented the price of a shredder sold by the plaintiff to the defendant Morgan, and that when this machine “was sold to defendant it was specially warranted by plaintiff to be well made and of good material, and to successfully perform the work for which it was designed, 'and especially the work which defendant then and there had in view, concerning which plaintiff was duly informed.” (2) That the defendant was unfamiliar with shredders, as plaintiff knew, and in making the purchase relied wholly upon these representations. (3) That the machine failed to work. (4) That Morgan could not shred his crop, which he had gathered relying on these representations, nor could he procure another shredder, and thereby was damaged in the sum of $181. Upon the trial of the case the plaintiff introduced in evidence the notes sued on, and closed. On behalf of the defendants E. G-. Morgan testified as follows: He bought the shredder in the spring of 1912 from the Harvester Company. “U. L. Elzey was the local agent at Clyo of this concern, but another man came down representing them, a Mr. Satterwhite.” Satterwhite recommended and warranted that the machine would do good work and shred the crop. Morgan was induced to buy by reason of these representations, and, relying on them, cut his crop. He told the agent he-had no experience with a shredder. The machine did not shred, and the stuff came out in such large chunks as to be of no value for food. Morgan could get no other shredder and was obliged to use this machine, and consequently lost 60% of his crop. On cross-examination the witness testified: “I also signed the order for the machine dated the 12th day of April, 1912, on which Mr. Elzey placed his name. The machine was a total failure, and I have not used it since, but have it on hand yet, have never returned it.” H. L. Elzey testified: “I am one of^the defendants in this case and was the local agent for the International Harvester Company at Clyo and in this county. I am familiar with this transaction and it is just as Mr. Morgan has stated. The machine does not do the proper work. . . That order for machine was signed by E. G. Morgan, and that is my signature near the bottom.”

The plaintiff, in rebuttal, offered in evidence the following order and warranty, which had been signed about a month prior to the execution of the notes:

“Order for machine. To U. L. Elzey, Town Clyo, State Ga., twp. Clyo, County Effingham, State of Georgia, hereby orders subject to your approval and to all conditions of agreement and warranty printed on the back hereof, to be shipped to E. G. Morgan, Clyo, on or about May 1, 1912, one two-roll shredder, complete. Upon delivery of the machine the undersigned .agrees to pay you $210.00 cash and execute and deliver to you approved notes as follows: $70.00 payable on first of Nov. 1913, $70.00 payable on first of Nov. 1914, f. o. b. Clyo. Said notes to draw interest at the rate of 7 per cent, per annum from date of installation until maturity, and 8 per cent, per annum from maturity until paid. ' • [Signed] E. G. Morgan.”

“Order dated tíre 12th day of April, 1912. Approved at-April 13, 1912, by U. L. Elzey. Order taken by E. W. Satterwhite. Give each purchaser a duplicate of this order.”

On the back appears the following: “Warranty and agreement: The vendor hereby warrants the machine herein ordered to be well made, of good material, durable with proper care, and when properly operated to perform successfully the work for which it is designed. If, within one year from date of purchase, a part proves defective, the new part to replace defective one will be furnished at factory, on receipt of part showing defect. Keeping and continuing to use the machine without giving any notice of an alleged defect, or if defect has been remedied, shall constitute an unconditional acceptance of the machine and operate as full satisfaction of the warranty herein given. If upon trial with proper care the machine fails to work properly, the purchaser shall immediately give written notice to the vendor, stating wherein the machine fails, shall allow reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to operate it. If the machine can not then be made to work well, the purchaser shall immediately return it to said vendor, and the price shall be refunded, which shall constitute a settlement in full of the transaction. This express warranty excludes all implied warranties, and none has authority to change or modify this warranty and agreement. -This order is not subject to countermand, and the receipt of a copy of the entire agreement is hereby acknowledged by the purchaser. It is expressly agreed that the title to the property herein ordered shall not pass to the purchaser until full payment therefor shall, have been made, whether notes have been given for the purchase-price thereof or not.”

This order and warranty, when offered in evidence, was excluded by the court, on objection. Counsel for the plaintiff then asked that the testimony of the defendants in regard to the statements and representations of the salesman at the time and prior to the purchase of the machine be ruled out; and this motion was overruled. The jury found against the plaintiff, and returned a verdict in favor of the defendant Morgan, for $100, and judgment was entered accordingly. A motion for a new trial having been refused, error is assigned thereon.

It is the contention of counsel for the plaintiff thát the court erred, (1) in excluding from evidence the order given for the purchase of the shredder, containing the express warranty gov-' erning the sale, and (2) in allowing the defendants to introduce testimony showing an express verbal warranty of the machine at the time of its purchase. The suit was one.in simple form on promissory notes which were unconditional and unambiguous. Neither the original petition nor any amendment offered makes any reference to the other written contract or agreement between the parties, containing the express and limited warranty. The defendants’ plea admitted the execution of the notes, pleaded failure of consideration, and sought affirmative relief against the plaintiff; and it is contended by the defendants that the warranty as limited by the written instrument, not having been originally set forth in the petition, nor having been pleaded, by amendment after the filing of the defendants’ answer, was properly excluded from the evidence. It is rightly conceded by the defendants that where, in the sale of machinery, there is an express warranty as to quality, and by the terms of the warranty liability of the seller is predicated upon conditions which must be performed by the buyer, the seller will not be held liable on the warranty thus limited, unless the buyer complies with the conditions therein set forth. See International Harvester Co. v. Dillon, 126 Ga. 672, 675 (55 S. E. 1034); Brooks Lumber Co. v. Case &c. Co., 136 Ga. 754, 755 (72 S. E. 40); McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778); Case Threshing Machine Co. v. Cook, 7 Ga. App. 631, 635 (57 S. E. 890). It is now settled in this State that the maker of a promissory note, which recites that its consideration is the purchase of described personal property, but does not purport to integrate the sale contract, may, in defense to a suit on the note by the seller, plead as failure of consideration a breach of a contemporaneous oral warranty. In a clear and convincing discussion of this question by Presiding Justice Evans in the case of Pryor v. Ludden & Bates So. Music House, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267), the following language is used: “The essential thing to be ascertained in a suit upon a promissory note given for a particularly described chattel, in order to exclude parol evidence, is whether or not it varies the terms of the note, or, if the agreement has been integrated in the note, whether it varies the terms of the contract as expressed in the note. Ordinarily a promissory note given for the purchase-price of an article is intended to contain only the obligation of the vendee, and the obligation is to pay the vendor a definite sum of money at a definite time. The vendor’s, obligation has no place in a purely negotiable instrument given by the vendee; and in a suit upon a promissory note given for,the price of personal property, which does not purport to disclose the contract of sale, evidence of parol warranty of the property and a breach of the warranty is admissible.” See Bond v. Perrin, 145 Ga. 200 (88 S. E. 954), s. c. 18 Ga. App. 179 (89 S. E. 79). Therefore, omitting for the moment any consideration of the effect of the written warranty proffered by plaintiff, there can be no question but that the defendant would have the right to set up and prove the express verbal warranty relied upon by him. See also Toller v. Hewitt, 12 Ga. App. 496 (77 S. E. 650). In the instant' case the plaintiff undertakes tó disprove the terms of an alleged verbal warranty, by putting in evidence, without pleading it, a written, though not contemporaneous, agreement, governing the warranty, and which, according to the evidence, relates to and constitutes a part of the contract of sale.

It is clear that the notes sued upon, being complete and unconditional in form, were sufficient in themselves to form the basis of a suit; but whether, upon the filing of the defendants’ plea admitting liability subject to the defense set up therein, in which also affirmative relief was sought against the plaintiff, it became necessarily incumbent upon the plaintiff to plead the terms of the written warranty, relied upon by it as a part of the contract of sale, is a question which to our minds is not altogether without difficulty, and is one upon which we have been unable to find direet and positive authority in any decision in this State. Under our rules of pleading, no reiolication is required. Civil Code (1910), § 5651.' Special pleading in this State was at an early date abolished; and as was stated by Judge Powell, in the case of Smith v. Hodges, 8 Ga. App. 785 (70 S. E. 195), “Under the practice in this State, even though the defendant files affirmative pleas, the plaintiff is not obliged to file a replication in order to introduce evidence tending to contradict or to avoid the matter set up in the pleading.” It was stated in the case of ’ Tifton, Thomasville & Gulf Ry. Co. v. Butler, 4 Ga. App. 191 (60 S. E. 1087), that “Evidence which tends to establish any part of the plaintiff’s case, or to dispute any of the defenses thereto, is admissible as against the objection that it is irrelevant.” When a complete cause of action is set forth by the pleadings, it is not ordinarily necessary that the plaintiff shall therein anticipate and avoid defenses. Horton v. Murden, 117 Ga. 72 (43 S. E. 786); Moss v. Chappell, 126 Ga. 196 (54 S. E. 968). Even in criminal cases this doctrine has been recognized. Blocker v. State, 12 Ga. App. 81 (76 S. E. 784). But in the instant ease the evidence offered by the plaintiff to dispute the defense set up can be relevant only upon the theory that the written order constitutes a part of the contract itself; and it is contended that because the order is not pleaded, it. can not be admitted for the purpose, of proving it as a part of the contract. In support of this contention counsel for the defendants cites the case of Beasley v. Huyett & Smith Mfg. Co., 92 Ga. 273 (18 S. E. 420), which is in some respects very similar to the instant case. There, in a suit upon a note, an unpleaded written contract appears to have been introduced by the plaintiff, without objection, which contract contained stipulations of warranty, including those requiring notice to plaintiff of defects. In the second headnote of the decision in that case it is said: “A plea alleging a partial failure of consideration on account of defects in the engine and piping . . is no defense, the plea not alleging that any written notice of these facts had been given, and no point being made that the written contract introduced by the plaintiff in evidence, which contract contained the warranty and the stipulations in regard thereto, was not set out in the plaintiff’s pleadings. Had this point been made, that contract, although in evidence, could not have been considered upon a motion to strike the plea.” In the opinion Chief Justice Bleckley, speaking for the court, said: “The plea of partial failure of consideration, not alleging that any written notice was given of the defects therein mentioned, was no defense to the action, testing it by the contract containing the warranty which was in evidence. ■ No point seems to have been made that it would not be so tested for the’ reason that the contract was not set out in the declaration. Had this point been made, of course the declaration, alone could have been regarded in testing the plea on motion to strike it.” It will be seen that the question actually involved in the instant case was not under consideration by the court when the opinion from which we have just quoted was written. In that case.the intimation now relied upon by the defendants in the case was based upon the opinion stated as to Avhat would have been sufficient as a plea when weighed in the light of the allegations contained in the petition. Thus the court in that case intimated that when- called upon so to do, the validity of the answer must be weighed and considered solely in the light of the petition to which it is responsive. The admissibility of testimony Avas not the question with which the court was in fact dealing.

The case of International Harvester Co. v. Dillon, supra, was a suit upon notes, and presented a like defense under a contract of sale identical in the contract in the case at bar; and Avhile the rule therein 'announced, as already indicated, effectively disposes of the right to plead a breach of warranty unless the terms and provisions of the warranty are substantially complied with on the part of the defendant, still that case, as reported, does not disclose, nor does the original record therein disclose, that objection was made to the introduction of the order containing the expressly limited warranty. It may be remarked, howeArer, that noAvhere in the opinion rendered in that case is it intimated that if a timely objection had been urged to the introduction of the order, the decision rendered might have been different. In Case Threshing Machine Co. v. Cook, supra, we find no light upon the exact point raised, it not being indicated there whether the order Avas declared upon, or whether any objection was made to its introduction.

By section 5789 of the Civil Code of 1910 it is provided that all contemporaneous writings are admissible to explain each other; and it is not there intimated that in order for such to be admitted in evidence, even though they may govern and control the contract, they must be pleaded in the plaintiff’s petition. While the order for the purchase in the instant case was given prior to the time the note sued on was signed, still, being given in the same transaction and therefore constituting a part of the contract of sale, we can not think that the rule announced by Justice Evans in Pryor v. Ludden & Bates Southern Music House, supra, which would admit parol evidence of an express warranty in defense to a suit on a note, would exclude a prior written contract expressly governing the terms and stipulations of the warranty agreed upon, where, as in this case, such terms are not integrated within the note itself. In the case of Marietta Savings Bank v. Janes, 66 Ga. 386, it was held: “Where a promissory note did not express within itself the entire contract between the parties, but the remainder thereof was contained in letters written by them in connection with the making of the note, such letters were admissible in evidence, in a suit between the maker and the one who took the note after maturity;” and while in that case it in fact appears that the contents of these letters were substantially set forth in the petition, still the ruling just stated has been quoted and unqualifiedly approved by the Supreme Court in Byrd v. Campbell Printing Press &c. Co., 94 Ga. 41, 49 (20 S. E. 253), and in McCreary v. Gewinner, 103 Ga. 528, 532 (29 S. E. 960). See also Martin v. Monroe, 107 Ga. 330, 333 (33 S. E. 62). Section 4368 (1) of the Civil Code of 1910 provides that “if a part of a contract only is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.” It is not there required that the part of the contract not embraced within the terms of the note must be specially pleaded. The law, by this code section, simply directs that parol evidence shall be allowed to make complete the terms of such an incomplete agreement. If, then, the evidence necessary to speak the entire terms of a contract which are evidenced in part by a note given in pursuance thereof be in writing, should such evidence on that account be excluded? We think not. Eather is it our opinion that such written testimony, being of a higher character than evidence by parol, would not only be proper, but that when so admitted the terms of such instrument must govern to the exclusion of parol testimony wliieb would seek to vary or contradict it. Civil Code (1910), § 5752.

We are therefore of the opinion that the 'court erred in excluding the evidence embraced in the order of purchase, and that the plaintiff is accordingly entitled to a new trial under his motion as made.

Judgment reversed.

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


author: Bloodworth, J.

text:
    7765.
    McConnell v. Dolph.
    Decided April 3, 1917.
    Rehearing denied May 3, 1917.
    Complaint; from city court of Floyd county—Judge Nunnally. July 25, 1916.

      Denny & Wright, for plaintiff in error. Harris & Harris, contra.
   Bloodworth, J.

This case was submitted to the judge without the intervention of a jury; the evidence, as shown by the agreed statement of facts, authorized the judgment, and no error was committed in overruling the motion for new trial.

Judgment affirmed.

Broyles, P. J., and JenJcins, J., concur.


author: George, J.

text:
    7975.
    Greenwood Theatrical Agency v. Alkahest Lyceum System.
   George, J.

1. The petition (omitting the formal parts) alleged: that Greenwood and Spiegelberg, doing business under the name and style of the Greenwood Theatrical Agency, were residents of the City of Atlanta, Pulton county, Georgia; that the defendant's were indebted to the plaintiff in the sum of $175; that on a date named the plaintiff and the defendants entered into a written contract, a copy of which was attached to the petition as an exhibit; that in accordance with the terms of the said contract the plaintiff agreed to furnish to the defendants a certain lyceum attraction known as “The Bohannons,” during the week beginning April 10 and ending April 15, inclusive; that in accordance with the terms of the said contract the plaintiff did furnish to the defendants the attraction named; and that upon compliance by the plaintiff with the terms of the said contract the defendants became indebted to it in the sum sued for. Process in the usual form was prayed. Held: The allegations of the petition, considered in connection with the exhibit thereto, set forth a cause of action for services rendered, and it was not subject to the objections: that it failed to allege that the attraction was furnished for the full time specified, and was actually received and accepted by the defendants for the full .period specified; that the right of action, if any existed, was in the Bohannons; and that it did not disclose any authority in the party signing the contract for the plaintiff, the basis of the suit.

Decided April 5, 1917.

Rehearing denied May 3, 1917.

Certiorari; from Fulton superior court—Judge Bell. October 18, 1916.

Morris Maclcs, 8. A. Massell, for plaintiff in error.

Napier, Wright & Wood, contra.

2. The process attached to the petition was directed to “Greenwood Theatrical Agency.” Held: The court properly'allowed an amendment to the process so as to make the names of the parties appearing in the process conform to the names of the parties appearing in the petition, who were served and were in fact before the court. Civil Code (1910), § 4644; Baldwin v. McMichael, 68 Ga. 828; Neal-Millard Co. v. Owens, 115 Ga. 959, 962 (42 S. E. 266).

3. The contract declared on recited: “To avoid misunderstanding, . . neither party is bound by any agreement or understanding not appearing on the face of this agreement.” Held: There being no allegation of fraud in the execution or the procurement of the contract, the court properly admitted the evidence offered by the plaintiff, to which objection was made, and properly declined to admit the evidence offered by the defendant.

4. On the plea of failure of consideration the evidence was in conflict, but the judgment rendered in the municipal court of Atlanta without the intervention of a jury was not without evidence to support it. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


author: George, J. George, J.

text:
    7992.
    Dunlop Milling Company v. Collier.
   George, J.

1. Where a creditor entered into an agreement with the principal debtor, and the principal debtor communicated the terms of the agreement to another person for the purpose of inducing -him to become a surety on promissory notes to the creditor, and where the facts and circumstances were such as to authorize a finding, in a suit upon the notes, that the creditor contemplated that the terms and conditions of the agreement would be communicated to the surety for the purpose of inducing him to sign the notes, it was competent for the surety to show the agreement between the creditor and the principal debtor; that knowledge of this agreement was communicated to him; that he became surety upon the notes because of the existence of the agreement, and that the agreement was breached by the creditor.

2. Any act of the creditor against the principal debtor which tends to increase the risk of the surety or to expose him to greater liability will discharge the surety. Blackburn v. Morel, 13 Ga. App. 516 (79 S. E. 492); Civil Code (1910), § 3544.

Decided April 9, 1917.

Rehearing denied May 3, 1917.

Certiorari; from Fulton superior court—Judge Bell. October 16, 1916.

Smith, 'Hammond & Smith, John T. Hardisty, for plaintiff.

Hines & Jordan, Tye, Peeples & Tye, Daley, Chambers & Daley, for defendant.

3. The facts and circumstances in this case were sufficient to authorize a finding that the contract between the creditor and the principal debtor was to continue at least to the time of maturity of the last of the series of notes signed by the surety; and in view'of the rejection of the evidence indicated in paragraph 1 of this decision, the appellate division of the municipal court of Atlanta was authorized to grant the surety a new trial, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.

ON MOTION ROE REHEARING.

George, J.

We have not overlooked subdivision b of section 42 of the act creating the municipal court of Atlanta (Acts 1913, p. 168), which provides: “Should the judge decline to grant said motion for a new trial, he shall pass an order to that effect, and an appeal shall lie therefrom to the appellate division of said court upon any ground of new trial which would be a ground for new trial in the superior courts, except upon the ground: (1) that the verdict found or the judgment rendered is contrary to the evidence and the principles of equity; and (2) that said verdict or judgment is decidedly and strongly against the weight of the evidence, which excepted grounds for new trial shall not be otherwise urged than in an oral motion made at the time of the finding of the verdict or the rendition of a judgment by the court, as hereinbefore provided, and as to which excepted grounds the order denying such motion for new trial shall be conclusive, and such grounds shall not be urged upon appeal from such order, nor by writ of error.” We recognize that the appellate division of the municipal court of Atlanta, in passing upon a judgment of a judge of that court, refusing to grant a new trial in a ease tried by him, is without power to reverse his judgment and to grant a new trial upon the grounds that the verdict found or judgment rendered is “contrary to the evidence and the principles of equity,” or that the verdict or judgment “is decidedly and strongly against the weight of the evidence.” The discretion to grant a new trial upon these grounds is exhausted when the judge of the municipal court who tried the cause refuses to exercise that discretion. It is only for error of law that the appellate division of the municipal court of Atlanta can reverse the judgment refusing a new trial. It necessarily follows that the judge of the superior court, on certiorari, has no discretion to consider such grounds in passing upon the judgment of the appellate division of the municipal court of Atlanta. We were under the impression that our decision in this case could not be understood otherwise with respect to this matter.

The effect of the decision is to affirm the judgment of thé superior court sustaining the grant of a new trial by the appellate division of the municipal court for errors of law in the trial of the case, the errors complained of being the rejection of the evidence indicated in the first division of the opinion, to wit: evidence of the agreement between the creditor and the principal debtor; that knowledge of this'agreement was communicated to the surety; that the surety signed the notes because of the agreement, and that the agreement was breached by the creditor. Our opinion does not conclude the plaintiff in error on any question of fact which may exist, or which may arise in the case on a retrial. Nor will it be considered as requiring the judge of the municipal court of Atlanta to find that the creditor knew that the terms of the agreement made with the principal debtor were in fact communicated to the surety, or that it was in contemplation of the parties that such agreement should be communicated to the surety, or that the agree'ment made between the creditor and the principal debtor, as a matter of law, was to continue for any particular length of time, or that the agreement was wrongfully breached. The whole force of the decision is, that, since the facts and circumstances in the record were such as to authorize a finding, in the suit upon the notes, that the creditor contemplated that the terms and conditions of the agreement would be communicated to the surety for the purpose of inducing him to sign the notes, and since' the facts and circumstances in the record were such as to authorize a finding that the contract made between the creditor and the principal debtor was to continue at least to the time of the maturity of the last of the series of notes executed by the surety, it was error of law to reject the evidence indicated in the first division of the opinion and herein-above referred to. This evidence should have been admitted and should have been considered by the judge of the municipal court, who tried the case without the intervention of a jury. Whether the admission and consideration of this evidence will produce a different verdict upon another trial of the case is a matter entirely for the judge of the municipal court, or the jury in that court. The rejected evidence was both relevant and material upon the issues in the case, and the surety was entitled to have it admitted and considered.

Nor have we overlooked the decision in Broughton v. Joseph Lazarus Co., 13 Ga. App. 153 (78 S. E. 1024), where it was held: "Acts of the principal debtor or any other person than the creditor himself by which one is induced to become a siirety do not affect the rights of the creditor, even though the acts be fraudulent.” We recognize this to be the law, but what we hold is, that if a creditor entérs into an agreement with his debtor, and if it be contemplated by the parties that -the terms of this ágreement are to be communicated to a third person for the purpose of inducing him to become surety for the debtor, and if such agreement is in fact communicated to such third party, and he is thereby induced to become surety for the debtor, the creditor can not violate the terms of his agreement to the injury of the surety. It seems perfectly clear to us that, while neither the acts of the principal debtor, nor the acts of any other person than the creditor himself, by which one is induced to become a surety, can affect the rights of the creditor, even though the act be fraudulent, yet when the fraudulent acts of the creditor himself induce one to become a surety, the.rights of the creditor are thereby affected if such acts of the creditor tend to increase the risk of the surety or to expose him to greater liability. The creditor is not responsible for the acts of another, unauthorized by him, but he is responsible to the surety for the consequences of his own acts. We repeat, for the sake of clearness, that we do not express any opinion upon the facts. Rehearing denied.


text:
    7997.
    BANK OF DALTON v. CLARK el al.

    1. “Within ten days after the bill of exceptions is signed and certified, the party plaintiff therein shall serve a copy thereof upon the opposite party or his attorney, and, if there be several parties with different attorneys, upon each, with a return of service (or acknowledgment of service) indorsed upon or annexed to such bill of exceptions; and they alone are parties defendant in the Supreme Court who are thus served.” Park’s Ann. Code, § 6160 (1).
    2. On exception to a judgment of the court below all necessary parties, not purely nominal, must be served. Allen v. Cravens, 68 Qa. 554.
    (a) One who was a party in the proceedings in the lower court, and who is named by the plaintiff in error as one of the defendants in the bill of exceptions, is a necessary party to the bill of exceptions if he is interested in sustaining the judgment excepted to.
    3. Where a bill of exceptions “is served upon counsel of record in the case, such service shall be held to bind all parties whom such counsel represented in the trial court.” Acts 1911, p. 149; Park’s Ann. Code, § 6164 (a). This provision of the statute contains a negative pregnant that such service will not bind any party whom such counsel did not represent in the trial court.
    Decided April 9, 1917.
    Complaint; from Whitfield superior court—Judge Fite. November 37, 1916.

      F. K. McQutchen, for plaintiff.

      M. 0. Tarver, W. F. Mann, George G. Glenn, for defendant.
   Broyles, P. J.

The bill of exceptions in this case recites that the Bank of Dalton brought suit against W. J. Clark, F. W. Hix, L. F.'Clark, J. G-. McAfee, and B. L. Heartsill, and that the jury-rendered a general verdict in favor of the defendants. It appears from the record, and from the sworn motion to disiniss the bill of exceptions, and from the affidavits attached to the motion, that M. C. Tarver, as attorney, represented four of the defendants, but that he did not represent B. L. Heartsill; that on the trial HearD sill was not represented by any attorney, and that he filed no defense to the suit against him. The bill of exceptions was not served upon Heartsill, nor was such service waived. The only person served with the bill of exceptions was M. C. Tarver, who signed the following acknowledgment: “Due and legal service of the within bill of exceptions acknowledged, copy and all other or further notice waived. This 3nd day of December, 1916. M. C. Tarver, attorney for defendants.” It appearing undisputed from the record, and the verified motion to dismiss the bill of exceptions and the affidavits attached thereto, that Tarver had no authority to acknowledge service for Heartsill, and that the latter had never waived service, the bill of exceptions must be dismissed. This ruling is not in conflict with the decision in Connor v. Hodges, 7 Ga. App. 153 (66 S. E. 546), where it was held that “an acknowledgment. of service of a bill of exceptions by counsel, signing as 'attorney for defendants in error/ will be presumed to include all of the defendants in error named in the bill of exceptions. Where there are several defendants in error, and counsel, in signing the acknowledgment of service of the bill of exceptions, does not specify by name those whom he represents, and it is not made to appear that he was not authorized to represent a particular party to the cause, his authority to acknowledge service for all of the defendants in error is to be inferred from the fact that he so signed” (italics ours). The clause italicized clearly shows the difference between that case and the instant one; for here it is clearly made to appear that attorney Tarver was not authorized to represent Heartsill. Heartsill having been named in the bill of exceptions as one of the defendants in error, and the record showing that he was one of the defendants in the lower coiirt, that he was personally served by the sheriff, and that a general verdict was rendered in favor of the defendants, and counsel for the plaintiff in error having argued in his brief, among other contentions, that the verdict was contrary to law and the evidence because it was in favor of Heartsill, who had filed no defense, as well as in favor of the other defendants, such counsel will not now be heard to contend that Heartsill is not a material party to the bill of exceptions. This is true although the judgment entered up against the plaintiff for costs was in favor of the other four defendants (naming them) only, Heartsil/s name not being included therein.

Heartsill was named as a defendant in the suit in the trial court by the plaintiff itself, and, being duly served by the sheriff, as shown by the record, he was a party to the trial proceedings. He was again named by the plaintiff in error as a defendant in the bill of exceptions, and an attempt was made to serve the bill of exceptions upon him by serving an attorney who the plaintiff in error thought represented him. Under such circumstances, on the motion to dismiss the writ of error upon the ground that the bill of exceptions was not served upon Heartsill, nor service acknowledged by him or for him by another duly authorized, and where the truth of this ground appears, and the plaintiff in error then seeks to avoid a dismissal of the writ of error by alleging that Heartsill is not a necessary party to the bill of exceptions, the burden is upon the plaintiff in error to establish the truth of this contention; and, in our opinion, it has failed to do so. Under the facts stated, if Heartsill is interested in sustaining the judgment overruling the motion for a new trial, he is a necessary party to the bill of exceptions. Western Union Telegraph Co. T. Griffith, 111 Ga. 551 (36 S. E. 859); Davis v. Walters, 140 Ga. 229 (78 S. E. 838); Parrish v. Adams, 145 Ga. 1 (88 S. E. 417); Swafford v. Shirley, 7 Ga. App. 347 (66 S. E. 1022). The plaintiff in error is seeking by this writ of error not only to get rid .of the judgment entered up in favor of the other four defendants, but also to set aside the general verdict rendered in favor of all of the defendants, including Heartsill. He can not get rid of the judgment without getting rid also of the verdict upon which that judgment rests. While Heartsill has no judgment (based on that- verdict) in his favor, he has nevertheless the verdict itself. As one of the five defendants he has an undivided fifth interest in the verdict and in upholding it, and as long as that verdict stands he is protected from any further attack on the part of the plaintiff in error. That verdict stands as a barrier between him and the plaintiff in error. Grant that, in the absence of a judgment based upon it,.it is an incomplete and imperfect barrier, nevertheless, until it is removed, he can not again be shot at by the plaintiff in error. Is Heartsill, under such circumstances, interested in having the barrier remain where it is? Heartsill, be it remembered, is purely on the defensive, and wants only to be let alone; he has no desire to shoot at the plaintiff in error, and he is decidedly opposed to being shot at again by the latter; so the present situation is perfectly satisfactory to him, and he desires the protecting barrier (the verdict in his favor) to remain as it is. It follows that Heartsill is personally interested in the sustaining of the judgment of the lower court overruling the motion for a new trial, and that, therefore, he is a necessary party to the bill of exceptions.

Writ of error dismissed.

Jenkins and Bloodworth, JJ., concur.