author: Wade, O. J.

text:
    7615.
    Knight v. Forbes.
   Wade, O. J.

1. “An action for money had and received lies in behalf of the plaintiff to recover his money in the hands of a defendant who, in equity and good conscience, has no right to retain the same.” Rhodes Furniture Co. v. Jenkins, 2 Ga. App. 475 (58 S. E. 897). Such an action “needs for its support no actual contractual relation, for the law will imply a quasi-eontractual relation to uphold it, whenever the circumstances so require.” Citizens Bank of Fitzgerald, v. Rudisill, 4 Ga. App. 37 (60 S. E. 818).

2. A fair construction of the suit as originally brought makes it an action of assumpsit' against the defendant individually, and not as agent, for money had and received which the plaintiff delivei-ed to the defendant for the purpose of obtaining for the plaintiff a policy of insurance from a company for which the defendant was an agent; and the amendment, setting up an agreement, made by the defendant in his individual capacity, to return the money if the insurance company declined to issue a policy by a certain time, did not set up a new and distinct cause of action from that set forth in the original petition.

Decided February 16, 1917.

Rehearing denied February 26, 1917.

Complaint; from city court of Valdosta—Judge Cranford. June 23, 1916.

The petition of Forbes against Knight contained in substance the following allegations: At the times hereinafter named the defendant was engaged in the insurance business' and represented the Columbian National Life Insurance Company, as soliciting agent. On August 14, 1914, plaintiff gave to defendant an application to that company for a $5,000 twenty-year K. & C. term policy of insurance on his life, and paid to defendant the first premium thereon, amounting to $66.30. Plaintiff was duly examined by physicians representing the said company and they advised that he was a proper subject for insurance and recommended that he be passed and that the policy applied for be issued. He heard nothing further from the application until about January 10, 1915, when he went to defendant and asked about the policy, and was advised by defendant that the insurance company would not issue the policy applied for until plaintiff got a favorable report from the Penn Mutual Life Insurance Company, to which plaintiff had applied for insurance in June, 1914, and which advised him to wait until a later date to apply for insurance. Plaintiff then applied to the Penn Mutual Life Insurance Company for a policy in the sum of $1,000, which, after an examination by physicians, was issued to him on January 22, 1915. He immediately notified defendant that he had received that policy, and asked him to renew his efforts to secure the policy applied for in the Columbian National Life Insurance Company, and the defendant promised to do so. Plaintiff asked him about the policy frequently, and on February 25, 1915, told defendant that he was going to apply for insurance in another company and that the Columbian National Life Insurance Company need not issue the policy applied for, but, at defendant’s request that he wait until the following Saturday, he waited until March 5, 1915, when, failing to receive the policy, he applied-to the Germania Life Insuranee Company for a $5,000 twenty-year term insurance policy on his life, and it was delivered to him on March 20, 1915. After-wards defendant advised plaintiff that he had a policy for plaintiff, and plaintiff advised him of the issuance of the policy of the Germania Life Insurance Company, and several days later defendant attempted to deliver to plaintiff a $2,500 straight life policy of the Columbian National Life Insurance Company, which plaintiff declined to accept, because it was not such a policy as 'he had applied for, and because the Columbian National Life Insurance Company had failed to issue and tender to plaintiff a policy of insurance within a reasonable time after his application was made. Plaintiff afterwards demanded of defendant the return of the amount of the premium, $66.30, which plaintiff had paid to him, but defendant refused and still refuses to pay this sum or any part of it: By reason of the facts herein set out, defendant is indebted to plaintiff in this sum, besides interest thereon from August 14, 1914. Wherefore plaintiff prays process, etc.

3. The trial judge did not err in overruling the demurrer to the plaintiff’s petition.

Judgment affirmed.

George and Luke, JJ., concur.

The defendant demurred to the petition generally, and on the grounds, that it appeared therefrom that in the transactions alleged the defendant acted as agent of the Columbian National Life Insurance Company, and not in his individual capacity, and the plaintiff knew this fact; and that the liability alleged is a liability of the insurance company and not of the defendant.

By an amendment, which was allowed over objections of the defendant, the plaintiff alleged: At the time plaintiff gave defendant the application and paid the premium as alleged in the petition, defendant agreed in his individual capacity, and not as agent of the insurance company, to procure for plaintiff the policy applied for, in consideration of that premium; and, under defendant’s arrangement with the insurance company, defendant was not required to remit the premium or any part of it to the company before the policy was delivered and became effective, and defendant had the premium in his possession when he tendered the $2,500 policy referred to in the petition. The return of the .•amount of this premium was demanded of defendant by plaintiff at the time of declining to accept the policy tendered by defendant. The defendant’s objections to the allowance of the amendment were: that it sets out a new and different cause of action from that set out in the original petition;. that it sets out a cause of action against the defendant, while the original petition sets out a cause of action against the insurance company; that the original petition shows that the defendant was acting as agent, and the amendment shows that he was not so acting, but was acting in his individual capacity; that the original petition is based on an implied assumpsit for money had and received by the insurance company for the benefit of the plaintiff, and the amendment changes the petition so as to cause it to be based on an implied assumpsit for money had and received by the defendant, instead of the insurance company, for the benefit of the plaintiff.

The case came to the Court of Appeals on exceptions to the allowance of the amendment, and to the overruling of the demurrer.

Franklin & Lang dale, for plaintiff in error,

cited: Gill v. Tison, 61 Ga. 161 ; Bank of University v. Hamilton, 78 Ga. 312; Tiller v. Spradley, 39 Ga. 35; Cureton v. Wright, 73 Ga. 8; Trust Company v. Wallace, 143 Ga. 214; Echols v. Howard, 17 Ga. App. 49; 31 Cyc. 1552; Ramspeck v. Pattillo, 104 Ga. 772; Manis v. Pruden, 145 Ga. 239; 1 A. & E. Enc. L. (1st ed.) 380; Croghan v. N. Y. Underwriters' Agency, 53 Ga. 109; Rice v. Wood, 113 Mass. 133; Walker v. Osgood, 98 Mass. 348; Farnsworth v. Hemmer, 31 Am. Dec. 756.

E. K. Wilcox, contra,

cited: Rhodes & Son Furniture Co. v. Jenkins, 2 Ga. App. 475; Whitehead v. Peck, 1 Ga. 145; 2 R. C. L. 778; § 34; Hunt v. Burk, 22 Ga. 129; Clarke v. Brown, 77 Ga. 606; Ingram v. Mitchell, 30 Ga. 547.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    7642.
    MEINHARD-FERST-DOYLE COMPANY v. DeLOACH.
    1. In tlie absence of any contract whereby factors were bound to hold cotton as instructed by the customer, they were not bound so to hold it, where the customer failed to deposit the margins necessary to hold it after he had been notified to do so.
    2. Under no view of the evidence in this case was the defendant entitled to prevail; but the evidence, together with the admissions in the defendant’s plea, demanded a verdict in favor of the plaintiff for the full amount sued for. The plaintiff’s motion for a new trial should, therefore, have been sustained.
    Decided February 16, 1917.

      Complaint; from city court of Keidsvillo—Judge Collins. June 20, 1916.

      II. Q. Beasley, for plaintiff. Way & Burhhalter, for defendant.
   Luke, J.

The amended petition makes substantially the following case: ^The plaintiff, a corporation, is a “commission merchant or factor.” On December 20, 1912, the defendant shipped to the plaintiff five bales of cotton, to be sold by the plaintiff for the account of the defendant, at the same time drawing upon the plaintiff for $437, which the plaintiff paid. The cotton was sold during the months of August, September, and October, 1913, and the net proceeds were credited to the defendant’s account, «leaving a balance of $108.03 due by the defendant to the plaintiff. All the usual and necessary details as to dates, weights, selling prices, etc., appear in the bill of particulars annexed to the petition. The defendant’s answer admits that “the said plaintiff would be entitled to a judgment for the same unless this defendant shows to the court that he had fully paid off and discharged the said indebtedness.” The defendant’s plea of satisfaction makes substantially the following defense: that at the time the cotton was shipped to the plaintiff it was of -a grade “next to fancy,” weighed 2,180 pounds, and was then worth on the market -23 cents per pound (a total of $731.40), “and remained of such value until the said cotton was sold by the plaintiff;” that at first the defendant directed the plaintiff to -hold the cotton for 60 days, and “later” directed the plaintiff to “sell to best advantage,” and “give him credit for the proceeds of same;” that, instead of selling the cotton as directed, the plaintiff held it “for a long period of time, and finally claimed to have sold it at a price which was far below the market price, . . to the injury of this defendant, and without his consent;” that, but for the plaintiff’s said conduct the cotton would have brought $479.60 net to the defendant, after allowing for all proper expenses, etc., instead of only $360.52, as was actually realized under the plaintiff’s plan; and that, by reason of the plaintiff’s said conduct and failure to exercise ordinary care, prudence, and skill in the sale of cotton, the defendant had been damaged in the sum of $119.08; being the difference between the price the cotton should have brought and the price it did bring. The defendant prayed judgment against the plaintiff “for such an amount as he may be able to show to the court he is entitled to recover in said ease.” The jury returned a verdict in favor of the defendant for $6.74; the court overruled the plaintiff’s motion for a new trial, and thereupon the plaintiff sued out a writ of error to this court.

In the brief for the plaintiff in error before this court, only one ground of the motion for a new trial is insisted upon; namely, that the verdict is without any evidence to support it. An examination of the brief of evidence shows that this complainir of the plaintiff in error is well founded. The defendant took the stand as a witness in his own behalf for the purpose of establishing his affirmative plea, and the first positive and emphatic testimony given by him appears in the record here in the following language: “I can not say that these defendants [plaintiff] could have sold my cotton any time from the time I shipped it until the time it was sold for more money than it was sold for. I would not swear that they did not act in the utmost good faith. I would not swear that they did not deal with me honestly and fairly. So far as I know, I have been treated exactly right and got the best prices obtainable for my cotton.” The remainder of the defendant’s testimony is • either vague, indefinite, and conjectural, or self-contradictory. He admits, without explanation, the following correspondence between himself and the plaintiff respecting the matter in controversy: (Defendant’s letter of December 19, 1912, to plaintiff) “I am shipping you 5 b/c. It is good. Was offered 22 cents per pound for it yesterday, but not ready to sell it yet. I am drawing on you for 20c per pound, and ask you to hold about 60 days for me. Kindly honor draft.” (Plaintiff’s letter of December 20, 1912, to defendant) “We are in receipt of your letter of the 19th instant advising shipment of 5 bales of sea-island cotton, with draft against same for 20 cents per pound. This draft will be paid on presentation. We note that we are to hold this shipment for 60 days. You, no doubt, realize that the market for sea-island cotton is at present very easy, but we trust a demand will develop by the time you are ready to make sale.” (Plaintiff’s letter of January 20, 1913, to defendant) ^“We have been called on by the banks for more margin against our loans on sea-island cotton, and we find that it will be necessary to in turn call on the owners of the cotton. Your account shows a debit of $437, without interest, against 5 bales of sea-islands. As the banks have reduced loans on sea-islands to $70 per bale, we will have to ask that you arrange to furnish margins amounting to $100. We fear that the above conditions will result in a quantity of distress cotton being forced upon the market. We trust that it will not be necessary for us to resort to these measure with your cotton. Kindly let us hear from you, with check for this amount.” (Plaintiffs letter of January 27, 1913, to defendant) “We have no reply to'our letter of the 20th inst., asking that you remit us $100 as margin against your 5 bales of sea-island cotton. As stated in our previous letter, we do not wish to force the sale of any sea-island cotton, thereby breaking the market, and we must therefore ask that you comply without request by return mail.” (Plaintiffs letter of April 30, 1913, to defendant) “Referring to our several letters in regard to margining your sea-island cotton, we consider that we are entitled to the courtesy of a reply to our letters. We advanced more than the cotton will bring, and, as the account will not pay out, you are honestly due us any debit remaining after the cotton is disposed of. If you are not in position to furnish the $100 asked-for, kindly let us hear from you, indicating a willingness to pay the overdraft when the cotton is disposed of and the account adjudged, or let us have a note for the amount. You are, no doubt, aware that the situation has been slightly brighter of late. There has been a pretty good demand for the lowest grades, and some inquiry for the best grades, but still at what looks like distress prices; so that we have as yet made no sales. ■ Kindly let us hear from you.” (Defendant’s letter of May 1, 1913, to plaintiff) “In reply to the cotton, will say that I mean to treat you fair. I can’t do anything but sell the cotton as soon as you can and let me hear from it. Guess, if you treat me right, will ship you more to cover my bills.” (Plaintiff’s letter of June 16, 1913, to defendant) “We herewith enclose statement of your account to date, showing debit of '$450 against 5 bales of sea-island cotton. We have been doing everything in our power to avoid making sacrifice of any of our cotton and to uphold the market. The banks, however, are now requiring very full margin in- sea-islands, and we are forced to ask the owners of the cotton to remit cash or give us margin notes to meet these demands, which we .can in turn use with the banks. ' We accordingly herewith enclose a note for $150 for this purpose. Kindly sign the same and return at once. We will then be in a position to protect your cotton from a sacrifice sale. We are inclined to do everything we can to make the adjustment of this account for you, and we feel sure that you will meet us by showing a disposition to do what you can. We have no intention of forcing the payment of the above note under these conditions.” (Plaintiff’s letter of September 29, 1913, to defendant) “We herewith enclose account sale, covering the sale of two bales of sea-island cotton and statement of your account to date. You will note that this statement shows a debit of $183.88, with one bale of sea-island still on hand. You must realize thát .we have done everything in our power to get you out on this cotton, and in fact we made sales on an average of about 2y2 cents per pound above what similar cotton was sold at during the Mistress period’ in the spring. We therefore consider that we are entitled .to an adjustment of this account at once, and we would ask that you forward a check for the above amount, less $50 against the bale on hand, or a shipment to cover. Kindly let us hear from you.”

The defendant shows no communication from himself to the plaintiff,.except the two letters dated December 19, 1912, and May 1, 1913, respectively, which are set out above. He does not claim to have kept up his margins as requested, or to have made any response to the several letters from the plaintiff requesting him- to do so. He admits receiving from the plaintiff the letters directed to him, above set out, and then testifies: “The reason why I did not raise any objection to the price at which the cotton was sold when I received'the notices of sale, I just neglected it.” It is needless here to set out the rest of the defendant’s testimony. It is needless to set out that of another witness introduced by him. The other testimony can avail the defendant nothing. By his own solemn admissions in judicio, which have already been set out and which dispi’ove his -plea, he was precluded from establishing the defense which he attempted to set up. Where any party—plaintiff, defendant, claimant, or what not—taires the stand as a witness in his own behalf, and delivers testimony which is self-contradictory on the most material issue in the case,—the very heart of it,— 'that version of his testimony must be adopted which is most favorable to his adversary; and such a party will not be permitted to overcome Ms own adverse testimony merely by offering witnesses who swear differently. Steele v. Central Ry. Co., 123 Ga. 237 (51 S. E. 438); Tuten v. A. C. L. R. Co., 4 Ga. App. 353 (61 S. E. 511); Johnson v. Southern Ry. Co., 9 Ga. App. 661 (72 S. E. 436).

This rule of construction is not, however, the defendant’s sole trouble in this case, though, as plainly seen, it is an all-sufficient trouble. But if his damaging admissions were removed from the record, the verdict would still be without sufficient evidence to support it. Taking all the evidence in the record, except that part of the" defendant’s testimony dealt with above, the case would then be controlled by the decision of this court in Leffler v. Pearson, 17 Ga. App. 57 (86 S. E. 256), and the authorities cited in the first and second divisions of that decision. In the case at bar the defendant not only fails to show any instruction to the factor to hold the cotton, but also fails to show any contract whereby the factor would have been bound by such instructions if given; while the uncontradicted evidence does show that the defendant failed, after due notice given, to deposit the margins necessary to hold it. He was not, therefore, under any view of the evidence, entitled to. prevail or to have any deduction from the amount of the plaintiff’s claim.

The judgment denying the plaintiff’s motion for a new trial must therefore be _ .

Beversed.

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


author: George, J.

text:
    7673.
    Benson et al. v. Harris, Governor.
   George, J.

1. The motion to dismiss the bill of exceptions, upon the ground that it does not appear from the record specified and sent up, or from the bill of exceptions, that any brief of evidence was filed in the court below, must be' denied, it affirmatively appearing from the record that the ease was heard and determined by the court upon the admission of the adverse party that the statement of facts contained in the answer to the scire facias was true, and the answer being specified in the bill of exceptions as a part of the record and duly transmitted to this court; especially since it further appears that the “statement of facts” was in truth only an agreement that the recital of facts in the response was true. Lindsey v. Hardeman, 60 Ga. 60.

S?. Where a person arrested on a charge of stabbing gave bond to appear at the city court of Carrollton, to be held in and for the County of Carroll on the the first Monday in December, 1915, to answer for such offense, and thereafter, at the October term, 1915, of Carroll superior court, a ■ true bill of indictment was returned against him, charging him with the offense of assault with intent to murder, but in fact involving the same transaction, and upon the finding of the true bill the judge issued a bench warrant, under which the accused was arrested and taken into the custody of the sheriff of the county, from whose custody he subsequently escaped; held: Applying the “same-transaction test,” the indictment charged the same offense, or a higher grade of the same offense, as that for which bail was given by the defendant, and his rearrest on the bench warrant discharged the sureties. The only consideration for the undertaking of the sureties, accruing to them, was the custody of the principal; and this consideration having failed, their liability ceased, and his subsequent escape, through no fault of the sureties, does not alter the rule. Smith v. Kitchens, 51 Ga. 159 (21 Am. R. 232) ; 6 C. J. 1027, § 282; 3 R. C. L. 52, § 62. The subsequent indictment and the arrest of the defendant were both legal and proper, but the Stated—the obligee in the bond—having elected to charge the defendant with a more serious offense, growing out of and involving the same transaction in which the bond for his appearance before the city court was given, released the sureties from further liability when it took the defendant into custody. The subsequent arrest or custody of one on another charge, while he is out on bail, does not operate ipso facto as a discharge of his bail, but its effect depends upon its continuance. The decision in Cooper v. Brown, 10 Ga. App. 730 (73 S. E. 1101), while authority upon the general proposition announced in this case, is unsound on the peculiar facts in that case.

Decided February 16, 1917.

Forfeiture'of bond; from city court of Carrollton—Judge Beall. June 30, 1916.

Walter Benson, as principal, and Willis Latimore, Will Allen, R. P. Crockett, and R. H. Fletcher, as sureties, entered into a bond to the sheriff of Carroll county, by which they acknowledged themselves to be indebted to the Governor of this State, and his successors in office, in the sum of $300, this obligation to be void on condition that the principal make his personal appearance before the city court of Carrollton to answer to the offense of stabbing. At the March term, 1916, of that court the bond was forfeited and a rule issued, calling upon the sureties to show cause at the next term of the court why the order forfeiting the bond should not be made absolute. At the next term the sureties filed an answer in which they admitted the making of the bond in the sum and on the condition stated above, and alleged: that Benson, the principal, was accused of an assault on August 8, 1915, upon one Les Horton, and that upon an affidavit charging him with this offense an accusation was filed in the city court of Carrollton, charging him with the offense of stabbing; that at the October term, 1915, of the superior court of Carroll county the grand jury of the county returned a true bill of indictment against him, charging 'him with the offense of assault with intent to murder, alleged to have been committed upon the said Les Horton; that the accusation in the city court of Carrollton and the indictment returned by tire grand jury “involved and covered the identical and same transaction;” that after the return of the indictment the judge of the superior court of Carroll county, issued a bench warrant and caused it to be placed in the hands of the sheriff of the county, and that their principal, Benson, was arrested under it and taken into the custody, power, and control of the State .of Georgia through the said sheriff, but subsequently escaped from the sheriff. Counsel for the State agreed in writing that all the facts stated in the response were true. On the pleadings and on the admission of counsel for the State referred to, the judge of the city court of Carrollton, at the June term, 1916, rendered a judgment making the rule absolute. In the judgment it is recited that the securities “filed their answer, and, the issue raised thereby coming on to be heard before the court this day without the intervention of a jury, by agreement of counsel, and it being admitted that the allegations of facts made in said answer to the scire facias are true, but not the conclusions drawn therefrom,” etc. The answer and the “agreed statement of facts” were in fact filed in the office of the clerk of the city court of Carrollton, and were referred to in the bill of exceptions and duly specified as parts of the record.

Judgment reversed.

Wade, C. J., cmd Luhe, J., concur.

Leon Hood, for plaintiffs in error. C. H. Boop, solicitor, contra.


text:
    7885.
    NOBLES v. THE STATE.
    1. Where a motion for a new trial contains a ground not approved or certified as true by the trial judge, that ground will not be considered by this court.
    2. The evidence authorized the verdict and the charge of the court was full and fair.
    Decided February 16, 1917.

      Accusation of misdemeanor; from city court of Dublin—Judge Hicks.. July 17, 1916.

      Fred Kea, for plaintiff in error. S. P. New, solicitor, contra.
   Luke, J.

B. E. Nobles was convicted of violating the prohibition law, and filed a motion for new trial. One of the grounds of the motion for a new trial is as follows: “Because the court erred in not charging the jury the written request of the defendant, giving him the benefit of a charge to this effect: ‘Gentlemen of the jury, I further charge you, where more than two quarts of whisky is found in a buggy occupied or driven by two or more persons, it would not be prima facie evidence that all of the whisky belonged to one of the parties.” The trial court’s approval of grounds of the motion for a new trial was in the following terms, to wit: “The averments of fact contained in the above motion are hereby approved as true, except that I do not remember the request to charge having been tendered during the trial. Mr. Kea, counsel for the defendant, however swears that he did present it.” The ground assigning error upon the court’s refusal to charge is not approved by the trial court as required by section 6090 of the Civil Code of 1910. Landrum v. Landrum, 145 Ga. 307 (89 S. E. 201).

The other assignments of error, urged by counsel for the plaintiff in error in his brief, are without merit, and the evidence fully authorized the verdict..

Judgment affirmed.

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


text:
    7914.
    Buxton v. The State.
   Luke, J.

1. “On the trial of one for murder, where the evidence or the defendant’s statement at the trial would authorize the jury to find that the person killing acted in self-defense on account of a reasonable fear aroused in his mind by words, threats, or menaces, in connection with the other facts in the case, it is not erroneous for the court, in instructing- the jury on the law of voluntary manslaughter, as contained in the Renal Code of 1910, § 65, to fail or refuse to charge in immediate connection therewith the right of the jury to consider words, threats, or menaces in determining whether the circumstances attending the homicide were such as to justify the fears of a reasonable man that his life was in imminent danger or that a felony was about to be committed upon his person.” Deal v. State, 145 Ga. 33 (88 S. E. 573).

2. The evidence authorized the verdict, and the errors assigned in the motion for new trial are almost identical with the errors alleged in the case of Deal v. State, supra. Accordingly the court did not err in over-- ' ruling the motion for a new trial.

Decided February 16, 1917.

Indictment for murder—conviction of manslaughter; from Candler superior court—Judge Hardeman. October 5, 19Í6.

G. W. Turner, for plaintiff in error.

B. Lee Moore, solicitor-general, contra.

Judgment affirmed.

Wade, O. J., and George, J., eoneur.


text:
    7963.
    Sutton v. The State.
    Decided February 16, 1917.
    Conviction of shooting at another; from Dooly superior court— Judge George. January 31, 1916.

      Powell & Lumsden, for plaintiff in error.

      Joseph B. Wall; solicitor-general, Jesse Grantham, contra.
   Luke, J.

The only grounds of the motion for a new trial are the general grounds, and exceptions to excerpts from the charge of the court, on the ground that the charge was not warranted by the evidence. The defendant’s statement and the evidence authorized the instructions complained of, and there was evidence that authorized the verdict. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Broyles, P. J., eoneur.


text:
    7977.
    POLK v. THE STATE.
    1. It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness; and where the court examines a child as to its knowledge of the nature and sanctity of an oath and decides that it is competent to testify, this court will not interfere, where it does not appear that such discretion has been , abused.

      9.. The charge of the court, when considered as a whole, fairly and fully presented the legal issues in this case, and the excerpts complained of are -not subject to the criticisms urged in the motion for new trial.
    3. Where a special plea of insanity at the time of trial is filed by the de- ' fendant in a criminal ease, this court will not set aside a verdict finding against the plea, unless it appears that the evidence demands a finding in favor of the plea.
    Decided February 16, 1917.

      Indictment for murder; from Baldwin superior court—Judge ■Park. October 28, 1916.

      John T. Allen, John A. Sibley, for plaintiff in error.

      Ediuard R. Iiines, solicitor-general pro tern., contra.
   Luke, J.

C. F. Polk was indicted in Baldwin superior court for the offense of murder. _ He filed a special plea of insanity at time of trial, as follows: “This defendant, through his attorneys at law as aforesaid, avers that he, the said C. F. Polk, is now an insane person and so afflicted with insanity that he is not a fit person to be put upon trial for the offense of murder, and that his mental condition is such that he is incompetent and unable to make a proper defense of the crime of which he is charged, and that he is unable to assist his counsel in making such defense thereof.” This issue having been submitted to a jury and the jury having found against the plea, the defendant filed a motion for a new trial, which was overruled by the court; and to the judgment overruling the motion he excepts.

T. The defendant excepts to the ruling of the court in permitting a witness eight years old to testify. The witness was examined in open court and seemed to understand the sanctity of an oath, and the court decided that the witness was competent. The competency of a witness is left to the sound discretion of the court, and this court will not interfere, where it does not appear that such discretion has been flagrantly abused. Beebee v. State, 124 Ga. 775 (53 S. E. 99).

2. The charge of the court, when considered as a whole, was full and fair to the defendant, and not subject to the criticisms urged.

3. Under the evidence this court can not say that a verdict was demanded in favor of the special plea of insanity. Where the issues are fairly submitted to the jury, in a case of this kind, and the trial court approves the verdict, this court will not interfere with the finding of the jury, unless a different verdict is demanded. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8052.
    Hill v. Reynolds.
   Luke, J.

1. Where a conspiracy is shown, the act of one becomes the act of all, in so far as the furtherance of the conspiracy is concerned; and each is as fully responsible for the acts of the others in carrying out the common purpose as if he himself had committed the acts. Penal Code (1910), § 1025; Horton v. State, 66 Ga. 690; Byrd v. State, 68 Ga. 661 (1) ; Handley v. State, 115 Ga. 584 (41 S. E. 992).

(a) This rule of law applies with no less force to an action for the resulting tort than to a prosecution for the resulting crime, and applies alike in all cases, whether the alleged tort amounts to a crime or not. Foster v. Thrasher, 45 Ga. 518; McEwen v. Springfield, 64 Ga. 160 (3).

2. Where it is alleged in a petition that two or more persons conspired to defraud and did defraud the petitioner, and his action is brought against only one of them to recover for the tortious acts of all, proof of the conspiracy is necessary only in order to charge the conspirator sued with responsibility for the acts of those not sued. A failure to establish the alleged conspiracy does not necessarily defeat the action or constitute a fatal variance between the allegations and the proof; but, if enough of the petition is proved to establish a good cause of action against the defendant alone, without regard to the acts of those named as his coconspirators, the plaintiff is entitled to recover, notwithstanding his failure to establish the alleged conspiracy. The gravamen of the action in such a case is the injury done, and not the conspiracy to do it. Civil Code (1910), § 5573; Slaughter v. State, 113 Ga. 284 (2), 288 (38 S. E. 854, 84 Am. St. R. 242) ; Dixon v. State, 116 Ga. 186 (8) (42 S. E. 357) ; Butler v. Duke, 39 Misc. 235 (79 N. Y. Supp. 419); Leffler v. Fox, 92 N. Y. Supp. 227; Miller v. John, 111 Ill. App. 56.

la) The evidence touching the alleged conspiracy being conflicting,, the trial judge did not err in instructing the jury in accordance with this rule of law.

3. (There being evidence to authorize a finding by the jury that a conspiracy had existed as alleged, and it appearing from the uncontradicted testimony of the plaintiff that, during the existence of the conspiracy, one of the conspirators had referred the plaintiff to a third person, a stranger to the suit, for certain information connected with the subject-matter of the conspiracy, it was not error to admit in evidence letters from the third person, pertaining to such information, the defendant’s objection being that “said letters were personal letters written by said [third person] to the plaintiff,” and that “they are ex parte statements, and defendant has had no chance to cross-examine the witnesses.” Civil Code (1910), § 5778 (1).

4. The court did not err in instructing the jury that the defendant contended, among other things, that if the alleged trade was made at all, it was made entirely with those alleged by the plaintiff to be coeonspirators, and that the defendant had nothing whatever to do with the contract. Such an instruction was in accord with the defendant’s testimony in his own behalf.

Decided February 16, 1917.

Action for damages; from Wilkes superior court—Judge Walker. November 22, 1915.

William, Wynne, I. T. Irvin Jr., for plaintiff in error.

S. H. Sibley, W. A. Slaton, contra.

5. The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Wade, C. J.

text:
    8087.
    Hunter v. Teasley.
    Complaint; from Forsyth, superior court—Judge H.'C. Hammond presiding. October 18, 1915.-

      George F. Gober, W. I. Heytvard, for plaintiff in error.

      J. P. Broohe, contra.
   Wade, C. J.

1. The court did not err in excluding testimony offered to show that the nóte sued upon was obtained by fraud, since this testimony did not connect or tend to connect the holder of the note with the alleged fraud. The proof offered as to circumstances attending the execution of the note did not tend to throw light on the question as to whether the holder knew at the time he acquired the note that it was without consideration. Roberson v. First National Bank, 18 Ga. App. 171 (88 S. E. 991), and citations.

2. There was no error in directing a verdict in favor of the plaintiff.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8096.
    Lacewell v. Eastern Tennessee Power Co.
    Decided February 16, 1917.
    Action for damages; from Whitfield superior court—Judge Fite. October 22, 1915.

      William, F. Mann, J. A. Longley, for -plaintiff.

      Maddox, McOamy & Shumate, for defendant.
   George, J.

Under the undisputed evidence in this ease the verdict for the defendant was demanded; accordingly the court did not err in directing a verdict.

Judgment affirmed.

Wade, O. J., and Luke, J.¡ concur.


text:
    8097.
    Dalton Excelsior Company v. Keeble.
    Decided February 16, 1917.
    Action for damages; from Whitfield superior court—Judge Eite. December 14, 1915.

      William S. Mann, for plaintiff in error.

      M. G. Tarver, George G. Glenn, contra.
   Luke, J.

1. In order to ascertain or form an estimate as to the diminished earning capacity of the plaintiff in an action for damages on account of personal injuries, it is not essential that the jury trying the ease should have before them the standard mortality tables. Merchants & Miners Transportation Co. v. Corcoran, 4 Ga. App. 654 (62 S. E. 130).

2. A verdict for damages on account of personal injuries can not be held to be excessive when it is not so large as to be manifestly the result of prejudice or bias, or corrupt motive. Merchants & Miners Transportation Co. v. Corcoran, supra.

3. The excerpts from ths charge of the court complained of, when considered in the light of the charge as a whole, are not erroneous.

4. The evidence authorized a verdict in favor of the plaintiff, and this being the second verdict in his favor, and having the approval of the trial court, the judgment overruling the defendant’s motion for new trial will not be disturbed.

Judgment affirmed.

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


text:
    8120.
    Rounsaville v. Camp.
   Wade, C. J.

1. There is nothing in the record to authorize a holding that the verdict was so excessive as to justify the inference of gross mistake or undue bias.

2. There is no substantial merit in the second ground of the amendment to the motion for a new trial, in which instructions to the jury as to ■ damages for the alleged assault and battery are complained of. The expression “other damages” could not have misled the jury; and there was no request for any fuller or more precise instructions.

3. The prosecution of the defendant for the offense of assault and battery, and the resulting fine against him, were not pleaded as a defense to this suit, or in mitigation of damages; and, no request for a charge on this line having been made, there is no merit in the 3d ground of the amendment to the motion for a new trial, in which it is contended that the court erred in failing to charge that such conviction and punishment could be considered by the jury, either as a complete defense or in mitigation of damages.

4. “Grounds of error not covered by the brief or the argument of counsel for the plaintiff in error will be treated as abandoned. The general statement in the brief that grounds not referred to or argued are nevertheless not abandoned will not be sufficient to change the rule above announced. Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will Ée apt to accept the inference that the lack of interest by counsel is due to a conviction of tlie lack of merit.” Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710). See. also White Sewing Machine Go. v. Horkan, 17 Ga. App. 48 (7) (86 S. E. 257) ; Muse v. Hall, 18 Ga. App. 651 (90 S. E. 222); Jefferson v. City of Perry, 18 Ga. App. 690 (90 S. E. 366); James v. Boyett, 19 Ga. App. 157 (91 S. E. 219). In the brief of counsel for the plaintiff in error in this case the only reference to certain grounds of the motion for a new trial is as follows: “We insist upon the 4th, 5th, and 6th grounds of the amended motion for a new trial, upon each and all of the grounds therein stated.” 'Such a statement does not amount to an argument in support of the grounds referred to, and affords no assistance to the court in considering them, and the failure to say anything further in regard to them amounts to an abandonment thereof.

Decided February 16, 1917.

Action for damages, from Floyd superior court—Judge Wright. October 9, 1915.

C. W. Camp sued E. B. Bounsaville for $5,000 damages on account of an assault and battery, and obtained a verdict for $1,000. According to the plaintiff’s testimony, the defendant struck him in the face with brass knucks and knocked him down, kicked him, and stamped upon him; his lungs were stamped on, and this caused him to spit blood; the blow in the face broke his cheek bone and his nose, knocked loose his teeth on one side of the face, and injured his eye, and he had to have the broken places sewed up, and at the time of the trial he continued to suffer pain from these injuries, his eyesight was impaired, and marks of the stamping and kicking remained on his body; he was sent to a hospital and for two or three days was unable to work, and for about a month was not able to do his work as he had done it before. The defendant admitted that he knocked the plaintiff down with 'a blow of his fist, but denied that he used brass knucks or struck the plaintiff with his foot. 1 He- pleaded justification, and testified that the cause of the striking was a remark of the plaintiff, made to him immediately before he struck, that the plaintiff had letters to prove that he “acted the low-down dirty scoundrel” with the plaintiff. The plaintiff denied that he made such a remark.

In the defendant’s motion for a new trial, the refusal of which was assigned as error, the verdict was complained of as unsupported by evidence and as excessive, and it was alleged that the court erred in charging the jury as follows: “If Mr. Eounsaville did assault the plaintiff without justification, as the plaintiff alleges in his petition, and if the plaintiff suffered the injuries, or any part of them, 'as alleged in his petition, and was damaged thereby, I charge you that you would be authorized to compensate him in damages for whatever injury you think he sustained, for whatever you believe his damages to have been. . You will take into consideration his loss of time, his inability to work, and his permanent impairment, if there is any. He further says that he underwent and still undergoes great physical pain .and suffering on account of this injury; so if you find it was an unjustifiable assault upon him, and that this unjustifiable assault caused physical pain and suffering to him, I charge you that you would be authorized to compensate him in damages for that; and the only way to get at damages for pain and suffering is simply to give him such sum as you may think, as enlightened jurors, would compensate him for his suffering. I can give you no other- rule by which to arrive at that sort of damages. The other damages he suffered, if he suffered any, you may. compute by any arithmetical method with which you may be familiar, in order to determine what his actual damages are.” It was contended that these instructions incorrectly stated the measure of damages; that the jury were thereby instructed in effect that they might find damages to compensate the plaintiff for his injury, and additional damages for pain and suffering, and in addition thereto “other damages,” if he suffered any, and that they might compute these “other damages” by any arithmetical method with which they might be familiar, to determine what his actual damages were; whereas, in a case of this kind, a plaintiff can recover only under the general rule of damages, and in finding such damages the jury may take into consideration, in a proper case, the plaintiff’s pain and suffering, loss of time, inability to work, and permanent injury, if any has been suffered; that these instructions tended to confuse the jury and to lead them to believe that in addition to general damages, they could find both compensatory damages and damages for pain and suffering. It is not necessary to add to what is said in the decision (paragraphs 3 and 4) as to other grounds of the motion for a new trial. ■- .

Judgment affirmed.

George and Luhe, JJ., concur.

Maddox & Boyal, for plaintiff in error.

Eubanks & Mebane, contra.


text:
    8134.
    TANNER et al. v. PEOPLES BANK OF CARROLLTON.
    1. There being evidence to authorize the verdict, this court can not say that the verdict is contrary to the evidence.
    2. A new trial will not be granted because of excerpts from the charge of the court in which there was no error that would mislead the jury.
    Decided February 16, 1917.
    Complaint; from Carroll superior court—Judge E. W. Ereeman. November 3, 1915.

      B. F. Boykin, S. Holderness, for plaintiff in error.

      W. 0. Wright, Leon Hood, B. B. Jackson, contra.
   Luke, J.

Peoples Bank of Carrollton instituted suit against J. E. Adamson, J. M. Walker,* C. M. Tanner, and C. L. Walker, alleging, that on July 12, 1912, Walker Lumber and Manufacturing Company executed and delivered to it a promissory note for $5000.58, indorsed by J. E. Adamson, J. M. Walker, C. M. Tanner, and C. L. Walker, and on October 11, 1912, executed and delivered to it a promissory note for $1020; that Walker Lumber and Manufacturing Company subsequently was' adjudicated a bankrupt, and that the plaintiff received in dididends from the estate of the bankrupt, as a credit upon these two notes the sum of $2534.38; that the note for $5000.58 was intended by the plaintiff to be a renewal of the balance due upon two other promissory notes executed by said Walker Lumber and Manufacturing Company, and indorsed by J. E. Adamson, C. M. Tanner, J. M. Walker, and C. L. Walker, one dated March 22, 1911, and due November 22, 1911, for $4213.34, and the other dated July 8, 1911,-and due October 22, 1911, for $1050.00; that the note for $5000.58 was not to be accepted in renewal of the two notes for $4213.34 and $1050.00, unless the note for $5000.58 was indorsed by C. M. Tanner, and it was the express agreement and understanding between the plaintiff and Walker Lumber and Manufacturing Company that the $5000.58 note would not be accepted in such renewal unless so indorsed; that át that time J. R. Adamson was president of the plaintiff bank and was also secretary and treasurer of the Walker Lumber and Manufacturing Company, and delivered said note for $5000.58 to plaintiff, claiming it to be a renewal of the balance due upon the $4213.34 and $1050 notes; that plaintiff did not accept said note for $5000.58 unless it bore the genuine indorsement of C. M. Tanner; that petitioner is advised and informed that C. M. Tanner denies what purports to be his indorsement thereon; that while plaintiff claims that said note bears the genuine indorsement of C. M. Tanner, yet if it should develop or be adjudicated that said C. M. Tanner did not in fact indorse it or authorize such indorsement so as to bind him, then and in that event plaintiff shows that said two notes of $4213.34 and $1050 with credits thereon, which notes are now held by plaintiff, are still valid and subsisting obligations and binding on C. M. Tanner, as he indorsed each of said notes, and that said notes were not to be surrendered or canceled unless said note -for $5000.58 was delivered to plaintiff, bearing the genuine indorsement of *C. M. Tanner; that if said note for $5000.58 should be found and adjudicated not to have been indorsed by C. M. Tanner, plaintiff prays judgment for the balance due upon the $4213.34 and $1050 notes. Copies off all the notes were attached to- petition.

The defendant Tanner pleaded that for want of sufficient information he could not admit or deny that the $5000.58 note was given as a renewal of the other two notes, but he denied that it was not to be accepted by the bank in renewal unless indorsed by him. He alleged that the bank was to accept and did accept the $5000.58 note without his indorsement, and that the notes for $4213.34 and $1050 were delivered to Walker Lumber and Manufacturing Company; that the indorsement on the $5000.58 note was not his signature, and that the same was not his act or deed; that the said indorsement was a forgery; that in January, 1912, the finance committee agreed to lend Walker Manufacturing Company $7,000, without his indorsement; and that there was usury in the notes, unknown to him, that would discharge him. The defendant J. M. Walker pleaded that there was usury unknown to him in the notes, etc.

The jury found that the indorsement of C. M. Tanner, appearing on the $5000.58 note, was not his act; that this note, unless it bore his genuine indorsement, was not received as a renewal of the two notes for $4313.34 and $1050; and that there was no usury-in the notes, and found a verdict against the defendants Tanner and C. L. Walker for the balance due on the $4313.34 and $1050 notes. These defendants filed a motion for a new trial, which was overruled, and they excepted.

1. The evidence on the part of the bank tended to sustain the case as laid; the evidence on the part of the defendants tended to sustain their defenses. The jury were the sole arbiters of the facts, and their verdict gave credence to the contentions of the plaintiff. There being evidence which would authorize the verdict, this court will not set it aside.

3. In view of the evidence, the excerpts from the charge of the court are not subject to the criticisms made in the motion for a new trial. The charge contained no error calculated to mislead the jury. •

The court did riot err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8140.
    STAFFORD & SON v. MEANS.
    The original deed of conveyance executed by the defendant in 1910 to secure a debt required her to turn over 10 bales of rent cotton each year, and to pay at least one of the notes secured thereby, and provided that in default of a compliance with these stipulations an agreed extension of five years within which to pay the indebtedness should be forfeited. A later deed of conveyance covering the same property and intended to secure not only the original indebtedness but a large increase thereof, while adopting all the terms and conditions of the contract of 1910, expressly provided that the debtor should “pay first” out of her rent notes and all her income and crops whatever sum, not secured by either deed, she might become indebted to the plaintiff on account of supplies furnished for the year 1912; and this stipulation was in direct conflict with the above-mentioned agreement in the contract of 1910, requiring a different disposition, of rent notes, income, etc., and it nowhere appeared that the indebtedness of 1912 had ever been discharged, or that the debtor did not apply in settlement thereof her entire income and all the profits, rent notes, etc., derived from the “old Means place” or from her entire property. The conditions upon which a forfeiture of the time extension allowed by the contract of 1910 could be avoided were made impossible of performance by the express provisions of the contract of 1912, and therefore the debtor could list be held to have forfeited such extension. The trial judge correctly sustained the demurrer on the ground that the action was prematurely brought.
    Decided February 16, 1917.
    Complaint; from Monroe superior court—Judge Searcy. January 31, 1916.

      G. J. Lester, for plaintiffs.

      B. L. Berner, J. B. McDonald, for defendant.
   Wade, C. J.

Stafford & Son brought suit to the August term, 1915, of the superior court of Monroe county, against Mrs. Means, to recover $3,677.30 principal, besides interest and attorney’s fees, on eight promissory notes of the defendant to the plaintiffs, four of which were dated June 13, 1910, and due on October 15, November 1, November 15, and December 1, 1910, respectively—the three first for $500 and the last for $507.30 principal, besides interest, etc.; and four others dated March 18, 1912, and due October 1, October 15, November 1, November 15, 1912, respectively, for $417.50 principal each, besides interest, etc. The indebtedness represented by the four notes' first mentioned was secured by a deed of the same date to 303]4 acres of land therein described, intended to operate under the provisions of sections 3306, 3310, and 6037 of the Civil Code of 1910. This deed provided that the indebtedness represented by the notes should become due and payable as stated therein, and further provided as follows: “but in the event it is so desired on the part of the said Mrs. Means [the maker of the deed], she is to have five years in which to pay same in full, provided she shall make annual payments on the same of at least the amount of one of the said notes, thereby reducing said indebtedness each year.” The contract further stipulated that Mrs. Means should “turn over and transfer to said Stafford & Son rent notes for 10 bales- of lint cotton each year as a part of the security for the indebtedness” secured by the deed, and that “a failure to turn, over and transfer the rent notes as herein above stipulated shall be a forfeiture of the right to have any of said notes or indebtedness extended over and beyond the date named therein. February 15th of each year shall be the date or last day on which to turn over and transfer said rent notes.” On March 38, 1912, Mrs. Means executed and delivered to Stafford & Son another deed, covering the lands described in the deed of June 13, 1910, for the purpose of securing the four notes last mentioned above. This deed referred to the deed of June 13, 1910, and made the following recital: “And whereas I, the said Mrs. A. A. Means, desire to further secure the payment of the four promissory notes herein above mentioned, which is an additional indebtedness contracted and made with said Stafford & Son since the execution of the security deed above referred to, now, therefore, for and in consideration of said indebtedness, the extension of the payment thereof to the several dates named in said notes, and as well as for and in consideration of the sum of one dollar in hand paid, the receipt whereof is hereby acknowledged, I, the said Mrs. A. A. Means, do hereby grant, bargain, sell, alien, convey, and confirm unto the said Stafford & Son, their heirs, executors, and assigns, the said farm containing 303% acres, which is described above and is fully described in said deed dated June 13, 1910, and recorded June 16, 1.910, in deed record 34, at pages 663, 664, in the office of the clerk of the superior court of Monroe county, Georgia, which deed and conveyance is hereby referred to and made a part of this contract and subject to.and including all the terms, stipulations, and conditions named in said former deed of conveyance; and all the rights, options, powers, and privileges therein contained and provided are hereby referred to and adopted and made a part of this contract and conveyance. And it is fully understood and agreed that the said four notes which represent an existing indebtedness due by said Mrs. Means to said Stafford & Son shall be secured by and fall under the terms and stipulations of said conveyance as fully and completely and amply as if embodied in said deed, and said deed shall be of full force and virtue until the said indebtedness therein named, and that named herein as well, shall be fully paid off and discharged.” The deed contained also the following further recitals and agreement: “It is further understood and hereby agreed, that, whereas I, the said Mrs. A. A. Means, am so indebted to said Stafford & Son in the way and manner herein above stated, aggregating approximately $4,000, which is very likely more than I can pay during the year 1912; I therefore hereby agree and bind myself, my heirs, representatives, and assigns, to pay first, out of all my crops, all my income, including ten bales of rent cotton from my old Means place, or from any other resources Or income that I may have, all my indebtedness to said Stafford & Son which, shall be created or made the present year (and which is not secured by and under the terms of this contract and conveyance and the conveyance of June 13, 1910, which is a part of this contract), before requiring or asking that any payment made shall be credited upon the notes secured hereby. It is also further understood and agreed hereby that in view of the increased amount of my indebtedness to said Stafford & Son subsequent to the execution and delivery of the deed of 1910, and the necessity for a longer period of time in which to pay off all of said indebtedness, the said Stafford & Son agree to give said Mrs. Means two years, and if absolutely necessary three years, in addition to the five years stipulated in the said conveyance of 1910, in which to pay off and discharge all the indebtedness secured by this and the said 1910 conveyance.”

The defendant interposed a demurrer, in which it was insisted, •(1) that the petition did not state a case authorizing a recovery against the defendant; (2) that the petition showed on its face that the plaintiff was not entitled to institute a suit upon the alleged indebtedness; and (3) that the petition showed upon its face that the indebtedness sued upon was not due, “for the reason that the contract of March 18, 1912, was a new and distinct contract, in itself extending the time of payment two years in addition to the five years stipulated in the conveyance of 1910, fin which to pay off and discharge all indebtedness secured by this and the said 1910 conveyance/ and it appears from the face of the pleadings that the said two years have not elapsed.” The court sustained this demurrer; whereupon the plaintiff excepted and brought the case to the Supreme Court for review, and from, that court the case was transferred to the Court of Appeals, under the recent amendment of the constitution.

The original contract allowed the maker of the security deed the full term of five years in which to pay the indebtedness thereby secured, but also required the debtor to turn over and transfer to Stafford & Son rent notes for ten bales of rent cotton each year, as a part of the security, and stipulated that upon a failure so to- turn over and transfer these rent notes, “the right to have any of said notes or indebtedness extended over and beyond the due date named therein” should be forfeited. TTnder the contract of 1912 the original contract of June 13, 1910, was referred to and made a part thereof, and the second contract was made, “subject to and including all the terms, stipulations, and conditions named in said former deed of conveyance;” and- “the rights, options, powers, and privileges therein contained and provided” were adopted and made a part of the second contract, but there is an. apparent conflict between the terms of that contract and the original contract. The original contract provided that a failure to turn over and transfer rent notes for ten bales of rent cotton each year on the indebtedness thereby secured would work a forfeiture of the right to have the notes secured by that deed extended beyond the maturity of each in 1910, and also made the grant of the five-year extension for the payment of the indebtedness thereby secured conditional upon the payment by the mortgagor of “at least the amount of one of the said notes.” The agreement made in 1913 recognized by its recitals that the debtor would not during that year be able to pay the aggregate amount of $4,000 then due, and expressly bound the debtor as follows: “to pay first, out of all my crops, all my income, including ten bales of rent cotton from my old Means place, or from any other resources or income that I may have, all my indebtedness to said Stafford & Son which shall be created or made the present year (and which is not secured by and under the terms of this contract and conveyance and the conveyance of June 13, 1910, which is a part of this contract), before requiring or asking that any payment made shall be credited upon the notes secured hereby.” It further provided that “in view of the increased amount of my indebtedness to said Stafford & Son subsequent to the execution and delivery of the deed of 1910, and the necessity for a longer period of time in which to pay off all of said indebtedness, the said Stafford & Son agree to give said Mrs. Means two years, and if absolutely necessary three years, in addition to the five years stipulated in the said conveyance of 1910, in which to pay off and discharge all the indebtedness secured by this and the said 1910 conveyance.” This last provision of the contract is not necessarily in conflict with any provision in the contract of T910, but the agreement binding the debtor to “pay first” out of all her crops and income “including ten bales of rent cotton from [her] old Means place, or from any other resources or income that [she] may have,” all her indebtedness to Stafford- & Son which shall be created or made .during the year 1913, “before requiring or asking that any payment made shall he credited upon the notes secured” by the contract of 1912, is plainly in conflict with the agreement of 1910, which required the debtor to turn over rent notes for ten bales of cotton each year, and also to reduce the indebtedness secured by the contract of 1910 by the payment of at least one of the notes therein described each year, since it required her to pay this identical cotton first upon her indebtedness for the year 1912, not secured by the deed of 1910 or of 1912, and made it impossible to pay off one of the notes annually until after payment of the indebtedness created in 1912 and not covered by the deeds. The plaintiff therefore could not declare a forfeiture because of the failure of the defendant to comply with requirements in the contract of 1910, which the contract of 1912 took it out of her power to perform; and therefore the default under the ¡Provisions of the contract of 1910 could not work a forfeiture of the right to extension therein provided for. Also, notwithstanding the recital in the contract of 1912 that all the provisions of the contract of 1910 are embraced and embodied therein, the latter contract contains an express agreement (based upon the fact, therein stated, that the indebtedness of the defendant was largely increased after the execution of the deed of 1910, and a necessity for a longer period of time in which to pay off the indebtedness had therefore been created) that Stafford & Son would give Mrs. Means two years, “and if absolutely necessary three years, in addition to the five years stipulated in the conveyance of 1910, in which to pay off and discharge all the indebtedness secured by this and the said 1910 conveyance.” If the condition in the contract of 1910 which required the debtor to turn over and transfer rent notes for ten bales of cotton, and to pay off in full one of the notes thereby secured each year, was ingrafted upon and made -a part of the contract-of 1912 in order to prevent the forfeiture of the privilege of an extension of five years therein granted, it must be considered in connection with all the terms of the latter contract; and'the provision in the contract of 1912 requiring the debtor to pay first another debt out of all.her crops and income, including ten bales of rent cotton from the old Means place (described in both security deeds), might absolutely preclude the possibility of complying with the above-mentioned terms of the contract of 1912.

It is not alleged by the plaintiff that the indebtedness of 1912 had been in fact paid by Mrs. Means, the debtor, and that there remained in her hands thereafter any rent notes not turned over in compliance with the contract of 1910; or, in other words, it does not appear that the entire income and all the rent notes of the debtor were not consumed in discharging the indebtedness which was incurred in 1912. So far as appears from the pleadings, the contract of 1912 took it absolutely out of the power of the debtor either to deliver over the rent notes for ten bales of cotton as- additional security each yeay, or to make annual payments on her indebtedness of at least the amount of one of the notes described in the security deed. The contract of 1912 amounted, therefore, to a novation of the contract of 1910, in so far as-the two were in conflict; and since the forfeiture provided for could not operate, and the right of action had not otherwise accrued at the time the suit was brought (the original five years and the additional three years not having then expired, and no sufficient facts being pleaded to show any forfeiture of the right to extension provided for by both contracts), the action was prematurely brought.

Judgment afvrmed.

George and Luke, JJ., concur.


text:
    8141.
    TOWALIGA FALLS POWER COMPANY v. FOSTER.
    The evidence admitted over objection was material and relevant to the issues in the ease. The instructions of the court excepted to are not, for any of the reasons assigned, erroneous. The evidence is sufficient. to support the verdict, and the court did not err in denying the motion for a new trial.
    Decided February 16, 1917.
    Action for damages; from Butts superior court—Judge Searcy. January 7, 1916.

      Cleveland & Goodrich, Persons & Persons, W. E. Watkins, for plaintiff in error. C. L. Redman, contra.
   George, J.

Foster brought suit against the Towaliga Falls Power Company, and alleged: that the defendant, several years before the filing of the suit, erected a dam across the Towaliga river, in Monroe county, thereby causing “the water in said river to flow up said river and its tributaries for several miles, creating a pond of back water over” a large area of land, and submerging therein large quantities of timber, logs, trees, brush, and vegetable matter, causing the same to decay; that the said pond created and generated “impure and poisonous air, miasma, and malaria, and mosquitoes in great numbers, rendering the country thereabout unhealthy, .and causing and transmitting miasma and malaria;” that the plaintiff and his family resided, during the years 1911 and 1912, and for many years prior thereto, on a farm owned by his mother, -in the fork of Cabin creek and Towaliga river; that “the dwelling in which plaintiff and his family resided was within less than one half mile from the back water in said pond; that said pond of water was backed on two sides of said dwelling;” that his premises were “permeated with impure and poisonous air, miasma, and malaria, and . .. infected with said mosquitoes, rendering said premises unhealthy and unfit for residential purposes;” that on account of-the conditions described in the petition, he was stricken with malarial fever on the first day of August, 1911, and remained sick until the filing of his petition; that his business was farming, and the value of his services was $100 a month, and that he was unable to attend to his business for the period of sixteen months; that during the said time he experienced great pain and suffering; that his wife was also made sick, her sickness being caused by the unsanitary condition of the said pond and by the bites .of the mosquitoes, and by breathing the said impure and poisonous air; that for sixteen months his wife was unable to perform her accustomed duties as a housewife, and he lost thereby $800, the value of her services; that by reason of the sickness of his wife and himself he expended $200 for medical treatment and drugs; that the said pond, in its present condition and in its condition during the years of 1911 and 1912, is a nuisance; that prior to 1911 and 1912 the home occupied by the plaintiff “was healthy and a desirable place to reside,” and that he and his wife were, prior to the wrongs complained of in the petition, healthy and free from malaria. Damages were laid in the sum of $5,000 or other large sum, on account of the described sickness of the plaintiff and his wife, and on account of the great pain and suffering experienced by him from his sickness. The jury found for the plaintiff in the sum of $1,500, and the defendant filed a motion for new trial, which was overruled; and it excepted.

1. In grounds 1, 2', and 3 of the amendment to the motion for a new trial, exceptions are taken to the admission of certain evidence offered by the plaintiff. The evidence objected to is to the effect that the water in the river was backed by the building of the dam, and covered a large area of land, from which the brush and timber had not been removed, resulting in the decay of the brush and timber and causing the water to stagnate and mosquitoes to breed, and producing offensive odors; that in 1911 and 1912 mosquitoes in great numbers were on the pond of the defendant company, and that prior to the erection of the dam and the raising of the water in the river, no mosquitoes were known to exist in the swamp. The specific objection urged was that the evidence re-' ferred to conditions existing generally and in all parts of the pond of the defendant. The evidence was not confined to the condition of the pond nearest the plaintiff’s home, but evidence of the general condition of the' pond was, under the pleadings in this case, properly admitted in evidence.

2. Complaint is further made of the ruling of the court in permitting Dr. Phillips, a witness for the plaintiff, to testify that a person living near a pond and breathing bad odors and impure air would be thereby depressed and rendered more susceptible to malarial fever, because his power of resistance to the bite of the mosquito would be lessened or reduced. We think this evidence was admissible under the pleadings in this case. While the medical testimony introduced by the plaintiff was to the effect that only malarial fever could be transmitted by the mosquito, the foul and offensive odors arising from the pond are alleged in the petition to be one of the causes producing the sickness of the plaintiff and his wife. It was competent for him to prove that this condition of the pond, as well as the mosquitoes, either caused, or contributed to cause, the injuries set forth in his petition. The impure air arising from the pond can not, under the evidence in this case, be considered.as the direct and sole cause of his illness, but, according to the testimony of the physician, it contributed to cause the sickness to both the plaintiff and his wife.

3. The charge complained of in ground 5, based upon the physician’s testimony referred to above, was not, for any of the reasons assigned, erroneous, and was properly adjusted to the facts of the case.

4. Grounds 6 and 7 were addressed primarily to the discretion of the trial judge. . Counsel for the plaintiff in error have properly abandoned them in this court. '

5. The court charged the jury as follows: “In some torts the entire injury is to the peace, happiness, or feeling of the plaintiff, and, in estimating these damages, no rule for fixing or estimating them can be prescribed, except the enlightened conscience of fair and impartial jurors. The amount to be recovered, if any, is such as shall be assessed by fair and impartial jurors, acting from their enlightened conscience as to what would be fair and just to both parties;” and further charged that “general damages are such as the law presumes to How from the tortious act, and may be recovered without proof of any amount.” The plaintiff in error contends that these instructions are error for the following reasons: (1) that the plaintiff did not claim damages for injury to peace, happiness, or feeling; (2) that there were no acts of aggravation, either in the act or intention, shown by the evidence in the case; and (3) that, under the facts of the case, general damages, in addition to damages for lost time, loss of services of the wife, and medical expenses, were not recoverable. We think they were. In the case of Swift v. Broyles, 115 Ga. 885 (42 S. E. 277, 58 L. R. A. 390), the Supreme Court said: “Undoubtedly, it was [the plaintiff’s] right to receive additional compensation for any annoyance or discomfort occasioned by the air in and about his dwelling-house being permeated with noisome gases and offensive odors discharged from defendant’s fertilizer plant. . . Where there is such a wrongful interference with the comfortable enjoy-' ment of property by a person in possession, no precise rule for ascertaining the damage can be given, as, in the very nature of things, the subject-matter affected is not susceptible of exact measurement; therefore the jury are left to say what, in their judgment, the plaintiff ought to have in money, and what the defendant ought to pay, in view of the discomfort or annoyance to which the plaintiff and his family have been subjected by the nuisance.” See also Jones v. Royster Guano Co., 6 Ga. App. 506 (65 S. E. 361).

6. The court charged the jury as follows: “If you find, from the evidence, that the sickness of the plaintiff and his wife (if you find they were sick) was caused, as alleged in his petition, by malarial fever, caused by the unsanitary condition of said pond, and from the bite of mosquitoes, which transmitted to him, and also to his wife, malaria, and by breathing said impure and poisonous air from the pond of the defendant company, and not from elsewhere, you would be authorized to find for the plaintiff.” Exception is taken to this charge on the ground that the court therein intimated and expressed an opinion “that the pond of the defendant was in an unsanitary condition, and that it produced impure and poisonous air, and that it produced mosquitoes.” We do not think that the judge in this charge intimated or expressed any opinion on the disputed issues in this case, and certainly the jury could not have so construed the charge.

The evidence supports the verdict; and since the petition charged that the plaintiff’s injuries resulted not alone from the bite of the particular mosquitoes claimed to cause or transmit malaria, but from the breathing of foul and impure air arising from the pond of the defendant, and due to the decaying vegetable matter negligently left therein by the defendant, the court properly admitted evidence to the effect that impure air and foul and poisonous odors arising from such condition would reduce the power of resistance of one brought constantly in close proximity thereto, and render such person more susceptible to malaria; and the court correctly gave to the plaintiff the benefit of such contention upon the trial of the case. TJnder the pleadings and the evidence the jury were authorized to find that the impure and poisonous air arising from the defendant’s pond, and the bite of the mosquitoes coming therefrom, either caused, or contributed to cause, the fever from which he suffered. There was no error in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and LuTce, J., concur.


text:
    8153.
    Murph Machinery Co. v. Burke.
   Wade, C. J.

1. There was evidence from which the jury could properly infer that the attorney at law for the plaintiff had special authority from his client to discharge the claim against the defendant and settle a suit pending thereon for less than the full amount in cash apparently due on the claim; and the conflict as to the exact terms of the compromise agreement finally arrived at between that attorney and the defendant’s attorney was for determination by the jury.

2. There is no substantial merit in any of the special assignments of error; and since there was evidence to support the verdict, the court did not err in overruling the motion for a new trial.

Decided February 16, 1917.

Complaint; from Wilkinson superior court—Judge Park. December 15, 1915.

Feagin & Hancock, for plaintiff.

Chambers & Beaver, for defendant.

Judgment affirmed.

George and Luhe, JJ., eoneur.