author: Bell, J.

text:
    14430.
    MILLER v. JONES.
    “When rented premises become out of repair, it is the duty of the tenant to notify the landlord of this fact, and also to abstain from using any part of the premises the use of which would be attended with danger. But even after notice to the landlord the tenant has a right to use those parts of the premises which are apparently in good condition, if there is nothing to call his attention to what may be a hidden defect. The failure of the landlord to repair in such a case would give the tenant a right of action for any damages sustained by him, and his use of that part of the premises which was in an apparently sound condition would not preclude him from recovering, notwithstanding he had knowledge that there were other parts of the premises in a defective condition. Slack v. Karris, 111 Ga. 149, 151.” Alexander v. Owen, 18 Ga. App. 326 (89 S. E. 437).
    Decided December 7, 1923.
    Damages; from Muscogee superior court—Judge Munro. March 13, 1933.
    E. L. Jones sued J. E. Miller, his landlord, for damages, alleging that he suffered personal injuries by reason of defects in the rented premises, a dwelling house. The petition as amended alleged:
    “(?■ That at the time petitioner rented said house and occupied the same as tenant as aforesaid the floors in the rooms and halls in said house were apparently in good and safe condition and repair, no patent defect existing.
    “7. That on or about the 21st day of February, 1922, the floor in the front room of said house adjacent to the front hall gave way, caved in and fell through with petitioner while he was sitting in a chair leaning against the partition wall between the front room and front hall of said house.
    “8. That on or about said date of the 21st day of February, 1922, petitioner gave notice to the said Miller that the floors in said dwelling house needed repairs,—that they were unsafe and unfit for occupancy; said notice being given to the agents of said Miller, to wit, B. H. Harris & Co., they then and there being the agents of the said Miller in charge of the said premises acting for and in behalf of said Miller, the said notice being in writing and being in the following words and eifeet, to wit: “'Columbus, Ga., 2-21-22. B. H. Harris Co. The floors and roof of the house I am renting from you need repairing. Please see to this at once. Respt., F. L. Jones, 207 26th Street.’
    ““9. ’ That subsequent to the 21st day of February, 1922 (the exact date being now unknown to petitioner), he requested the said J. E. Miller to repair the floors in said house as referred to in paragraph 7 aforesaid, talking to him on Broad street, in the City of Columbus, Georgia, in front of the Flournoy Realty Company’s office, telling him that the planks in the floor in the room, while apparently sound on their surface, had failed to withstand the weight of plaintiff’s body while sitting in a chair, and beneath the surface were not sound, and stating that they were defective, decayed, rotten, and unsound for use for which they were intended and being used.
    ““10. That on or about the 14th day of March, 1922, petitioner shows that certain planks in the floor in the hall of said house, adjoining the front room thereof, broke, rotted, decayed, gave way, and caved in while petitioner was walking on them in said hall, precipitating petitioner to the floor and causing his right foot to fall through skid floor up to and including his right thigh, greatly injuring and damaging him as hereinafter stated.
    ““11. Petitioner shows that the planks in the floor in the front hall of said house appeared at that time to be safe and sound and in good repair, and, relying upon said apparently sound and safe condition of said floor, and not knowing of the latent and hidden defects and decayed condition of the planks in said hall beneath the surface and underneath the top surface of said planks in said floor until the injury aforesaid on the 14th day of March, 1922, petitioner continued to occupy said dwelling house as tenant as aforesaid, and made use of said hall in the ordinary and usual manner of occupancy.
    “12. Petitioner shows that although the said planks in the floor of the front hall were apparently sound and safe and in good condition and repair, they contained hidden and latent defects not apparent upon the surface, but under and beneath the top surface of the floor they contained defects and decay not known to petitioner, and were in fact defective, decayed, rotten, and broken, and were not strong enough to support the weight of petitioner’s body, and did break into, give way and fall in, causing petitioner to fall through said floor as aforesaid, and injured and damaged him as alleged.
    “12-a. Petitioner alleges that the floor in said front room and front hall of said house was one continuous floor, the planks of same running from room to hall and from hall to room; that an inspection of the floor in said front room of said house by defendant, or had the repairs requested been made by him, would have disclosed the hidden and latent defects and decayed condition in the planks and floor of said front hall, or by the use of ordinary care and diligence he would and should have discovered the unsound and unsafe and defective condition of said planks and floor in said front hall; that the said injuries to petitioner were due to the carelessness and negligence aforesaid of defendant in failing to discover said defective condition of said planks and floor of said hall, and failing and refusing to inspect and repair said planks and floor in the front room of said house as aforesaid.
    “13. Petitioner shows that the said J. E. Miller had been fully advised of said defective condition of said floor as aforesaid, and had had sufficient and reasonable [notice?] from the 21st day of February, 1922, to the 14th day of March, 1922, to replace and repair the planks in the floor of said house as aforesaid prior to the time of said injury.
    “14. Petitioner shows that the said J. E. Miller did carelessly and negligently fail and refuse to replace and repair the defective planks' in said floor as aforesaid, tbongb often requested so to do, and the said damage and injuries to petitioner were the result of said carelessness and negligence on the part of said J. E. Miller.
    “15. Petitioner shows that he sustained said damage and injuries without fault or.blame on his part; that by the exercise of ordinary care and caution he could not have avoided said injuries; and that at the time he sustained said damage and injuries he was occupying said house as tenant as aforesaid in the usual and customary manner of occupancy, and did not know and had no knowledge of the said defective condition of said planks and floor in said front hall of said house.”
    A general demurrer to the petition was overruled, and the defendant excepted.

      J. E. Chapman, A. W. Cozart, for plaintiff in error.

      J. B. Royl, contra.
   Bell, J.

(After stating the foregoing facts.)

Under the authorities cited in the headnote there was no error in overruling the demurrer. See also Roach v. LeGree, 18 Ga. App. 250 (89 S. E. 167); McGee v. Hardacre, 27 Ga. App. 106 (3), (4) (107 S. E. 563); Zaban v. Coleman, 27 Ga. App. 376 (3) (108 S. E. 555). This case is distinguishable from Ball v. Walsh, 137 Ga. 350 (73 S. E. 585), and from Weyman v. Maynards 24 Ga. App. 94 (100 S. E. 25), for .in each of those cases it affirmatively appeared, from the’ declaration, that the plaintiff by the exercise of ordinary care could have avoided the consequences to himself caused by the defendant’s negligence. It also appears in the last-mentioned ease that the defects must necessarily have been plainly apparent and that the defendant had not only had opportunity equal to that of the landlord of discovering and understanding the defects (which furthermore existed at the time of the renting), but had actual knowledge thereof with full opportunity of notifying the landlord thereof prior to the time of the damage or injury.

Even after notice of defects given to the landlord the tenant is entitled to continue in the use of the premises without losing his right of redress- for any damage sustained, provided the conduct of the tenant in so doing is not such' as to preclude him from recovering, and he will not be so precluded unless by the exercise of ordinary care he could have avoided the consequences to himself of the defendant’s negligence. Stack v. Harris, supra; Civil Code (1910), § 4426. “There is no allegation from which the inference can be drawn, as matter of law, that they [the defects] were so obviously dangerous as to have put a prudent person upon notice of any danger which might result from their use; and, the demurrer to the declaration admitting the facts, it should have been overruled, and the questions of fact made in the ease submitted to the jury.” Johnson v. Collins, 98 Ga. 271, 274 (26 S. E. 744); Alexander v. Owen, 18 Ga. App. 326 (89 S. E. 437).

It will be noticed that the plaintiff is suing for injuries which he suffered in falling through the floor in the hall, which he alleges was in apparent good condition. It cannot be determined, as a matter of law, from the petition as framed that he was guilty of a want of ordinary care in using this portion of the dwelling because he had previously fallen through the floor in a different room, referred to in the petition as the “front room.” We think what is said in the Slack case, supra, on page 151, might be repeated with equal applicability to the case at bar.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14501.
    HERZFELD v. SOUTHERN SAW MILL COMPANY.
    The words of the telegram, “Please cancel orders 7x8 ties. See letter,” taken in connection with the letter referred to, must be treated as a repudiation of the contract in question, and not merely a request for cancellation.
    The petition as amended set forth a cause of action, and should not have been dismissed on general demurrer.
    Decided December 7, 1923.
    Complaint; from city court of Thomasville—Judge W. H. Hammond. April 2, 1923.
    The petition of Herzfeld alleges: that on October 1, 1920, he received from defendant an offer to purchase 100,000 feet of lumber of a designated class, to be made into cross-ties, which were to be shipped as per instructions to be sent by defendant with formal order confirming purchase; price $45 per thousand f. o. b. cars, shipment 30 to 90 days, B. & O. inspection; that on October 2 plaintiff by letter accepted the offer, and on October 4 defendant rendered the agreement complete and binding by forwarding shipping instructions, by which the timber was to be shipped to Baltimore & Ohio Railroad Company, partly at Newark, Ohio, and partly at Green Springs, West Virginia; that petitioner manufactured the ties and was ready and offering to deliver them when he received from defendant, in due course of mail, under date of November 9, 1920, a written instrument, breaching the contract, as follows: “Thomasville, Ga., November 9, 1920. Herzfeld Lumber Company, Alexander City, Ala. Dear Sirs: We have just wired you as follows, which we now beg to confirm: 'Please cancel orders 7x8 ties. See letter.’ We regret very much the necessity of canceling these orders, but the officials of the B. & 0. Railroad have taken a very arbitrary stand, and state that the original instructions to their purchasing agent was that these ties were to come from Florida, and be cut from nothing but Florida timber, and they are refusing to accept shipments from any other territory. We were not advised of this fact when booking the order, but so far have been powerless to get them to agree to inspect shipments from any other territory, although we have assured them that Georgia and Alabama timber is just as good as Florida timber, but they seem to think differently. Kindly acknowledge receipt. Yours very truly, The Southern Saw Mill Company, Pardee.”
    The petition is in two counts. In the first count as amended the plaintiff alleges: “6. Under date of July 10, 1921, defendant received from petitioner a telegram, in words as follows: 'Offered sixty cents for ties held for you. Unless you send shipping instructions by thirteenth, will accept offer and charge you the difference. Wire answer, urgent.’ This offer meant 60 cents per tie, or $1484.25 for the 100,000 feet of ties, and was the highest and best offer obtainable at any time between the date of breach of contract and date of resale. 7. After receipt of said telegram defendant continued to refuse to perform its contract, and September 1, 1921, petitioner accepted the offer referred to in behalf of defendant, and credited defendant with $1484.25, the best and highest price to be obtained, leaving defendant due petitioner the sum of $3015.75, being the difference between the contract price and the price obtained at resale.” Defendant demurred specially to paragraph 6 as follows:
    “To paragraph 6 of the first count, upon the ground that the allegations therein are insufficient under the plaintiff’s petition to constitute legal notice to the defendant of plaintiff’s intention to make a resale of the goods, and because the name of the person making said offer is not stated, nor is the name of the person to whom the said goods are alleged to have been resold stated therein, nor is the place of said sale given.” By amendment plaintiff thereafter added paragraph 9, aménding paragraph 6, and added paragraph 10, as follows: -“T., The offer was made by the Birmingham & Southeastern Bailroad Co., through its receiver, Mr. Win-ton Blount, to whom said ties were sold at said price on said date described in paragraph 7 f. o. b. cars mill contemplated in both the contract with defendant and the contract and offer 'of resale. 10. Notice as required by law was given of plaintiff’s intention to make said resale for defendant’s account.”
    By the second count, after alleging a breach by the defendant on account of the letter dated November 9, as already quoted, plaintiff alleges by his petition as amended that: “6. The total price according to contract of said ties was $4500, and the market price at the time and place of delivery was $1484.25. The difference between contract and market price is $3015.75, which said sum of $3015.75 the Southern Saw Mill Company' is due and fails to pay petitioner. 7. As a result of the breach of said contract the Southern Saw Mill Company is due and refuses to pay petitioner, besides the principal sum $3015.75, the interest upon same since the date of delivery, according to contract, at the rate of seven per cent, per annum.” By amendment paragraph 8 was added to this the second count, as follows: . “After defendant refused to take and' pay for said goods bought, plaintiff retained them,, and the market price f. o. b. cars mill on December 31, 1920, the time and place for delivery, was as alleged in paragraph 6 of this count.”
    Defendant demurred generally and specially. After the amendments to plaintiff’s petition, defendant renewed its original special demurrer to paragraph 6 of the first count as amended by paragraph 9. Defendant also renewed its special demurrer to paragraph 10 of the amendment, upon the ground “that same is a mere conclusion of the pleader, it not being adjudged [alleged?] what the notice was, nor its contents set out, nor does it allege how or whom,—that is to say, to what person or persons, if any, connected with defendant corporation,—such alleged notice was given, to enable this defendant to defend as to such alleged notice of resale.” The first of these renewed demurrers was sustained, the second overruled. The court sustained the general demurrer to the petition as a whole. To these rulings the plaintiff excepted. ' 1

      W. I. MacIntyre, J. B. Graigmiles, for plaintiff. -

      Titus & Dekle, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) It is-the contention of counsel for defendant in error that “there never was any refusal by the buyer to take and pay for the goods; that under the contract the buj^er had the right to request a cancellation, and this would not amount to a breach; that the seller distinctly avers that the goods were manufactured and ready for delivery under the contract before the buyer requested a cancellation, and at that time the seller had as a part of the contract its positive shipping instructions;” that “under these-circumstances he could not fail or refuse to carry out these shipping instructions and resell the goods, nor was he justified in retaining them in violation of his own contract and suing to recover the difference between the market price and the contract price at the time and place of delivery;” that “he should have delivered as he had contracted to do;” and that consequently the petition set forth no cause of action.

In Phosphate Mining Co. v. Atlanta Oil Co., 20 Ga. App. 660, 662 (6) (93 S. E. 532), the rule is stated, that “an executory contract may be broken, but it cannot be rescinded, by the act of one of the parties. The consent of both parties is essential -to a rescission of the contract” (citing Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 42 S. E. 378, 50 L. R. A. 122, 94 Am. St. R. 112). The provision contained in plaintiff's letter of acceptance, that the purchase and sale was “subject to cancellation only when agreed to by both parties,” is but a statement of what'constituted the legal rule. If the contention of-defendant in error be correct,-that the petition shows that the defendant did hot by its words and conduct breach its obligation, that ther'e was-never any refusal on its part to take the goods, but that the-pleadings> properly construed.; show merely that the defendant requested a cancellation, this--would be an end to the matter, since the plaintiff vendor--in such a case would not have been' relieved of the duty of complying with its own obligation to ship the goods as provided for by -the contract, There is nothing whatever contained in the record which in anyway indicates an agreed rescission. Therefore, the question is, did the defendant purchaser breach the contract, or merely propose a cancellation? If what he said may be taken and construed as an announcement that he would not accept the goods contracted for, it amounts to a breach. The telegram must be construed in connection with the letter to which it refers. If the telegram stood by itself, it might reasonably be taken as constituting a mere request for a rescission of the agreement. As here used, “the imperative, followed by the infinitive, generally without to, is used as a form of polite request or entreat^.” (Standard Dictionary.) But when the telegram is construed in connection with the letter, it seems clear to us that the purchaser in unmistakable terms puts the seller on notice that he will not take or accept the goods. The letter does not ask for, but announces, a cancellation. It expresses regret for “the necessity,” not of making a request, but of “cancelling these orders,” and states as a reason for its conduct in so doing that the railroad, to which they had been ordered shipped, had positively refused to accept them. This being the only shipping direction with which the plaintiff seller had been furnished, the letter amounted to an absolute refusal to take the goods; and we cannot agree with the contention of defendant in error that the seller, despite such notice, could or should have proceeded to make the shipment as previously indicated. The letter concluded by asking, not acquiescence, but mere acknowledgment of its notice of cancellation.

Each count was good as against general demurrer. The court has ruled that the allegation as to notice, made in paragraph 10 of the first count, was not subject to special demurrer. No exception is taken to this ruling. “Whether a seller, who, upon the purchaser’s refusal to take and pay for goods bought, elected to resell and recover the difference between the contract price and that obtained on the resale, exercised reasonable diligence to sell within a reasonable time and at the best price he could obtain is a question for the jury.” Bennett v. Mann, 24 Ga. App. 581 (2) (101 S. E. 706).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14651.
    Lee v. Wilmington Savings Bank.
   Jenkins, P. J.

This was a suit on a promissory note, whereby, in accordance with a provision therein, the plaintiff exercised its option to treat the note as past due on account of default in payment of interest. The plea of the defendant set forth: 1st. “Prior to said interest coupon becoming due, it was agreed between defendant and plaintiffs, through their agent and attorneys, Tilson & McKinney, that if said interest was not paid when due, defendant was to pay an additional and valuable consideration for the time taken to pay same beyond time said interest coupon was due.” By a proffered amendment the defendant sought to show that for such indulgence the defendant “was to pay a substantial and agreed upon amount of consideration, and defendant acted upon and is now acting upon said agreement.” 2d. “After said interest coupon was past due, plaintiffs through their said agents and attorneys did waive right to declare the principal sum due and collectible, by ignoring their right to declare the principal sum due for nonpayment of said interest coupon, insisting that defendant pay all or as much as he could, and as fast as he could (telling defendant that they were very anxious to have same paid to avoid criticism), and, if he would do so, they would give him time. Plaintiffs by their said agent and attorneys, after interest was due, did accept part of same, stating, if same was paid, they would waive for a time their rights to declare the principal sum due, for they preferred interest paid to exercise right to foreclose.” By a proffered amendment the defendant sought to show that by such conduct plaintiff “recognized defendant’s right to pay same in lieu of declaring the principal sum due,” and “that plaintiffs have forever waived their right to declare the principal sum due for nonpayment of interest.” On objection by plaintiff the amendments referred to were disallowed, and on motion the plea was stricken and the case ordered to proceed as in default. To these rulings and orders and to the verdict in the plaintiff’s favor the defendant excepts. Held:

1. “The elements of certainty, mutuality, and consideration are necessary to constitute a valid agreement for an extension of time.” 8 C. J. 426 (§ 628); Alston v. Wingfield, 53 Ga. 18 (2), 24; Tatum v. Morgan, 108 Ga. 336 (33 S. E. 940); Holmes v. First Nat. Bk., 19 Ga. App. 810 (2) (92 S. E. 298). The agreement for an extension was therefore fatally defective.

2. The conduct of the plaintiff in giving the defendant an opportunity to pay the interest after his default, instead of instanter accelerating the maturity of the entire debt, did not operate as a waiver of his rights under the contract. The rule stated in King v. Lipsey, 142 Ga. 832 (1) (83 S. E. 957), has no application in a case such as this. The holding in that case was as follows: “Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so. Civil Code (1910), § 4268, par. 8. But where time is of the essence of the contract, it may be waived; and where the contract is not treated as at an end, but there is insistence as to the performance on the one side after the date of maturity, and a part performance aeeepted on. the other, this'amounts to a whiyer.” Theye the question did not in any wise relate to wlien the contract of purchase and sale could be.enforced by the seller,.but solely to.whether the buyer’s previous default'-in the terms of-payment-operated to forfeit his entire’rights under the agreement, despite the fact that subsequent' to suCli default the seller had induced and accepted payments and benefits under the contract which he laiter sought to repudiate in its entirety. Such • conduct on the vendor’s 'part, being inconsistent with his original right to rescind the contract of sale, amounted to a waiver of such right. Here the validity of the loan contract is not in issue, the contention being that the conduct of the lender amounts to a waiver of one of its terms. There is no merit in the contention that the conduct of the plaintiff in mei-ely seeking to induce the defendant to comply with the terms of his agreement waived his .right to insist thereon. ■

Decided December 7, 1923.

Complaint; from Newton superior court—Judge- Hutcheson.' March' .20, 1923.’ . "

Application'for certiorari was denied by'the Supreme Court.

Robert Lee, for plaintiff "in error.

J. Howell Green, Tilson & McKinney, contra.

Judgment affirmed,.

Stephens and Bell, JJ., concur.


text:
    14733, 14799.
    Norris v. Gray et al.; and vice versa.

    Decided December 7, 1923.
   Jenkins, P. J.

‘/When a document purporting, to Ipe.a brief of evidence is extensively .interspersed, with, statements and arguments of- counsel and rulings of the court on .evidence . . , the paper will not be treated by this court as a brief of evidence, and no question made in the record which is dependent upon the evidence will be decided.!’ Graham v. City of Baxley, 117 Ga. 42 (2) (43 S. E. 405); Equitable Mortgage Co. v. Bell, 115 Ga. 651 (1) (42 S. E. 82); McComb v. Hines, 123 Ga. 246 (51 S. E. 300); Wall v. Mercer, 119 Ga. 346 (46 S. E. 420); Scott v. Davis, 22 Ga. App., 32 (3)(95 S. E. 332); Shaine v. Block, 28 Ga. App. 329 (111 S. E. 79); Avery v. Graham, 26 Ga. App. 161 (6) (105 S. E. 708); Jackson v. Dorsey, 26 Ga. App. 372 (4) (106 S. E. 210). In the instant case, more than two third's of what' purports to be a brief of the .'evidence being made up of testimony in'- question and answer form, or- bqing commingled with colloquies of counsel and rulings or statements.-of .the .court, and a consideration of the testimony being neces'sary -to determine the questions raised by the grounds of the .plaintiff’s .motion -for la new trial, and: the defendants in error moving for' an affirmance of the ruling of the court below for the reason stated, the -judgment, in accordance with the authorities cited, must be affirmed.

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

Stephens and Bell, JJ.', concur.

Complaint; from Atkinson■ superior court—Judge Dickerson. May 3, 1933.

G. F. Fielding, Q. E. Mingledorff, for plaintiff.

F. B. Smith, W. G. Lankford, for defendants.


text:
    14741.
    RAWLEIGH COMPANY v. SALTER et al.

    This .ease is. controlled by tlie ruling oí this court in Etheridge V. 'Rawleigh ■ do., 39 Ga. App. 698 (116 S. E. 903). The ■ defendants in error,, being guarantors, could not be joined as defendants with the principal debtor, and the court did not err in dismissing the action ds- to them.
    Decided December 7, 1923.
    Action on guaranty; from Tift superior court—Judge Eve. June 9, 1933. . •
    The contract signed by the principal debtor is as follows: “Renewal Contract.
    “1. This contract made and entered into at the city of "Minneapolis, State of Minnesota, by and between the W. T. Rawleigh Company, an Illinois corporation, hereinafter called the seller, and John Q. McDowell, of Whigham, in the State of‘Georgia, hereinafter called the buyer.
    “3.. Witnesseth: Whereas said buyer desires to purchase of the seller, at wholesale, such of its manufactured products as the seller shall hereinafter determine to sell to the said buyer, the kind and quantity of which is to be optional with the seller, •
    “3. The seller agrees to sell and deliver to the buyer f. -o. b. Minneapolis, Minnesota, or at its option f. o. b. Freeport, Illinois, or any of its branch houses, or at any other point agreed upon, such of its products as hereinabove specified Jnd at current wholesale prices, unless prevented by strikes, fires, accidents, or other causes beyond its control; the said buyer to furnish signed orders for such goods.
    “4. The buyer agrees to pay said seller the invoice price for all products so purchased under this agreement, also any balance due the seller at the date of the acceptance of this renewal contract, by cash, or by installment payments satisfactory to the seller, subject to the discounts as shown in current discount sheets and subject to paragraph 6 hereof.
    “5. The seller will at its option also sell to the buyer a wagon or a body suitable for auto chassis, for cash, or partly or -wholly on time, such as the buyer may choose from the seller’s current wagon catalog, circulars, or other descriptions.
    “6. It is hereby further agreed that either party may at any time before the expiration of this contract, by written notice, terminate this agreement, and when so terminated the account then due and owing shall become immediately due and payable. If not so terminated, this agreement shall expire by limitation on the 31st day of December, 1920; and if buyer refuses and neglects to renew contract, the full amount due hereunder shall be due and payable promptly.

      “7. It is further agreed that if dealings conducted hereunder are mutually agreeable and satisfactory, that a new contract-may be entered into for the succeeding year, but the refusal on the part of the seller to enter into a new agreement shall not in anywise affect the agreement herein on the part of the buyer to pay his account.
    “8. Seller agrees to purchase from buyer any products (wagon excepted) he may have on hand, and pay or credit buyer with the wholesale price current when they are received, provided buyer returns them during the life of contract or promptly after the termination or expiration of same, and provided freight is fully prepaid to point seller designates said products are to be returned; buyer to pay seller the actual expense of inspecting and overhauling same.
    “9. It is mutually understood that the seller will furnish the buyer from time to time with educational salesmanship literature, consisting of Eawleigh’s Weekly, guide book, and other booklets, bulletins, circulars, leaflets, and letters of advice and suggestions for the sole purpose of aiding and assisting buyer in making sales and collections; but it is expressly agreed that nothing contained in any of the foregoing literature, letters, booklets, bulletins, leaflets, etc., shall be taken in any wise to alter, modify, change, or affect this agreement, and shall only be considered as educational and advisory.
    “10. And it is further understood and agreed by and between the parties hereto that this contract includes and does and-shall constitute the sole, only, and entire agreement between the parties hereto, and further that this contract cannot and shall not be changed or modified in any particular whatsoever by any employee or representative of the seller in any capacity, unless any such change or modification shall first be specifically reduced to writing and signed by both of the parties hereto, and then any such change or modification shall- only be effective after the corporate seal of the seller shall have been duly affixed thereto.
    “11. In witness whereof the parties hereto have set their hands and seals, the seller in its corporate name by its President thereunto duly authorized, and its corporate seal hereunto affixed, and the said buyer in his own proper person.
    “The W. T. Eawleigh Company
    “Accepted by W. T. Eawleigh, President.
    Jan. 2, 1920,
    at Memphis, Tenn. (Seal). (Signed) J. Q. McDowell (Seal).”
    The obligation signed by the defendants in error is as follows:
    “For and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby expressly confessed and acknowledged, or in consideration of the above-named seller extending further credit to the said buyer, we, the undersigned, do hereby jointly and severally guarantee unto said The W. T. Eawleigh Company, the above-named seller, unconditionally, the payment in full of the balance due or owing said seller on account, as shown by its books at the date of the acceptance of this contract of guaranty by the seller, and the full and complete payment of all moneys due or owing, or that may become due or owing said seller, and all indebtedness incurred by the buyer under the terms of the above and foregoing instrument by the buyer named as such therein; and to all of the terms, provisions, and agreements contained in said instruments we fully assent and agree, hereby waiving notice of acceptance by the seller, of this contract of guaranty, and all notice of any nature whatsoever, and agree that the written acknowledgment by said buyer of the amount due or owing on his account, or that any judgment rendered against him for moneys due the seller, shall in every and all respects bind and be conclusive, jointly or severally, against the undersigned. And we further agree that in any suit brought on this contract of guaranty by the seller no other or further proof shall be required of it than to establish the amount or sum of money due and owing to it from the said buyer, and when so proven shall be conclusive and binding upon the undersigned, and further that it shall not be necessary for said seller, in order to enforce this contract of guaranty, to first ■ institute. suit against said buyer, nor exhaust its legal remedies against him. And agree that any extension of the time of payment or payments to said buyer shall not release us from liability under this contract of guaranty.
    ■' “It is hereby mutually understood and agreed that this contract of guaranty is conclusive and-binding on the party or parties who sign it, whether the same-is signed by any other party or "parties or not, and that any statement oí representation made by any person-as to::thfe undertakings of the guarantor or guarantors other than- as herein expressed, or as to who or how many parties are to sign this guaranty, shall in no wise affect the rights of- the company ; and it is mutually understood that this is to be a continuing ¡guarkfityj and. any ."riotice in .any way affecting the responsibility ■or liability of the signers .hereunto, in order to become effective and 'binding upon the above-named seller, shall be reduced to writ- . ing- and delivered by registered mail to the office of said seller at • Minneapolis, Minnesota.,- ." ' ;
    :“'(Responsible men sign this contract of guaranty below.)
    (P. 0.
    .¡(Names.) - (Occupations.) addresses.)
    (Signed) “S. H. Salter (Seal) Farming. Camilla, Ga.
    (Signed) “E. A. Norton (Seal) Farming. Cairo, Ga.
    “The above-guarantors' are entitled upon request at any time to a statement of buyer’s account.
    , “(If you-expect"prompt consideration of contract, guarantors should sign names plainly, also occupations and full addresses must appear'plainly in .the above spaces.)
    References sign below.
    “Signed as'references: (Occupation.) (P. 0. addresses.)
    “N. F. Mallard, , Farmer, Pelham, Ga.

      “W. R. Miller, Gen. Mdse., Cairo.” .
    The signers of-the latter, contract-were joined in the same -action ■with the principal debtor. The petition alleged that “the consideration of $1 recited in said contract was not, in fact paid, the true consideration being the extension of credit by the plaintiff to the defendant McDowell.” - "

      Fulwood & Hargrett, for plaintiff.'
   Jenkins, P. J.

The contract sued on in this case is very similar in its essential features to that which formed the basis of the action in Etheridge v. Rawleigh Co., 29 Ga. App. 698 (116 S. E. 903). In that case the liability of the contending party was held to be that of guaranty, and not of suretyship. The same appears to be true in this case. The distinctions between these two forms of liability was gone into at considerable length in the opinion in that case. All that was there said is directly applicable here, and it does not seem profitable to repeat the reasoning there enunciated. The argument there used was summarized in the concluding paragraph, as follows: “The contract sued on, as we construe it, is one of guaranty, whereby the solvency of the principal as pertaining to the matters specified by his agreement was vouched for. In addition to the language of the contract repeatedly designating it as one of guaranty, besides its provisions with reference to the acceptance and notice of acceptance, which could have no possible meaning or relevancy to any contract of suretyship, and besides the fact that not only does the sponsor apparently fail to join with the principal in the same obligations, but the scope, effect, and extent of his liability under his promise are actually not the same,—in addition to all of these matters which have been specially pointed out, —it appears to our minds that the very nature and purpose of the instrument are more consonant with the idea that the sponsor seeks' to vouch for the ability and solvency of his principal than that he has sought to join with the principal in an indefinite obligation of this particular kind and character.” In that case we sought to show, that, while there might be various earmarks of distinction between contracts of guaranty and suretyship, including the one specially mentioned by the code (Civil Code of 1910, § 3538), the one vital and fundamental line of demarkation lies in the fact that, while a surety renders himself primarily responsible with the principal debtor and on the same undertaking, a guarantor becomes collaterally responsible by virtue of his own separate and independent obligation, whereby, without joining in the principal’s undertaking, he yet vouches for his solvency by guaranteeing that he will be able to perform as he has agreed. In Baggs v. Funderburke, 11 Ga. App. 173, 174 (74 S. E. 937), this court, speaking through Judge Pottle, said: “The test laid down in the code, to distinguish a contract of suretyship from one of guaranty, is not decisive. As with other contracts, the whole matter is governed by the intention of the parties. For instance, in the usual indemnity contracts, the parties generally intend that the indemnitor shall be surety, although he receives an independent consideration. And again, sometimes a contract will be construed to be one of guaranty, although the guarantor receives no consideration other than the benefit flowing to his principal.” In Musgrove v. Luther Publishing Co., 5 Ga. App. 279, 283 (63 S. E. 52), Judge Hill, speaking for this court, said: “It often happens, therefore, that contracts of guaranty do have the element of an independent consideration the benefit of which flows directly to the guarantor.”

In the instant case, able counsel for the plaintiif in error conclude their well-considered brief as follows: “We most respectfully submit that the Etheridge case should be reviewed and overruled, as in conflict with code-section 3538, Paris v. F. & M. Bank, 143 Ga. 324, Baggs v. Funderburke, 11 Ga. App. 173, Maril v. Boswell, 12 Ga. App. 41, Fields v. Willis, 123 Ga. 272, Manry v. Waxelbaum, 108 Ga. 14, 17.” Taking up first the Manry case: the ruling of the Supreme Court was not that the contract there involved was one of suretyship, but that it was one of continuing guaranty. The 3d headnote is as follows: “The defendant made the following contract with the plaintifls: ‘For and in consideration of the sum of one dollar in hand paid, and the receipt of which is hereby acknowledged, I, J. H. Manry, do hereby guarantee the prompt payment of all accounts .and notes given in settlement for goods purchased by G. W. Grubbs of Bethel, Georgia, from the Waxelbaum Company of Macon, Georgia, to the extent of four hundred dollars. Be it further understood that I, J. H. Manry, shall be at liberty to withdraw this guarantee at any time, provided that the account of G. W. Grubbs is paid.’ Held, that this was a continuing guaranty.” In the opinion of the court (speaking through Justice Cobb) it is said that it can be fairly inferred that tlie signer of this separate instrument “only intended to bind himself in case Grubbs (the principal) was not able to pay.” The excerpt quoted from the Etheridge case concludes with similar language. In Paris v. Farmers & Merchants Bank, 143 Ga. 324 (85 S. E. 126), and in Baggs v. Funderburke, supra, and Maril v. Boswell, 12 Ga. App. 41 (76 S. E. 773), cited in the Paris case, the contract sued on was a promissory note. This fact was pointed out in the Ftheridge ease. In the Baggs case is found this language (p. 174): “As a general rule, where one other than the payee undertakes to guarantee the payment of a note, and he employs apt language to evidence a contract of guaranty, the undertaking will not be construed to be one of suretyship, unless the only consideration be the benefit flowing to the principal. But if the contract be made at the time the note is executed, and solely in consideration of the benefit to the principal, or if made afterwards in consideration of an extension of time to the principal, or the like, the obligation will generally be held to be that of a surety, even though words importing a contract of guaranty are employed.” There does not seem to be any reasonable ground to question the soundness of this pronouncement. The syllabus of the Supreme Court in the Paris case is particular to point out that the contract sued on was “entered on the back of a promissory note executed by an individual and payable to a named bank.” In cases such as these, where the signer merely joins in with the principal debtor by adding his signature to the face or entering it on the back of the identical promise to pay, without indicating any separate and distinct consideration or differentiating in any way his own liability from that of the principal debtor, the obligation is that of a joint and several promise to pay, and his legal status is that of a surety with the principal, and upon the same undertaking. Where the promisor merely joins his promise to pay with that of the principal debtor on the same instrument, and without any sort of variation or limitation as to liability, about the only possible way that a distinct or collateral contract could be indicated would be to express a separate and independent consideration. The same reason is applied in Georgian Co. v. Jones, 154 Ga. 762 (115 S. E. 490), where the principal and the surety, both by the terms of the instrument itself and by their signatures thereto, became bound for one and the same undertaking.

The remaining case especially relied upon by plaintiff in error is that of Fields v. Willis, 123 Ga. 272 (51 S. E. 280). That case was indirectly referred to in the Ftheridge case as being one of the cases cited in McClain v. Georgian Co., 17 Ga. App. 658 (29 Ga. App. 705). To the writer this has been the one most difficult to reconcile with what he regards as the rule laid down by the decisions of the Supreme Court and of this court. The syllabus in that case is as follows: “ C. and F. enter into a written contract whereby C. agrees to sell F. a certain number of cattle at a stipulated price and is to receive á stated advance onrthe purchase-money, and C. further agrees to pay a certain amount of liquidated damages in case he fails to comply with his agreement. After the signatures to the contract appears the following: ‘We, the undersigned, guarantee the fulfillment of the above contract/ which is signed by W. The obligation of W., resting on no independent consideration, is that of surety” (123 Ga. 373). The ruling in the Etheridge case was based largely upon the construction which this court placed upon the rulings mqjde in Geiser Co. v. Jones, 90 Ga. 307 (17 S. E. 81); Sims v. Clark, 91 Ga. 303 (18 S. E. 158); Manry v. Waxelbaum Co., 108 Ga. 14 (33 S. E. 701); Holmes v. Schwab, 141 Ga. 44 (80 S. E. 313); Musgrove v. Luther Pub. Co., 5 Ga. App. 279 (63 S. E. 53); Ga. Casualty Co. v. Dixie Trust Co., 23 Ga. App. 447 (2), 448 (1) (98 S. E. 414). Does the Fields case lay down a rule contrary to the one thus arrived at ? It recognizes the soundness of the Manry case, in which the contract recites, as does the one here, an independent consideration of $1. It recognizes that the contract in the Geiser case was that of guaranty, both because the obligation was independent and the consideration' separate and distinct. As we interpret the Fields case, it is based not only upon the theory that the obligation of the defendant was without independent consideration, but that it was “primary and joint with the principal for the payment of the stipulated damages resulting from a non-performance” of his contingent obligation under the contract. In other words, it was an indemnifying bond, conditioned to save the obligee harmless up to a specific amount, on account of the principal’s failure to carry out his obligation to deliver certain cattle, as imposed upon him by the contract, and the decision is made to rest upon the well-recognized doctrine that one who signs a bond of such character occupies the status of a surety, and not that of a guarantor.

But irrespective of the correctness of our interpretation of the Fields case and other cases relied on by plaintiff in error, it seems manifest to us that here, as in the Etheridge case, they cannot possibly operate to change the result of the conclusion we have arrived at. In the instant case the contract signed by the principal-was complete within itself; it makes no reference whatever to any additional contract under which the defendant in error was to become bound. Quoting from the Musgrove case (5 Ga. App. 281) : “It is merely collateral to the contract which the principal signed; and he is in no way a signatory party thereto. The sole purpose of this collateral contract is to guarantee the faithful performance of the main contract; and the language used shows secondary and not primary liability. In no way do the guarantors join in the promise made by their principal; nor the principal in the contract made by his guarantors.” Here, as in the Etheridge case, the obligation of the defendant in error was not “identical with that of the principal,” and for the same reason. Graham v. Roberson, 79 Ga. 72, 74 (3 S. E. 611). This feature was especially stressed in the former decision. Here again, if the whole matter is governed by “the intention of the parties,” the agreement styles itself as one of guarantyship no less than fourteen times, and emphasizes its own designation in many varied ways. Geiser Co. v. Jones, supra. Something more than a mere usual, casual, and perhaps erroneous designation is manifested, where legal and technical expressions pertaining peculiarly to the contract of guaranty are repeatedly employed. The defendants not only are repeatedly called “guarantors;” not only is the contract itself designated as a “guaranty;” but it is styled both unconditional and continuing. Not only this, but here, as in the Etheridge case, the actual intention of the parties is clearly manifested by the provision in the instrument waiving notice of acceptance, since such a provision could have no possible relevancy in a contract of suretyship.

Counsel for plaintiff in error, while asking that the Etheridge case be reviewed and overruled, seek also to differentiate that case from the instant one by calling attention to the additional stipulations in the present case, providing: (1) that in any suit brought against the makers the plaintiff need prove only the' amount due by the principal debtor; (2) that suit may be instituted’against the sureties without first suing the principal; and (3) a monetary consideration flowing to the defendants in error is here recited, which plaintiff in its petition alleges was not in fact paid. None of these additional stipulations could have any sort of relevancy in a contract of suretyship; .the only purpose and intent of the first two would seem to be to effect .a waiver of rights which the defendants might have, not as sureties, but as guarantors. Their presence could not operate to change the nature of the contract as evidenced by the intent of the parties, but speaks their purpose to waive rights which could only possibly inure to a person signing as guarantor. It was held in Paris v. Farmers & Merchants Bank, supra, and Baggs v. Funderburke, supra, that where, “for value received,” an indorsement using the word “guarantee” was written upon a promissory note of the principal debtor, it was admissible to show that the party thus signing the contract received no independent consideration. In Maril v. Boswell, supra, the same rule was applied where the consideration was stated as “$1.00.” This could well be where the promissor signs the same instrument as the principal, and thus joins with him in the identical obligation. In such a case, as stated, an actual separate and independent consideration is about the only possible way to manifest an intention on the part of the parties that the signer’s obligation shall be different, secondarjr, and collateral; but where by the very instrument" itself the obligation is one and the same, a mere unwarranted statement that it is founded on a separate and independent consideration ought not to be conclusive. In a case such as this, however, where there is no- identity of instrument or of obligation, a recital of such a definite consideration strengthens, if indeed it does not of itself compel, the conclusion at which we have arrived. It will be recalled that such was the consideration indicated in Manry v. Waxelbaum Co., supra, and that the decision in the Manry case was approved in Fields v. Willis, supra, for this very reason.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14749.
    Bennet, trustee, v. Chattahoochee Fertilizer Co.
   Bell, J.

The trustee in bankruptcy filed a suit to recover $336 alleged to have been received by the defendant, as a creditor, from the bankrupt as a preference, in violation of section 60 (b) of the Eederal bankruptcy act. The evidence disclosed that the estate of the bankrupt was appraised at $800, and that all of it was set apart to the bankrupt as an exemption, and that the only amount which the bankrupt paid to the defendant was $197.95. The trustee in bankruptcy testified: “There have been no dividends to creditors, and unless judgment is recovered in this ease there will be no dividends.” Held:

The bankruptcy act follows the State law in regard to the amount of property to be allowed as an exemption, and as to the persons' entitled thereto and the acts that will forfeit the right. The bankrupt would have been entitled to an exemption of $1600 if his assets had been sufficient. Should the plaintiff have recovered, the fund would merely have inured to increase the amount of the exemptible assets. The presumption is that the bankrupt would have claimed it, as any one presumably will accept what the law establishes in his favor, he having the right (not assumed without evidence to have been forfeited or waived) to amend his schedule and claim for exemption at any time before the distribution of the assets. It is conclusively to be inferred, from the testimony of the trastee, that no other voidable preference was made, and therefore that there was no possibility of an increase of the bankrupt estate to a sum in excess of $1,600. It therefore appears that if the trustee had recovered, the bankrupt, and not the creditors, would have been the beneficiary. See 4 Remington on Bankruptcy (3d ed.), § 1653. If the action could proceed in the interest of the bankrupt, the plaintiff trustee in that instance, like the bankrupt himself, would be estopped from claiming that the transaction alleged as a preference was not bona fide and valid between the parties. The trial judge was therefore right in directing a verdict in favor of the defendant.

Decided December 7, 1923.

Complaint; from city court of Tifton—Judge Price. June 8, 1923.

Fulwood & Hargrett, W. B. Bennet, for plaintiff.

B. J). Smith, for defendant.

Judgment affirmed.

Jenkins, P. J., (md Stephens, J., concur.


author: Jenkins, B. J.

text:
    14753.
    Flanigan v. Armour Fertilizer Works.
    Decided December 7, 1923.
    Complaint; from Lincoln superior court—Judge Sbnrley. May 25, 1923.

      Colley'& Colley, Homer Legg, for plaintiff in error.

      Burnside & McWhorter, contra.
   Jenkins, B. J.

In this action upon a promissory note covering the purchase price of fertilizer, the defendant at the trial admitted the execution of the note. The record shows that all the evidence offered to sustain his plea was excluded. There are no exceptions to such exclusion, and the motion for a new trial is limited to the general grounds and an exception to the direction of a verdict for the plaintiff. The verdict being demanded and no question of law arising, the court properly overruled the motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14760.
    Thompson, guardian, v. Thompson.
   Jenkins, P. J.

Plaintiff in error, T. B. Thompson, sued out a distress warrant, as guardian, against Robert Thompson for the rent of an undivided two-thirds interest in a certain farm. The rent note contained the following language: “all of the lands known as J. S. Thompson place containing 204 acres, more or less, less a 1/3 undivided interest.” Upon the levy of the distress warrant the defendant in error, Sam Thompson, filed his claim to the crops levied upon, contending- that they were raised by him upon a segregated portion of the premises, amounting to 68 acres, which represented an interest equivalent to the third undivided interest not covered by the rent note. It appears from the claimant’s evidence that he himself owned a. sixth undivided interest in the premises; that he rented a sixth interest belonging to the defendant under a contract made with the latter; and that the crops levied on had been raised upon this third interest in the premises, which the claimant, acting in his own right and with the permission of the defendant, had segregated to his own use. It appears further, that, while the plaintiff was no actual party to the segregation, it had been in operation for several years prior to the time that the defendant’s rent note had been taken. The officer’s return did not indicate that the property was found in the possession of the defendant in fi. fa., and all the testimony showed that it was levied upon while in the possession of the claimant. The jury found the property not subject; the plaintiff in fi. fa. made a motion for a new trial, upon the ground that the verdict was contrary to law and the evidence; the motion was overruled, and he excepted. Held:

1. “Upon the introduction of an execution with an entry of levy thereon showing that at the time of levy the property was in the possession of the defendant named in the execution, the burden was upon the claimant to prove his title.” Jones v. Newberry, 16 Ga. App. 424 (85 S. E. 617); Dawson Consolidated Grocery Co. v. Hudson, 137 Ga. 846, 847 (2) (74 S. E. 796); Andrews v. Sims, 27 Ga. App. 338 (3) (108 S. E. 258). But where “it appears that the claimant is in possession of the property levied on, the burden of proof is on the plaintiff in execution to show either title or possession in the defendant in execution since the debt of the former became a lien on the property of the latter.” Southern Mining Co. v. Brown, 107 Ga. 264 (2), 266 (33 S. E. 73); Allen v. Clare, 136 Ga. 550 (1)’ (71 S. E. 896).

2. “Every tenant in common has the right to possess the joint property; and so long as ho occupies no greater portion of it than his own share would be on division, and does not withdraw from it any of its essential value, such as mineral deposits, he is not liable to account for rent to his eotenant.” Civil Code (1910), § 3724. In the instant case it appears, from undisputed evidence, that, while the tract remained undivided, no written or executed parol agreement of partition or decree of court therefor having been made, the claimant in his own right and as subtenant of the defendant in fi. fa. occupied and cultivated the particular 68 acres on which the crops were raised as the equivalent of a third undivided interest in the entire premises, and that such actual segregation had been in operation apparently without objection for several years prior to tire taking* of tlie present relit note. This they had the right to do without payment of rent, unless such occupied portion constituted a greater part of the premises than they would have been entitled to on a proper division of the property. The evidence entirely fails to indicate any such unfair or unequal occupancy, and the .verdict cannot be disturbed. ... . ■.

Decided December 7, 1923.

Rehearing denied January 21, 1924.

Levy and claim; from city court of Monroe—Judge Felker. May 15, 1923. . •

Application for certiorari was denied by the Supreme Court.

Orrin Roberts, for. plaintiff.

R. W. Roberts, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

.ON MOTION ROE REHEARING.

The motion for rehearing is based on the grounds: (1) that “it was only necessary to show that the crops were raised upon” the lands rented,” and that possession or title in the defendant was not .necessary; and (2)' that the 'claimant was not a cotenant, but a subtenant, of the defendant in fi. fa., who alone made the trade renting the 'interest of the owners in the place, and that he rented “their undivided interest in the entire place.” The first of. these propositions states a correct principle of law. In Saulsbury v. McKellar, 55 Ga. 323, cited by movant> it was held that, “to entitle a landlord to assert his special lien on a crop, he must prove to the satisfaction of the. jury that the crop or fund from it, which he seeks to subject, was raised on his land;” but the court there said: “The burden of proof is on the landlord to make good his special .lien on this cotton. To do that he must show that it was raised on 'his land; and'if he fail to do that to the satisfaction of the jury, he has no foundation for the 'action and must fail.” In the instant case the rental contract expressly excluded “a 1/3 undivided interest.” The claimant cultivated this interest, as to which neither he nor the défendant was the tenant of the plaintiff. Of the one-third portion' of the entire plantation, and on which part the crop levied on'was .raised, the claimant occupied a sixth in his own right, and the other sixth under a contract with the defendant. This latter sixth was not, however, rented by the defendant from the plaintiff, but was excluded from their contract. The property was levied upon while in the possession of the claimant; and the burden of establishing the lien as claimed was upon the plaintiff. The plaintiff himself testified that “the crops levied on were raised on the lands known as Robert Thompson place,” Eobert Thompson being the defendant in fi. fa. The claimant testified that such crops were raised on the part that belonged to him and the defendant. This combined third undivided interest being expressly recognized and excluded from the contract of rental, and being segregated by actual occupancy of the claimant in his own right and under the defendant in his own right in accordance with their powers and privileges as tenants in common with the plaintiff, the special lien of the plaintiff could not, under the rulings made in the syllabus, be asserted upon crops grown on such segregated portion. The evidence fully authorized, if indeed it did not absolutely require, a finding that the crops levied on were not raised upon the portion of the land included in the rent contract between plaintiff and defendant.

The second contention of the movant, to wit, that the claimant was a subtenant of the defendant in fi. fa., is therefore not sustained by the record. Consequently, even if the plaintiff had otherwise carried the burden of proof, the rulings made in Barlow v. Jones, 117 Ga. 412 (43 S. E. 690), and other cases cited by movant, are not in point. In the Barlow case it was held that, “where the owner of land rents it to a tenant who sublets a portion of it for a specific price, the landlord may elect to treat the subtenant as his own tenant and proceed against him directly by distress warrant and subject the crop raised on the premises by the subtenant to the payment of the rent.” Here the plaintiff does not proceed against the claimant as his tenant, but proceeds as landlord against the defendant. Nor can he in his proceeding against the defendant condemn the crops made by the claimant, on the theory that the latter is a subtenant of the defendant, where it appears that the crops were raised on lands occupied by the claimant partly in his own right and partly under the defendant, but not under the defendant as subtenant, but under him as landlord holding and claiming in his own right and not under the plaintiff as owner.

Even were it the fact that the claimant occupied the relation of subtenant to the plaintiff in so far as some part or portion of the premises occupied by him was concerned, the crops levied on being in the possession of the claimant,, and the burden thus being upon the plaintiff to establish his lien, a verdict in his favor would not have been authorized, since the evidence in no way disclosed what portion, if any, of the crops was subject to the lien. Smith v. Johnson, 13 Ga. App. 837 (80 S. E. 1051).

Motion for rehearing denied.


text:
    14831.
    Turner v. Spell Live Stock Co.
    Decided December 7, 1923.
    Complaint; from Irwin superior court—Judge Eve. May 12, 1923.

      Quincey & Bice, for plaintiff.

      Wall & Grantham, for defendant.
   Bell, J.

1. A ruling of the court in striking a plea cannot be made the ground of a motion for a new trial. Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. Rep. 190); Methodist Episcopal Church v. Dudley, 137 Ga. 68 (3) (72 S. E. 480). While the striking of the plea in this case is recited in the bill of exceptions, the only assignment of error thereon is contained in the motion for a new trial.

2. Moreover, where one who is dissatisfied with a verdict seeks to set it aside by a motion for a new trial, a brief of the evidence is an indispensable requisite to the validity of the motion. In other words, if there is no brief of evidence, the so-called motion for a new trial goes for naught, and the action of the trial judge, either in overruling it or dismissing it, will be affirmed. This is true even though the original motion may have been amended by the addition of new grounds, the determination of which would not require a consideration of the evidence. Civil Code (1910), §§ 6080, 6306; Whitaker v. State, 138 Ga. 139 (1), 140 (75 S. E. 254); Baker v. Johnson, 99 Ga. 374 (27 S. E. 706); Mize v. Americus Mfg. Co., 106 Ga. 140 (32 S. E. 22); Holloman v. Small, 111 Ga. 812 (1) (35 S. E. 665); Douglas County v. Sayer, 119 Ga. 551 (46 S. E. 654); Price v. Price, 122 Ga. 321 (50 S. E. 91). The so-called motion for a new trial in this case was possessed of the defect mentioned, and therefore no error was committed in overruling it.

(a) Where an answer is stricken, and a verdict and judgment are thereupon rendered for the plaintiff, without evidence, as in cases of default, a motion for a new trial is not the proper remedy for avoiding such verdict and judgment.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.


text:
    14834.
    White v. Knapp.
   Bell, J.

1. This was an action for damages for an injury received by the plaintiff while riding a bicycle, in a collision with an automobile driven by the defendant, when the parties were. traveling in opposite directions upon a public highway. A verdict was found for the plaintiff, and the defendant excepted to the overruling of his motion for a new trial. There was some evidence to authorize the inference that the defendant was traveling at the time on the left side of the road and was negligent in so doing, it being within the province of the jury to believe such evidence, although disputed. The question of proximate cause was also one for the jury, under the evidence, and the verdict was not unsupported. Civil Code. (1910), § 628.

2. An instruction that ordinary care and diligence “is that care and diligence which every prudent man exercises under -the same or similar circrimstances” was not erroneous on the ground that it authorized the jury to require of the defendant a degree of diligence which might be exercised by the most prudent or by any one more than ordinarily prudent. Civil Code (1910), § 3471; Richmond & Danville R. Co. v. Mitchell, 92 Ga. 77 (2) (18 S. E. 290); Sanders v. Central of Ga. Railway Co., 123 Ga. 763 (4) (51 S. E. 728); City of Atlanta v. Harper, 129 Ga. 415 (1) (59 S. E. 230); Collum v. Georgia Ry. &c. Co., 140 Ga. 573 (3) (79 S. E. 475).

3. The sole contention of each of the parties was that he himself was not negligent, but that the other party was, and that the other party’s negligence was the cause of the injury. Under such issues the charge to the jury, “You look to the evidence, and all of the circumstances shown upon the trial, and find who was guilty of negligence in this case, who was in fault, ” was not error upon the ground that it assumed that the injury was caused by some one’s negligence, or that it excluded the theory of accident. No such theory was involved.

4. In none of the excerpts from the charge assigned .as error did the trial judge intimate or express an opinion as to what had or had not been proved, in violation of the Civil Code, § 4863. The court’s statement of the plaintiff’s contentions was not argumentative or otherwise unfair to the defendant.

5. The court charged the jury as follows: “Now it is contended in this case by the plaintiff that he was riding along the public highway in the direction of Macon, and that the defendant was driving an automobile in the opposite direction; that is, going away from the City of Macon, and plaintiff was on the right-hand side of the roadway going in the direction that he was traveling, and that defendant was approaching him on the right-hand side of the roadway going in the direction in which defendant was traveling, and that defendant, immediately before they were passing, suddenly and without warning to plaintiff cut his automobile over to the left-hand side of the road upon which plaintiff was traveling, and that plaintiff was struck by the automobile and dragged back across the road and injured, and that plaintiff at the time was exercising ordinary care and diligence, and that as soon as he saw defendant was cutting his car across to the left of the road, that in order to avoid the injury which appeared to him to be imminent, by colliding with tlie car, that he cut his bicycle across to the .left side of the road in order to avoid the collision, but that he was unable to do so, and ivas injured by no fault of Ms, d/ue lo the negligent operation of defendant of Ms automobile. The court charges you that if you believe that' those contentions have been sustained by a preponderance of the evidence it would be yoiu- duty to bring in a verdict for the plaintiff.” (italics ours.) This charge was not a violation of the well-known and oft-'repeatod rule that it is error for the trial judge to tell the jury that certain acts will constitute negligence, where the acts are not negligent per se. The excerpt was not erroneous for any reason assigned.

6. Error is also assigned upon the following charge: “The court charges you, in that connection, that if you should believe from the evidence that plaintiff was negligently and suddenly put in a place of peril by the defendant, with insufficient time to consider all the facts and circumstances which surrounded him, the law wouldn’t require of him the same degree of care and caution that it would a person who had ample time for the exercise of his judgment. In other words, when a person is suddenly put in the position of peril by the negligence of another, and where, under the circumstances, the' emergency is so.great that they have to act without having time to think, then a person confronted with such emergency is not held to as strict accountability as a person who has ample time to consider the circumstances and the situation.” The first sentence of this charge was perhaps inaccurate. The degree of care which the plaintiff was required, under the law, to exercise was not changed by the circumstances, though a particular act might comport with such degree under one set of circumstances and not under another. " Compare Atlantic Coast, Line R. Co. v. Daniels, 8 Ga. App. 775 (70 S. E. 203). But, considering the excerpt as a whole, it could not have been construed' as relieving’ the plaintiff from the duty of exercising ordinary care under the circumstances, as to which the jury were elsewhere correctly' instructed, and was not an invasion of the province of the jury in regard to the''“accountability” to ‘be required, in view of the application solely to an emergency “so great” that the party’would “have to act without having time to think.” See Atlantic Coast Line R. Co. v. Daniels, supra; Smith v. Wrightville & Tennille R. Co., 83 Ga. 671 (1) (10 S. E. 361); Central of Georgia Ry. Co. v. McGuire, 10 Ga. App. 483 (4) (73 S. E. 702); Georgia Ry. & Elec. Co. v. Gilleland, 133 Ga. 621 (7) (66 S. E. 944).

7. The plaintiff was injured on June 27, 1922. The trial was on March 16, 1923. ’ Both bones of one of the plaintiff’s legs were broken in two, and one bone punctured the skin. A physician testified that “near the place of the injury there develops a lump or callous, and that never disappears.” The plaintiff testified that the place of the injury would still hurt him occasionally, as late as the date of the trial; “it’s just a dull, throbbing kind of pain.” Under these circumstances the following charge: “The damages which the plaintiff claims he is entitled to in this case are for pain and suffering. He contends that he was injured at the time of the accident, and that he has'continued to suffer down to the present, and that he will always suffer, and that he is entitled to receive a verdict at your-hands for pain and suffering, which he contends will be permanent,” was not erroneous upon the ground that it would authorize a finding in favor of the plaintiff for permanent pain and suffering, without any evidence that the pain and suffering would be permanent. While the physician testified further that the plaintiff ought not to suffer any pain in the future, this testimony was not controlling of the issue. “The jury were authorized to infer that the effect of the injuries would be permanent, from the character of the suffering and the length of time it had continued. This is true although a physician testified that the injuries were temporary. The question was for the jury, who could, if they saw fit, attach as much probative value to the testimony of the person injured as to the opinion of the physician. Southern Ry. Co. v. Tamkersley, 3 Ga. App. 548 (60 S. E. 297; Goodwyn v. Central Ry. Co., 2 Ga. App. 470 (58 S. E. 688); City of Atlanta v. Champe, 66 Ga. 663; Atlanta Street Ry. Co. v. Walker, 93 Ga. 467 (21 S. E. 100); Macon Ry. & Light Co. v. Streyer, 123 Ga. 279 (51 S. E. 432).” Southern Ry. Co. v. Pelway, 7 Ga. App. 659 (1) (67 S. E. 886). Furthermore, the deformity or unnatural condition resulting from the injury, which, according to the evidence of the physician, will be permanent, could be considered by the jury as a lasting element -of pain and suffering, and this fact alone would have warranted the instruction. Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369 (3) (83 S. E. 445); Social Circle Cotton Mill Co. v. Ransom, 23 Ga. App. 605 (4) (99 S. E. 238).

(a) The excerpt stated the contentions as made by the petition. The court then gave in general terms the proper measure of damages for pain and suffering. Civil Code (1910), § 4504. Even if the evidence did not support the petition ih respect to these contentions, the statement of them as pleaded is not cause for a new trial. “While it is erroneous for the trial judge to submit to the jury an issue not arising under either the pleadings or the evidence, still it is not reversible error for the court, in stating the contentions of the parties, to state these contentions as they are presented in the pleadings, even though there be no evidence, or insufficient evidence, to support the contention. The well-recognized proposition that error cannot be successfully assigned of a refusal to direct a verdict is merely a corollary of this general proposition.” Matthews v. Seaboard Air-Line Ry., 17 Ga. App. 664 (1) (87 S. E. 1097).

8. One ground of the motion for a new trial complained of the admission of the following testimony of a witness introduced by the plaintiff, for the reason that it was irrelevant: Q. “Mr. King, did you go and place an automobile in the road near the scene of this accident?” A. “I did.” Another ground complains of the admission of the following evidence of the same witness, for the reason that it was hearsay: Q. “Does this photograph here marked 'Exhibit B’ represent the true condition of that automobile after it was placed there?” A. “It is.” The evidence admitted does not appear to have been prejudicial, even if subject to the assignments made. “That certain testimony was admitted over the objection, duly urged, that the testimony was hearsay, will not require the granting of a new trial, it appearing that the evidence, though subject to the objection made, could not have affected the verdict rendered.” South Georgia Ry. Co. v. Niles, 131 Ga. 599 (3) (62 S. E. 1042); Abercrombie v. Norris, 130 Ga. 680 (2) (61 S. E. 532). The same rule is applicable to evidence irrelevant but not hurtful. It is said in the brief of the plaintiff in error that this evidence was offered for the purpose of rendering admissible in evidence certain photographs of the scene of the injury tendered by the plaintiff. The record does not disclose that any objection was made to the introduction of the photographs themselves.

9. The plaintiff’s witness King testified on cross-examination as follows: Q. “Mr. King, you filed this suit for this young man yourself?” A. “Yes, sir; I filed it.” Q. “Before he was able to get out of the hospital?” A. “Yes, sir.” Q. “You filed one for yourself?” A. “I did.” To the last question and answer with reference to the filing of a suit by the witness for himself the plaintiff’s counsel objected, upon the ground of irrelevancy and that the suit would be the highest and best evidence. The court sustained the objection and ruled out the question and answer. This ruling is assigned as error. Whether the fact of the filing of the suit might not have been shown without a resort to the suit itself, this ruling will not require a new trial upon the ground that the plaintiff in error was not permitted to show the fact as illustrative of the interest of the witness, who gave but little, if any, testimony which could have materially affected the case. He testified: “I was not present when Eranklin the plaintiff was injured, and know nothing about how it happened of my own knowledge, and don’t know anything about how Mr. White’s car was situated. All I know is what I heard.” Even if the excluded evidence was competent, “its rejection would not work a new trial [Van Winkle v. Wilkins, 81 Ga. 94 (9), 7 S. E. 644, 12 Am. St. R. 299), since it was not of such a character as would probably have materially affected the finding of the jury. Daughtry v. Savannah & Statesboro Ry. Co. 1 Ga. App. 393 (2), 58 S. E. 230.” Georgia Ry. & Power Co. v. Shaw, 25 Ga. App. 146 (2) (102 S. E. 904).

10. Before previous oral contradictory statements can be proved against a witness for the purpose of impeachment, “his mind should be called with as much certainty as possible to the time, place, person, and circumstances attending the former statement.” Civil Code (1910), § 5881. The assignments of error in two of the grounds of the motion for a new trial upon the refusal of the court to permit the defendant to make proof of a previous oral statement of a witness sought to be impeached ' did not show that the foundation was laid for the impeaching evidence in accordance with the provisions of this code section, but merely that the attention of the witness had been called to the statement. Assuming that the rejected evidence would have been otherwise admissible, this court will not order a new trial because of the rejection of such evidence, unless it appears in the assignment of error that the foundation therefor was duly laid, although it may appear that the presiding judge rejected it for some other and invalid reason urged by the opposite party without reference to those herein expressed. See Penn v. Thurman, 144 Ga. 67 (8) (86 S. E. 233).

(a) The witness himself, as well as the opposite party, has some interest in such a matter. “It must not be forgotten that the law has regard for the right of witnesses as well as those of parties litigant.” Andrews v. State, 118 Ga. 1, 4 (43 S. E. 852); Civil Code (1910), §§ 4554, 5870.

Decided December 7, 1923.

Action for damages; from city court of Macon—Judge Gunn. May 23, 1923.

W. A. McClellan, T. A. Jacobs Jr., for plaintiff in error.

Brock, Sparks & Bussell, contra.

(6) “If testimony-was properly rejected, the rulings of the court will be sustained,, although lie may have given an insufficient, or even a wrong reason therefor.” Smith v. Page, 72 Ga. 539 (2 a); Brunswick & Birmingham R. Co. v. Hoodenpyle, 129 Ga. 174 (6) (58 S. E. 705).

11. In view of the fair and ample general charge given, the court did not err in refusing the requested instructions, assuming them to be pertinent and correct.

12. Np material error of law appearing, and. there being some evidence to support the verdict, even though it may ,be slight, this court should not interfere with the discretion of the trial judge in overruling the motion for a new trial. . ■

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    14837.
    International Agricultural Corporation v. Powell.
   Bell, J.

1. The landlord is entitled to a distress warrant for rent before the rent is duo, if the tenant is seeking to remove his crop from the rented premises without paying the rent. Civil Code (1910), §' 3700;’ Smith v. Green, 128 Ga. 90 (57 S. E. 98); Little v. Lary, 12 Ga. App. 754 (1) (78 S. E. 470).

2. A tenant seeking to remove from the premises any portion of the com- ■ mercial yrops before the. rent is due, without his landlord’s consent, is . subject to a distraint immediately, no matter what may be the purpose or intent of-such removal. Daniel v. Harris, 84 Ga. 479 (10 S. E. 1013).

3. A distress warrant, based upon a rent note payable to the order of the landlord and transferred to a third person,, may • be .sued out in the name of the transferee, under the Civil Code (1910), §§ 3345, 3346, 3347, 3700; Beall v. Patterson, 146 Ga. 233 (2) (91 S. E. 71).

4. In this case the agreed rent was $300 for the year 1921, for which the tenant made and delivered to the landlord as payee two promissory notes, each for $150 and each to mature on-November-1,. 1921. One of the notes was assigned to the plaintiff, who procured the issuance of a distress warrant on October 1, 1921, on the ground that the tenant “is removing his crops from the premises ■ . . and is disposing of the same.” The tenant arrested the warrant by a counter-affidavit denying that he had .committed the acts alleged by the-plaintiff as cause for proceeding before the rent was due. On the trial of the issue thus raised the evidence showed that “in the early fall” prior to the proceeding the tenant removed and sold from the -premises, of the crops grown' thereon in 1921, a bale of lint cotton, the entire proceeds gf whieh the landlord received and applied as a credit upon the note retained. The testimony was in conflict as to whether the landlord had previously consented to the sale, but it was undisputed that the plaintiff transferee had not consented. It was not denied that the tenant was indebted to the plaintiff for rent on the transferred note as alleged. The court directed a verdict for the defendant, and the plaintiff transferee has excepted to the overruling of its motion for a new trial. Held:

Decided December 7, 1923.

(a) Where a tenant gives two negotiable promissoiy notes payable to his landlord for rent, and the landlord transfers one of the notes and retains the other, in the absence of any 'agreement to the contrary the lien right is split, and the interests of the landlord and the transferee in the security provided by the landlord’s liens are several, and the interest of the transferee, is not subject to the. control of the landlord. Where in such a cas'e the tenant sells and disposes of a part of the crops raised upon the premises during the year, and pays the entire proceeds to the ■ landlord,- who does not produce the transferred note, and. where such sale and disposition of the proceeds are without the authority or consent of the transferee, the latter will not be estopped by such application of the proceeds from asserting the fact of such sale and removal, as ground for distraining for the amount of rent represented by the transferred note, before its maturity. Compare Civil Code (1910), § 4276; Roberts v. Mansfield, 32 Ga. 228 (2); Crowder v. Dunbar, 74 Ga. 109, 111; Willingham v. Huguenin, 129 Ga. 835 (60 S. E. 186); Georgia Realty Co. v. Bank of Covington, 19 Ga. App. 219 (91 S. E. 267).

(b) The tenant, having given negotiable notes lor the rent, was required to beware lest in dealing with the landlord, he should .violate the rights of a transferee, and, irrespective of this rule, it appeared, -in the evidence that the -tenant had actual knowledge that one of the notes had been transferred' to the plaintiff. See 18 Am. & Eng. Ency. Law, 287; Bank of University v. Tuck, 101 Ga. 104 (1).

(o) It follows that the court errfed in directing a verdict in favor of the defendant, on the ground that the distress warrant was prematurely sued out, and in thereafter refusing the plaintiff’s motion for a new trial. Supporting this conclusion is a further fact, undisputed in the record, that the tenant' also made a sale of the seed from the bale of cotton mentioned above, as to which he did not claim that either the transferee or the landlord consented, and the proceeds of which were received by neither. See Payne v. Holt, 61 Ga. 355, 356.

5. The contention of the defendant in error, that the judgment of the trial court should be .affirmed; on the ground that the case presents an instance of the improper splitting of causes of action (see Thompson v. McDonald, 84 Ga. 5 (1), 10 S. E. 448; Broxton v. Nelson, 103 Ga. 327 (1), 30 S. E. 38, 68 Am. St. Rep. 97; Rivers v. Wright, 117 Ga: 81 (3), 43 S. E. 499) cannot-be sustained. There-was no plea to-this effect in the lower "court. Elirthermore, the tenant by splitting the amount of the rent and giving therefor two separate negotiable notes agreed to as many actions, in case' of default, as there were notes. Starnes v. Mutual Loan & Banking Co., 102 Ga. 597 (5) (29 S. E. 452).

."Judgment reversed.

Jenkins, P. J., and Stephens, J., concur,

Distraint; from Montgomery superior court—Judge Sheppard. April 4, 1923.

B. P. Jackson, Little, Powell, Smith & Goldstein, for plaintiff.

A. 0. So,fold, for defendant.


author: Belt., J.

text:
    14849.
    Tifton Compress Co. v. Robinson et al.

   Belt., J.

1. A return of service upon a garnishee, in the following language: “Georgia, Tift county. I have this day, at the hour of 6:45 o’clock p. m., served summons of garnishment based on the within affidavit upon Tifton Compress Company, by serving S. L. Eleetwood, the officer in charge of the business at the office of said Tifton Compress Company, by handing said summons to him in person. This 11th day of October, 1922. W. A. Ross, Deputy Sheriff,” is not void because of its failure to show that the officer served was the agent in charge of the office or business of the corporation in the county or district where the service was made. If the return was not in all respects sufficient, it was merely irregular or incomplete, and could have been cured by amendment. Southern Express Co. v. National Bank of Tifton, 4 Ga. App. 399 (1) (61 S. E. 857); Seaboard Air-Line Ry. v. Davis, 13 Ga. App. 14 (78 S. E. 687); Twilley v. Middle Georgia Bank, 28 Ga. App. 416 (1) (111 S. E. 694); Jones v. Bibb Brick Co., 120 Ga. 321 (7) (48 S. E. 25).

2. If a judgment against a garnishee is based on a return of service which is not void but merely defective or incomplete, and therefore amendable, the incompleteness of the return is not a sufficient reason for ignoring the judgment, upon an affidavit of illegality merely pointing out the defect, but the affidavit should go further and allege that the service actually made was not such as is required by the statute. In this case, to be good, the affidavit should have averred that the garnishee had not been served as required by law, and that service had not been acknowledged or waived. Jones v. Bibb Brick Co., 120 Ga. 321 (1) (48 S. E. 25); Cobb v. Pitman, 49 Ga. 578; LeMaster v. Orr, 101 Ga. 762 (29 S. E. 32); Phillips v. Bond, 132 Ga. 413 (1) (64 S. E. 456); Warwick Gin & Cotton Co. v. Continental Gin Co., 143 Ga. 508 (2) (85 S. E. 700); Wheeler v. Marlin, 145 Ga. 164 (2 a) (88 S. E. 951). In this view it is unnecessary to determine whether there should have been also a traverse of the officer’s return, in connection with this ground of the illegality.

3. The name “Tifton Compress Company” imports a corporation. Holcomb v. Cable Co., 119 Ga. 466 (1) (46 S. E. 671); Alsobrook v. State, 126 Ga. 100 (2) (54 S. E. 805); Charles v. Valdosta Foundry & Machine Co., 4 Ga. App. 733 (1) (62 S. E. 493); Manufacturers Furniture Co. v. Blumenfeld, 14 Ga. App. 671 (82 S. E. 151); Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 15 Ga. App. 142 (4) (82 S. E. 784). Where the name of a party to a suit is such as to import a corporation, there is a presumption of corporate character which will prevail until the contrary is shown. Holcomb v. Cable Co., supra; Georgia Co-operative Fire Asso. v. Borchardt, 123 Ga. 181 (4) (51 S. E. 429, 3 Ann. Cas. 472). If in fact the party was not a corporation, this should have been taken advantage of before judgment, by a proper plea. Cribb v. Waycross Lumber Co., 82 Ga. 597, 598 (9 S. E. 426).

Decided December 7, 1923.

Affidavit of illegality of execution; from city court of Tifton— Judge J. H. Price. July 7, 1923.

Fulwood & IiargreU, for plaintiff in error.

Rogers & Rogers, contra.

4. In this State the original summons of garnishment is served. It is not the practice to serve a copy of an original remaining on file, nor is there any provision of law for keeping on file a copy of the summons thus served. West v. Harvey, 81 Ga. 711 (8 S. E. 449). The only evidence of record showing to whom the summons is directed and to what court it is returnable is the entry of the officer. Phillips v. Bond, 132 Ga. 421 (supra). Where a plaintiff sues out a garnishment proceeding and the proper officer returns that he has served the garnishee with a summons of garnishment, the return prima facie means that the summons served directed the garnishee to file his answer in the court to which the garnishment proceeding was pending, at the term convening next after ten days from the date of the service. If the summons was not in accordance with this presumption, specific objections should be made . thereto with a traverse of the entry of service. O’Neill Mfg. Co. v. Ahrens & Ott Mfg. Co., 110 Ga. 656 (1) (36 S. E. 66); Civil Code (1910), §§ 5269, 5570. “All laws upon the subject of . . garnishment as to any matter whatsoever in the superior courts of this State shall apply to” the city court of Tifton, “so far as the nature of said city court will admit.” Ga. L. 1906, p. 358, § 41.

5. The failure of the record to show that the garnishee was a resident of the county in which the garnishment proceeding was pending, and in which, as shown by the entry of service, the garnishee was required to answer, will afford no ground of illegality as to a default judgment against the garnishee. Civil Code (1910), § 5563; Raney v. McRae, 14 Ga. 589 (5) (60 Am. Dec. 660); Jordan v. Carter, 66 Ga. 254; Harbig v. Freund & Co., 69 Ga. 180 (1); Harisfield v. Morris, 89 Ga. 254 (15 S. E. 363); Sanford v. Bates, 99 Ga. 145 (2) (25 S. E. 35). Moreover, as to a corporation it is sufficient in respect of residence if it has an agent and place of business in the county or district where the garnishment proceeding is pending. Civil Code (1910), § 2260.

6. Under the above rulings all grounds of the affidavit of illegality were properly stricken.

Judgment affvi'med.

Jenkins, P. J., and Stephens, J., concur.