text:
    19067.
    Mobley, superintendent of banks, v. Greene.
   Stephens, J.

1. A plea, in a suit on a promissory note, wliieli alleges that it was agreed between the payee and the maker that the proceeds to be derived from the sale of certain cotton, which the maker had pledged with the payee as security for the note, should be applied upon the indebtedness represented by the note, and that, had the cotton been sold by the payee in accordance with the agreement, it would have brought an amount in excess of that of the indebtedness represented by the note, alleges that the cotton was at the time of a value sufficient to pay the indebtedness represented by the note. This allegation is sufficiently specific, therefore, and is good as against a special demurrer attacking the plea as defective in that it contains no allegation of the amount for which the cotton was sold, or that it does not allege the value of the cotton at the time the payee should have sold it in compliance with the agreement to sell.

Decided February 21, 1929.

Griffith & Matthews, for plaintiff.

M. J. Head, for defendant.

2. Where in the plea as above indicated the defendant alleges the amount for which the cotton would have sold upon a certain designated day in a particular month and year, the plea must necessarily be taken as alleging the amount for which the cotton would have sold upon that date as representing the amount to be credited as payment upon the note. It is therefore immaterial that the plea fails to allege the specific date upon which was made the agreement to apply the proceeds of the cotton, after sale, to the payment of the plaintiff’s debt.

3. The plea is otherwise good as against the demurrer interposed.

4. This is a suit upon a promissory note, in behalf of a banking corporation as the payee, against the indorser on the note, in which the defendant pleaded that it had been agreed between the plaintiff and the maker that the proceeds of the sale of certain cotton, which the maker had pledged to the payee as security for the payment of the note, should be applied to the payment of the note, and that, whether or not the plaintiff actually sold the cotton (which the defendant could not allege), a sale of the cotton in accordance with this agreement would have brought a sum sufficient to pay the indebtedness represented by the note. Whether or not the evidence was sufficient to establish the defendant’s plea of payment, the evidence admitted without objection was sufficient to authorize an inference that the maker of the note had pledged certain cotton with the bank as security for the note, and that the bank, through its president as its authorized agent, sold the cotton thus pledged, and that its value at the time of the sale was sufficient to pay the indebtedness represented by the note. A verdict for the defendant, therefore, would have been authorized. The verdict found for the plaintiff in the full amount sued for was, therefore, not demanded as a matter of law, and the judgment of the trial judge granting a first new trial to the defendant must be affirmed.

5. Both the judgment overruling the plaintiff’s demurrer to the defendant’s plea and the judgment granting to the defendant a new trial are affirmed. Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    19068.
    UPCHURCH v. MAYNARD et al.

    Decided February 21, 1929.
    Rehearing denied March 2, 1929.

      Lamar G. Rucker, for plaintiff.

      Richard B. Russell Jr., J. C. Pratt, for defendants.
   Bell, J.

This was a suit on a quantum meruit by C. L. Up-church against T. A. Maynard and Gf. W. DeLaPerriere, to recover the reasonable value of the plaintiff’s services in procuring for them a sale to one Finney of certain corporate stock. There was no demurrer to the petition, and the case proceeded to trial. At the conclusion of the plaintiff’s evidence the court, on motion, granted a nonsuit, and the plaintiff excepted.

By way of inducement the plaintiff pleaded and introduced in evidence a writing in the form of a letter, by which the physical properties of Barrow County Cotton -Mills, located at- Winder, Georgia, and Lawrenceville Yarn Mills, at Lawrenceville, which were owned by a corporation, were listed with the plaintiff for sale at $260,000, on a commission basis of 5 per cent.; which letter was signed by the defendant DeLaPerriere, but without anything to indicate whether he was acting personally for himself, or in behalf of the company, of which the other evidence showed that he was vice-president.

The plaintiff was a broker, engaged in selling such properties on commission. After receipt of this letter he did certain advertising which attracted the attention of Finney, who was located in Huntsville, Alabama, and was interested in buying a cotton mill or cotton mills in the south. Finney came to the office of the plaintiff in Athens, Georgia, and from that point the plaintiff had a telephone conversation with the defendant T. A. Maynard, at Winder, the plaintiff telling Maynard that he had a customer and would bring him over. As a result of this conversation the plaintiff and Finney went immediately to Winder, examined the property at that place, and held a conference with the defendants. Finney declared that the price was too high and that he would decline the offer.

Each of the defendants was an owner of stock in the company, and Maynard raised the question of whether Einney would be interested in purchasing stock instead of physical properties. Einney replied in the affirmative; and, after some discussion relating to a sale of stock, the plaintiff interposed the inquiry, “If you are going to trade on that basis, where do I come in ?” Einney suggested that it was “an inopportune time to bring that up.” The plaintiff said, “I do not think so”; whereupon Einney said, “That is entirely with these gentlemen.” Maynard remarked, “We will take care of you later,” and DeLaPerriere said, “We will do that by buying the outstanding stock for less than fifty cents on the dollar.” In the conversation it was proposed that Finney should buy one third of the entire capital stock of the company, the defendants making certain warranties as to the financial condition of the mill. No definite conclusion was reached, and it was agreed that pending further consideration of the matter the defendants would investigate the character and responsibility of Einney and that he would do likewise as to them. The conference at Winder was concluded with a request from Maynard that the plaintiff take Einney to Lawrenceville and show him the plant there. The plaintiff “did take him there,” and they “inspected the Lawrenceville plant in detail.” After this the plaintiff carried Einney to Atlanta in the plaintiff’s car and “stayed with him until the next morning at the hotel, and discussed the sale for an hour or two.” The plaintiff then returned to Winder and told Maynard “that it looked like Mr. Einney was a buyer; that he liked the property in Lawrenceville.” Mr. Maynard said, “Upchurch, I hope that goes through. We are financially in bad shape; if we do not get new money or some one to come in here to act as president and put new money in this plant, we are going broke.”

Soon after the parties had concluded their original conference at Winder, the defendant DeLaPerriere stated to the superintendent of the mill in that city, “It looks like that fellow Upchurch is going to sell our stock.” The plaintiff later talked with Einney over the telephone about the matter, and also wrote to him. Within a short time the defendants made a contract to sell Einney one third of the stock of the corporation, agreeing further that in case he wished to do so he might associate one Eussell B. Lowe, of Fitchburg, Massachusetts, in which event they would sell and convey one half of the stock “instead of one third, on same terms, . . the total stock to be held by four, including Mr. Lowe, one fourth each.” The defendants owned no stock jointly but with the stock which they held separately, or with this and other stock which they procured, they finally sold to.Finney and Lowe one half of the entire capital stock of the company, making the warranty as first proposed as to the financial condition of the company. As a result of such warranty they have become personally liable to Finney for approximately $59,000, and this is one of the reasons why it is claimed the plaintiff should not recover.

At the conference at Winder there were present the plaintiff broker and Finney, the customer, with both the defendants. It was inferable that the defendant DeLaPerriere was present when Maynard instructed the plaintiff to take Finney and show him the plant at Lawrenceville. The defendants appear to have been acting in concert, and did finally make with Finney a joint contract, although, as above stated, they may have owned no stock jointly.

The amount of stock sold was 1300 shares, divided equally between Finney and Lowe, for which they paid $50 per share, or $65,-000. The sale as at last executed was upon the same terms as those discussed at the first meeting, except “changing the contract from one third to one half” of the stocks. The plaintiff later requested the defendants to pay him for his services which request was refused. The suit was to recover a commission of 5 per cent, of the above amount, the plaintiff testifying that this was the reasonable value of his services. So far as appears the defendants bought no stock for ‘less than 50 cents on the dollar.” There was very little conflict in the testimony, and from the evidence the facts could have been found as above stated.

We think the court erred in granting the nonsuit. We may lay aside all question as to whether the letter written by DeLaPerriere to the plaintiff was his personal act or the act of the corporation through him as its agent or officer. Neither is it controlling that the listing thus made was of the physical properties, and not of the capital stock which was later sold. These matters were brought in merely for the purpose of explaining how the defendants and the plaintiff came together, and to illustrate their subsequent conduct.

The suit is not based upon an express contract, and the principal question for determination is whether the plaintiff rendered for the defendants -valuable services which they accepted. “Ordinarily, when one renders services valuable to another, which the latter accepts, a promise to pay the reasonable value thereof is implied; and in such case it is not necessary to prove an express promise to pay for such services.” Washington v. Jordan, 28 Ga. App. 18 (2) (109 S. E. 923); Civil Code (1910), § 5513. The evidence authorized the inference that the defendants encouraged the plaintiff to assist them in selling the corporate stock, and that he went about doing so under the reasonable assumption that he would be paid for his services. Whether the things which he then did were the procuring cause of the sale was, under the evidence, a jury question. Greshann v. Lee, 152 Ga. 829 (111 S. E. 404); Gresham v. Connally, 114 Ga. 906 (41 S. E. 42); Doonan v. Ives, 73 Ga. 295; Graves v. Hunnicutt, 8 Ga. App. 99 (68 S. E. 558); Grove Really Co. v. Adair, 26 Ga. App. 220 (105 S. E. 735).

The plaintiff’s demand for compensation was not necessarily defeated by the fact that the sale was finally closed bjr the defendants. It is enough for a recovery if the plaintiff’s services were the efficient cause. Collier v. Holland, 24 Ga. App. 251 (100 S. E. 654); Wilcox v. Wilcox, 31 Ga. App. 486 (2) (119 S. E. 445), and cit.

Nor is it true that the plaintiff was concluded by the fact that the defendants bound themselves by a guaranty to the purchaser which may have made the sale unprofitable, 'although this might perhaps be a circumstance which could be considered by the jury in determining the value of the plaintiff’s services. Kraft v. Rowland, 33 Ga. App. 806 (4) (128 S. E. 812). Even if the sale had been on terms less favorable to the defendants than those originally proposed, the plaintiff might still recover, if the other essentials of a cause of action were present. Graves v. Hunnicutt, 8 Ga. App. 99 (68 S. E. 558); Grove Realty Co. v. Adair, supra.

It is immaterial that no stock was owned jointly or in common by the parties, provided they acted jointly in their dealings with the plaintiff. They finally made a joint contract to sell the stock of each, and they were acting in concert in their negotiations both with the plaintiff and with his customer.. In these circumstances they can not escape liability merely because the subject-matter of the sale may have been, in parts, owned separately by them. Compare Mathis v. Shaw, 38 Ga. App. 783 (145 S. E. 465); and see Willingham v. Glover, 28 Ga. App. 394 (2, 3) (111 S. E. 206). It is clear that in the dealings with the plaintiff upon which he relies for a recovery, the defendants were not acting for the company, but for themselves, to the end of selling their private properties.

The plaintiff testified that when the parties turned from the negotiations as to the sale of the physical properties to the question of a sale of the corporate stock, and on his expressing a desire at that time to know “where he came in,” Maynard said to him, “We will take care of you later.” In making this statement Maynard was assuming to speak both for himself and the other defendant, who was present apparently assenting. Since from this statement and the other facts in evidence it might have been inferred that the defendants manifested a desire for the plaintiff’s services, intending to pay their reasonable value, and that he accordingly rendered services of value which they accepted, it is unimportant, under the form of the action brought, that such statement was indefinite as not specifying what the plaintiff was to do and what, if anything, he was to be paid. The plaintiff is not suing upon an express contract, and' it is not necessary that he should show facts constituting such an agreement. Myers v. Aarons, 30 Ga. App. 750 (119 S. E. 223).

Under the law and the facts there may have been a recovery notwithstanding the plaintiff’s testimony to the effect that the defendant DeLaPerriere said to him, “We will do that [take care of you] by buying the outstanding stock for less than fifty cents on the dollar,” since it could be inferred that the plaintiff’s right was not dependent upon such a consummation. The defendants might have hoped to buy other stock at a price which would make the payment of a commission less burdensome upon them, but neither their doing so nor their ability to do so was expressly stipulated as a condition precedent to their liability, and, under the evidence, this could have been taken as a matter which they proposed to work out for themselves upon their own responsibility, without in any way affecting the plaintiff in his right to compensation. Martin v. Thrower, 28 Ga. App. 270 (110 S. E. 742). Such statement is some evidence of a desire to have the plaintiff to render services and of an intention to pay therefor.

The question as to the value of the plaintiff’s services was one of fact for determination by the jury, under the evidence. Marshall v. Bahnsen, 1 Ga. App. 485 (57 S. E. 1006); Daniell v. McRee, 31 Ga. App. 210 (120 S. E. 448).

It is unnecessary to decide whether the increase in the amount of stock to be sold by the association of Lowe could be considered as a fact in the plaintiff’s favor, the increase having been brought about by Finney, and not having been contemplated in the original negotiations. If the plaintiff’s services were the procuring cause of the sale of any portion of the stock, a prima facie case being otherwise made out, he would be entitled to recover the reasonable value of his services as related to the sale of that portion. Holdridge v. Cubbedge, 71 Ga. 254. It is error to grant a nonsuit if a verdict would be authorized for any part of the plaintiff’s demand, where the facts proved are consistent with the case as laid in the petition. Collier v. Pritchett, 31 Ga. App. 451 (4) (118 S. E. 444).

After a thorough examination of all the evidence, we are constrained to hold that the case should have been submitted to the jury, and, thus, that the court erred in granting the nonsuit.

The plaintiff having predicated his right to recover solely upon the theory that his services were the procuring cause of the sale, and this court being of the opinion that the evidence would have authorized a verdict upon that theory, no decision is required as to whether under the circumstances the sale was a condition precedent to the implied obligation of the defendant to pay for such services, or as to whether, even if the sale was such a condition precedent, it was necessary to a recovery in some amount that the services should appear to have caused or contributed to the sale, if they were rendered at the defendants’ request and were of some value.

Judgment reversed.

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


author: Stephens, J.

text:
    19077.
    Peoples Loan & Savings Co. v. Fidelity & Casualty Co.
   Stephens, J.

1. Where a fidelity-insurance policy, which insures against defalcation by an employee of the insured, provides that proof of loss shall be furnished within three months after discovery by the insured of a dishonest act on the part of the employee, but imposes no forfeiture for a failure of the insured to furnish the proof of "loss within the required time or to comply with any other provision of the policy, but provides only that legal proceedings for a recovery under the policy may not be brought until three months have elapsed after proof of loss has been furnished, and then within six .months after proof of loss has been furnished, and that the right to make a claim under the policy shall cease at the end of six months after the termination of the policy, which is upon the discovery by the employer of a dishonest act on the part of the employee, and contains no other limitations upon the conduct of the insured after a loss has occurred, the policy is not forfeited by a failure of the insured to furnish a proof of loss within the required three months after discovery of the loss, where the proof of loss is furnished in time to permit a compliance by the insured with the other provisions of the policy imposing limitations on his conduct respecting the filing of a claim and the institution of legal proceedings on the policy. Southern Fire Insurance Co. v. Knight, 111 Ga. 622 (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216) ; Harp v. Firemam’s Fund Insurance Co., 130 Ga. 726 (61 S. E. 704) ; 5 Joyce on Insurance, § 3282.

2. Where a fidelity-insurance policy, such as the one described above, which insures against defalcation by an employee of the insured, provides lhat proof of loss shall be furnished within three months after discovery by the insured of a dishonest act on the part of the employee, but the proof of loss is not furnished within that time, but is afterwards furnished, and is received and accepted by the insurer without objection that it was not furnished within the required time, and the company retains the proof of loss and makes its own investigation of the books and records of the insured relating to the acts of the employee, and states that proof of loss has been made to its satisfaction, and after-wards denies liability under the policy, not upon the ground that the insured failed to comply with the provisions of the policy respecting the time within which proof of loss must be furnished, but upon the ground that the insurance contract itself was invalid, the insurer in accepting the proof of loss after the expiration of the required time and expressly denying liability upon a ground other than the insured’s failure to furnish the proof of loss within the required time, waives any right which it may have had to object to the proof of loss upon the ground that it was not furnished within the time required by the policy. 5 Cooley’s Briefs on Insurance, 4319; 33 C. J. 32; Georgia Home Insurance Co. v. Allen, 128 Ala. 451 (30 So. 537).

3. A statement made by the insurer to the insured, after the expiration of the time within which proof of loss must be furnished under the terms of tlie policy, denying liability under the policy and refusing to pay the loss, not upon the ground that the insured had failed to comply with any of the provisions of the policy respecting the furnishing of proof of loss, but expressly upon the ground that the contract of insurance itself was invalid, does not operate to estop the insurer, in a suit afterwards brought by the insured to recover under the policy, from relying as a defense upon the failure of the insured, at a time before this denial of liability was made, to comply with the provisions of the policy respecting the furnishing of proof of loss. Union Brokerage Co. v. Beall, 30 Ga. App. 748 (119 S. E. 533); Gobb Lumber Co. v. Sunny South Grain Co., 36 Ga. App. 140 (135 S. E. 759) ; Barkley v. American National Ins. Co., 36 Ga. App. 447 (136 S. E. 803).

4. Section 2549 of tlie Civil Code of 1910, which provides that an insured may recover of an insurance company an amount representing a penalty and attorney’s fees where the insurer is guilty of bad faith in failing to pay the loss arising under the policy, is not restricted in its application to any particular class of insurance companies, but applies to fidelity insurance companies, and to policies, such as the policy here sued on, issued by such insurance companies, insuring employers against the defalcations of their employees.

5. In a suit by an insured against the insurer, to recover under an alleged policy which insured the plaintiff against loss arising out of the defalcation of the plaintiff’s employee, where it was alleged that after the defendant had been notified of a loss arising by reason of the employee’s defalcation, the defendant encouraged thfe plaintiff to go to the expense of employing auditors to investigate the books and records of the employer and prepare a proof of loss, .and accepted a proof of loss prepared and furnished by the plaintiff, that the defendant afterwards denied liability under the policy and refused, within sixty days after demand for payment, when the defendant could legally under the terms of the policy be called upon for payment, to pay the loss sustained by the plaintiff and covered by the policy, and that this refusal to pay by the defendant was bad faith entitling the plaintiff to recover the penalty and attorney’s fees provided for by law in such cases, the petition alleged sufficient facts from which a jury could infer bad faith and award, in addition to the sum found representing loss under the policy, a sum representing the penalty and attorney’s fees.

6. The mere fact that the employee gave a note to the employer for a certain amount of money, and, as appears from the auditor’s report afterwards made, after an examination of the employee’s accounts, that no money was actually withdrawn from the employer by the employee, but that this transaction was “used to cover” the employee’s “shortages,” where it does not appear that when the note was given the employer knew of any shortage or, that the note was accepted to cover up any shortage, is insufficient to show a settlement or compromise between the employer and employee of any shortage or loss covered by the policy. Therefore this transaction does not void the policy under the provision therein to the effect that if the employer .settles or compromises with the employee for any loss insured against by the policy without the insurer’s consent to the settlement or compromise, the policy thereby becomes void.

7. Under the ruling contained in paragraph 3 above, the second count of the petition failed to set out a cause of action and was not good as against a general demurrer. Under the rulings elsewhere made, the first count of the petition set out a cause of action and was good as against a general demurrer. The court did not err in sustaining the general demurrer to the second count of the petition, but did err in sustaining the general demurrer to the first count. Since the court did not pass upon the special demurrer to the first count of the petition, and since the second count was properly dismissed on general demurrer, ihe rulings on the special demurrer are not passed upon. The court erred ill dismissing the plaintiff’s entire petition on general demurrer.

Decided February 21, 1929.

Alston, Alston, Foster & Moise, for plaintiff.

Slaton & Hopkins, for defendant.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


author: Bell, J. Stephens, J.,

text:
    19083.
    CLARK v. WOOD.
    Decided February 21, 1929.

      A. W. White, for plaintiff in error.

      Frank T. Grizzard, H. F. Sharp, contra.
   Bell, J.

Mrs. Wood made a contract with Mrs. Clark for the purchase of two cows at the price of $100, paying $5 at the time and agreeing to pay the remaining $95 in a few days, when the cows were to be delivered. In about a week Mrs. Wood went for the cows and Mrs. Clark would not deliver them. Mrs. Wood tendered the balance due and demanded performance. The tender and the demand were both refused. Mrs. Wood then brought a suit in trover against Mrs. Clark in the municipal court of Atlanta 'to recover the property, and two days after the filing of the suit she paid into court the sum of $95 as a cash tender to the defendant. The facts appearing as above stated, the plaintiff, on the trial, was nonsuited. She moved for a new trial, which the court refused, and, on her appeal to the appellate division, the judgment of the trial court was reversed; whereupon the defendant carried the case by certiorari to the superior court, and, the certiorari being overruled, the defendant excepted.

Besides the receipt from Mrs. Clark for the initial payment of $5 and a receipt from the clerk of the municipal court showing deposit in court of the remaining $95 as continuing tender, the only evidence adduced was the testimony of the plaintiff, which, so far as material, was as follows: “I purchased some cows from Mrs. I. C. Clark, the defendant, on February 28. I bought two cows from her. One was a little black and white spotted Holstein cow, and the other was supposed to be a Jersey cow. I paid Mrs. Clark $100 for these cows, or, rather, that is what I was to pay her. I gave her $5 and took a receipt for it. The paper which you hand me is the receipt I got. I was to pay the balance when I went for the cows Monday morning. I bought the cows on Monday, and was to go for them the third day, if nothing happened. It was snowing and sleeting, so I called Mrs. Clark and told her I couldn’t get over there, and she said it would be all right. I had a cow which had freshened in the meantime, and I had to stay up two nights with her. I called Mrs. Clark about the cows on Friday and she said, ‘I kept the cows up one day and you didn’t come for them.’ I told her that the weather had been bad and that I had had a sick cow. I told her that my husband didn’t have but two hours off, but that if he found that he had time he would be up there for the -cows on Saturday, but that if he didn’t I would come for them Monday. We went up there Monday morning and carried the truck. That was the following Monday after I had paid her the $5. I told Mrs. Clark that I had come for the cows and she said, ‘I expect those cows have beeen sold,’ I thought she was joking. I said, ‘Here’s your money.’ She said, ‘Those cows have been sold.’ I said, ‘Those are my cows and I want them. I have been to a 'lot of trouble.’ She said, ‘Here’s your money.’ I said, ‘I don’t want the money. That is not right.’ I went back to the truck and told my husband what she had said. I told Mrs. Clark that if she was going to treat me that way, she ought to pay me for my trouble. I told her I would let the courts settle it. It was snowing and sleeting and raining all at the same time. When I phoned Mrs. Clark she said it was all right. I didn’t ask her then where the cows were. She told me on the following day that she had kept them up, but that they were then out in the pasture. I went for the cows the following Monday morning. I saw the cows and valued them at $100 apiece. That is what they would have brought me. I am acquainted with the value of cattle, as I handle cattle. The calf of one of those cows was ten days old and Mrs. Clark told me she was giving three gallons of milk, and the other was to freshen in two weeks. . . It costs a good deal to feed cows. Mrs. Clark said she had fed these cows several days, and I offered to pay her. I told her I would pay her for the feed. She says, ‘All I want to do is to give your money hack/ I said, ‘If it has cost you anything, I will pay it/ . . I bought both of these cows for $100, and could have sold them for $100 apiece. I think I bought them cheap; if I hadn’t, I would not have bought them. I decided I would take the cows and Mrs. Clark came out to the car and wrote me a receipt after I had got in the car. She priced the cows to me while I was in the house. I told her I would take the cows, and she wrote me a receipt. If I had been going off without taking these cows, I would have [gone]. I did not tell Mrs. Clark that I would not give her over $40 apiece for the cows; I gave her what she asked for them. The other cow not being present, I told her I was taking some risk, but as we were just $10 apart, I told her I would give her price, and I did. . . I was to pay her for the cows when I went back after them. The receipt says that I was to pay her on March 1 — whatever it says. If I had known that she was not going to let me have the cows, I would have hired somebody to go and get them. I carried Mrs. Clark a $100 bill and she wouldn’t have it.”

Under the evidence adduced, the contract upon which the plaintiff relied was a mere executory agreement to sell, not passing the title; and, in such a case, although a part of the purchase-money has been paid down, the sale can not be rendered executed simply by a tender by the vendee of the remainder of the purchase-money, where the vendor, repudiating the contract, declines the tender and refuses to deliver the property. Civil Code (1910), § 4125; Dilman v. Patterson Produce Co., 2 Ga. App. 213 (2, 3) (58 S. E. 365); Duke v. Batts, 11 Ga. App. 783 (76 S. E. 165); Bowen v. DeLoach, 13 Ga. App. 458 (79 S. E. 371); Dudley v. Isler, 21 Ga. App. 615 (3, 4) (94 S. E. 827); Rowell v. Fincher, 33 Ga. App. 506 (126 S. E. 886); Fleming v. State), 106 Ga. 359 (32 S. E. 338); Rowe v. Spencer, 140 Ga. 540 (79 S. E. 144, 47 L. R. A. (N. S.) 561).

Under the facts stated, trover would not lie, but the plaintiff’s remedy would be an action for damages for the breach of the contract. Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609); Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (2) (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112).

There was in this case no evidence of an actual delivery, or of any intention by the parties to dispense therewith, and nothing to show that the title to the property ever passed to the vendee, so as to authorize its recovery from the vendor in an action of trover. This conclusion is not in conflict with anything held either in Biggers v. Pace, 5 Ga. 171 (5), or in Phillips v. Williams, 39 Ga. 597 (3), when the decisions in those cases are interpreted properly in the light of their special facts. In the Biggers case it was held that, even though the title may have passed from the seller to the buyer, this fact would not prevent an action by the buyer to .recover the difference between the contract price and the market value, where the seller had retained possession of the goods and refused to deliver them on demand. The question decided was whether the buyer could employ the latter remedy under the facts of that case, the Supreme Court saying: “We think it clear that the corn never was delivered. It was in defendant’s crib and on his premises. He never parted with the dominion over it. . . But admit that the title had passed to Biggers, the buyer, if Pace, the seller, would hot surrender the corn, Biggers might either reclaim the corn by an action of trover [citations] or he could, as he has done, bring a special action on the case for damages, and recover the market value of the corn at the time and place when and where it was to have been delivered.”

In the Phillips case the plaintiff brought a suit for damages, which he amended by adding a count in trover. 'The defendant pleaded' that it was agreed that he should keep the cotton as security until the note for the remainder of the purchase-money was paid; that after the plaintiff refused to pay the note and after due notice, he, the defendant, sold the cotton; that it brought less than it was due on the note, and the note was pleaded as a set-off. ’“On the trial there was no dispute as to the fact of the bargain or of its main terms,” except as to the time and medium of payment. It thus appears that the parties were agreed that the title passed, and what the Supreme Court really held, on the-question of title, was that if the plaintiff made a proper tender of the purchase-money in the medium required by the contract, the title became thereby relieved of the incumbrance' to the extent that the defendant would not have been authorized to sell the property to satisfy the debt, as he did. In view of the issues there made, the decision in that case can not be construed as holding that the vendee in an executory contract of sale can acquire title by tendering the purchase-money, where the vendor refuses to accept it and will not deliver the property.

The municipal court judge properly awarded a nonsuit and correctly refused a new trial. Since the appellate division erred as a matter of law in not denying the plaintiff’s appeal, the superior court should have sustained the defendant’s certiorari.

Since the decisions in Shippey v. Owens, 17 Ga. App. 127 (2) (86 S. E. 407), and Murphy v. Sulzberger, 17 Ga. App. 686 (87 S. E. 808), were rendered, the act creating the municipal court of Atlanta was amended so as to confer upon the trial judge in that court the- same power and authority to grant a nonsuit as may be exercised by the judges of the superior courts of this State. Ga. L. 1916, p. 199, sec. 4.

Judgment reversed.

Jenkins, P. J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting. I am of the opinion that the evidence authorized the inference that the contract amounted to an executed sale, so as to pass the title to the property. Therefore I think it was error to grant a nonsuit.


text:
    19090.
    CHENOWETH v. WILLIAMS.

      Decided February 21, 1929.

      Bennet & Bennet, for plaintiff. Branch & Snow, for defendant.
   Bell, J.

In the present case the defendant orally moved to dismiss the petition, upon the ground that it failed to set forth a cause of action; and the court withheld decision on the motion until the introduction of evidence by the plaintiff. After the plaim tiff had announced his case closed, the defendant renewed the motion to dismiss, contending that from the facts set forth in the petition and from the evidence adduced, the plaintiff was not entitled to recover. The motion was then sustained, and the plaintiff excepted.

Although the petition is, of course, more brief and succinct than the evidence, we think that in the particular ease they were in substantial accord, and thus that, while a technical motion for a non-suit would not have been good, the motion as made was rightly sustained, since from the facts both as stated in the petition and as shown by the evidence, there was no liability in law. Kelly v. Strouse, O’Connor v. Brucker, supra.

Chenoweth sued Williams to recover $236.49, basing his claim upon the following facts: The plaintiff was the owner of certain real estate in the city of Quitman which he agreed to sell to the defendant for the price of $5000. Shortly after the agreement, the plaintiff caused a deed to be drawn and tendered to the defendant upon the terms stated. In the meantime the defendant had examined the public records and had found that there were outstanding executions against the plaintiff to the amount of about $1400 (some of which, however, were dormant), and, because of the executions, objected to the title. But the plaintiff had previously executed a deed conveying the property to a Mrs. Dukes to secure an indebtedness of $4000, which deed contained a power of sale authorizing Mrs. Dukes upon a failure of the plaintiff to pay the debt at maturity to advertise and sell the property and to make conveyance to the purchaser. This indebtednes.s had matured and the power was ripe for exercise. Whereupon, in view of the outstanding executions against the plaintiff, he and the defendant made a supplemental agreement, to wit: The plaintiff would cause Mrs. Dukes to advertise the property under the power of sale, and the defendant would “bid it in as'cheap as he could” and would pay the amount of the indebtedness to Mrs. Dukes, together with the accrued taxes; and that he would then pay to the plaintiff the difference between the aggregate of these items and $5000, the price originally agreed upon. It being inconvenient for one or both of the parties to attend the sale, they appointed one Knight to represent them both, and he did so, buying the property for the defendant at a sum which, with the taxes added, amounted to $4763.51. This deducted from the $5000 leaves the amount sued for.

Such of the executions as were not dormant constituted a lien upon the property, though subject to the security deed in favor of Mrs. Dukes, and it was the intention of the parties that in such sale under power the defendant would acquire the title unincumbered, that is, relieved of the executions. The expressed purpose in making the arrangement was to salvage as much as possible for the plaintiff out of the sale to the defendant, after satisfying the taxes and the indebtedness to Mrs. Dukes, although it was understood that the public would have the right to bid, and if the property brought more than the Dukes claim (and the taxes) “the difference would be subject to the executions.”

After the sale under the Dukes paper and the execution of a deed to the defendant in pursuance thereof, for which he paid to Mrs. Dukes $4666.31, this being the full amount of her claim and the sum at which the property was bid in, and after further paying city, State, and county taxes in the ampunt of $97.23, thus obtaining clear title to the property for the aggregate sum of $4763.51, the defendant refused to pay the plaintiff the difference between that amount and the $5000, as agreed upon, in fact denying that he had made.any such agreement.

The motion to dismiss the case was upon the ground that the agreement as shown both by the pleadings and the evidence was upon its face intended to hinder, delay or defraud creditors, contrary to the law as contained in the Civil Code, § 3222. By the undisputed facts it appears that the plaintiff was seeking to make a sale of property, which was subject to executions against him, upon such terms as would enable him to save for himself a portion of the proceeds, when the same should have gone to his creditors.

A proper construction of that portion of the agreement which recognized that the public would have the right to bid, and provided that if the property brought more than the taxes and the indebtedness to Mrs. Dukes the remainder of the proceeds would be subject to the executions, is that, while the excess of the defendant’s bid above these items would go to creditors, the difference up to $5000 would still be paid to the plaintiff; so for the reason that it could not have been expected that the defendant would ever bid more than $5000, he having agreed to buy at that price and not more.

If it could be said that the part of the agreement to which we have just referred contemplated that other bidders at the sale might run the property to a price iir excess of $5000, and that in such event the difference between the sum of the Dukes claim and the taxes on the one hand and the proceeds on the other would be subject to the executions, the plaintiff is yet not-absolved. As we have just stated, there could have been no expectation that the defendant himself would run the property to a higher figure than that at which he agreed to buy from the plaintiff, and the mere fact that the right of others to bid was recognized does not purge the transaction as between the plaintiff and the defendant, where they intended that if possible the defendant would bid in the property at such a sum as would net the plaintiff a difference between the indebtedness under the security deed plus the taxes, and the agreed purchase price; and this is true notwithstanding the parties may not have done, and may not have intended to do, anything to discourage other prospective bidders.

The rights of others, (including the execution creditors) to appear and bid at the sale was not a matter within the control of the plaintiff and the defendant. Hence they could ■ not have failed to recognize such right, and the fact that they spoke of it as a possibility or contingency does not strengthen the plaintiff’s position. The plaintiff was seeking to enforce an executory agreement, the subject of which was his equity in the property over and above the indebtedness to Mrs. Dukes and the taxes. It is manifest that the purpose of this agreement was at least to delay creditors, and an agreement having such a purpose stands no better before the law than one which was intended actually to defraud them. The language of the Code is “delay or defraud.”

It is well settled that the court will not lend its aid to the enforcement of such an undertaking. Whether the amount claimed to be due still is subject to garnishment in favor of creditors is no sufficient answer, because it is the intention of the parties, and not the consequences, which causes the court to withhold its remedies. Compare Cronic v. Smith and the other cases cited with it in the first headnote. The rule is different where the contract has been executed. Parrott v. Baker, 82 Ga. 364 (4) (supra).

Counsel for the plaintiff in error rely upon the case of" Mathews v. Starr, 68 Ga. 521. In that case the property was about to be sold under execution against Starr; Mathews agreed that if Starr would permit him to buy it at sheriff’s sale, and would not have the price run up on him, he would buy and would pay to Starr the difference between the price paid at the sale and $1000, which Starr claimed to be a fair valuation. Belying upon this agreement, Starr made no effort to pay the fi. fa. or to stop the sale as he could otherwise have done. Mathews bought for $625. Starr sued for the balance to complete the $1000. The Supreme Court held that the contract was grounded upon a sufficient consideration, and was not illegal. It does not appear that there was any creditor other than the plaintiff in fi. fa., nor that the parties .intended that the property should be bid in at less than the amount of the execution, and it was sold for more. While in the present case there was no intention that the property should be bid in at less than the indebtedness to Mrs. Dukes, it was still contemplated that it would be bought at less than the amount of that claim and the outstanding executions, and also at less than the agreed purchase-price. The Mathews case would be identical with the instant case if we could exclude from this case the fact that there were execution creditors. To make a concrete comparison: Mrs. Dukes would represent the plaintiff in fi. fa. in that ease, the plaintiff here would represent Starr, and the defendant would represent Mathews. If these were all the persons who were interested in the transaction- now under investigation the Mathews case would be in point. That in the present case others were interested, namely the execution creditors, is the fact that makes the difference. It is immaterial that no such creditor is complaining and that none may have been injured. The question of whether the contract was intended to accomplish an illegal object is the governing factor, and if such was its purpose, it is unimportant that the creditors are quiescent, or that none of them have been damaged: In such a case the law is simply passive, leaving the parties where it finds them.

We do not mean to say that the parties in this case consciously intended to do wrong. It is the general rule that fraud may arise as an inference of law, and that where an agreement is made under circumstances the result of which must necessarily be to hinder or delay creditors, it will be presumed in law fhat such was the intention of the transferor making it. “It is generally, if not universally, held that freedom from moral turpitude, and an innocent and honest intention to accomplish a good object in the disposition of the property, are not enough to relieve a transaction of this kind from its fraudulent character, in reference to its effect upon the legal rights of creditors, for everyone is presumed to intend the natural and probable consequences of his own acts.” 12 R. C. L. 537, 538.

The record shows that the agreement sued on was not made by the plaintiff in person, but by another acting fo.r him; but since the agreement as thus made is the foundation of the action, the plaintiff is bound by such infirmities as it may possess. .

Judgment affirmed.

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


text:
    18949
    Gable v. Central of Georgia Railway Co.
   Stephens, J.

1. In a suit for personal injuries, where the defendant pleaded as an accord and satisfaction a writing signed by the plaintiff purporting to be an agreement by which, for a certain amount of money paid to him' by the defendant and received in full satisfaction for the injuries complained of, he released the defendant from all liability to him arising out of the injuries, and also pleaded in accord and satisfaction an agreement contained in the face of a check given by the defendant to him and endorsed and cashed by him, reciting that the check was received in full satisfaction of the injuries, and where the plaintiff offered amendments to the petition which alleged that, at the time of the execution of the alleged agreement of settlement and the acceptance of the check, the plaintiff, who was illiterate and could not read or write, was induced by the defendant to sign the agreement under a representation made to him that it was a receipt for a sum of money being paid to him by the defendant in satisfaction of unpaid wages due him and as a gratuity to Mm because he had been unable to earn any money since the injury, that he was at that time in great physical and mental pain and his mind was not normal, as a result of the injuries received, and that by reason of this condition the defendant took advantage of him and obtained his signature to the writing alleged as an accord and satisfaction, that in reliance upon the representations made to him by the defendant he signed the written instrument, believing that it was a receipt for the money paid him at the time and which he believed was paid for wages due to him and as a gratuity, that he signed the instrument without knowledge that it was not such a receipt but was in fact an agreement to accept in full settlement of his injuries the money paid to him and release the defendant from all liability for damages arising out of the injury, that he entered into no agreement and accepted no check or money in satisfaction of his claim for damages, but agreed to accept and accepted the money and the check only in payment of wages due him by the defendant and as a gratuity on account of his having been out of work and unable to earn money, the amendments did not allege a fraudulent procurement by the defendant from the plaintiff of a contract in accord and satisfaction, but alleged that the plaintiff’s signature to the writing was fraudulently procured by the defendant, without the plaintiff’s knowledge of the contents of the writing and under a belief, fraudulently induced by the defendant, that the plaintiff was signing a receipt for money representing wages and a gratuity, and not a contract in settlement of his claim for damages against the defendant. The plaintiff therefore was not required, as a condition precedent to his right to attack for fraud the procuring of the execution by him of the alleged agreement in accord and satisfaction represented both by the writing and the check, to refund to the defendant the money which the defendant had paid to him pursuant to the alleged agreement in accord and satisfaction. Butler v. Richmond & Danville Railroad Co., 88 Ga. 594 (15 S. E. 668) ; Mackle Construction Co. v. Wyatt, 29 Ga. App. 617 (116 S. E. 877). The eases of Bast Tennessee, Virginia & Georgia Railway Co. v. Hayes, 83 Ga. 558 (10 S. E. 350), and Western & Atlantic Railroad Co. v. Burke, 97 Ga. 560 (25 S. E. 498), are distinguishable. The court erred in striking on demurrer the amendments offered by the plaintiff.

2. In a suit to recover damages for personal injuries alleged as arising out of negligence of the defendant, where the defendant pleaded both the general issue and an alleged agreement between the defendant and the plaintiff in accord and satisfaction of the damages, the error of the court in sustaining demurrers to amendments offered by the plaintiff in the nature of replications attacking the alleged accord and satisfaction on the ground of fraud in its execution, and striking the amendments, did not render nugatory the subsequent trial upon both the plea of general issue and the accord and satisfaction, resulting in a verdict for the defendant.

3. The error in striking the plaintiff’s amendments affects, and renders erroneous, the final judgment directing a verdict for the defendant, where the evidence under the plea of the general issue does not as a matter of law demand the verdict directed, and where it does not affirmatively appear that on another trial a valid and legal agreement of accord and satisfaction, untainted by the fraud as alleged by the plaintiff, will as a matter of law be established.

4. Where a railroad company, acting through its servants, is engaged in removing abandoned cross-ties and telegraph poles from its right of way beside its track, and loading them upon a trailer attached by a chain to a motor-car -upon the track, and hauling them by means of the trailer drawn by the motor-car over the track, with the intention, on the part of the servants of the' railroad company engaged in this work, to haul the cross-ties and telegraph poles to places along the track, where they are to be thrown over for the purpose of being used by some of these employees, including the one of them who is afterwards injured, for their own personal use as firewood, and where this service is performed by these employees with the consent of the railroad company and under orders from it, and the employees when so engaged are working in tile company’s time and receiving pay for this service from the company, the employees, when so engaged, have not stepped aside from the performance of their duty as servants of the railroad company, and are not performing services for themselves by reason of the fact that the cross-ties and the telegraph poles which they are hauling are to be used by them for their own personal use and are, by consent of the railroad company, being conveyed to and thrown off at places which suit their convenience for such purpose, but in so doing they are acting in their capacity as servants of the railroad company in the prosecution of the company’s business.

Decided February 22, 1929.

Porter & Mebane, for plaintiff.

John D. & E. S. Taylor, Maddox, Matthews & Owens, for defendant.

5. Where in such a case the trailer was heavily loaded by, and the chain used to draw it was furnished by, a servant of the railroad company, other than the one who was afterwards injured, and where, during the progress of the motor-car in drawing the trailer along the railroad-track, the chain which coupled the trailer to the motor-car broke, and one of the servants of the railroad company, who was riding on the motor-car in the discharge of his duty in connection with the operation of the motor-ear and the trailer in hauling the material referred to, was, by a sudden lunge forward of the motor-car, due to its release from the drag of the trailer, thrown upon the railroad-track, behind the motor-car, and'was there run upon by the advancing trailer and injured, the inference is authorized that the separation of the trailer from the motor-car by reason of the breaking of the coupling chain was due to the negligence of the railroad company through its servants whose duty it was to load the trailer and furnish a chain for the coupling, in overloading the trailer and in not furnishing a chain sufficiently strong to serve the purpose of drawing the trailer in safety and without breaking.

G. Although the injured servant may have known before he got upon the motor-car that the chain used to make the coupling was smaller and weaker than the chains usually used by the railroad company for this purpose, his risk in riding upon the motor-ear was not necessarily so obvious that he as an ordinary prudent person, under the circumstances, could have observed and appreciated it. He therefore, when riding upon the motor-car, did not necessarily assume the risk incident to the negligence of the railroad company in not using a chain strong enough to draw the trailer in safety under the circumstances.

7. The evidence authorized the inference that the plaintiff’s injuries were caused by the negligence of the defendant, and, the court having erred in striking the plaintiff’s amendment attacking the alleged agreement in accord and satisfaction, the court erred in directing a verdict for the defendant. Judgment reversed.

Jenkins, P. J., and. Bell, J., concur.


text:
    19063.
    Texas Company v. Brown Tire Company.
   Stephens, J.

1. Where two persons have entered into a contract to do that which is legal, but, on account of the then obtaining physical conditions, it is in contemplation of the parties and necessary to the performance of the contract that one of the parties shall do an act which is prohibited by law, and after the execution of the contract the physical conditions become so altered that it can be performed by a lawful act, and performance in such lawful manner is tendered by the party contracting to perforin, and the tender is accepted by the other contracting party, the contract is not illegal and unenforceable upon the ground that it is a contract to do an unlawful act. 3 Williston on Contracts, §§ 1758, 1760. Where the owner of a gasoline filling station and an oil company enter into a contract, whereby the oil company, during a certain period is to furnish to the owner of the filling station gas, at a stipulated price, which the oil company is to supply by depositing it in underground tanks at the filling station, and at the time of the execution of the contract it is contemplated by both parties that the oil company in performing its contractual obligation will install its own oil-tanks under the sidewalk at the filling station in lieu of oil-tanks already installed there and belonging to another person, yet where, after the execution of the contract, it is, by reason of a refusal of the municipal authorities to permit the installation by the oil company of the new gas-tanks, agreed by both contracting parties that the oil company purchase from their owner the tanks already under the sidewalk, and the oil company accordingly negotiates and concludes with the owner of these tanks a contract for their purchase, which thereby enables the oil company to perform its contractual obligation to furnish gas to the owner of the filling station without the necessity of installing new tanks under the sidewalk, it is then in contemplation of the contracting parties that gas will be supplied under the contract in tanks already under the sidewalk. The contract therefore is not illegal or void as being against public policy in that it obligates or entails, by the installation of new gas-tanks under the sidewalk, the performance of an act in violation of a statute of the State prohibiting the installation of gas-tanks under the sidewalk. Nor does a refusal of the government authorities of the city to grant a permit for the installation of new gas-tanks under the sidewalk prevent a performance by the oil company of its contractual obligations to furnish gas by storing it in the tanks already installed under the sidewalk.

2. Although the tanks already under the sidewalk may have been installed in violation of an act of the legislature preventing the installation of gas-tanks under sidewalks, the use of these tanks thus installed for the storage of gas is not a violation of this statute. Where it does not appear that the use of the tanks for the storage of gas was otherwise illegal or against public policy, the contract by which the oil company agreed to supply gas to the owner of the filling station by the storage of gas in these tanks was not illegal or contrary to public policy.

3. Assuming that the gas tanks already installed under the sidewalk at the filling station had been installed in violation of an act of the legislature prohibiting their installation, and assuming that their removal from the sidewalk could be enforced at any time, the possibility of such enforced removal before the termination of the contract does not physically prevent the performance by the oil company of its contractual obligations to store the gas in the tanks; and since the contract must be taken as made in contemplation of the provisions of existing public laws, the mere possibility of the tanks being removed in compliance with an existing statute can not afford an excuse to the oil company for a failure to perform its contractual obligations to furnish gas for a period of time by storing it in these tanks.

Decided February 22, 1929.

4. This being a suit by the owner of the filling station against the oil company to recover under the contract an amount contracted to be paid monthly by the defendant to the plaintiff for the enjoyment of certain privileges at the plaintiff’s filling station, and also to recover an amount representing the plaintiff’s damage arising out of a failure by the defendant to supply gas to the plaintiff as contracted, and the evidence authorizing an inference that the contract was to furnish the gas by storage in the tanks then installed under the sidewalk, as indicated in paragraph 1 above, a finding that the contract was illegal and against public policy, and therefore unenforceable against the defendant, was not as a matter of law demanded; but a finding that a legally enforceable contract was entered into by both parties, and was breached by the defendant’s failure to perform, was authorized.

5. The only defense interposed by the defendant was that the contract was illegal and against public policy, and unenforceable, in that it provided for the performance of an act prohibited by law, and the court clearly charged the jury favorably to the defendant in this respect.

6. Since, under the ruling in paragraph 2 above, the installation of the then-existing tanks under the sidewalk in violation of law was immaterial, and could not afford a defense for a failure of the defendant to carry out the contract by supplying the gas contracted for by storing it in these tanks, a charge of the court that if the tanks under the sidewalk were not there in violation of law, a contractual obligation by the oil company to supply gas to these tanks would not be illegal or against public policy, even if not authorized by the evidence, was nevertheless not harmful to the defendant. Nor was it harmful to the defendant for the court, in calling the jury’s attention to that -part of the act of the legislature o'f 1924 which provides that upon a discontinuance of any tanks or filling stations located within the sidewalks in violation of this act, the city authorities shall require them to be immediately removed (Ga. L. 1924, pp. 683, 688), to fail to call the jury’s attention to the provision following to the effect that no permission shall be granted for the relocation of the tanks or filling stations on the streets or sidewalks of the city.

7. Under the above rulings the court did not err as against the defendant, either in refusing to charge, or in charging as excepted to.

8. The verdict found for the plaintiff was legally authorized and no error appears. Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

Adams, Adams & Douglas, for plaintiff in error.

Lawrence & Abrahams, H. Mercer Jordan, contra.


text:
    19064.
    KING HARDWARE COMPANY v. ENNIS. PURCHASE & SALE COMPANY v. ENNIS.
    19065.

      Decided February 22, 1929.
    Rehearing denied March 2, 1929.

      Little, Powell, Smith & Goldstein, Sibley & Sibley, for plaintiffs in error. Allen & Pottle, contra.
   Bell, J.

Mrs. T. Hines Ennis brought suit against American Gas Machine. Company, King Hardware Company, and Purchase and Sale Company, to recover damages for personal injuries sustained as the result of the explosion of a gasoline cooking-stove, alleged to have been manufactured by the ffrst-named defendant and sold to the plaintiff’s husband by or through the other defendants, and thereafter placed in her home, where she was injured while attempting to use it. King Hardware Company and Purchase and Sale Company filed general and special demurrers, which the court overruled, and they severally excepted. American Gas Machine Company is not a party in this court, because, as stated in one of the briefs, that defendant made an issue as to service, which issue is still pending in the court below. However, as certain allegations with respect to that company must be considered in passing upon the case as to the other defendants, it becomes necessary to state the case substantially as though all the parties sued were now before the court. The defendants in the court below, as named above respectively, will be referred to herein as the Gas company, the Hardware company and the Sale company.

The petition with the amendments thereto made the following case: On or about June 1, 1927, the Gas company, a corporation of New York, was engaged in the business of manufacturing, selling, and distributing in the State of Georgia and other States a certain gasoline eooldng-stove known as “Kitchenkook,” and through its agents was selling and. distributing stoves of this type in the county of Baldwin, wherein the plaintiff resided. The Hardware companjr, a corporation, was the agent and representative of the Gas company in the State of Georgia, having its agency and place of business in Fulton county. The Sale company was the agent and representative of both the other companies, having its agency and place of business in the county of Baldwin, in this State.

On or about the date above Mentioned, the plaintiff’s husband was solicited by the Sale company, “the agent and distributor of said stoves in said county, to purchase one of said stoves, and said stove was delivered to the said T. Hines Ennis at his home in the city of Milledgeville, occupied by himself and his wife, your petitioner.” The stove contained three burners, to which gasoline was distributed from a tank, and after being lighted, the gasoline vaporized and produced flames necessary for its operation. On July 13, 1927, the stove being in the plaintiff’s kitchen, she lighted the burners thereof and returned to her room. A little later, on being informed by a servant that the lights had gone out, she immediately returned to the kitchen for the purpose of relighting the stove, and on striking a match applied it to one of the burners, when the stove suddenly exploded, seriously and permanently injuring her. All three of the defendants were negligent and liable to the plaintiff because of having manufactured, furnished and sold to her husband for her use a defective appliance. The stove was defective in that the gasoline [pipe?] from the tank which supplied the burners was so defective that the gasoline leaked into the stove, and that, as a result, when the burner was ignited the gasoline which had leaked in immediately caught Are and caused the explosion. The plaintiff had had no experience with stoves of such character, and, in using the particular stove, followed directions “given her by the agents and representatives of said manufacturer and distributors; and . . she could not have avoided the injuries sustained by her by the exercise of ordinary care and diligence.” Being entirely unfamiliar with the construction and operation of the stove referred to, the plaintiff “is unable to set out specially and in detail the particulars in which said stove was defectively constructed. She avers that said stove was constructed with three gas burners on the top and one gas burner in the oven. At the right of said stove and at the top was a tank or receptacle wherein the gasoline, fed into the pipes leading to the burners, was stored. When the burners were lighted the heat caused the gasoline to vaporize and generate a gas. When the burners were not lighted the flow of gasoline should automatically have stopped, if said stove was properly constructed. Plaintiff avers that said stove was defectively constructed in that when, the burners were not lighted, the flow of gasoline instead of being stopped, as ordinary diligence in construction required, it seeped into the oven and accumulated there, and when she undertook to relight the burner after it was extinguished the flame came in contact with said accumulated gas, and caused the explosion hereinbefore described. Plaintiff charges that when she undertook to relight the extinguished burner she was wholly unaware that said gasoline had escaped and seeped into the oven, and, being unacquainted with the mechanism of the stove, had no means of knowing that fact. She relied and had the right to rely on the representations, both express and implied, of the manufacturer and the distributors that said stove was properly and skilfully constructed.”

At the time the plaintiff acquired the stove and before she undertook to use it “an agent and representative of the manufacturer, and of the jobber, King Hardware Company, and the retailer, Purchase and Sales Company, came to her home and superintended • the installation thereof. She avers that she is unable to give the name of said agent, not knowing the same, but she does aver that said agent gave her specific instructions as to the operation of said stove, and assured her that it was impossible for said stove to explode. She avers that she followed the instructions of said agent to the letter on every occasion upon which -she used said stove.” The plaintiff “brings her action against the three defendants named as joint trespassers . . , disclaiming all right of action on account of any contractual relationship.” The stove at the time of the explosion was in the same condition as when it was furnished to her, and its condition had remained unchanged from the time it was delivered by the Gas company to the Hardware company, from which it passed to the Sale company and thence into the home of the plaintiff. “The dangerous character of said stove was known to all three of said defendants, or could have been known by the exercise of ordinary care and diligence.” The stove was manufactored by toe Gas Company for toe purpose of being sold generally to the trade, and the Hardware company, “as the distributor of said stove and other stoves of a similar character manufactured by the manufacturer, intended the distribution thereof among its various patrons, and knew that said stove would likely be purchased and used by some purchaser thereafter, and that said Purchase and Sale Company, the retailer, procured said stove and other stoves of similar character with the full intent and purpose to sell the same to the retail trade, well knowing that they would probably be purchased by consumers.”

With the exception of certain grounds of the demurrer filed by the Hardware company relating to misjoinder and want of jurisdiction, none of which have been argued or insisted upon in the briefs and are therefore considered as abandoned, the demurrers of each of the defendants were substantially the same, and their several grounds, while not presented in the order named below, were in brief as follows: (1) No cause of action set forth. (3) Allegations of negligence too vague, indefinite and uncertain. (3) Allegations insufficient to show any defect, or whether defect was latent or patent. (4) The allegations that “When the burners were not lighted the flow of gasoline should automatically have stopped, if said stove was properly constructed,” and that “said stove was defectively constructed in that when the burners were not lighted the flow of gasoline, instead of being stopped, as ordinary diligence in construction required, seeped into the oven and accumulated there,” are mere conclusions of the pleader, being unsupported by any specific allegation of fact. (5) It is not shown what acts of care or diligence the plaintiff did. (6) From the petition as a whole it affirmatively appears that the plaintiff’s injuries were not caused by any negligence of the defendants, but was the result of her own negligence and failure to exercise ordinary care.

Whether the petition .sets forth a cause of action as against the Gas company, the manufacturer, is a question with which we are, of course, not concerned in this case. As to the other two defendants we think the petition good. The petition seems to be duplicitous in that in some places it refers to the Hardware company and toe Sale company as the manufacturer’s agents, while in other -places it refers to them, respectively, as wholesaler or jobber and local dealer. However, there was no demurrer upon the ground of duplicity; and since in our opinion the petition sufficiently states a cause of action against the defendants as sellers, it is unnecessary to determine whether the same would be true should they be considered as mere agents of the manufacturers. Citizens & Southern Bank v. Union Warehouse Co., 157 Ga. 434 (6, 7), 454, 455 (122 S. E. 327).

It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general .use, in the usual course of trade, without knowledge-of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury. Kress v. Lindsey (C. C. A.), 262 Fed. 331, 13 A. L. R. 1170; Osheroff v. Rhodes-Burford Co., 203 Ky. 408 (262 S. W. 583); Pitman v. Lynn Gas & Electric Co., 241 Mass. 322 (135 N. E. 233); Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419 (107 So. 552) ; Bond v. Consolidated Gas &c. Co,, 146 Md. 390 (126 Atl. 105, 42 A. L. R. 1237) ; Walden v. Wheeler, 153 Ky. 181 (154 S. W. 1088, 44 L. R. A. (N. S.) 597) ; Clement v. Rommeck, 149 Mich. 595 (113 N. W. 286, 13 L. R. A. (N. S.) 382, 119 Am. St. E. 695); 24 R. C. L. 509, § 802.

This is to speak only of articles which are not inherently dangerous. While we construe the petition in this case as alleging, not that the stove was inherently dangerous, but that it was dangerous because of a defect, we think it may be reasonably inferred from all the facts alleged that the defect was one which a reasonably prudent dealer should have discovered before placing it upon the market and delivering it to a customer. Smith v. Clarke Hardware Co., 100 Ga. 163 (28 S. E. 73, 39 L. R. A. 607); Mansfield v. Richardson, 118 Ga. 250 (45 S. E. 269); Monahan v. National Really Co., 4 Ga. App. 680 (62 S. E. 127); Hickman v. Toole, 35 Ga. App. 697 (3) (134 S. E. 635); Richmond & Danville R. Co. v. Elliott, 149 U. S. 266 (13 Sup. Ct. 837, 37 L. ed. 728) ; Lewis v. Terry, 111 Cal. 39 (43 Pac. 398, 31 L. R. A. 220, 52 Am. St. R. 146); Gerkin v. Brown, 177 Mich. 45 (143 N. W. 48, 48 L. R. A. (N. S.) 224); Cox v. Mayson, 89 App. Div. 219 (85 N. Y. S. 973); Garvey v. Namm, 136 App. 815 (121 N. Y. S. 442); Cashwell v. Fayetteville Pepsi-Cola Bottling Co., 174 N. C. 324 (93 S. E. 902); 24 R. C. L. 517, § 808; 45 C. J. 892.

Though it is not expressly averred that the defect was patent or reasonably observable, yet such a conclusion is fairly, deducible from all. the facts pleaded. It is a matter of common knowledge that cooking stoves do not come in sealed packages,-but are readily subject to be exposed, and usually are exposed, if not demonstrated, in the process of selling. It is well known that dealers selling such articles do as a matter of fact pretend to know something.of their construction and of the manner of their manipulation, and the case is different from those instances where the dealer receives and transmits an article in an unbroken package, with no occasion to investigate or to become acquainted with its character. Fleetwood v. Swift, 27 Ga. App. 502 (108 S. E. 909); Hasbrouck v. Armour, 139 Wis. 357 (121 N. W. 157, 23 L. R. A. (N. S.) 876). Thus, it can not be said that the defendants in this case should not have known of the defective condition of the stove in question. On the contrary, the petition, as against demurrer, sufficiently shows a duty of knowledge, and in such a case a charge of implied notice is sufficient. Where preliminary facts necessary to disclose a duty of knowledge by the proprietor have been set forth, a statement, as a conclusion, that he knew or ought to have known is not objectionable as failing to show negligence. Fulton Ice & Goal Co. v. Pece, 29 Ga. App. 507 (2) (116 S. E. 57).

It should be understood that in referring to the custom of merchants to expose or demonstrate an article such as a cooking stove in the transaction of selling it (Civil Code of 1910, § 5734; Pollak v. Niall-Herin Co., 137 Ga. 23, 25, 72 S. E. 415, 35 L. R. A. (N. S.) 13), we are speaking only of what we take to be the general practice or custom. If there should be an exception^ in the case of the type of stove known as “Kitchenkook,” the fact does not affirmatively appear, and the petition will not be construed in the light of possible but unmentioned exceptions to the ordinary rule of conduct. We are not intending here to take judicial cognizance of facts which could not be controverted by proof (Rome Ry. Co. v. Keel, 3 Ga. App. 769 (2), 60 S. E. 468), but say merely that the petition shows enough to carry the case to the jury, on proof of the allegations made. If the kind of stove known as “Kitchen-kook” is not handled and marketed in the usual way, this fact may be established defensively, should it not affirmatively appear from evidence introduced by the plaintiff. 22 C. J. 103; Larkin v. Andrews, 27 Ga. App. 685 (2) (109 S. E. 518); Columbus R. Co. v. Moore, 29 Ga. App. 79 (113 S. E. 820).

Moreover, the petition alleged that the agent of the defendants went to the plaintiff’s home and superintended the installation of the stove, giving to her specific instructions as to its operation, and assuring her that it was impossible for it to explode. She further avers that she followed the instructions to the letter upon every occasion when she used it.

While it may seem inconsistent to aver in some parts of the petition that the defendants were dealers and in other parts that they were the manufacturer’s agents, and then to claim that the person who made such representations was the agent of the defendants in either case, none of the allegations on the subject of agency or of the relationships of the various persons were demurred to upon the, ground of duplicity, and in the face of such ambiguity the petition will be so construed as to sustain the cause of action, if one is stated upon either theory. Hence, if, on regarding the defendants as agents, the installer referred to as the agent of all should be deemed to be the sub-agent of the defendants and the responsible agent only of the manufacturer, and if in this view the representations should be referable to the manufacturer and not to the defendants, the petition should in that case be construed as alleging that the defendants were dealers, with the installer representing them as agents, so as to make them responsible for his conduct, the specific allegations being that he was their agent and representative. New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (8 e) (116 S. E. 922); Central Railroad &c. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750); Central of Georgia Ry. Co. v. Banks, 128 Ga. 785 (58 S. E. 352). It is not impossible in law that he should have been at once the common agent of the manufacturer, and of the wholesaler or distributor, and of the local dealer, even granting that the two last named did not stand as agents to each other and were not the agents of the manufacturer. Louisville & Nashville R. Co. v. Tift, 100 Ga. 86 (2) (27 S. E. 765); Morris v. Warlick, 118 Ga. 721 (45 S. E. 407); 2 C. J. 690.

So, even if it could be said that the petition fails to allege any facts to show a duty on the part of the defendants to have known of the defective character of the instrumentality, provided no representations were made, yet, since the petition may be reasonably construed as alleging representations by the defendants’ agent, they will for the purpose of demurrer be held responsible therefor. It certainly could not be held that they were without a duty of discovering the defect when they assumed to represent that the stove was safe and could not explode. If a person is without knowledge as to whether a particular thing is true or not, he ordinarily will 'act at his peril in representing it to be true. Civil Code (1910), §§ 4632, 4623; Allison v. Nunn, 34 Ga. App. 561 (130 S. E. 364); Cunningham v. Pease House Furnishing Co., 74 N. H. 435 (69 Atl. 120, 20 L. R. A. (N. S.) 236, 124 Am. St. R. 979). Thus, if a dealer, in placing upon the market an article which is manufactured by another, is without knowledge as to whether it be sound, or, on the contrary, defective, he should stand where the law places him and pass the article on upon the assumption, without more, that the manufacturer has performed the duty of properly constructing the article and of making it safe for the common use intended. Smith v. Clarke Hardware Co., supra; Woodward v. Miller, 119 Ga. 618 (68 S. E. 847, 64 L. R. A. 932, 100 Am. St. R. 188); Peaslee-Gaulbert Co. v. McMath, 148 Ky. 265 (146 S. W. 770, 39 L. R. A. (N. S.) 465, Ann. Cas. 1913E, 392); Cunningham v. Pease House Furnishing Co., 74 N. H. 435 (69 Atl. 120, 20 L. R. A. (N. S.) 236, 124 Am. St. R: 979); 24 R. C. L. 517; 45 C. J. 892.

Representations imply knowledge, and if a tradesman sells or furnishes an article representing it to be safe for the uses for which it was designed, it may be concluded that he knew or should have known of such defects as it may possess, and if it turns out that the article was defective, then, in a suit against him for injuries occasioned thereby, an allegation that he either knew or ought to have known of the defects will be sufficient as a charge of negligence in his failure to know.

The action being in tort, it is immaterial that there was no privity of contract between the plaintiff and the defendants in the sale of the stove; and the more especially is this true since the representations were made directly to the plaintiff. Woodward v. Miller, supra; Civil Code (1910), § 4408.

The petition was not subject to special demurrer upon the ground that it failed to show a defect or to describe the alleged defect with sufficient particularity. In Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214 (62 S. E. 1022), the allegations were as follows: “Said engine’s spark-arrester was insufficiently and improperly constructed to prevent live sparks of fire from issuing from said smoke-stack, and the- engineer in charge of said locomotive was negligent in operating said locomotive, in that he caused said engine to exhaust at. that point, and not at some other point, where there was less danger of fire being caused by such emission of sparks, as in a swamp or while crossing a stream, which he had an opportunitv of doing, there being no necessity for causing such emission of sparks at that point.” The court said: “Reasonable certainty is all that is required in pleadings. Mere conclusions will not suffice as allegations of negligence. However, structural descriptions of defects alleged in machinery are not required in order to give.the necessary certainty. To state specific concrete improper results which a machine in question produced is often sufficient to describe a defect definitely. In other words, to say that a locomotive smokestack was so insufficiently constructed that it allowed live sparks of fire to come through describes with legal definiteness a lack in its construction. An examination of the record upon which the fifth headnote in the case of Green v. Babcock Co., 130 Ga. 470 (60 S. E. 1062), is based shows that the Supreme Court recognizes and applies this principle. See also Ga. Ry. & El. Co. v. Reeves, 123 Ga. 697 (51 S. E. 610).”

Again, in Charleston &c. Ry. Co. v. Attaway, 7 Ga. App. 231 (2 a) (66 S. E. 548), it was held: “A defect in a machine may be described by showing that the machine was in such condition that it produced certain definitely described results which a machine not defective would not and should not produce. It 'is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective.”

The petition contained but a single count, and all the facts stated therein are to be considered together, and the allegations as to the representations of safety are not without some importance in passing upon the sufficiency of the averments concerning the de-‘ fects, which were thus impliedly affirmed by the defendants not to exist. The allegations of the petition descriptive of the cireumstances antecedent to and attendant upon the plaintiff’s injury-should be considered in passing upon the specifications of negligence to which the special demurrer was addressed, and from all 'the facts pleaded it can not be said that the petition failed to describe with sufficient definiteness the defect complained of. O’Dell v. Wolcott, 14 Ga. App. 536 (3) (81 S. E. 819). Should it appear from the evidence that the stove was not defective unless from the fact that it was not equipped with some particular device, it would seem that the plaintiff would have the burden of proving at least that such device was in common use upon gasoline cooking stoves, in order to show negligence in its omission from the stove in question. Southern Ry. Co. v. Thompson, 139 Ga. 367 (7) (58 S. E. 1044); Louisville & Nashville R. Co. v. Studdard, 34 Ga. App. 570 (7) (130 S. E. 533).

It can not be said by the court as law that the plaintiff’s case should fail merely because the explosion did not occur sooner than it did. The purchase of the stove appears to have been made approximately six weeks previously, but we can not hold from the petition that the plaintiff ought to have discovered that it was defective or dangerous before using it upon the particular occasion.

In a ease of this sort, that the plaintiff may have avoided the consequences of the defendants’ negligence by the exercise of ordinary care is a matter of defense, and the petition will not be dismissed on demurrer on the ground that by the exercise of such care the plaintiff could have avoided the consequences of the negligence alleged, unless it affirmatively discloses facts from which such conclusion would be demanded. Collins v. Augusta-Aiken Ry. Corp., 13 Ga. App. 134 (3) (78 S. E. 944). Since it was not necessary for the plaintiff to negative her own want of care, the petition was not demurrable because it failed to allege what acts were done by her in the exercise of care. Western & Atlantic Railroad v. Reed, 33 Ga. App. 396 (2), 400 (136 S. E. 393).

The petition set forth a cause of action and was not subject to-any of the demurrers, either general or special, interposed thereto.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    18086.
    HARRISON v. CENTRAL OF GEORGIA RAILWAY COMPANY.
    Decided February 27, 1929.

      B. F. Neal, for plaintiff.

      Felton & Felton, H. A. Wilkinson, for defendants.
   Stephens, J.

Except where the size, length, weight, and character of railroad-trains when in operation, and the speed at which the trains are operated, are prohibited by law, or where, under the circumstances of a particular.case, the operation of a railroad-train is in fact negligence, the railroad company may lawfully and without being guilty of negligence operate trains of any size, length, weight, and character, and at the highest rate of speed attainable. The vibrations caused from and communicated by large, long, and ponderous trains, moving along a railroad-track at the fastest rate of speed, are necessary and legitimate incidents of the operation of these trains, and where their operation is not prohibited by law, and where, under the circumstances of the particular case, the railroad company owes no duty to any one to operate the trains in such a manner as to curtail the vibrations, it is not chargeable with negligence because of the vibrations, and is therefore not guilty of negligence in fact in failing to curtail them. Georgia Railroad & Banking Co. v. Maddox, 116 Ga. 64 (4) (42 S. E. 315); Central Georgia Power Co. v. Ham, 139 Ga. 569, 573 (77 S. E. 396); Galveston &c. Railway Co., v. DeGroff, 102 Tex. 433 (118 S. W. 134, 21 L. R. A. (N. S.) 749); Roman Catholic Church v. Pennsylvania Railroad, 125 C. C. A. 629 (207 Fed. 897, L. R. A. 1915E, 623); 6 A. L. R. 723 (note).

Since an owner of property must use and enjoy it with due regard and consideration for the rights of others, a person owning a building situated near a railroad-track is not, in the use and the maintenance of the building, entitled to curtail the right of the railroad company to the lawful use of its own property in the operation of large, long, and ponderous trains at the highest attainable speed and with such necessary resulting vibrations therefrom as accompanies their lawful use when moving. The railroad company therefore owes no duty to a near by property owner to curtail the lawful use of its trains and reduce the vibrations arising from their lawful operation so as to prevent damage caused by such vibrations to a building and other property near the track of the railroad company over which the trains are operated.

The negligence arising as a matter of law from an act done in violation of a statute is negligence only as respects persons within the purview of the statute and whom the statute is designed to protect. The act of 1918 (G-a. L. 1918, p. 212), which supersedes §§ 2675-2677 of the Civil Code, relied on by counsel, in so far as it limits the speed of trains, applies only when they are approaching crossings, and is designed to protect people from injury to person and property only when using the crossings. The protection of the owner of a house, located near the railroad-track and at the crossing, from damage to the house and property in it, resulting from vibrations arising from the operation of the trains when approaching a crossing, is not within the purview of this statute, and the operation of a train when approaching a crossing at a speed prohibited by the statute is not negligence as respects the owner of the house in his right to protection from damage to his house and other .property from the negligent or unlawful acts of another.

An ordinance of a city which generally regulates the speed of railroad-trains within the limits of the city, and which does so without restriction as to particular situations or localities, is 'designed to protect people not only from physical injuries to themselves and property resulting from actual physical contact with railroad-trains operated through the city, but is designed to protect people from all injuries whatsoever resulting from an act of the railroad company in operating its trains in violation of this ordinance. The owner of a house situated in the city near the tracks of the railroad company is within the protection of this ordinance as respects any damage to his house and the property in it proximately resulting from the vibrations of passing trains which are being operated at 'a rate of speed prohibited by this ordinance. Where the house is damaged by being shaken and loosened and caused to be rendered insecure and to fall to pieces, and perso’nal property in the house is damaged as the proximate result of vibrations caused by the trains running past the house at a rate of speed of forty miles per hour and more, which is in violation of an ordinance of the city prohibiting the operation, in the city of trains at a speed exceeding five miles per hour, the owner of the house has a right of action against the railroad company for the damage thus sustained.

Where a house adjacent to a railroad-track is not so firmly and securely constructed as to withstand damage from vibrations from passing trains operated at a legally permitted speed, damage to the house caused by the vibrations of passing trains which are operated at a speed prohibited by law is not proximately ' caused by the ' operation of the trains at such prohibited speed.

In a petition in a suit against a railroad company to recover for damages alleged to have been sustained by the plaintiff arising from the falling to pieces óf his house situated near the railroad-track, and within about seventy feet of the track, caused from the vibrations from passing trains of the defendant while being operated at a rate of speed prohibited by an ordinance of the city in which the house is located, an allegation that the vibrations caused by the operation of the trains at a speed of forty miles and more per hour, and therefore in excess of the speed permitted by the ordinance, necessarily implies that the house was so constructed as not to be affected by the vibrations caused by the operation of the trains within the limitations of the speed permitted by the ordinance. A ruling that an allegation in the petition that the house was damaged by vibrations caused by the operation of the trains at a speed in excess of that permitted by the ordinance necessarily implies that the house was so constructed as not to be affected by the vibrations caused by the operation of trains within the limitations of the speed permitted by the ordinance is not in conflict with the ruling by the Supreme Court, in response to a certified question in this case propounded to it by this court, where that court held that it would be necessary to answer a question of fact as to whether the house was so constructed as to be able to withstand and not be damaged from the trains when run at the lawful speed permitted by the ordinance, in answering a certified question as to whether there was a cause of action against the railroad company in favor of the owner of the house for damage to the house sustained as a proximate result of the operation of the defendant’s trains at a rate of speed in excess of that permitted by the ordinance. See 167 Ga. 677 (146 S. E. 317).

There being no demurrer to the petition upon the ground that it fails to allege that the building damaged by the vibrations of passing trains was so constructed as to resist being damaged by the vibrations of passing trains when operated at a speed permitted by the ordinance, and since an allegation to the effect that the damage to the house from vibrations of passing trains was proximately caused by the operation of the trains at a speed of forty miles or more per hour, which is in excess of five miles per hour permitted by the ordinance, necessarily implies that the house was constructed so as not to be affected by vibrations caused from the operation of the trains at a speed permitted by the ordinance, the petition as amended is not subject to either general or special demurrer because of failure to allege in effect that the house was so constructed as not to be affected by vibration caused from the operation of the trains at a speed permitted by the ordinance.

It is conceivable that the owner of a house situated near a railroad track in a city may, in constructing the house, reasonably anticipate that the railroad company will operate its trains through the city at a rate of speed in excess of five miles an hour, although in violation of an ordinance of .the city prohibiting the operation of trains through the city at a speed greater than five miles an hour, and that, in failing to construct his house so that damage as a consequence of the railroad’s negligence in operating its trains by the house in violation of the ordinance will be avoided, he would be guilty of negligence that as a matter of law, would bar a recovery from the railroad company for damage to the house caused by vibrations of passing trains operated at a rate of speed in excess of five miles per hour in violation of the ordinance. It, however, can not be held as a matter of law that the owner of the house, when constructing it, could reasonably have anticipated that the railroad company would afterwards operate through the city at a rate of speed of forty miles per hour or more, in violation of the ordinance, long and ponderous trains' of the character referred to and alleged in the petition, and that the failure of the owner of the house to construct it so as to withstand damage from the vibrations of trains of the character described, when running through the city and past the house at a rate of speed of forty miles per hour, or more, in violation of the ordinance, was negligence as a matter of law and bars a recovery by him against the railroad company for damage sustained from the vibrations of trains when operated through the city past his house at a rate of speed of forty miles per hour and more in violation of the ordinance of the city.

In a suit by the owner of the house against the railroad company, to recover damages to the house and the personal property in it, where it is alleged in the petition that the house was located in a city and within about seventy feet from the railroad-tracks, and that the house and personal property in it were damaged in a described manner and in a certain amount by the vibrations from the continuous operation by the house of trains of the character described at a speed of forty miles per hour and more, in violation of a valid ordinance of the city, the petition as amended sets out a cause of action, and is good as against a general demurrer.

The ground of demurrer that the allegation in the petition as amended “which referred to the ordinance of the city, set forth no reason why the plaintiff should recover,” and that “said allegation is bad further in that the same is an effort to regulate, interfere with, and affect interstate commerce, and is therefore illegal,” can not be taken as a demurrer attacking the validity of the alleged ordinance prohibiting the operation of trains throughout the city at a speed in excess of five miles per hour, as being unreasonable.

It not appearing from the petition that the trains operated by the defendant railroad company through the city were engaged in interstate commerce, there was no basis in fact for that ground of the demurrer which attacks the ordinance as illegal in that it regulates, interferes with, and affects interstate commerce.

The petition as amended, in alleging that the trains of the defendant which were operated past the plaintiff’s house were trains of the defendant denominated as “The Flamingo,” “Southland,” “Dixie Limited,” and “Dixie Flyer,” and .indefinitely other fast and through trains, is sufficiently specific as pointing out what trains of the defendant were operated past the plaintiff's house, and in alleging that, “beginning about 1923 and continuing until during the year 1926,” these trains were operated past the plaintiff's house at a speed prohibited by the ordinance of the city and at forty miles an hour sufficiently alleges when and at what speed the trains were so operated. The petition also sufficiently alleges the manner in which the house was damaged as a result of the vibrations of the passing trains. The petition was otherwise good against the special demurrers. The court erred in sustaining the demurrers and in dismissing the petition.

Certain questions in this case were by this court certified to the Supreme Court on March 3, 1928, and that court, after refusing to answer the certified questions, returned the case to this court on January 29, 1929. See Harrison v. Central of Georgia Ry. Co., supra.

Judgment reversed.

Jenkins, P. J., and Bell., J., concur.