author: Bell, J.

text:
    16111.
    Davis, agent, etc., v. Jones.
   Bell, J.

1. With respect to the care and control of passengers on a railroad passenger-train, the conductor of the train, within the real or apparent scope of his authority, is the alter ego of the carrier. Williamson v. Central of Ga. Ry. Co., 127 Ga. 125 (1) (56 S. E. 119); Savannah Electric Co. v. Wheeler, 128 Ga. 550 (2) (58 S. E. 38, 10 L. R. A. (N. S.) 1176) ; Duggan v. Baltimore & Ohio R. Co., 159 Pa. 248 (39 Am. St. Rep. 672, 28 Atl. 186). It can not be held, as a matter of law, that such conductor would be acting without apparent authority in permitting a passenger to ride temporarily and for a reasonable purpose in a baggage-ear immediately ahead of the passenger coach in which the passenger was originally riding. The rule would seem to be otherwise, however, where the matter was palpably without the conductor’s authority, as in allowing passengers to ride on some part of the train where, because of increased danger or other circumstance, it could not be reasonably expected that the carrier would permit them to ride. Morris v. Georgia R. &c. Co., 131 Ga. 475 (62 S. E. 579).

2. A person, after becoming a passenger upon a railway passenger-train, does not cease to be a passenger and become a trespasser or a licensee on leaving the passenger-coach and going into the baggage ear upon a matter personal to himself, such as the purchase of something desired by him from a news-vendor, where the conductor is consenting thereto and there is nothing to show that the conductor is exceeding his authority. The carrier still owes him the duty of extraordinary diligence for his safety. Gardner v. Waycross R. Co., 94 Ga. 538 (19 S. E. 757) ; s. c. 97 Ga. 482 (25 S. E. 334, 54 Am. St. Rep. 435) ; Auld v. Southern Ry. Co., 136 Ga. 266 (1) (71 S. E. 426, 37 L. R. A. (N. S.) 518) ; Salmon v. City Electric Co., 124 Ga. 1056 (53 S. E. 575) ; Savannah Electric Co. v. Fosterling, 16 Ga. App. 196 (2) (84 S. E. 976) ; Bailey v. Georgia Ry. & Power Co., 32 Ga. App. 793 (1) (124 S. E. 907).

3. Whether in such a case the act of the passenger in going into the baggage-car amounted to such negligence as would bar a recovery for injuries received by him therein would ordinarily be a jury question. While the fact that the passenger went into the baggage-ear with the knowledge and consent of the conductor would not have justified the passenger in encountering an obvious danger, the same might be considered with the other facts and circumstances in determining whether or not the passenger was negligent, and also the degree of negligence, where the danger incident to his presence in the baggage-car was not obviously so great that a person of ordinary prudence would not voluntarily have exposed himself thereto. Southern Ry. Co. v. Whitehead, 31 Ga. App. 398 (120 S. E. 700).

4. Where it is made to appear that, while the passenger was in the baggage-car, under the circumstances stated above, the train was derailed and the passenger was injured by being precipitated to the floor and by being struck by objects in the baggage-car which fell upon him while he was in such position, it can noj; be said as a matter of law, from these facts alone, that his going into the baggage-car constituted such negligence as to prevent a recovery for the injuries so received. Southern Ry. Co. v. Strickland, 130 Ga. 779 (61 S. E. 826) ; Atlanta Ry. Co. v. Smith, 121 Ga. 29 (1) (48 S. E. 681) ; Myrick v. Maeon Ry. & Light Co., 6 Ga. App. 38 (1) (64 S. E. 296). And this conclusion is ' not altered by the fact that none of the passengers who remained in their accustomed places in the passenger-coaches were injured (Atlantic Coast Line R. Co. v. Odum, 5 Ga. App. 780 (3)), nor by the fact that a notice was posted in the baggage-car, giving warning that passengers were not allowed therein; especially where it is shown that the passenger did not see the notice, and it does not appear from the circumstances of its size and place in the oar that he was bound to see it. Central of Ga. Ry. Co. v. Mobley, 6 Ga. App. 33 (4) (64 S. E. 300); Macon & Western R. Co. v. Johnson, 38 Ga. 409 (8).

5. Where an action was brought by a passenger against a railroad company to recover damages for injuries received under circumstances such as are indicated above, the plaintiff alleging that he was in the ; ,baggage-car with the knowledge and consent of • the conductor, and that the train was derailed because of the negligent condition of the railroad-track and equipment and the excessive rate of speed at which the train was running at the time, a further allegation that the plaintiff’s injuries were due also to the negligence of the defendant in having certain objects in the baggage-car so insecurely placed that they were caused to be thrown upon the plaintiff as the train was derailed, was not subject to demurrer on the ground that it failed to show negligence. Gillespie v. Andrews, 27 Ga. App. 509 (1) (108 S. E. 906) ; Southern Ry. Co. v. Webb, 116 Ga. 152 (1) (42 S. E. 395, 59 L. R. A 109). There was evidence to support the allegation.

6. Whether it could have been found that the plaintiff, after becoming a passenger, became a trespasser or a licensee when he left the passenger-coach and went into the baggage-car to deal with the news-vendor as indicated, if in doing so, as shown by the evidence for the defendant, he was acting without the knowledge or consent of the conductor, or whether in that ease he would have continued to be a passenger, “entitled to look only for such security as that mode of conveyance was reasonably expected to afford” (Higgins v. Cherokee Railroad, 73 Ga. 149 (9)), but still having the right to hold the carrier liable for injuries proximately caused by negligence on its part with respect to other matters, such as its track and equipment (in addition to authorities cited in paragraphs one and two above, see the following: Georgia Ry. & Power Co. v. Simms, 33 Ga. App. 535, 126 S. E. 850 (2); 4 R. C. L. § 482, 1019; Michie on Carriers, § 2166, pp. 1555-7; Radley v. Columbia Southern Ry. Co., 44 Oregon, 332, 75 Pac. 212, 1 Ann. Cas. 447; Mittleman v. Philadelphia Rapid Transit Co., 221 Pa. 485, 18 L. R. A. (N. S.) 503, 70 Atl. 828; Missouri K. & T. Ry. Co. v. Williams, 40 S. W. 350; Washburn v. Nashville & C. R. Co. (Tenn.), 3 Head, 638, 75 Am. Dec. 784; O’Donnell v. Allegheny Valley R. Co., 59 Pa. 239, 98 Am. Dec. 336), it* seems to be the rule that where a passenger goes into or upon some part of the train where it is known, or, considering the increased hazard or other circumstances, it is obvious, that the carrier would not consent to continue responsible or liable for him as a passenger, he may be held to have abandoned the contract of carriage and thus to have voluntarily severed his relation as passenger. But it need not be determined in the instant case whether the facts and circumstances made an issue for the jury as to the termination of such relation; because, assuming that such issue was involved and that the court erred in failing to submit it, the error was harmless. Although the defense that the plaintiff was a trespasser or a licensee is of a different species and character from the defense that his injury was the result of his own negligence or want of ordinary care, the latter defense having been duly submitted and the jury having found in the plaintiff’s favor upon that issue, and it being undisputed that the plaintiff began as a passenger, and. there being no question as to the relation except whether his conduct as referred to was such as to terminate it, it is manifest, under the record, that the jury would not have found that he was a trespasser or a licensee, since to have done so, under the facts appearing, they would have been compelled to find that the plaintiff was wanting in ordinary care, and thus to have concluded against him certainly as much as, if not more than, would have been necessary to sustain the other defense.- The above rulings are believed not to be in conflict with anything decided in any of the following eases: Morris v. Georgia R. & B. Co., 131 Ga. 475 (62 S. E. 579) ; Smith v. Western & Atl. R. Co., 134 Ga. 216 (67 S. E. 818); Jackson v. Western & Atl. R. Co., 146 Ga. 151 (90 S. E. 963) ; Haley v. Emerson Lumber Co., 12 Ga. App. 250 (77 S. E. 100) ; Dixon v. Central of Ga. R. Co., 14 Ga. App. 216 (80 S. E. 512) ; Ocilla S. R. Co. v. Faircloth, 27 Ga. App. 728 (110 S. E. 46).

7. The assignments referred to in this paragraph were made on the assumption that the plaintiff was a passenger, and were in no way related to the contention that he was, or could have been found to liave been, a trespasser or a licensee. Where the court, after instructing the jury as to the presumption of negligence which arose against the company upon proof of the injury, further instructed them that such presumption was a rebuttable one and might be overcome by the evidence of the plaintiff or that introduced by the defendant, and also that if the plaintiff was negligent in going into the baggage-car, and if such negligence was the proximate cause .of his injury, or if it equalled or exceeded the negligence of the defendant, the plaintiff could not recover, the failure of the court, without request, to inform the jury in what way or by what proof, or by what weight of evidence, this presumption might be rebutted, or to instruct .the jury formally or specifically as to what defenses the defendant might assert to overcome it, was not error. Central of Ga. Ry. Co. v. Bagley, 121 Ga. 781 (5) (49 S. E. 780). Assuming that the plaintiff was a passenger, the instructions just referred to did not limit the defendant to any defense or defenses to the exclusion of any other or others which it was entitled to have submitted. See Central of Ga. Ry. Co. v. McKey, 13 Ga. App. 477 (7) (79 S. E. 378) ; Central &c. Ry. Co. v. Brinson, 64 Ga. 475 (3).

8. The evidence authorizing the inferences that the plaintiff at the time of his injury was thirty-eight years of age and in good health, and was earning annually approximately $2,000; that he was almost entirely disabled for nearly two years, and that his earning capacity will always be considerably impaired, and that he had suffered pain constantly from the time of the injury until the trial, some three and a half years thereafter, and that his pain and suffering will probably be permanent, and it being the law that the jury were authorized, if they saw fit, to add interest to whatever damages they should have found that the plaintiff had suffered, embracing the whole in one amount (Central Railroad v. Sears, 66 Ga. 499; Western & Atlantic R. Co. v. McCauley, 68 Ga. 818; Gress Lumber Co. v. Cody, 104 Ga. 611, 30 S. E. 810), it can not be held as a matter of law that a verdict for $10,000 was for a sum so great as to show bias, prejudice, or mistake on the part of the jury, nor, therefore, that the verdict was excessive. Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (4) (124 S. E. 92), and citations.

9. After counsel for the defendant railway company had been heard in support of its motion for a new trial, the trial judge announced that “the only thing troubling or bothering him about the case was the amount of the jury’s verdict.” Counsel for the plaintiff then arose and requested the court to hold the motion in abeyance for a few days, in order that he might have opportunity to communicate with his client and obtain consent and authority to reduce the verdict by writing off 50 per cent, thereof. This request being granted, and the consent of the plaintiff being obtained, the plaintiff’s counsel, a few days thereafter, filed in court a document signed by the plaintiff, writing off $5,000, with an application that an order be passed directing that the same be filed and made a part of the record. The application was granted. Following this an order was passed overruling the motion for a new trial. A special assignment of error in the bill of exceptions alleges that it is apparent from these circumstances that the verdict as rendered did not meet the court’s approval, and that the refusal of a new trial was influenced by the action of the plaintiff in writing off and reducing the amount of the verdict, and that for these additional and special reasons the refusal of a new trial by the court was erroneous. Held: In the order itself by which the new trial was refused there is nothing to indicate that the judge was dissatisfied with the verdict, or that he failed to exercise the discretion required of him by law in approving or disapproving the verdict as rendered. Savannah &c. Ry. Co. v. Steinhauser, 121 Ga. 104 (2) (48 S. E. 698). Where an order overruling a motion for a new trial contains nothing to indicate that the judge was dissatisfied with the verdict, or that he failed to exercise the discretion enjoined upon him by law, a reviewing court, in determining whether the judge exercised such discretion, wiil not consider oral remarks made by him pending the disposition of the motion. Frank v. State, 141 Ga. 243 (19) (80 S. E. 1016). Furthermore, the fact that at the conclusion of the opening argument of counsel for the movant the judge’s mind was unsettled as to whether the verdict as originally rendered was excessive does not establish that he had not resolved the issue in favor of the verdict at the time he ultimately overruled the motion for a new trial, or that his judgment would not have been the same if the plaintiff had not written off a portion of the amount recovered. It not being shown by the judgment overruling the motion, or the other circumstances recited above, that the writing off of a part of the verdict was done at the suggestion of the presiding judge, or that his refusal of a new trial was influenced by the reduction of the verdict, the presumption is that he exercised the discretion vested in him by law, and that in overruling the motion for a new trial he approved the verdict as originally rendered; and this court will not reverse the refusal of a new trial because of the facts and transactions just referred to. Atlanta Gas Light Co. v. Sams, 29 Ga. App. 446 (4) (116 S. E. 21) ; Southern Railway Co. v. Harper, 32 Ga. App. 267 (6) (123 S. E. 154) ; Savannah &c. Ry. Co. v. Godkin, 104 Ga. 655 (4) (30 S. E. 378, 69 Am. St. Rep. 187). This ease is distinguishable from those wherein it appeared from the judgment that the refusal of the new trial was induced by or conditional upon the plaintiff’s writing off a part of the verdict. Central of Ga. Ry. Co. v. Perkerson, 112 Ga. 923 (4) (38 S. E. 365, 53 L. R. A. 210) ; Seaboard Air-Line Ry. Co. v. Randolph, 129 Ga. 796 (59 S. E. 1110) ; Lee v. Bagwell, 14 Ga. App. 699 (82 S. E. 49).

10. Applying the above rulings, the demurrers to the petition were properly overruled, the evidence authorized the verdict, the amount of which was not as a matter of law excessive, there was no reversible error in any of the excerpts from the charge of the court or in any of the omissions to charge complained of, and the court did not err in overruling the motion for a new trial. t

Decided April 17, 1925.

Rehearing denied September 16, 1925.

Action for damages; from Cobb superior court—Judge Blair. November 7, 1924.

Application for certiorari was made to the Supreme Court.

Tye, Peeples & Tye, Morris, Hawkins & Wallace, for plaintiff in error.

Hoke Smith, Ronald Ransom, Branch & Howard, John T. Dorsey, contra.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., comeur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    15302.
    Sitton v. Turner.
   Luke, J.

1. The judgment of the court below in this case was affirmed by the Court of Appeals on June 10, 1924 (32 Ga. App. 401, 123 S. E. 750). Certiorari was granted, and the Supreme Court held: (a) “The general lien given by section 3348 of the Civil Code (1910) to the landlord who furnishes to his tenant supplies necessary to make a particular crop is the equivalent, as to goods of the tenant upon which the aforesaid lien is foreclosed in accordance with the provisions of section 4356 of the Code of 1910, to the common-law distress. The lien does not ripen until its foreclosure, but it exists from the time the necessary supplies are furnished and supplied by the landlord; and the lien of the landlord thus foreclosed is not one obtained through legal process, within the meaning of the anti-preference provisions of the bankruptcy law as embodied in section 67f of the act of 1898 (1 Red. Stat. Ann. 1130). Moseman v. Comer, 160 Ga. 106. (5) The bankruptcy act of 1898 differs from the provisions of the bankruptcy act of 1867, in the preservation of statutory liens such as that involved in this case; and for that reason the ruling of this court in Rountree V. Rutherford, 65 Ga. 434, based upon the provisions of the act of 1867, has no bearing upon the provisions of the bankruptcy act of 1898. 'The general provisions of the bankruptcy act of 1898 indicate a purpose and intent, as against general creditors, to preserve rights such as those given by the Georgia statute to landlords, even though not enforced until within four months of the bankruptcy. Henderson v. Mayer, 225 U. S. 631, 632." 160 Ga. 215 (127 S. E. 847).

2. In accordance with the foregoing ruling, the judgment of the Court of Appeals, reversing the judgment of the trial court (32 Ga. App. 401), is vacated, and this court now holds that the lien of the landlord was enforceable, and that the property of the tenant, although he had been adjudicated a bankrupt, was not discharged from liability thereunder.

Decided May 14, 1925.

. Lien foreclosure; from city court of Floyd county—Judge Bale. December 29, 1923.

M. B. Eubanks, for plaintiff in error. Harris & Harris, contra.

Judgment affirmed.

Broyles, G. J., and Bloodtoorth, J., ooncur.


text:
    15753.
    Georgia Southern & Florida Railway Company v. Tifton Produce Company.
    Decided May 14, 1925.
    Rehearing denied June 9, 1925.
    Action for damages; from Tift superior court—Judge Eve. June 21, 1924.
   Luke, J.

The Tifton Produce Company brought suit in the superior court against the Georgia Southern & Florida Railway Company. A general demurrer was filed by the railway company to the petition as amended. The trial court overruled the demurrer, and the defendant excepted. The Supreme Court, in answer to certain questions certified by the Court of Appeals, held in substance as follows:

(а) Where an interstate shipment of goods is transported on a through bill of lading issued by the initial carrier, and where loss is sustained by the shipper on account of the negligence of the last connecting carrier in failing to notify the purchaser of the arrival of the goods at the place of destination, and in failing to notify the shipper of their arrival and of their nondelivery to the purchaser, the' initial carrier is liable for this negligence of its connecting carrier. Fleshnar v. Southern Ry. Co., decided April 14, 1925. 160 Ga. 205 (127 S. E. 768).

(б) The consignor’s order in the present case, instructing the last carrier to deliver in Philadelphia the shipment to the purchaser, was mere authority to deliver the goods to the purchaser when he should become the lawful holder of the bill of lading, and did not amount to an “alteration” or an “addition” in the bill of lading which that instrument required to be endorsed on the bill of lading and signed by the initial carrier. Under the Federal statute regulating interstate carriers, as amended by the Carmack and Cummins amendments (4 Fed. Stat. Ann. 506), the “lawful holder” of the bill of lading would be entitled to demand the goods from the last carrier upon payment of all proper charges, on presentation of the bill of lading, without any express direction from the consignor to make delivery to such holder of the • bill of lading. (See decision of Supreme Court, rendered April 14, 1925, 160 Ga. 205, 127 S. E. 771.)

In accordance with the above-stated rulings of the Supreme Court, this court holds that the judge of the superior court did not err in overruling the general demurrer to the petition as amended.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.

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

J. E. Hall, C. J. Bloch, B. D. Smith, for plaintiff in error.

Fulwood & Hargrett, J. S. Ridgdill, contra.


author: Bloodworth, J.

text:
    15787, 15788.
    HERCULES POWDER COMPANY v. IWAI & COMPANY LIMITED; and vice versa.

    1. The court did not err in sustaining the special demurrers to the petition.
    2. The court properly sustained the general demurrer as to the portion of the petition based upon contracts No. 1319 and No. 1345, and erred in overruling the general demurrer as to the portion based upon contracts No. 1346 and No. 1347.
    Decided May 14, 1925.
    Rehearing denied June 15, 1925.
    Action for breach of contract; from Glynn superior court-judge Highsmith. May 22, 1924.

    Certiorari was granted by the Supreme Court.

      Bennet, Twitty & Beese, for Hercules Powder Company.

      Adams & Adams, Conyers & Wilcox, contra.
   Bloodworth, J.

“Iwai & Company Ltd.” (hereinafter referred to as “Iwai”), a Japan corporation, filed suit against Yaryan Rosin & Turpentine Company (hereinafter ■ referred to as “Yaryan”), seeking recovery of $25,940 as damages arising out of the alleged breach of four contracts between the parties, all covering the purchase of rosin by Iwai from Yaryan.

At the time the contracts were made Yaryan was in bankruptcy, and was operated by receivers in bankruptcy, who made the contracts, and who cancelled them. Subsequently Yaryan paid its debts in full and the court restored its properties to its possession and control. Before this was done a stipulation was entered into in the bankruptcy cause, whereby Yaryan assumed whatever liability existed from the receivers to Iwai. The suit under review was filed against Yaryan after the termination of the bankruptcy proceedings, and the stipulation referred to was set out in plaintiff’s petition.

After the suit was filed the Hercules Powder Company became the owner of the entire outstanding capital stock of Yaryan. Yaryan later conveyed all its properties and assets to Hercules, the latter assuming and agreeing to pay off all just and valid claims and demands against Yaryan. Yaryan then, by- an application to the superior court of Glynn county, sought to surrender its charter and be dissolved as a corporation. Before this application was acted upon a stipulation was entered into in the case under review, which was made the judgment of the court, by the terms of which the Hercules Powder Company was made defendant in the place of Yaryan. So the cause is now proceeding in the name of Hercules Powder Company as defendant, but for convenience the defendant will be hereinafter refered to as Yaryan.

. The four contracts declared upon are in writing. Iwai had an agency in New York City and Yaryan was in Brunswick, Georgia. These contracts were numbered 1319, 1345, 1346, and 1347, all were signed “Iwai and Company Ltd.,” and each bore an undated acceptance signed “Yaryan Bosin and Turpentine Company,” all were dated at New York,—first, May 7, 1919, and the others'May S3, 1919. In form and substance these contracts were practically the same except in the statements following the headings “Shipment,” “Price,” “Terms,” and “Freight booking.”

Following the heading “Shipment,” contracts No. 1319 and No. 1347 each had “May-June steamer from New Orleans,” while contract No. 1345 had only the words “May-June,” and No. 1346 had “June steamer from New Orleans.” After the heading “Price” each contract fixed the price at so much per pound “gross for net, FAS steamer New Orleans.” After the heading “Terms,” in the first contract, came the words: “As usual. We have letter of credit for $11,000 so as to include ocean freight—above the approximate figure—and payment cash against ocean bill of lad.,” and the three others each had: “Net cash against dock receipts and invoices. We have opened credit with Hong Kong and Shanghai Banking Corporation,” and under the heading “Freight booking” the first contract said: .“To be advised you in a day or two;” and the others, “To be advised you separately.”

There was also, in connection with each contract, a letter of. credit. The two that supported contracts 1319 and 1345 expired June 30, 1919, and those supporting contracts 1346 and 1347 expired July 31, 1919. In the foregoing we have endeavored to make a statement of the contracts sufficiently full for the court to construe them as written. Attached to the petition as exhibits are a number of letters, but we think that the references to them in our opinion will be sufficient without setting them out here.

To the petition the defendant filed demurrers, both general and special. All the special demurrers were sustained. The general demurrers were sustained as to that portion of the petition based upon contracts No. 1319 and No. 1345, and overruled as to the portion of the petition based upon contracts No. 1346 and No. 1347. Each party excepted to the ruling against it.

The first headnote needs no elaboration.

As this court sees this case it presents for consideration two main propositions: (1) What is the proper construction of the four contracts on which suit was brought? (2) Were these contracts modified by the correspondence attached to the petition as exhibits?

As to the first of these, let us see what were the obligations of the parties under the contracts, in so far as questions relative thereto are raised in the case. Iwai5s obligations were to secure letters of credit, provide the steamers to transport the rosin, pay for the rosin at so much “gross for net, FAS steamer New Orleans, and furnish ‘freight bookings.5 55 Under the contract, when should the steamer be provided? Under none of the contracts was there any provision for “shipment55 later than “June steamer from New Orleans.55 What does “June steamer from New Orleans55 mean? That by these words Yaryan understood that delivery should be made in June is shown by the correspondence with the' plaintiff, and especially by the following letters: On May 28 Yaryan wrote Iwai in reference to contract No. 1319 in part as follows: “This contract calls for May-June shipment and the letter of credit of your bank expires June 30, 1919. Furthermore, we have purchased a portion of this rosin from another party and specified Majr-June shipment, and he will require us to take delivery by June 30.55 On June 5, in reply to advice from Iwai that the “above rosin will be lifted last half of July,55 Yaryan wrote: “We can not carry rosin later than June.55 That Iwai understood that delivery was to be made in June is shown also by the correspondence, and especially by its letter of June 6, in which it wrote: “As it takes more than a week for a car' to travel from your factory to the port, and over a week for the loading, we believe that shipping instructions should be furnished 'you between 1st of June and 'the 15th.55 Also by its letter of July 8, stating that a certain steamer probably would arrive about July 20, and adding: “If you can oblige us by waiting until this steamer, will appreciate your courtesy;” and “All this trouble is due to steamship [company ?] failing to bring ship to New Orleans, over which we have no control, and we sincerely hope that you will not hold us on this point.” It will be noted that in this letter there is not the slightest suggestion that Yaryan had cancelled the contracts when it had no right to do so. In so far as contracts 1319 and 1315 are concerned,' it is apparent that both Iwai and Yaryan understood that they would expire with June, as the supporting letters of credit each expired June 30. While these letters of credit would have been good at any time during their life, had their expiration date been months after the expiration of the contracts, and their expiration would not fix the date of the expiration of the contracts, they were no longer of any avail after their expiration; and this fact seems conclusive that when they were signed, both parties understood that the two contracts supported by them would end with the expiration of the letters of credit. As an abstract proposition, letters of credit supporting contracts would be available if they matured after the contracts, but could not be used after their expiration, even though it be during the life of the contracts. Under the other facts of the case, the fact that two of the letters of credit expired July 31 was immaterial. From the foregoing it appears that the contract provided that Iwai was to provide a steamer from New Orleans during June; and, as he did not do that, he failed in this part of his obligation.

Did Iwai furnish “freight bookings” as contemplated in the contract? Under the marginal heading “Freight booking” there was a promise to Yaryan, in the first contract, that it would be advised “in a day or two,” and in the other contracts that it would be advised “separately.” These promises have never been complied with. In its letter of June 6, Iwai; after saying, “We believe shipping instructions should be furnished you some time between the 1st of June and the 15th,” continued: “We took this matter up with Caldwell & Company, New York shipping agents of 0. S. K., and they assured us that they would communicate direct with J. H. W. Steele Company and ask them to issue accurate information as to shipment tojbe made against our above contracts.” Caldwell & Company wrote to Yaryan on June 6 regarding shipment of rosin under contracts 1345, 1346, and 1347, in part as follows: “We wish to advise that we have requested the J. H. W. Steele Company, of New Orleans, to advise you when to forward this material to New Orleans, as sailing of steamer is still indefinite. When you receive this advice please forward this material,” etc. (Italics ours.) The J. H. W. Steele Company did not write to Yaryan until July 7, after the contracts had been cancelled. Yaryan had on June 5 positively told Iwai that it could not carry the rosin longer than June, and made Iwai two propositions, neither of which was accepted, but Iwai contented itself with the suggestion that it had taken the matter up with Caldwell & Company and they had assured it that they would communicate with J. H. W. Steele Company, and “ask them to issue accurate information as to shipment to be made against our above contracts.” During the life of the contracts this “accurate information” was never furnished Yaryan. “Freight booking” is “making specific arrangements for the transportation of goods by a particular vessel in advance of its sailing day.” Ocean Steamship Co. v. Savannah Locomotive Works, 131 Ga. 831 (5) (63 S. E. 577, 20 L. R. A. (N. S.) 265, 15 Ann. Cas. 1044). From the foregoing it appears that Iwai breached its contract, not only by failing to provide a vessel for the transportation of the rosin, but also by failing to furnish “freight bookings.” In the correspondence attached to the petition as exhibits there is nothing that would change or modify the contract. Moreover, each contract provides that “No additions or amendments to this contract shall be binding until the same be endorsed in writing upon the back hereof and signed by the parties.” There was no such endorsement upon either of the contracts.

Under our view of the contract the court properly sustained the general demurrer attacking that portion of the petition based upon contracts No. 1319 and No. 1345, and erred in overruling the general demurrer attacking that portion of the petition based upon contracts No. 1346 and No. 1347.

Judgment on main hill of exceptions reversed; on cross-hill affirmed.

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


text:
    16084, 16085.
    HOME INSURANCE COMPANY v. SWANN; and vice versa.

    1. In a suit by a fire insurance company on a premium note payable to it, a plea of nudum pactum, alleging in substance that while the defendant applied to the plaintiff for a policy of insurance, accompanying his application with the note sued on to cover the premium, yet no policy of insurance was ever delivered or tendered to him by or for the plaintiff, and that the note was therefore without any consideration to support it, is good as against a general demurrer.
    (a) A demurrer attacking a plea only “as being insufficient in law” is a general demurrer, and brings into question only the substance of the plea.
    (ñ) An allegation that there has been no delivery of a thing is equivalent to an allegation that there has been no legal delivery of it, either actual or constructive.
    2. An application by a property owner to a fire-insurance company for a policy of insurance must be accepted within a reasonable time, or else it may be treated by the applicant as having been rejected.

      (a) While the period constituting such a reasonable time may, as a general rule, be a matter for determination by the jury under all the evidence, yet where, as in this case, the company appears to have remained silent for approximately six months after receipt of the application, the presumption that it was rejected becomes conclusive. '
    3. Where a policy of insurance is delivered and a premium note taken, payable in installments, and stipulating that “in case any one of the installments herein named shall not be paid at maturity, . . this policy shall lapse until payment is made,” letters from the company to the insured, calling his attention to a past-due installment and advising him that the policy stands suspended during the period of delinquency, and that it can be reinstated only through the payment of the overdue installment, will be construed as the company’s interpretation of the legal effect of the stipulation in the note, and not as a declaration of an intention on its part to declare the contract of insurance rescinded.

      (a) That part of the plea which sets up no defense other than that the plaintiff had rescinded the contract of insurance by writing such letters should have been stricken on general demurrer.
    Decided May 14, 1924.
    Complaint; from city court of Blakely—Judge Gray. November 19, 1924.

      Lowrey Stone, for plaintiff.

      Glessner & Collins, for defendant.
   Luke, J.

The Home Insurance Company of New York sued

J. W. Swann on a promissory note. Swann admitted a prima facie case in the plaintiff and claimed the right to open and conclude the argument on the several affirmative defenses set up by him. The plaintiff demurred generally to each of the alleged defenses. The demurrer was sustained in part, and in part overruled. Upon the return of a verdict for the defendant, the plaintiff excepted directly, and the defendant sued out a cross-bill of exceptions, both complaining of the ruling on the demurrer. The case is brought here without any motion' for a new trial, under the provisions of the Civil Code, § 6144, the plaintiff assigning error on the verdict as having necessarily been controlled by the prior ruling on the demurrer. The note sued on was as follows: “The company is authorized to insert in this note the number and date of the policy. 373.88. For value received, in policy No. F. I. 514465 B. 484189 dated May 19th, 1933, issued by The Home Insurance Company, New York, I promise to pay to said company, or order (by mail, if requested), at the office of its Western Farm Department, in Chicago, Illinois, with expenses of collection and attorney’s fees, two hundred seventy-three dollars and eighty-eight cents, payable in installments as follows: Sixty-eight dollars and forty-seven cents upon the 1st day of June, 1933; sixty-eight dollars and forty-seven cents upon the 1st day of June, 1934; sixty-eight dollars and forty-seven cents upon the 1st day of June, 1935; and sixty-eight dollars and forty-seven cents upon the 1st day of June, 1936, without interest. And it is hereby agreed that in case any one of the installments herein named shall not be paid at maturity, or if any single-payment promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium for said policy shall not be paid promptly when due, this company shall not be liable for loss during such default, and the policy shall lapse until payment is made to this company at the Western Farm Department at Chicago, and the whole amount of installments or notes remaining unpaid on said policy may be declared earned, due and payable, and may be collected by law. In settlement of any loss under above policy, this company may deduct therefrom the entire amount of unmatured installments of this note. This note is given in payment for said policy of insurance. (Signed) J. W. Swann.” For the .present purposes, the plea is divided into three parts, and as follows:

First.

“On or about the 19th day of May, 1933, J. B. Tarver, of Blakely, Georgia, called at the residence of this defendant, which is located on the Blakely and Qnincy public road, four miles south of that city, represented to defendant that he (Tarver) was the duly authorized agent and representative of the Home Insurance Company of New York and asked defendant to sign an application, addressed to that company, for a policy of insurance covering his dwelling house to the amount of $2,000, his household and kitchen furniture to the amount of $1,000, and his barn to the amount of $500; said dwelling, barn, and furniture being that which was then situate on the aforesaid premises occupied by this defendant as a country residence. Defendant thereupon signed said application at the earnest solicitation of the said Tarver, who also insisted that defendant should then and there sign the promissory note sued on in this case, which defendant did upon the express understanding and agreement with the said Tarver, as the agent of the plaintiff, that said note should be forthwith returned by him to this defendant in the event said company did not accept said application for insurance and issue and deliver to defendant a policy of insurance covering said property in the respective amounts aforesaid. No such policy has at any time since ever been delivered to or tendered to this defendant by anyone. About three weeks later the said Tarver again visited defendant’s premises, accompanied by a man whose name was Cook and whom the said Tarver represented to be an insurance inspector in the service of the plaintiff company, and who came to inspect the property on which defendant had applied for insurance. Defendant never heard anything further with reference to his said application for insurance until late in the fall of 1922, when he received notice from the First National Bank of Blakely that it held said note for collection. He thereupon called on the said Tarver for an explanation as to how matters stood, and was assured by him that the policy had been issued by the company and was then in his (Tarver’s) safe, but he would have fto fix it up’ before delivering it to defendant, and would do so the next morning (or have his young lady clerk attend to the matter), and then mail the policy to' defendant. Nevertheless, this defendant has never at any time since received any such policy, by mail or otherwise, nor has any policy of insurance ever been tendered to him by the said Tarver or by any one else, and this defendant has derived no benefit or protection from the plaintiff company in the way of any insurance o.n his property, or any other thing of value, as a consideration of the note declared on by- the plaintiff. Wherefore this defendant specially pleads a total want of.consideration for said note, in that there was no consideration for his giving it in the first instance, said company in no way binding itself to grant his said application for insurance; and defendant further expressly pleads a total failure of consideration, in that no policy of insurance was ever surrendered to him by said company in consideration of the making of said note payable to its order, as contemplated by himself and its said agent when said note was executed, and because, under the law of this State, all contracts of insurance must be in writing, signed by the parties thereby bound as insurers, and the plaintiff company has never entered into any such contract with this defendant, in consideration of the execution of his note declared, on, given under the circumstances hereinbefore fully' set forth in detail.”

Second.

“Under the law of the land, the plaintiff was bound, within a reasonable time after its aforesaid receipt of defendant’s written application for insurance, to either accept or reject the same, and (if accepted) to deliver or tender to defendant the policy for which he applied, which plaintiff has never done. Such a reasonable time expired, as matter of law, by the first day of January, 1923, since which date this defendant has consistently adhered to an election on his part to treat his aforesaid negotiations with the plaintiff for insurance as at an end; and he has never paid any insurance premium or otherwise recognized any liability to pay the note-sued on.”

Third.

“Furthermore, as early as September 20, 1923, the plaintiff company itself elected to treat the contract evidenced by said note as rescinded. On that date it addressed to defendant a written communication in which it called attention to his failure to pay an installment of $59.01 which it claimed became due, under the terms of said premium note, on June 1, 1923, and in which it gave defendant notice of its said election as follows: ‘ You understand, of course, that during the period of delinquency the policies stand suspended, and that their reinstatement can be effected only through the payment of the overdue installment.’ Again, on October 8, 1923, the plaintiff, in writing, gave notice to defendant of its said election in the following unequivocal language, to wit: 'We have had no reply to our several letters in regard to the installment of your premium.due June 1, 1923, on your policies F. I. 514465 & B. 484189. Your attention was called to the suspended condition of these policies, which leave you ivithout insurance protection, and they must remain so, unless remittance of the required amount, $59.01, is received at this office/ And, defendant avers, the plaintiff is bound by. its said initial election, and has no right at this date to recede therefrom or to treat said premium note as any longer binding on this defendant, or to sue or recover thereon, but is in duty bound, both morally and legally, to forthwith return said note into the custody of this defendant,' for each and all of the reasons hereinbefore assigned, under oath. Wherefore, this defendant prays that he be hence discharged, together with his reasonable costs.”

There was no special demurrer specifically pointing out any of the defects apparent upon the face of the foregoing pleas, but the plaintiff demurred to each plea only “as being insufficient in law.” Such a demurrer brings into question only the substance of the plea. Hicks v. Hamilton, 3 Ga. App. 112, 117 (59 S. E. 331), and citations; De Laigle v. Shuptrine, 21 Ga. App. 697 (94 S. E. 904). The first and second pleas set out above were stricken on general demurrer, but as to the third plea the demurrer was overruled.

Stripped of many words, the first plea alleges, in substance, that the defendant executed the note to' cover the premium on a policy of insurance applied for, and that the note and the application were delivered to the plaintiff together, in order that the plaintiff might accept or reject both, but that the plaintiff retained the note and at the same time failed to issue and deliver the policy of insurance which was to constitute the sole consideration therefor, and which the note itself recites was the sole consideration therefor. If that part of the plea is true (and for the purposes of the general demurrer it must be accepted as true), then the note'sued on is a mere nudum pactum. Civil Code (1910), § 4241; Seawright v. Dickson, 16 Ga. App. 436 (1) (85 S. E. 625); Jones v. Georgia Fertilizer & Mfg. Co., 21 Ga. App. 170 (94 S. E. 81).

The plaintiff, however, contends that the defendant’s plea shows a constructive delivery of the policy, relying upon that part of the first plea wherein it is alleged that, several months after the execution of the note and application, the defendant called upon the plaintiff’s supposed agent, Tarver, for an explanation, and was assured by him that the policy had been issued by the company and was then in his (Tarver’s) safe, but he would have to “fix it up” before delivering it to the defendant. Whether the policy, if any was ever in fact issued, required or dispensed with actual delivery to the insured is a matter as to which the record is wholly silent; but conceding that constructive delivery was sufficient, still delivery by the company to its own agent, with instructions “to fix it up” and then deliver it to the insured, would be no delivery to the insured, nor would a completed policy so delivered be delivery to the insured, in the absence of any fact tending to show the authority of the insurer’s agent to receive the policy for or in behalf of the insured. Reserve Loan Life Insurance Co. v. Phillips, 156 Ga. 373 (119 S. E. 315). Certainly there is nothing in the plea tending to show that Tarver was the dual agent of the plaintiff and the defendant. Furthermore, in other parts of -the plea it is distinctly alleged that “no such policy has at any time since ever been delivered to or tendered to this defendant by any one,” and that “this defendant has derived no benefit or protection from the plaintiff company in the way of any insurance on his property, or any other thing of value, as a consideration of the note declared on by the plaintiff.” The allegation that there has been “no delivery” is broad enough to include every kind of delivery that might be legally sufficient for the particular case, whether actual or constructive. The evidence upon the trial may develop questions of law touching delivery and non-delivery, or actual and constructive delivery, but the pleadings do not. In the present state of the record, the first plea presents only questions of fact, substantial issues which must be submitted to and determined by a jury under appropriate instructions.

The second plea, in connection with the averments of the first, also raises a substantial issue which should have been submitted to the jury. An offer and an acceptance are essential prerequisites to the creation of every kind 'of contract. Huggins v. Southeastern Lime & Cement Co., 121 Ga. 311 (3). “Until ¡assented to, each, party may withdraw his bid or proposition, unless a given time is agreed on in which the other party may assent.” Civil Code (1910), § 4230. Whether the plaintiff was given any time limit in which to accept or reject the application does not now show, nor is there any presumption of law that it was given, nor is there any special demurrer calling for more specific information upon the point. In the absence of such a given time, the company must have accepted the defendant’s offer within a reasonable time, or else it will be held to have rejected it. “If no time is prescribed for accepting an offer, it must be done within a reasonable time.” Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117 (80 S. E. 559). What constitutes a reasonable time in any given case must depend upon its own peculiar facts. It is generally a question for the jury, but in any case of unusual delay it may become a question of law, rather than of fact. “Time is of the essence of a contract, when the nature of the contract is such as to indicate that this must have been the intention of the parties. In order for a proposition to be binding upon him who makes the proposal, the opposite party must accept it before the time fixed for the performance of the contract.” Traylor v. Brimbery, 2 Ga. App. 84 (1) (58 S. E. 371). From the very nature of a contract of fire insurance, prompt action would seem to be required in all such eases, in the absence of any stipulation postponing the date the contract is to become operative or fixing the time when the application might be accepted or rejected. In the instant case the defendant alleges (and plaintiff’s general demurrer admits, for purposes of a ruling thereon) that the plaintiff received the application on May 19, 1922, and took no affirmative action thereon prior to January 1, 1923, or for a period of more than six months. The plea further alleges (and the demurrer challenges) that the reasonable time allowed by law in which to accept or reject such an application “expired, as matter of law, by the first day of January.” Owing to the nature of the contract, and in the absence of any reason or excuse for such delay, we are of the opinion that the defendant’s position is well taken, and that the judgment sustaining the plaintiff’s general demurrer to the second part of the defendant’s plea was erroneous.

The third plea of. the defendant, as to which the plaintiff’s general demurrer was overruled, appears to be wholly without merit. “In some cases a party may rescind without the consent of the opposite party, for non-performance by him of his covenants.” Civil Code (1910), § 4306. “When a breach is thus occasioned, the other party has a right to rescind the contract, on notification and return of what he has received, or he may at his pleasure abide by the contract and have a right of action to recover damages for the breach; but he can not do both. If, after such breach, he not only retains the articles received, but puts them to his own use, this is equivalent to an election to abide by the terms of the original contract, and he thereafter holds under those terms the articles actually received.” Collins v. Frazier, 23 Ga. App. 236 (1) (98 S. E. 188). In view of the express provisions of the note sued on, touching the effect upon the contract of insurance of default in the payment of any installment of the note, it is manifest that the company’s intention in writing the letters referred to in the third division of defendant’s plea was not to notify Swann of its election to rescind the contract of insuran.ee, but to call his attention to the express provisions of the note which he had executed.

• Of course, there must be a contract before there can be any rescission of contract; and if the defendant should, upon the next <rial, establish the defense set out in his first or second plea, or both of them, there would be no contract, and consequently no room for a rescission of contract. But a defendant is permitted to file contradictory pleas, so as to avail himself of all the probable evidence, just as a plaintiff may file a petition with plural counts, each contradictory of the other. Civil Code (1910), § 5649; Miller v. Southern Railway Co., 21 Ga. App. 367 (5 a) (94 S. E. 619). Here, however, the defendant’s third plea contains matter which is in no sense germane to either of his other defenses, and which is urged by him as a separate and distinct defense, and which, if sound in law, would defeat a recovery by the plaintiff even though the plaintiff should upon the trial prove a sufficiently prompt and legal issuance and delivery of the policy of insurance applied for. It is urged solely as a good plea of rescission, and that is what it is not.

The legal effect of the stipulations in the note respecting default in the payment of its installments, and whether the contract of insurance, if .there was such a contract, contained similar stipulations, and their effect therein, are all questions not now presented for decision. What we do now hold is that the first plea set forth a substantial defense; that the.second plea, in connection with the first, set forth another substantial defense; and that the third defense should have been stricken on general demurrer.

Judgment reversed on both bills of exceptions.

Broyles, C. J., cmd Bloodioorth, J., concur.


text:
    16086, 16087.
    Home Insurance Co. v. Clinkscales; and vice versa.

    Decided May 14, 1925.
    Complaint; from city court of Blakely—Judge Gray. November 19, 1924.

      Lowrey Stone, for plaintiff.

      Glessner & Collins, for defendant.
   Bloodworth, J.

These cases are controlled by the principle announced in Home Ins. Co. v. Swann, ante, 19.

Judgment reversed on both the main bill and the cross-bill of exceptions.

Broyles, O. J., and Luhe, J., concur.


text:
    16142.
    Story v. First National Bank of Thomson.
    Decided May 14, 1925.
    Complaint; from city court of Thomson—Judge A. L. Franklin presiding. September 18, 1924.

      P. B. Johnson, for plaintiff in error.

      J. B. Bowden, J. B. & T. R. Burnside, contra.
   Bloodworth, J.

Where a general demurrer to a plea is overruled and no exception to this ruling is taken, the ruling becomes the law of the case and “stands as a solemn adjudication that the plea was good.” Bennett v. Simmons, 30 Ga. App. 531 (118 S. E. 494), and citations. Where, on the trial of such a case, the defendant introduces evidence which substantially supports her plea, even though the plaintiff introduces conflicting evidence, it is error for the judge to direct a verdict for the plaintiff. Pierpont Mfg. Co. v. Mayor &c. of Savannah, 153 Ga. 455, and cases cited on pages 457 and 458 (112 S. E. 462) ; Vickery v. Swicord, 151 Ga. 145 (106 S. E. 92).

Judgment reversed.

Broyles, O. J., and Luke, J., concur.


text:
    16145.
    BUTLER v. CROWN CORK & SEAL COMPANY.
    A suit “on open account” can not by amendment be changed into a suit under section 4131 of the Civil Code (1910).
    Decided May 14, 1925.
    Complaint; from city court of LaG-range—Judge Duke Davis. December 13, 1924.
    The petition of the Crown Cork & Seal Company against H. C. Butler alleged that the defendant was indebted to plaintiff a certain amount “on open account,” and that a copy thereof was attached. This copy is as follows: “H. C. Butler, prop. Lime Cola Bottling Co., Durham, N. C., to The Crown Cork & Seal Co., Dr., Jan. 26, 1922. 2585 gr. crowns, charges 562.24. May 5, 1924, credit Memo. . . credits 310.20 . . balance 252.04.” A vice-president of the plaintiff corporation made affidavit that the “goods, wares, and merchandise charged in the annexed account were bona fide sold as charged,” and that the “balance 'charged and claimed is justly due.” Another person, who designated himself as “clerk of said corporation,” made oath that the “goods, wares, merchandise, and effects charged in the annexed account were sold as charged,” and that the defendant “assumed to pay for same at the prices therein named.” These affidavits were attached to the account sued on. Plaintiff amended its petition as follows: “Plaintiff amends its petition in the above case by alleging that the $252.04 sued for is the difference between the contract price $562.24 and the price as resale. 'Pltff. acted as agent for the defendant in the resale.” To this amendment a demurrer was filed, “on the ground that said amendment sets out a new and distinct cause of action from the original action sued upon.” The amendment was allowed. By agreement the case proceeded to trial before the judge of the city court, who .was to “pass on both law and facts, without the intervention of a jury.” Judgment was rendered against Butler, and he excepted.

      Lovejoy & Mayer, for plaintiff in error.

      E. T. Moon, contra.
   Bloodworth, J.

(After stating the foregoing facts.) As stated therein, the original petition in this case is a suit “on an open account.” The affidavits attached to the account are in keeping with this view of the case. Such a suit is based upon the sale and delivery of merchandise and the refusal of the purchaser to pay therefor. The cause of action is the refusal of the purchaser to pay for the goods bought, after delivery. Such a petition can not be changed by amendment into a suit under section 4131 of the Code'of 1910, and based upon the refusal of the purchaser to accept the goods after buying them. The facts in this case easily differentiate it from the majority opinion in the case of Rowland Company v. Kell Company, 27 Ga. App. 107 (108 S. E. 602), relied on by defendant in error. In Pittman v. Hodges, 13 Ga. App. 26 (78 S. E. 688), this court held: “The suit can not by amendment be changed from one to recover the price of goods sold on open account to an action for damages for the breach of a contract. ' Such an amendment would introduce a new cause of action and present issues which could not arise under the cause of action originally declared on. See Groover v. Tattnall Supply Co., 10 Ga. App. 679 (73 S. E. 1083); Hartwell Ry. Co. v. Kidd, 11 Ga. App. 771 (74 S. E. 310).”

The court having erroneously allowed the amendment to the petition, the further proceedings were nugatory.

Judgment reversed.

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


text:
    16150.
    MAY v. YEARTY.
    The ground of the motion for a new trial which complains of the exclusion of certain testimony is not complete and understandable in itself, and therefore is not in proper form for consideration. Moreover, testimony to the same effect and in nearly identical language was admitted.
    In view of the charge given by the court, and of the failure to request a more specific charge on the subject, there is no merit in the ground of the motion for a new trial that the court erred in failing to charge the jury “the principle of law stated in section 4419 of Park’s Code of Georgia, to the effect that a fraud may be committed by acts as well as words; that one who silently stands by and permits another to purchase his property without disclosing his title thereto is guilty of such fraud as estops him from subsequently setting up such title against a purchaser.”
    There is evidence to support the verdict.
    Decided May 14, 1925.
    Trover; from Colquitt superior court—Judge W. E. Thomas. November 25, 1924.

      J. L. Dowling, for plaintiff in error.
   Bloodworth, J.

1. The first special ground of the motion for a new trial, which complains that certain evidence of Will Jenkins was ruled out, does not require the grant of a new trial. It is well settled in this State that a ground of a motion for a new trial must be complete and understandable within itself and without reference to other parts of the record. Judging this ground by this rule, we would not be required to consider it. In it Gus Yearty and “his sister” are referred to. Who are these parties, and what connection, if any, have they with the case P To ascertain this, reference would have to be made to the brief of evidence; and this is not required of the court. Moreover, an examination of the brief of evidence reveals the fact that most of the evidence quoted in this ground went to the jury; and as to the remainder, the defendant himself swore to the same fact in almost the same language used by Jenkins. Southern Ry. Co. v. Ward, 131 Ga. 21 (4) (61 S. E. 913); Rozier v. State, 156 Ga. 176 (1), 177 (1) (119 S. E. 309).

2. The defendant testified that when he bought from Mrs. Gus Yearty the mule for which this suit was brought, the plaintiff “was present and took part in the trade.” The plaintiff and Mrs. Yearty denied this. In an amendment to his motion for a new trial the plaintiff insists that the court erred in failing to charge the jury “the principle of law stated in section 4419 of Park’s Code of Georgia, to the effect that a fraud may be committed by acts as well as words; that one who silently stands by and permits another to purchase his property without disclosing his title thereto is guilty of such fraud as estops him from subsequently setting up such title against a purchaser.” The charge of the court covered the substantial issues in the case, and the jury was specifically instructed, “If you find that the property was hers [plaintiff’s], and find that Mr. May bought it in a trade in which she participated, and for value received he purchased the property, and he did purchase it pursuant to an arrangement in which she was a party and agreeing thereto, then she can not recover.” If a more specific charge was desired on this issue, a request therefor should have been made as required by section 6084 of the Civil Code of 1910. See Reed v. State, 32 Ga. App. 769 (124 S. E. 735), and VanDyke V. VanDyke, 31 Ga. App. 67 (2) (119 S. E. 436).

3. There is evidence to support the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    16158.
    BARROW v. GEORGIA CHEMICAL WORKS.
    A partnership by the defendants, as to third persons, was shown by the evidence; and the court did not err in directing a verdict against the defendant who pleaded that there was no partnership.
    Decided May 14, 1925.
    Complaint; from city court of Camilla—Judge Burson. December 1, 1924.

      Hill & McHlvey, for plaintiff in error.

      H. A. Peacock, G. B. Cowart, contra.
   Luke, J.

Georgia Chemical Works sued Barrow and McKenzie on a certain fertilizer note signed “Barrow & McKenzie, by J. N. McKenzie.” Barrow pleaded no partnership and non est factum. The court directed a verdict against both defendants, and Barrow excepted. The controlling question in the case is whether or not defendants were partners as to third persons. The parts of the voluminous written contract essential to the determination of the question presented may be summarized as follows: B. leased to M. for a period of five years, at a specified annual rental, designated lands, live stock, wagons, and farm tools for the conduct óf a cantaloupe farm. B. was to “stand for” guano, cantaloupe seed, paper, crates, and nails, and also to arrange for and procure cash to make the crop on the notes of M. in an amount not exceeding a named sum, “to give of his individual time in advice and assistance”-in gathering, hauling, and marketing the crop; and, for his service in “so assisting and becoming surety,” M. guaranteed him $4000 per annum. After “said rentals and said expenses and said guarantee are paid,” M. “shall be entitled to receive a profit of $6000.00 himself;” 'and then all other and further, profits per annum shall be divided in the proportion of forty per centum to B. and sixty per centum to M.

Held: Irrespective of the other evidence, which only strengthens the conclusion reached, the record, discloses a partnership between the defendants as to third persons, and for no reason assigned did the court err in directing a verdict against Barrow. Civil Code (1910), § 3158; Doss v. Ragan, 135 Ga. 850 (70 S. E. 662); Hand Trading Co. v. Jones, 129 Ga. 835 (60 S. E. 154); Buckner v. Lee, 8 Ga. 285; Sankey v. Columbus Iron Works, 44 Ga. 229 ; Powell v. Moore, 79 Ga. 524 (4 S. E. 383).

Judgment affirmed.

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


text:
    16152.
    HOLLIDAY v. ELBERTON LOAN AND SAVINGS BANK.
    The defense that the plaintiff was not an innocent purchaser, before maturity, of the notes sued on is not sufficiently made by the defendant’s plea. The averment of notice by publication in a newspaper of his defense to the notes is insufficient as against the special demurrer; and the court did not err in striking the answer.
    Decided May 14, 1925.
    Complaint; from city court of Athens—Judge Bradwell. November 29, 1924.
    The allegation as to notice was demurred to on the ground that “it fails to specify or name to what officer or officers of plaintiff .bank said alleged newspaper notice was ‘brought home/ or how or in what manner it ivas ‘brought home’ to plaintiff or any of its officers or agents. Said plea fails to allege that any officer of plaintiff bank saw said notice, or read it, or knew of it. Said plea fails to show that the particular officer who bought said notes saw said notice, or knew of it, before taking said notes.”

      West & West, for plaintiff in error.

      Tutt & Brown, W. K. Meadow, contra.
   Luke, J.

Elberton Loan & Savings Bank bought from W. 0. Jones two promissory notes executed by Paul L. Holliday. The consideration of the notes, as shown by a contemporaneous contract in writing, was one automobile. To an action on the notes Holliday pleaded, in substance, that the automobile was not as represented, and could not be operated with any satisfaction, for several reasons which he named; that the Elberton Loan & Savings Bank was not an innocent purchaser before maturity, because he had published in a named newspaper of the city of Elberton, where the plaintiff resided, “a notice putting all persons on notice not to trade for or otherwise invest in said notes, as the same were uncollectible and the consideration of the same had totally failed, which notice was brought home to the plaintiff, its officers in charge of said banking institution,” and because the notes were purchased from a rival in business, and because of interlineations, erasures, or substitutes of numbers in the contract which described the automobile. The court sustained demurrers to the answer and it was stricken.

The court properly sustained the' demurrer to the answer. The answer was insufficient to show that the Elberton Loan & Savings Bank was not an innocent holder of the notes sued upon, for value before maturity. The averment of notice by publication in a newspaper of the defenses that would be urged to the notes was wholly insufficient to withstand the special demurrer thereto. By law the plaintiff was entitled to the judgment which it. received against the defendant.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Blood worth, J.

text:
    16168.
    Dacula Banking Co. v. Hall.
    Decided May 14, 1925.
    Complaint; from Gwinnett superior court—Judge Bussell. December 10, 1924.

      1. L. Oalces, for plaintiff in error.

      O. A. Nix, contra.
   Blood worth, J.

1. When all the facts of the case and the entire charge is considered, nothing in either of the two special grounds of the motion for a new trial attacking the charge requires a reversal of the judgment.

2. Under the petition in this case when supported by proper proof, the plaintiff would be authorized to recover “the sum of $100 principal; with interest at 4-%% semiannually from the month of November, 1918.” The verdict was for $100 principal and $40.75 interest from September 2, 1924. The interest found is excessive by $14.50. If the plaintiff will write off this amount from the interest stated in the verdict, the'judg-' ment will be affirmed; otherwise a new trial is ordered.

Judgment affirmed on condition.

Broyles, G. J., and Luke, J., concur.


text:
    16178.
    WHITTEN v. McMILLAN.
    The verdict in this case, finding “in favor of the homestead, to apply to” specified articles, was not authorized by the pleadings; and it and the judgment based thereon must be set aside.
    Decided May 14, 1925.
    Attachment; from city court of Claxton—Judge Elmore. December 20, 1934.

      B. M. Gira/rdecm, P. PI. Anderson, for plaintiff.

      S. T. Brewlon, J. Saxton Daniel, for defendant.
   Bloodworth, J.

An attachment for the purchase-money of certain articles of personal property was issued and made returnable to the city court of Claxton. The attachment was levied on the articles specified in the affidavit, and the plaintiff filed a declaration in attachment. _ The defendant filed pleas in which he admitted the purchase of the articles named in the attachment, but alleged that he had turned over to plaintiff enough property to pay for them; that he had done certain work for plaintiff that was also to be credited on the bill for these goods; and that “most of said property has been set apart to himself, his wife and minor children under the statutory or short homestead, for the support of himself and family, and that said property is not subject to levy and sale.” Upon the trial the jury rendered the following verdict: “We, the jury, find in favor of the homestead, to apply in following articles : 1 pr. folding springs, 2- iron bedsteads, Simmons make, 1 cooking stove and utensils, 5 common chairs.” In his motion for a new trial plaintiff in error insists, that, “under any view of the evidence, the plaintiff is entitled to a verdict for at least $70.00; that the verdict rendered does not cover the issues made by the pleadings and the evidence, in that no verdict is rendered for the plaintiff in any amount, nor for the defendant, except for a part of the property attached; and for these reasons movant says that a new trial should be granted. Movant says that the verdict is so incomplete and defective that no lawful judgment could be entered thereon that would cover the issues made by the pleadings and the evidence, and for this reason a new trial should be granted.”

Held: (a) Under the pleadings in this case the plaintiff, if the evidence does not show that he has been paid in full, is entitled “to a general judgment against the defendant in addition to a judgment on the attachment” (Johnson v. Wood Stove Co., 6 Ga. App. 66 (2)), and (b) the verdict rendered was not authorized by the pleadings, and it and the judgment based thereon must be set aside.

Judgment reversed.

Broyles, G. J., and Buhe, J., concur..


text:
    16182.
    HENDERSON v. NATIONAL BANK OF WILKES.
    There being evidence in support of the verdict, it was not error to overrule the motion for a new trial, the only ground relied on being as to the sufficiency of the evidence.
    Decided May 14, 1925.

      Levy and claim; from Wilkes superior court—Judge Shurley. December 4, 1924.

      Colley & Colley, F. W. Gilbert, for plaintiff in error.

      Clement E. Sutton, contra.
   Luke, J.

The sole contention of the plaintiff in error is that the verdict was not authorized by the evidence. Upon conflicting evidence the jury, as was their province, decided the issue of fact against the claimant. The verdict being supported by evidence, it was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    16189.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. JEFFERS.
    It was not error to overrule both the general and the special grounds of demurrer to the plaintiff’s petition, by which he sought to recover for the burning of wood and timber on his farm, alleged to have been caused by a section foreman of the railway company in negligently setting fire to its right of way, and in negligently allowing the fire to spread to the farm.
    Decided May 14, 1925.
    Action for damages; from Haralson superior court—Judge Irwin. November 26, 1924.

      Griffith & Matthews, Maddox, Matthews & Owens, for plaintiff in error.

      Edwards & Edwards, contra.
   Luke, J.

1. Jeffers sued the railway company, alleging in substance that he owned and possessed a farm adjacent to the railway property, that the farm had thereon a woodland tract, and that the section-foreman of the railway company “carelessly and negligently set fire to the right of way of said company, and carelessly and negligently allowed the same to spread to the farm of petitioner, over which farm the said right of way is located,” and that the fire burned and injured the wood and timber thereon, to his injury and damage. The railway company demurred generally, and demurred specially upon the ground that the averments of the pleader were but conclusions, and upon the ground that the plaintiff did not allege “how or in what way, or for what purpose the section-foreman set fire to said right of way, or how and in what way he carelessly and negligently allowed the same to spread to the farm of petitioner.” The court overruled the demurrers, and error is assigned upon this ruling.

The court properly overruled the demurrers. While a plaintiff is required to set out plainly and fully his cause of action, so as to afford the defendant an opportunity to prepare for trial, he is not required to allege impossible particulars or unnecessary details. The allegation that the plaintiff set fire to its right of way and allowed it to spread is not rendered a mere conclusion by reason of the allegation that in so doing it was negligent; neither is this allegation rendered-uncertain by the additional allegation that the fire was negligently allowed to spread to the plaintiff’s adjoining property. Should the plaintiff now allege why the railway company wished to fire its right of way? Is it necessary that the plaintiff be required to allege that the section-foreman went to sleep and left the fire burning, or that a high wind was blowing, so as to enable the railway company to prepare for trial? In an action against a railway company for damages occasioned by the setting out of fire, the manner in which .the fire was set out must be alleged, but, from the very nature of the case, it is not always within the power of the plaintiff to state just exactly in what particular way the railway company allowed the fire to spread from its right of way to the adjoining land. Reasonable certainty is all that is required to enable pleadings to withstand a special demurrer. See Flint River & N. E. Ry. Co. v. Maples, 10 Ga. App. 573 (73 S. E. 957).

2. The verdict is not unsupported by evidence, and the trial judge having approved the verdict, it was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Bloodwortii, J.

text:
    16193.
    GOODRICH RUBBER COMPANY v. BARBER.
    Where a part of evidence offered as a whole is admissible, an objection to the whole is not sufficient; the objectionable part should be pointed out.
    The instruction complained of is not erroneous, when considered with the remainder of the charge of the court.
    Some evidence supports the verdict.
    Decided May 14, 1925.

      Complaint; from city court of Jefferson—Judge Bryson. December 31, 1934.

      Egbert Beall, for plaintiff.

      E. C. Stark, for defendant.
   Bloodwortii, J.

-1. “Where evidence is offered in mass, and parts of it are competent, an objection going to the entire evidence, ■without specifically pointing out that which is incompetent, will not avail the objecting party in the reviewing court.” Knight v. State, 143 Ga. 678 (6). “‘Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted/ City of Atlanta v. Sciple, 19 Ga. App. 694 (3), 698 (93 S. E. 38); Luke v. State, 26 Ga. App. 175 (1), 176 (106 S. E. 199), and citations.” Joiner v. State, 39 Ga. App. 363 (1) (115 S. E. 278). Under the foregoing rulings that ground of the motion for a new trial based upon alleged errors of the court in admitting evidence is without merit. Moreover, this ground is not unqualifiedly approved by the trial judge. See, in this connection, Collier v. Moore, 31 Ga. App. 229 (8) (120 S. E. 441).

3. When considered in connection with all the evidence and the remainder of the instructions given to the jury, there is no error in the excerpt from the charge which appears in the motion for a new trial.

3. There is some evidence to support the verdict.

Judgment affirmed.

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


author: Broyles, 0. J.

text:
    16227.
    Prudential Insurance Company of America v. Gainey.
   Broyles, 0. J.

1. Where A, a creditor of the estate of a deceased person, made application for the appointment of an administrator upon the estate, and suggested B as a proper person for such appointment and prayed that he be so appointed, and thereupon the court of ordinary so appointed B, and B qualified, had the estate appraised, and discovered that all the property of the estate .consisted of realty held by A under a security deed with power of sale, and that A had obtained the administration on the estate for the sole purpose of foreclosing the security deed by suing the administrator and obtaining judgment against him on such claim, and where A, at the expiration of twelve months from B’s qualification as administrator, brought suit against B and obtained judgment thereon for the full amount of his claim (the administrator allowing the judgment to be rendered against him without setting up in the suit that he had incurred a liability for the costs of the administration of the estate, and was entitled to compensation as administrator), and A had execution thereon levied on the property of the estate, and bought in the property at sheriff’s sale for a sum less than the amount of his execution, and where subsequently A claimed the proceeds of the sale under his execution, and had the sheriff make a deed to him for the property, without paying any part of his bid for the property, A was not liable to the administrator for any of the necessary costs of the ■ administration of the estate, unless, perhaps, for the costs of the application for the appointment of the administrator, and the letters of administration. See, in this connection, Gibson v. Robinson, 90 Ga. 756 (2) (16 S. E. 969) ; Phipps v. Alford, 95 Ga. 215 (1) (22 S. E. 152) ; Walker v. Shannon, 21 Ga. App. 39 (1) (93 S. E. 498).

Decided May 14, 1925.

Attachment; from city court of Cairo—Judge Rigsby. November 25, 1924.

Branch & Snow, for plaintiff in error.

M. L. Ledford, Jesse J. Gainey, contra.

2. Under the preceding ruling and the facts of the instant case (which are set forth in the preceding note), the declaration in attachment failed to set out a cause of action, and the court erred in overruling the general demurrer interposed.

Judgment reversed.

Jenkins, P. J., and Luke, J., concur.


author: Broyles, C. J.

text:
    16290.
    Futch v. The State.
    Decided May 14, 1925.
   Broyles, C. J.

1. The first ground (numbered 4) of the amendment to the motion for a new trial, complaining of the admission of certain testimony, over the defendant’s objection that it was hearsay, presents no good assignment of error, since some of the testimony objected to was not hearsay, and the objection was to the testimony in its entirety.

2. The second ground (numbered 5) of the amendment to the motion for a new trial, complaining that a witness was not permitted to answer a certain question, is fatally defective, since the ground does not show that the trial court was informed at the time what answer wTas expected from the witness.

3. Under the particular facts of the case the refusal to declare a mistrial was not error.

4. There is no merit in the grounds based upon the failure of the court to charge upon the subject of the impeachment of witnesses, it appearing from these grounds that no request for such instructions had been made.

5. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Indictment for malting liquor; from Evans superior court-judge Sheppard. January 26, 1925. ■

W. G-. Warnellj P. ilfv Anderson, for plaintiff in error.

J. Saxton Daniel, solicitor-general, contra.


author: Bloodwobth, J.

text:
    16293.
    Hill v. Bennett, superintendent of banks.
    Decided May 14, 1925.
    Complaint; from city court of Nashville—Judge W. B. Smith. January 29, 1925.

      Hendricks & Hendricks, for plaintiff in error.

      Dewey Knight, contra.
   Bloodwobth, J.

1. There is no merit in the ground of the motion for a new trial which alleges that the court erred in excluding from the jury certain testimony. -

2. The court properly directed a verdict for the plaintiff.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16294.
    Hall, administrator, v. Massachusetts Protective Association Inc.
   Broyles, C. J.

1. Where the trial judge, in considering general and special demurrers to a petition, passed an order reserving his judgment upon the general demurrer and sustaining the special demurrers, and allowing the plaintiff ten days within which to amend the petition to meet the special demurrers, the order reciting that if the petition was “not properly amended within said time, the parts of the petition demurred to are stricken;” and where this judgment was not excepted to, and no amendment was allowed, or presented to the judge, within the time specified (an amendment being merely filed within the time allowed in the office of the clerk of the trial court, without an order of the court allowing such filing), the court did not err in thereafter disallowing the amendment. See, in this connection, Clark v. Ganson, 144 Ga. 544 (87 S. E. 670) ; Marbut v. Southern Railway Co., 22 Ga. App. 330 (95 S. E. 1021); Atlantic Refining Co. v. Peerson, 31 Ga. App. 281 (3) (120 S. E. 652); Howard v. Citizens & Southern Bank, 32 Ga. App. 22 (122 S. E. 717).

2. The court having properly disallowed the purported amendment to the petition, and it having been made the law of the case that the petition was subject to the special demurrers interposed, and the petition, lacking the parts stricken by the special demurrers, not setting forth a cause of action, the court properly sustained the general demurrer and dismissed the petition.

Decided May 14, 1925.

Complaint; from city court of Atlanta—Judge Reid. January 17, 1925.

Lippitt & Long, Lippitt & Burt, for plaintiff.

Colquitt & Conyers, for defendant.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


author: Bloodworti-i, J.

text:
    16296.
    DELK v. STRICKLAND.
    The grounds of the motion for a new trial which complain of error in admitting evidence are not in proper form for consideration.
    The instruction complained of is not erroneous, when considered with the remainder of the charge of the court.
    The verdict is supported by evidence.
    Decided May 14, 1925.
    Complaint; from city court of Reidsville—Judge Cowart. January 21, 1925.

      E. C. Collins, for plaintiff in error.

      II. C. Beasley, contra.
   Bloodworti-i, J.

1. “Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete-as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered- by the reviewing court.” McCall v. State, 23 Ga. App. 770 (99 S. E. 471); Roddenberry Hardware Co. v. Merritt, 17 Ga. App. 425 (87 S. E. 681), and citations. “Under the rulings of this court and of the Supreme Court, this court will not search through the record to find errors when they are not specifically pointed out in the assignments of error or in the grounds of the motion for a new trial. The rule is that each ground of a motion for a new trial must be complete in itself.” Odum v. Rutledge, 16 Ga. App. 350 (85 S. E. 361). “A ground of a motion for a new trial in which error is assigned on the exclusion of certain testimony is insufficient when it does not appear from the ground itself that the exclusion of the testimony was prejudicial to the complaining party.” Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545). “In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that.a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.’”. Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712). “An assignment of error based upon the refusal of the trial judge to permit an answer to a question presents no ground for review, unless the answer sought to be elicited is stated to him at the time of - the ruling complained of.” Southern Ry. Co. v. Wright, 6 Ga. App. 172 (3) (64 S. E. 703). And see Veal v. State, 27 Ga. App. 300 (3) (108 S. E. 243); Anderson v. Savannah Press Publishing Co., 100 Ga. 454 (1) (28 S. E. 216). “A ground of a motion for a new trial assigning error upon the admission of evidence will not be considered unless the evidence is sufficiently set forth for the question of its admissibility to be determined without reference to other parts of the record.” Pound v. Smith, 146 Ga. 431 (5) (91 S. E. 405). See also Allen v. State, 29 Ga. App. 213 (2 a, b) (114 S. E. 583). At least one, if not more, of the foregoing rulings is applicable to each ground of the motion for a new trial based upon the rejection or admission of evidence, and under these rulings none of these grounds of the motion for a new trial present any question for review.

The excerpt from the charge of which complaint is made in the motion for a new trial, when considered in connection with the remainder of the instructions given, is not erroneous. “It is not • 'a good assignment of error on a portion of the judge’s charge which ' states a correct principle of law applicable to the case, that some •other correct and appropriate instruction was not given.” Grant v. State, 152 Ga. 252 (1) (100 S. E. 502); and’ authorities cited; Western & Atlantic Railroad Co. v. Bowen, 31 Ga. App. 32 (1) (119 S. E. 426), and citations.

3. There is evidence to support the verdict. . .

Judgment affirmed.

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


text:
    16298.
    Ahlgren, administrator, v. Walton.
    Decided May 14, 1925.
    Rehearing denied June 10, 1925.-
    Certiorari; from Fulton superior court—Judge E. D. Thomas. February 33 1925.
    Application for certiorari was denied by the Supreme Court.

      Harry L. Greene, McDaniel & Neely, for plaintiff in error.
    W. H. Terrell, contra.
   Broyles, C. J.

1. Where a suit is brought against the administrator of the estate of a decedent to recover a certain sum of money “out of the identical money” collected by the administrator in a certain transaction, and where the action is commenced within twelve months of the qualification of the administrator, the suit can not be maintained, unless it be shown that this money collected by the administrator has not become intermingled with other funds of the estate. See, in this connection Tiedman v. Imperial Fertilizer Co., 109 Ga. 661 (34 S. E. 999) ; Ober & Sons Co. v. Cochran, 118 Ga. 396 (45 S. E. 382, 98 Am. St. R. 118).

(a) The plaintiff can not, in the municipal court of Atlanta, trace and claim the specific funds which he alleged the administrator had collected. To do this, he would have to apply to a court of equity, and in this State equity jurisdiction is vested solely in the superior courts. Civil Code (1910), § 4518.

2. Under the above-stated rulings, the judge of the municipal court of Atlanta properly sustained the defendant’s plea in abatement and dismissed the suit, and the judge of the superior court erred in sustaining the certiorari.

Judgment reversed.

Lulce and Blood/worth, JJ., concur.


text:
    16303.
    MYERS et al. v. WESTERN UNION TELEGRAPH COMPANY.
    Necessary and reasonable expenses of an unnecessary trip caused by negligence of a telegraph company, in failing to deliver a telegraphic message in a reasonable time, are recoverable.
    The judgment rendered by the trial court was demanded by the law and the evidence, and the judge of the superior court erred in sustaining the certiorari and in rendering a final judgment in favor of the plaintiff in certiorari.
    Decided May 14, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. January é, 1925.
    Application for certiorari was made to the Supreme Coutt.
    Vick Myers and others, of Atlanta, Georgia, doing business under the name of Yiek Myers Melody Orchestra, brought suit in the municipal court of Atlanta against the Western Union Telegraph Company to recover damages claimed to have been incurred on account of a useless trip from Atlanta to Fayetteville, Tennessee, the result of alleged negligence on the part of defendant company in failing to deliver promptly a telegram to the plaintiffs. The case was heard by the court without the intervention of a jury, and a judgment was rendered in favor of the plaintiffs for $283. The defendant ■ obtained a writ of certiorari, and the superior court sustained the certiorari and rendered a final judgment in favor of the defendant. To this judgment the plaintiffs excepted.
    Upon the hearing in the trial court the evidence and the facts agreed upon, with the legal inferences and deductions arising therefrom, disclosed the following undisputed facts: From the 18th to the 21st of July, 1924, several telegrams were exchanged between Yiek Myers, acting for the plaintiffs, and Hugh W. Moores, of Fayetteville, Tennessee, resulting in a contract between them. Under the contract the plaintiffs were to furnish music for two dances in the Tennessee town on August 28 and 29, 1924. These telegrams were transmitted by the defendant company. On the night of July 25, 1924, Myers delivered to the telegraph company the following telegram:
    “5NAS49NL.
    “Atlanta, Ga. Jul. 25, 1924.
    “Hugh W. Moores, Fayetteville, Tenn.
    “Will arrive Fayetteville Monday morning nine fifty am make reservation for nine men can play nights of thirtieth and thirty first two hundred fifty per night flat playing here Friday night have options here thirtieth and thirty first wire before three PM Sunday if can book extra jobs.
    “Yiek Myers.
    “832 A July 26.”
    When Myers delivered this telegram 'to the defendant he handed to the clerk receiving it instructions, on a separate sheet of paper, to forward any reply thereto to 719 N. Boulevard, but was told by the clerk that such instructions on a separate paper were unnecessary, and the clerk directed him to write the instructions on the original telegraph blank (which contained his message), under the words: “Sender’s address'for answer.” Myers thereupon tore np the separate paper and wrote under the above-quoted words: “719 N. Blvd.” This telegram was duly delivered by the defendant to Moores, who, on the morning of July 26, 1924, delivered to the defendant at Fayetteville, Tennessee, the following answer:
    “Vick ’ Myers Melody Orchestra, Atlanta, Ga.
    “From your night letter looks as tho you intend arrive here July twenty eight which is thirty days before date you are to play here My wires state that dances to be August twenty eighth and twenty ninth.
    “Hugh W. Moores.”
    This telegram was received by the Atlanta operator of the defendant company at 9.40 a. m., on July 26, 1924, and was delivered by the defendant to WSB, Atlanta Journal Badio Station, at 10 o’clock a. m., on the same day. No instructions had been given the defendant by any one for such delivery. Myers was at 719 North Boulevard, Atlanta, Georgia, on July 26, 1924, and on July 27, until 3 p. m., when, not having received an answer to his telegram, he left with his orchestra to fulfill the contract, he being under the impression that he was to" play in Fayetteville, Tennessee, on July 28 and 29, 1924. The telegram from Moores was not delivered to him until his return to Atlanta on July 31. He would not have made the trip if he had received the telegram from Moores before he left Atlanta. The necessary and reasonable expenses of his trip amounted to $283. When he left Atlanta with his orchestra he had in his possession all the telegrams which had passed between Moores and himself, except the last one from Moores, which had not been delivered to him. These telegrams could have been examined by him before be left Atlanta. He first discovered that his engagement was for August, instead of July, just before arriving at Fayetteville, Term., when a passenger on the train informed him that it was understood in Fayetteville that the engagement was for August 28 and 29, and upon inspecting the telegrams in his possession he found that such was the case.

      Watlcins & Asbill, for plaintiffs.

      Herman Heyman, Dorsey, Howell & Hey man, fox defendant.
   Broyles, C. J.

(After setting forth the foregoing facts.)

It is argued by counsel for the telegraph company that the expenses incurred by the plaintiffs for the trip to Fayetteville were the result of their own negligence and were not proximately caused by any negligence of the telegraph company. We can not agree with this contention. As we view the case, conceding that the plaintiffs were negligent in not examining the telegrams in their possession before leaving Atlanta for the trip to Tennessee, the negligence of the telegraph company in not promptly delivering the last telegram from Moores to Myers, under all the facets of the case, was the proximate cause of the expenses .sued for. The 'liefenddnt knew from this telegram, and from the one to which it was an answer, that Myers had become confused as to the dates of his engagement, and that unless Moores’ last message was delivered to Myers at 719 North Boulevard, Allanta, Georgia, before S p. m. of July 27, Myers would probably leave Atlanta with his orchestra on an expensive and unnecessary trip. Knowing this, the telegraph company, although receiving the message in Atlanta in ample time to have delivered it to Myers at 719 North Boulevard, before S p. m. of July 27, as it had been specifically directed to do, failed to so deliver it, but, without rhyme or reason, so far as the record discloses, promptly delivered it to an entire stranger, the Atlanta Journal Radio Station. This conduct of the defendant amounted to gross negligence and rendered it liable to the plaintiff for the damages proximately resulting therefrom. See, in this connection, Baldwin v. Western Union Tel. Co., 93 Ga. 692 (1) (21 S. E. 212, 44 Am. St. R. 194) ; Western Union Tel. Co. v. Hines, 96 Ga. 688 (3, 4) (23 S. E. 845, 51 Am. St. R. 159); Western Union Tel. Co. v. Fatman, 73 Ga. 285 (2 b); Western Union Tel. Co. v. Patrick, 92 Ga. 607, 609 (18 S. E. 980, 44 Am. St. R. 90); Western Union Tel. Co. v. Waxelbaum, 113 Ga. 1017 (1) (39 S. E. 443, 56 L. R. A. 741); Wilson v. Western Union Tel. Co., 124 Ga. 131, 133 (52 S. E. 153); Stewart v. Postal Telegraph-Cable Co., 131 Ga. 31 (3) (61 S. E. 1045, 18 L. R. A. (N. S.) 692, 127 Am. St. Rep. 205); Western Union Tel. Co. v. Barbour, 206 Ala. 129 (89 So. 299, 17 A. L. R. 103). The cases cited by counsel for the defendant in error are distinguished from the instant case by their particular facts.

It is well settled that the necessary and reasonable expenses of an unnecessary trip, caused by the negligence of a telegraph company in failing to deliver a telegraphic message within a reasonable time, are recoverable. Western Union Tel. Co. v. Bates, 93 Ga. 355, 356 (130 S. E. 639); Kolliner v. Western Union Telegraph Co., 126 Minn. 122 (147 N. W. 961, 52 L. R. A. (N. S.) 1184, 1185), and cases cited; 37 Cyc. 1767.

The judgment rendered by the trial court was demanded, under the law and the evidence, and the judge of the superior court erred in sustaining the certiorari and in rendering final judgment for the plaintiff in certiorari.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    16305.
    HATCHER v. BIRCH.
    No defense to an action on purchase-money notes for land was set out in an answer alleging damage to the defendant by seizure of his property under a distress warrant sued out by the plaintiff without cause, and praying that the action on the notes be enjoined or consolidated with a pending suit brought by the defendant against the plaintiff in another county, for trespass and damages and for an injunction against the action on the notes; and the court did not err in striking the answer, or in refusing to allow an amendment setting up that the plaintiff had, in violation of his bond for title, interfered with the defendant’s peaceful enjoyment of the premises for which the notes in question were given, thus damaging him in a stated sum, for which he prayed judgment in recoupment.
    Decided May 14, 1925.
    Complaint; from Crawford superior court—Judge Mathews. October 31, 1934.

      H. F. Btroheclcer, J. P. Burnett, for plaintiff in error.

      L. D. Moore, contra.
   Luke, J.

Birch sued Hatcher on promissory notes given for the purchase-money of land. The defendant filed the following answer: “1. Defendant admits the allegation in the first paragraph. 3. Defendant admits allegations in the second paragraph as to making the notes described, including the dates and the dates when to become due, and amounts, but says that the allegation as to the credits is not true as stated, but arose out of a fraud. 3. Defendant admits that he is holding possession of said land, but denies that he is insolvent or that his possession is to the hurt of plaintiff. 4. And for further answer defendant says, that after the making of said notes, and before either of them was due, that said J. N. Birch, by and through his attorney at law, K. P. Lowe, wantonly, wilfully, and without cause, sued out in said county a distress warrant against defendant, and caused all defendant’s personal property on his farm to be seized by the sheriff of said county, and utterly destroyed defendant’s business and farming operations and crops, thus rendering defendant unable to meet the note due December 1st, 1921. 5. That defendant now has pending’ before the superior court of Bibb county, the county of the residence of said J. N. Birch, a suit for trespass and damages, wherein all the wrongs inflicted upon defendant by the said J. N. Birch are fully set out, including the fact that defendant, at the instance of said J. N. Birch, was illegally imprisoned and his credit destroyed thereby, a copy of which suit is here to the court shown. 6. That in said suit is a prayer that this suit may be enjoined until the termination of said suit in Bibb superior court, upon which prayer the Hon. H. A. Mathews has granted a rule nisi setting said prayer to be heard before the judge of the Macon circuit at Crawford superior court on the third Monday in October, 1923. Wherefore petitioner prays that this suit may be enjoined until the termination of said suit by this defendant against said J. N. Birch, or that this suit may be consolidated in Bibb superior court with the said suit therein pending, and both tried together, and that' defendant may therein have his damages assessed against said J. N. Birch.” An amend-’ ment to this answer was offered, setting up that the plaintiff had, in violation of his bond for title, interfered -with the defendant’s peaceful enjoyment of the premises for which the notes in question were given, thus damaging him $1000, for which sum he prayed judgment in recoupment against the plaintiff. The amendment was disallowed, and on motion of the plaintiff’s counsel, in the nature of a general demurrer, the answer was stricken; and judgment was rendered for the plaintiff.

The court properly disallowed the amendment and struck the answer, and rendered judgment for the plaintiff for the full amount sued for.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.