text:
    18044.
    KIRSCH et al v. WITT.
    1. “A distress warrant is a final process until arrested by counter-affidavit and replevy bond. Gober v. Barry, 4 Ga. App. 4, 6 (60 S. E. 807). But when the defendant replevies the property the levy becomes functus, and the proceeding is converted into an ordinary action for rent, with the bond standing as security in the event of a judgment for the plaintiff. Stephens v. MeNaughlon, 8 Ga. App. 42, 43 (68 S. E. 459). In such a proceeding the form of the verdict or judgment is general, and is for the amount found to be due. Hardy v. Boss, 120 Ga. 385 (47 S. E. 947). If the counter-affidavit is dismissed, the distress warrant becomes again operative as final process. Griggs v. 'Wilbanks, 96 Ga. 744 (22 S. E. 327). But when it stands and the property is released under the affidavit and bond, the question of lien is not involved, and the plaintiff’s recourse at the end of the suit will be upon his judgment on the bond. Rountree v. Rutherford, 65 Ga. 444 (2), 448; Davis v. DeVaughn, 7 Ga. App. 324, 326 (66 S. E. 956).” Andrews v. Sims, 27 Ga. App. 338 (108 S. E. 258).
    2. All judgments rendered at the same term of court shall be considered, held, and taken to be of equal date, and no execution shall be entitled to any preference by reason of being first placed in the hands of the levying officer. Civil Code (1910), § 5944.
    3. The act of 1920 (Ga. L. 1920, p. 147), providing that in case of a distraint for rent, where the tenant desires possession of the property, it shall be the duty of the levying officer -to take a bond for the forthcoming of the property, and that where the tenant gives a forthcoming bond and also a replevy bond, the landlord, upon the trial, may elect whether he will take a money verdict or whether he will proceed against the property levied upon, does not render a judgment in favor of the landlord on the replevy bond superior in rank to judgments in favor of other persons, obtained at the same term of court.
    4. Where both of such bonds were given in a distress warrant proceeding, and where merely by agreement of the parties in that ease the landlord obtained judgment against the surety for the amount of his claim, with a stipulation in the judgment that the sum was “to be made first out of the goods levied upon in this case, and second out of the defendants and their surety,” there was no election to proceed against the property on the forthcoming bond as provided in the act of 1920.
    5. In this case, which arose on a money-rule in the municipal court of Atlanta, between the landlord, whose claim was predicated upon the judgment referred to in the preceding paragraph, and other creditors, who had obtained judgments at the same term of the same court, the funds should have been distributed ratably to the judgment in favor of the landlord and the judgments of the other creditors. The superior court erred in not sustaining the certiorari.
    Executions, 23 O. J. p. 503, n. 2.
    Judgments, 34 C. J. p. 602, n. 64.
    Landlord and Tenant, 36 C. J. p. 671, n. 86 New; p. 677, n. 49; p. 678, n. 61.'
    Decided November 18, 1927.

      Certiorari; from Fulton superior court—Judge Pomeroy. February 12, 1927.

      Burress & Billm'd, for plaintiffs in error.

      Mitchell & Mitchell, 3. L. Greene, McDaniel & Neely, contra.
   Bell, J.

This case arose in the municipal court of Atlanta upon a money-rule. The contest was between Carl Witt, on the one side, and David Kirsch, S. H. Mosely, and the Standard Tent & Awning Company, on the other side, all of whom were creditors holding judgments against C. Y. Bose and Harris-Bose Incorporated. The fund in controversy was awarded to Carl Witt, apparently for the benefit of Knothe Brothers Company, which company was not a party to the record, and the other lienholders, after unsuccessfully moving for a new trial and appealing to the appellate division, sued out a certiorari to the superior court. The certiorari being overruled and dismissed, they brought the case to this court for review. On May 4, 1926, Kirsch, Mosely, and the Standard Tent & Awning Company obtained judgments respectively, aggregating about five hundred dollars, against the common debtors, who were the tenants of Carl Witt. Witt had, on April 14, 1926, procured a distress warrant against such debtors for the sum of $1432.65. In that proceeding the defendants filed a counter-affidavit on April 17, and at the same time gave forthcoming and replevy bonds with the National Surety Company as security. On May 25, 1926, at the same term at which the other creditors had obtained their judgments as stated above, Witt obtained the following judgment in the distress-warrant proceeding: “The within case coming on for a hearing, judgment is rendered for the plaintiff, Carl Witt, and against the defendants, C. Y. Bose and Harris-Bose Incorporated, and National Surety Company, surety on bond, the sum of $1432.65, together with cost; and, by agreement of the parties, said sums are to be made, first out of the goods levied upon in this case, and secondly out of the defendants and their surety, National Surety Company.” The parties referred to in this judgment did not include the holders of the other judgments. The property which had been distrained and for which the forthcoming and replevy bonds had been given was sold on June 7 for about $1100. Fi. fas. were issued upon all the judgments and placed in the hands of the marshal. On a rule which proceeded at the instance of Witt, all the parties were heard and the entire fund was awarded to Witt’s claim. The evidence upon the hearing embraced the facts stated above and nothing more except a letter written by Knothe Brothers Company, of New York 0%, to Harry L. Greene, of Atlanta, attorney for the landlord, which read as follows: '“May 17, 1926. Replying to yours of the 14th. Tell the landlord that you can assure him that he will make up any deficiency. There is no use having the goods and fooling with the thing any longer.”

We think the court erred in not distributing the fund ratably among the several lienholders. “A distress-warrant is final process until arrested by counter-affidavit and replevy bond. Gober v. Barry, 4 Ga. App. 4, 6 (60 S. E. 807). But when the defendant replevies the property the levy becomes functus, and the proceeding is converted into an ordinary action for rent, with the bond standing as security in the event of a judgment for the plaintiff. Stephens v. McNaughton, 8 Ga. App. 42, 43 (68 S. E. 459). In such a proceeding the form of the verdict or judgment is general, and is for the amount found to be due. Hardy v. Poss, 120 Ga. 385 (47 S. E. 947). If the counter-affidavit is dismissed, the distress warrant at once beeomeh again operative as final process. Griggs v. Wilbanks, 96 Ga. 744 (22 S. E. 327). But when it stands and the property is released under the affidavit and bond, the question of lien is not involved, and the plaintiff’s recourse at the end of the suit will be upon his judgment on the' bond. Rountree v. Rutherford, 65 Ga. 444 (2), 448; Davis v. DeVaughn, 7 Ga. App. 326 (66 S. E. 956).” Andrews v. Sims, supra. See also Chisholm v. Lewis, 66 Ga. 729; Elam v. Hamilton, 69 Ga. 736; Swain v. Nasworthy, 2 Ga. App. 253 (2) (58 S. E. 492). The judgment which the landlord elected to take was not prior in date nor superior in rank to that of the other judgments. The lien on the property which attached upon the levy of the distress^ warrant was released upon the execution of the replevy bond, and this bond stood in lieu of the lien unless the plaintiff in that proceeding elected, under the terms of the act of 1920 (Ga. L. 1920, 147), to “proceed against the property so levied upon.” This was not his election, but as between himself and the principal and surety on the replevy bond he simply agreed that the amount of his judgment should be made first out of the goods, and secondly out of the defendants and their surety.

- The act of 1920 provides that whenever the tenant in a distress warrant for rent desires to take possession of the property levied upon, it shall be the duty of the levying officer to take a bond for the delivery of the property at the time, and place of the sale, provided it shall be subject to the rent, and that such bond is in addition to the replevy bond required by law in such cases. The. act further provides that “if the tenant shall file a counter-affidavit to said distress warrant requiring the giving of a replevy bond as now provided by law, it shall be lawful for the levying officer to accept the same security on both bonds, and on the trial of the case the plaintiff shall elect whether he will take a money verdict or whether he will proceed against the property so levied upon.” All judgments rendered at the same term of court shall be considered, held, and taken to be of equal date, and no execution shall be entitled to any preference by reason of being first placed in the hands of the levying officer. Civil Code (1910), § 5944. Whether the lien which attached on the levy of the distress warrant would have continued in force had the landlord elected to proceed against the property as provided in the act is not in this case decided. Having failed to make such election, the landlord is bound by the law as it existed prior to this act. The judgments, having all been rendered at the same term, were of equal date and of equal rank and dignity.

It is argued by counsel for defendant in error that Knothe Brothers Company held claims against the common debtors in large sums, and that inasmuch as the debtors were in failing condition and ought to have had on hand a large stock of goods with which to meet their indebtedness, this-company caused the replevy bond to be given in order that it might investigate the affairs of the debtors in the interest of its claims, promising to indemnify the National Surety • Company, the security on the bond, against loss upon such undertaking. Upon this promise, it is contended that if the funds should be prorated among the several creditors, the deficiency in the amount awarded to Witt, the landlord, must be borne by Knothe Brothers Company, and that it would be unjust and inequitable thus to penalize the diligent creditor. Whether our judgment would be different if the facts to which we have just referred were shown in the record, we find nothing whatsoever in substantiation thereof except the letter to Mr. Greene, quoted above. Whatever may be the meaning and effect of this letter, it is dated exactly thirty days after the filing of the counter-affidavit and bonds in the distress warrant proceeding, and hence could not possibly be construed as showing that Knothe Brothers Company became responsible for any loss that might be sustained by the surety on either of such bonds. It is true that money rules are in the nature of equitable proceedings and that the court must award the money in the hands of the officer to the person equitably entitled to it. Coleman v. Slade, 75 Ga. 61 (15); Hinton v. Burns, 20 Ga. App. 467, 469 (93 S. E. 120); Thrash v. Harman, 21 Ga. App. 98 (94 S. E. 54). But in this case we see no equities either in favor of Witt or in favor of Knothe Brothers Company, which company was never a party to the case, superior to the claims of the plaintiffs in error.

The judgment in favor of Witt does not show expressly upon which of the bonds it was predicated. We are holding that it was based upon the replevy bond, for the following reasons: An election to proceed against the property • would have relieved the replevy bond entirely and placed the liability altogether on the forthcoming bond, and even the latter bond would have been satisfied if the property was forthcoming at the time and'place of the sale. Furthermore, in the ordinary course, a judgment could not be taken on the forthcoming bond in the main action, but a separate suit would be required as for a breach thereof if the property was not forthcoming, although as to a replevy bond the rule is otherwise. Again, the property was treated as being in custodia legis; hence there was no breach of the forthcoming bond. From any viewpoint, the judgment appears to have been taken on the replevy bond, and, this being true, there was no election to proceed against the property within the meaning of the act of 1920. In the absence of such election, that statute is immaterial.

We think that the fund in controversy should have been distributed ratably among all the judgments, and we accordingly reverse the judgment.

Judgment reversed.

Jenlcms, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    18074.
    Rogers v. Hardin.
    Appeal and Error, 4 C. J. p. 858, n. 3.
    Executions, 23 C. J. p. 602, n. 28; p. 603, n. 57; p. 609, n. 51.
    Decided November 18, 1927.
    Claim; from city court of Oglethorpe—Judge Greer. March 9, 1937.

      Jule W. Felton, for plaintiff in error. John B. Gnerry, contra.
   Bell, J.

On the trial of a claim case, where the issue is the bona fides of transactions between the defendant in execution and the claimant, and where there are circumstances which, if not satisfactorily explained, may be regarded, as badges of fraud, the findings of the jury on the issue can not be disturbed by this court on the general grounds only. Dumas v. Barnesville Bank, 36 Ga. App. 810, 811 (138 S. E. 243). The testimony of the claimant, having disclosed circumstances which the jury were authorized to regard as badges of fraud, did not demand a verdict in his favor. Compare Redd v. Lathem, 32 Ga. App. 214 (123 S. E. 175); Blount v. Dunlap, 34 Ga. App. 666 (4) (130 S. E. 693); Kelly v. Gates, 36 Ga. App. 763 (138 S. E. 280).

Judgment affirmed.

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


text:
    18084.
    Alexander v. Richardson.
    Agency, 2 0. J. p. 932, n. 2; p. 935, n. 27; p. 939, n. 43; p. 940, n. 44, 48; p. 944, n. 96, 97; p. 954, n. 83; p. 956, n. 84.
    Appeal and Error, 4 0. J. p. 962, n. 43.
    Attorney and Client, 6 C. J. p. 759, n. 76; p. 763, n. 28.
    Evidence, 22 C. J. p. 978, n. 74.
   Bell, J.

1. “Declarations of an alleged agent are not by themselves admissible to prove agency, but it may be established by proving circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances, independently of. and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as a part of the res gestae of the transaction, be considered.” Collier v. Schoenberg, 26 Ga. App. 496 (106 S. E. 581); Render v. Kill, 30 Ga. App. 239 (117 S. E. 258).

2. While it is the safer and better practice in all cases to require proof of the agency before admitting the declarations of the alleged agent under the rule referred to in the preceding paragraph (Abel v. Jarrati, 100 Ga. 732 (2), 28 S. E. 453), yet where, after such declarations have been prematurely and improperly admitted, there is further evidence which amply authorizes a finding that the agency existed, the error in admitting the declarations will not ordinarily require a new trial. Mackle Construction Co. v. Hotel Equipment Co., 25 Ga. App. 137 (102 S. E. 868); Indiana Fruit Co. v. Sandlin, 125 Ga. 222 (5) (54 S. E. 65); Jones v. Harrell, 110 Ga. 373, 381 (35 S. E. 690); Rome Ins. Co. v. Thomas, 11 Ga. App. 539 (75 S. E. 894).

Decided November 18, 1927.

Complaint; from city court of Oglethorpe—Judge Greer. February 24, 1927.

J. J. Bull & Son, for plaintiff in error.

John M. Greer, contra.

3. In this suit by an attorney at law against his former client to recover for his services in defending a suit to which such client was a party defendant, the client, being a married woman, testified that she had, by a written power of attorney which was in evidence, appointed her husband as agent to transact her “general business,” but that the power of attorney had been revoked and cancelled “about 1922.” Her husband testified that the revocation was made at about the same time, and that a third person named drew this revocation. The person referred to as having drawn the papers, however, testified that to his recollection the transaction was some time in 1924. The attorney’s services for which the instant suit was brought were engaged and rendered in the first part of the year 1922, and the attorney contended that he had been employed to perform the same by the present defendant’s husband acting as her agent. Held, that the evidence authorized the inference of authority in the husband to procure the attorney’s services at the wife’s cost.

4. The testimony of the attorney to the effect that the suit in which the services were rendered resulted in a verdict in his client’s favor was not subject to the objection that the verdict was the highest and best evidence of such result, there being -no effort to show the eontenis of the verdict by parol. Borders v. City of Macon, 18 Ga. App. 333 (89 S. E. 451); Armour v. Bluthenthal, 9 Ga. App. 707 (2) (72 S. E. 168).

5. The fact that the attorney wrote to the husband, requesting payment of his, fee, did not, in view of the other evidence, demand the inference that the alleged contract of employment was with the husband, and not with the wife through the husband as agent.

0. The evidence authorized the verdict in favor of the plaintiff, and none of the grounds of the motion for a new trial show reversible error.

Judgment affirmed.

Jmkins, P. J., and Stephens, J., eoneur.


text:
    18087.
    LaGrange Lumber & Supply Company v. Farmers & Traders Bank.
    Appeal and Error, 4 C. J. p. 934, n. 56.
    Bills and Notes, 8 C. J. p. 255, n. 91; p. 256, n. 93, 97.
    Corporations, 14a C. J. p. 459, n. 72, 73.
    Evidence, 22 C. J. p. 1089, n. 31; p. 1091, n. 39; p. 1092, n. 40; p. 1248, n. 29.
    Trial, 38 Cyc. p. 1565, n. 83.; p. 1574, n. 21.
   Bell, J.

1. Where a portion of a plea was stricken on demurrer, but thereafter substantially the same matter was restored’ to the plea by amendment and the defendant was allowed full opportunity to prove the defense therein alleged, the error, if any, in the first ruling was cured. Compare Hagedorn v. Zemurray, 28 Ga. App. 807 (113 S. E. 244); Western & Atlantic R. v. Reed, 35 Ga. App. 538 (3) (134 S. E. 134).

2. In a suit on an unconditional promissory note, by an indorsee against the maker, it is not permissible for thg defendant to show a prior or contemporaneous oral agreement among all the parties that only the indorser would be liable and that the note would never be enforced against the maker. Pulliam v. Merchants Bank, 33 Ga. App. 68 (125 S. E. 509).

3. In a suit upon a note executed in behalf of a corporation by one as manager, the corporation having authority under its charter to issue negotiable paper in the due and ordinary course of its business (Jacobs Pharmacy Co. v. Southern Banking &c. Co., 97 Ga. 573, 25 S. E. 171), it is no defense that by reason of a by-law, not known to the plaintiff, only the president could execute notes in behalf of the corporation. Civil Code (1910), § 2225; Raleigh &c. R. Co. v. Pullman Co., 122 Ga. 700 (7) (50 S. E. 1008); Johnson v. Waxelbaum Co., 1 Ga. App. 511 (3) (58 S. E. 56); American Investment Co. v. Cable Co., 4 Ga. App. 106 (2) (60 S. E. 1037); Eminent Household of Columbian Woodmen v. Benz, 11 Ga. App. 733 (76 S. E. 99).

4. Where T., a corporation, is indebted to L., another corporation, on an account which it is unable to pay at once, and where L., being in need of funds and desiring to close the account, makes and delivers its notes payable to T. under an agreement that T. is to indorse and discount them and forward the proceeds to L. for credit upon the account, the notes, where the agreement has been executed, are not wanting in consideration nor to be classed as accommodation paper. It follows that in a suit against L., the maker, by a bank which had discounted the notes at the instance of T., proof of the above facts and of knowledge thereof by the plaintiff at the time it acquired the notes would not support a plea denying that the plaintiff was an innocent holder and alleging that the defendant executed.the notes as a mere accommodation for the other company, and that, - being a corporation and having no authority under its charter to issue accommodation paper, it was not bound. Civil Code (1910), § 4242; 8 C. J. 255, 256.

Decided November 18, 1927.

Complaint; from city court of LaGrange—Judge Tuggle. March 8, 1927.

E. T. Moon, for plaintiff in error.

' Lovejoy & Mayer, Herbert J. Haas, contra.

5. Applying the above principles to the facts of this case, none of the court’s rulings, either upon the pleadings or upon the admissibility of evidence, constitute reversible error; the verdict for the plaintiff was demanded as a matter of law, and the court properly gave direction accordingly.

Judgment affirmed.

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


text:
    18165.
    Leidy v. Gould et al.

    Evidence, 22 C. J. p. 308, n. 76; p. 316, n. 46, 50.
    Partnership, 30 Cyc. p. 391, n. 82, 83’; p. 392, n. 84; p. 393, n. 87, 90; p. 406, n. 74; p. 409, n. 91; p. 570, n. 72; p. 591, n. 21.
    Trial, 38 Cyc. p. 1556, n. 9.
   Bell, J.

1. Where one allows the continued use of his name as partner after retiring from a particular business, and thereby induces another to deal with the business as a partnership, such ostensible partner will be estopped to deny the partnership relation as to acts within the ordinary scope of such business. Civil Code (1910), § 3157; Barnett Line v. Blackmar, 53 Ga. 98; Sankey v. Columbus Iron Works, 44 Ga. 228 (2); 30 Cyc. 390. But, in order to hold the ostensible partner liable, the contract must be in relation to and in the scope of that particular business or adventure which the retiring partner knowingly allowed. Civil Code (1910), §§ 3180, 3182; Sargent v. Henderson, 79 Ga. 268 (5 S. E. 122).

2. Where one permits the use of his name as a partner in an insurance business only, and this business, without the knowledge or consent of the ostensible partner, is enlarged into a real estate business, a person dealing with another of the partners in a matter pertaining to the latter business can not hold the ostensible partner liable without showing that he consented to, acquiesced in, or ratified the transaction. In the instant ease it appears from the evidence that G. and T. were associated as partners in conducting an insurance agency in the City of Macon, and' that nothing else was contemplated. G., in 1922, changed his residence to another State, but permitted T. to continue the business under the name of the partnership. Later T. moved the office to a new location, took out a license to engage in the real-estate business, and operated the same, all in the name of the firm, which name he advertised at the new office as being engaged in such business. G., being at the time located in another State and having no knowledge of such enlargement of the business by T., and not haying subsequently ratified the same, was not liable in a suit against the firm on a contract made between the plaintiff and T. alone, having no reference to the insurance business but falling solely within the real-estate business. Sibley v. American Exchange Bank, 97 Ga. 126 (25 S. E. 470); Sargent v. Henderson, supra; Hollister v. Bluthenthal, 9 Ga. App. 176 (7) (70 S. E. 970).

3. “The sayings of one who admitted himself to be a partner were not admissible to prove that another, who denied being a partner, was in fact such.” Ford v. Kennedy, 64 Ga. 537; Shaw v. Jones, 133 Ga. 446 ( 4) (66 S. E. 240). So the trial court correctly excluded from evidence letters written by T. for the purpose of showing that the partnership between him and G. embraced the real-estate business. Declarations of a partner are no more competent to show the extent of a partnership than to show the existence of a partnership. Thompson v. Mallory, 108 Ga. 797 (2) (33 S. E. 986). This rule is applicable even though the declarations were in a letter from the declarant to the partner whom it is sought to hold, where the letter was written long after the occurrence of the transaction in controversy and the circumstances disclosed no duty upon the addressee to repudiate or deny the statements so made against him.

4. The partner whom the plaintiff sought to hold liable in this case did not deny the existence of a partnership for a certain limited purpose. After the controversy arose with respect to his liability, he entered into a written agreement with the plaintiff for the rental of the house which was indirectly a part of the subject-matter of the dispute between them. . This agreement appears upon its face to have been made for the purpose of saving one or the other of the parties from loss pending the adjustment of their differences. It was signed in the name of the partnership and stipulated that it was “entered into without prejudice to the rights of any of said parties, and the fact that said property has been rented, as aforesaid, and the proceeds applied as aforesaid, shall never be held or construed as an admission against the interest of any of said parties.” Held, that the court did not err in excluding such agreement from evidence. Not only was it an agreement in the nature of a compromise, but it contained the solemn stipulation that the instrument should not be construed as an admission against either of them, and no reason appears why such agreement should not be enforced.

5. Applying the above principles, the evidence introduced, together with that which was offered but which the court rejected, would have failed to establish any right of recovery in the plaintiff, either against the partnership or against that partner who did not participate in the transaction in question. The case was properly nonsuited not only as to this partner but also as to the partnership. Under any view of the facts, the transaction was beyond the ordinary scope of the insurance business, and the undertaking amounted to a mere personal undertaking on the part of T., the acting partner. Though the defense was filed by G. in his individual capacity, the same rulings which substantiate his individual defense would show nonliability of the firm, and the court did not err in dismissing the case in toto, where the acting. partner was not personally served. Peoples Bank v. Smith, 114 Ga. 185 (39 S. E. 920).

Decided November 18, 1927.

Complaint; from Bibb superior court—Judge Malcolm D. Jones. April 11, 1927.

B. D. Feagin, J. F. Urquhart, for plaintiff in error.

Martin, Martim, & Snow, contra.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    17953.
    ROBINSON v. BELCHER.
    1. Generally speaking, the object of the signatures of both parties to a contract is to show mutuality, but this may be shown in other ways. Thus, where the person sought to be charged has signed, an acceptance by the opposite party renders the agreement operative. An acceptance of the agreement as thus signed, unless otherwise legally impeached, will be inferred from the receipt by the opposite party of the benefits flowing to him under the contract as written. Robson v. Weil, 142 Ga. 429, 431 (83 S. E. 207); Aspvronal Laboratories v. Rosenblatt, 34 Ga. App. 255 (3) (129 S. B. 140).
    2. Where the petition in a suit on an alleged oral contract, for the unpaid balance of the purchase price alleged to be due for goods sold and delivered, indicates that when the goods were delivered at the ' warehouse of the defendant, the plaintiff received an order drawn on the defendant, signed by the defendant’s warehouse agent, for the payment of the described commodity in a named quantity and at a stated price, and that the plaintiff thereafter presented the order to the defendant and received payment for the commodity previously delivered at the price and in the quantity named in the order, thereupon receiving from the defendant another memorandum, signed by the defendant through his agent, setting forth such payment for the named commodity in the same quantity and at the same price as had been specified in the previous order, the plaintiff will not be permitted, without attacking the validity of such memoranda, to vary the terms of the binding contract, as thus reduced to writing in its entirety, by showing a contrary previous oral agreement under the terms of which the price set forth by the terms of the written memorandum, thus signed and accepted, was not intended to constitute the full purchase price. The rule would be different if the memorandum evidencing the terms of the accepted and executed contract had indicated that it was not intended to speak the whole contract. Had such been the case, parol evidence would have been admissible to supply any deficiency not inconsistent with the written terms actually expressed. Roberts v. Investors Savings Oo., 154 6a. 45, 52 (113 S. E. 398); Gibson v. First Rational Bank, 158 6a. 350 (123 S. E. 606).

      Accord and Satisfaction, 1 C. J. p. 528, n. 69.
    Contracts, 13 C. J. p. 276, n. 80; p. 305, n. 76, 77, 79, 80; p. 714, n. 78.
    Evidence, 22 C. J. p. 1098, n. 96; p. 1248, n. 29; p. 1283, n. 93; p. 1286, n. 1.

      3. Under the rules of law above indicated, the court should have sustained the general demurrer to the petition.
    Decided November 19, 1927.
    Complaint; from city court of Cairo—Judge Rigsby. December 16, 1926.

      8. P. Gain, for plaintiff in error. W. H. Duckworth, contra.
   Jenkins, P. J.

C. C. Belcher brought suit against W. H. Robinson, alleging that about June 10, 1923, he entered into an oral contract with the defendant, whereby he agreed to sell to the defendant his entire crop of collard seed for that year, and to accept, upon delivery of the seed, payment at 13 cents per pound, and to accept the verbal guarantee of the defendant to pay him, in consideration of the delivery of such seed, such sum, in addition to the payment provided for on delivery of the seed, as would make the total payment equal the greatest price per pound received by members of the collard seed association at Cairo for seed grown that year; that the defendant contracted'and agreed to pay the plaintiff 13 cents per pound for all of his collard seed grown during that year, and to offer to pay him such additional sum as would bring the entire purchase-price up to the greatest price received by members of the collard seed association; that pursuant to the contract he delivered to the defendant 5173 pounds of collard seed, and the defendant’s agent to whom the seed were delivered furnished him for each wagon-load of seed a ticket as follows:

“Cairo, Georgia, June 19, 1923. Payable only at office W. H. Robinson.

“Mr. C. C. Belcher. Commodity—Collard Seed Wagon-load gross wt. Tare wt.

“Net wt. 2,359—price 13$. C. B. W. Warehouseman.”

Plaintiff received three such tickets, the aggregate weights of the loads therein receipted for being 5173 pounds. When the deliveries were completed the defendant took up the tickets issued by the warehouseman, and paid the plaintiff for all of the seed at 13 cents per pound, issuing to him a writing as follows:

“Cairo, Ga. June 30, 1923. Bought of Mr. C. C. Belcher “5173 lbs. collard seeds at 13$, $672.49. Credit account, 672.49.

“W. II. Robinson per R. L. F.”

It is alleged that the collard seed association at Cairo paid its members thirty cents per pound for seeds harvested from the crop planted in that year, and that the defendant therefore owes the additional sum of 17 cents per pound for all of the collard seed delivered. It is alleged by paragraph 6 of the petition that “the contracts or agreements set out in paragraph 1 hereof were either two contracts, else one with two complete clauses and binding obligations, the first being absolute and unconditional, the latter being conditional upon first the performance of the first, then upon price paid by the association, the performance of the first on the part of plaintiff furnishing consideration for the second; and it is upon the latter that this suit is based, the former having been completely performed and fulfilled.”

The defendant interposed a general and special demurrer, contending thereby that the petition failed to set forth a cause of action and that the allegations showed a valid written contract between the parties, which had been fully performed, and that the suit seeks to vary the terms of the written contract. By the special demurrer it is contended that the allegations setting out the contract, and those of paragraph six, above quoted, setting out the plaintiff’s construction of the contract and. the promise upon which the suit is based, are “vague, indefinite, and contradictory, in that it is alleged that the suit is based on one or more contracts, and does not’ in a positive manner allege the cause of action sued on, in that it alleges that the cause of action consists of one contract or two contracts.” To an order overruling the demurrers exception was taken.

Counsel for defendant in error, in his able and ingenious brief and argument, sets forth the contention that since there can be several independent clauses of a contract, satisfaction of one will in no wise alter or satisfy the others. He cites, in this connection, National Duck Mills v. Catlin, 10 Ga. App. 240 (73 S. E. 418), and Carlton v. W. & A. R. Co., 81 Ga. 531 (7 S. E. 623). In the Garlion case ,the Supreme Court held that a person was not bound by his relinquishment of damages based upon a receipt for wages to which he was unquestionably entitled, there being, in such a case, no consideration for the relinquishment. The contention, as applied to the instant case, is that the plaintiff should not be debarred from collecting the alleged balance of the purchase price under one phase of the alleged agreement because he had accepted the initial portion of the purchase price under another phase of the contract amounting to an independent obligation. As we see it, the trouble with this reasoning is that the suit is maintained for an alleged unpaid portion of the purchase price of the seed; that what constitutes the purchase price is the only question that the petition seeks to determine, and that this question is settled conclusively by the unattacked memoranda attached to to the petition, amounting to a fully executed valid written contract between the parties, which sets forth the purchase price of the commodity as being that which the plaintiff has already had and received. These memoranda do not undertake, as in theCa/i'lton ease, to extinguish an independent disputed liability in consideration of the satisfaction of another which is undisputed. They merely set forth the complete terms of a contract of purchase and sale, including the price which the plaintiff was to receive," and in fact did receive.' The averments of the petition which refer to the alleged prior oral contract do not, as in the Carlton case, set up two separate, distinct, and independent claims, but both the conditional and unconditional portions of the purchase price together constitute the amount that the defendant was due in exchange for the commodity furnished. 'If the memoranda fix and determine the purchase price, parol evidence of a previous oral understanding with reference thereto can not be employed to enlarge, alter, or contradict such terms of the instruments. Counsel cites also the ruling made by the Supreme Court in the case of Armour v. Ross, 110 Ga. 403 (35 S. E. 787). The seventh division of the syllabus in that case is as follows: ’“If one who has two entirely distinct demands against another accepts payment of one and gives a receipt therefor, there being at the time no mention of the other or any attempt whatever to settle or adjust it, a mere recital in the receipt that it is cin full payment of all claims to date Of whatsoever nature5 is without consideration so far as relates to the unsettled demand, and does not estop the person signing the receipt from afterwards asserting that demand, nor render it incumbent upon him before so doing to refund the money received upon the claim as to which there is no dispute.55 We are unable to see that the principle of law just quoted is such as can aid the plaintiff vendor in the instant case. Here, as has already been said, the suit is undoubtedly maintained for an alleged unpaid portion of the purchase price of the collard seed. That a portion of the contract price remains unpaid is the basis of the complaint, and constitutes the gravamen of the suit. It follows, therefore, if the memoranda, as we have construed them, unequivocally show that the purchase price was a fixed sum, and that it was received and accepted as such by the vendor, which is undisputed, he can not thereafter be allowed to set up a prior oral agreement for the purpose of showing that the purchase price thus paid and accepted was not the true purchase price, but was a different and greater sum. In the Armour case the receipt did not purport to deal with the subject-matter of the demand set forth by the petition, but with “entirely distinct demands,” whereas in the instant case the unattacked memoranda attached to the plaintiff’s petition expressly deal with the precise subject-matter that the petition does, to wit, the amount of the purchase price of the seed. If by the terms of the memoranda reference had been made to a prior contract of purchase and sale, or if the price which was to be paid for the commodity had not been expressly stipulated, there would then have been no reason why the previous oral contract could not be established, but since the memoranda purport to be, and in fact are, complete and explicit in every essential term and element of the purchase and sale, the party who first accepted and then collected the order memoranda, without in any way attacking their validity, is as much bound by their terms as was the party who signed them. It makes no difference whether a written instrument be styled an order, receipt, memorandum, or what not, provided it evidences and sets forth a complete, unambiguous contract between the parties. If it does, then any such instrument is subject to the same rules as govern ordinary contracts in writing,1 and its stipulations can not be contradicted by evidence of a prior or contemporaneous parol agreement inconsistent with the written terms actually expressed. Southern Bell Telephone &c. Co. v. Smith, 129 Ga,. 558 (59 S. ,E. 215); Pennsylvania Casualty Co. v. Thompson, 130 Ga. 766 (61 S. E. 829). In the instant case, the writing either sets forth the purchase price, that is, the entire purchase price, or the stipulation as to purchase price has no meaning at all. Since, as we construe it, there is no possible soft of ambiguity or incompleteness with reference to every essential element of the contract, including the amount of the purchase price as stated, any attempt to contradict the stipulation with reference to the stated purchase price by showing that the unimpeached writing does not express the truth with reference thereto, but that, under a prior oral understanding, the true and correct purchase price was a much larger sum than the one expressed, would be unauthorized.

It is contended that before the writings can operate to limit the amount which the seller was entitled to recover under the alleged prior oral contract, they must amount to an accord and satisfaction of the previous oral agreement, based upon a valid consideration. It is true that in order to enforce an executory contract set up by way of accord and satisfaction for the purpose of altering a previous valid agreement,' it is necessary that the accord and satisfaction, like all other contracts, be supported by a consideration. Riley v. London Guaranty &c. Co., 27 Ga. App. 686 (109 S. E. 676). However, where the subsequent written agreement does not purport to operate as an accord and satisfaction, and makes no reference to any prior oral stipulation, but where the writings constitute, in and of themselves, a full and complete contract, so as to supersede or extinguish any previous contrary oral understanding, it is begging the question to attack the validity of the written instrument because inconsistent with the terms of a previous oral agreement, thus rendered invalid and incapable of proof. The whole difficulty with respect to enforcing the alleged prior contradictory oral contract is that when it is shown to run counter to the terms of a complete subsequent written contract, the oral agreement becomes of no force and effect whatever, and so remains unless and until the written agreement is otherwise successfully attacked. See generally Reid v. Diamond, 85 Federal 193 (2); 5 Wigmore, Evidence, § 2430 (3). It does not appear that the ruling made by this court in Goldsmith v. Marcus, 7 Ga. App. 849 (68 S. E. 462), has application here, since in the present ease the petition shows that the plaintiff accepted the writings and handled them by having them cashed, and under these circumstances, in the absence of any allegation to the contrary, it should be presumed, construing the petition most strongly against him, that the plaintiff actually knew of their contents. No question is presented, and no opinion is expressed or intimation given, as to whether or not it would be possible for the plaintiff to successfully attack the writings as having 'been accepted inadvertently.

Judgment reversed.

Bell, J., concurs. Stephens, J., dissents.


text:
    17990.
    City Council of Augusta v. Lamar.
    Damages, 17 O. J. p. 711, n. 35; p. 1000, n. 59.
    Eminent Domain, 20 O. J. p. 643, n. 84; p. 666, n. 2; p. 672, n. 20; p. 1152, n. 13; p. 1162, n. 22; p. 1190, n. 65; p. 1191, n. 85; p. 1192, n. 89; p. 1199, n. 35; p. 1209, n. 45; 47 New.
    Nuisances, 29 Cye. p. 1160, n. 54.
    Pleading, 31 Cyc. p. 78, n. 95; p. 84, n. 28; p. 289, n. 60; p. 291, n. 71; p. 322, n. 17.
   Jenkins, P. J.

1. Under.tlie constitution of tlie State of Georgia, “private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.” Civil Code (1910), § 6388. Accordingly, if property is damaged, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes. Mayor &c. of Albany v. Sikes, 94 Ga. 30 (20 S. E. 257, 26 L. R. A. 653, 47 Am. St. R. 132) ; Sheppard v. Ga. Ry. & Power Co.) 31 Ga. App. 653 (121 S. E. 868); Mayor &c. of Macon v. Daley, 2 Ga. App. 355 (58 S. E. 540).

2. In such a case,—that is, where the public authorities properly erect and properly maintain the • improvements authorized by law,—an action in tort is not maintainable by the owner of damaged property on the theory that the act of the- public authority amounts to the maintenance of a continuing, abatable nuisance, such as would authorize periodical recoveries for subsequently accruing consequential damages, since “that which the law authorizes to be done, if done as the law authorizes it to be done, can not be a nuisance.” Burrus v. Columbus, 105 Ga. 42, 46 (31 S. E. 124); Bacon v. Walker, 77 Ga. 336; Farkas v. Towns, 103 Ga. 150, 156 (29 S. E. 700, 68 Am. St. R. 88); Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, 754 (65 S. E. 844); Sheppard v. Ga. Ry. & Power Co., supra. In such a case the only right of action maintainable is that conferred by the quoted provision of the constitution. It does not sound in tort, and the recovery permitted is strictly limited to the direct damage inflicted by diminishing the market value of the property damaged, as measured by the difference in its market value before and immediately after the construction of the public works, excluding all consequential damages subsequently accruing, such as, might be recoverable in an action sounding in tort, based on the maintenance of a continuing, abatable nuisance.

3. “While, as a general rule, allegations of fact are to be construed most strongly against tlie pleader, yet, in the absence of special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate,! although appropriate, to another form of action, and where, the petition is ambiguous to the extent that the pleader’s intention is not clearly manifest as to which form of action is relied upon, the courts in such a case, in endeavoring to ascertain the plaintiff’s intention, will prima facie presume that his purpose was to serve his best interest, and will construe the pleadings so as to upliold and not to defeat the action.” Stoddard v. Campbell, 27 Ga. App. 363 (3) (108 S. E. 311).

4. In accordance with the rule just stated, the present petition will not be construed as an unauthorized attempt to recover subsequently accruing consequential damages on account of the maintenance of a continuing, abatable nuisance, but will be construed as an action to recover just and adequate compensation on account of property having been damaged for public purposes, in furtherance of an enterprise au- ■ thorized by law. Such damages, under the facts stated, the plaintiff is entitled to set up and to recover upon proving his case as laid, provided the defendant does not invoke and sustain a bar by the statute of limitations.

5. A petition which sets forth a cause of action, including a claim for damages such as would properly flow to the petitioner under the case as laid, but which states a wrong method or measure by which the amount of such damages is arrived at, is subject to special demurrer, but not to a mere general demurrer, since it is permissible, on the trial of the ease, to prove the proper damages alleged and to measure them according to the true and correct method. Ford v. Fargason, 120 Ga. 708 (6) (48 S. E. 180); Bank of Bullochville v. Riehle, 36 Ga. App. 470, 474, (137 S. E. 642).

6. The nature and character of the damages to which a plaintiff is entitled under his cause of action as laid, and the method or measure to ■be employed in assessing their amount, are not, however, synonymous terms. Thus, in a case like the instant one, where any recovery authorized is limited to direct damages, that is, damages such as “follow .immediately upon the act done” (Civil Code of 1910, § 4508), and which are to be measured by the difference between the market value of the property before and. immediately after the construction of the public works, a recovery can not be had under a petition which makes no claim for damages of such character, but limits the nature and basis of the recovery sought to subsequently accruing consequential damages, arising through the intervention of other agencies and measured by the value of specified portions of certain real and personal property later destroyed by reason of the joint operation of defendant’s prior erection of the public works and such intervening agency. Civil Code of 1910, § 4508. He can not, in the absence of any immediate diminution in the market value of his property, await the results of time and tide, and then sue on a certainty for some particular subsequent damage to some particular personal property or some portion of the realty, ■ wrought by some particular flood or storm. Such would be a plaintiff’s right in an action for damages caused by a continuing, abatable nuisance, but not here. In the instant case it is not a mere erroneous statement of the measure by which the amount of Iproperty damage is to be determined, but the trouble lies in the fact that in such a suit damages of the nature and character sought, however they might be measured, are not recoverable at all. Since the plaintiff, in the only sort of action he is permitted to employ, is not entitled to recover nominal damages, as is ordinarily his right in action for a tort or in suits for the breach of a contract (Twin City Lumber Co. v. Daniels, 22 Ga. App. 578, 587 (4), 96 S. E. 437), and since he is not entitled to the consequential damages for the recovery of which his petition is limited (Wright v. Smith, 128 Ga. 432 (3), 57 S. E. 684), he can not recover at all under the petition as brought. In order to set forth a cause of action of this character, not only must the erection of a public work be shown, but it must be indicated that such legally authorized' construction has actually resulted in direct damage to the plaintiff’s property by diminishing its market value.

Decided November 19, 1927.

Damages; from Richmond superior court—Judge A. L. Franklin. January 1, 1927.

Statement oe facts by Jenkins, P. J.

Lamar sued the City Council of Augusta for the value of certain gathered crops and a building, located on an island owned by him, in the Savannah river, near to and above the City of Augusta, which he alleges were inundated and destroyed by flood - waters of the river. He alleges that the City of Augusta constructed a levee along the banks of the river, near to and below the island, in order to prevent the overflow of the river at flood stage into the city; that the levee serves to confine the river, in Hood stage, within narrow limits and prevents the waters from expanding out over the banks, resulting in the increase of the natural level of the water; that about January 15, 1925, and for about a week thereafter, the waters of the river reached an abnormal height, due to continuous and excessive rains, and by reason of being thus constricted by the levee built by the city, with the result that the island was completely inundated, and that the crops and building, the value of which are sued for, were washed away and destroyed, damaging the plaintiff in the sum of $4250, of which $1000 is represented by the value of the building, and $3250 by the value of the gathered crops. The city filed a general and special demurrer, setting forth that the levee was built by the city in pursuance of an act of the General Assembly of 1909; that there was no legal duty upon the city to protect the island belonging to the plaintiff, and no allegation that the city was negligent in constructing the levee, or that the alleged damage to the plaintiff’s property resulted from any negligence of the city in the construction or maintenance of the levee; that the city, in building and maintaining the levee, was engaged in a governmental function, and is not liable except when such functions are exercised negligently; that the damages set forth are too remote and consequential to be the subject-matter of a recovery; that the petition shows that the proximate cause of the destruction of the plaintiff’s property was the unprecedented rainfall, for which the city is in no way liable. There is no demurrer to the failure of the petition to set forth the date when the levee was constructed. The court overruled the demurrers, and the defendant excepted.

7. The special demurrers do not raise the question whether the nature and character of the subsequently accruing consequential d’amages actually sought to be recovered are such as relate and pertain to a cause of action different in character to the only sort of action which it is permissible for the plaintiff to maintain. The general demurrer is, however, sufficient to raise the question whether, admitting all the allegations of the petition to be true, the plaintiff is entitled to recover any of the damages actually sought, however the amount thereof might be measured. Accordingly, the court was correct in overruling the special demurrers, but erred in failing to sustain the general demurrer to the petition as it now stands. The question is not before this Cburt for determination as to whether or not the plaintiff would be entitled to amend his petition as brought by setting up that the action of the public authorities depreciated the market value of his property, and claiming proper damages therefor. Wolfe v. Georgia Ry. & El. Co., 6 Ga. App. 410, 412 (65 S. E. 62); Civil Code (1910), §§ 5681, 5682; Charleston &c. Ry. Co. v. Miller, 115 Ga. 92 (41 S. E. 252); Rowland v. Kell Co., 27 Ga. App. 107 (107 S. E. 602).

Judgment reversed.

Stephens and Bell, JJ., concur.

Archibald Blackshear, for plaintiff in error.

Rodney 8. Cohen, contra.


text:
    18022.
    BUCKEYE COTTON OIL COMPANY v. CITIZENS BANK OF HELENA et al.

    This case is controlled by the ruling made by the Supreme Court in Williams V. Bennett, 158 Ga. 488 (123 S. E. 683). Here, as in the Williams case, the money sued for was not a general deposit, but was held by the bank under fiduciary relations between the parties, constituting it a trust fund to be applied to “a designated or specific purpose.” As such, under paragraph 5 of section 19 of article 7 of the hanking act (Ga. L. 1919, p. 159), as it then existed, it is entitled to priority of payment over general deposits which fall under paragraph 7 of that section and article, and the judgment setting up the claim should have established such priority.

      Banks and Banking, 7 C. J. p. 750, n. 60; p. 751, n. 78.

      Decided November 19, 1927.
    Complaint; from Telfair superior court—Judge Graham. January 29, 1927.
    Broch, Spcvrhs & Russell, for plaintiff.

      W. B. Smith, Luther Roberts, for defendants.
   Jenkins, P. J.

The Buckeye Cotton Oil Company brought suit against the Citizens Bank of Helena and the State superintendent of banks, in charge'of the bank for the purpose of liquidation, for the payment of $250, alleged to have been planed with the bank as a deposit for the, specific purpose of guaranteeing it against loss in handling the account of the agent of the plaintiff, setting up that it. was entitled to priority in the payment of the amount sued for under paragraph 5 of section 19 of article 7 of the'banking act (Ga. L. 1919, p. 159), which provides for payment of “debts due by the bank as trustee or other fiduciary and other claims of like character.” The case was submitted to the court for determination without a jury, and the proof shows that the plaintiff appointed an agent at the town of Helena to buy cottonseed for it during the season of 1924, and arranged with the defendant bank to pay orders drawn on the plaintiff by the agent, and given by him to persons from whom he bought seed for the purchase price thereof, the bank in turn drawing on the plaintiff for the amount of such orders paid by it. The agreement betwéen the plaintiff and the defendant bank is embodied in a letter written by plaintiff to the bank, which is as follows: “We have made a seed-buying contract with Mr. J. C. Beaty of your city, who wishes to handle his account through your bank, and we are asking if it will be satisfactory with you to make an arrangement whereby you may cash his seed tickets drawn on us, and you drawing on us with seed tickets attached. We, of course, will expect to make a small depqsit with you to guarantee payment of these drafts, which deposit will .remain in your bmh during the life of our contract with Mr. Beaty." (Italics ours.) Pursuant to this letter, a draft for $350 was drawn on the plaintiff by the cashier of the bank, the proceeds being deposited to the credit of the plaintiff with the bank. No checks were drawn on this account by the plaintiff, and the seed tickets cashed by the bank were not charged against it, such tickets being held as cash, and the bank .reimbursing itself for amounts paid thereon by drawing on the plaintiff with the seed tickets attached. 'The bank was taken over by the superintendent of banks for. liquidation in December, 1934, at which time it carried on its books to the credit of the plaintiff the amount thus deposited in the sum of $350. The defendants admitted liability, but contended that the plaintiff was only entitled to payment, under paragraph 7 of section 19 of article 7 of the banking act providing for the payment of “debts due to depositors and other contractual liabilities pro rata.” The court found in favor of the plaintiff for the amount, sued for, but held against its contention as to priority, ruling that payment should be made in accordance with the provisions of paragraph 7 of the statute quoted above, to which action the plaintiff excepts.

The judgment of the court below is affirmed with direction that it be amended to establish the priority indicated by the .syllabus. As the plaintiff in error obtains substantial relief by this decision, the costs of bringing up the case are taxed against the defendant in error.

Judgment affirmed with, direction. Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    18036.
    Metropolitan Discount Company v. Wardlaw.
    Appeal and Error, 4 O. J. p. 834, n. 65; p. 856, n. 85, 88.
    Bills and Notes, 8 O. J. p. 114, n. 44 New; p. 1046, n. 9; p. 1048, n. 21.
    Evidence, 22 O. J. p. 84, n. 66; 23 O. J. p. 40, n. 58.
    New Trial, 29 Oye. p. 830, n. 49.
   Stephens, J.

1. A witness, when unequivocally testifying to a fact, presumably testifies from bis own knowledge, in the absence of anything to the contrary. Shaw v. Jones, 133 Ga. 446 (3) (66 S. E. 240). Where a witness testifies that the note or acceptance sued, upon was indorsed by the payee over to the plaintiff, and there are no facts or circumstances appearing from the evidence to indicate that the witness did not speak from his own knowledge, the witness has presumably testified, from his own knowledge as to the fact of indorsement.

Decided November 19, 1927.

Complaint; from city court of Jefferson—Judge Ayers. February 25, 1927.

John J. Strickland, Rupert A. Brown, for plaintiff.

E. G. Stark, for defendant. .

2. A note or acceptance which is made payable to the order of the payee and indorsed by the payee and delivered to the transferee is a negotiable instrument. It is immaterial, in order to render the instrument 'negotiable, whether the words of negotiability precede or follow the name of the payee. A note which contains a provision that it is payable “to the order of” the payee therein named contains words of negotiability.

3. In a suiff by the holder of a promissory note, who is the transferee thereof, against the maker, a statement made by the payee, after the date of the transfer of the note, to the effect that the payee is the holder of the legal title to the note, is hearsay evidence and has no probative value as tending to disprove the plaintiff’s title. Harris v. Bank of Little Rock, 107 Ga. 407 (33 S. E. 404); Rabun v. Commercial National Bank, 21 Ga. App. 43 (93 S. E. 524).

4. It appearing conclusively and without dispute from the evidence that the plaintiff was a bona fide holder for value in due course of the acceptance sued on, the verdict found for the defendant was without evidence to support it, and contrary to law.

5. It also appearing conclusively and undisputed from the evidence that the articles for the purchase of which the acceptance was given had some value, and that therefore the defendant’s plea of a failure of consideration was unsupported by the evidence, the verdict for the defendant was without evidence to support it, and contrary to law. Harmon v. Block, 32 Ga. App. 700 (124 S. E. 548).

0. The court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

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


text:
    18050.
    Duggan v. Tarbutton.
    Partnership, 30 Oye. p. 711, n. 86; p. 716, n. 43.
   Jenkins, P. J.

It is the rule that one partner may sue another at law on a cause of action growing out of the partnership business, where there has been a settlement of the partnership affairs, and a balance struck, that is, where the affairs of the partnership have been so settled that a jury can, without an equitable accounting, ascertain the balance justly due by one partner to the other. Poole v. Perdue, 44 Ga. 454; Paulk v. Creech, 8 Ga. App. 738 (70 S. E. 145). The theory of this rule is that such a liquidation of the claims against and liabilities to the partnership renders the balance struck in favor of one of the partners a personal, rather than a partnership claim. Benton v. Hunter, 119 Ga. 381, 384 (46 S. E. 414). Applying the rule above indicated, where by the terms of a contract of dissolution all of the mutual liabilities and claims of the partners to and against the partnership are liquidated and settled, with the sole remaining provision that the retiring partner obligates himself to render a stated service for the benefit of the continuing partner, at an agreed price, and for a fixed term, to be paid for, however, by the former partnership, the assets of which were taken over by the continuing proprietor, upon the rendition of such services by the retiring partner, he can maintain a suit against the continuing proprietor for the portion of the amount fixed for such services as was represented by the latter’s former interest in the partnership. The stipulation of the contract of dissolution providing that the compensation of the retiring partner for the particular services was to be paid by the former partnership merely operated to limit the amount of liability of the continuing proprietor, and did not necessitate an equitable accounting of the already liquidated partnership affairs, and did not make the claim for services thus rendered subsequent to the dissolution a partnership claim. Accordingly, the court erred in granting a nonsuit on the theory that the action as brought against the copartner could not be maintained at all.

Decided November 19, 1927.

Complaint; from city court of Sandersville—Judge Goodwin. January 26, 1927.

A. B. Wright, for plaintiff. E. W. Jordan, for defendant.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17979.
    CULBREATH v. KUTZ COMPANY, et al.

    1. Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose, and also knew or should have anticipated that it would be diverted to the foreign use.

      (a) The court will take judicial cognizance of the fact that windows of a building are ordinarily intended to be used for the purpose of admitting light and air, and perhaps in some eases, for ornament or symmetry; and in a suit by an invitee, as a window-cleaner, against the owner or occupier for damages from alleged defects in a window, allegations that it was customary for workmen of the plaintiff’s trade to use windows as a support for their weight while washing them from the outside , will not alone be sufficient to show that a window should be so constructed or maintained as to be suitable for such use.
    Evidence, 23 C. J. p. 59, n. 22; p. 174, n. 31.
    Negligence, 29 Cyc. p. 465, n. 21; p. 518, n. 22; p. 519, n. 23, 24; p. 565, n. 75; p. 567, n. 88; p. 576, n. 56; p. 579, n. 80; p. 635, n. 68.
    Pleading, 31 Oye. p. 50, n. 69; p. 54, n. 8; p. 289, n. 60.

      (6) In such a case an averment which in effect merely alleges that, in view of such custom of workmen, the defendants when constructing the building knew that the window would be put to such use, imputes to the defendants constructive notice only; and in the absence of anything further to show any duty on the part of the defendants to have known or anticipated the plaintiff’s act, a charge of constructive notice is not sufficient to form the basis of an averment that the defendants were negligent either in not constructing and maintaining the window suitably to the foreign use to which the plaintiff put it, or in not inspecting it and warning him of any defects therein relatively to such use.
    (o) The petition in this case failed to show negligence by any of the defendants with respect to the plaintiff.
    2. One who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that no person of ordinary prudence would subject himself thereto, can not hold another liable for damages from injuries thus occasioned.
    3. In a suit against the owners and the tenant of a building to recover damages for injuries sustained by the plaintiff, a window-washer, in falling to the ground while washing from the outside a window of the fourth .story, where it appears from the allegations of the petition that the plaintiff fell because, without testing or examining the strength of the window for that purpose, he voluntarily chose to support himself by holding to parts thereof which were insecure and inadequate for such use, held, the petition affirmatively shows such negligence or want of care on the part of the plaintiff as to bar a recovery.
    4. The petition failed to set forth a cause of action, and the general demurrers were properly sustained.
    Decided November 21, 1927.
    Action for damages; from city court of Atlanta—Judge Dorsey. December 24, 1926.
    Philip Culbreath, a window-washer employed by the National Window Cleaning Company, while engaged in washing windows in the fourth story of a building in the City o£ Atlanta, fell to the street below and was injured. I-Ie brought suit against Citizens & Southern Bank and M. L. Thrower, owners of the building, and against M. Kutz & Company, the tenant in possession, to recover damages for his injuries. The court sustained general demurrers and dismissed the petition, and the plaintiif excepted. The only allegations which are material and pertinent to the questions raised by the demurrer were as follows:
    “(6) That on or about April 16, 1926, Philip Culbreath was directed by his master for whom he was working, the National Window Cleaning Company, at the request of M. Kutz Company, to go to the place of said Kutz Company at Nos. 80 to 86 South Pryor street, Atlanta, for the purpose of washing the windows of the building occupied by Kutz.
    “(7) That the plaintiff did as directed and went to said building, reporting upon his arrival to some agent of the defendant Kutz; that as per the instruction and contract of his master he immediately began, in' the usual way, to wash the windows.
    “(8) That he had worked for some time washing windows on the fourth floor; that he was working on the outside of a window, standing upon the edge of the window sill, as was usual and customary, at about the hour of 10 a. m. on said date, holding with one hand onto the window sash, when the whole sash, guides and all, without any warning of any kind, pulled out of its location, causing plaintiff to be precipitated to the sidewalk four stories below, where plaintiff was seriously and permanently injured as will be set out hereinafter.
    “(11) It is alleged that plaintiff was washing windows on the fourth floor of a building located on the southeastern corner of Mitchell and Pryor streets; that to wash the outside of the lower sash it is necessary to put the lower sash up and the upper sash down, and then, when the lower sash is washed, push the upper sash back to the top to wash the same, as the upper sash is on the outside; that the plaintiff alleges he had the upper sash down and the lower sash up, washing it, and was holding onto the window by holding onto the top of the upper sash or window frame, as was necessary and usual; that after plaintiff had washed the lower sash, which was pushed up, plaintiff was in the act of pushing the upper sash back up into its place to wash it, holding on to the top of said sash, when the sash, without any warning of any kind, pulled out of the window frame and guides and fell with plaintiff to the sidewalk below.
    “(12) It is alleged that plaintiff was an experienced window washer; was in the exercise of ordinary care about his work at the time he was caused to fall and be injured.
    “(13) It is averred that plaintiff was lawfully upon the premises occupied by the Kutz Company; that he had a right to be thereon and was there at the invitation and request of said Kutz Company for the purpose of washing the windows on the fourth and other floors of said building.
    “(14) As alleged said premises were being rented by Kutz Company from either Thrower or Citizens & Southern Bank, or both.
    “(15) It is averred that it was the duty of said occupier, Kutz Company, prior to and at the time of causing the plaintiff to be put to work washing windows, to notify him and warn him of the defective condition of the guides, sashes, and window frames; that this defendant knew that the guides, sashes and window frames were old and rotten and decayed, having been in place 12 or 15 years, long enough for the nails holding them in place to become old, rusty and thin and of no account in holding said guides and frames in place; as alleged this defendant knew or ought to have known, had it been in the exercise of ordinary care, that when the plaintiff went to wash said windows the same would fall out and cause him to fall to his hurt and damage; that it was this defendant’s duty to have inspected said windows, which it failed to do, in order that plaintiff could have been warned of the defective condition; that a reasonable inspection by a carpenter or mechanic would have revealed such defective condition; that the defendant knew plaintiff could not tell said window guides or frames were old, rotten and decayed by looking at them, and the dereliction of these stated duties on the part of Kutz Company is alleged as negligence against it.
    “(16) It is alleged that the owner of said building Thrower and Citizens & Southern Bank were negligent in causing said building to be erected out of material too light for the purpose intended; that is the guides, sashes and frames in the windows were made up of material unsuited for windows that had to be washed in the usual way by a cleaner from the outside; that these defendants at the time of erecting said building knew that the window washers would of necessity have to stand on the outside of the window and hold on to the frame; that the frame was held in place by guides and that the guides would have to withstand the natural strain thus caused; that said owners knew that said buildings had been in place for 12 to 15 years and that the window guides, sashes and frames were old and decayed, that the nails were and had been in place a sufficient length of time to have become rusty and defective and ought to be replaced; that same was dangerous to window cleaners washing windows in the usual manner; that notwithstanding this knowledge on the part of the owners, they failed and refused to inspect said building and allowed the window guides, frames and sashes to get in such fix as the same fell out, while being washed in the usual way, precipitating plaintiff to the sidewalk and thus causing his injury; that if the guides to said window had been nailed to the framing with good tenpenny nails when the building was put up, the same would have held and not fallen as alleged.
    “(17) That the acts of negligence of all the defendants were concurrent acts causing or contributing to plaintiff’s injury.”

      Colquitt & Conyers, Sidney Smith, for plaintiff.

      Slaton & Hopkins, McDaniel & Neely, Bembert Marshall, Alston, Alston, Foster & Moise, for defendants.
   Bell, J.

(After stating the foregoing facts.) Courts take judicial cognizance of matters of common knowledge and common experience among men. So. Ry. Co. v. Covenia, 100 Ga. 46 (39 S. E. 319, 40 L. R. A. 353, 63 Am. St. 313); Snider v. State, 81 Ga. 753 (1-a) (7 S. E. 631, 63 Am. St. R. 350). Certainly, in the absence of positive and direct averments to the contrary, this court should judicially know that the windows of a building are designed for the purpose of affording light and air and in some cases perhaps for ornament or symmetry, and are not intended to support the weight of a man, however great or small, while he is engaged in cleaning them from the outside. It has been held that even an uncontroverted allegation in a pleading does not prevent the court from concluding otherwise by resorting to its own judicial knowledge. Gottstein v. Lister, 88 Wash. 463 (153 Pac. 595, Ann. Cas. 1917D, 1008); 33 C. J. 174. The allegation that- the plaintiff was washing the windows in the usual and ordinary way, and that in doing so it was necessary to support himself by holding to the window, can not be given effect as an averment that the windows were intended to be used in such manner, in the face of what every man should know to the contrary. Whether it should be held otherwise in case of direct and unequivocal allegations of a custom among those who erect and maintain buildings of the character of the one in question to have the windows so constructed and maintained as to serve as a safe and suitable support for the weight of workmen engaged in cleaning them as the plaintiff was doing need not be decided at this time. In the present case it is enough to hold that mere inferential averments that the plaintiff was cleaning the -windows in the usual and ordinary way and that the defendants “knew that window washers would of necessity have to stand on the outside of the window” and hold to the frame in the manner stated are insufficient to establish that windows should be made suitable to such use.

Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose and also knew or should have anticipated that it would be diverted to the foreign use. As to the Kutz Company, the petition alleges only that this defendant knew or should have known that the plaintiff, in cleaning the windows, would use them as a support, although as to the other defendants the allegations are in terms more direct, declaring “that these defendants at the time of erecting said building knew that window washers would of necessity have to stand on the outside of the window and hold on to the frame.” However, this appears from the entire petition to have been stated as a mere conclusion, and it is the settled rule that general allegations in the nature of a conclusion must yield on demurrer to the particular facts shown (Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (4), 118 S. E. 471; Central of Ga. Ry. Co. v. Lawley, 33 Ga. App. 375 (3), 126 S. E. 273). When the petition is construed as a whole, it admits of no other construction than that the averment quoted above, and the others of like nature, depend solely upon the fact, elsewhere alleged, that it was customary in the trade of window cleaners for the operatives to perform the work in the way and manner set forth in the petition. This fact alone, relating as it does to a custom in a particular trade and not pertaining to the method of constructing and maintaining windows for the ordinary uses, would not suffice to establish that any of the defendants knew or should have anticipated that the plaintiff would use the window as a support while cleaning it. Hence, the petition fails to show any duty on the part of the defendants or either of them to expect or anticipate that the plaintiff would employ the window for such purpose or, in other words, misadapt it to the foreign use; and it follows that relatively to the plaintiff the defendants were not negligent either in not constructing and maintaining the -window suitably to the foreign use to which the plaintiff put it, or in not inspecting it and warning him of any defects therein. The allegations impute to the defendant constructive notice only, whereas, in the absence of something to show a duty on their part to have anticipated the .plaintiff’s act, a charge of constructive notice is insufficient. We conclude that the petition fails to show that any of the defendants were negligent with respect to the plaintiff. Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (7) (48 S. E. 438); Caudell v. Hardaway Contracting Co., 146 Ga. 48 (90 S. E. 470); Batch v. Carling, 102 Ga. 586 (29 S. E. 146); East Tenn. &c. Ry. Co. v. Reynolds, 93 Ga. 570 (20 S. E. 70); Fulton Ice Co. v. Pece, 29 Ga. App. 507 (2), 519, and cit. The rule is otherwise where an instrumentality was being put to a use intended, for in that case the owner or occupier must exercise care to have it safe for such use. The cases relied on by the plaintiff in error are of that nature and are thus distinguishable from the case at bar. See Monahan v. National Realty Co., 4 Ga. App. 680 (62 S. E. 127); Huey v. Atlanta, 8 Ga. App. 597 (70 S. E. 71); Mattox v. Lambright, 31 Ga. App. 441 (120 S. E. 685); Wynne v. So. Bell Tel. Co., 33 Ga. App. 516 (126 S. E. 864); Robinson v. Leighton, 122 Me. 309 (119 Atl. 809, 30 A. L. R. 1386, and note page 1390).

Moreover, from all the facts pleaded it affirmatively appears that the plaintiff was not in the exercise of ordinary care. Any person of common intelligence and ordinary prudence can easily conceive of numerous ways in which the plaintiff could have safely supported himself without depending upon the “guides, sashes, and window frames” for that purpose. If the method of support which the plaintiff adopted in this case is the one in common use by the members of his trade, it seems that as a class they are given to daring and do not observe the necessary and usual precautions which a prudent man should exercise. A person in -a given class can not excuse himself for his own want of care by conforming to what is customary in the particular class, where the custom is* in itself obviously dangerous and so appears from the plaintiff’s declaration. Mayfield v. Savannah &c. R. Co., 87 Ga. 374 (2) (13 S. E. 459); Chattanooga R. Co. v. Myers, 112 Ga. 237 (2) (37 S. E. 439); Cawood v. Chattahoochee Lumber Co., 126 Ga. 159 (54 S. E. 944).

Questions of negligence and diligence are questions of fact, and therefore usually fall within the province of the jury; and yet where facts are considered on demurrer and where every rational interpretation thereof requires the conclusion as a matter of law that the plaintiff failed to exercise ordinary care or that the injury of which he complains was due to his own negligence, the demurrer should be sustained and the case ended without requiring the defendant, or, as here, the defendants, to resist a possible recovery not authorized under the circumstances set forth in the petition. So. Ry. Co. v. Young, 20 Ga,. App. 362 (93 S. E. 51); Hill v. L. & N. R. Co., 124 Ga. 243 (2) (52 S. E. 651, 3 L. R. A. (N. S.) 432). It would have been an easy matter for the plaintiff to test the strength of the window and all its parts before employing them for the extraordinary, foreign, and unintended use to which he put them, and we have no hesitancy in holding that he should have done so, provided he expected to employ the window as a support in the manner shown, especially in view of the hazard with which his work in such a position and at such a height would be attended. The work of cleaning the windows of a tall building from the outside is naturally a dangerous occupation, and one who in performing work of this character depends merely upon the assumption that the windows are in good order as windows go, that is, for the uses to which they are generally put, must be held to have accepted a risk so' obvious that taking it amounted to a failure to exercise ordinary care for his own safety. One who knowingly and voluntarily takes a risk of injury, the danger of which is so obvious that no person of ordinary prudence would have subjected himself thereto, can not hold another liable for damages for injuries thus occasioned. So. Ry. Co. v. Hogan, 131 Ga. 157 (62 S. E. 64); Zachery v. Madison, 18 Ga. App. 490 (89 S. E. 594); Bridger v. Gresham, 111 Ga. 814 (35 S. E. 677); Civil Code (1910), § 4426.

The ideas that the defendants were not negligent and that the plaintiff was, both shoot from the same branch, for if it could be said that the window was intended to be used in the manner described, the plaintiff would, perhaps, have been authorized so to use it without incurring the imputation of negligence in doing so; but upon a consideration of the petition in its entirety and of all the facts disclosed, it appears, both from the same base or premise, not only that the defendants were not negligent, but also that the plaintiff himself was guilty of such negligence or want of care as to bar a recovery. Under either of these theories, which really are twins, the petition failed to set forth a cause of action and the general demurrers were properly sustained.

Judgment affirmed.

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


text:
    18025.
    Harper v. Tennessee Chemical Company.
    Appearances, 4 C. J. p. 1333, n. 1; p. 1335, n. 49; p. 1354, n. 53; p. 1356, n. 55.
    Bills and Notes, 8 C. J. p. 875, n. 5.
    Courts, 15 C. J. p. 846, n. 27.
    Judgments, 34 C. J. p. 52, n. 42; p. 163, n. 67; p. 165, n. 4; p. 169, n. 64; p. 179, n. 66; p. 799, n. 80; p. 977, n. 64; p. 979, n. 88.
    Heading, 31 Cyc. p. 131, n. 27; p. 425, n. 27; p. 427, n. 48.
    Process, 32 Cyc. p. 527, n. 53.
   Jenkins, P. J.

1. The present demurrer to the plaintiff’s petition, in so far as its grounds are special, comes too late, and in so far as it is a general demurrer the questions sought to be raised are res adjudicata, since the recital in the bill of exceptions when this ease, was formerly before this court shows that the defendant had previously urged an oral general demurrer to the suit, and that such demurrer was then overruled. Tennessee Chemical Co. v. Harper, 30 Ga. App. 789, 790 (119 S. E. 448); Hamrick v. Stewart, 29 Ga. App. 220 (6) (114 S. E. 723). Moreover, irrespective of any such former adjudication, in a suit against two defendants on promissory notes under seal, signed respectively “R. H. Harper and H. L. Harper by H. L. Harper,” and “R. H. & H. L. Harper by H. L. Harper,” where the' petition alleges that R. H. and H. L. Harper “executed the said notes by H. L. Harper,” there is a sufficient allegation, as against a general demurrer, that the instruments were executed by H. L. Harper, and by the present litigant, R. H. Harper, by and through H. L. Harper, the petition not indicating, as was the case in United Leather Co. v. Proudfit, 151 Ga. 403, 404 (107 S. E. 327), that H. L. Harper, in signing the notes for himself and for R. H. Harper, did not have authority under seal from R. H. Harper to bind the latter. The present ease differs from Featherston v. Reese, 36 Ga. App. 379 (136 S. E. 811), in that the defendant in that case filed a timely special demurrer calling for an allegation setting forth the agent’s authority under seal.

2. “Appearance and pleading shall be a waiver of all irregularities .of the process, or of the absence of process, and the service thereof.” Civil Code (1910), § 5559. Accordingly, where counsel for R. H. Harper appeared at the trial term of the court to which suit was brought and announced- that he wished to file on his behalf a traverse to the sheriff’s return of service, and that on account of the absence of his client he desired that the court would grant time in order that he might be enabled to have his client swear to the traverse, and where it appears that, upon objection being made to such request for time, “counsel for R. H. Harper gathered up plaintiff’s petition and urged orally a general demurrer to said suit,” without reservation or any sort of protestation that he did not thereby intend to substitute such general appearance for the previously contemplated special appearance, such unqualified appearance and pleading by which such defendant did then and there invoke and obtain an immediate ruling on the merits of the case, such as, had it been favorable, would have discharged him from all liability, must be taken as a waiver of “all irregularities of the process, or of the absence of process, and the service thereof.” Southern Ry. Co. v. Cook, 106 Ga. 450 (4), 451 (32 S. E. 585); Myers v. Griner, 120 Ga. 723, 724 (48 S. E. 113); Lowe v. Burkett, 65 Ga. 564, 567; High v. Padrosa, 119 Ga. 648, 649 (46 S. E. 859); McFarland v. McFarland, 151 Ga. 9 (105 S. E. 596); Bunting v. Hutchinson, 5 Ga. App. 194, 201 (62 S. E. 49); Connor v. Hodges, 7 Ga. App. 153 (66 S. E. 546). This ruling is not in conflict with cases such as Stallings v. Stallings, 127 Ga. 464, 467 (56 S. E. 469, 9 L. R. A. (N. 8.) 593), holding that appearance and pleading to the merits will not amount to a waiver of lack of service, where before or at the same time want of service is specially pleaded. The theory of these cases in holding that such more or less inconsistent pleas do not destroy each other is that in this way the defendant merely presents all the issues and questions which he is entitled to raise, each to stand in its proper order and to be taken up and decided in proper sequence. Such rules can not have application in the case at bar, where the defendant in the first place actually invoked and obtained an immediate ruling on the merits such as, had it been favorable, would have discharged him from all liability whatever. Nor is the decision now rendered in conflict with what may have been held in Johnson v. Shurley, 58 Ga. 417; Lowe v. Burkett, supra; Cox v. Potts, 67 Ga. 521, and cases following them, with reference to the necessity of the appearance being in writing; the effect and purport of the ruling in those eases being that what formerly amounted to an appearance by the mere marking of counsel’s name on the docket could hardly be accounted such pleading as would work waiver of process, the reason being that the mere entry of counsel’s' name on the docket does not indicate whether such appearance was made for the purpose of pleading to the merits or for the purpose of pleading to the service. But even then it was recognized in the Lowe case that if the defendant followed up such an informal appearance by invoking a benefit thereunder, the rule would be different. Such being the effect of the appearance as made in the instant case, it is unnecessary to determine whether or not the defendant should have been allowed to amend his traverse setting up lack of service.

3. In a suit brought against the makers of joint and several obligations, where both parties are alleged to be residents of the same county, and where the plaintiff claims no right which is dependent upon the action being treated as joint, and where each of the parties treats the action as several by entering separate and independent pleas, the fact that, pending the result of litigation by the present defendant upon the question of service, a judgment may have been rendered against the other defendant will not bar a later recovery in the same action against the defendant who had thus deferred an adjudication on the merits with respect to himself. The rule might be different in a suit on a joint obligation where the judgment against the first defendant merges the entire cause of action, and bars a recovery, at least in a subsequent suit on the same contract, against the other joint obligor. See Almond v. Hathcock, 140 Ga. 26 (3) (78 S. E. 345).

4. “Where a case has never been marked ‘in default’ on the docket, nor any order taken declaring the case to be ‘in default,’ it is error to dismiss an answer to the merits of the cause, filed at a term subsequent to the appearance term, because not filed in time.” Hall v. Tiedemam, 141 Ga. 602 (81 S. E. 868); Gordon v. Hudson, 120 Ga. 698 (48 S. E. 131). This is true for the reason that although a suit may not be answered within the time prescribed by law, it is not, legally speaking, in default until an entry or order so adjudicating has been rendered as contemplated by the practice act of 1895 as embodied in section 5653 of the Civil Code of 1910. American Central Ins. Co. v. Albright, 145 Ga. 515 (89 S. E. 487); Currie v. Deaver, 1 Ga. App. 11 (2), 13 (57 S. E. 897). Thus, while a defendant who by the time prescribed has failed to file any sort of defense incurs the risk of being cut off from the right to plead, by a judgment being rendered of “in default,” still, if, despite such hazard, no such penalty be actually incurred, he may still proceed to enter his belated plea to the merits. But rules governing cases in actual default, and, therefore, subject to a judgment so declaring, can not have any sort of application to cases where there has been filed “a demurrer, plea, answer, or other defense,” such as contemplated by section 5653 of the Code. The filing of such a defense prevents the case from being subject to a judgment of “in default,” and renders it subject to other and different rules with respect to the right to file additional defensive pleading. In such a case the defendant is restricted to the defenses entered, with such aid only as can be derived from proper amendments thereto (Quillian v. Johnson, 122 Ga. 49 (3), 49 S. E. 801; Ford v. Serenado Mfg. Co., 27 Ga. App. 535, 109 S. E. 415), since the filing of a defense debars the filing of subsequent defenses, except by way of amendment, as effectually as would a judgment of “in default.” If the defendant’s pleadings can not, even by amendment, be made to serve,- he can not, upon- their being stricken, substitute new defenses, as though none had been filed. The rule which allows the belated filing of a plea in a ease in actual default, but which has not been so adjudged, does not authorize the “successive presentation of new defenses at later terms as old ones failed and were stricken.” Brooke v. Lowry national Bank, 141 Ga. 493 (4), 494, 497 (81 S. E. 223). In the instant ease, just as was said in the Brooke case, “where a traverse to service and a plea in abatement filed by the defendant had been stricken, and a demurrer to the plaintiff’s petition had been overruled, but no answer had been filed,” it is not within the contemplation of the statutes to allow a belated answer to tlie merits of the ease in lieu of the pleadings pre-viously stricken. Except for' tlie provisions of the practice act of 1895 (Civil Code of 1910, § 5653), requiring an adjudication by an entry or order of “in default” before a defendant who has failed to file “a demurrer, plea, answer, or other defense” can be treated as legally in default so as to deprive him of the right to plead, the defendant would be in default and deprived of his right to plead by a mere failure to meet the mandate of code section 5635 requiring the filing of pleas at the appearance term. Moses v. Kittle, 103 Ga. 806 (30 S. E. 687). Accordingly, since all the right a defendant has to file belated pleas in cases actually in default but not so legally adjudged is derived from the practice act referred to (Civil Code of 1910, § 5653), he is bound in liis privileges by the limitations of the act relied on, and where he has actually filed “a demurrer, plea, answer, or other defense,” so as to render the section cited inoperative, he can not be allowed, by virtue of such section, to take advantage of a failure to render a judgment of “in default”. Especially would the rule just stated apply where the plaintiff moves diligently by asking for a judgment by default prior to the filing by the defendant of any sort of plea, thus eliminating any possible question of. waiver on his part as to the defendant’s failure to plead.

Decided November 21, 1927.

Complaint; from city court of Americus—Judge Harper. January 21, 1927.

Statement oe eacts by Jenkins, P. J.

Tennessee Chemical Company brought suit to the June term, 1921, of the city court of Americus, against R. H. Harper and lí. L. Harper, on two promissory notes, one signed “R. H. Harper and H. L. Harper by H. L. Harper,” the other signed “R. H. & H. L. Harper by H. L. Harper,” it being alleged that the defendants executed the notes sued on “by H. L. Harper.” The sheriff made a return dated June 4, 1921, showing service upon R. H. Harper at his most notorious place of abode. At the appearance .term an answer was filed by H. L. Harper, and the docket marked “answered,” no entry of'default being made as to R. H. Harper. At the June term, 1922, plaintiff moved for a judgment against both defendants upon the ground that the answer of H. L. Harper admitted liability on his part, and no defense had been filed by R. H. Harper. Counsel for R. H. Harper then appeared and announced that he wished to file a traverse to the entry of the sheriff, stated that he found it necessary to have the traverse sworn to by the defendant R. H., Harper, and requested the court to grant him time in which to get his client. This request was objected to by counsel for the plaintiff, and denied by the court, whereupon “counsel for R. H. Harper gathered up plaintiff’s petition, and urged orally a general demurrer to said suit.” The general demurrer was overruled, and thereafter, at the same term, counsel for R. II. Harper presented a traverse to the entry of the sheriff, sworn to by H. L. Harper. The court allowed the traverse to be entered, over the objection of the plaintiff, and the issue made thereby was submitted to a jury, a verdict was returned in favor of the traverse, and judgment was rendered accordingly. To this judgment the plaintiff excepted, and this court reversed the judgment, upon the ground that the plea and traverse were not properly verified (30 Ga. App. 789). No adjudicaton was made by this court upon the contention of the plaintiff that the action of counsel for the defendant in urging an oral motion to dismiss in the nature of a general demurrer to the petition amountéd to a general appearance and a waiver of service. At the June term, 1922, judgment was rendered against H. L, Harper for the amount due on the notes sued on. When the case was returned from this court to the trial court, at the October term, 1924, the defendant R. H. Harper offered to amend his traverse of the sheriff’s return'of service by verifying it. The plaintiff objected to the allowance of the amendment, the objection was sustained, and to this judgment the defendant entered exceptions pendente lite. Thereafter, on December 31, 1924, the sheriff made a new entry on the petition, in which he recited that “after due and diligent search. I, on and prior to June 4, 1921, failed to find R. H. Harper to serve with copy of the within writ and process, and amend service accordingly.” At the January term, 1927, the case came on for trial, R. H. Harper appeared by counsel, and “urged before the court that in view of the return of the sheriff of no service on R. H. Harper, the court was' without jurisdiction in the cause, and that ,the same appeared on the face of the pleadings, and for this reason an oral appearance was made.” The plaintiff then offered in evidence the recital of facts contained in the bill of exceptions brought here in the traverse case for the purpose'-of showing that the defendant had waived service, and the court ruled that the defendant had waived service; to which ruling exception is now taken. Thereupon the defendant R. EL Elarper offered a written motion to dismiss the plaintiff’s petition, upon the grounds that no cause of action is set forth; that the.suit is based upon notes which purport to have been executed by EL L. Elarper alone; that the suit was brought on joint obligations. of EL L. and R. El. Elarper, but the notes show that R. EL Elarper did not sign them; that t,here is no allegation of a partnership between R. El. Elarper and Ii. L. Elarper; that the notes purport to be joint and several obligations of R. EL and EL L. Harper, and it is not shown by the petition whether the action is proceeding against the defendants jointly and severally, or jointly, and that in the absence of such allegations no cause of action is set forth as to R. H. Elarper; that the petition shows the notes were executed by H. L. Harper, and. there is no allegation showing his authority to execute them for R. EL Harper. Upon motion of plaintiff’s counsel, this motion of the defendant to dismiss the petition was stricken, and-exception is taken to that ruling. At this juncture the defendant R. H. Harper made what he terms a special appearance and objected to any further judgment, because the record showed that at the June term, 1922, judgment was rendered against EL L. Harper, which amounts to an adjudication of all the matters involved in the suit, and a bar to further proceedings thereon. Upon motion of the plaintiff this special plea was stricken, and exception is taken to that ruling. Thereafter at the same term of court the defendant offered a written plea in which he adopted the plea theretofore filed by H. L. Harper, and denied that he and H. L. Harper were partners, or that any relation existed between them except that of landlord and tenant. Upon motion of the plaintiff, upon the ground that the pleading came too late and that the defendant had nothing to amend by, this pleading was stricken, and the defendant now excepts to that ruling. At this stage the plaintiff moved the court to enter the case in default as to R. H. Harper, and the defendant then offered a further plea, by way of amendment, in which he set up that the note appeared to be executed by II. L. Harper for R. H. and H. L. Harper; that there was no partnership relation between him and H. L. Harper, and that H. L. Harper had no. authority to sign his name to the note, and that he had not ratified the same. The plaintiff objected to the allowanee of the plea and moved to strike it, the motion was sustained, and the court passed the following order: “This plea of no partnership was offered by defendant E. H. Harper after plaintiff had requested the court to enter on the docket default as to E. H. Harper, on objection by the plaintiff the within plea is disallowed.” To this ruling exception is taken. The court then marked the case in default as to E. H. Harper, and that judgment is assigned as error. After all the pleas and motions of the defendant had been stricken and overruled, upon motion of the plaintiff the court directed a verdict against E. H. Harper for the amount sued for, and this judgment is assigned as error.

5. Under the foregoing rulings, the court did not. err in rejecting the pleas offered by the defendant, and in thereafter directing a verdict in favor of the plaintiff. ■

Judgment affirmed.

Stephens and Bell, JJ., concur.

E. L. Maynard, for plaintiff in error. James W. Smith, Ben-net & Peacock, contra.