text:
    16409.
    GARMANY, sheriff, for use, etc., v. LOACH et al.

    1. Where personal property was levied upon under a mortgage fi. fa., and the defendant, without filing any affidavit of illegality, tendered to.the sheriff a forthcoming bond, payable to the levying officer, thereby retaining the property, and. thereafter disposed of the property, and where subsequently the sureties induced the sheriff to substitute another forthcoming bond, with new sureties, as in satisfaction of the prior bond, and later an action on the original bond was brought in the name of the sheriff for the use of the plaintiff, liability of the defendant in that action depended on whether the substitution bond was taken with the consent and approval of the plaintiff in fi. fa. If it was, the parties to the prior bond would not be liable either to the sheriff or to the plaintiff in fi. fa.; but if it was not, while the liability of the parties on the prior bond to the sheriff himself might thereby be absolved, this would not affect their liability to the plaintiff in fi. fa.
    2. Where in such an action there is a conflict in the evidence as to whether the plaintiff in fi. fa. consented to such substitution, it was error for the court to direct a verdict in favor of such sureties.
    Decided December 22, 1925.
    Action upon bond; from Walker superior court—Judge Wrigbt. February 20, 1925.
    G. E. Hunter foreclosed a chattel mortgage against W. L. Wiley, and the fi. fa. was levied upon property described in the mortgage. The defendant, without filing an affidavit of illegality, gave a bond, payable to the sheriff, for the forthcoming of the property at the time and place of sale, with defendants in error as sureties. It was contended by the defendants below that the sheriff made no effort to advertise and sell the property, and that defendants, desiring to close the matter out, went to the sheriff in an effort to be relieved from liability on the bond, offering another bond, with good security, in lieu thereof; that the sheriff at first refused their proffer, but later did accept such other bond and agreed to release the sureties on the former bond. Thereafter* the property was advertised for sale, and, it not being forthcoming, suit on the original bond -was brought in the name of the sheriff, for the use of the plaintiff. The defendants filed a plea in which they set up that they were not liable to the plaintiff upon the bond, for the reason that the sheriff, by the consent of the plaintiff in fi. fa., had released them from all liability on the bond, and had taken from the defendant in fi. fa. another bond, with other sureties, in lieu of the original bond. On the trial the court directed a verdict for the defendants. The plaintiff excepted. In the trial the sheriff testified that the plaintiff in fi. fa. gave him authority to release the sureties on the bond sued upon, but this evidence was contradicted by the plaintiff in fi. fa.

      David F. Pope, M. B. Fútanles, for plaintiff.

      Bosser & Shcm, for defendants.
   Jenkins, P. J.

(After stating the foregoing facts.) The controlling question in this case is this: Did the plaintiff in fi. fa. have such interest in the original forthcoming bond sued upon as to prevent the sheriff from releasing the sureties from liability thereon without his consent? If the plaintiff in fi. fa. had no interest in the bond, it was not a matter of concern to him that the sheriff released the sureties by taking another bond; and the plaintiff in fi. fa. could not complain. The rule would be different if he did have an interest in the bond. It is readily apparent that the bond sued on did not meet the requirements as to replevy bonds, contemplated by section 3301 of the Civil Code (1910), relating to the filing of affidavits of illegality to chattel-mortgage foreclosures. That section provides that the bond shall be “conditioned for the return of the property when called for by the levying officer, .which bond shall be made payable to the plaintiff (who may sue thereon for condition broken).” In the instant case the bond was made payable to the levying officer and was conditioned to deliver the property at the time and place of sale. No affidavit of illegality was ever filed or attempted to be filed; and yet, under the authorities, the bond taken is a good and valid obligation as a common-law bond. Such seems to be the meaning of section 6041 of the Civil Code (1910), which provides as follows: “All bonds taken by the sheriffs or other executing officers, from the defendants in execution, for the delivery of property (on the day of sale or any other time) which they may have levied on by virtue of any fi. fa., or other legal process from any court, shall be good and valid in law, and recoverable in any court in this State having jurisdiction -thereof.” Under this section, where the defendant-in fi. fa. gives a forthcoming bond payable to the levying officer, conditioned as there stated, and retains the property levied on, it is a valid contract, whether’ he wishes to contest with the plaintiff his right and claim or not. Its effect is to substitute the bond for the property in the hands of the levying officer. Instead of the levying officer keeping the property pending advertisement, etc., he keeps the substitute for the property, to wit: the defendant’s bond. It would not seem that it could be said that the plaintiff has no interest in such a bond, when it it is considered that it is taken as a substitute for property in which he certainly did have an interest. The difficulty arises from section 6042 of the Civil Code (1910), which provides as follows: “No bond taken in conformity with the previous section shall in any case prejudice or affect the rights of plaintiffs in execution, but shall relate to and have effect alone •between the officer to whom it is given and the defendant in execution; and such officer shall in no case excuse himself for not having made the money on an execution by having taken such bond, but shall be liable to be ruled as now prescribed by law.”

Able counsel for defendants contend that “the bond in question in this case relating to and having effect alone between the sheriff and the principal and sureties of the bond, the sheriff had the right and authority to retake possession of the property at any time prior to the date of sale, thus relieving the sureties on the bond from any further liability. This being true, it necessarily follows that the sheriff also had authority to accept a second forthcoming bond in lieu of the first forthcoming bond, thus relieving the sureties on the first forthcoming bond from further liability, his act in this respect amounting to a retaking of the possession of the property, and again surrendering same upon the execution of the second forthcoming bond.” • They cite Mahaffey v. Gray, 85 Ga. 460 (11 S. E. 774), where the facts involved were somewhat different, but where the following language was used: “The bonds were given to the constable, Mahaffey, for his protection. He had, therefore, the right to relieve W. T. Nash and allow J. B. Nash to be substituted in his place, and the effect of the agreement made by Mahaffey'with J. B. Nash was to substitute J. B. Nash in the place of W. T. Nash, J. B. Nash assuming the latter’s obligations and liabilities.” They call attention to the distinction recognized in Boyd v. Crews, 32 Ga. App. 138 (5) (122 S. E. 802), between forthcoming bonds given in claim eases as specifically authorised by law and bonds of the character referred to by section 6041 of the Civil Code. This argument of counsel is indeed forceful, and it is only after a full consideration of the true purpose and effect of section 6042, as dealt with in other decisions of the Supreme Court, that we have reached a contrary conclusion.

To our minds, all of the contentions of the defendants are settled adversely to them by the recent decision of the Supreme Court in the ease of Mullis v. Kennedy, 143 Ga. 618 (85 S. E. 845). The bond in that case was similar to the anomalous bond we have here; it was given in the same sort of proceeding; and what the court there decided appears to decide-the case at bar. It was there held: “Where a mortgage on personal property was foreclosed in a justice’s court, but the justice erroneously made the execution which he issued returnable to the city court located in that county; and where such execution was levied by a constable, and, without the interposition of an affidavit of illegality, the defendant tendered to the constable a forthcoming bond, conditioned to deliver the property on 'the day of sale, which was specified, but the bond was improperly made payable to the sheriff of the city court, and thereupon the defendant received from the constable possession of the property, in a suit for the breach of such bond it was error to dismiss the action on the ground that the process was invalid and the bond was accordingly also invalid.” It will be seen that the defendant in fi. fa. in that case was in the same situation as the defendant in fi. fa. in the case at bar; that he failed, as did the defendant in fi. fa. here, to interpose an affidavit of illegality; yet the court upheld the petition in that case, brought in the name and interest of the plaintiff in fi. fa. himself. The levying officer was not even a party to that ease. Justice Lumpkin, in the opinion, said: “Forthcoming bonds are ordinarily given in connection with a claim case or an affidavit of illegality, where the possession of the property is desired pending the litigation. In -the present instance no claim or illegality was interposed, but, after the levy of an execution based on the foreclosure of a chattel mortgage, the defendant desired to retain possession of the property. Accordingly, he tendered to the levying officer a bond executed by himself as principal, and by certain sureties, and reciting that they were bound jointly and severally. The condition was that the property levied on should be produced at the time and place of sale. . . The property was thereupon delivered by the levying officer into the possession of the principal, who subsequently sold it and delivered possession to a third person.” The decision then quotes the language of the Civil Code (1910), § 6041, and says: “This section seems to be peculiarly applicable to a case like the present, in which the levying officer leaves the property in the custody of the defendant, without the interposition of a claim or an affidavit of illegality, and takes a bond for its production.” The opinion then quotes and applies section 13 of the Civil Code (1910), as follows: “All bonds taken by public officers, under the laws of this State, shall be returned to the offices specified by law; and any person interested therein may bring suit thereon, in his own name, in any court having jurisdiction thereof.” The opinion closes with this language: “While the bond given in the case before us was not a good statutory bond, being made payable to the sheriff of the city court of Dublin, it was good as a common-law bond, and having served the purpose of obtaining the delivery of possession of the property by the levying officer to the principal, a recovery could be had for a breach of it, whether the process under which the levy was made was valid or not.” The effect of that decision is that in the case of a forthcoming bond like that in the instant case and given in the same character of proceeding as here, and under the same facts and circumstances, the plaintiff has an interest in the bond and could prosecute an action thereon, under the provisions of section 13 of the Civil Code, even in his own name alone.

There are many other decisions strongly argumentative along the line of the decision last cited above. For instance, there is the case of Hand v. Brown, 144 Ga. 272, 273 (86 S. E. 1080). In the opinion, after paraphrasing sections 6041 and 6042 of the Civil Code, Justice Evans says: “If nothing more appeared in this case than that the sheriff released the property to the defendant by virtue of a forthcoming bond, which was not ancillary to any legal proceeding, and not one which the sheriff was required by law to take, his failure to collect that bond would not relieve him from liability to the plaintiff. But the sheriff contends that the plaintiff consented for him to release the property to the defendant upon the latter executing a forthcoming bond. The plaintiff in execution is entitled to control the judgment and fi. fa. They are his property, and if he directed the sheriff to release the property to the defendant upon his giving a forthcoming bond, he can not thereafter hold him liable for the release of the property to the defendant under the forthcoming bond;” citing Smith v. Martin, 54 Ga. 600; Groover v. White, 54 Ga. 601; Holcombe v. Dupree, 50 Ga. 336; 35 Cyc. 615. Proceeding, this opinion says: “When the property was not forthcoming on the day of sale, the plaintiff in fi. fa. had two remedies. (Italics ours.) He could have proceeded directly against the sheriff by an action on the case or by rule; or he could, if the bond had been taken without authority, ratify the action of the- sheriff and sue upon the bond, either in his own name or in the name of the sheriff for his use. Wakefield v. Moore, 65 Ga. 268. The theory upon which he was entitled to proceed against the sheriff is that he did not authorize the release of the property by the sheriff to the defendant on a forthcoming bond. The basis of a suit by him against the principal and surety on the forthcoming bond is that the bond was taken under his direction by the sheriff.” Applying the ruling in Hand v. Brown, supra, to the instant case, it would naturally follow that if the plaintiff had such an interest in the original bond as would authorize him to maintain a suit thereon, it could not be discharged by the sheriff without his consent. In Rowland v. Page, 4 Ga. App. 369 (61 S. E. 148), again applying the Civil Code, § 6041, the court said: “Section 5436 [now 6041] prescribes the condition of a forthcoming bond authorized to be taken by the levying officer, and the officer has no right to vary the condition by any agreement with the defendant in execution. Any such agreement is void and without effect as to the right of the plaintiff in execution, and can not be set up as a defense to a suit on the bond, brought by the officer, for the use of plaintiff in execution.” Then there is Rice v. Lowry, 22 Ga. App. 36 (95 S. E. 330), in. which it was held: “Where property levied upon and seized by a-sheriff is released upon a forthcoming bond, but no claim to the property is filed, the execution of the bond will be considered as voluntary, and the bond is a valid obligation.” Thus it will be seen that there was an abortive effort in that case, inasmuch as no claim was filed; and yet the levying officer was allowed to maintain a suit on the bond, for the use of the plaintiff. The decision in Bowman v. Kidd, 13 Ga. App. 351 (1) (79 S. E. 167), holds: “Where the value of the property levied on under his fi. fa. does not exceed the amount of the judgment, the plaintiff in execution has such interest in a forthcoming bond as authorizes the suit upon the bond to be brought in his name.” In Arnold v. Rhodes, 26 Ga. App. 86, 87 (3) (105 S. E. 453), it was held that the levying officer could not vary the terms of a forthcoming bond taken under section 6041 of the Civil Code; and such can not be set up as a defense to an action by the sheriff for the use of the plaintiff. In Reese v. Worsham, 110 Ga. 449 (35 S. E. 680, 78 Am. St. Rep. 109), the giving of a second forthcoming bond in another case, involving the same officer, did not relieve from the first. The court said: “The levying officer may be liable in damages for bis failure to take a regular forthcoming bond, but, as between the obligor and her surety and the plaintiff in execution, the bond actually executed was a good contract and enforceable as such. If, therefore, there has been a breach of the contract, the defendant in execution is liable to the plaintiffs in execution for whatever damages they have sustained by reason thereof.”

As has already been indicated, the bond here sued on does not meet the requirements and was not taken under the circumstances and conditions set forth by section 3301 of the Civil Code, governing replevy bonds on mortgage foreclosures where a defense is made by affidavit of illegality. It, therefore, being anomalous in character, must be taken as a common-law obligation, under which the defendant in fi. fa. retained and disposed of the mortgaged property, and which was enforceable under the provisions of section 6042 of the Civil Code. As stated, the difficulty which arises in pursuing what the Supreme Court through Judge Evans speaks of as the plaintiff’s second option or remedy, whereby he can “ratify the action of the sheriff and sue upon the bond,” lies in the clause of Civil Code (1910), § 6042, to the effect that any bond taken in conformity with the preceding section “shall relate to and have effect alone between the officer to whom it is given and the defendant in execution.” Does this mean that the plaintiff in fi. fa. has no interest in such a bond, even though the defendant in fi. fa., by virtue thereof, may have regained possession of the mortgaged property and subsequently made away with it? Does it mean, as here contended, that the sheriff may, at his pleasure, annul the bond without the consent of the plaintiff in fi. fa. even after the mortgaged property has been regained by defendant in fi. fa. and dissipated? If the bond whereby the defendant and his sureties regained possession of the mortgaged property and disposed of it is a good common-law obligation, as the decisions and code-section 6042 say it is, and if the bond stands in lieu of the mortgaged property in which the plaintiff in fi. fa. certainly had an interest, can it reasonably be said that the intention of that section was to provide that the plaintiff has no interest in such a bond ? In order for such a construction to be adopted, it would seem that the language of the statute should absolutely and unmistakably compel such an intent. It has often been said that in construing the meaning and effect of a statute, its purpose should be considered. The purpose of the statute is manifestly to protect the interest of the plaintiff in fi. fa. in -a proceeding against the sheriff where the officer has parted with the levied property by virtue of an unauthorized bond. It was not written in the interest of the sheriff, the defendant in fi. fa., or his sureties on the bond. It does not deal with a proceeding other than against the sheriff. The purpose of the section seems to be to make it clear that in -such a case, where a sheriff has parted with possession of the property under and by virtue of a bond other than such as the law prescribes,— other than such as legally protects the levying officer,—the plaintiff, in a proceeding against the sheriff, can still look to that officer to account for the levy, and the sheriff can not excuse himself by reason of having taken such a bond. It is after stating this proposition that the section seeks to negative the converse, beginning with the word “but.” The taking of such an unauthorized and ineffective bond in no way affects the liability of the sheriff to the plaintiff, but does have effect between the officer and the signers of the bond. The sheriff can not complain that the defendant in fi. fa. has taken over and disposed of the property, the signers of the bond can not deny their liability thereunder; as between these, the duties and liabilities take effect and are fixed under the bond, but the plaintiff can hold the sheriff to his levy just as if no bond had been given, unless he elects to ratify his unauthorized act in taking it, in which event, as stated in Hand v. Brown, supra, he can “sue upon the bond, either in his own name or in the name of the sheriff for his use.” It 'is only when the plaintiff refuses to ratify the taking of the bond and proceeds against the sheriff under the levy that he has no interest in the bond. In such a case it is true enough that in a contest with the levying officer he has nothing to do with the bond, and no claim thereunder upon the defendant and his sureties who signed it. It is with such a situation only that the code section deals or purports to deal. In such a case the officer may protect himself, in answering to the plaintiff, by realizing on the bond if he can. Where, however, as here, the proceeding is not directed against the sheriff, but the plaintiff elects to ratify his act in taking the bond and surrendering the property levied on, a situation arises with which the code section does not in any wise purport to deal; and in such a case the plaintiff is concerned, and does have an interest in the bond which he thus elects to treat as a substitute for the surrendered property on which he held a lien. If, in seeking to give effect to the true and rational meaning of the statute, despite its difficult language, we have misinterpreted the intent of the statute and the rulings of the Supreme Court in the cases referred to, we are glad that court has authority to rectify the error.

Judgment reversed.

Stephens and Bell, //., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16423.
    BOARD OF DRAINAGE COMMISSIONERS OF KETTLE CREEK DISTRICT et al. v. WILLIAMS.
    1. A collateral agreement whereby certain persons become liable as sureties on a primary obligation, but which contains a stipulation by which the sureties are to be relieved upon the happening of a condition subsequent, remains binding upon the sureties until they have shown that their liability has been discharged by the happening of the condition subsequent.
    2. Where the commissioners of a drainage district thus become liable as sureties to the contractor “until money can be secured by the issuing and sale of bonds of said district,” advantage can not be taken of a void and illegal sale of such bonds, so as to extinguish their liability in accordance with the terms of the agreement with reference to such condition subsequent.
    3. The evidence fully warranted, if it did not demand, a finding in favor of the plaintiff upon the issue of his compliance with his contract, and the trial judge did not err in overruling the demurrers to the petition, or in overruling the motion for new trial for any reason assigned.
    Decided December 22, 1925.
    Rehearing denied Eebruary 13, 1926.
    Complaint; from city court of Washington—Judge Sutton. March 6, 1925.
    E. M. Williams sued the Board of Drainage Commissioners of Kettle Creek Drainage District, and certain individuals, upon promissory notes given by the drainage board and indorsed by the other defendants. It appeared that the individuals named as co-defendants were members of the said board, which was organized as a corporation under an act of the General Assembly (Ga. L. 1911, p. 108). The plaintiff filed an amendment to his petition, setting up that the consideration of the notes was his performance of a certain drainage contract entered into between himself and the said board. He set forth that after the completion and acceptance of his work in accordance with the terms of the said contract, and after his compensation had become due, the board, on account of the fact that it had not succeeded in selling its bonds and collecting therefor, executed and delivered to him the notes sued upon. It was further alleged by the plaintiff that in order to give him an added protection and security for the collection of his agreed compensation, the individual defendants had previously and in advance of the work entered into a written agreement with him “to be personally responsible for the money of the district until money can be secured by the issuing and sale of bonds of said district or until the district secures money from other sources;” and that in pursuance of that agreement they indorsed the notes sued upon.
    The defendants filed both general and special demurrers, in which they contended -that the notes sued upon were invalid as to the drainage board, on the ground that it was a governmental agency, and consequently could not give a valid note,—could not obligate itself to pay interest. The individual defendants contended that inasmuch as the primary obligation of the board was void for these reasons, their secondary obligation was unenforceable; and that their liability was upon a condition, and they were not liable on account of such condition. ‘ The demurrers were overruled; and exceptions were preserved pendente lite. The defendants filed pleas in which they set up that the notes were null and void and unenforceable for the reasons given above; and further pleaded a total and partial failure of consideration, and set up a certain amount of damages for which they prayed a recoupment against the plaintiff. The trial of the case resulted in a verdict against all the defendants. Their motion for a new trial was overruled; and they except to that judgment.

      A. G. Goluclce, B. W. Forison, for plaintiffs in error.

      Norman & Norman, B. L. Gox, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

The Board of Drainage Commissioners of Kettle Creek District, one of the defendants below, being a corporation chartered under and by virtue of an act of the General Assembly (Ga. L. 1911, p. 108), had the power under that act to enter into a contract for the drainage of the said district; and the contract was not in any wise invalid by reason of the fact that there had been no actual sale of drainage bonds; assessments for such improvements having been previously made to an amount exceeding the total amount of the drainage contract. Such assessments were in themselves a sufficient asset with which to pay off the drainage contract. Mayor &c. of Hogansvüle v. Planters Bank, 147 Ga. 346 (94 S. E. 310); Monk v. City of Moultrie, 145 Ga. 843 (90 S. E. 71); Tate v. City of Elberton, 136 Ga. 301 (71 S. E. 420); Town of Whigham v. Gulf Refining Co., 20 Ga. App. 427 (93 S. E. 238); 19 Corpus Juris, 687, 723. Where the total liability under the drainage contract was within the total amount of such assessments, the contract was not thereafter rendered invalid by reason of the fact that such assessments were not collected or enforced, or by reason of the fact that the full par value of all the drainage bonds sold did not come into the district treasury, as the act of 1911, supra, requires, or by reason of the fact that the available assets of the drainage district have been disbursed legally, or dissipated illegally. See McCord v. City of Jackson, 135 Ga. 176, 177 (5) (69 S. E. 23). Such subsequent conduct can not in any manner influence the validity of the prior valid contract.

"Under the facts of the case as stated above, it is not illegal for such board or district to execute and deliver its promissory note or notes for the amount of such matured payments; and such notes, thus given, are valid and collectible; and are not violative of any provision of the act of 1911, supra, or of any provisions of the general laws of the State, governing the making of obligations. Monk v. City of Moultrie, supra; Almand v. Pate, 143 Ga. 711 (85 S. E. 909); Tate v. City of Elberton, Mayor &c. of Hogansville v. Planters Banh, Town of Whigham v. Gulf Refining Co., supra. And it was not illegal, under the circumstances outlined, to include-in the notes an obligation of the district to pay interest thereon. See Civil Code (1910), § 3434; Hartley v. Nash, 157 Ga. 402 (121 S. E. 295).

Where, under the circumstances stated, certain persons who are commissioners of a drainage district, enter into a collateral agreement with the contractor who has such work in hand and uncompleted, by the terms of which such commissioners agree “to be personally responsible for the money of the district until money can be secured by the issuing and sale of bonds of said district or until the district secures money from other sources,”,such collateral agreement is based upon a condition subsequent; and upon the fulfilment of the condition subsequent all liability under such agreement, ipso facto, ceases, There being in the record no contention that money was derived from any source other than from the sale of bonds, the ruling here made will be affected by that fact alone as'a fulfilment of the condition subsequent. See Civil Code (1910), § 4224. Accordingly, such collateral agreement remained valid and of full force and effect unless such defendant commissioners, having the burden of proof of that fact, showed that the bonds of the district had in fact been issued and sold as required by the agreement. See Civil Code (1910), § 4301; Reid v. Fain, 134 Ga. 134 (68 S. E. 97). The act of 1911, supra, provides that such drainage bonds must not be sold at less than par. Until such a valid sale of the bonds is shown to have been made, such individual commissioners have not carried the burden, and have not shown the fulfilment of such condition subsequent, and are, therefore, still bound upon their agreement. While it was shown that the bonds, to the aggregate amount of $40,000, par value, were issued and sold, there was testimony from one or more of such commissioners to the effect that there was a commission or expense in the selling, or, as one of the commissioners expressed it, a “rake-off,” of something like $3,000, and that the most that was actually realized from the sale of such bonds was about $37,000. “If the commissioners had agreed in good faith to pay a commission to effect a sale of the bonds, such agreement would have been illegal, as under the "law it was their duty to sell the bonds for not less than their full face value; and the commissioners did not receive the par or face value thereof.” Board of Drainage Comm’rs v. Arnold, 156 Ga. 733, 735 (120 S. E. 310). Since, under the ruling in the case last cited, the sale of the bonds by the commissioners was “null and void,” the condition subsequent by which the personal liability of the commissioners might have been relieved has not been met; and since no valid “sale of bonds” as contemplated by the agreement has been shown, their liability continues to exist under the terms of their obligation, and until the claim of the obligee has been satisfied. See also Aven v. Beckom, 11 Ga. 1, 6; 22 R. C. L. 475; 29 Cyc. 1446.

Where it is provided in the contract between a drainage district and the contractor, covering certain drainage construction, that such work shall be under the supervision o'f the engineer of the district, and that he shall have the power to accept or reject the work, or any part thereof, the acceptance and approval of such work by such engineer, when made in good faith and in the absence of fraud, accident, or mistake, is binding upon the drainage district. Green v. Jackson, 66 Ga. 250, 251 (2); 9 Corpus Juris, 767, 826, 777, 801. Especially is the drainage district bound when it accepts such performance and executes and thereafter delivers to the contractor the note or notes of the district in settlement of such work. Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496); and see Harder v. Carter, 97 Ga. 273 (23 S. E. 82); American Car Co. v. Atlanta St. Ry. Co., 100 Ga. 254 (28 S. E. 40); Edison General Electric Co. v. Blount, 96 Ga. 272 (23 S. E. 306); Stimpson Computing Scale Co. v. Taylor, 4 Ga. App. 567 (2) (61 S. E. 1131); Unitype Co. v. Skelton, 11 Ga. App. 742 (76 S. E. 80). Moreover, the jury were authorized to find from the evidence, as a matter of fact, that the terms of the contract had been fully complied with. Where such a contract provides that the work shall be done by the contractor in accordance with certain details and specifications, mutually agreed upon, if the work is done in compliance with the terms of the agreement, the contractor is not liable for the results which may flow from the work having been so performed. Cannon v. Hunt, 116 Ga. 452 (42 S. E. 734); Porter v. Wilder, 62 Ga. 520 (2).

Defendants complain that in certain excerpts from the charge to the jury the court misstated, the issues of the ease and confused the jury. It is true that there were slight verbal inaccuracies in certain excerpts from the charge; but most, if not all, of these inaccuracies occurred in that part of the charge which was devoted to a reading or statement of the contents of the pleadings; and inasmuch as the pleadings were out with the jury, and as they did not really tend to mislead, they would not justify setting the verdict and judgment aside; especially so since, under the foregoing rulings, a verdict for the plaintiff was practically, if indeed not absolutely, demanded.

In view of the principles stated above, we do not think that there was any error in overruling the demurrers to the petition, or in the charge of the court; and there being sufficient evidence to support the verdict, which has been approved by the trial court, we find no error in its overruling of the motion for new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.

ON MOTION FOE REHEARING.

Counsel for plaintiffs in error have filed a motion for a rehearing in this case, insisting that the court overlooked certain portions of the record, and laws and decisions which would enforce a contrary judgment from what has been rendered in the case. We have carefully examined the motion and re-examined the record upon all the points made in the motion; but have reached the conclusion that nothing has been said therein which would- properly cause us to recede from the holding originally made. The record is voluminous and somewhat confusing, but we are of the opinion that those portions about which there can be no doubt or dispute support the ruling made. We did not overlook the contentions of counsel for the plaintiff in error to the effect that the drainage board, being a governmental agency, could not execute its notes in liquidation and settlement for work done for it, which it had the legal power to contract for. Eecognizing that a plaintiff suing a governmental agency must affirmatively and plainly show that the obligation assumed by such agency was within the statutory powers of the agency emphasized by the present motion, we have reviewed the amended petition, to see whether, as tested by the demurrers, it showed that the obligation here assumed was within the statutory powers inhering in this drainage board. Clearly the original petition was subject to the demurrer; but we think the facts essential to the recovery were brought into the plaintiff’s pleadings by the amendment thereto. A fair interpretation of the petition as amended has led us to conclude that the plaintiff has set forth the following essential facts: that Williams was engaged by the district to do certain drainage work in and for the district; that he was to be paid a certain price for his work; that the drainage bonds for the district had not been issued and sold; that the total amount of the work contracted for and done was within the total amounts of the assessments which had been made by the district for drainage purposes; that the consideration for the notes sued upon was work which had actually been done at the time of this execution, and that they had not been paid. We know of no other essential fact required to be alleged in order to fix liability of the district.

But counsel press their contention that a governmental agency has no power under the laws of our State to issue promissory notes. The authorities they cite relate to notes given for borrowed money. It might well be that if the notes here sued upon appeared to have been given for borrowed money, unless perhaps to supply a casual deficiency (assuming but not deciding that a drainage district may borrow money to supply a casual deficiency of revenue, as other governmental authorities), the notes would be void ab initio, and that no action upon them could be enforced. In Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244), it was held that in such a case the suit would have to be brought and maintained on quantum meruit for so much of the borrowed money as could be traced to the ultimate use and benefit of the municipal corporation. That much they must pay, not under the terms of the contract,—the notes,—but as an obligation of honor and of conscience. See also Citizens Bank v. Town of Ludowici, 24 Ga. App. 201 (100 S. E. 229); Almand v. Board of Drainage Commissioners, 147 Ga. 532 (94 S. E. 1028), cited by movant. In the instant case, however, the notes sued on were not given for borrowed money or to raise funds with which to carry on the work; but were given to the contractor doing the work, directly and in settlement of the very work which he had done under his contract. They were not given for money borrowed from Williams or anybody else. In accord with our ruling is the case of Mayor &c. of Hogansville v. Planters Bank, 147 Ga. 346 (94 S. E. 310), that where a municipal corporation has bought and received services or material from another, at a price within the total amount of its fiscal resources,. collected or uncollected, and for purposes within the powers of the corporation, and, at the maturity of the obligation, is not able to pay therefor in cash, the giving of a note therefor is not the creation of an illegal debt for the corporation ; and the note is good. It was so determined in that ease, as in others of like effect, because it could not be said that the municipal corporation was giving any note for borrowed money.

As was said in the original opinion in this ease, any disposition of the fiscal funds after the obligation has been assumed, by the making of the drainage contract, would not reflect any invalidity upon the notes given therefor.

It would seem to follow as a matter of course that the holding to the effect that the notes were not invalid as against the district itself completely disposes of the contentions of the private sureties on the notes.

Moreover, in the motion for rehearing it was said that this court overlooked the fact that the preliminary agreement which was first made by the sureties with Williams, whereby these individuals agreed to guarantee to him the forthcoming of the money of the district from the sale of bonds, etc., was not attached to the petition so as to be tested by the demurrers aimed at the petition. Suffice it to say that while this may be true, it does not affect the result, for the appending of the preliminary agreement to become a surety was in nowise essential to the binding effect of a suretyship actually assumed by the signing of the notes. A consideration of the preliminary agreement, therefore, was not unfavorable or harmful to the movants; rather was it favorable to them, for the reason that in the preliminary agreement there was a condition operating to their advantage, not embodied in the face of the notes themselves.

The matter which has given us the gravest concern throughout the consideration of this case is this: Were these notes given for the whole of the two projects of drainage, or only in settlement of 90% of both projects? If they were given in settlement of 90% of both projects then, to our minds, our conclusions are certainly correct, for the reason that, under the terms of the contract entered into, there could be no pleading of failure of consideration of the contract when 90% of the work had been approved, under the contract, for payment. There can be no doubt of the fact that the board approved for payment 90% of both projects. In its certificate issued by the board, dated April 23, 1921, 90% of both projects was approved for payment, and settled for in cash or in notes. Furthermore, in that certificate, the board pointed out the only defects claimed with reference to the Big Kettle Creek project; and there was evidence that after the date of the certificate these defects were rectified. The certificate called attention to the fact that when these defects were cured and approved by F. M. Combs, one of the commissioners, “the work on Big Kettle Creek will be fully completed and accepted by us;” and Williams swore that he hired Combs to do this work, and that Combs did it; all of which completed the contract as to Big-Kettle Creek. So that there really is no doubt but that there was sufficient evidence of the completion of the Big Kettle Creek project. The only doubt left, therefore, is whether the notes given for Little Kettle Creek covered the whole work or only 90% thereof. If it covered only 90%, for reasons given above, the plea of failure of consideration could not affect full right of recovery thereon. The note for $3400, dated May 27, 1921, states: “This note is given for work done on Little Kettle Creek.” This note, as will be seen, antedated the date of the certificate referred to, in which it was certified that the note enclosed therein, amounting to $1059.40, was for 90% of both projects.' The only other note which is left of the three, antedates both of the others. This evidence thoroughly convinces us 'that, so far as Little Kettle Creek project is concerned, the notes in the series which pertain to that project relate to 90% of the same, and not the whole of the Little Kettle Creek project. Under the contract, when the work is approved for a 90% payment, there can thereafter be no plea of failure of consideration, in so far as that approval and the note given therefor is concerned; and such note is collectible in full, even though the remaining 10% of the work might be attacked, which does not seem to be in the case before us.

We are of the opinion that the recovery is legal and supported by sufficient evidence.

Motion denied.

Stephens and Bell, JJ., concur.


text:
    16467.
    FURNEY et al. v. TOWER.
    1. The evidence authorized the court to submit to the jury the questions whether the railway detective who shot the plaintiff was acting within the scope of his employment, and whether, if an arrest was intended, more force was used than the law allows, and whether the assault was wilful and wanton, or was justified.
    2. There was sufficient evidence to authorize a charge to the jury on the question as to permanent injuries.
    3. The charge was not erroneous as expressing an opinion as to whether there were permanent injuries.
    4. The excerpt from the charge on permanent injuries, which was complained of as excluding a recovery for temporary injuries, was not erroneous for that reason.
    5. Where different elements of damages are claimed, as to which there are different rules for estimating damages, the different rules should be given in charge to the jury. The charge given in this case was lacking in this respect, and may have confused the jury and caused them to apply to one element of damages the rule applicable to another.

      6. Under the facts of this case the court should have instructed the jury as to decrease of earning- capacity in declining years.
    7. The jury should have been instructed that any amount found for diminished future earnings should be reduced to its present cash value.
    Decided December 22, 1925.
    Action for damages; from Floyd superior court—Judge Wright. April 7, 1935.

      Maddox, Matthews & Owens, for plaintiffs in error.

      Denny & Wright, contra.
   Jenkins, P. J.

Harry Tower sued C. A. Furney and the Southern Railway Company, alleging that Furney was employed by the railway company as a detective and special officer, to patrol its yards and exclude and remove persons from the yards and properties of the company; that on February 13, 1934, the plaintiff was in the yards of the railway company, at Rome; that Furney approached and caught him by the coat and started to drag him with him; that Furney did not advise him that he was an officer, and the plaintiff, thinking and believing that he was being held up, ran away to avoid being assaulted; that he ran between two cars, and, while he was climbing over the coupling, Furney shot him through the left thigh; that Furney then handcuffed him and took him to the depot, after which he was carried to the county jail, where he remained for three days and two nights. Plaintiff alleged that he was permanently injured by the assault, and that his capacity for labor in his calling was thereby permanently diminished; that he suffered great pain and would continue to do so; and that he made expenditures for doctor’s and nurses’ aid and medicines. He prayed for a judgment for $35,000. The defendants filed answers in which they admitted that Furney was so employed by the railway company, but denied all other material allegations of the petition. On the trial the plaintiff admitted that he had stolen a ride on trains of the railway company, in violation of law; but he contended that he merely ran from Furney, and that, while trying to escape, he was shot as alleged. On the other hand, it was contended by the defendants that Furney shot the plaintiff in self-defense’after the plaintiff had been advised by the officer that he was being arrested; that the plaintiff, in resisting the arrest, knocked Furney down and bruised his body, and was actually advancing upon Furney with a deadly weapon at the time he was injured; that Furney, seeing that his life was in danger, shot the plaintiff in order to disable him, but not to kill him. It was also contended by the railway company that Furney was acting beyond his authority in so shooting the plaintiff. Both defendants contended that the plaintiff was not permanently injured as claimed. There was evidence for the plaintiff as to the nature and character of the injury, the extent and length of time of his suffering, and of his comparative earning capacity before and after the injury. The trial resulted in a verdict for the plaintiff in the sum of $5,000; both defendants filed a motion for new trial, which was overruled, and they excepted.

The entire charge of the court with reference to, the damages which might be recovered is as follows: “Under these rules of law, if you find the defendants are liable, then I charge you the plaintiff would be entitled to recover for his pain and suffering, whatever you may find that to be, and pain and suffering, the amount of damages, if any, to be allowed for that, is left to your enlightened consciences as impartial jurors—to give some fair, just sum for such pain and suffering, if it existed in this case. In addition to that, if the defendants are liable, the plaintiff would be entitled to recover for his lost time, whatever you may find that to be under the evidence. And, if the evidence shows he was permanently injured, he may be entitled to recover damages for his permanent injury, such sum as is fair and just between the parties and which would justly and rightly compensate him for the permanent injury, whatever the evidence may show that to be, if any, in the case.” Complaint is made that the evidence did not warrant a charge on permanent injury; that the court, in the portion last quoted, expressed an opinion that the plaintiff had been permanently injured; that the language of the last portion of the excerpt limited the jury to a finding for permanent injury to the exclusion of temporary injury, in the event they should find the defendants to be liable; that no rule was given to the jury as a basis for estimating and determining the damages on account of permanent injuries; that the charge did not require that any amount recovered for his injuries should be reduced to its present cash value; and that the charge failed to call attention to the fact that increasing age might reduce the plaintiff’s earning capacity.

There was sufficient evidence in the case to authorize the court to submit to the jury the issue as to whether Furney, in making the alleged assault upon the plaintiff, was acting within the scope of his employment by the railway company, whether such assault was wilful and wanton, and whether, if an arrest was intended, more force was used than is allowed in law, and whether such alleged assault was justified; and we find no errors in submitting these questions.

There was sufficient evidence in the case to authorize a charge upon the question of permanent injuries claimed by the plaintiff. “The jury were authorized to infer that the plaintiff’s injuries would be permanent, from the character of her suffering, and the length of time that it had continued up to the date of the trial; and hence it was not error to charge on the subject of permanent injuries. This is so though there was no direct and positive evidence that her injuries were in fact of a permanent character.” Macon Railway &c. Co. v. Streyer, 123 Ga. 279 (3) (51 S. E. 342).

The charge is not erroneous as expressing an opinion upon . the question whether or not permanent injuries had been sustained.

The last paragraph of the quoted excerpt was not erroneous for the reason that it, within itself, excluded a recovery for temporary injuries in the event the defendants should be found liable. While the exception taken to it states that no other reference to the measure of damages for permanent injuries was made, no exception is taken to the failure of the court to charge on the question of damages for temporary injuries.

“In an action against a railroad company, where several different elements of damage, are claimed, it is error requiring the 'granting of a new trial for the judge to fail in his charge to the jury to give them any rule for estimating the damages claimed; and this is true notwithstanding no written request for such charge is made by the defendant.” Southern Railway Co. v. O’Bryan, 112 Ga. 127 (1) (37 S. E. 161); Atlanta, Birmingham &c. R. Co. v. Barnwell, 138 Ga. 569 (5) (75 S. E. 645). In the instant case, while the judge gave the correct rule in estimating damages for the alleged pain and suffering, an altogether different rule would apply in fixing damages for diminished earning capacity, and the jury might have been confused into applying the same rule as had been laid down for pain and suffering. “Where, in an action to recover on account of a personal injury, it is sought to recover damages on account of loss of time, physician’s bills incurred, pain and suffering, and permanent impairment of capacity to labor and earn money, the charge should not confuse the methods for estimating the different elements of damages.” Pickett v. Central of Ga. Ry. Co., 138 Ga. 177 (2) (74 S. E. 1027, Ann. Cas. 1913 C, 1380). The rule would be different where the only element of damages alleged which is actually insisted upon is for pain and suffering. Augusta & Summerville R. Co. v. Randall, 85 Ga. 297, 298 (11 S. E. 706). We are unable to agree with the contention of counsel for defendant in error that the effect of the charge as given was to limit the right of recovery to damages for pain and suffering.

As to whether the court committed reversible error in omitting to call the attention of the jury to the fact that in his declining years there might be a decrease in the capacity of the plaintiff to labor at his calling and his ability to earn money, see Western & Atlantic R. Co. v. Boberts, 144 Ga. 250 (8) (20 S. E. 640); Central of Ga. Ry. Co. v. Hill, 21 Ga. App. 231, 235 (94 S. E. 50). But see Central of Ga. Ry. Co. v. Ray, 129 Ga. 349 (2) (58 S. E. 844); Merchants & Miners Transportation Co. v. Corcoran, 4 Ga. App. 654, 655 (6 a) (62 S. E. 130). Whatever may be the absolute rule, we think that in this case, where the evidence is in sharp conflict and the verdict rendered substantial in amount, such amplification of the charge should have been made, as it was held should have been done in Western & Atlantic R. Co. v. Moore, 94 Ga. 457, 458 (6) (20 S. E. 640), and in Tennessee, Alabama &c. R. Co. v. Neely, 25 Ga. App. 310 (1) (103 S. E. 177).

Several elements of damages being claimed, including past and future pain and suffering and future diminution of earning capacity, and there being evidence- showing the relative earning capacity of the plaintiff before and after the injury, the jury should have been instructed that any amount found for diminished future earnings should be reduced to its present cash value. Atlanta & West Point R. Co. v. Newton, 85 Ga. 517, 528 (11 S. E. 776); Louisville & Nashville R. Co. v. Paschal, 145 Ga. 521, 530 (4) (89 S. E. 620); Louisville & Nashville R. Co. v. Trout, 141 Ga. 121 (2) (80 S. E. 622); Central of Ga. Ry. Co. v. Hill, 21 Ga. App. 231, 235 (94 S. E. 50). This does not contravene the ruling made in Seaboard Air-Line Ry. Co. v. Vandiver, 25 Ga. App. 635, 636 (3) (104 S. E. 24), in which case exception was taken to the failure of the court to “instruct the jury that they should reduce to a cash value the gross amount found for all the items of damage proved, including past pain and suffering and past earnings, as well as future pain and suffering and future earnings.” The question of reducing damages for future pain and suffering to a present cash value, is not involved.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16475.
    MUECKE v. CITY OF MACON
    1. The constitution of this State provides that “Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.” Civil Code (1910), § 6388. But in the application of this provision of the fundamental law the courts have uniformly recognized the rule that where none of the property, or only a part of it, is actually taken for public use, any enhancement of the market value which arises directly from such public improvement and which accrues directly to the particular property remaining may be set off against the gross damage which may be thus occasioned. Thus, “The measure of damages for an injury to abutting property caused by a change in the grade of the street is the difference, if any, in the market value of the property before and after the change in the.grade, as caused by such change.” Oity of: Atlanta v. Nelson, 142 &a. 324, 325(4) (82 S. E. 899).
    2. The court did not err in admitting testimony or in giving the charge excepted to, for any of the reasons assigned. These exceptions are dealt with in the opinion.
    Decided December 22, 1925.
    Action for damages; from Bibb superior court—Judge Malcolm D. Jones. April 17, 1925.
    Tbe city introduced evidence, not excepted to, going to show that the public improvement contemplated at the time of the grading of the street embraced not only the grading, widening, and lowering of the street, but also the laying of sidewalks, the establishment of a system of storm drainage, and paving the street. There was evidence for the city, admitted over the plaintiff’s objection, to the effect that during the eighteen-month period since the work of grading was begun and the time of the trial, concrete sidewalks and curb lines were laid out, that the street was being widened and pipes installed preparatory to paving the street, and that a paving contract was made by the city and paving instructions were given, and that the money for such work was in the treasury. Exception is taken to this excerpt from the charge of the court: “ On the other hand the city contends that the plan of the city was originally to level the street, to grade out and pave, as a part and parcel of the same plan; that the cutting down of the street was part of the plan preparatory to paving, and that they are now ready to go on with the paving. You consider all that evidence in the case and take all this testimony into consideration, and see whether or not the market value has been increased or diminished.”

      Walter DeFore, James G. Mstes, for plaintiff.

      Grady Gillon, H. D. Bussell, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) Plaintiff contends that the evidence objected to was illegal and that under the rulings made by the Supreme Court in Estes v. Mayor &c. of Macon, 103 Ga. 780 (2) (30 S. E. 246), and City of Atlanta v. Nelson, 142 Ga. 324, 325 (4) (82 S. E. 899), the charge was erroneous, in that the subsequent improvements, although embraced in the original general scheme of improvement, referred to in the evidence and by the charge, were, at the time the grade was changed, mere prospective happenings, and were too uncertain to be considered in fixing the value of the property at that time or shortly thereafter. This evidence and this excerpt from the charge were further excepted to, on the ground that they authorized the jury to determine the present value of the properly instead of its value at the time the grading was done or shortly thereafter. We do not think that the evidence objected to was improperly admitted, or that the excerpt from the charge was erroneous for any of the reasons assigned. It does not appear that the excerpt from the charge related at all to the question as to when the value of the property was to be determined. In other portions of the charge the judge had fairly and fully instructed the jury on the proper measure of damages. Here he was not dealing with the question as to the time when the market value should be determined, but was giving expression to the idea that such prospective improvements with reference to this particular street, as embodied in the original and general plan of the city, could be considered as affecting the value of the property at the time of the alleged injury. Nor do we think that the evidence was inadmissible or the charge erroneous for the other reason assigned, and which is more fully stressed in the brief for the plaintiff. This case differs materially in its facts from that of Estes v. Mayor &c. of Macon, supra. Here the testimony related to improvements made in the fulfilment of the city’s general plan of improvements of this particular street, of which plan the grading was but a part. In the Estes case it does not appear that the improvements related to a co-ordinate plan of which the grading was a part. The opinion in that case points out that the case was tried several years after the change of grade, and the witness for the city refers to the “present” plan of the city. The plan related to the general city improvements, and not to the particular street involved, as in this case. It appears also in that case that such general city plan had not in fact been in any wise applied to the particular street in question, “nor was there any evidence of any intention on the part of the authorities to do so.”

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: JenkinS, P. J.

text:
    16481.
    SOUTHERN CO-OPERATIVE FOUNDRY CO. v. ELLIOTT.
    In charging as to the right of a servant to recover for negligence of the master in furnishing defective appliances, the court erred in failing to charge as to the servant’s means of knowledge of the defect and as to Ms duty to use ordinary care in discovering it.
    The charge as to the measure of damages was defective for reasons stated in the case of Furney v. Tower, ante, 743 (6, 7).
    Decided December 22, 1925.
    Damages; from Floyd superior court—Judge Wright. April 4, 1925.
    W. B. Elliott sued the Southern Co-operative Foundry Company for damages because of personal injuries to himself while in the defendant’s employ as a moulder. He contended that he was injured on account of the failure of the defendant to furnish him a safe place for work, and on account of having been furnished with an appliance which was not safe and suitable for the work he was called upon to perform with it. He alleged that one Tarvin, who he alleged was the alter ego of the master, gave him a command to use the appliance complained of, and to make a journey in his work different from what he was accustomed to make in doing his work, and that in making this new journey, with an alleged defective ladle filled with’ molten metal which he was pouring, he ran into a pile of frames, in or near his path, causing the ladle, or the frame of it, to tear apart, and the metal to be spilled upon his foot, causing the injury complained of. He alleged that he was permanently injured, that he suffered pain, and had lost time and earnings, and that he would continue permanently to suffer pain and loss of earnings to a stated extent. The defendant in its answer denied the substantial allegations of the plaintiff, and contended that he was injured by reason of his own carelessness, and that he could by the exercise of ordinary care have avoided the consequences of any alleged negligence on the part of the master.' The trial of the case resulted in a verdict against the defendant for $1,000. The defendant’s motion for a new trial was overruled, and it excepted.

      Maddox, Matthews & Owens, for plaintiff in error.

      Porter & Mebane, Henry Walker, contra.
   JenkinS, P. J.

1. “In the trial of a case brought by a servant against a master to recover damages for personal injuries received by the servant in the use of defective machinery furnished by the master, it was error to charge, in effect, that the master was liable for the injuries so received if he was negligent in failing to provide machinery reasonably safe for the work, or to keep the machinery in proper repair, and that if .the master had been negligent in either of these particulars, and the servant was injured in consequence of that negligence, the master would be liable, without instructing the jury in the same connection, either literally or in substance, that before the servant could recover for such injuries, it must appear that he did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known thereof.” Manchester Manufacturing Co. v. Polk, 115 Ga. 543 (3) (41 S. E. 1015). The following charge was erroneous because of its practical incompleteness in the respects pointed out in the foregoing quotation: “It was the duty of the [master] in this case, to exercise ordinary care for the safety of those in its service in providing them with machinery and appliances reasonably safe and suitable for their use; and where the servant is injured through a defect existing in the machinery or appliances, which was known to the master, or ought to have been known to him, and which was unknown to the servant, the master might be liable for the injury.” Moreover, for the same reason, the following charge was also erroneous: “I charge you further, that the master is bound to exercise ordinary care for the safety of those in his service, in providing them with machinery, and a reasonably safe and suitable place for their use, and where there is a defect in such machinery, which was known to the master, or ought to have been known to him in the exercise of ordinary care, and which was unknown to the servant, and the servant is injured thereby, the master is liable for the injury.” The error of omission in both instances was in failing to charge with reference to the servant’s equal means with the master of knowing of defects, and that the servant was required to use ordinary care in discovering defects. McDonnell v. Central of Ga. Ry. Co., 118 Ga. 86 (44 S. E. 840); Brush Electric &c. Co. v. Wells, 103 Ga. 512 (1) (30 S. E. 533); McDaniel v. Acme Brewing Co., 113 Ga. 80 (1) (38 S. E. 404); Kilgo v. Rome Soil &c. Co., 16 Ga. App. 737 (4) (86 S. E. 82); Wing v. Savannah Guano Co., 17 Ga. App. 534 (1) (87 S. E. 827). The rule applies in cases where the servant is injured in executing the command of his master, even though the command is accompanied by an assurance of safety. Central of Ga. Ry. Co. v. Lindsey, 28 Ga. App. 198 (110 S. E. 636).

2. The charge relative to the measure of damages .is substantially the same as that excepted to in' Furney v. Tower, ante, 739, and the exceptions taken to it are practically • the same. It was defective for the reasons assigned in the 6th and 7th divisions of the decision in that case.

3. The remaining exceptions taken to the charge relate to matters not likely to occur on another trial, and need not be considered.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16493, 16518.
    SAUERS v. SACK; and vice versa.

    1. In a suit for mere compensatory damages, occasioned by an assault, the fact tbat tire defendant, at the time the tort was committed, was in the throes of an epileptic fit, or other like condition of unsound mind, so as to be incapable of forming'or having any mental intent in the doing of the injury, is no defense to the action.

      2. In such an action it was error to disallow testimony offered by the defendant to the effect that she was accustomed to having such attacks; and that in like previous attacks she had not manifested any such violence and physical strength as was claimed in the instant case, when the rejection of such testimony was excepted to on the ground that it tended to show that the defendant “was unable to make any assault whatever upon any person, and unable to make an assault of the kind and character as that which plaintiff contended was made upon her by defendant.” Stoneeypher v. Stale, 17 Ga. App. 818 (2, 3) (88 S. E. 719). In such a ease it is not the general character of the defendant for violence upon which it is sought to throw light by the proffered testimony. See Stoneeypher v. State, supra; Western efi Atlantia R. Oo. v. Slate, 23 Ga. App. 225, 226 (3) (97 S. E. 878).
    2. The defendant’s character as such was not involved, but the evidence should have been admitted to show the effect of the disease upon the defendant, as manifested in previous attacks, for the purpose of throwing light upon the verity of the alleged violent assault.
    3. The jury, for the second time, having found a verdict in favor of the plaintiff, which is supported by the evidence, and which is not excepted to as having been in excess of compensatory damages, and the statute governing the city court of Savannah providing that “no second new trial shall be granted in any case except for errors of law, or where there is no evidence to support the verdict,” the action of the court in setting aside the verdict of the jury would have to be reversed, but for the error of law in rejecting the testimony referred to in paragraph 2 above. Ga. L. 1915, p. 123.
    Decided December 22, 1925.
    Action for damages; from city court of Savannah—Judge Freeman. April 24, 1925.
    The defendant, who was shown to be accustomed to having epileptic or other like attacks, requested aid from the plaintiff, who had no previous acquaintance with her, just at the time of the coming on of such an attack. She went to the plaintiff’s home and stated to her, sitting on her front porch, that she was feeling faint, and requested that she be permitted to lie down; whereupon the plaintiff conducted her to her own apartment and allowed her to recline on her own bed. The plaintiff contends that while she was aiding and treating the defendant, the latter, without provocation or justification, raised up, seized her by the throat, and choked, strangled, and bruised her; that in extricating herself from the defendant’s grip the plaintiff was precipitated down several flights of stairs, and thereby was seriously injured; that the injury caused the plaintiff, who was a married woman and in an advanced stage of pregnancy, to have a miscarriage, and caused her to have a serious surgical operation, and to lie up disabled and suffering several days in a hospital, and to incur on her own account certain items of expense, such as doctor’s bills, hospital bills, and nurses’ hire, made necessary by the fact that her husband, on account of financial reverses, could not obtain such for her; and that it incapacitated her for the performance of her household duties. The plaintiff’s allegations relative to the assault, as set forth above, were denied in the answer of the defendant. There was no other witness of the assault. The defendant disclaimed any knowledge or recollection of the assault or as to what happened during the paroxysm. The only rebutting evidence as to the assault was that referred to in the second division of the syllabus. It appeared from the bill of exceptions that the trial under review was the second trial of the case, there having been a previous verdict for the plaintiff, which was set aside by the court below on motion for a new trial. The verdict in the next trial was again for the plaintiff. The defendant filed a motion for new trial, on various grounds, in one of which the exclusion of the evidence referred to in the second division of the syllabus was complained of. The trial court sustained the motion upon the general grounds, and overruled the special grounds. The plaintiff excepted to the granting of the second new trial; and by cross-bill of exceptions the defendant assigns error on the overruling of the special grounds of the motion.

      Leo A. Morrissy, for plaintiff.
    Seabrook, Kennedy & McWhorter, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) With reference to the rule adopted in the first division of the opinion, the authorities are uniform to the effect that in such a tort by an incompetent upon a nonconsenting plaintiff, where intent is no .ingredient of the tort committed (which is the case here), insanity or incompetency, of large or small degree, is no defense to a civil. action for mere compensatory damages. It is stated in a general note in 26 L. R. A. 153, that “the general doctrine that insane persons must be held liable to make compensation for damages caused by their torts, distinguishing these from criminal liability, has been recognized from a very early period.” In the case of Weaver v. Ward, Hobart’s Reports, 134 (published in 1646), it was held that “if a lunatic hurt a man he shall be answerable for the trespass.” The English writers of a very early date lay down the same doctrine. Thus, in-Hale, P. C., 15, it is held that in cases of lunacy or other like disability, such conditions do not relieve from liability for making compensation in civil cases. In Bacon’s Abridgement, on the topic of Idiots and Lunatics, it is said: “It is clearly agreed that if one who wants discretion commits a trespass against the person or possessions of another, he shall be compelled in a civil action to give satisfaction for the damage.” It is said in McIntyre v. Sholty, 121 Ill. 660 (13 N. E. 239), affirming 24 Ill. App. 605, that for killing a person, the defense of insanity will not avail to defeat a judgment for mere compensation in a civil case. In that case the shooting was under such circumstances as would have made the act a felony if the defendant had been actually sane. In the case of Jewell v. Colby, 66 N. H. 399 (1891), it was said that evidence of insanity was not admissible to defeat the right to recover, or at all, unless plaintiff claimed punitive or exemplary damages, or a sum greater than mere compensation for the actual loss sustained. The authorities, we might interject here, are uniform to the effect that such an afflicted person can not be held liable for punitive or vindictive damages, but only compensatory damages are ever allowable against aii incompetent. The rule here enunciated was recognized, arguendo, in the case of Central of Ga. Ry. Co. v. Hall, 124 Ga. 322, 332 (52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. Cas. 128), where the following language was used: “Nevertheless, in 16 Am. & Eng. Enc. Law (2d ed.), 622, it is said: ‘A lunatic .is not responsible for crime, because he is not a free agent, capable of intelligent voluntary action, and therefore is incapable of guilty intent; but in a civil action for an injury done to the person or property of another, the intent is generally immaterial, and the rule is that an insane person is liable for his torts the same as a .sane person, except for those torts in which malice, and therefore intention, is a necessary ingredient. . . In respect to this liability there is no distinction between torts of nonfeasance and misfeasance; and consequently an insane person is liable for injuries caused by his tortious negligence. Insane persons are held to this liability on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it.” One of the leading cases upon the subject is that of Williams v. Hays, 143 N. Y. 442 (38 N. E. 449, 27 L. R. A. 153, 155, 42 Am. St. Rep. 743), where the court said: “The important question for us to determine then, is whether the insanity of the defendant furnishes a defense to the plaintiff’s claim, and I think it does not. The general rule is that an insane person is just as responsible for his torts, as a sane person, and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient, like libel, slander, and malicious prosecution. In all other torts, intention is not an ingredient, and the actor is responsible, although he acted with a good and even laudable purpose, without malice. The law looks to the person damaged by another, and seeks to make him whole, without reference to the purpose or the condition, mental or1 physical, of the person causing the damage, ^he liability of a lunatic for his torts, in the opinion of judges, has been placed upon several grounds. The rule has been invoked that, where one of two innocent persons must bear a loss, he must bear it whose act- caused it. It is said that public policy requires the enforcement of the liability, that the relatives of a lunatic may be under inducement to restrain him, and that tort-feasors may not simulate or pretend, insanity to defend their wrongful acts, causing damage to others. The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.” In Ruling Case Law, 596-, § 51, the rule is stated in practically the same language. In Cooley on Torts, p. 98, attention is called to the fact that in such cases the question of motive is usually of aggravation only. In Buswell on Insanity, 355, the same general rule is stated. Instructive notes leading to the same conclusion are to be found in 21 Ann. Cas. 1350; 26 L. R. A. 153, and 42 L. R. A. (N. S.) 84. Although the grant of a new trial could not be sustained on the general grounds, under the law as set forth in the first headnote, a new trial was, however, properly granted for the reasons set forth in the second headnote. See Morris v. Imperial Ins. Co., 106 Ga. 461, 462 (5) (32 S. E. 595); Allen v. Schweigert, 113 Ga. 69, 70 (4) (38 S. E. 397).

Judgment affirmed on the main bill of exceptions; reversed on the cross-bill.

Stephens and Bell, JJ., concur.


text:
    16506.
    Hall v. Alford.
    Decided December 22, 1925.
    Certiorari; from Fulton, superior court—Judge Bell. April 6, 1935.
    STATEMENT OE EACTS BY JENKINS, P. J.
    L. H. Alford sued out a dispossessory warrant in the municipal court of Atlanta against T. A. Hall. The defendant filed a counter-affidavit and gave bond. On the trial a judgment was rendered in favor of the plaintiff. The defendant sued out certiorari returnable to the January term, 1935, of Fulton superior court; the first day of the term being January 5, 1935. It appears that the judge who tried the case did not file his answer to the certiorari until January 16, 1935. Upon the hearing of the certiorari, on April 6, 1935, Alford moved to dismiss the certiorari, on the ground that the answer of the trial judge was not filed within the time required by law, to wit, five days before the beginning of the term; no order having been applied for and obtained by the petitioner for certiorari enlarging the time for filing. This motion was sustained and the certiorari dismissed, and Hall filed a bill of exceptions complaining of the dismissal of the certiorari. A motion to dismiss the bill of exceptions has been filed, upon the ground that since the dismissal of the certiorari the errors there complained of have become moot by. reason of the conduct of the plaintiff in error. This motion is duly verified by Alford’s counsel; and it alleges in substance the following: that the plaintiff in error, after the dismissal of the certiorari by the superior court on April 6, 1935, and before the tendering, approval, and filing of this bill of exceptions on April 30, 1925, consented to, acquiesced in, and agreed to the judgment dismissing the certiorari, by bringing a renewal petition for certiorari, in Fulton superior court, under date of April 8, 1925, between the same parties and relating to the same subject-matter. A certified copy of the renewal petition for certiorari is attached to the motion to dismiss. No answer or denial of the allegations of the motion to dismiss the bill of exceptions has been filed by the plaintiff in error.
   Jenkins, P. J.

It appearing from the motion and the affidavit of counsel for defendant in error (which, though served on plaintiff in error, is not answered or denied), that the judgment excepted to by the plaintiff in error, dismissing his petition in certiorari, on the ground that the magistrate had not filed his answer in the required time, was acquiesced in by the filing of a renewal suit in certiorari, brought before the tendering of the bill of exceptions in the former suit, the right of exception must be regarded as having been relinquished, and the writ of error must therefore be dismissed; but without prejudice to the prosecution of such renewal action. If the bill of exceptions had been tendered and filed before such renewal suit was filed, the rule would be different, for in that ease there would appear to be no abandonment of the first action. See Randolph v. Brunswick &c. R. Co., 120 Ga. 969, 970 (48 S. E. 396); Turner v. Hill, 17 Ga. App. 257 (86 S. E. 460) ; Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 S. E. 373).

Writ of error dismissed.

Stephens and Bell, JJ., concur.

Homer G. Denton, B. B. Lambert, for plaintiff in error.

"Noah J. Stone, contra.


text:
    16512.
    Phelps v. Gibbs.
    Decided December 22, 1925.
    Complaint; from Cook superior court—Judge Knight. April 13, 1925.
    STATEMENT OF FACTS BY JENKINS, P. J.
    Mrs. Eliza Gibbs sued J. A. Phelps on an account, the only item of which was “Balance due on purchase of farm near Sparks, 'Georgia, .$120.00.” The defendant filed an answer, in which the allegation of indebtedness was denied, except as hereinafter explained. The explanation was about as follows: that the plaintiff approached the defendant with reference to a sale to him of the plaintiff’s farm; that the plaintiff agreed “to put in as a part of the consideration personal property which he claimed to be upon the farm and which he would leave on the farm and deliver to this defendant, which said personal property amounted, as claimed by said G-ibbs, to $127, but when the trade was finally closed this defendant obligated to pay to the plaintiff or her agent the sum of $120 for the real estate and personal property; that certain items of the personal property were not delivered to him, and that he was damaged to that extent; and he prayed for recoupment. He admitted that he was indebted to the plaintiff in the sum of $26.75, which he offered to pay into court, as a continuing tender, praying to be relieved of interest and cost. The case proceeded to trial before a jury. The defendant moved for a nonsuit, and, the judge having intimated that the motion might be sustained, the plaintiff filed an amendment, in which she set up practically the facts alleged in the defendant’s answer; that is to say, that the plaintiff sold to the defendant a certain farm for the price of $4,000; and in the same trade and as a part thereof sold to the defendant certain personal property for'$120, making the total price $4,120; that the defendant paid $2,000 cash, assumed a loan of $2,000, “and left a balance due on the total transaction of $120, which he now owes, which is now sued as a balance due on the whole.” On the*s filing of this amendment the defendant demurred on the grounds that the amendment undertook to set up a new and distinct cause of action; that the land was not described by metes and ■bounds, that the purchase price of the land was not set out, that the personal property was not described, that the amount to be paid therefor was not set forth, and that it was not shown how much was unpaid on the land and how much on the personal property. The demurrer was overruled, and the defendant excepted pendente lite. The motion for nonsuit and the motion to direct a verdict were overruled. The trial resulted in a verdict against the defendant for $110. The defendant’s motion for new trial was overruled, and he excepted, assigning error on the rulings stated.
   Jenkins, P. J.

1. Where the only item of an account sued upon was, “Balance due on purchase of farm near Sparks, Georgia, $120.00,” an amendment to the petition, to the effect that in the same transaction the defendant bought from the plaintiff the said farm, together with certain hay, tools, machinery, etc., on the farm, for the total price of $4,120, of which $2,000 was paid in cash, and assumed a loan of $2,000, leaving due a balance of $120, the amount sued for, was not demurrable as setting up a new and distinct cause of action; it appearing that the contract which was laid as the basis of the action in assumpsit was entire, and that there was nowhere any departure from the alleged contract. Consequently, there was no error in overruling the demurrer to the petition as amended.

3. There was no error in overruling the motion for a nonsuit.

4. The evidence supported the verdict, and the charge of the court, in setting forth the contentions of the plaintiff, did not invade the province of the jury, and was in conformity with the foregoing principles of law.

Judgment affirmed.

Stephens and Bell, JJ., concur.

B. A. Hendricks, Hendricks & Hendricks, for plaintiff in error.

IF. D. Buie, contra.


text:
    16519.
    COMMERCIAL BANK OF ATHENS, for use, etc., v. COHEN.
    A check given for whisky, being for an illegal consideration, is void, and therefore not enforceable even by an innocent purchaser of the check. Under the facts of this case the signer of the check sued upon was not estopped from setting up its invalidity.
    Decided December 22, 1925.
    Complaint; from Clarke superior court—Judge Fortson. April 10, 1925.
    The Commercial Bank of Athens brought suit, for the use of Frank Posterio, against Edward M. Cohen, upon a cheek for $375. The defendant filed a plea alleging that the check was given to L. B. Haar as the purchase price of a certain lot of whisky bought by the defendant from Haar, and which was to be delivered by him but was never delivered. There was no contradiction of defendant’s testimony to the effect that the check was given to Harr for whisky. The plaintiff, by amendment, alleged that the defendant was es-topped from claiming immunity from liability on the cheek to the bank (which cashed it), for the reason that he obtained notice that, notwithstanding Haar’s failure to deliver the whisky as agreed, the holder of the check was peddling the check around town, attempting to have it cashed, and that he ought to have notified the banks of the city not to cash it, when he had ample time and opportunity so to do. The evidence showed, however, that the check was given after banking hours, and was cashed after hours by a different bank than the drawee, in about thirty minutes from the time that the drawer knew that he had attempted to procure an individual to cash it. Upon the conclusion of the evidence the court directed a verdict for the defendant. The plaintiff assigns error thereon.

      Lamar C. Bucher, for plaintiff.

      Erwin, Erwin & Nix, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. In determining the rights of a bona fide holder for value of a check given by the drawer in payment for intoxicating liquors, section 4251 of the Civil Code (1910), which declares, “A contract to do an immoral or illegal thing is void,” is to be construed in connection with section 4286, which declares that the bona fide holder for value of a draft, or other negotiable instrument, who receives it before it is due, and without notice of any defect or defense, is protected from any defense set up by tbe signer, except those therein specifically named, one of which is where the contract is based on a “gambling, or immoral and illegal consideration.” The use of the word “and” in the latter section does not seem to acquire any controlling significance, since the first section, which makes the illegal instrument void, uses the disjunctive “or.” Where a note or check is based on an illegal consideration, section 4251, supra, declares the instrument to be void, and it is unenforceable anywhere. Johnston v. McConnell, 65 Ga. 129 (2). The rule is different where the consideration is not illegal and the instrument void, but the infirmity consists merely in noneompliance with a statutory requirement, such as failure, under what is known as “the blue-sky law,” to insert the consideration in the face of the instrument. Smith v. Wood, 111 Ga. 221 (1) (36 S. E. 649) ; Heard v. National Bank of Wilkes, 143 Ga. 48, 50 (84 S. E. 129). Moreover, it was held in International Agricultural Corporation v. Spencer, 17 Ga. App. 649 (1) (84 S. E. 129), that “an illegal and void contract becomes an immoral contract when it is made a crime by statute.” Thus, a cheek given for such an illegal and immoral consideration being void, it can not be enforced by law, even in the hands of an innocent purchaser for value before due and without any notice of defenses to it. Crigler v. Laramore, 18 Ga. App. 132 (88 S. E. 901).

2. Under the facts disclosed by the record, no question of estoppel is involved. The signer of the check having the legal right to stand upon its invalidity, it was not incumbent upon him to notify the general public that the instrument was void. There are some authorities to the effect that where the signer of such an instrument fraudulently induces a bona fide purchaser to acquire it, he is estopped from contesting its validity. See 15 L. R. A. (N S.) 1023; Ball v. Powers, 62 Ga. 757. No such question arises here. In point of fact the check was given after banking hours, and was cashed after hours by a bank other than the drawee, within about thirty minutes or less from the time that the defendant was apprised that the holder had attempted to obtain the money thereon from an individual. See Comer v. Dufour, 95 Ga. 376, 378 (22 S. E. 543, 30 L. R. A. 300, 51 Am. St. Rep. 89).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16527.
    SAUNDERS & McMULLIAN v. HUDSON.
    The judge’s remark to counsel, complained of in the motion for a new trial as an expression of opinion upon the evidence of a witness then on the stand, is not ground for a new trial.
    On the trial of an action to recover from a partnership a sum paid by the plaintiff on the purchase-price of the partnership business, the death of a member of the firm did not render inadmissible as evidence for the plaintiff a letter addressed to the firm by the plaintiff, in the lifetime of that member, stating that the latter told him that the firm would return the money.
    The charge of the court was not subject to the exception taken as to the statement therein of an admission on the part of the defendants.
    The verdict in favor of the plaintiff (a second verdict) is supported by the evidence, and no error of law appears.
    Decided December 22, 1925.
    Complaint; from Seminole superior court—Judge Yeomans. April 29, 1925.
    R. A. Hudson sued a partnership, composed of J. T. Saunders and A. J. McMullian, for $3,500, alleging: that the plaintiff purchased from the defendants the firm business, consisting of lands, leases, naval stores, and other personal property; that the consideration of the sale was $32,000,—$3,500 cash, and_the balance in two notes, one for $5,000, payable March 23, 1919, the other for $3,500, payable October, 1919, and the payment of an indebtedness of the selling firm to named factors, amounting to $20,000, and that he made the cash payment of $3,500, and executed the two notes; that it was agreed between them that the selling firm should arrange with the said factors for them to taire the plaintiff’s paper and obligation in lieu of the firm’s which they held, and that, looking to that end, A. J. McMullian was immediately to accompany him to Savannah to perfect the arrangement; but instead of McMullian going with him to Savannah, Saunders, the other partner, went with him; that their effort to obtain the substitution of his paper for the paper of the selling firm was fruitless, the factors refusing to make such change; that the parties to the sale thereupon mutually agreed to rescind it, the firm agreeing to deliver back to the plaintiff his notes, and pay over his cash payment of $3,500'; that while they in fact returned to him his two notes, they failed and refused to pay him the $3,500; and he prayed judgment for that sum and interest. The defendants in their plea admitted the sale and that they received the cash payment of $3,500 and the two notes, but denied that there was any agreement on their part to negotiate a substitution of the plaintiff as debtor to their factors in lieu of themselves; they alleged that the object of their trip to Savannah was to arrange for the payment of the debts due to the factors which had been assumed by the plaintiff; that while a rescission was agreed upon, the terms were different from those stated by the plaintiff; that the rescission agreement was to the effect that they would declare the trade off by their turning back to the plaintiff the two notes, and his turning over to them his deeds, papers, etc., and allowing them to retain the $3,500 cash payment which had been made by him; and they alleged that upon such rescission they resumed control of their property and business. The trial of the case resulted in a verdict for the plaintiff. The defendants’ motion for new trial was overruled, and they excepted. It appears that this is the second "verdict for the plaintiff; a former verdict having been set aside. See Saunders v. Hudson, 30 Ga. App. 732 (119 S. E. 535).

      Hartsfield & Conger, for plaintiffs in error.

      Pottle & Hof may er, J ohn B. Wilson, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. The following occurred on the trial: Counsel for defendants had been questioning Hudson, the plaintiff, asking him if he meant to intimate that one of the defendants, McMullian, had falsely claimed to have been sick, and finally Hudson appealed in an apologetic manner to the court for relief, the judge construing what he said as disclaiming any intention of reflecting upon Mr. McMullian, and remarking to counsel, “I think the explanation is satisfactory.” Defendants in their motion for new trial assign error upon this language of the court as being an expression of opinion upon the evidence, and an invasion of the province of the jury. We do not think, under the circumstances, that there was any harmful error in this remark of the court.

2. The plaintiff offered in evidence, and the court admitted, over objection, a letter dated September 25, 1919, written by the plaintiff and addressed to Saunders & McMullian, Grandridge, Florida. The following part of this letter was especially objected to: “After we left the latter’s office (Chestnut & O’Neal’s in Savannah) and before we boarded the train for home I asked Mr. Saunders if they would not return my money, and he unhesitatingly said they certainly would.” The objection urged to this portion of the letter was that J. T. Saunders was dead at the time of the trial. It appears that this letter was written by the plaintiff and addressed, not to Saunders, but to the defendant partnership, and mailed to its place of business at Grandriclge, Florida. It was admitted that J. T. Saunders was in life at the time the letter was written. The brief for the plaintiffs in error sets forth the following: “The evidence further disclosed that Saunders, the deceased member of the firm, resided in Seminole county, Georgia, and that the letter was not addressed to his post-office. There was no intimation that the deceased member ever received or saw the letter referred to.” Taking this statement as true, it does not follow that the letter could have been considered a transaction or communication had by the plaintiff solely with the deceased partner. We do not think that the court erred in admitting this letter, under the circumstances stated. See Civil Code (1910),’§ 5858 (»)•

3. Movants further complained of the following excerpt from the charge of the court: “The defendant, as the court understands, also admits that there was a rescission of the contract of sale, or rescission of the sale, and that they remained in possession of the property.” Movants complained that the excerpt was error for the reason that there had been no admission by the defendants that they remained in possession. Certain excerpts from the answer of the defendants clearly show that they did take possession of the property after the rescission of the sale. In one place they say: “After the rescission of said contract of purchase and sale, and after the plaintiff had been in possession of and managing said business, for a period of one week, the defendants took charge,” etc. Further they say: “When the defendants resumed control of said property and business,” etc. The language of the excerpt complained of was used in connection with what the judge was saying with reference to the rescission; at that point he was not talking about possession of the property prior to the time of the rescission. He was referring to admitted possession of the property by the defendants after the rescission. The excerpts from the evidence, cited by the plaintiff in error, tending to show that there was a dispute as to whether the plaintiffs or the defendants were in possession of the property, all relate to possession antedating the time of the rescission. We think it was admitted by the defendants that they were in possession of the property after the rescission; and, when properly applied, this language of the court implied nothing more than that the defendants were in possession after the rescission. That being true, we find no harmful error in this statement of the court.

Judgment affirmed.

Stephens, J., concurs. Bell, J., disqualified.