text:
    17237, 17238.
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. KOEHLER; and vice versa.

    1. This court is without jurisdiction of equity cases. The transfer of this case to this court from the Supreme Court necessarily adjudicated that any question as to the correctness of the judgment of the trial court allowing the amendment in which the plaintiff sought to obtain relief in equity, as a reformation of the contract, was eliminated in the lower court, and is not now for decision.
    2. The cardinal rule in the construction of a contract is to ascertain the intention of the parties, and this should be done by a consideration of the instrument as a whole. Every other rule of construction is subject to this one. ' •

      (a) The contract sued on was properly construed by the auditor and the trial court to provide that if the plaintiff furnished money with which to repair a certain brick kiln, and paid the cost of operating the same during a specified test, and if this test demonstrated that the kiln did not possess the capacity as to production which was required under the contract, and if the owner of the property did not exercise its option under the contract to make a second test, and failed to reimburse the plaintiff for its expenditures in making the repairs and in making the first test, the owner was guilty of a breach of its contract, for which the surety was liable.
    3. The fact that a petition fails to set forth a complete cause of action is not necessarily sufficient cause for refusing an amendment, adding matter of substance.
    (а) Where suit upon a bond containing a contractual limitation was brought after the time limit named in the contract, an amendment to the petition, setting up facts to show that the defendant had waived the limitation, did not set forth a new and distinct cause of action.
    (б) Where in such a case the amendment showed that, prior to the expiration of such contractual limitation, the surety company induced the obligee in the bond to perform certain acts and to expend certain money under the reasonable expectation that if these things were done, the company would not insist upon the limitation as expressed, there was no error in allowing the amendment, over the objection that it set forth no facts authorizing the inference of such waiver.
    (c) Where, prior to such amendment, the cause had been referred to an auditor, who had heard evidence and had filed his report, and the evidence as heard by him was sufficient to authorize a finding that such contractual limitation had been waived, the amendment offered after the filing of such report by the auditor was not objectionable as introducing a new and distinct issue. It was permissible to amend the petition so that the inference of a waiver, deducible from evidence already taken by the auditor, might have support as well in the pleadings.

      Abatement and Revival, 1 C. J. p. 119, n. 91; p. 150, n. 98, 2.
    Bankruptcy, 7 C. J. p. 340, n. 54.
    Bonds, 9 G. J. p. 130, n. 37; p. 131, n. 39; p. 132, n. 59.
    Contracts, 13 C. J. p. 521, n. 18; p. 525, n. 41, 42.
    Courts, 15 C. J. p. 1039, n. 54; p. 1147, n. 97.
    Interest, 33 C. J. p- 230, n. 2.
    Limitation of Actions, 37 C. J. p. 1203, n. 48.
    Pleading, 31 Cyc. p. 407, n. 71, 76; p. 408, n. 79; p. 414, n. 13, 27.
    Principal and Surety, 32 Cyc. p. 72, n. 18; p. 119, n. 85, 86.

      (d) The petition as amended set forth a cause of action, and there was ample evidence to sustain the material allegations of fact therein.
    4. Where a trustee in bankruptcy, pending a suit by him as such trustee on a contract, by authority of the bankruptcy court sold and assigned the cause of action to a third person, and thereupon procured from the bankruptcy court an order discharging- him as trustee, but nevertheless after such discharge continued to prosecute the suit in his name as such trustee through various orders and proceedings, such orders and proceedings were not void because they were taken after the trustee, had been discharged by the court which had appointed him; and this is true notwithstanding neither the defendant nor the defendant’s counsel possessed knowledge of such discharge at the time of such orders and proceedings.

      (a) The court committed no error as against the surety company in any of its rulings or charges. The verdict of the jury finding against each of the exceptions to the auditor’s conclusions of fact was authorized. There was no error in refusing the motion of the surety company , for a new trial.
    5. The amount of the plaintiff’s claim appearing to be liquidated, the defendant, as a matter of law, was liable for interest thereon from the date it was due; and this is true though the aggregate amount of the plaintiff’s recovery, both for principal and interest, will exceed the maximum amount of the company’s liability as stated in the bond. The stipulation that the surety would not in any event be liable beyond a certain sum has reference to principal, and does not provide against liability for interest upon such principal from the date of its maturity.

      (a) Applying this rule, the court erred in not sustaining the plaintiff’s exceptions to the auditor’s conclusion of law that the plaintiff was not entitled to recover interest.
    Decided February 14, 1927.
    Rehearing denied March 5, 1927.
    Complaint; from Fulton superior court — Judge Ellis. December 9, 1924. i

      Dorsey, Howell & Heyman, Mark Bolding, for plaintiff.

      Smith, Hammond & Smith, Spalding, MacDougald & Sibley, for defendants.
   Bell, J.

The Provident Trust & Security Company brought suit in Fulton superior court against Palmer Brick Company, as principal, and United States Fidelity & Guaranty Company, as surety, upon a bond. This bond was in the sum of $10,000 and was executed to indemnify and save harmless the Provident Company from any pecuniary loss resulting from the breach by the Palmer Company of any of the terms arid conditions of clause 4 of a conditional lease between the Palmer Company, as lessor, and the Provident Company, as lessee. Clause 4 of this lease was as follows: “Said party of the first part [the Palmer Company] agrees to put the Shaw kiln located on the premises hereby leased in operation, under the direction and supervision of James W. English Jr. [president of the Palmer Company], or such competent person as he may select, at a cost not to exceed the sum of $8,266, as per estimate contained in letter of P. J. Smith to Thomas B. Felder, dated May 11, 1912, which cost is to be borne and paid for by said party of the second part [the Provident Company] • and when the repairs are so completed and the fires started, the kiln shall be operated for a period of sixty working days under the supervision of said James W. English Jr., or his duly authorized representative, the pay-rolls and costs of operating said kiln during this period to be paid by said party of the second part promptly when due; and if said Shaw kiln fails to burn 30,000 brick per day of twenty-four hours continuously for sixty working days, then this lease shall cease and terminate and no longer be of any force or effect. If, however, for any reason said James W. English Jr. can not be present in person to conduct.the test for sixty working days' hereinbefore referred to, and said test shall be unsuccessful, then and in that event he shall have the right, at the cost of said party of the first part, to take over said kiln and personally conduct another test for a period of sixty working days, and in the event this second test under the supervision of said James W. English. Jr. in person shall prove a success, under the terms of this instrument, then and in that event said party of the second part is to accept said kiln and premises under the terms hereof, and the terms of the lease covered by this agreement shall begin upon the day of acceptance of said kiln by said party of the second part; it being understood that said party of the second part shall be reimbursed by said party of the first part for the actual cost of operating said kiln the first test above referred to, from which amount shall be deducted the sums received from the sale of the brick manufactured during that period and the value of the merchantable brick on hand at the end of said period. In the event said second test shall also prove unsuccessful, said party of the first part shall thereupon reimburse said party of the second part for all costs incurred in repairing said- kiln, 'together, with the expense of operating same during the first test of sixty working days above referred to, it being understood that there shall be deducted from the expense of operation for said period such sums as may be received from the brick manufactured during that period, together with the value of the merchantable brick on hand at that time. It is also understood and agreed that the tests referred to above are to be made from fresh clay brought in from the clay used by said party of the first part, and not from any clay which may now be on hand at its plant. Said party of the first part is to give said party of the second part satisfactory security guaranteeing the carrying out of the provisions of this contract.”

J. W. English Jr. was president of the Palmer Company. The bond in suit provided that the surety should not be liable for a greater sum than the penalty of the bond or subject to any action or proceeding thereon instituted later than February 3, 1913. The suit was not filed until March 31, 1913.

Among other things . the petition alleged: The plaintiff, in terms of clause 4 of the lease contract, with the Palmer Company, furnished for repairs and for the costs of operating the kiln during the first test a sum in excess of $10,000. This test proved that the kiln was a failure, demonstrating that it did not possess the required capacity as to production. J. W, English Jr', did not elect to make a second test. Both parties to the lease, however, desired that the kiln should be made a success, and if this could be done, that the lease should be continued in force; so that notwithstanding the Provident Company considered that the Palmer Company had now breached its contract and that the liability of the surety company had attached, the Provident Company, on November 4, 1912, after many negotiations between it and the defendants “relative to the breaches of the contract aforesaid and the liability of the” defendant surety company upon its bond, wrote the latter company a letter with regard to the matter, as follows: “In re: Bond dated August 3, 1912, made by the Palmer Brick Company, as principal, and your company as surety,- to our company, the 'Provident Trust Company, as obligee, we beg to say that on the 28th day of October, 1912, we wrote you a letter in which we stated that divers breaches of said contract had been committed as therein specified and set forth. Since writing you said letter we have taken up the situation as a whole, with the view of endeavoring to have the construction of said kiln completed, as contemplated in the original contract between our company and. the Palmer Company. And, to this end, we are willing to proceed under the original contract and clause 4 thereof to furnish additional sums as may be required to complete the repairs called for, and purchase any and all such material as may be required by said Palmer Company, or its agents, to complete the said kiln and put the same in operation, provided such sum does not exceed. $3,000. On the other hand, if after said kiln is completely repaired and put in operation, and the 60-day test called for by said paragraph 4 of said contract is had, and the kiln successfully stands such test called for by said paragraph 4 of the said contract, then and in that event your liability on your bond will be at an end.” The surety company made the- following reply: “Replying to your favor of November 4th in regard to bond dated August 3d, 1912, made by Palmer Company as principal, and U. S. Fidelity Company as surety, and the Provident Trust- Company as obligee, we beg to say that the proposition made by you therein to us is hereby accepted.” The plaintiff, acting in good faith, furnished additional moneys on behalf of Palmer Company for the completion of the kiln, finishing the same in the early part of February, 1913. Thereupon the plaintiff proceeded to make a second test, James W. English Jr. having failed to make or conduct any such test, which second test, like the first, was unsuccessful, showing that .the kiln could not meet the terms and conditions of the lease contract as to production required. The second test was not completed until February 26, 1913, several weeks after the time limit for suit as expressed in the bond. The plaintiff demanded payment from the surety company of $10,000 on March 6, 1913. The provision in the bond to the effect that suit must be brought not later than February 3, 1913, was “distinctly waived by the parties to said contract or bond of indemnity by their conduct as hereinbefore set forth, and especially by the modifying of said contract or bond, as shown by the letters of November 4, 1912, attached as exhibits to this petition.”

The surety company answered, and also filed general and special demurrers. The general demurrer was aimed at the failure of the plaintiff to file suit before the expiration of the contractual limitation named in the bond. In response to this demurrer the plaintiff offered an amendment seeking, in view of the above letters and other facts set forth, to have the contract sued upon so reformed as to make the suit, begun on March 31, 1913, good in point of time, notwithstanding the limitation originally expressed in the contract. The court allowed this amendment and overruled the defendant’s original demurrers and new demurrers lodged against the amendment and against the petition as amended.

The case was then referred to an auditor. The auditor heard evidence and made his report, which was adverse to the plaintiff. When the court was about to render final judgment against the plaintiff, in accordance with the conclusions of the auditor, the plaintiff moved to amend its petition by alleging that because of certain facts the surety company had waived its right to insist upon the contractual limitation as expressed in the contract, and was prevented also from pleading the same by the doctrine of estoppel. This amendment was allowed over various objections interposed thereto by the surety company. In view of this amendment and on motion of the surety company the court recommitted the case to the auditor, with power to take such additional testimony as might be offered in connection with the amendment, but providing that “for the purpose of this rehearing, the entire case is recommitted to the said auditor with leave to file a supplemental report.” The auditor, after hearing evidence offered only by the surety company, filed his report under the recommitment, in which his conclusions of law and of fact were for the most part in favor of the plaintiff. There w;as one notable exception, however, in his conclusions of law, having reference to the liability of the surety for interest. To this conclusion the plaintiff excepted, and to various other conclusions, both of law and of fact, the surety company excepted.

Pending the action, the Provident Company was adjudicated a bankrupt, and J. P. Allen, as trustee in bankruptcy, was made a party plaintiff in its stead by an appropriate order of the court on November 2, 1914. On March 29, 1923, the surety company made a written motion alleging that Allen, as trustee, on February 24, 1916, sold and transferred his rights in this suit, including the bond upon which it was based, to Mrs. Emma Koehler, and that, having disposed of all other assets of the estate, he was, on April 7, 1916, fully and completely discharged as trustee by the bankruptcy court which had appointed him; that after such discharge “J. P. Allen, as trustee in bankruptcy, no longer existed as an artificial legal person, . . and could no longer prosecute nor could counsel prosecute in his name the suit at bar;” that by reason of these facts certain orders and proceedings taken in the case after his discharge, no person having been made a party in his stead, were in effect void and should be quashed. The orders and proceedings thus attacked were the order recommitting the case to the auditor, the order allowing the amendment on behalf of the plaintiff, setting up waiver and estoppel, and the second and final report of the auditor, as last above referred to. The motion of the surety company to have these orders and proceedings declared void alleged that the facts with reference to the trustee’s sale of the cause of action and his subsequent discharge as trustee were unknown to the company or its attorneys until the filing of the motion. Before action had been taken upon this motion, Mrs. Emma Koehler, as assignee of the cause of action, filed a motion in which she set forth a history of all .the proceedings which had been .had, both before and after the' trustee was made a party plaintiff, including those proceedings had in his name after his discharge as trustee by the court of bankruptcy. This motion further alleged that Mrs. Koehler, by her attorneys, was present at all proceedings taken' since her purchase of the cause of action, although she had not been made a formal party to the case; that she ratified and confirmed all that -had been done in the case by J. P. Allen as trustee, after he had been discharged from his trust by the court of bankruptcy; that her failure to seek substitution of her name as party plaintiff in place of said Allen was by inadvertence and oversight, and that the surety company had not been hurt by the fact that the suit had proceeded in the name of the trustee. The prayer of this motion was that Mrs. Koehler be allowed to continue the action in the name of J. P. Allen, trustee in bankruptcy of the Provident Company, for her use, or that it be continued in her name as party plaintiff. The facts alleged in both of the above-mentioned motions appearing to be true, the ■court passed an order denying the motion of the surety company and striking the name of Allen, trustee, as a party to the suit, and substituted Mrs. Emma Koehler as party plaintiff in his stead.

The court overruled all exceptions by either party to the auditor’s conclusions of law, but approved and referred to a jury all exceptions to the auditor’s conclusions of fact. Before the case proceeded to trial the defendant surety company again demurred generally to the petition as amended, and this demurrer was overruled.

Ultimately the case proceeded to trial before a jury on the exceptions of the surety company to the auditor’s conclusions of fact. The jury found against each of the defendant’s exceptions, after which the defendant filed a motion for a new trial which, as amended, contained the usual general grounds and a number of special grounds. After the verdict in favor of the plaintiff, the defendant moved the court, upon the whole record, to render a judgment in its favor notwithstanding the verdict. This motion and the motion for a new trial were both overruled, and the defendant excepted.

Exceptions pendente lite were taken to the various rulings with which the defendant was not satisfied, and these exceptions are presented in the record for our consideration. The substituted plaintiff, Mrs. Emma Koehler, also sued out a bill of exceptions, in which she complains of the judgment because, as alleged in exceptions pendente lite, the court erred in overruling her exceptions to the auditor’s conclusion of law refusing to allow a recovery for interest. Some further facts will be stated in the opinion.

Notwithstanding the voluminous record and the many exceptions and assignments of error, the principles which must control our judgment are few. In our view of the case, the rulings made in the opinion below are controlling, rendering it unnecessary to deal seriatim and in detail with the many exceptions and assignments.

This case first went to the Supreme Court and was by that court transferred to this court. In the opinion of that court, rendered in connection with its judgment transferring the case, it was said: “An amendment to the petition was filed, seeking to reform the contract on the ground that the agreement to modify included modification of the above-quoted clause of the bond, but alleging that such part of the agreement was omitted from the letters by mutual mistake of the parties. The case was submitted to an auditor, and his report found against the application to reform the contract. The plaintiff filed exceptions of law and fact to the auditor’s report, and at a hearing the judge announced his decision against the exceptions; and while a judgment was being prepared by the defendants, the plaintiff presented another amendment to the petition, alleging facts relied on as a waiver by the defendant, and estoppel from insisting on the said quoted clause of the bond. The amendment was 'allowed and the entire case recommitted to the auditor. No judgment was ever rendered overruling or otherwise disposing of the above mentioned exceptions to the auditor’s report, and consequently there were no further proceedings with reference to them. 'The auditor heard the case on second reference, and made his report, to which there were exceptions by the plaintiff and the defendant, and a final judgment to which both parties excepted separately; but all the proceedings after the above amendment setting up waiver and estoppel, in so far as they related to said clause of the bond, were on the basis of waiver and estoppel, and not upon the basis of a right to reform the contract. In these circumstances the allowance of the last amendment and subsequent proceedings was the equivalent of striking the equitable features from the case, and rendered it in its finality a purely common law proceeding on the contract. The case being thus stripped of its only equitable feature — that is, the prayer for reformation, the Supreme Court has not jurisdiction.” U. S. Fidelity &c. Co. v. Koehler, 161 Ga. 934 (132 S. E. 64). It necessarily follows that any question as to the correctness of the judgment of the court below allowing the amendment in which the plaintiff sought a reformation of the contract has been eliminated and is not now for decision.

Under the auditor’s construction of the contract the Palmer Company, the lessor, breached its contract and became liable for the sums advanced by the plaintiff for repairs and also for operating the kiln during the first test, as soon as this test was made and proved that the kiln did not possess the capacity as to production which was required under the contract. From this construction it follows that when the Palmer Company had failed to reimburse the plaintiff for these expenditures and the plaintiff had demanded payment of the surety company, the cause of action against the latter was ripe. Counsel for the surety company, however, contend that the bond was-not breached until and unless a second test was made by English and this test also proved unsuccessful. The determination of the question thus presented will depend upon an interpretation of clause 4 of the lease contract. The cardinal rule in the construction of contracts is to ascertain the intention of the parties, and this should.be done by .a consideration of the whole instrument. Neither the lessor, nor its officer and agent, English, was required to make a second test; this was optional. To our minds, the intent of the parties in making this contract was that the plaintiff was to furnish the money for reconstructing the kiln and for making a first test. If this test was successful, the condition of the lease was removed and it became operative as an unconditional contract of lease between the parties. In that event the Palmer Company would have complied with its obligations and there would have been no liability either upon it or the surety company. It seems clear, however, that if the first test proved unsuccessful, the Palmer Company, merely by declining to go further, could not have left the plaintiff without a lease and also without redress for the large sum of money which it had spent in repairing and operating another’s property. In our opinion, under a proper construction of clause 4 of the contract, where the plaintiff complied with its obligations by furnishing the required sum for repairs and also the costs of operating during the first test, if that test demonstrated that the plant was a failure in point of production, and English did not exercise his right to make a second test, the Palmer Company became obligated to pay the plaintiff the costs of repairing the kiln and of conducting the first test, and on its failure to pay accordingly, the surety company became liable for these amounts, not in excess of its bond. We agree with the construction placed upon the contract by the auditor and the trial court.

The amendment in which the plaintiff sought to set up grounds of waiver and estoppel against the surety company, so as to avoid the effect of the contractual limitation of the bond that any action or proceeding thereon should be instituted not later than February 3, 1913, alleged, among other things, the following: On October 28, 1912, it had been demonstrated by the first test provided for by clause 4 of the lease contract that the kiln, with' the outlay originally contemplated, could not be made to meet the requirements of the contract as to production, and that since English did not exercise his right to make a second test, but failed and refused to do so, the Palmer Company and the surety company then and there became liable to the plaintiff for the amounts which the plaintiff had expended for the repairs and for the cost of the first test. But notwithstanding this accrual of liability against the opposite parties, the plaintiff was anxious that a further effort be made to accomplish the successful operation of the .kiln, provided this effort could be made without prejudice to the rights of the plaintiff as against the other parties. The Palmer Company was also interested in making the kiln a success, as was the surety company, to the end that it might be relieved of the liability that had already accrued against it under the bond. The amendment further alleged:

“20. With this situation existing, petitioner shows and avers that proper officers of the Provident Company, the Palmer Company, and the U. S. Fidelity Company met and held a conference in the office of T. B. Felder, on Nov. 4, 1912, said officers being G. H. Fiedler, president of the Provident Company, J. P. Allen, vice-president, T. B. Felder, attorney of said company, James W. English Jr., president of Palmer Company, W. A. Smith, general agent of U. S. Fidelity Company, Victor L. Smith, its attorney, and A. C. Supplee, underwriter for the said Fidelity Company.

“21. Petitioner shows that at said conference the officers of the Provident Company and the Palmer Company discussed the feasibility of making further repairs and doing additional constructive work on said kiln and securing suitable cars, either by purchase or rebuilding those already in use, in order to handle the brick through said kiln; that it was believed by said Provident Company and Palmer Company that by making said improvements and doing said additional work that said kiln could be made a success and would successfully burn 30,000 commercial hard brick per day of 24 hours for a period of 60 days; and it was thereupon agreed that said Provident Company would furnish additional snips under clause 4 of said original contract to the extent of $3,000, in order that said improvements might be made and thereafter a 60-day test made to determine if said kiln could be made a success. This agreement was made in the presence and with the consent and acquiescence of the surety company, and it was discussed in the presence of the officers of the defendant Fidelity Company, that the making of such expenditures and the conducting of such test could not be accomplished by February 3, 1913, the original period of limitation specified in the bond executed by the said Palmer Company, as principal and the said Fidelity Company as surety to said plaintiff for the faithful performance of said contract.

“22. Petitioner further shows and avers that from a discussion had in the office of T. B. Felder on November 4, 1912, between the officers of said Provident Company and Palmer Company, in the presence of the officers of the Fidelity Company, it was manifest to the representatives of the said Fidelity Company that the further work on said kiln and the carrying out of an additional 60-day test could not be completed by February 3, 1913, but that if such additional work were undertaken and such additional test were made, an additional period beyond' February 3, 1913, would be required; and it was the intention on the part of the said Provident Company, if it advanced such additional sums and modified the then liability of said defendants that had already accrued on said bond, that such additional time should be granted as would be reasonably necessary.

“23. Petitioner shows that the whole situation relative to the matters hereinabove referred to was discussed by the plaintiff, defendant, Palmer Company, and James W. English Jr., before and in the presence of the defendant surety company, and to the surety company that it was the urgent desire of the plaintiff, the defendant, Palmer Company, and English to repair and reconstruct the kiln and make an additional 60-day test. The plaintiff proposed and intended to spend money to construct the kiln, and defendant, Palmer Company, and English consented thereto, and all of said parties intended to have the surety consent to remain bound under the bond and to have the surety consent to extend the time limit of the bond, which limit, as fixed in the bond, was February 3, 1913; and all of said intentions and consent were so declared to the surety at their conference.

“24. Petitioner shows that although, in the letter written by the plaintiff to the surety company in reference to said matters, there was no definite proposal with reference to an extension of the time limit of the bond, and although the surety did not by express words agree to extend the time limit, that the leaving out of its letter said intention to have the time limit extended was from no intention on the part of the plaintiff to waive the claim that such additional time would be necessary; but such omission was inadvertent; and plaintiff shows that in going ahead under said agreement, it relied upon said surety company not insisting on said time limit. The plaintiff, after having written said letter and having received an acceptance of the proposal therein made, did in good faith and with all reasonable diligence proceed to comply with said modified agreement in furnishing the funds for making further improvements on said kiln and for conducting said test, and in not insisting on the liability that had accrued on October 28 against said defendant surety company on said bond, and; on account of the facts herein alleged, having a right to believe that said surety company was consenting thereto and would not insist on the limitation in said bond.

“25. Petitioner shows and avers that said surety company knew and in good faith must have known that said plaintiff was incurring said additional expense for making said improvements and for conducting said test on the faith that said surety company waived and would not claim that the.time limit of said bond should expire February 3, 1913.

“26. Petitioner shows that said surety company, with full knowledge of all the facts and circumstances hereinbefore set forth, stood by and permitted said plaintiff to go ahead and make said further improvements and expend large sums of money, exceeding the amount of $3,000 for perfecting and reconstructing said kiln and for conducting the test referred to in clause 4 of the said contract, and to forego its right to bring suit against the surety on said bond prior to February 3, 1913, on the liability that had accrued on or about October 28, 1912, as herein alleged, without notifying plaintiff that said surety company had not agreed and did not intend to extend said original time limit, and would not do so, as it was in good conscience and equity required to do, unless it was willing for such time limit to be waived or extended.

“27. Petitioner shows and avers that said conduct of said surety company in standing by with the knowledge hereinabove specified and allowing said plaintiff to expend said large sums of money and to forego its right to sue on said bond prior to February 3, 1913, in the belief that said surety company would not insist on said time limit and the knowledge of the surety company that but for the belief that said time limit had been waived, plaintiff would not have expended said additional sums for completing and reconstructing said kiln and conducting said test, was such- as to estop said defendant surety company from pleading said time limit of February 3, 1913, against the suit brought by said plaintiff.

“28. Petitioner shows that while said surety company may not have, by any express statement or agreement in writing, consented that said additional work could be done and said 60-day test could be made without prejudicing the rights of said plaintiff under the terms of said bond, it did by its conduct and its knowledge, as herein alleged, and its duty to speak when it knew of the intention and expectation of said plaintiff, estop it from taking advantage of said limitation in said bond, and did thereby waive said limitation in said bond, and that to allow said defendant surety company now to plead said time limitation would be a fraud upon said plaintiff.

“29. Wherefore plaintiff shows to the court that by the statements hereinabove set forth, said defendant surety company is prevented by law from pleading said time limit, both under the doctrine of waiver and estoppel; and the petitioner prays that the court so find.

“30. Petitioner further shows that in view of the agreement entered into between the plaintiff and the defendant surety company on November 4, 1912, by virtue, of which said defendant company consented that said plaintiff should go ahead, expend at least $3,000 in making further improvements on said kiln, and conducting a 60-day test in the burning of brick after the completion of said kiln, and in further view of the statements made at the conference held on November 4, 1912, that more than 30 days would be required to secure cars and make the other improvements contemplated in connection with said kiln, that said time limit of February 3, 1913, was expressly waived.”

The letters referred to in paragraph 24 of this amendment are those which are copied in full in the statement of facts preceding this opinion.

The court did not err in allowing the plaintiff to amend the petition so as to set up waiver and estoppel. Although the petition might not have set forth a complete cause of action prior to this amendment, that fact alone would not necessarily be cause for refusing an amendment, adding matter of substance. Ellison v. Ga. R. Co., 87 Ga. 691 (7) (73 S. E. 255). The amendment itself did not add a new and distinct cause of action. The facts set forth were sufficient to warrant the inference that the company had waived its right to insist upon the contractual limitation set forth in the bond. "Any agreement,'declaration, or course of conduct on the part of the insurance company which leads a party insured to honestly believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.” Insurance Co. v. Eggleston, 96 U. S. 572 (24 L. ed. 841). See also McDaniel v. German-American Ins. Co., 134 Ga. 189 (2) (67 S. E. 668); Lynchburg Cotton Mill Co. v. Travelers Ins. Co., 9 L. R. A. (N. S.) 654, and note (149 Fed. 754, 79 C. C. A. 464). It was not a valid objection to the plaintiff’s amendment that it was tendered after the auditor had filed his report. In Lane v. Tarver, 153 Ga. 570 (4) (113 S. E. 452), the Supreme Court, with reference to a similar question, said, “It .is too late, after the court has approved the auditor’s report, for the defendant to file, by way of amendment, new and independent defenses to the plaintiff’s action; but it is always permissible to amend pleadings, even after the auditor’s report has been approved by the court, so that the same will support a decree administering the proper equitable relief to all the parties upon the facts reported by the auditor. Milner v. Mutual B. & L. Asso., 104 Ga. 101 (3, 4) (30 S. E. 648). This was the purpose of the amendment which was allowed; and this is always permissible. The pleadings can always be adjusted by amendment to the facts as found by the auditor or proved before the jury. If the plaintiff wished further time to introduce additional evidence, in view of the amendment, he should have applied to the court to have the case recommitted for this purpose.” The defendant surety company in the present ease moved to recommit the case to the auditor, and this motion the court allowed. The amendment here introduced no new or distinct issue, but was supported by evidence which had already been introduced before the auditor. In Sterling Electric Co. v. Augusta Tel. &c. Co., 124 Ga. 371 (52 S. E. 541), the Supreme Court held that, “Where an issue was made before an auditor, evidence introduced upon it, and the report of the auditor found in regard to it, there was no error in allowing an amendment of the pleadings adjusting the prayer for equitable relief to the finding of the auditor, but not introducing any new or distinct issue.” None of the objections urged to the allowance of the amendment contained any merit. The petition-as amended.set forth a cause of action, and there was ample evidence to sustain the allegations therein made.

In the use of the word “plaintiff” we have not, up to this time, intended to refer to any particular person as the party prosecuting the suit, but have used the term in a more or less general way to designate any one of the persons who have occupied the position of plaintiff during the course of the litigation. The Provident Company, after filing the suit, was adjudicated a bankrupt. On November 2, 1914, J. P. Allen, as trustee in bankruptcy, was made party plaintiff in its stead. The trustee, after selling and assigning the cause of action and the suit, with all other assets of the bankrupt, to Mrs. Emma Koehler, applied for and obtained discharge from his trust by the court of bankruptcy, and notwithstanding the knowledge of Mrs. Emma Koehler and her attorneys of this fact, the case continued in his name through certain proceedings, namely, an order allowing an amendment to the petition;’ an order recommitting the entire case to the auditor; and the hearings before the auditor and the making and filing of his report. Immediately upon the discovery of the trustee’s previous discharge the surety company moved to quash the proceedings just enumerated. Attorneys for Mrs. Koehler filed a motion in which she alleged that “since the purchase by her of the choses in action involved in said suit, she has been the real party at interest in said suit and the person having the legal interest in the same, and the master of said suit, and has been prosecuting the same by her said attorneys at law, in the name of Allen, trustee, etc.”; and that she “confirms and completely and fully ratifies the action heretofore taken by her attorneys in said suit in her behalf, and says that she is the only person having any interest in said suit or the proceeds thereof, and the right to prosecute the same.” This motion concluded with a prayer that the name of the trustee be stricken and that the name of Mrs. Koehler be substituted instead. By a stipulation in the record the affidavits attached to the respective motions were accepted as evidence of the allegations made therein. The surety company, however, introduced evidence to show that neither it nor its attorneys had any knowledge of the alleged interest of Mrs. Koehler, or of the fact that the attorneys who purportedly appeared for the “trustee” in bankruptcy were in fact appearing for Mrs. Koehler, and that the only information “in connection with Mrs. Koehler” that the defendant or its attorneys ever had during the proceedings in question was to the effect that she was a creditor of the bankrupt estate, “but there was no information that she had become the owner of the assets being administered by the trustee in bankruptcy.” The court overruled the defendant’s motion to quash the proceedings, but sustained and allowed the motion of Mrs. Koehler.

In our opinion the suit did not cease to have a party plaintiff merely because the trustee was discharged in bankruptcy. The situation is unlike that which arises on the death of an individual plaintiff, in which case the proceedings must be halted until some one else is made a party. Allen continued to live and to act in this litigation as trustee in bankruptcy. He acted without authority, it is true, but the mere fact that ho acted without authority would hot, ipso facto, remove him from the case as a party. Assuming that ho was subject to removal and that if objection had been made the court would not have permitted him to continue the action even for the use of the assignee (see Hargrett v. Jolley, 34 Ga. App. 662 (2), 130 S. E. 602), the proceedings were not suspended where no such objection was made and acted upon. The question relates not to the existence of a party plaintiff, but to the authority of a plaintiff actually existing and conducting the litigation. The surety company might have raised the question of authority, if necessary for its protection. It did ultimately raise the question, but was met with conclusive proof that Mrs. Koehler, the assignee of the cause of action, had been present through hef attorneys at all stages of the case, approving and ratifying all that had been done or was being clone in the name of Allen as trustee, and that no other person had any right or interest in the suit or the cause.of action. We think this was a complete answer to the defendant’s motion to quash. Peoples Bank v. Cleveland, 117 Ga. 908 (44 S. E. 20); Gate City Cotton Mills v. Cherokee Mills, 128 Ga. 170 (3) (57 S. E. 320); Liverpool &c. Ins. Co. v. Ellington, 94 Ga. 785 (21 S. E. 1006); Cook v. Buchanan, 86 Ga. 760 (13 S. E. 83); Bowe v. Gress Lumber Co., 86 Ga. 17 (12 S. E. 177); Cobb v. Edmondson, 30 Ga. 30 (1); Hegewisch v. Silver, 140 N. Y. 414 (35 N. E. 658); 1 C. J. 116-124, 149, 150; White v. Stanwood, 21 Mass. 380; Cleverly v. Whitney, 24 Mass. 36; Bankruptcy Act, § 46; Hull v. Burr, 64 Fla. 82 (59 So. 787). In Epting v. Jones, 47 Ga. 622, the Supreme Court held that it is not a good plea to a suit on a promissory note that it is brought by the true owner in a fictitious name, it not appearing by the plea that the defendant has any defense.

What we have said with reference to the motion of the surety company to quash the proceedings will apply equally to the exceptions to the order allowing Mrs. Koehler to be substituted in place of the trustee as party plaintiff. This is true because an examination of the record discloses that the objections to making Mrs. Koehler a party were limited to the same grounds as those which were relied on in the motion to quash. Thus we are not confronted with the question as to whether the order making Mrs. Koehler a party was a violation of the rule that new and distinct parties can not be added by amendment unless expressly authorized by law, or of the general principle that the plaintiff, in order to recover, must show that he had the title to the cause of action at the institution of the suit. See Suwanee Turpentine Co. v. Baxter, 109 Ga. 597 (35 S. E. 142); Dunlap-Huckabee Auto Co. v. Central. Ga. Auto Co., 31 Ga. App. 617 (122 S. E. 69). But, without deciding this question, it would seem that the purchaser of a cause of action at a bankruptcy sale upon which a suit is pending in behalf of the trustee in bankruptcy as plaintiff would not be a new and distinct party within the first of the rules mentioned, and that such purchaser, if made a party, would not be prevented from recovering on the theory of a want of title at the filing of the suit. See Gate City Mills v. Cherokee Mills, supra, and § 46 of the bankruptcy act. There was, no error in the rulings to which we have just alluded.

On principle, the above disposes of all contentions of the plaintiff in error. There was no material error in any of the court’s rulings. The verdict against the exceptions to the auditor’s conclusions of fact was as to each exception authorized. There was no merit in any of the special grounds of the motion for a new trial.

Coming now to the assignment upon the court’s judgment overruling the plaintiff’s exception to the auditor’s conclusion of law that the plaintiff was not entitled to recover interest, we are of the opinion that the court committed error in its ruling upon this question. “All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party is liable and bound to pay them; if payable on demand, from the time of demand.” Civil Code (1910), § 3434. That is certain which may be made certain. It was not known at the time of making the contract just what would be the amount of the liability, if any, under the bond, but the defendant had contracted to pay to the Provident Company the cost of repairing the brick kiln, and also to pay the cost of operating the kiln during a stated period for the purpose of testing its capacity after such repairs. There could be no question as between the Palmer Company and the Provident Company as to whether any cost on either score was necessary, reasonable, or 'proper. Under the contract the Palmer Company was to make the repairs and conduct the tests, and the Provident Company was to foot the bill, paying the costs as they accrued under the management and conduct of the Palmer Company. If, after a breach on the part of the Palmer Company in failing to reimburse the Provident Company for- such expenditures, the Palmer Company could not have raised any question as to the propriety or reasonableness of any item, then the surety company could not have done so. “A debt is liquidated when it is rendered certain what is due and how much is due. That certainly need not be contemporaneous with the agreement out of which it results.” Bartee v. Andrews, 18 Ga. 407. The surety company, upon the trial, raised no question as to the correctness of any item of the plaintiff’s claim. It stood upon the proposition that it was not liable to the plaintiff in any amount whatsoever, because there had been no. breach of the contract. Under the facts appearing, the plaintiff’s claim .became liquidated when it paid the cost of repairs and of operating during the first test, especially when there is no dispute as to any item composing the claim, and where it indisputably appears that the obligors in the bond sued on were each liable either for the full amount sued for or for nothing. The plaintiff had expended under the contract more than $10,000, but this was the maximum amount of principal which it could sue for, and its claim was limited accordingly. Upon the question of whether the sum was liquidated, see Roberts v. Prior, 20 Ga. 561; Council v. Hixon, 11 Ga. App. 818 (76 S. E. 603); Kervin v. Utter, 120 App. Div. 610 (104 N. Y. S. 1061); Morgan v. Colt Co., 34 Ga. App. 630 (6) (130 S. E. 600), and cit.

But it is said that if interest be added, the liability of the surety company will be increased beyond the penalty of the bond. A sufficient reply to this contention is found in Frink v. So. Express Co., 82 Ga. 33 (5) (8 S. E. 862, 3 L. R. A. 482). The stipulation that the surety was not to be liable for an amount exceeding $10,000 clearly had reference to the principal, and was not intended to relieve the surety from liability for interest if it failed to pay the principal when due. See further, in this connection, 9 C. J. 130, § 242, and citations. We have here no cross-bill of exceptions. There are two independent bills.

Judgment in case No. 17237 affirmed; in case No. 17238 reversed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    17245.
    DAVIS v. FARMERS AND TRADERS BANK.
    1. In tlie present action against a bank to recover on its alleged liability for a deposit, the plaintiff undertook to plead against an anticipated defense of payment, and to that end alleged that a conspiracy existed between the bank and two individuals to have the plaintiff, after making his deposit, accept from the bank at its place of business money to be delivered to those individuals under circumstances so planned and arranged as to afford ground for a contention later to be made by the bank that the plaintiff in receiving such money was accepting payment of his deposit. Held, that it was permissible for the plaintiff, after alleging the existence of the conspiracy, to set forth in his petition the circumstances under which he became acquainted with such individuals, and to recount in detail the events in which they were the actors in drawing him into a scheme laid by them and their confederates to defraud him, and to show that such acts culminated in a situation in which the defendant bank, by its cashier, actively participated, and by which the plaintiff was victimized in the defendant’s banking house, in the manner indicated above.

      Banks and Banking, 7 C. J. p. 663, n. 54; p. 667, n. 99; p. 670, n. 42.
    Conspiracy, 12 C. J. p. 630, n. 3, 8.
    Contracts, 13 C. J. p. 263, n. 74.
    Evidence, 22 C. J. p. 205, n. 43; p. 206, n. 50.
    Heading, 31 Cyc. p. 57, n. 32 New, 33; p. 102, n. 1; p. 109, n. 87; p. 110, n. 88; p. 393, n. 41.

      2. Where a paragraph of the petition is demurred to specially because of the want of a copy of a writing or document referred to therein, and the court in sustaining the demurrer allows the plaintiff a stated period in which to amend, even though the plaintiff may altogether lose the right to amend the paragraph if he offers no amendment in the time allowed, yet if an amendment setting foi’th a copy of such instrument would be germane to some other paragraph of the petition, and the plaintiff offers to amend accordingly, the court should allow him to do so.
    3. The plaintiff’s allegation as to what he supposed was the character and effect of a certain transaction was relevant as showing that he had never assented to the transaction in a different sense, as the defendant claimed he had done, and was not objectionable as a conclusion of the pleader.
    4. When, in a legal investigation, conversations out of the presence of the party sought to be charged constitute facts to explain conduct and ascertain motive, they are admitted in evidence, not as hearsay, but as original evidence.
    5. Under the pleadings and the evidence, the plaintiff was entitled to recover as a matter of law, unless he had been paid. Whether he had been paid or not was a jury question, under the evidence. The court erred in granting a nonsuit.
    Decided February 14, 1927.
    Complaint; from Fulton superior court — Judge E. D. Thomas. January 14, 1926.

      W. C. Henson, James W. Austin, W. Paul Carpenter, for plaintiff. Smith, Hammond & Smith, for defendant.
   Bell, J.

Davis brought suit in Fulton superior court against Farmers & Traders Bank, alleging that .the bank was indebted to him in the sum of $5,500 on account of a deposit which he made in the bank, and which, according to his contentions, the bank had never repaid. The plaintiff in his petition alleged that when he demanded payment, the bank claimed that it had already paid him, and, anticipating that the suit would be answered by a plea of payment, proceeded to set forth facts to show the falsity of any such claim. To that end the petition averred that the bank, through its cashier, had conspired with one Grant and one Douglas, members of a notorious “bunco gang,” to have the plaintiff come to the bank and get from its cashier certain money for delivery by him to Grant, or to Grant and Douglas, under circumstances which would lend color and plausibility to the subsequent claim of the bank that the plaintiff in so receiving the money was accepting payment of the amount which he had deposited and for which the bank was indebted to him. The petition alleged that the defendant bank “conspired and connived with and aided and abetted said gang and the members thereof in all their swindling operations whenever the services of a bank became necessary to the furtherance of their fraudulent schemes, both in the attempt upon your petitioner and in cases of other victims by them defrauded. The petition also set forth the circumstances under which the plaintiff became acquainted with Grant and Douglas, and recounted in detail a succession of events in which they were the actors in drawing the plaintiff into the meshes of a scheme laid by them and their confederates to defraud him of his money, they having previously ascertained that the plaintiff had $5,500 on deposit in a bank in Indiana. Among such antecedent transactions was a proposal by them (Grant and Douglas) that the plaintiff bring his money to Atlanta and deposit it in a local bank, in order that the plaintiff, by the use of his credit “at said bank,” might aid the other two in closing an important deal, to the great profit and advantage of the plaintiff and themselves. Accordingly Grant took the plaintiff and Douglas in a taxicab and drove them to the Farmers & Traders Bank and introduced the plaintiff to Mr. Car-, ter, the bank’s cashier. The plaintiff thereupon opened an account with the bank by delivering to it items on the bank in Indiana in the aggregate of $5,500. The petition proceeded next to set forth that in a few days Grant and Douglas induced the plaintiff to go with them to the bank for the purpose of obtaining money which the plaintiff understood to be money due or belonging to Grant, or Grant and Douglas, alleging the conversations that passed among the three of them as they approached .the bank, and disclosing that the plaintiff was induced to enter the bank for the purpose of receiving money from the bank to be delivered to Grant and Douglas in a transaction solely between the bank and these two.

The defendant filed a general demurrer to the petition on the ground that it set forth no cause of action. This demurrer was overruled, and to the judgment overruling it no exception has been taken. The defendant filed and the court sustained a special demurrer to several paragraphs of the petition containing allegations as to transactions and conversations between the plaintiff and Grant and Douglas which occurred out of the presence of the bank or the bank’s cashier, and which are described generally as above, the grounds of the demurrer being, that the allegations of each and all of these paragraphs were irrelevant and immaterial, that the bank was not liable for any fraudulent practices on the part of its cashier, the same being beyond the scope of his employment, and that there was no complicity or conspiracy charged against the bank which would justify such allegations as against it. Paragraph 37 of the petition alleged that the defendant’s cashier took the plaintiff’s deposit and gave him as evidence thereof a deposit slip for $5,500. The court sustained a demurrer to this paragraph which called for a copy of the deposit slip. The plaintiff, however, was given 10 days in which to amend. Paragraph 42 contained the allegation, “all of which the plaintiff supposed was in furtherance of an arrangement between Grant and the cashier for the giving of Grant’s money to him.” This allegation had reference to the delivery of money to the plaintiff by the cashier on the occasion when the plaintiff went into the bank and obtained money at the instance of Grant and Douglas, some days after the plaintiff had made his. deposit. The court sustained a special demurrer to the averment just quoted, upon the ground “that said allegation embodies a conclusion of the pleader, unsupported by allegations of fact,” and upon the further ground that the plaintiff’s suppositions were irrelevant and immaterial. Paragraph 50 of the petition contained a count for the recovery of attorney’s fees. This paragraph was demurred to as being generally insufficient, and the demurrer was sustained. At the trial of the case, which was more than 10 days after the judgment on the demurrers, the plaintiff offered an amendment setting forth a copy of the deposit slip. The plaintiff at the same time offered a further amendment, alleging a conspiracy between the bank and Grant and Douglas in relation only to the matter of inducing the plaintiff to become the medium of a transfer of money from the bank to Grant under circumstances affording a pretext for a claim that the bank thus had paid the plaintiff the amount of his deposit. The court refused to allow either 'of the above amendments.

The trial resulted in a nonsuit, and the plaintiff has brought the case to this court for review. The exceptions are to the judgment sustaining the special demurrers as stated above, to the refusal of the court to allow the amendments, to the judgment of nonsuit, and to a certain ruling upon the admission of evidence. The last-mentioned ruling was to exclude the testimony of the plaintiff as to what was said by Grant to induce the plaintiff to go into the bank alone to receive the money which the bank claims was a payment to him and which he claims was intended by the bank to be delivered to Grant.

Counsel for both parties concede that the action is ex contractu. The plaintiff deposited money in the bank and is suing on the debt which was thereby created in his favor against the bank. The allegations with respect to conspiracy and fraud are-made for the purpose of condemning as spurious the defense which the plaintiff anticipated the bank would make, namely that it had paid the plaintiff the amount of the deposit. The gist of the allegations with respect to the fraud and conspiracy is that, through a scheme to which the bank and Grant and Douglas were parties, the plaintiff, after making his deposit, was induced to enter the bank, and receive money intended by the bank to be delivered to Grant or to Grant and Douglas, under circumstances so planned and framed as to afford ground for the contention late! to be made by the bank that the plaintiff in receiving such money was accepting payment of the deposit. The plaintiff had no specific money in the bank because of his deposit. The bank was merely his debtor, and if it delivered to him money when neither he nor the bank really intended that it should be accepted by him in payment of the amount due to him, but with the expectation on the part of the bank that he should deliver the money to Grant or to Grant and Douglas for the bank, the plaintiff was not paid and the bank continued to be his debtor. Civil Code (1910), § 4230; Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488 (77 S. E. 589).

Although the plaintiff was not required to anticipate the defense, it was permissible for him to do so. Chance v. Commercial Credit Co., 30 Ga. App. 543 (118 S. E. 465); 31 Cyc. 109.

The alleged conspiracy consisted of an agreement or understanding whereby the actors therein were to have the plaintiff placed in a situation and involved in circumstances such as would corroborate the bank’s claim, subsequently to be made, that the plaintiff had received payment for his deposit. A -conspiracy “may sometimes be inferred from the nature of the acts done, the relation of ,the parties, the interests of the alleged conspirators, and other circumstances. The rule is to allow great latitude in setting out in the complaint the particular act upon which the conspiracy is to be inferred, and even to allow individual acts of the conspirators to be averred.” Woodruff v. Hughes, 2 Ga. App. 361 (58 S. E. 551). In the case just cited this court quoted approvingly from 1 Eddy on Combinations, § 368, as follows: “To show conspiracy it is not necessary to prove air express compact or agreement among the parties thereto. The essential element of the charge is the common design; but it need not appear that the parties met together either formally or informally and entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or writing they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design. And anyone, after a conspiracy is formed, who knows of its existence and purposes and joins therein, becomes as much a party thereto . . as if he had been an original member.” The petition in the present case averred that the defendant bank “conspired and connived with and aided and abetted said gang and the members thereof in all their swindling operations whenever the services of a bank became necessary to the furtherance of their fraudulent schemes, both in the attempt upon your petitioner and in cases of other victims by them defrauded,” and was well within the rule when it proceeded further to set forth the individual acts of the alleged conspirators, and to show how the plaintiff was thereby ensnared and held until ultimately victimized in the defendant’s banking house. See, in this connection, 31 Cyc. 630, 634. The facts antecedent to the ultimate and main transaction were properly alleged as matters of inducement. We conclude that the court erred in sustaining the special demurrer attacking such allegations as being irrelevant and immaterial or otherwise improper. If we are correct in this conclusion, it logically follows that the court erred in refusing to allow the plaintiff’s amendment, mentioned secondly in the above statement, and having further reference to the alleged conspiracy.

The court erred in refusing to allow the amendment whereby the plaintiff sought to set forth a copy of the deposit slip issued by the bank to him. Counsel for the defendant in error argue that since this amendment was not offered within ten days, the judg-, ment sustaining the special demurrer to paragraph 37 of- the petition because a copy of the deposit slip was not attached had the effect of foreclosing the plaintiff’s right to amend at all in the manner indicated, and in support of this contention cite the case of Babb v. Thomasville Live Stock Co., 17 Ga. App. 384 (87 S. E. 159). See also Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241); Hall v. Mass. Protective Asso., 34 Ga. App. 39 (128 S. E. 218); Marbut v. So. Ry. Co., 22 Ga. App. 330 (95 S. E. 1021), and cases cited. We cannot agree with this contention. It seems that the point would have been well taken if the proffered amendment had been germane only to paragraph 37, against which the demurrer was interposed. The amendment was offered, however, to paragraph 3, and was germane to that paragraph. This being true, and the amendment being otherwise proper, the court erred in not allowing it. See, in this connection, Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812 (3) (55 S. E. 968).

We think the court was also in error in sustaining the demurrer to paragraph 42 of the petition, the effect of which ruling was to.strike an allegation that the plaintiff supposed a certain transaction was “in furtherance with an arrangement between the cashier and Grant for the giving of Grant’s money to him.” The assent of the parties is a necessary ingredient of a contract. Civil Code (1910), § 4230. The averment in question was relevant to show that the plaintiff had never accepted any money from the bank as payment to him by the bank on account of his deposit, and was not objectionable as a conclusion of the pleader. Intention, motive, purpose, or the like, may be alleged directly as a fact. Barron G. Collier Inc. v. Bailey, 31 Ga. App. 197 (120 S. E. 427).

The plaintiff offered to testify as to conversations between him on the one side and Grant and Douglas on the other, occurring immediately preceding his entering the bank on the occasion when he received from the cashier the money which he claims was delivered to him to be handed over to Grant or to Grant and Douglas in a transaction solely between them and the bank. This evidence was offered for the purpose of explaining the plaintiff’s conduct in and his connection with the transaction, the specific object being to show that he was acting in the matter merely as a go-between or medium through which the bank transmitted funds to another or others, and that the money delivered to him at that time was not in payment of his deposit. From what we have said in the first division we think it follows that the court should have allowed the plaintiff to testify to the conversations referred to. “When in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, but as original evidence.” Civil Code (1910), § 5763. See also, in this connection, Brown v. Mathews, 79 Ga. 1 (4) (4 S. E. 13); Moss v. Moss, 147 Ga. 311 (3) (93 S. E. 875); Stamps v. Newton County, 8 Ga. App. 229 (9) (68 S. E. 653); Fitzgerald v. State, 10 Ga. App. 70 (4) (72 S. E. 541); Roberts v. Allen, 31 Ga. App. 660 (3) (122 S. E. 86).

In reviewing a judgment of nonsuit this court is not concerned with the question whether the petition set forth a cause of action. Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231 (120 S. E. 654). We have seen, however, that the court rendered a judgment overruling the general demurrer to the petition, and that no exceptions to that judgment have been taken, and thus that it has been adjudicated that the petition set forth a cause of action. Tinder the pleadings and the evidence, the plaintiff was entitled to recover, as a matter of law, unless he had been paid. Ordinarily the burden of proving payment rests upon the defendant. Christian v. Bryant, 102 Ga. 561 (1) (27 S. E. 666); Hobbs v. Citizens Bank, 32 Ga. App. 522 (5) (124 S. E. 72); Justice v. Chattooga Oil Mill Co., 13 Ga. App. 389 (1) (79 S. E. 223). Whether this should be true where, as in the present case, the plaintiff in his petition anticipated the defense of 'payment and assumed to plead against it, we need not here determine. Without undertaking a discussion of the evidence, we think it was sufficient to authorize a •finding in the plaintiff’s favor. The jury could have inferred from all the circumstances that the bank had never paid the plaintiff the amount of his deposit. This, it seems, was the controlling issue of fact. The plaintiff’s testimony told of certain circumstances relating to the conduct of the bank and its cashier and coinciding with such precision with the words and conduct of Grant and Douglas, even in their absence, as to authorize the inference that the conspiracy existed as claimed, and that what the defendant bank contended was á payment of the money to the plaintiff was a transaction wherein the bank, through the plaintiff, merely conveyed money to its' alleged coconspirators. The court erred in not allowing the,case to go to the jury upon this question.

Counsel for the plaintiff in error have not, in their brief or otherwise, made any sort of insistence that the court erred in striking the allegations made in the petition for the purpose of recovering attorney’s fees; and the assignment of error on that judgment will be treated as abandoned.

Judgment reversed.

Jenláns, P. J., and Stephens, J., concur.


text:
    17253.
    LINTHICUM v. TRUST COMPANY OF GEORGIA.
    1. Where a so-called bill of exceptions was not certified by the judge of the trial court, but was verified by the oath of the attorney for the plaintiff in error, as in cases where the presiding judge dies before certifying, and where it appears that the bill of exceptions was never tendered to the presiding judge for certification and no attempt was made to tender it, although the judge lived for more than ninety days after the adjournment of the term of the court during which the judgment, complained of was rendered, and, so far as appears, was capable of acting and could have certified the bill had it been presented to him in time, the provisions of section 6155 of the Civil Code are inapplicable, and the bill of exceptions must be dismissed' because it was not presented to and certified by the judge as required by law.
    2. Furthermore, even if the provisions of section 6155 had been applicable and were otherwise complied with, where because of the death of the presiding judge the plaintiff in error undertakes to verify the bill of exceptions in the manner provided for in this section, he does not complete the verification so as to invest this court with jurisdiction, where he fails to procure and annex to the bill the “oath” of at least one disinterested member of the bar who was present at the trial, and fails also to show in the bill of exceptions or accompanying affidavit any reason for not including in the verification such sworn statement of a disinterested attorney.

      (a) No motion to dismiss has been made, but, in a case of this sort, where this court-has no jurisdiction, it is its duty to dismiss the bill of exceptions of its own motion; and this is true even though the parties undertake to confer jurisdiction by. consent.
    Decided February 14, 1927.
    Certiorari; from Fulton superior court — Judge Bell. October 8, 1925.

      Charles P. Cotterill, for plaintiff in error.

      Sutherland, & Tuttle, contra.
    Appeal and Error, 3 O. J. p. 369, n. 30; p. 370, n. 35; 4 O. J. p. 248, n. 30; p. 251, n. 51, 53; p. 252, n. 54; p. 589, n. 12; p. 591, n. 17.
   Bell, J.

In this case there is a bill of exceptions (so-called) in the usual form, minus the certificate of the trial judge, assigning error on a judgment rendered in the superior court of Fulton county, Judge George L. Bell presiding. In place of the ordinary certificate of the judge there is attached to the bill of exceptions a writing,subscribed and sworn to by the attorneys for the respective parties, in which'it is recited that Judge Bell died before the bill of exceptions could be prepared and presented to him; that the annexed bill is true and correct, and specifies all the evidence and all material parts of the record; and that such attorneys agree that this affidavit and agreement may be accepted in lieu of a certificate of the trial judge, consenting that the bilí of exceptions may have the same force and effect as though the same had presented to the Honorable George L. Bell within the time specified by law and certified by him. The affidavit and agreement of counsel further shows, “that, owing to illness and absence from the city of Atlanta, and engagement in the preparation and trial of various causes before the interstate^commerce commission, and other matters over.which attorney for plaintiff in error had no control, it was impossible for this" bill of exceptions to be prepared in the time specified by law.” The bill of exceptions is not verified by any “disinterested member of the bar who was present at the trial.”

The judgment complained of was the dismissal of a petition for certiorari. Counsel for the plaintiff in error says in his brief that there was no disinterested member of the bar present at the trial, and hence it was impossible to procure the verification of the bill of exceptions by the affidavit of such -disinterested attorney; but such fact does not appear in the bill of exceptions as sent up, nor in the affidavits accompanying the same as made by the attorneys for the parties. It is also suggested by counsel for plaintiff in error that this court would not visit upon the parties any hardship by virtue of the unfortunate circumstances of the serious illness and eventual death of the trial judge.

Notwithstanding the agreement of counsel, we cannot entertain the so-called bill of exceptions. It is the duty of a reviewing court to raise the question of its jurisdiction in all cases in which its jurisdiction is clearly lacking .or, in which there may be any doubt as to its existence. Floyd v. Mass. Mills, 25 Ga. App. 519 (1) (103 S. E. 801). We are not authorized to take cognizance of a case unless our jurisdiction affirmatively appears. Crawford v. Goodwin, 128 Ga. 134 (57 S. E. 240). The affidavit and agreement of counsel, submitted in lieu of the certificate of the trial judge, was executed on February 25, 1926. The judgment excepted to was rendered on October 8, 1925. If it was a judgment at chambers, a bill of exceptions should have been tendered within thirty days from that date. If it was a judgment in term, the time limit for presenting the bill was thirty days from the adjournment, and the term being the September term, the adjournment must have taken place before the convening of the November term, on the first Monday, which was the 2d day of November following. Thus, in the usual course the bill of exceptions ought to have been presented not later than December 1, 1925, whether the judgment was rendered in vacation or in term. Birmingham, Finance Co. v. Chisholm, 162 Ga. 501 (134 S. E. 301). But how stands the case in view of the allegations as to the death of Judge Bell?

Section 6155 of the Civil Code (1910) is as follows: “If the judge trying the cause resigns, or otherwise ceases to hold his office-as judge, when the bill of exceptions is tendered, he may nevertheless sign and certify it; and if he should die before certifying it, or otherwise becomes incapable of acting, then the party may verify the hill of exceptions by his own oath, or that of his attorney, together with the oath of at least one disinterested member of the bar who was present at the trial; and such verifications shall operate in the same manner as the certificate of the judge. If the judge is absent from home, or by other casualty fails to certify the bill of exceptions within the time specified (and without fault of the party tendering it), he may still sign and certify as soon as possible, which shall be held and deemed valid.” In the record there is nothing that expressly shows the date of Judge Bell's death. Irrespective of whether this court might take judicial cognizance of the fact of his death, and (if so) of the date of his death, we do know, without evidence in the case, that he was judge until February 8, 1926, and that Judge Pomeroy, his successor, was commissioned on February 10, 1926. Ponder v. Shumans, 80 Ga. 505 (2) (5 S. E. 502); Abrams v. State, 121 Ga. 170 (1) (48 S. E. 965); Bailey v. McAlpin, 122 Ga. 616 (1) (50 S. E. 956); Glover v. Morris, 122 Ga. App. 768 (5), 774 (50 S. E. 956). In Cowart v. Page, 59 Ga. 235 (2), the Supreme Court held: “Where, because of the judge’s death after the bill of exceptions was presented to him [italics ours], and before he certified it, the authentication of the bill is by counsel and another member of the bar, the date of the death need not appear, full diligence being shown to complete the authentication as soon as practicable, and the case having reached this court in time for the term to which it would have been returnable had the authentication been by the judge himself.” See further, in this connection, Kelsoe v. Taylor, 62 Ga. 161. In the present case it affirmatively appears that no bill of exceptions was presented to Judge Bell in his lifetime. The sworn statement of the attorneys is that he died before the bill of exceptions could be prepared and presented to him. No bill of exceptions having been presented to the judge within thirty days from the adjournment of the court in which the judgment was rendered, although the presiding judge continued in life for more than ninety days after the adjournment of such term, counsel can not, after the judge’s death, make up a bill of exceptions and verify the same as contemplated by the Civil Code (1910), § 6155, so as to confer jurisdiction upon this court to review the case, merely because the presiding judge is not living to certify the bill of exceptions when it is ultimately prepared. Artificial jurisdiction can not be conferred upon this court by consent of the parties (Kiser v. State, 36 Ga. 260; Brown v. Happ, 39 Ga. 61; Tritt v. Roberts, 64 Ga. 157; DeLang v. Clare, 137 Ga. 291, 73 S. E. 374), and since it appears from the affidavit of counsel that, for reasons not referable to the illness or death of the trial judge, the bill of exceptions was not presented to him within the time prescribed by law, this court is without jurisdiction, even though opposite counsel consent that the bill of exceptions be entertained. Eor aught that appears in the record, if the bill of exceptions had been presented within the usual time, Judge Bell would have been able to certify it and would have.done so. In that event the case should have reached this court during the October term, 1925, whereas it did not arrive until after the commencement of the March term, 1926. The present case is to be distinguished in several points from the case of Cowart v. Page, supra. Under the facts appearing, section 6155 of the Civil Code (1910) is inapplicable, and the bill of exceptions must be dismissed because it was not presented to and certified by the trial judge as required by law.

Furthermore, where, because of the death of the presiding judge, the plaintiff in error undertakes to verify the bill of exceptions in the manner provided by the statute above referred to, he does not complete the verification so as to invest this court with jurisdiction, where he fails to procure and annex to the bill the “oath” of at least one disinterested member of the bar who was present at the trial and fails, also to show in the bill of exceptions or accompanying affidavit any reason for not including in the verification such sworn statement of a disinterested attorney. In such a case this court can not dp otherwise than to dismiss the bill for want of jurisdiction, and this is true notwithstanding no disinterested member of the bar was present at the trial. Kelsoe v. Taylor, supra. Whether the rule would be otherwise where the failure to furnish the oath of such disinterested attorney is accounted for by showing in the bill of exceptions or in the verification as made, and not merely in the brief of counsel, that no such attorney was present at the trial, is a question which it is not necessary to decide in this case.

No motion has been made by the defendant'in error to dismiss the bill of exceptions, but, as we have indicated above, where this court has no jurisdiction, it is its duty to dismiss the bill of its own motion without entering .into a decision of the merits of the case. See, in this connection, Teasley v. Cordell, 153 Ga. 397 (2) (112 S. E. 287).

If our judgment of dismissal should be attended with any hardship to the parties, we do not think that such hardship could be regarded as a visitation from this court when there is no other judgment that can be rendered in conformity with law.

Writ of error dismissed.

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


author: Stephens, J.

text:
    17263.
    Hardin v. Southern Railway Company.
    Railroads, 33 Cyc. p. 930, n. 92; p. 1056, n. 5.
   Stephens, J.

1. It is incumbent upon a railroad company to exercise due care in the maintenance of a bridge over its tracks along a public highway in a condition safe for travelers passing over the bridge in the exercise of due care.

2. What constitutes such due care upon the part of the railroad company will be determined, with reference to any particular condition in the roadway at the approach to the bridge, as a sharp curve in the road at the approach to the bridge, which increases the hazard in the use of the bridge by travelers in vehicles as they turn the sharp curve from the road onto the bridge.

Decided February 14, 1927.

Rehearing denied February 28, 1927.

Action for damages; from city court of Hall county — Judge. Sloan. February 19, 1926.

Application for certiorari was made to the Supreme Court.

Hewlett & Dennis, B. P. Gaillard Jr., for plaintiff.

O. J. Lilly, A. C. Wheeler, for defendant.

3. The maintenance by the railroad company of a guard-rail upon the bridge in a condition so frail and weak that a vehicle, which has skidded upon sand and loose dirt upon the bridge after turning the sharp curve in the road and coming upon the bridge, breaks through the guard-rail and falls off the bridge, may be negligence.

4. In a suit against the railroad company, where it is alleged that the plaintiff, when traveling in the exercise of due care in an automobile along the public road and coming around the sharp curve in the road and upon the bridge across the railroad-tracks of the defendant', was injured 'by reason of the automobile skidding upon sand and loose dirt upon -the bridge and breaking through the guard-rail on the bridge, which the defendant had negligently maintained in a frail and insecure condition, and falling off the bridge, the petition sets out a cause of action.

5. The trial court erred in sustaining the defendant’s demurrers to the plaintiff’s petition.

Judgment reversed.

Bell, J., concurs. Jenkins, P. J., disqualified.


text:
    17265.
    SCARBOROUGH et al. v. WALTON.
    1. The court, in charging the jury upon the subject of comparative negligence, instructed them that under certain conditions the plaintiff would be entitled to recover, but that the recovery should be reduced in proportion to the amount of the negligence attributable to him. Held: This charge, in using the word “should” instead of “shall,” did not insufficiently present to the jury the imperative requirement of the code in reference to the plaintiff’s diminution of the damage in a case involving the law of comparative negligence.
    2. After all other instructions to the jury had been concluded, the court, as to one of the defendants, charged the jury that if they should find that the defendant did a certain act in driving the automobile at the time and place in question, and should further find that this act was negligent, “then the plaintiff would be entitled to recover from the defendant, under the rules of law as otherwise given you in charge.” Held: This excerpt, when considered in connection with the other in-. structions given, was not calculated to mislead the jury, and, hence, was not cause for a new trial. See Oity of Augusta v. Tharpe, 113 Ga. 152 (2) (38 S. E. 389); Payne V. Allen, 28 Ga. App. 8 (5 a) (110 S. E. 345).

      .Appeal and,,Error, 4 O. J. p. 772, n. 82.
    Negligence, ^9, Cyc. ,p. 657, n. 54.
    Shall, 35 Cyc. p. 1451, n. 86, 87, 88.
    Should, 36 .Cyc. p, 434, n. 78.
    Trial, 38 Cyc. p. 1779, n. 75, 76.

      3. Under the act of October 14, 1891 (Ga. L., 1890-91, p. 78; Civil Code of 1910, § 5879), in the trial of all civil cases any party may call an opposite party to the witness stand and cross-examine him, as though the witness had testified in his own behalf and was being - cross-examined, and may do so without entitling counsel for any opposite party or parties, as a matter of absolute right, to cross-examine the witness,
    (a.) The court did not err in overruling the defendant’s motion for a new trial.
    Decided February 14, 1927.
    Damages; from city court of Macon — Judge Hall. February 20, 1926.

      Brock, Sparks & Russell, for plaintiff in error.

      Robert W. Barnes, Ryals, Anderson & Anderson, contra.
   Bell, J.

Walton, while riding a motorcycle, was struck and injured by an automobile driven by Scarborough, at an intersection of streets in the city of Macon. The automobile was the property of Scarborough’s wife, who was riding with him at the time. Walton brought suit for damages against both Mr. and Mrs. Scarborough, and recovered, and the defendants have excepted to the overruling of their motion for a new trial. Counsel for the plaintiffs in error, in their brief, do not insist upon the general grounds of the motion, nor upon any of the special grounds except the 2d, 3d, and 4th.

In the 2d special ground the- defendants excepted to the charge of the court upon the subject of comparative negligence, in which the jury were told that if the alleged injury was the fault of both the plaintiff and the defendants, but that if the plaintiff could not have avoided the injury by the exercise of ordinary care and diligence, then, notwithstanding the plaintiff may have been to some extent at fault, he would be entitled to recover, but the amount of the verdict in his favor--“should'be-diminished in proportion to the amount of fault attributable” s to him. The complaint is that this charge merely authorized t^e-, jury to reduce the damages without requiring them to. do -so, and that the instruction which the court should have given was that'under the conditions named-the jury shall diminish the damages in proportion to the negligence of the plaintiff. The word “should” as used in the court’s charge implied duty or obligation, and, with its context, meant that it was the duty of the jury to reduce the damages in the proportion stated, and not merely that the jury were authorized or had a discretion to do so. It is not to be assumed that the jurors will violate a duty which the court has made known to them. There is no merit in this ground of the motion for a new trial. This ruling is not in conflict with the decision of this court in Lamb v. McAfee, 18 Ga. App. 584 (3) (90 S. E. 103). We were dealing in that case with an entirely different question. See, in this connection, Augusta-Aiken Ry. &c. Corp. v. Collins, 18 Ga. App. 303 (1) (89 S. E. 444); Atlanta, Knoxville &c. Ry. Co. v. Gardner, 122 Ga. 82 (5) (49 S. E. 818); 35 Cyc. 1451, on “Shall”; 36 Cyc. 434, on “Should,” and Webster’s International Dictionary.

Special ground 3 of the motion for new trial complains that the court erred in charging that if the jury should find that the defendant, Mr. Scarborough, did a certain act in driving the automobile at the time and place in question, and should further find that this act was negligent, “then the plaintiff would be entitled to recover from the defendant, under the rules of law as otherwise given you in charge.” The exceptions to this charge are that it in effect instructed the jury that the plaintiff himself was not guilty of such negligence as would bar a recovery, and that if the defendant Scarborough was negligent in thé manner stated, his negligence, and not that of the plaintiff, was the proximate cause of the injury, when such question of proximate cause was, under the evidence, exclusively for determination by the jury; that the excerpt came after all other instructions had been given, and amounted to a charge that all of the preceding instructions were such as to entitle the plaintiff to recover, provided the jury should believe that the defendant Scarborough was negligent in the manner set forth in the excerpt complained of, and was especially harmful in that it waá the last' thing said by the court to the jury, following even the instructions as to the form of verdict, and was argumentative, in that it summed up particular facts and conditions which would entitle the plaintiff to recover, without in like manner summing up the particular facts and conditions under which a verdict would be required in favor of the defendants. .

It is true that the excerpt complained of succeeded all other instructions to the jury, even those in regard to the form, of verdict, being the last thing said by the court to them before they retired to enter upon their deliberation. It was given in order to submit a contention of the plaintiff which had been made by an amendment to the petition, and which apparently the judge had overlooked until he was about ready to send the jury to their room. A determination of whether this part of the charge, in view of the language used and in view also of the time and circumstances under which it was given, constituted reversible error will depend upon the nature and character of the other instructions referred to therein. The court had charged the jury that the plaintiff contended in his petition that the defendants were negligent and that he, the plaintiff, was without fault, and that before the plaintiff would be entitled to recover it would be necessary for him to sustain the contentions set out in his petition, by a preponderance of the evidence; also that if the plaintiff did not use ordinary care and diligence, he would not be entitled to a verdict; also that if the plaintiff and the defendants exercised all ordinary care and diligence, the plaintiff would not be entitled to recover, but that the law would attribute the injury to accident; also that the plaintiff could not recover if he was guilty of negligence contributing to the injury, unless the negligence of the defendants preponderated in causing it. In the general charge the contentions of both parties were fully and fairly stated. In City Council of Augusta v. Tharpe, supra, the judge instructed the jury that if the plaintiff was a traveler upon the streets of Augusta, and, while there, was injured by an obstruction, and if under the evidence it was negligence on the part of the city to permit it to be there, the jury should return a verdict in favor of the plaintiff. The city, after a verdict in favor of the plaintiff, assigned error on this charge, complaining that it should have been accompanied with a further charge that the plaintiff would be defeated if it appeared that he could have avoided the injury by the use of ordinary care, and that the court should have stated that it was necessary for the city to know either actually or presumptively of the existence of the obstruction before it would be liable. The attack upon this charge was disposed of by the Supreme Court in its opinion briefly as follows: “While as a proposition of law the charge, to be entirely sound, needed to be qualified, we find that in his general charge the judge fully instructed the jury on the law applicable to the legal propositions which it is contended he should have incorporated in the particular part of the charge on which error is assigned; and therefore the objection made 'can not be sustained.” The headnote on this point was as follows: “Though a particular instruction taken alone may be open to the criticism that it required a given qualification, yet where it plainly appears that elsewhere in the charge this very qualification of the doctrine laid down in such instruction was so distinctly and clearly stated as that the jury were not misled as to the true.law, the giving of the instruction will not require the granting of a new trial.” The excerpt complained of in the present case was not an erroneous instruction tending to mislead the jury as to the law on a material issue in the case and thus constituting reversible error in the absence of an express retraction or correction, but was a charge incomplete within itself, though referring to other portions of the charge as its complement, and, when considered in connection with all other instructions, was not calculated to give the jury an erroneous impression as to the law which should govern their deliberations, and, hence, was not cause for a new trial. See further, in this connection, Payne v. Allen, 28 Ga. App. 8 (5 a) (110 S. E. 345); Kirkland v. Brewton, 32 Ga. App. 128 (6) (122 S. E. 814); Wilson v. Small, 28 Ga. App. 587 (113 S. E. 238); Davis v. Whitcomb, 30 Ga. App. 497 (118 S. E. 488); McCommons-Thompson-Boswell Co. v. White, 33 Ga. App. 20 (125 S. E. 76); W. & A. R. Co. v. Reed, 35 Ga. App. 538 (6) (134 S. E. 134; Central of Ga. Ry. Co. v. Neighbors, 83 Ga. 444 (1) (10 S. E. 115).

The plaintiff called the defendant Scarborough to the witness stand and cross-examined him as permitted by the provisions of the Civil Code (1910), § 5879. Before this defendant had left the stand, counsel for the defendants claimed the right to cross-examine him in behalf of each defendant, and. moved the court to be allowed to do so. The court refused the motion, and the defendants have made this ruling a ground of their motion for a new trial. The exact question appears never to have been passed upon in any of the reported decisions, although a similar question was decided in Lauchheimer v. Jacobs, 126 Ga. 261 (2) (55 S. E. 55). The part of the statute which gave the right here exercised by the plaintiff was codified from the act of August 14, 1891 (Ga. L. 1890-91, p. 78). We think it was the purpose of this act to confer the right therein, mentioned without condition or incumbrance. The plaintiff did not make the defendant Scarborough the plaintiff’s witness by calling him to the stand and cross-examining him. It is our opinion that the plaintiff was exercising a pure and absolute right under the statute, one not to be burdened with the right of either of the defendants to cross-examine the witness when the plaintiff was through, and that to have ruled in favor of the contentions of the defendants would -have had the effect of attaching an unauthorized incumbrance or burden on the right given to the plaintiff under the statute. However, assuming, without deciding, that the court might, in the exercise of its general discretion, have allowed the cross-examination, there was no abuse of discretion in refusing it. It is unnecessary to rule more in this case, and we limit our ruling accordingly. The court did not err in refusing a new trial.

Judgment affirmed.

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