author: Broyles, C. J. Ltjke, J. Broyles, C. J.

text:
    17793.
    Platt, administrator, et al. v. Chastain.
   Broyles, C. J.

1. The former judgment of this court in this ease (36 Ga. App. 581, 137 S. E. 409), that the trial court erred in overruling the general demurrer to the petition, because the petition failed to allege (in an action brought by a vendor of land against the vendee for the balance of the purchase-price) that the plaintiff had tendered the defendant a deed to the property, or that he was able and willing to make title on recovery of judgment and the satisfaction of the same by the defendant, was reversed by the Supreme Court on May 16, 1928. 166 Ga. 307 (143 S. E. 378). It is ordered, therefore, that the aforesaid judgment of this court be vacated and it is now adjudged that the petition as finally amended was not subject to any of the demurrers interposed, and that the trial court properly so ruled.

Decided July 13, 1928.

Adhered to on rehearing August 10, 1928.

Clifford E. Hay, for plaintiffs in error.

J..E. Crmgmiles, W. D. MacIntyre, contra.

2. The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial show cause for a reversal of the judgment.

Judgment affirmed.

Bloockoorth, J., concurs. Luke, J., dissents.

Ltjke, J.

I am so firmly convinced that the evidence in this case does not support the verdict that I must and do dissent from the judgment. Moreover, some of the special grounds of the motion for a new trial are not without merit.

on rehearing.

Broyles, C. J.

After a consideration of the motion for a rehearing and the briefs thereon by counsel for both parties, and a careful reconsideration of the facts of the ease and the law pertinent thereto, this court is still of the opinion that the amended petition was not subject to any of the demurrers interposed, and that the refusal of the court to grant a new trial was not error for any reason assigned.

Judgment adhered to.

Bloodworth, J., concurs. Luke, J., dissents.


source: Caselaw Access Project

author: Broyles, O. J.

license: Public Domain

text:
    19165.
    19166.
    19167.
    Widincamp v. Wood, Judge. Murray v. Wood, Judge. Ashley v. Wood, Judge.
    Decided August 10, 1928.
   Broyles, O. J.

The judge properly declined to certify the bill of exceptions in each of these cases.

Mandamus absolute denied.

Luke and Bloodworth, JJ., concur.

H. L. Williams, for the applicants.


author: Luke, J.

text:
    18963.
    HEC MANUFACTURING COMPANY v. HEAVEN.
    Decided July 10, 1928.
    Rehearing denied September 26, 1928.

      T. E. McLemore, for plaintiff in error. A. E. Wilson, contra.
   Luke, J.

Heaven brought suit for damages against Hec Manufacturing Company, and alleged substantially that he was an employee of that company, and that as such employee he was directed by the president, secretary and manager of the company to go to Jacksonville, Florida, for the purpose of making installation of fixtures for and in behalf of the company; that said president directed the plaintiff to go in an automobile with him; that the automobile was being operated and driven by the said president, and was under his direct control; and that while the plaintiff was occupying a back seat in the automobile, the driver began running at the unlawful rate of speed of more than fifty miles per hour, and, while so operating the car, lost control of it and drove it into an embankment; and because of the impact of the car against the embankment the plaintiff received the injury sued for. It was alleged that the operation of the car was negligent, in that the speed on the public highway was unlawful, and that upon approaching the curve where the injury occurred the automobile was not under control, etc. The Hee Manufacturing Company demurred generally to the petition, upon the grounds that no cause of action was set out, and that the petition showed that the injury was occasioned by a fellow servant, etc. The court overruled the demurrer.

Construing the petition most strongly against the pleader, the court did not err in overruling the general demurrer. There is nothing to show that the president of the company was a fellow servant at the time of the injury. It is true that he could be a fellow servant notwithstanding his official connection with the company, but the pleading does not show this. The evidence upon a trial may.

Judgment affirmed.

Broyles, G. J., and Bloodworfh, J., concur.


author: Bell, J.

text:
    18432.
    BROWN v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al.

    Decided July 13, 1928.
    Rehearing denied September I, 1928.

      J. I. Hynds, for plaintiff.

      Bryan & Middlebroolcs, for defendant.
   Bell, J.

The plaintiff in error filed with the industrial commission a claim for compensation for a hernia. After an adverse termination of his case before that tribunal he appealed to the superior court, and, his appeal being denied, he brought the ease to this court for review.

Before compensation may be allowed for a hernia it is necessary that the claimant definitely prove, among other things, that the hernia appeared suddenly and immediately followed an accident. See section 2 (e) of tlie workmen’s compensation act (Ga. L. 1920, p. 167). Assuming that the testimony of the claimant, standing alone, was sufficient to have demanded an award in his favor, respondents introduced in rebuttal a statement, signed by the claimant several days after his injury, in which he declared that it was not until Sunday morning following the injury on Thursday that he felt any pain or noticed sign of a hernia. The claimant testified that he signed the statement without reading it, and that it was incorrect. On the other hand, a witness for the respondents testified that, while the claimant did not himself read the statement, it was written on information furnished by him, and that it was carefully read in his hearing before he signed it.

The statement was contradictory of the claimant’s testimony and was as to a matter relevant thereto. Whether the statement might have been considered as an admission, and regardless of what might have been its effect as such, it was offered for the purpose of impeachment, and in view of its contents and of all the evidence as to the circumstances under which it was made, it was for the commission to determine the credit to be given to the claimant’s testimony. Glenn v. Augusta Railway & Electric Co., 121 Ga. 80 (48 S. E. 684). The question here is not whether an award in the claimant’s favor would have been authorized, but whether it was demanded. While there was evidence corroborating the claimant as to certain material matters, it can not be said, as a matter of law, from the evidence as a whole, that the order of the commission denying the claim was unauthorized. See, in this connection, U. S. Fidelity & Guaranty Co. v. Hall, 34 Ga. App. 307 (129 S. E. 305); Bolton v. Columbia Casualty Co., 34 Ga. App. 658 (130 S. E. 535); London Guaranty Co. v. Shockley, 31 Ga. App. 762 (122 S. E. 99); London Guaranty Co. v. Cox, 36 Ga. App. 708 (137 S. E. 799); Civil Code (1910), §§ 5881, 5883, 5884.

Judgment affirmed.

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


text:
    18440.
    Georgia Creosoting Co. v. Devereaux.
   Bell, J.

The issue upon the trial of the instant trover ease being whether, as claimed by the plaintiff, certain timber, the products of which were in controversy, was purchased by the plaintiff in its own right, and thus became the plaintiff’s property, or whether, as contended by the defendant, the timber was in fact purchased by the defendant as his property, with the plaintiff paying the purchase-money merely as a loan or advancement to the defendant, the evidence was sufficient to authorize a finding in favor of the latter of these contentions. The verdict in favor of the defendant was therefore supported, and can not be set aside by this court on the plaintiff’s motion for a new trial, based upon the general grounds only.

Decided July 13, 1928.

Rehearing denied September 1, 1928.

B. D. Header, for plaintiff. Wade II. Walson, for defendant.

'Judgment affirmed.

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


author: Jenkins, P. J.

text:
    18539.
    HARDY et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    Decided July 13, 1928.
    Adhered to on rehearing, September 1, 1928.

      Julian 8. Chambers, for plaintiffs.in error.

      Harry 8. McCowen, contra.
   Jenkins, P. J.

General Motors Acceptance Corporation, as transferee of Darnall Motor Company, sued out a purchase-money attachment, returnable to the municipal court of Atlanta, against Hardy and others for the purchase-price of an automobile sold to the defendant Hardy under a sale contract which provided that “no warranties have been made by the seller unless endorsed hereon in writing.” The defendant in attachment sought to set up a breach' of the sale agreement, in that the machine sold did not come up to the implied warranty, and offered evidence for the purpose of showing the existence of latent defects such as rendered it reasonably unsuited to the use intended. This evidence, on objection, was rejected by the court on the theory that the sale agreement excluded all warranties, both express and implied, and thereafter the court directed a verdict in favor of the plaintiff for the amount sued for. The defendant took the case to the superior court bycertiorari, and exception is taken to the judgment of that court overruling the certiorari. The questions to be determined are whether the clause set forth in the -sale agreement excluded implied warranties, and, even if it did not, whether the court was nevertheless authorized to direct a verdict in favor of the plaintiff on the theory that no proof was offered by the defendant going to show the extent of the damage occasioned by such latent defect.

1. Unless the parties to a sale agreement should by special contract expressly or by implication provide otherwise, the law implies an unexpressed warranty on the part of the seller that he has a valid title and the right to sell the bargained property, that it is merchantable, and reasonably suited to the uses intended, and that he knows of no undisclosed latent defects. Civil Code (1910), § 4135. Where by private agreement the parties seek to take the law in their own hands, they are at liberty to do so, and the general rule is that an expressed warranty excludes the implied warranty (Springer v. Indianapolis Brewing Co., 126 Ga. 321 (3), 55 S. E. 53), but only to the extent that the expressed warranty deals with matters which would have been covered by the implied warranty, and should not be construed to exclude the implied warranty as to matters with which it does not deal, and with which it does not conflict. John A. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 464 (83 S. E. 138, L. R. A. 1915B, 900); Camp v. Clarkesville Foundry & Machine Works, 30 Ga. App. 298, 302 (117 S. E. 660).

The construction of a contract is a question for the court. Where any matter of fact is involved, the jury should pass on the fact. Civil Code (1910), § 4265. It has often been said that while it is the duty of the court to construe all plain and unambiguous contracts, this duty is delegated to the jury in cases of ambiguity, where resort must be had to aliunde testimony in order to clarify the meaning of the language used, so as to get at the real intention of the parties. Nelson v. Spence, 129 Ga. 35 (7) (58 S. E. 697); Ludden & Bates v. Dairy & Farm Supply Co., 17 Ga. App. 581 (87 S. E. 823); Empire Mills v. Burrell Engineering &c. Co., 18 Ga. App. 253 (89 S. E. 530). It would seem, however, that in a mixed question of law and fact, such as is involved in the construction of an ambiguous contract requiring aliunde proof for its clarifieation, it would be more accurate to say that the court, at last, must construe the contract, inasmuch as the jury, after passing upon the issues of fact, must give to it such effect as is in accord with the alternative instructions of the court. In the instant case, there being no issue of fact involved, it was the duty of the court to construe the contract without the aid of the jury, and in doing so to give effect to the cardinal rule of construction, which is to ascertain the intention of the parties as evidenced by the language employed. Civil Code (1910), § 4266. If the contract was of doubtful meaning, it was his duty to construe it against the party who prepared it. Wilcox v. Owens, 64 Ga. 601.

The language of the contract, which was prepared by the seller, to wit, “no warranties have been made by the seller unless endorsed hereon in writing,” should be construed as referring to express stipulations, and not as excluding the warranties implied by law. It should not be taken to nullify the implied covenant that the seller had a valid title in the bargained property and the right to sell it, that it was merchantable and reasonably suited to the uses intended, and that the seller knew of no latent defects undisclosed. The rational interpretation of the quoted provision must be taken to be that the company making the sale sought in this way to make it plain that it was not to be bound by any expressed verbal warranties which might have been made by its agents, but was limited to only such express obligations as were set forth in the sale agreement. The expression can not reasonably be taken to refer to implied warranties, which do not have to be “made”, and are not supposed to be expressed, but which, if not excluded by the contract, are deemed to be a part thereof as a matter of law. The express exclusion of express warranties does not, by implication, impair the implied warranties. The expression quoted is not the equivalent of declaring that the property is not warranted at all, as was the case in Holt & Duggan Co. v. Clary, 146 Ga. 46 (90 S. E. 381); Harrell v. Holman, 21 Ga. App. 159 (93 S. E. 1021); Payne v. Chal-Max Motor Co., 25 Ga. App. 677 (104 S. E. 453). Accordingly, the court erred in excluding all evidence tending to establish a breach of the implied warranty.

2. When, as shown by the petition for certiorari and the answer of the magistrate, the court, on plaintiff’s motion, ruled “that no evidence tending to prove a breach of the implied warranty . . could be introduced/’ he cut off the defendant from making her defense, and his action in so ruling was equivalent to sustaining an oral motion to strike the defendant’s plea. A verdict in favor of the plaintiff followed as a matter of course. There could not, therefore, be a proper application of the rule now invoked by the plaintiff, which requires a defendant, in submitting proof to sustain a partial failure of consideration, to show the amount and extent of his damage. Since the court had refused to let the defendant show any damage, it was impossible for her to show what damage.

3. Under the foregoing rulings, the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bell, J. Bell, J.

text:
    18569.
    COMMERCIAL CREDIT COMPANY OF GEORGIA v. TOMPKINS.
    Decided July 13, 1928.
    Rehearing denied September 1, 1928.

      W. M. Lester, Peebles & Bowden, for plaintiff in-error.

      Pml T. Chance, contra.
   Bell, J.

U. H. Tompkins and A. J. Connell, trading as Tompkins-Cormell Motor Company, sued out an attachment for $639.45 against Commercial Credit Company, on the ground that the alleged debtor was “a nonresident corporation.” Garnishments were issued- and served on P. H. Clark and Mrs. J. R. McCarthy. _ Mrs. Me-. Carthy made her answer within the time required. Clark had not. answered at the time of the trial which resulted in the verdict now complained of. The answer of Mrs. McCarthy was to the effect that on or about August 11, 1926, she bought oE the Foreman Motor Company, of North Augusta, S. C., a certain automobile which she was to pay for in monthly installments of about $40 each, and that before the first installment was due she was notified by “.Commercial Credit Company” of the maturity of that installment, and has received like notices as to the maturity of all succeeding installments; and that while she has made her payments to Commercial Credit Company, she is unable to say whether she is indebted to that company or Foreman Motor Company. She set out that, from the time of the service of the summons and the time of her answer she had become indebted in the sum of $80.50 to one or the other of these companies, the same being the installments for two certain months stated, but that she was not otherwise indebted.

•• Later on, “ Commercial Credit Company of Georgia” filed a claim to “said funds in the hands of said garnishees,” and, by giving a bond, dissolved the garnishments. The issue tried in the court below was whether the funds sought 'to be garnished were due to ■Commercial Credit Company, as defendant in attachment, or to Commercial Credit Company of Georgia, as claimant.

The jury returned the following verdict: “We, the jury, find the issues in favor of plaintiff, and that the amount due by garnishee at time of service of garnishment be applied to this debt, to wit: $995.95.” Commercial Credit Company of Georgia, claimant, has brought the case to this court upon exceptions to the overruling of ■its motion for a new trial.

Counsel have argued a number of questions which we deem it proper not to decide, in view of the condition in which we find the record. W.e will pass upon the one question of whether there was evidence to support the verdict, — a question which, in our opinion, should be answered in the negative. Treating all the proceedings as regular and assuming that in all other respects the verdict is a legal one, the evidence shows without dispute that the indebtedness of. P. H. Clark was to Commercial Credit Company of Georgia, and not to the defendant in attachment, and that, while Mrs. McCarthy was indebted to “Commercial Credit Company, Baltimore, Maryland,” which might, perhaps, have been the defendant in attachment, the amount of such indebtedness did not exceed $483, a sum ranch less than the amount of the verdict against the claimant. ■

The plaintiffs have obtained a verdict against the claimant for $995.95, whereas in no view of the evidence would it sustain a finding of an indebtedness by either or both of the garnishees to the defendant in attachment of more than $483. It follows that the verdict in the amount stated is unsupported, and for that reason should have been set aside on the claimant’s motion for a new trial.

We can not agree with counsel for the defendants in error that the verdict should stand because it appeared that the claimant was either identical with, or the agent of, the defendant in attachment. Whatever might have been the effect of either of these facts if shown, the plaintiffs have alleged that the defendant in attachment is a corporation which is a nonresident of the State of Georgia. By this allegation they are bound. New Zealand &c. Ins. Co. v. Brewer, 29 Ga. App. 772 (6) (116 S. E. 922). The evidence showed without dispute that Commercial Credit Company of Georgia is a corporation duly created under the laws of this State. There was proof of an interlinking of these companies in the handling of their business, including the fact of common officers or agents, but it indisputably appeared that Commercial Credit Company of Georgia was, as to the matters involved in this case, transacting business in its own name, and,'under the evidence, it could not have been found as a matter of fact that the indebtedness of P. H. Clark to this company was an indebtedness to the defendant in attachment, which, according to the plaintiffs’ own allegations, was a corporation not residing in Georgia, and thus an entirely distinct entity from the other company.

We have carefully examined the record and have found no point-upon which we can say that the judgment ought to be affirmed.

Judgment reversed.

Jenlcvns, P. J., and Stephens; J., concur.

ON MOTION EOR REHEARING.

Bell, J.

In view of the motion for rehearing, we have concluded that certain statements in our original opinion were irrelevant, and we have accordingly amended the opinion by striking these statements. The above is the opinion in its original form with the exception of such changes as have been made merely by omission.

In the motion for rehearing it is contended that this court, in reaching its conclusion that the judgment should be reversed, has overlooked a certain agreement or stipulation which was made between the attorneys in open court, at the close of the evidence upon the trial in the court below, and which is shown in the brief of evidence. We did not overlook this agreement as it thus appears in the record, but we confess to having misapprehended its true effect and import. It seems that the parties, through their attorneys, agreed that the aggregate amount of the indebtedness of the two garnishees was $995.95, and that the sole question for determination was whether this amount was due to the defendant in attachment, “ Commercial Credit Company,” or to claimant, “ Commercial Credit Company of Georgia.” The following form of verdict was prepared for the convenience of the jury: “We, the jury, find the issues in favor of--, and that the amount due by garnishee at time of service of garnishment be applied to this debt, to wit: $995.95;” the intention being that the jury should determine from the evidence whether the blank should be filled in by writing the word “plaintiff” or the word “claimant”.

We call attention to the fact that the names of the defendant and the claimant are similar and yet not identical, the name of the latter being the same as the former plus the words “of Georgia”.

As we now view the case, we think the only issue for determination was whether these parties were identical or their relation was such that for the purposes of this case an indebtedness to the one was an indebtedness to the other, the contention of counsel for the defendant in error being that the claimant “was merely a branch office or agent of the defendant”. Upon this question we are still of the opinion that there was no evidence to authorize an inference of the identity of these parties or of such a relationship between them as would make an indebtedness to one the same as an indebtedness to the other.

In the motion for rehearing is the assertion “that the sole and only issue submitted to the jury was whether all of the funds in the hands of both garnishees belonged to the claimant, or whether all the funds in the hands of both garnishees belonged to the defendant.” If a determination of this issue should pass from the question of the relationship or identity of the parties as just referred to, it would necessarily involve an examination of the evidence for the purpose of ascertaining to whom the garnishees were indebted. The evidence fails to show that “all the funds in the hands of both garnishees belonged to the defendant,” but shows without dispute that the indebtedness of Clark was to Commercial Credit Company of Georgia, the claimant, and not to the defendant in attachment.

Counsel for tlie defendant in error lias suggested that we might dispose of the case without a reversal, by affirming the judgment on condition that the defendant in error write off or strike from the recovery all in excess of $483, the amount of the indebtedness of Mrs. McCarthy. In order to give this direction to the case, it would be necessary to hold that the evidence authorized a finding that this indebtedness was due to the defendant in attachment; that is, that Mrs. McCarthy’s creditor, “Commercial Credit Company, Baltimore, Maryland,” was the same person as “Commercial Credit Company,” the nonresident defendant in attachment. With out determining whether the evidence would authorize this conclusion, we are constrained to decline the suggestion as to such conditional affirmance, — this because it'appears from the record that other cases in the court below are' dependent upon the final result of the present case, and a “dog fall” in this court might tend to confusion in the construction and enforcement of such agreements. We think it best that the case be disposed of by an unconditional reversal in order that the trial court may take such further proceedings as may be proper in the light of the rulings herein made, and without embarrassment from any split judgment by this court.

It is stated in the motion for rehearing that this court by its judgment of reversal “separated that which the parties to this case made inseparable by an agreed form of verdict.” In view of this statement we think the defendant in error can not complain because we let the judgment of the court below stand or fall as a whole, although, in proper cases; judgments may be affirmed by permitting the plaintiff to write off an unauthorized portion of his recovery.

Rehearing denied.

Jenkins, P. <7., and Stephens, J., concur.


text:
    18593, 18652.
    Schermerhorn, administratrix, v. National Fire Insurance Company of Hartford, Connecticut; and vice versa.

   Jenkins, P. J.

I. An entry made by the sheriff or any officer of a court having jurisdiction of the defendant. and of the subject-matter of the suit is prima facie conclusive as to all facts properly recited therein (McKnight v. Wilson, 158 Ga. 153, 161, 122. S. E. 702), but such an entry “may be traversed by the defendant at the first term after notice of such entry is had by him, and before pleading to the merits.” Civil Code (1910), § 5566. According to the provisions of this section of the code, in order to traverse an entry of filing of a petition as signed by the clerk, if such traverse is made after the first term, and after the filing of the plea, the defendant must show that he files his traverse at the first term after notice is had by him of the facts forming the basis of the traverse. Griffith v. Shipp, 49 Ga. 231 (2); Elder v. Cozart, 59 Ga. 200, 201; Sanford v. Bates, 99 Ga. 145 (25 S. E. 35); Albritton v. Tygart, 134 Ga. 485 (68 S. E. 79); Turpie v. Cox, 18 Ga. App. 424 (89 S. E. 492).

Decided July 27, 1928.

Rehearing denied September 1, 1928.

2. The principle set forth above is not to be confused with the right of an officer himself to amend his official entries and returns so as to make them conform to the facts of the case as they were at the time such entry or return was made. Civil Code (1910), § 5700. Accordingly, as is provided by section 5709, “the mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party, where by amendment justice may be promoted,” and it is the duty of the court to permit such officer, on or without motion of parties, to make such a voluntary entry nunc pro tunc. Gress Lumber Co. v. Coody, 99 Ga. 775, 776 (27 S. E. 169); Furr v. Bank of Fairmount, 139 Ga. 815 (78 S. E. 181); Brown v. Johnson-Brown Co., 33 Ga. App. 419 (126 S. E. 550). Where a party resorts to a traverse in order to annul the terms and effect of an official entry, the relief obtained results from a judgment of court fixing and declaring the truth as to the controverted facts; whereas the altering by the official in amending his own entry or return results, not from any compulsion of a judgment establishing the fact, but from the voluntary act of the official himself.

3. In the instant case it does not appear that the clerk undertook to alter his return by voluntary amendment, but on the contrary it appears that the defendant, by its traverse, challenged the truth of the entry as made, and, after having made the clerk a party to its traverse, undertook to establish, by a judgment of the court, the truth of the controverted issue. This the court was without power to do except upon the hearing of a traverse filed in conformity with the requirements of law. Accordingly, the court erred in overruling the first ground of the demurrer to the traverse, which set forth that the belated traverse did not show that it was filed at the first term after notice was had of the facts forming the grounds thereof; and the court erred in thereafter granting a nonsuit upon the theory that it had been legally shown that the suit was not filed within the time prescribed by the insurance contract.

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

Stephens and Bell, JJ., concur.

W. C. Little, L. G. Harrell, Hal Lawson, for plaintiff.

Smith, Hammond & Smith, W. S. Mann, for defendant.


author: Bloodworti-i, J. Bloodworth, J.

text:
    MILES et al. v. FOY.
    Decided July 31, 1928.
    Adhered to on rehearing, September 26, 1928.

      Anderson & Jones, J. B. Moore, for plaintiffs.

      Deal & Renfroe, for defendant.
   Bloodworti-i, J.

This was a suit on account to recover the value of certain barrel staves and heads. The defendant, Foy, pleaded that he owed the plaintiff nothing; that he bought the staves and heads from F. N. Bushin, not knowing that he had a principal, but “thought all the time he was purchasing said staves and heads of said Bushin himself, and that the same was his property;” that he “never received any invoice, bill, or bill of lading for the same from plaintiff or any one else, or any notice of any nature that would put defendant on notice that the staves and heads were not the property of said F. N. Bushin himself, nor did he ever hear of plaintiff in the transaction until some weeks after the payment for said staves to said F. N. Bushin.” So- far as the record shows, Foy and Bushin were strangers to each other. The evidence shows that Bushin went to the place of business of Foy, had sample of staves with him, and offered to sell some staves to Foy. Foy testified that Bushin left the impression “that he was making and selling the staves for himself; that he did not tell him anything about the Pine Grove Stave Company, or that he was selling for them;” that “he did not have any order-forms or bill-heads with him when the order for the staves ivas given;” that the order for the staves was a verbal one; that when he gave the order he asked Bushin about paying for the staves, and he said he would collect for them when they came; that “when I got the staves he got the money, and I thought everything was o. k.;” and that he paid Bushin by check for the staves. Miles swore that he was general manager of his concern; that they sold the staves to Foy, and had never been paid for them; that he sent to Foy by mail a bill of lading and invoice, and both were returned to him by the postal authorities; that he then sent the bill of lading and invoice to Bushin, with a note in which he said, “Here is the bill for J. P. Foy. Please get it to him.” It appears from the record that the place of business of Foy is off the railroad, and that his shipping point is Claxton. The trial resulted in a verdict for the. defendant. A motion for a new trial was overruled, and the plaintiffs excepted.

To what is said in the headnotes we will add only the following: The real issue in this case is whether or not the agency of Rushin was concealed from Foy; whether or not at the time Foy paid for the goods purchased from Rushin he knew that Rushin was acting for another. While it is true that “agency to sell does not necessarily carry with it authority to collect” (Walton Guano Co. v. McCall, 111 Ga. 114, 36 S. E. 469), and also true that in special agencies for a particular purpose persons dealing with the agent should examine his authority (Civil Code of 1910, § 3595), we must not overlook the fact that “Where an agency is concealed, a party dealing with the agent may set up any defense against the principal which he might have against the agent; and where one of two innocent persons must suffer by the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss.” Savannah Trust Co. v. National Bank of Savannah, 16 Ga. App. 706 (86 S. E. 49). Certain it is that under the evidence, so far as Foy was concerned, he had no notice of the fact that Rushin was representing the plaintiff until after he had paid for the goods. In Truluck v. Carolina Portland Cement Co., 34 Ga. App. 501, 503, 504 (130 S. E. 356), this court said: “The principal question for determination is whether it was before or after the contract between Loris Lumber Company and Carolina Portland Cement Company, the defendant, for the sale of lumber had been entered into and performed, that it was disclosed that the lumber company was acting as agent for Truluck, the plaintiff. If the principal, Truluck, was concealed until after the contract between the lumber company and the cement company had been executed and the rights of the parties thereto had become fixed, then there can be no doubt as to the right of the defendant to set up his claim against Loris Lumber Company.” And: “There is no contention on the part of the plaintiff that the defendant, prior to the receipt in Atlanta, on May 10, of the invoice referred to in the agreed statement of facts, had any notice whatever that the lumber company was acting as the agent of the plaintiff. Granting that the lumber company was the agent of Truluck, the Carolina Portland Cement Company pleaded, and the record showed, that it had no knowledge of the agency until after the shipment was made and title to the lumber had passed to the defendant and its rights had become fixed. This being true, the Carolina Portland Cement Company would be entitled to set off any claim that it might have against the agent, and Truluck was not entitled to a judgment against it. Civil Code (1910), § 3604; Durant Lumber Co. v. Sinclair Lumber Co., 2 Ga. App. 210 (4), 213 (58 S. E. 485), and citations; Savannah Trust Co. v. National Bank of Savannah, 16 Ga. App. 724 (3) [supra]; Bond v. McEntire, 137 Ga. 438 (73 S. E. 652); McConnell v. East Point Land Co., 100 Ga. 129 (2), 134 (28 S. E. 80).” In Lovelace v. Reliable Garage, 33 Ga. App. 289, 290 (125 S. E. 877), Presiding Justice Jenkins said: “Thus it is well settled that the rights of an undisclosed principal are subject to claims acquired in good faith against the agent. In other words, a third person who contracts in ignorance of the existence of a principal can set up against the principal, who sues upon the contract, any defenses and equities which he could have set up against the agent had the latter been in reality the principal suing on his own behalf. L. R. A. 1916A, 1213 et seq.; Ruan v. Gunn, 77 Ga. 53, 54; Bond v. McEntire, 137 Ga. 438 (73 S. E. 652); Durant Lumber Co. v. Sinclair, 2 Ga. App. 209 (4), 213 (58 S. E. 485); Atlantic Coast Line R. Co. v. Gordon, 10 Ga. App. 311 (2), 313 (73 S. E. 594); 28 L. R. A. (N. S.) 227, 229; 20 R. C. L. 882, 883.” In Bond v. McEntire, supra, the facts as stated in the report of the case were as follows: “The suit was for the price of fertilizer sold and delivered in 1907. The defendant pleaded: that he did not buy the guano from the plaintiffs, but bought it from D. A. Baker, who acted as owner in making the sale, and defendant so believed him to be; that no other principal was disclosed, and he had no knowledge or information that Baker was acting as agent for the plaintiffs, if so he was; and that the guano was bought with the distinct understanding and agreement with Baker that the price of it was to go in part pajonent of a note he owed the defendant, of larger amount than said price, which amount was pleaded as a set-off. The defendant testified in support of his plea; and there was testimony for the plaintiffs that all the guano sold and delivered by Baker and his employees in 1907 was the property of the plaintiffs, and Baker acted only as agent for them in selling it, and was not authorized to sell any of it in payment of his debt. The jury found for the defendant. A new trial was denied, and the plaintiffs excepted.” In that case the facts were quite analogous to the facts in this case, and the Supreme Court affirmed the judgment. See Ruan v. Gunn, 77 Ga. 53. The facts in this case clearly differentiate it from that of Miles v. Smith, 37 Ga. App. 619 (141 S. E. 314).

The motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, O. J., concurs. Luke, J., dissents.

on rehearing.

Bloodworth, J.

After a careful reconsideration of all the facts of the case, this court is still of the opinion that the motion for a new trial was properly overruled.

Judgment adhered to.

Broyles, G. J., concurs. Luke, J., dissents.


text:
    18576.
    PECK v. HARRIS.
    Decided August 10, 1928.
    Rehearing denied September 26, 1928.

      W. G. Warnell, for plaintiff in error.

      Adams, Adams & Douglas, contra.
   Luke, J.

The judgment of this court dismissing the writ of error in this case (Peck v. Harris, 37 Ga. App. 688, 141 S. E. 433) having been reversed on certiorari by the Supreme Court (166 Ga. 633, 144 S. E. 20), said judgment so rendered by this court is vacated. It now becomes necessary to decide the question presented by the record, to wit: “Did the trial judge err in striking the material portions of the defense, and in rendering a judgment for the plaintiff?”

Stephen H. Harris brought his action in trover against Fenn Peek, for “one Hupmobile touring-car, manufacturer’s serial number B39164, motor number 89562, of the present value of $350.” The petition alleged that said automobile was sold to Peck on October 20, 1925, under a conditional-sale contract retaining title in the vendor until the full purchase-price thereof should be paid. Paragraph 5 of the petition is as follows: “The said automobile was purchased as a second-hand machine, and the said Fenn Peek examined, inspected, and tried out said automobile, and also had a mechanic inspect and try out said automobile before he signed the said conditional-sale contract.” It was further alleged that the agreed price of said automobile was $535, that there was a balance due thereon of $150, and that the defendant had refused payment of said balance.

In his answer Peck admitted executing said sale contract, and assumed the burden of proof; admitted the alleged purchase-price of the machine, but denied that there was any balance due thereon; and admitted his refusal to deliver it to the plaintiff. Other paragraphs of the answer were: (4) “Answering paragraph 5 of the plaintiff’s petition, the defendant admits that he knew he was purchasing a second-hand automobile, and that he was driven a short distance in same before signing said contract; but he denies the remaining allegations of said paragraph.” (7) “For further plea and answer, the defendant alleges that on the date of the alleged purchase of said automobile he was, and still is, unlearned,.unskilled, and inexperienced as to the mechanism of automobiles and automobile models, and especially as to Hupmobiles; and then having explicit confidence in the business integrity and reliability of the plaintiff, he naturally relied then and there on the representations made to him by said plaintiff.” (8) “Defendant says that said automobile was sold to him then and there, by the plaintiff, as a '1923 Model’ Hupmobile, merchantable, in good condition, and reasonably suited to the purpose for which it was intended; and, relying upon these representations, defendant executed the contract declared upon.” (9) “Defendant further shows that the representations referred to in paragraph eighth hereof were untrue, and a fraud on him, and that he was induced to execute the contract by reason thereof, as will be more fully hereinafter made to appear.” (10) “That the consideration for said contract has partially failed, by reason of the facts hereinafter stated.” (11) “In this paragraph defendant itemizes the money expended by him on said automobile, as follows: Oct. 22, 1925, $8.75 for temporary repairs lie was forced to have made in order to get back to Savannah from Beaufort, S. C.; Oct. 2G, 1925, $33.50 for permanent bearing and repairs to motor; Nov. 10, 1925, $11.00 for new back curtain to replace old rotten one; April .1, 1920, $20.00 for new set oE bolts and bushings and defendant’s labor in installing same; April 13, 1926, $131.67 for new set of tires; April 26, 1926, $28.90 for new armature and overhauling generator; from Nov. 1, 1925, to May 15, 1926, $75.00 for front-wheel bearings, rear-wheel keys and key-ways, new brake-linings, and tightening motor.” (12) “Defendant alleges that the defects enumerated in the foregoing paragraphs were known, or should have been in the exercise of ordinary diligence, to the plaintiff at the time of said sale, and were unknown to this defendant because of his inexperience, as aforesaid.” (13) “Defendant says that immediately after the discovery of the defective condition of said automobile, he reported same to the plaintiff, and asked then and there for some adjustment of the matter; and that plaintiff put him off, saying that if we could not agree upon an adjustment we would arbitrate same.” (14)' “Finally, on or about April 16, 1926, defendant discovered that instead of being a '1923 Model’ car, as was represented and warranted by the plaintiff, that in fact it was an old worn-out '1920 Model,’ not being worth at most, at the time of sale, the sum of $200.00; whereupon defendant promptly notified the plaintiff of this discovery, and again asked him to take the car back and give defendant an adjustment for the payments and expenses he had been forced to make for the repairs on said car, which request was declined by the plaintiff.” (15) “Defendant alleges that the defects above mentioned and enumerated, and the resultant expenses for repairs therefor, were directly and proximately caused by the old age of said automobile and the worn-out condition, of its mechanism; and that this defendant was free from fault, and in no way contributed to the causes of same.” (16) “That the real age of said automobile and the worn-out and defective condition of its machinery were latent to any one, except an experienced automobile man or a skilled mechanic.” (17) “The defendant 'alleges that a fair market value of said automobile, at the time he contracted for the purchase of it, was $200.00, and that he has actually paid the plaintiff the sum of $385.00, and that the total amount expended by him on said automobile is $308.82, thus making defendant have a total investment in same amounting to $693.82, which amount he now herein sets off and recoups against said plaintiff, and prays this honorable court for a judgment against the plaintiff for the excess, to wit, the sum of $493.82.”

The sale contract attached to the petition as a part thereof contains these provisions: “I have examined said.chattel, and accept the same in its present condition. . . I, or we, expressly waive as against this agreement . . all claims for damages of whatever nature; also any and all provisions of law wherein and whereby it is required that any sum of money shall be paid to me, or us. . . This and the reserved-title agreement constitute the full and complete terms on which said chattel has been sold.” The contract need not be set out in full. Suffice it to say that it provides that the vendee shall pay all taxes and insurance on said automobile ; that in the event the dealer or his assigns are unable to carry such insurance, as they have a right to do if the vendee does not do SO', they shall not be responsible for any loss or damage thereon from fire, or theft; that the parties to the contract appoint designated persons to adjust any loss arising out of or under any insurance policy or bond issued on or covering said property; that the injury or destruction of said property shall' not release the vendee from paying for it and from giving renewal notes therefor as provided by the contract; and that if any part of the indebtedness shall remain due and unpaid, or if said “chattel” is removed from the county of the residence of the vendee, or if it is encumbered, or if same is disposed of in any way, or if it is used to carry passengers for hire, or is misused or abused, or if taxes and insurance premiums are not paid by the vendee when due, or if said automobile is used for the transportation of liquor in violation of any law, or if any insurance company should desire to withdraw its insurance on said property, the full price of said automobile shall become due and payable, and the vendor shall have the right to repossess and sell the same without any. legal process, retaining all payments made by the vendee as liquidated damages.

Since “an express warranty excludes an implied warranty on the same or a closely related subject” (Barber v. Singletary, 13 Ga. App. 171, 78 S. E. 1100), no implied warranty is in this case. See paragraphs 8 and 9 of the answer. From the fullness and detail with which the agreement was set out, as well as from the express terms of the sale contract, it is clear that the entire agreement was intended to be integrated in the contract. See Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711); Reeves Tractor &c. Co. v. Barrow, 30 Ga. App. 420 (118 S. E. 456); McMillan v. Cochran, 24 Ga. App. 579 (101 S. E. 717). “In case of a chattel, where the parties have reduced to writing what appears to be a complete and valid contract of sale, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire agreement, and parol evidence of prior or contemporaneous representation, statements, or agreements in regard to the subject-matter is inadmissible to add to, take from, or vary the written instrument.” Hoffman v. Franklin Motor Car Co., 32 Ga. App. 229 (3) (122 S. E. 896); Bullard v. Brewer, supra. Recognizing the foregoing rule, the defendant sought to plead fraud. Did he successfully do so? We think not. The defendant admitted “that he knew he was purchasing a second-hand automobile, and that he was driven a short distance in same before signing said contract.” It does not appear that he did not have full opportunity to examine said automobile, or to- have it examined by some one competent to ascertain its true condition, before the sale contract was signed or the car delivered. It may also be noted in this connection that it appears from paragraph 8 of the answer that the defendant himself was enough of a mechanic to install bushings and bolts in the ear, and to ask pay for his services in so doing. There was no artifice, trick, or device employed by the plaintiff; either to cause the defendant to sign the sale contract or to accept delivery of the automobile. Our conclusion is that the trial judge properly struck paragraphs 7 to 17, inclusive, on motion; and that, having done so, the judgment for the plaintiff was demanded. In addition to the authorities cited above, see Nolan v. Calhoun, 38 Ga. App. 227 (143 S. E. 606); Cody v. Automobile Financing Inc., 37 Ga. App. 452 (140 S. E. 634); Hadden v. Williams, 37 Ga. App. 464 (140 S. E. 797).

Judgment affirmed.

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


author: Stephens, J.

text:
    18360.
    Southern Lumber Co. v. Ramsey-Wheeler Co.
   Stephens, J.

1. The section 2259 of the Civil Code of 1910, codifying an act of 1885, which provides that suits ex contractu against corporations may be brought in the county in which the contract sued on was made or is lo bo performed, if tlie corporation lias an office and transacts business in tlie county, docs not repeal, but is cumulative only of the general prolusions of law that suits against domestic corporations, including suits ex contractu, may be brought within the county where, by the charter of tlie corporation, its principal office is located. See, in this connection, Watson v. Richmond & Danville Railroad Co., 91 Ga. 222 (18 S. E. 306); General Reduction Co. v. Tharpe, 11 Ga. App. 334 (75 S. E. 339); Jossey v. Georgia & Alabama Railway Co., 102 Ga. 706 (28 S. E. 273); Central of Georgia Railway Co. v. State, 104 Ga. 531 (31 S. E. 531, 42 L. R. A. 518); McCandless v. Inland Acid Co., 115 Ga. 968 (3) (42 S. E. 449); Case Threshing Machine Co. v. Thurmond, 144 Ga. 21 (86 S. E. 324); Civil Code (1910), § 6543.

Decided August 29, 1928.

J. P. Dulces, for plaintiff in error.

O. O. Darsey, Edwin A. Cohen, contra.

2. Where there is no agency or agent within the county in which by the charter of a domestic corporation its principal office is located upon whom service can be perfected in the county, service of a suit brought against the domestic corporation in such county may he perfected by service of a second original of the petition in any other county in the State wherein the corporation has an agency or an agent upon whom service can be perfected. Hutcheson Manufacturing Co. v. Chandler, 29 Ga. App. 726 (116 S. E. 849); Central Georgia Power Co. v. Parnell, 11 Ga. App. 779 (76 S. E. 157); Tuggle v. Enterprise Lumber Co., 123 Ga. 480 (51 S. E. 433); Devereux v. Atlanta Railway Co., 111 Ga. 855 (36 S. E. 939); Goaldey v. Southern Railway Co., 120 Ga. 960 (48 S. E. 372).

3. This being a suit ex contractu against a corporation, brought within the county of Liberty, and it appearing from the allegations in the petition that the defendant is a domestic corporation with its principal office and place of business located in that county under a charter granted by the superior court of that county, although it may appear that the contract sued on was to be performed in the county of Bryan in this State, in which the defendant corporation has an office and transacts business, jurisdiction of the suit is in Liberty county; and where it appears from the return of service by the sheriff that there was no agent or agency of the defendant within the county upon whom service could be perfected, and where it further appears that, pursuant to an order of court, service was legally perfected in the county of Chatham by the sheriff of that county, who served the second original and process upon the defendant by delivery of copies of the same to the agent in charge of the business of the defendant at its office and place of business in that county, it appears that service upon the defendant was legally perfected, and the court did not err in g overruling the defendant’s motion to dismiss the suit for want of service.

' Judgment affirmed.

Jenhins, P. J., and Bell, J., concur.


text:
    18404.
    Millsaps v. Hayes.
    Decided August 29, 1928.

      J. G. Pratt, R. B. Russell Jr., for plaintiffs in error.

      Jere S. Ayers, contra.
   Stephens, J.

1. An agreement executed after the maturity of a promissory note, by which the payee agrees with the maker to extend the time of payment in consideration of the maker’s promise to pay interest, either past due or to be earned in the future, at a rate less than the maker is under a legal obligation to pay, is void as lacking in consideration. Crawford v. Gaulden, 33 Ga. 173; Tatum v. Morgan, 108 Ga. 336 (33 S. E. 940).

2. A promissory note dated December 6, 1912, and maturing December 1, 1913, which provides for the payment of interest upon the principal sum at the rate of 8 per cent, per annum from the date of execution, continues to draw interest after its maturity in a sum in excess of 6 per cent, per annum, whether the note draws interest after maturity at 7 per cent, implied, by law, or at 8 per cent, under the terms of the contract. An agreement made after maturity, between the payee and the maker, by which the payee agrees to extend the time of payment of the note in consideration of the maker’s promise to pay interest upon the principal sum at 6 per cent, per annum, is, since the maker’s promise to pay as a consideration for the extension is an amount less than that for which he is already legally bound, void as lacking in consideration.

3. The agreement, being void for lack of consideration, could not operate as a release of the surety upon the note. In a suit by the payee against the maker and another, claiming to be a surety, where the only defense interposed by the alleged surety was that the defendant, as surety, had been released by virtue of the agreement between the maker and the plaintiff, by which, in consideration of an extension of the time of payment by the plaintiff, the maker would pay 6 per cent, per annum as interest upon the note, the court did not err in excluding certain testimony offered, tending to establish a novation of the contract, and in thereafter directing a verdict for the plaintiff against both defendants in an amount admitted by the maker as due, with interest at the contract rate to the date of the verdict.

Judgment affirmed.

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


text:
    18425.
    Pope v. Shipp.
   Stephens, J.

. 1. Where, on the hearing of a moLion for a new ‘trial, the respondent moves to dismiss the motion, upon the ground that the movapt has not presented for approval a brief of the evidence within the legally required time, and the movant thereupon moves to continue the hearing until sufficient time has elapsed to permit the preparation of a brief of the evidence, and where the court afterwards, upon a consideration of both the. motion to continue and the motion to dismiss, overrules the motion to continue and sustains the motion to dismiss and dismisses the motion for a new trial, upon the ground that no brief of evidence has been filed, an assignment of error which recites that “to which said order dismissing said motion . . movant in said motion excepted, excepts, and now assigns the same as error, and for grounds of such error says that the order dismissing said motion for a new trial was contrary to law because under the facts herein above set forth the dismissal of said motion was an abuse of the discretion resting in the judge of said court before whom said motion came on to be heard,” presents for consideration only the question as to the legality of the order dismissing the motion for a new trial upon the ground that no brief of evidence has been filed, and does not present for consideration the question as to the legality of the ruling of the trial judge in overruling the respondent’s motion to continue the hearing until a later date in order to give the movant an opportunity to present for approval a brief of the evidence.

2. Nevertheless, it appears that the trial judge did not err in refusing to continue the hearing on the motion for a new trial. The motion to continue having been made by the movant in the motion for a new trial upon the date set for the hearing of the motion for a new trial, upon the ground that the movant, by reason of certain negotiations between the attorneys for the movant and the attorneys for the respondent, ■looking towards a settlement of the controversy, had not had sufficient time to prepare and present for approval a brief of the evidence, and it appearing from the evidence adduced upon the motion, to continue that the judge was authorized to infer that the movant had had sufficient time to prepare and present for approval a brief of the evidence, and that nothing in the negotiations between the attorneys showed that the movant was prevented from preparing and presenting the brief of evidence by anything attributable to the attorneys for the respondent or to the respondent himself, the trial judge was authorized to find against the motion to continue.

3. Where, upon the hearing of a motion for a new trial, it appears that a brief of the evidence has not been presented within the legally required time, it is proper to dismiss the motion. Mott v. Koch, 7 Ga. App. 239 (66 S. E. 553); Guthrie v. Hendley, 8 Ga. App. 101 (68 S. E. 654); Davis v. State, 8 Ga. App. 711 (70 S. E. 148).

4. The plaintiff’s petition as amended sets out a cause of action. The amendments contain allegations in elaboration of the allegations of the original petition, and are not subject to demurrer upon the ground that they set out a new cause of action, or that they contain matter irrelevant and not germane to the plaintiff’s case as set out in the original petition.

5. A judgment of a court stands with full force and efficacy until it has been .reversed or set aside. The mere pendency of a motion for a new trial can in no way affect the force and efficacy of the judgment to which the motion relates. It follows that an amendment offered by the plaintiff, in which a certain judgment between the same parties in a former litigation is pleaded as res judicata of certain defenses pleaded by the defendant, did not fail to constitute a good and sufficient plea of res judicata by reason of its appearing that a motion for a new trial, to set aside the judgment pleaded, was still pending and undisposed of.

Decided August 29, 1928.

B. W. Fortson, W. A. Slaton, for plaintiff iu error.

C. B. Sutton, Bari Norman, contra.

6. The judgment overruling the motion to continue and the judgment dismissing the defendant’s motion for a new trial, and the rulings of the trial court previously made in overruling the defendant’s demurrers to the petition and the amendment thereto and to the petition as amended, were not error.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., eoneu/r.


text:
    18447.
    GHEESLING v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.

    Decided August 29, 1928.

      Allen & Pottle, G. A. Giles, for plaintiff.

      Jones, Jones & Johnston, Hines & Carpenter, for defendants.
   Stephens, J.

J. T. Gheesling brought an action against the Louisville & Nashville Railroad Company to recover damages for alleged loss of freight. The defendant filed a plea in abatement, alleging that the present suit was a renewal of a former suit for the same cause of action -by the plaintiff against the defendant, which had been dismissed, and that the present suit had been instituted and filed without payment by the plaintiff of the costs which had accrued in the former suit, and that by reason of the nonpayment of costs the present suit could not lie and should be abated.

It appeared, without dispute, from the evidence introduced upon the trial of the issue made on the plea in abatement, that the costs in the former suit, which had been dismissed before the institution of the present suit, had not been paid, except in so far as an arrangement between the attorney for the plaintiff and the justice of the peace and the constable of the justice’s court in which the former suit was filed may have constituted a payment of the costs in this case which had accrued in that court. The justice of the peace testified that he stayed in the office of the plaintiff’s attorney, that the attorney did most of the writing for the witness and prepared papers for him, that the attorney would not accept any pay for this work and would not accept pay from the witness for office rent, that the witness would not have accepted any costs from the attorney in this case, that the witness considered the costs paid, that it was understood that no costs should be paid by the attorney in cases brought by the attorney to the court over which the witness presided as justice of the peace. The constable testified that in the former suit he perfected service on the defendant, and that while his costs were not paid in money, he considered them paid, that the attorney for the plaintiff would write entries of service upon papers for him, and would also write all his sales advertisements and levies, that the attorney would receive no pay for this work, and the witness would not permit the attorney to pay him any court costs.

On direction of the court the jury found for the defendant on the plea in abatement. No motion for a new trial was made, and the plaintiff brought the case to this court on a direct bill of exceptions.

As provided in § 5625 of the Civil Code of 1910, it is essential to the plaintiff’s right to a recommencement of his suit, after a dismissal, that the accrued costs in the former suit be paid.

While it might be assumed, although in German Alliance Insurance Co. v. Hawes, 18 Ga. App. 338 (89 S. E. 527), it is seemingly held to the contrary, that the court costs, in-so far as they represent fees which the officers ol' court can collect for legal services performed, could be paid and discharged by being offset with a claim against the officer in favor of the party liable for the costs or liis attorney, it does not necessarily follow’ that the court costs in a particular case could be discharged and paid by a general agreement and understanding between a justice of the peace and his bailiff on the one hand, and a practicing attorney on the other, that, by reason of services, such as preparing papers and entries of service, etc., for these officers, and furnishing them with office space by the attorney, these officers will not charge the attorney or his clients any court costs in cases which the attorney might institute in the court in which these officers serve. Such a general arrangement between the officers on one hand and the attorney on the other is indefinite as to the services to be performed by the respective parties. The value of the services performed by one party to the arrangement might, during a certain period of time, be greatly in excess of, and during another period of time considerably less than, the value of the reciprocal services performed by the other party. Under an arrangement whereby a judicial officer, such as a justice of the peace, will not collect court costs chargeable against the plaintiffs in eases brought to that court by the attorney, the officer is exposed to a temptation, in all cases brought by the attorney, to decide in favor of the plaintiffs and thereby collect his costs out of the defendants. An arrangement which tempts a judicial officer to render a decision otherwise than according to the justice of the case is vicious and is calculated to defeat justice. Such an arrangement is against public policy and will not be enforced by the courts. While this criticism might be urged against the fee system generally as legally recognized, in so far as it applies to judicial officers, the legal recognition of a system which is susceptible to such a criticism is no justification for sustaining a similarly objectionable arrangement which has no expressed legal warrant or recognition.

We are of the opinion that the court properly directed the jury to find in favor of the defendant’s plea in abatement.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.


text:
    18533.
    Kamper Grocery Company v. Sauls.
   Stephens, J.

1. Where the issue was as to the alleged negligence of the driver of the defendant’s truck in colliding with an automobile operated by the plaintiff, the admission in evidence of the testimony of a witness for the plaintiff, that “probably a minute or a minute and a half after the collision” the driver of the defendant’s truck stated in the presence of the witness that the truck collided with the plaintiff’s automobile because the brakes on the truck “would not hold,” was, if error, harmless, and the error was cured, where afterwards upon the trial of the case the driver of the truck testified that at the time of the collision the brakes did hold, but that the wheels locked and the truck skidded. The evidence as to the extrajudicial statement of the driver was admissible as contradictory of the driver’s testimony.

2. The evidence also authorizes the inference that the brakes upon the defendant’s truck were defective; and since the petition charged that the defendant was negligent in operating the truck along a highway with defective brakes, the charge with reference to a statute requiring motor-vehicles, when operated along the highways, to be equipped with efficient and serviceable brakes, and providing that a failure so to operate a motor-vehicle constitutes negligence as a matter of law, was adjusted to an issue made by the pleadings and the evidence. And the charge is nowhere subject to the objection urged that it amounted to an intimation or expression of opinion by the court that the defendant’s truck was at the time of the collision being operated without efficient and serviceable brakes.

3. In a suit for damage resulting from a collision between two automobiles, where the theory of the plaintiff’s case as alleged in the petition and authorized by the evidence was that the defendant’s automobile collided with the automobile of the plaintiff, striking the latter automobile near its right front wheel as the latter automobile was crossing in front of the defendant’s automobile at an intersecting street, and where there was evidence that at the time of the collision the defendant’s automobile was six or seven feet from the curb on its right, the evidence authorized the inference that the damage was either caused or aggravated by the failure of the defendant’s automobile to be nearer to the curb in approaching the plaintiff’s automobile, and a charge by the court, calling attention to an ordinance of the city which required automobiles when traveling on a highway, except when passing another vehicle going in the same direction, to keep as near the right-hand curb as possible, and instructing the jury that a failure to comply with the provisions of this ordinance amounted to negligence as a matter of law, was adjusted to the pleadings and the evidence.

4. In a suit for damages as a result of a collision between two automobiles, where the plaintiff alleges that the defendant’s automobile was at the time operated by the defendant’s servant, acting within the scope of his master’s business, and the defendant’s plea denies these allegations, and where upon the trial the driver of the automobile, who is the defendant’s witness, testifies that at the time of the collision he was in the employ of the defendant, and, in driving the automobile, was in the pursuit of the witness’s business as a driver, that the automobile was laden with groceries belonging to the defendant, and that the wit-„ ness was delivering them to customers of the defendant, this testimony, while authorizing the inference that at the time of the collision the witness was operating the automobile as the servant of the defendant and within the scope of his employment as such, does riot, although' not expressly contradicted by other evidence, amount to an admission of fact by the defendant that the witness was at the time of the collision acting as a servant of the defendant and within the scope of his employment as such. Andrews v. State, 134 Ga. 71 (67 S. E. 422); Hill v. State, 147 Ga. 650 (3) (95 S. E. 213). A charge of the court that the defendant contends that there was not sufficient evidence to show that the driver of the defendant’s automobile was a servant of the defendant and was engaged in the defendant’s business was properly adjusted to the issue made by the pleadings and the evidence. Even had the defendant admitted the truth of the witness’s testimony in this respect, the charge of the court, in submitting to the jury that there was an issue of fact as to this matter, was' not necessarily harmful to the defendant. Matthews v. Seaboard Air-Line Ry., 17 Ga. App. 664 (87 S. E. 1097). If the charge was error as being unauthorized by the evidence, it was nevertheless favorable to the defendant, the party objecting thereto, and under the facts of this case was harmless to the defendant.

5. The motor-vehicle act of 1921 (Ga. L. 1921, p. 255), which provides that when motor-vehicles are approaching each other along a public highway each must bear to its right, does not give the right of way to the driver of the automobile continuing his straight course, over the driver of the other automobile after the latter has made a left turn into the intersecting street. In the absence of a statute or evidence of a valid ordinance of the city fixing the relative rights of the drivers of automobiles under such circumstances, either generally or at this particular intersection of the streets, it can not be said that either driver, as a matter of law, under the circumstances, had the right of way. No ordinance appearing and there being no statute fixing the rights of drivers of automobiles under such circumstances, the court did not err in its failure to charge that the driver of the defendant’s automobile had the right of way over the plaintiff’s automobile, and did not err in refusing a request of the defendant to charge that the conduct of the plaintiff in not respecting the defendant’s alleged right of way, when turning across his course, constituted negligence as a matter of law.

6. While it might be proper, as stated in the dictum of Judge Bleckley in Western & Atlantic Railroad Co. v. Young, 83 Ga. 512, 519 (10 S. E. 197) “to instruct the jury not to bring in a verdict arrived at by lot or chance,” a failure to so charge, where there is no evidence whatsoever to indicate that the particular verdict found for the plaintiff was arrived at .by lot or by chance, is not error. There being no indication from the amount of the verdict, which is in the even and round sum of $3,000, that it was arrived at by lot or by chance, and there being no evidence that the jurors arrived at it, either upon the question of liability or in the amount found, by chance or by taking the average of an amount named by each individual juror, the court did not err in refusing a written request of the defendant to charge “that the verdict of the jury should speak the individual conviction of each member of the jury, and the methods of arriving at a verdict by averaging the views or opinions of all members of the jury are not proper, unless the average thus reached expresses the individual opinion of each member of the jury as to what the verdict should be.” See City of Columbus v. Ogletree, 102 Ga. 293, 298 (29 S. E. 749); 27 R. C. L. 847.

Decided August 29, 1928.

Jones, Brins, Moore & Powers, for plaintiff in error.

Harwell, Fairmcm & Barrett, contra.

7. Where the only contentions made by the defendant in the pleadings consist in a general denial of certain allegations in the plaintiff’s petition which are not admitted as true, and a plea that the injuries sued for were caused solely by the plaintiff’s negligence, it is not an unfair submission of the defendant’s contentions for the trial judge, in the charge, after referring at length to the plaintiff’s contentions as alleged in the petition, to state to the jury that the defendant admits certain designated allegations in the petition and denies all the other allegations in the petition and the amendments thereto, and to state, in the same connection, that the defendant contends that the injuries to the plaintiff were not caused by the defendant’s negligence, but were due solely to the negligence of the plaintiff.

8. The court, fairly to the defendant, submitted all the issues to the jury. The evidence authorizes the verdict found for the plaintiff, and, upon a consideration the evidence in support of the extent of the personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendant in running its automobile into the automobile which the plaintiff was driving, the verdict in the amount of $3,000 does not appear to be excessive or to have been arrived at as a result of undue bias or prejudice on the part of the jury.

9. The court did not err in overruling the defendant’s motion for a new trial. Judgment affirmed.

Jenjoins, P. J., and Bell, J., concur.


text:
    18597.
    Chattanooga Finance Corporation v. Bitting.
   Jenkins, P. J.

1. The object of the statute requiring the record of a contract of conditional sale reserving title is to protect the vendor and the vendee against each other, and the public against both. The record of such an instrument is notice to the world that the yiwner of the property has parted with his absolute dominion over it, but retains the title as security for his debt, and of every fact which might be ascertained from an inquiry which the record properly suggests. Civil Code (1910), § 4530. Accordingly, not only does the record of such an instrument protect the vendor against the claim of any subsequent holder under his vendee, but in a case where the record indicates the negotiable character of the instrument it also protects a transferee of the retention-of-title note, and the title therein retained, against a subsequent purchaser from Die vendor, for the reason that a person seeking to acquire the property from the vendor should require the vendor to show that he still has possession of the negotiable instrument, and has not transferred it to some third person. Patterson Co. v. Peoples Loan & Savings Co., 158 Ga. 503, 509, 510 (123 S. E. 704). Where, however, all that the record discloses is that the vendee of the property owes a stated portion of the purchase price, and that the title to the property is reserved in the vendor until the purchase price is fully paid, and there is nothing to indicate or suggest that the vendee has executed a negotiable note for the unpaid purchase price, there is nothing to put on inquiry a purchaser from the vendor in possession of the property as to the rights of any one who might claim as the transferee of an undisclosed negotiable instrument. In such a ease an innocent purchaser from the vendor in possession is only bound to inquire into the respective claims of the vendor and the vendee under the recorded instrument.

Decided August 29, 1928.

8. W. Fariss, Willingham, Wright & Covington, for plaintiff.

Maddox, Matthews & Owens, for defendant.

2. This was a suit in trover, brought by the transferee of the purchase-money notes given by the original vendee of the automobile sued for, against one who subsequently purchased the automobile, in good faith and without notice, from the original vendor, while the latter was in possession of the property. The original sale contract and the original purchase-money notes were not recorded. All that was recorded was a mere statement that the vendee of the property owed a stated portion of the purchase-price, and that the title to the property was retained by the vendor until the purchase price was fully paid, which recorded instrument, it appears from the record, was retained by the vendor. Irrespective of whether or not an issue was made by the evidence as to the agency of the original vendor to repossess the property and resell it for the account of the plaintiff, under the principles of law set forth in the foregoing division of the syllabus, a verdict for the defendant was demanded, and the court did not err in directing a verdict in his favor. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18643.
    National City Company of New York v. Mayor and Council of the City of Athens.
   Jenkins, P. J.

1. It is the general rule that bank checks are not payment until themselves paid, the presumption being that the payee of a check takes it for collection and application, rather than as payment in and of itself. Civil Code (1910), § 4314. However, one receiving a bank check for collection and application must exercise reasonable diligence in presenting it for payment, and if he negligently holds it for an unreasonable time, without presentation, it is at his own risk. Lester-Whitney Shoe Co. v. Oliver Co., 1 Ga. App. 244 (58 S. E. 212). The rule governing the risk assumed by a payee by reason of his negligence in failing to promptly present a cheek for payment does not, however, have application unless the duty for prompt presentation and application actually exists.

2. Irrespective of whether the initial deposit which under the advertised terms of sale of an issue of bonds was required to accompany all bids is to be regarded as subject to forfeiture in the event the successful bidder should, without justification, fail to comply with his accepted offer, or whether such deposit was required as a ‘mere evidence of good faith and as a guaranty against such actual loss as might be shown to have resulted from such a failure to comply, where a bid for the purchase of municipal bonds provided that “our acceptance of the bonds upon delivery will be subject to our being able to obtain our attorneys opinion that the bonds are legal and binding obligations of the City of Athens, Georgia, supported by tax on all taxable properties, and this bid is made with the understanding that if we are the successful bidder, you will furnish us with all papers necessary for such an investigation without expense to us,” it was a conditional bid, since a bona fide opinion rendered by such attorneys to the effect that the legality of the issue had not been satisfactorily shown would relieve the bidder from any obligation to take the bonds, and entitle it to a return of the initial deposit. City of Rome v. Breed, 21 Ga. App. 805 (95 S. E. 474).

3. Under the agreed statement of facts presented by the record in the instant ease, the fact that the defendant, who turned over the cashier’s check to the plaintiff as representing the required initial deposit in the purchase of certain bonds issued by the plaintiff, was accepted by the plaintiff as the conditional purchaser of its bonds, pending the defendant’s approval of the legality of the issue, did not, pending such investigation, pass the title to the bonds into the defendant, or put the actual title to the initial conditional deposit in the plaintiff. Pending such investigation and approval by defendant, the payee of such cheek held the legal title to the check representing the defendant’s funds, merely as trustee to protect the rights both of the defendant and itself, with the obligation on its part to make such final disposition of the same as the result of the defendant’s investigation might require. During such interval the plaintiff, as such trustee, was not authorized to use and consume the funds belonging to the defendant, thus guaranteeing the good faith of its conditional bid. Consequently, during such interval, the plaintiff could not be charged with negligence, under the rule stated in the first division of this syllabus, in failing to convert the defendants funds to its own use by cashing the check held by it as trustee, and thus converting the defendant’s possible right to a return of the deposit to a mere claim on open account; nor could it be thus charged with negligence in failing to cash the check representing the defendant’s funds for the purpose of changing the depositary from that selected by the defendant itself.

Decided August 29, 1928.

4. The fact that by the terms of the defendant’s bid for the bonds the plaintiff was asked to “kindly return this cheek to 'our representative if we are not the successful bidder,” while impliedly authorizing the plaintiff to hold the check in the event the defendant was not accepted as the successful bidder, did not amount to any sort of instruction to cash the check representing the defendant’s funds pending its investigation of the legality of the bonds, which by the expressed terms of its proposal it would not be obligated to accept, and could not be required to pay for, unless and until it reached the conclusion that the issue had been legally made.

5. Under the agreed statement of facts, and in accordance with the foregoing principles of law, the court, sitting as both judge and jury, did not err in finding in favor of the plaintiff for the unpaid portion of the purchase price of the bonds in the amount of the unpaid cashier’s check representing the initial conditional deposit.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Horace & Frank Holden, Shearman & Sterling, for plaintiff: in error.

Lamar G. Rucker, contra.


text:
    18653.
    BARNETT v. DAVIS et al.

    Decided August 29, 1928.
    IE. J. Nunnally, for plaintiff iu error. John G. Davis, contra.
   Jenkins, P. J.

This was a petition brought under section 825 of the Civil Code (1910), to remove an obstruction from a private way. It-appears that a private road, not over fifteen feet in width, had been uninterruptedly used, kept up, and maintained along the same road-bed, diagonally across the lot involved, for more than seven years, except that where the private road had turned out, in either direction, into the public road, it was considerably more than fifteen feet wide for a short distance, and that about two years previously to the filing of the petition the then owner of the premises had fenced in his lot, thus excluding the public from the use of the private road as a way for vehicles, but had provided for pedestrians to use the same, by erecting steps at either entrance, between posts, to enable pedestrians to cross the fence. It further appeared, however, without dispute, that on one side of the lot the steps thus erected were about thirty feet from the outlet of the old private road, and that a detour from the former private way led to the steps leading out into the public road. It appeared that prior to the filing of the petition wires had been stretched across the steps, blocking the passageway into the private road for pedestrians. The ordinary found in favor of the petitioners and ordered the obstructions removed, and the judge of the superior court overruled a certiorari taken to this action.

“Before an applicant can have obstructions removed from a private way, he must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than fifteen feet wide, and that he has kept it open and in repair, and that it is the same fifteen feet originally appropriated.” Collier v. Farr, 81 Ga. 749 (7 S. E. 860); Forrester v. McKaig, 144 Ga. 702 (87 S. E. 1060). It has been held, however, that where the general width of a private way does not exceed fifteen feet, the mere existence of a few wider places will not defeat the right of the users. Accordingly, the increased width of the private road as it formerly turned out in either direction into a public road can not be said, as a matter of law, to have caused a forfeiture of the petitioner’s rights. It appearing, however, that for the two years preceding -the filing of the petition to remove obstructions there had been a change in the road-bed of the prescriptive road, and that the road as' it existed at the time the petition was filed was not the same fifteen feet, originally appropriated, and that the private way as it then existed had been maintained only for a period of about two years, the court erred in sustaining the application, and in ordering the obstructions removed. The provisions of section 819 of the Civil Code (1910), relating to closing private ways in existence for as much as one year without first giving the users thereof notice in writing, in order that they might take steps to have it made permanent, not having been invoked in the instant proceeding, any rights which petitioners might have under the last-mentioned code section are not involved. Fraley v. Nabors, 131 Ga. 457 (62 S. E. 527). Compare Barnes v. Holcomb, 35 Ga. App. 713 (134 S. E. 628).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18659.
    Smith v. Perryman et al.

    Decided August 29, 1928.

      J. J. Bull & Son, for plaintiff.

      J. H. McGehee, A. J. Perryman, for defendants.
   Stephens, J.

Since the award of a nonsuit can not be reviewed by a motion for a new trial, the court did not err in overruling the defendant’s motion for a new trial. Farmers Union Warehouse &c. Co. v. Stewart, 138 Ga. 733 (75 S. E. 1131); Buchanan v. James, 134 Ga. 475 (68 S. E. 72).

2. If in such a suit this court has jurisdiction to entertain and pass upon the assignments of error made in the exceptions pendente lite filed by the defendant, there is no assignment of error in the bill of exceptions, either upon the exceptions pendente lite or upon the rulings complained of in the exceptions pendente lité. Therefore the alleged errors complained of in the exceptions pendente lite can not be considered.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., eoneu.r.


text:
    18387.
    Head v. Crew.
   Stephens, J.

1. An agreement between two adjoining landowners establishing a dividing line between their respective tracts is not unenforceable by reason of its not having been acquiesed in for a period of seven years. See, in this connection, Farr v. Woolfolk, 118 Ga. 277 (45 S. E. 230).

2. This being’ an issue arising by virtue of a protest filed by an adjoining landowner to the return of proeessioners fixing a dividing line between the two tracts of land, and there being evidence from which the jury could have inferred that the dividing line as contended for by the protestant was a line which had been agreed upon and fixed by former owners of the two tracts, and was therefore the true line, the verdict found for the protestant was authorized, and the charge of the court that a dividing line between the two tracts could be established by an agreement between tlie respective landowners is not subject to the exception that the charge was not adapted to the issue presented by the evidence, or that it .was illegal and was not a true statement of the law because of a failure of the court to instruct the jury that before an agreed dividing line between two adjoining tracts could be established as the true dividing line, it must appear that the adjoining land- . owners had acquiesed in the line for a period of seven years.

Decided August 30, 1928.

J. R. Hutcheson, for plaintiff.

S. W. Ragsdale, G. D. McGregor, for defendant.

Judgment affirmed.

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


text:
    18592, 18604.
    ATLANTA BASEBALL COMPANY v. LAWRENCE; and vice versa.

    Decided August 30, 1928.

      Underwood, Haas & Gambrell, for Atlanta Baseball Company.

      Colquitt & Conyers, contra.
   Bell, J.

(After stating the foregoing facts.) The conduct of McLaughlin, the pitcher, in leaving his place upon the grounds and coming into the grandstand, and assaulting the plaintiff, was not within the scope of his employment nor in the prosecution of his master’s business, but was his own personal affair in resenting a real or fancied insult. “If a servant steps aside from his master’s business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable.” Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. E. 322). Under the circumstances described in the petition, McLaughlin’s acts were not the acts of his master, and the latter can not be held liable under the doctrine of respondeat superior, or the master and servant theory. Georgia R. &c. Co. v. Wood, 94 Ga. 124 (21 S. E. 288, 47 Am. St. R. 146); Columbus & Rome Ry. Co. v. Christian, 97 Ga. 56 (25 S. E. 411); Georgia R. &c. Co. v. Richmond, 98 Ga. 495 (2) (25 S. E. 565); Central of Georgia Ry. Co. v. Morris, 121 Ga. 484 (49 S. E. 606, 104 Am. St. R. 164); Louisville & Nashville R. Co. v. Hudson, 10 Ga. App. 169 (73 S. E. 30); Brown v. Smith & Kelly Co., 12 Ga. App. 214 (76 S. E. 1082); Smith v. Seaboard Air-Line Railway, 18 Ga. App. 399 (89 S. E. 490); Central of Georgia Ry. Co. v. Stephens, 20 Ga. App. 546 (93 S. E. 175); Southeastern Fair Association v. Wong Jung, 24 Ga. App. 707 (102 S. E. 32); Daniel v. Excelsior Auto Co., 31 Ga. App. 621 (121 S. E. 692); Dugger v. Central of Georgia Ry. Co., 36 Ga. App. 782 (138 S. E. 266).

Is the defendant liable as for a breach of duty to the plaintiff as an invitee ? The proprietor of an amusement park is not an insurer of the safety of his patrons, but must use ordinary care to protect them from injury. The rule of liability is expressed in the Civil Code of 1910, § 4420: “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Undoubtedly the defendant owed to the plaintiff the general duty of exercising ordinary care for his safety, but the petition wholly fails to show any breach of that duty. There is nothing to indicate that the assault, or anything of such character, could or should have been foreseen or anticipated by the defendant; but the attack appears to have been the result of a sudden outburst of temper on the part of McLaughlin, a manifestation quite unusual with players in general, and one which does not appear to have been of the habit or disposition of McLaughlin in particular, either within or without the knowledge of the defendant. If the defendant had had good reason to apprehend that such a tiling would probably happen, then it should have exercised reasonable care to prevent the occurrence, but it was not required to anticipate the improbable, nor to take measures to prevent a happening which no reasonable person would have expected. The assault of which the plaintiff complains appears to have been a happening of that character. Under the facts appearing, the plaintiff’s case is not stronger than if he had been assaulted by some other spectator or invitee upon the defendant’s premises. The petition discloses no breach of duty on the part of the defendant, and hence fails to show negligence. Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Andrews v. Kinsel, 114 Ga. 390 (2) (40 S. E. 300, 88 Am. St. R. 25); Southern Transportation Co. v. Harper, 118 Ga. 672 (2) (45 S. E. 458); Bowers v. Southern Ry. Co., 10 Ga. App. 367 (2) (73 S. E. 677); Mitchell v. Schofield’s Sons Co., 16 Ga. App. 686 (6) (85 S. E. 978); Southern Cotton Oil Co. v. Shields, 23 Ga. App. 476 (98 S. E. 408); Harper v. Fulton Bag & Cotton Mills, 21 Ga. App. 322 (94 S. E. 286); 1 Shearman & Redfield on Negligence, 38, 39; Wells v. Minneapolis Baseball &c. Assoc., 122 Minn. 327 (142 N. W. 706, 46 L. R. A. (N. S.) 606, Ann. Cas. 1914D, 922). This case is to be distinguished from Moone v. Smith, 6 Ga. App. 649 (65 S. E. 712), and other cases cited by counsel for the plaintiff.

Since the petition failed to set forth a cause of action, and since it must therefore be held that the court erred in overruling the general demurrer, it is unnecessary to pass upon the exceptions in the cross-bill to the judgment sustaining the special demurrers (Willingham v. Glover, 28 Ga. App. 394, 111 S. E. 206); Columbus R. Co. v. City Mills Co., 135 Ga. 626 (4) (70 S. E. 242); Erk v. Simpson, 137 Ga. 608 (3) (73 S. E. 1065); but inasmuch as the ease is still pending in the court below, and is subject to further proceedings not inconsistent with the rulings made herein, the dismissal of the cross-bill is without prejudice. Hosher v. Fitzpatrick, 142 Ga. 384 (3) (82 S. E. 1065); MacDonell v. South Ga. Live Stock Corp., 152 Ga. 475 (3) (110 S. E. 227).

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

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


text:
    18594.
    Abercombie v. Ætna Life Insurance Co. et al.

    Decided August 30, 1928.
   Stephens, J.

In a suit against two defendants, where the petition alleged that both defendants were liable to the plaintiff under an alleged contract which insured his life, but did not provide for indemnity against accident, and where the petition alleged, as a basis for recovery under the policy, not the death of the plaintiff, but a disability resulting to him from the breaking of his leg by a fall on the floor while he was engaged in work pursuant to a contract of employment, the petition failed to set out a cause of action against either defendant, and the court did not err in dismissing it on demurrers filed by both defendants. Judgment affirmed.

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

William E. & Gordon Mann, for plaintiff.

J. A. McFarland, Bryan & MiddlebrooTcs, Colquitt Carter, for defendants.


text:
    18649.
    Crim v. Southern Realty & Trust Corporation.
    Decided August 30, 1928.

      Key, McClelland & McClelland, for plaintiff in error.

      Paul S. Etheridge, contra.
   Jenkins, P. J.

1. Where two persons enter into a written contract whereby one agrees to sell, and the other agrees to buy, a described tract of land, and the contract remains wholly executory, in that the agreed purchaser has never been put in possession or taken a conveyance, and where the contract of purchase and sale does not contain a promise on the part of the vendee to pay the purchase-price, in the event either of such contracting parties refuses to comply the other is limited to a right to proceed either by an equitable action for specific performance, or by an action at law for damages for breach of the contract; and in such a ease the vendor can not maintain an action at law against the vendee for the purchase-price, even though he may have tendered a conveyance. Reed v. Dougherty, 94 Ga. 661 (20 S. E. 965). Where, however, as here, the executory contract of purchase and sale does contain a promise upon the part of the vendee to pay the purchase-money, the vendor may maintain his action therefor at law, but in so doing, in order to ripen and make absolute the obligation of the vendee, he must first, as a condition precedent to the institution of -the action, offer performance upon his own part in accordance with the terms of the contract-. Morris v. McKee, 96 Ga. 611 (24 S. E. 142); Johnson v. Coffey, 29 Ga. App. 407 (116 S. E. 125); Stanaland v. Chastain, 36 Ga. App. 581 (137 S. E. 409).

2. In the instant suit for the purchase-price of land, based on an executory contract of purchase and sale, the vendor failed to show such a tender of performance on his part as would give effect to the obligation of the vendee to pay the purchase-money, since the only prior offer of performance on the part of the vendor consisted of a tender of a deed to the vendee and another person jointly. Consequently the evidence does not authorize the verdict in favor of the plaintiff for the purchase-money, and the judge of the superior court erred in overruling the certiorari. This ruling being controlling, the other questions raised by the record are not dealt with.

Judgment reversed.

Stephens and Bell, JJ., coneur.


text:
    18650.
    Fortson v. Dove.
    Decided August 30, 1928.

      G. E. Adams, for plaintiff in error. B. H. Gordon, contra.
   Stephens, J.

1. Where the heirs at law of an intestate, consisting of the widow and two children, who are of legal age, enter into a contract by which the entire property of the estate, both real and personal, is given to the children with the provision that the widow shall have the right to live upon the land and receive certain rents and profits therefrom during the remainder of her life, and the lands are to be divided between the two children, each child to take a certain portion, and the child receiving the larger portion is to equalize the difference by a payment in money to the other child, and where, by a subsequent contract among the three parties, the former contract is rescinded and it is , agreed that the former contract has been fully and competely complied with, and where it is further agreed that the survey of the lands and a division thereof made between the two children be confirmed and that the one of the children who has received as a result of the survey and division the larger portion of the land shall make a promissory note in a designated and agreed amount to the other child, and where it is further agreed that the widow is to live in a house upon the lands of the estate for the remainder of her life, and where this latter contract creates no other duties or obligations upon or against either of the two children of the intestate, parties thereto, neither one of the children has by virtue of this contract any claim against the other for the value of personal property which the latter received from the estate of the ifttestate.

2. In a suit upon the latter contract by the child party thereto who had received the smaller portion of the land against the other child party thereto, who had obligated himself by the contract to pay to the plaintiff the agreed sum for the excess of the acreage of land received by the defendant, a plea of set-off filed by the defendant, alleging an indebtedness by the plaintiff to the defendant for certain personal property alleged to have been received by the plaintiff from the estate of the intestate, and which failed to allege any contractual duty on the part of the plaintiff to pay the defendant therefor, alleged no right of action in the defendant as against the plaintiff, but, if it alleged a right of action, alleged one which could be enforced only by an administrator of the estate. Hill v. Maffett, 3 Ga. App. 89 (59 S. E. 325).

3. The court properly struck the defendant’s plea of set-off; and since the defendant in his plea and answer otherwise admitted all the essential allegations in. the plaintiff’s petition, the court properly, on the pleadings, directed a verdict for the plaintiff in the full amount of principal and interest sued for.

Judgment affirmed.

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


text:
    18656.
    SMITH v. RAILROAD LOAN COMPANY.
    Decided August 30, 1928.

      Mitchell & Beiniger, for plaintiff in error.

      Ezra E. Phillips, contra.
   Jenkins, P. J.

The Railroad Loan Company sued Smith on a promissory note for $75, the execution of which the defendant admitted. The defendant entered a plea setting up in substance that he purchased of the plaintiff certain shares of its capital stock; that at the time of the purchase and at divers times thereafter it was represented to him by the plaintiff that if he desired to borrow money the plaintiff would accept the stock as collateral for the loan, and that the value of the stock for all purposes of the loan would be eighty per cent, of its face value; that the defendant placed his stock with the plaintiff as collateral for the loan, that he had tendered it to the plaintiff in settlement of the loan, and that it was amply sufficient to pay the loan. On the trial of the case the defendant swore to a state of facts substantially in accordance with the plea, adding “that so far as he was concerned the stock paid the note.” The jury in the justice’s court returned a verdict in favor of the defendant, and the justice entered judgment accordingly. The judge of the superior court sustained a certiorari and entered final judgment in favor of the plaintiff in the amount sued for. Neither the plea nor the evidence admitted in support thereof showed a breach of any agreement or set up any valid defense to the suit on the note, and the judge of the superior court did not err in rendering the judgment.

Judgment affirmed.

Stephens and Bell, JJ., concur.