author: Jenkins, P. J.

text:
    18220.
    SCHADMANN v. DURRENCE.
    An oral agreement to buy land for a sum named, provided the vendor would purchase an outstanding lease of turpentine timber thereon, was not within the part-performance exception to the operation of the statute of frauds, although he bought the turpentine timber lease, and although, relying on the vendee’s promise in January to take the land, and in accordance with his instructions, the vendor omitted to put it under cultivation, and it was too late to do this when the vendee refused to take it in April next.
    . Frauds, Statute of, 27 C. J. p. 359, n. 26.
    Decided January 14, 1928.
    Attachment; from city court of Claxton—Judge Burroughs. May 10, 1927.

      Seabroolc, Kennedy & McWhorter, for plaintiff in error.

      P. M. Anderson, contra.
   Jenkins, P. J.

This was a suit for damages against a vendee, on account of his alleged breach of an oral contract for the sale of realty. The plaintiff undertakes to take the agreement from the operation of the statute of frauds (Civil Code of 1910, §3222), by setting up, in accordance with the provisions of §3223 (3), such part performance on his part as would render it a fraud on the part of the defendant to refuse to comply. The petition alleges that some time in January the defendant orally agreed to purchase from the plaintiff the land in question for a named sum, provided the plaintiff would purchase a certain outstanding turpentine lease of the timber on the premises, and that the plaintiff purchased the lease at'a named price; but the petition does not show that in buying up this lease he suffered any loss. He alleges, that, relying upon the promise of the defendant to take the land, and in accordance with the defendant’s instructions, he failed to put the land in cultivation; and that in April or May after the parol understanding was had in January, and when too late to put the land in cultivation, the defendant refused to carry out the agreement to purchase. The plaintiff sues for the loss sustained in being thus prevented from cultivating the land for that year. The defendant demurred to the petition, both generally and specially ; and he excepts to the judgment overruling the demurrer.

“A party to a parol contract which would ordinarily fall within the statute of frauds, who has so far performed the same as to render it a fraud for the other party to repudiate the agreement, is not prevented by the statute from recovering damages for its breach.” McLeod v. Hendry, 126 Ga. 167 (54 S. E. 949). But in such a case the acts relied upon by the party seeking to take the oral agreement from within the operation of the statute of frauds must have been done not only in reliance upon but in the performance of the contract. Graham v. Theis, 47 Ga. 479. In the instant case the petition does not show any sort of part performance of the oral contract of purchase and sale. Neither the whole nor any portion of the purchase-price had been paid, and it is not contended that the petition shows that the defendant ever went -into actual possession of the premises. Kinderland v. Kirk, 131 Ga. 454 (62 S. E. 582). Even if the plaintiff had alleged that his buying the outstanding turpentine lease resulted in loss to him, such a preliminary undertaking, whereby he merely sought to put himself in position to convey title to the premises, could not be accounted as a part performance of an actual sale. In like manner, any loss, expense or damage which might have accrued to him by reason of his allowing the premises to remain uncultivated while awaiting consummation of the invalid promise to purchase, could not be accounted as a part performance of a sale. The contract of purchase and sale being altogether invalid, and being entirely unexecuted, the provisions of the statute of frauds must be given effect; and the vendor acted at his peril in relying upon the invalid promise, so as to suffer the loss complained of. The court erred in refusing to sustain the general demurrer.

Judgment reversed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    18226.
    Carpenter v. Bankers Health & Life Insurance Company.
    Trover and Conversion, 38 Oye. p. 2074, n. 42.
    Decided January 14, 1928.
    Trover; from city court of Waynesboro—Judge Davis. April 28, 1927.

      G. G. Anderson, for plaintiff.

      II. G. Hatcher, for defendant.
   Jenkins, P. J.

1. The rule stated by this’court in Woodruff Machinery Mfg. Co. v. Griffin, 17 Ga. App. 529 (2) (87 S. E. 808), and followed in Securities Trust Co. v. Marshall, 30 Ga. App. 379, 382 (9) (118 S. E. 478), that, “conceding that under section 4494 of the Civil Code the proferred amendment setting up a tender, etc., was offered too late to relieve the defendant from the costs of the proceeding and to charge the plaintiff therewith, the defendant was, nevertheless, not precluded from setting up by amendment, after the first term, a tender of the property to the plaintiff, a tender of the reasonable hire therefor (or alleging that the same had no value for hire)', and from disclaiming title thereto,” must be understood to mean that a tender at a term subsequent to the first term must be made prior to an election by the plaintiff to take a money verdict. See, in this connection, Downs Motor Co. v. Colbert, 34 Ga. App. 542 (130 S. E. 592).

2. It appearing in the instant case that the defendant’s amendment tendering the property was made prior to any attempted election by the plaintiff to take a money verdict, the court did not err in allowing the same.

Judgment affirmed.

Stephens amd Bell, JJ., concur.


text:
    18251.
    Carter v. Vanlandingham.
    Appeal and Error, 3 C. J. p. 1330, n. 44; 4 C. J. p. 85, n. 33.
   Jenkins, P. J.

This was a fraudulent debtor attachment sued out under the provisions of section 50S8 of the Civil Code of 1910, under which the plaintiff filed his declaration. The defendant filed no answer to the declaration in attachment, but did file a demurrer and a traverse to the petition for attachment. Upon the hearing the court overruled the demurrer, and exceptions were taken pendente lite. The jury found against the traverse and in favor of the plaintiff on the declaration. The defendant filed a motion for a new trial, which was overruled, and he filed a bill of exceptions in which he specified certain amendments to the motion for a new trial, which were not sent up with the record. The clerk certified, in response to an order of this court directing them to be sent up, that no amendment to the motion for a new trial was ever filed. The defendant in error objected to a consideration of the exceptions taken pendente lite, on the ground that the act of August 15, 1921, with reference thereto was not complied with. Held:

Decided January 14, 1928.

Attachment; from Grady superior court—Judge Custer. April 16, 1927.

O. F. Bichier, for plaintiff in error,

W. H. Duchivorth, contra.

1. While it.is true that “by the act of August 15, 1921 (6a. Laws 1921, p. 233), when the final bill of exceptions shows that exceptions pendente lite were properly filed 'in the trial court, and when the contents of such exceptions pendente lite are recited in the bill of exceptions, or a copy thereof appears in the transcript of the record, an assignment of error in the final bill of exceptions, either upon the exceptions pendente lite or upon the rulings therein excepted to, is sufficient” (Alexander v. Chipstead, 152 Ga. 851 (111 S. E. 552), still, as is indicated by the opinion quoted, the mere fact that a copy of the exceptions pendente lite appears in the. transcript of the record is not a compliance with the act referred to where, as here, the final bill of exceptions does not contain an assignment of error either upon the exceptions pendente lite or, upon the ruling therein complained of. House v. American Discount Co., 31 Ga. App. 396 (120 S. E. 701). Accordingly, this court is without jurisdiction to consider the grounds set forth in the exceptions taken pendente lite.

2. The court having adjudicated the validity of the attachment, and the defendant having failed to preserve an exception to that adjudication,

• and the evidence having authorized a finding in favor of the plaintiff on the issue formed by the traverse, the general grounds of the motion for a new trial, constituting the only exceptions before this court, must be overruled.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18259.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. SHEPARD.
    The verdict being demanded by the evidence, it was error to grant a new trial for error in the charge to the jury.
    New Trial, 29 Oye. p. 786, n. 87.
    Decided January 14, 1928.
    Damages; from Peach superior court—Judge Mathews. May 14, 1927.

      Harris, Harris & Popper, 8. M. Mathews, for plaintiff in error.

      B. D. Feagin, J. F. Urquhart, contra.
   Jenkins, P. J.

This was a suit for damages on account of an injury occurring in the daytime at a railroad crossing.. The verdict was for the defendant, and a new trial was granted under a general order, but apparently because of certain erroneous instructions by the court to the jury. Exception is taken to the first grant of a new trial, upon the ground that, irrespective of any erroneous instruction, a verdict in favor of the defendant was demanded under the evidence.

The evidence of the plaintiff shows that he was a passenger in a Ford automobile, having no control over its movements; that the train approached the crossing, without ringing the bell or blowing the whistle, and at a speed of abouty forty miles per hour; that the plaintiff did not himself see the train until the automobile, which was approaching the crossing at a speed of about ten miles per hour, was within about ten feet of the same; that in order to avoid a collision it was necessary for the driver of the automobile to swerve it suddenly from the road into a sandbed, and as a result of this the car was overturned and the plaintiff’s arm was fractured. The driver of the automobile was not sworn as a witness. The evidence for the defendant company by its operatives shows that the train approached the crossing at a speed of about twenty-five miles per hour, that the automobile approached the crossing at about the same speed, and that the law with reference to blowing the whistle was complied with. It was testified, without dispute, that the engine, the tender, and two of the cars of the freight-train, had passed the crossing before the automobile swerved from the road. It was shown also, by undisputed oral and photographic evidence, that the view of an approaching train by one approaching the crossing on the highway was entirely unobstructed. It was also shown without dispute that the crossing was equipped with an automatic signal device consisting of a red light and a ringing bell, indicating the approach of a train, and that the device was properly operating at the time of the accident. It was further shown by the evidence of a disinterested eye-witness that the car in which the plaintiff was traveling swerved from the road at a distance of forty-nine feet from the crossing, and was actually overturned a distance of thirty-one feet from the crossing. There was evidence from various witnesses, to the effect that a Ford automobile traveling at a speed of ten miles per hour could have been stopped within a distance of from ten to thirty feet.

While it is true that the purport of the plaintiff’s testimony is that the automobile was within an estimated distance of ten feet of the crossing at the time the train was discovered and the car was swerved from the road, every fact sworn to and every proved circumstance appearing in the case conclusively indicates that such estimate could not have been correct, but that the proximate cause of the injury was the unnecessary^ and, under the circumstances, unjustified swerving of the car from the road. Accordingly, the evidence could not have justified a verdict in favor of the plaintiff; and, despite any error in the charge, the verdict should have been allowed to stand.

Judgment reversed.

Stephens and Bell, JJ., coneur.


text:
    18262.
    Bugg, receiver, v. Daley.
    Chattel Mortgages, 11 C. J. p. 598, n. 69.
    Railroads, 33 Cyc. p. 1276, n. 29.
    Decided January 14, 1928.
    Damages; from city court of Douglas—Judge Roberts. April 26, 1927. '

      Brandon & Hynds, Slater & Moore, for plaintiff in error.

      Chastain & Henson, contra.
   Jenkins, P. J.

1. “One in possession of personal property may recover for a tort tliereto although a third person holds the legal title as security for a debt.” Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (49 S. E. 839); Emanuel County v. Thompson, 3 Ga. App. 225 (59 S. E. 603).

2. The court did not err in admitting the testimony by which the plaintiff sought to establish by facts and circumstances the allegations of the petition that the mule had Been -knocked from the trestle by a train of the defendant company, and received injuries thereby which resulted in its death. The charge of the court fairly submitted the issues raised by the pleadings, and the circumstances sworn to were sufficient to authorize the jury to infer that the accident occurred as alleged and at the time specified. The discrepancy as to date between the plaintiff’s testimony and the letter written by him to the defendant was sufficiently explained. The jury being authorized to find that the animal was killed by the operation of the defendant’s cars, and the presumption of negligence arising therefrom not being rebutted, the verdict in favor of the plaintiff was authorized.

Judgment affw-med.

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


author: Bell, J.

text:
    18031.
    Schneider Marble Company v. Knight et al.

    Ageney, 2 C. J. p. 817, n. 25.
    Evidence, 22 C. J. p. 1237, n. 49.
    Payment, 30 Cye. p. 1202, n. 49; p. 1285, n. 17.
   Bell, J.

1. Where certain individuals composing a committee to represent the general citizenry, whose names and identities were not disclosed, purchased a monument to be erected as a memorial to the soldiers from a given county who died in the World War, and the contract of purchase and sale was duly executed by the seller in terms of ,the agreement, the members of the committee may be held liable as individuals in a suit by the seller on account for the price of the monument. Civil Code (1910), §§ 3596, 3597; Lippincott v. Behre, 122 Ga. 543 (3) (50 S. E. 467); Willingham v. Glover, 28 Ga. App. 394 (3) (111 S. E. 206); Davis v. Menafee, 34 Ga. App. 813 (131 S. E. 527).

2. In such a case, where the order was signed by only one of the members of the committee, it would be permissible for the plaintiff to show by parol testimony that, with the knowledge of the plaintiff and of all persons concerned, this member in signing the order was acting for and by authority of the other members as well as for himself, and thus that the others were bound, although the order purported on its face to have been executed by the signatory party upon' his sole responsibility. “Where a contract is signed by a person individually, parol evidence is admissible for the purpose of showing that he was acting as agent for another.” Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 (4) (59 S. E. 713); Colt Co. v. Hiland, 35 Ga. App. 550 (134 S. E. 142); Harrimam v. First Bryan Baptist Church, 63 Ga. 186 (36 Am. R. 117). A different rule seems to prevail in the case of negotiable instruments or of contracts under seal. Burkhalter v. Perry, 127 Ga. 438 (56 S. E. 631, 119 Am. St. R. 343); Coaling Coal &c. Co. v. Howard, 130 Ga. 807 (2) (61 S. E. 987, 21 L. R. A. (N. S.) 1051).

3. Promissory notes are not payment until themselves paid, in the absence of agreement to the contrary. Civil Code (1910), § 4314. Whether the receipt of a promissory note amounts to a payment of the original debt depends upon the intention of the parties, and this intention may be proved by parol testimony if the writing itself is silent or ambiguous on the question. Hall’s Cotton Gin Co. v. Black, 71 Ga. 450 (2); Weaver v. Nixon, 69 Ga. 699 (2). The note in the present case, though bearing upon its face the memorandum "“Balance account for Berrien County Soldier Memorial,” was silent upon whether it was intended as payment, and the testimony offered by the plaintiff that it had been given and accepted not in settlement of the account but merely as a matter of bookkeeping, and that such was the understanding of the parties, ought' to have been admitted. Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280 (2) (95 S. E. 1028); Kinard v. First National Bank, 125 Ga. 228 (53 S. E. 1018, 114 Am. St. R. 201).

4. Where several persons are indebted on an account, the giving of a note by one of them, in the amount of the indebtedness but not in settlement thereof, releases neither the maker nor the others from the original liability, but all may still be sued thereon, where the note is either surrendered to the maker or accounted for by showing that it is not enforceable against him. Hodges v. Smith, 118 Ga. 789 (3) (45 S. E. 617); Standard Cooperage Co. v. O’Neill, 146 Ga. 235 (91 S. E. 82). This ruling is not in conflict with the decision in Mosely v. Floyd, 31 Ga. 564 (2), as construed and explained in Norton v. Paragon Oil Can Co., 98 Ga. 468 (25 S. E. 501).

Decided January 16, 1928.

Complaint; from city court of Nashville—Judge W. E. Smith. February 21, 1927.

C. A. Christian, W. D. Buie, for plaintiff.

R. F. Hendricks, P. T. Knight, for defendant.

5. Under the above rulings, the court erred, as assigned in the bill of exceptions, in not admitting certain testimony offered by the plaintiff, and in directing a verdict in favor of the defendants.

Judgment reversed.

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


text:
    18042.
    Zeigler v. Perry et al. trustees.
    Certiorari, 11 C. J. p. 212-, n. 65; p. 218, n. 77 New, 80, 81; p. 222, n. 35.
    Religious Societies, 34 Cye. p. 1198, n. 25.
    Trusts, 39 Cyc. p. 452, n. 96 New.
   Jenkins, P. J.

1. Under sections 3786 et seq. of the Civil Code of 1910, a claim against a trust estate may be enforced in a court of law, and in such a case the trustees are the only necessary parties. Kelsey v. Jackson, 123 Ga. 113 (50 S. E. 951); Josey v. Union Loan & Trust Co., 106 Ga. 608 (32 S. E. 628); Holmes v. Bankston, 149 Ga. 668 (101 S. E. 792); Langford v. Mt. Zion Baptist Church, 22 Ga. App. 696 (97 S. E. 102). Where a suit is brought against trustees to enforce a lien against described property, in the absence of a demurrer it will be presumed that the property is held by the trustees for the benefit of the trust estate.

(а) While a suit can not be maintained against an unincorporated church, such action being a mere nullity (Langford v. Mt. Zion Baptist Church, supra), in an action against the church itself, where the petition is silent as to incorporation and the church answers without raising the question, it will be presumed, in the absence of demurrer, that the defendant church had become incorporated under the provisions of sections 2824 et seq. of the Civil Code of 1910.

(б) In an action such as indicated above, brought against the trustees of a church in their representative capacity and against 'the church itself, where there is no demurrer and where the trustees in their answer do not deny that they hold the legal title to the property on which a special lien is sought, and where the church itself does not deny its incorporation, but where the trustees and the church plead to the merits of the suit, the action must be taken as one against the trustees and the church as separate defendants, first, to enforce a lien against the property held by the trustees, and second, against the church as an entity. In such a case the liability of the church to be sued can not be questioned for the first time in this court. Gunn v. Wilson, 20 Ga. App. 14 (92 S. E. 721); Grant v. General Baptist Convention, 10 Ga. App. 392 (73 S. E. 422). If the suit was defective because of a failure to set forth the terms and character of the trust, or because of a misjoinder of parties, such defects were amendable, and, no demurrer being interposed upon such grounds, were cured by the verdict. Artope v. Barker, 74 Ga. 462; Love v. National Liberty Ins. Co., 157 Ga. 259 (121 S. E. 648).

2. Where in such a ease a verdict and judgment are rendered in favor of the plaintiff and against the church and the trustees, “as trustees,” setting up a special lien in favor of the plaintiff upon the described property, as prayed, and a motion for new trial is filed and overruled, and no exception is taken thereto by the church, but a petition for certiorari is brought by the trustees to review the judgment, the church is not a necessary party to a bill of exceptions brought to this court to review the judgment of the superior court sustaining the certiorari, since the church, not having excepted to the judgment overruling the motion for a new trial, and not being a party to the petition for certiorari, is not “interested in sustaining the judgment of the court below.” Accordingly, the motion to dismiss the writ of error, upon the ground that the church is not made a party as defendant in error, must be denied. Turner v. Newell, 129 Ga. 89 (58 S. E. 657); Ruffin v. Paris, 75 Ga. 653; Jordan v. Gaulden, 73 Ga. 191.

3. In such a case, where no motion is made in the superior court to dismiss the certiorari brought by the trustees, and no objection is there made to their maintaining • such proceeding, their right to do so because not appearing as movants in the motion for new trial in the city court can not be questioned for the first time in this court. Smith v. Atlanta, 22 Ga. App. 45 (4) (95 S. E. 470); Gunn v. Wilson, and Grant v. General Baptist Convention, supra.

4. A judgment of the superior court sustaining a certiorari for the first time is “equivalent to the first grant of a new trial;” and where a verdict is not demanded by the evidence, the judgment sustaining the certiorari and granting a new trial should be affirmed. Murray v. Stribling, 28 Ga. App. 211 (110 S. E. 761); Nickajack Milling &c. Co. v. International Vegetable Oil Co., 26 Ga. App. 473 (106 S. E. 300); Gresham v. Lee, 28 Ga. App. 576, 580 (112 S. E. 524), and cit. However, when the final determination of a case tried in an inferior court “and carried by certiorari to the superior court does not depend upon any controlling question of law, and there are issues of fact involved, the superior court has no authority to render a final judgment therein, although it may clearly appear from the facts disclosed by the record that the verdict rendered in the lower court was without evidence to support it.” Patterson v. Central of Ga. Ry. Co., 117 Ga. 827 (45 S. E. 250); Holmes v. Pye, 107 Ga. 784 (33 S. E. 816); Walker v. Reese, 110 Ga. 582 (35 S. E. 771); Bryan v. Central of Ga. Ry. Co., 117 Ga. 827 (45 S. E. 72); State v. Johnson, 21 Ga. App. 320 (94 S. E. 325). Accordingly, while the judge of the superior court did not abuse his discretion in sustaining the certiorari, it was error to go further and render final judgment for the plaintiff in certiorari.

Decided January 16, 1928.

Certiorari; from Laurens superior court—Judge Camp. January 27, 1927.

Statement oe eacts by Jenkins, P. J.

Zeigler, the pastor of St. Paul A. M. E. Church, brought suit in the city court of Dublin against the church and against named persons as trustees of the church, alleging, by his petition as amended, that the defendants entered into a -contract with bim whereby he was to “repair, improve, and furnish materials for the rebuilding and remodeling of the parsonage of the St. Paul A. M. E. Church, Dublin, Georgia, and that there was a balance due him, under the contract, of $711.61, and praying for a general judgment against the defendants and a special judgment against the property under a claim of lien alleged to have been recorded as provided by law against “the parsonage of the St. Paul A. M. E. Church, Dublin, Ga.” . It is not alleged by the petition whether the church is or is not incorporated, nor is it alleged whether title to the premises is in the church or in the trustees for the church. No demurrer was interposed by the defendants, but the trustees and the church filed an answer in which they denied the indebtedness sued for, and claimed that the plaintiff was indebted to the defendants in a certain sum already received by him on account of the work done. On the trial, the evidence was in conflict, the plaintiff testifying that the parsonage was damaged by fire, and that the trustees agreed for him to be in charge of the repairing and rebuilding; that no limit was made as to the amount of money he should spend on the work, but that insurance collected on account of the damage was to be paid over to him from time to time; that “they wanted a good, first-class job, and if the insurance was not sufficient, they were to take up donations for the remainder.” He testified to a balance due him in the amount sued for on account of labor and materials furnished in doing the work. Testimony was offered by the defendants, to the effect that the plaintiff agreed to take the insurance collected and repair the parsonage, and that the repairs and improvements actually made were worth no more than such sums already paid over to him; that no demand had ever been made by the plaintiff for any additional sum, and that he had refused to exhibit to the trustees any itemized statement of his claim. The jury returned a verdict in favor of the plaintiff in the reduced sum of $301.78; whereupon judgment was entered in favor of the plaintiff against the trustees as such, and against the church, and setting up the plaintiff’s lien against the property described, in the amount of the judgment. A motion for a new trial was filed, the original motion being captioned “S. M. Zeigler v. A. M. E. Methodist Church, St. Paul,” and beginning “the defendant being dissatisfied,” etc., and the amendment thereto being captioned “S. M. Zeigler v. St. Paul A. M. E. Church et al.,” and beginning, “Now comes movant,” etc. The motion for new trial was overruled by the trial judge, and a petition for certiorari was presented to the judge of the superior court by named persons as “trustees of the St. Paul A. M. E. Church, Dublin, Ga.” Upon the hearing the judge of tire superior court sustained the certiorari, and entered up final judgment against the plaintiff. The writ of error is brought to review that judgment; and there is a motion to dismiss the writ of error, because the St. Paul A. M. E. Church is not named or made a party as defendant in error.

Judgment reversed.

Stephens and Bell, JJ., concur.

G. G. Grochett, TP. F. Bell, TP. J. Gollvns, for plaintiff.

T. E. Hightower, 8. P. New, for defendants.


text:
    18048.
    GERSHON & GREEN v. MENDEL.
    1. Where, in an action for slander brought in this State for words spoken in New Jersey, no law or statute of that State is pleaded, it will be presumed that the common law prevails in that State, and the question of whether a cause of action is stated will be determined -under the principles of the common law as interpreted by the courts of this State.
    2. At common law, defamatory words falsely spoken of another in reference to his trade or business and calculated to injure him therein were actionable per se; and hence, in an action therefor, general damages could be recovered, and it was not-essential to the statement of a cause of action that special damages should be alleged.
    3. The petition in this case stated a cause of action for slander as at common law, and was not subject to demurrer upon the ground that the alleged slanderous remarks were not shown to have been the direct and proximate cause of the damage for which the plaintiff sued, nor upon the ground that no special damage was alleged or set forth. The court erred in sustaining the demurrers and dismissing the petition.

      Evidence, 22 O. J. p. 151', n. 95. libel and Slander, 36.0. J. p. 1180, n. 4; 37 O. J. p. 35, n. 19.

      Decided January 16, 1928.
    Action of slander; from Fulton superior court—Judge Pomeroy. January 31, 1927.

      Eli Socolof, for plaintiffs. A. 8. Grove, for defendant.
   Bell, J.

In a suit by Gershon & Green, a partnership, to recover for an alleged slander spoken by the defendant, Herman Mendel, in the State of New Jersey, the petition made the following case: Gershon & Green were a partnership carrying on a general mercantile business in various cities in this State. Sam Gershon was the senior member, and in. the channels of trade in which the firm operated it was descriptively referred to and identified by the name “Gershon” or “Sam Gershon.” The defendant, in a city in New Jersey on a day named, while the plaintiffs were so in business, falsely uttered to, and in the presence and hearing of, a third person, one Harry Gordon, certain defamatory words concerning the plaintiffs in reference to their business and touching them therein, as follows: Herman Mendel: “Well, I see they [meaning creditors] closed up your friend.” Harry Gordon: “Who?” Herman Mendel: “Sam Gershon.” Harry Gordon: “Are you sure of it?” Herman Mendel: “Yes, New York is full of it.” The third person to whom such false and defamatory words were so uttered and published reasonably understood them to refer to the business of Gershon & Green, and, by reason of the facts stated, the defendant damaged the plaintiffs in a sum named, for which the plaintiffs prayed judgment. The court sustained demurrers and dismissed the petition, and the plaintiffs excepted.

Since the words complained of were spoken in New Jersey and no law or statute of that State is pleaded, it will be presumed that the common law prevails in that State, and the question of whether a cause of action is set forth will be determined by the principles of the common law as interpreted by the courts of this State. So. Ry. Co. v. Harper, 32 Ga. App. 267, 273 (123 S. E. 154); Charleston &c. Ry. Co. v. Miller, 113 Ga. 15 (38 S. E. 338); Krogg v. Atlanta & West Point R., 77 Ga. 202 (2) (4 Am. St. R. 79). The plaintiffs claimed general damages only, and the main question for decision is whether defamatory words falsely spoken of another in reference to his trade or business and calculated to injure him therein were actionable per se at common law. The learned judge of the trial court was apparently of the opinion that this question should be answered in the negative, and thus that the suit was not maintainable in the absence of allegations of special damage. While our Supreme Court in one or more decisions has used language tending to such conclusion, the question has never been directly presented in any reported case in this State, and it is necessary to go beyond the decisions of our own courts in order to reach a satisfactory conclusion regarding the matter. According to the Civil Code (1910), § 4433, “charges made on another in reference to his trade, office, or profession, calculated to injure him therein,” will constitute a slander from which damage may be inferred, and as to which it is unnecessary to allege or prove special damage in order to recover; but since the action in the present case is predicated upon words uttered in a foreign State, the provisions of our own code are not applicable, unless they are expressive of the common law, and a determination of that point would decide the ultimate question. In Pollard v. Lyon, 91 U. S. 225 (23 L. ed. 308), the Federal Supreme Court said: “Different definitions of slander are given by different commentators upon the subject; but it will be sufficient to say that oral slander, as a cause of action, may be divided into five classes, as follows: 5(1) Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. (2) Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; or (3) defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment. (4) Defamatory words falsely spoken of a party, which prejudice such party in his or her profession or trade. (5) Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage.” We are at a loss to understand just what was the foundation for this statement, unless it was the common law.

The decision in the Pollard case was' cited and followed by the Court of Appeals of the District of Columbia in Marino v. Marco, 41 App. (D. C.) 76 (48 L. R. A. (N. S.) 1214), in which the opinion, with citations, was in part as follows: “It is elementary in the law of libel and slander that ‘defamatory words falsely spoken of a party, which prejudice such party in his or her profession or trade/ are actionable per se. Pollard v. Lyon, 91 U. S. 225 (23 L. ed. 308). This form of action is allowed by the law for the protection of every man who follows an honest profession, business, or calling, from false accusation, the natural tendency of which is to prejudice him in such profession, trade, or calling. When, therefore, words are spoken which convey an imputation upon one in the way of his profession, business or calling, or, as is sometimes stated, which touch him therein, recovery may be had without allegation or proof of special damage. Thus, in Morasse v. Brochu, 151 Mass. 567 (8 L. R. A. 524, 21 Am. St. Rep. 474, 25 N. E. 74), it was held that false words uttered with intent to injure a physician in the practice of his profession are actionable per se, when, as a natural or probable consequence, injury will follow therefrom. In Lovejoy v. Whitcomb, 174 Mass. 586, 588 (55 N. E. 322), the court said: ‘The jury were correctly instructed that a false and disparaging statement concerning one in his trade, occupation, or calling is actionable in itself, and the person concerning whom this statement is made, although he should not be able to show that he suffered damage or loss, would still be entitled to recover.’ In Moore v. Francis, 121 N. Y. 199 (8 L. R. A. 314, 18 Am. St. Rep. 810, 23 N. E. 1127), it was held that words imputing insanity are actionable per se when written or spoken of one occupying a position of trust and confidence in relation to his occupation, but not otherwise without proof of special damage. In Blumhardt v. Rohr, 70 Md. 328 (17 Atl. 266), the words declared upon were naturally calculated to convey the idea that the plaintiff, who was a butcher, was selling diseased meat for human food. It was held that the words were actionable per se. The court said: ‘ The slander charged is of one engaged in business or trade, and is alleged to have been spoken of the appellee and his business, and the words used, if used as charged on their face, were calculated to injure his business, and were therefore actionable per se.’ In Gross Coal Co. v. Rose, 126 Wis. 24 (2 L. R. A. (N. S.) 744, 110 Am. St. Rep. 894, 105 N. W. 225, 5 Ann. Cas. 549), the plaintiff was engaged in the business of selling coal, and the letter declared upon charged in substance that, at'a time when there was a coal famine and people were suffering for fuel, this company not only charged extortionate prices for its coal, but actually refused to sell coal, even.at those prices, to people suffering from sickness. In sustaining the judgment, the court said: c Such a earge is libelous, because imputing mean and abhorrent conduct to the plaintiff in the management of its business, and thus tending necessarily to injure it in such business. Words spoken of a person in direct reference to his business or trade, which charge him with incapacity, fraud, trickery, dishonorable and mean conduct in the transaction of his business, thereby necessarily tending to injure him in such business, are actionable without proof of special' damage See also Darling v. Clement, 69 Vt. 292 (37 Atl. 779); Jones v. Greeley, 25 Fla. 629 (6 So. 48); Daily v. De Young, 127 Fed. 491; Sternberg Mfg. Co. v. Miller Co., 95 C. C. A. 494 (170 Fed. 298, 18 Ann. Cas. 69), 25 Cyc. 326.” It is very evident that the principles here set forth are not of statutory origin, but are traceable to the common law. Other cases to the same effect might be cited in large number.

But, if they be clear and well settled, the best evidence of what was the common law is the decisions of the courts of England in which the principles of the system were enunciated and applied (Robert v. West, 15 Ga. 122); and on pursuing the present inquiry to that source of authority, we are satisfied that defamatory words falsely spoken of another in reference to his trade or business and calculated to injure him therein were actionable per se at common law. In the English case of Onslow v. Horne, 2 Bl. Rep. 750, decided in 1771, De Grey, C.J., laid down “two general rules for determining whether words are actionable: (1) The imputation of crimes, which would make the party obnoxious to punishment . . . '(2) The other general rule is, if the words may be of probable ill consequence to a person in a trade, a profession, or an office.” See also Leycroft v. Dunker, Cro. Car. 317; Peard v. Jones, Cro. Car. 382; and cases collected in 13 Am. & Eng. Enc. of Law (1st ed.), 355. In Spence v. Johnson, 142 Ga. 267 (3) (82 S. E. 646, Ann. Cas. 1916A, 1195), the Supreme Court of this State recognized the rule that words falsely spoken of one in reference to his trade, office, or profession were actionable per se at common law, although in that case it seems to have been necessary only to construe section 4433 of the Code without determining the origin of this section.

To support the proposition that the words involved in the present ease would not have been actionable at common law, counsel for the defendant relies chiefly upon the cases of Pledger v. Hathcock, 1 Ga. 550, Ford v. Johnson, 21 Ga. 399, Castleberry v. Kelly, 26 Ga. 606, and Nicholson v. Dillard, 137 Ga. 225 (3) (73 S. E. 382); but in none of these cases did the words have reference to one’s trade or business, and therefore the decisions in these cases are not iu point. In the Nicholson case it was said that “at common law only words imputing a crime to another were actionable per se; but [that] under our statute words calculated to injure one in his trade or profession are actionable;” and yet, since the record in that case presented no question as to whether an oral defamation of another in reference to his trade or business was actionable per se at common law, the language quoted, if implying the negative of such question, is mere obiter, and can not be taken as a decisive ruling upon the proposition. “The law guards most carefully the credit of all merchants and traders. Any imputation on their solvency, any suggestion that they are in pecuniary difficulties, is therefore actionable without proof of special damages. In actions of slander for words affecting the pecuniary credit of a merchant, it need not be averred nor proved that they were spoken in relation to his occupation as a merchant; for in their nature they strike at the root of the mercantile character.” Newell on Slander and Libel (2d ed.), § 33; Brown v. Holton, 109 Ga. 431, 434 (34 S. E. 717).

The petition in this case stated a cause of action for slander as at common law, and was not subject to demurrer upon the ground that the alleged slanderous remarks were not shown to have been the direct and proximate cause of the damage for which the plaintiffs sued, nor upon the ground that no special damage was alleged or set forth. Nor was the petition subject to demurrer upon any other ground taken. The court erred in sustaining the demurrers and dismissing the petition.

Judgment reversed.

Jenhvns, P. J., and Stephens J., concur.


text:
    18049.
    Gershon & Goldstein v. Mendel.
    Decided January 16, 1926.
   Bell, J.

This ease is controlled by the decision this day rendered in the companion case of Gershon & Green v. Mendel, ante, 650.

Judgment reversed.

Jenhins, P.J., and Stephens, J., eoneur.


author: Jenkins, P. J. Stephens, J.,

text:
    18075.
    Hall v. Vandiver.
    Brokers, 9 O. J. p. 560, n. 18; p. 599, n. 49; p. 632, n. 11.
   Jenkins, P. J.

1. In a suit for a real-estate broker’s commissions the burden is on the plaintiff’ to establish a contract of listment and its performance on his own part. While the letter and telegram of the defendant did not bind him in express terms to pay commissions, it can not be questioned that in thus agreeing to list the property with the plaintiff he must have known that the plaintiff understood he was to receive the commission which had been specified in the letters to which the defendant was replying. Accordingly, there was established a contract listing the property with the plaintiff broker, which, had it been performed according to its terms, would have entitled the plaintiff to the commissions sued for. Civil Code (1910), § 4267.

2. Ordinarily a real-estate broker earns his commission when, “during the agency he finds a purchaser ready, willing and able to buy, and who actually offers to buy on the terms stipulated by the owner.” Civil Code (1910), § 3587. If the owner of the property desires to limit his liability for commissions in a manner other than that which is governed by the general rule, such as that commissions will be due only in the event of a consummated sale, provision for such limitation of liability must be embodied in the authority to sell. If property has been listed without any such limiting stipulations, the owner can not, after receiving an offer in accordance with the terms of the authority to sell, proceed to impose special limitations upon his liability for commissions. But if the offer as submitted is at variance with the terms of the contract listing the property, the owner may either decline the offer or accept it coupled with new conditions or limitations limiting his liability for commissions; the effect of such a conditional acceptance being to submit a counter-proposal under which the property might be sold, and under which he would be liable for commissions. Howard v. Sills, 154 Ga. 430 (114 S. E. 580); Winer v. Flournoy Realty Co., 27 Ga. App. 87 (2) (107 S. E. 398).

3. Where by the terms of a letter dated March 11, 1925, the owner of property rendered himself liable for broker’s commissions upon the submission by the broker of an immediate bona fide cash offer in a stated sum, and where, on April 2 following the broker, in pursuance of such correspondence submitted an offer at the price named, but contingent upon payment being deferred several months thereafter, the owner of the property was not liable to the broker for commissions under the offer as made, both because it was not immediate, and for the further reason that its terms with reference to deferred payment were at variance with the terms stipulated by the contract of listment.- In such a ease, that is, where the rights of the broker under the previous agreement have become terminated, and the owner, in response to such an offer as thus submitted, notifies the broker that he will then accept the price previously indicated, provided it be paid in cash, and provided further that the attorney’s fees to be paid by him' in effecting the transfer of title shall not exceed $5, the stipulations embodied by the owner in such renewed offer are valid and binding, and must be con formed to by the broker before he can claim commissions thereunder. Where, in such a case, the broker renews the offer on behalf of his client to purchase, but with such offer notifies the owner that “the attorney’s fee for drawing deed and attendance at closing will cost $25,” the owner of the property is not liable to the broker for commissions under the renewed offer as made, for the reason that the terms of the offer with reference to attorney’s fees are at variance with those stipulated. In such a ease the renewed offer t’o purchase, being at variance with the proposal to sell, amounts to nothing more than a counter-proposition made through the broker, and the owner is at liberty to reject the same without being liable to the broker for commissions, or he is at liberty to accept the same coupled with a new condition of his own providing, in effect, for the payment of commissions only upon the actual consummation of the sale. See, in this connection, Humphries v. Smith, 5 Ga. App. 340, 343 (63 S. E. 248).

Decided January 16, 1928.

Appeal; from Floyd superior court—Judge Maddox. March 11, 1927.

4. No offer having been submitted by the broker in accordance with the terms and stipulations of any authority to sell, and the purchaser found by the broker having refused to actually consummate the sale as required by the valid terms of the final proposal made by the defendant owner, the verdict rendered in favor of the defendant was in accordance with law, and the judge of the superior court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bell, J., concurs.

Stephens, J.,

dissenting. The matter as to attorney’s fees to be paid by the plaintiff for the drawing of the deed, etc., is separate and distinct from the question as to whether the .defendant, the real-estate broker, had procured a purchaser in accordance with the plaintiff’s terms. Whether the plaintiff and the defendant came to an agreement as to the matter of such attorney’s fees is immaterial. The evidence appears to be conclusive that the broker found a purchaser upon the plaintiff’s terms, and was therefore as a matter of law entitled to the commission. The evidence is insufficient to authorize the verdict found for the defendant. I am of the opinion that the judgment should be . reversed upon the ground that the verdict found is without evidence to support it. I therefore dissent from the judgment of affirmance.

Statement oe eacts by Jenkins, P. J.

Hall brought suit in a justice’s court against Vandiver, for commissions alleged to be due him as a real-estate broker in the amount of $75. The magistrate rendered judgment for the defendant, and the plaintiff appealed to a jury in the superior court. On the trial it appeared that the defendant owned a certain lot in Brooklyn, New York; that the plaintiff, a real-estate broker in that city, on December 38, 1934, wrote the defendant with reference to the lot as follows:

“J. M. Vandiver, Esq., State Capitol, Atlanta, Ga.

“Dear Sir: Will you kindly advise me if your lot 30x100 located on the east side of East 39th Street, Brooklyn, N. Y., is in the market for sale. If so, will you kindly advise me the lowest cash offer you will accept, and oblige.

“Very truly yours, Daniel H. Hall.”

The defendant replied, on December 13, 1934, as follows:

“Daniel H. Hall, 169 Baltic Street, Brooklyn, N. Y.

“Dear Sir: • This is to acknowledge receipt of your letter of December 8th, relative to sale of lot located on East 39th Street, Brooklyn, N. Y. I desire to say in reply thereto that I have been offered for-this lot $1300, as the enclosed letter will show.. If you desire to make an offer will be glad to hear from you. After reading this letter, please do me the kindness to return in the enclosed stamped envelope.

“Very truly yours, Jno. M. Vandiver.”

“Address: Box 114, Rome, Georgia; or State Capitol, Atlanta, Georgia.”

On December 19, 1934, the plaintiff wrote to defendant as follows :

“Mr. John M. Vandiver, State Capitol, Atlanta, Ga.

“Dear Mr. Vandiver: Received your letter dated Dee. 13th, with enclosure. I called my buyer on the phone, and he made me an offer of $900, all cash. I then informed him that you had received an offer of $1300, but he would not increase the above offer. As you only own a single lot in that section, it is very hard to locate a buyer, as most of the houses built in that section are on plots 30 or 40 ft. frontage. Of course, as this is an all-cash offer, it would avoid the expense of drawing and filing mortgage papers; also the collection of interest. If this offer interests you, I would be glad to take the matter up with your representative in this city. I am enclosing the letter which you received from Mr. Fallon. The commission for selling this lot is $50. Hoping to hear a favorable reply, I remain,

“Very truly yours, Daniel H. Hall.”

To this letter no reply was made by defendant; and on February 25, 1925, plaintiff again wrote defendant as follows:

“J. M. Vandiver, Esq., State Capitol, Atlanta, Georgia.

“Dear Sir: Sometime ago I wrote you a letter offering the sum of $900 cash for your lot on East 29th Street, Brooklyn, New York. As I did not receive a reply, I believed the offer was not acceptable to you, but that was the best offer I could obtain from my prospect. I have kept this lot on my list, and at last I have found another who- offers $1100 cash, I have always acted on the cash proposition, knowing that you do not want to bother with a mortgage. My commission will be $75 in this matter. Will you kindly favor me with a reply at once.

■“Very truly yours, Daniel H. ITall.”

The defendant replied as follows:

“Daniel H. Hall, 169 Baltic Street, Brooklyn, N. Y.

“Dear Sir: This is to acknowledge receipt of your letter of February 25th, relative to the purchase of lot on East 29th Street, Brooklyn, N. Y. In reply thereto I will take $1500 for this lot. If this price appeals, to your client, please let me hear from you. This price, however, is for immediate acceptance only.

“Very truly yours, Jno. M. Vandiver.

“Address: Borne, Georgia; or State Capitol, Atlanta, Georgia.

“P. S. I' have had from other parties better offers than you make in your letter. J. M. V.”

On April 2, 1925, plaintiff wrote to defendant as follows :

“Mr. Jno. M. Vandiver, State Capitol, Atlanta, Ga.

“Dear Sir: Enclosed please find check payable to your order for the sum of $100, as a deposit for the purchase of your lot on East 29th Street, Brooklyn, N. Y. I am also enclosing a deposit form which I had the purchaser sign, and I would ask you to kindly check up the description of the property, so as to be sure I have the right dimensions. If the terms meet your approval, advise me who will draw up the contract. The reasen that the purchaser desires to take title in July 1st is that I insisted that the price be paid in cash, as you did not want to take back a mortgage. I would have answered your letter before this date, only I have been unable to effect a sale at $1500 until last evening. Hoping to hear a favorable reply, I remain,

“Very truly yours, Daniel H. Hall.

“P. S. Please sign one deposit form and return same to me.” The deposit form referred to in this letter of the plaintiff is as follows:

“Real Estate Daniel H. Hall, Insurance”

“169 Baltic Street, Brooklyn, N Y. April 1st, 1925.

“Received from G. Larson, purchaser, residing at 1762 East 23rd Street, Brooklyn, N. Y., the sum of one hundred dollars ($100.00) as deposit and on account of the purchase-price of premises located east side of East 29th Street, 280 feet south of Avenue L, being 20 feet in width front and fear, and 105 feet in depth on both sides, being known as lot No. 31, Block 7647, Sec. 23, Borough of Brooklyn, City and State of New York. Purchase-price is fifteen hundred dollars ($1500.00) payable as follows: Cash on signing more formal contract, including amount of this deposit ($500.00) five hundred dollars. Cash on delivery of deed ($1000) one thousand dollars. The deed shall be delivered on the 1st day of July, 1925, at 4 p. m. at 2421 Foster Avenue, Brooklyn, N. Y. (Chas. F. Henderson Office). This deposit accepted subject to owner’s approval of price and terms. If owner fails to accept offer on or before 15 days from above date, this deposit shall be refunded; but if accepted, more formal contracts shall be signed by the purchaser and the seller on the 1st day" of May, 1925. Owner recognizes Daniel H. Hall as broker who brought about this sale, and agrees to pay him the sum of seventy-five ($75.00) dollars as commission.

“I, ..the undersigned purchaser of the above described premises, agree to the terms set forth hereon

^ , „ T t> i. Gustaf Larson, Purchaser.

The above deposit has been received by me, the owner of said premises, and the terms and conditions set forth hereon are acceptable to me. r

....................Owner

Daniel H. Hall, Broker.”

After the receipt of plaintiff’s letter of April 2, and the deposit form, the defendant, on April 7, sent the following telegram:

“Daniel H. Hall, 169 Baltic St., Henry-0636, Brooklyn, N Y. Your check and contract received have deed drawn forward same to me for my signature cost not to exceed five dollars if we can close np all cash payments in full immediately. By way of explanation am having trouble with New York real-estate firm claims to have sold property April second am requesting them to rescind transaction. Am disposed to favor sale to your client you having sold on April first in compliance with my letter of instructions other parties trying to compel me comply with their sale of April second your description of lot correct. John M. Vandiver.”

In reply to this telegram, plaintiff wrote to defendant, on April 11, 1925, as follows:

“Mr. John M. Vandiver, State Capitol, Atlanta, Ga.

“Dear Mr. Vandiver: Received your day letter, and at once I called to see my client. I informed him of the contents of your letter, and he stated that he would close the matter as requested when the deed is received signed, and the search completed. I will have an attorney draw the deed as requested; also it will be necessary for the attorney to be present at the time of closing to represent your interest. The attorney’s fee for drawing deed and attendance at closing will cost $25. The other charges will be the revenue stamp of $1.50 for the deed, payment of taxes and assessments, if any, that are liens against the property up to the day of closing, and the .commission for the sale of the lot ($75.00). If you have any other attorney to represent you in this city, I will be only too glad to take up this matter with him. Thanking you for past favors, I remain,

“Very truly yours, Daniel H. Hall.

“P. S. The deed will be sent to you in a few days.”

On April 15, 1925, the plaintiff again wrote defendant:

“Íír. John M. Vandiver, State Capitol, Atlanta, Ga.

“Dear Mr. Vandiver: Enclosed please find deed, which I had drawn by Mr. William Rappel, attorney at law. Will you kindly sign same before a notary public, and use the certificate attached to same, as the laws of the State of New York require such certificate. At the time I had this deed drawn I did not know whether you were married or single; therefore I would like you to insert your wife’s name on the first page of the deed, and have her sign the deed with you, if you are married. I will have certified check payable to your order drawn at the time of delivery of deed, providing you wish Mr. Rappel to take care of your interest. Please send me a written authority to deduct the lawyer’s fee for drawing deed and attending to closing in the sum of $25, broker’s fee of $75, and the payment of any taxes or assessments which may be liens against the property at the time of closing. Hoping this will be satisfactory to you, I remain,

“Very truly yours, Daniel H. Hall.”

The defendant replied:

“Mr. D. H. Hall, 169 Baltic Street, Brooklyn, N. Y.

“Dear Sir: I am forwarding to the Title Guarantee & Trust Company, 175 Remsen Street, Brooklyn, N. Y., the deed drawn in favor of Mr. Gustaf Larson, to lot on East 29th- Street, Brooklyn, about which we have had correspondence. I have instructed the Title Guarantee & Trust Company to close this matter immediately; and if they can not do so, for them to return papers to me, without delay. I have instructed the Title Guarantee & Trust Company to deduct your commission, taxes, etc., from the $1500. Trust you will give this matter your immediate attention.

“Very truly yours, Jno. M. Vandiver.”

On April 20, 1925, the defendant telegraphed the plaintiff:

“D. H. Hall, Henry 6636 169 Baltic St., Brooklyn, N. Y.

“Received letter to-day dated April seventeenth from New York party urging he contracted for lot April second if you encounter any legal objection to your sale have papers returned to me by Title Guarantee and Trust Company. John M. Vandiver.”

On April 25, 1925, the defendant wrote plaintiff:

“Mr. D. H. Hall, 169 Baltic Street, Brooklyn, N. Y.

“Dear Sir: I am enclosing herewith copy of letter which has been forwarded to the Title Guarantee & Trust Company, 175 Remsen Street, Brooklyn,' N. Y. Very truly ■ yours, Jno. M, Vandiver.”

The copy letter to the Trust Company is as follows:

“April 25th, 1925.

“Title Guarantee & Trust Company, 176 Remsen Street, Brooklyn, N. Y.

“Gentlemen: I am writing to request the return of deeds, etc., mailed to you a few days ago for delivery to D. H. Hall, 169 Baltic Street, Brooklyn, N. Y. If this real estate transaction has not been wound up, wilí thank you to return immediately all the papers, 'dxcept the $100 cheek; that I will thank you to turn over to Mr. Hall after cancelling my endorsement on the back of same. Please, let me know the amount I am indebted to you for the trouble you have been put to, and I will forward you check for same. I am forwarding Mr. D. H. Hall copy of this letter, that he may know he must give this his immediate attention, if it has not already been attended to.

“Very truly yours, Jno. M. Yandiver.”

On April 27, 1927, plaintiff wrote to defendant:

“Mr. Jno. M. Yandiver, State Capitol, Atlanta, Ga.

“Dear Mr. Yandiver: No doubt by this time you have received a letter from the Title Guarantee & Trust Company, notifying you that they were unable to close your matter on Friday, April 24th, the day set by them for Mr. Larson to take title. On Wednesday of last week Mr. Larson informed me that he would not take title until a certain lis pendens was taken off record. I looked up this matter, and find that a Mr. Fallon had the lis pendens filed against your property, claiming that he had a contract dated March 30th. I don’t understand how he can claim this lot, as in one of your day letters you wrote that I was the first buyer, and a New York man the second, I having bought the property on April 1st for Mr. Larson, and he claiming he bought the same property on the second of April. Mr. Larson will close the matter just as soon as you have the lis pendens taken off the record. If I can be of any help to you, don’t hesitate to write me, as I believe you have acted in good faith, and that Mr. Fallon is just trying to tie up your property. Hopipg everything will turn out all right, I remain,

“Yery truly yours, Daniel H. Hall.”

On May 13, 1925, plaintiff wrote to defendant:

“John M. Yandiver, Esq., State Capitol, Atlanta, Ga.

“Dear Sir: On April 27th, 1925, I wrote you a letter, the substance of which was that the Title Guarantee & Trust Company refused to pass the title from you to Mr. Larson, because of a lis pendens and complaint filed against your property, which means that you were unable to give good title to Mr. Larson, unless the action was discontinued and the lis pendens removed by you. Not having received any reply to this letter, I telegraphed you on May 1st, requesting you to send me a check for $10 to pay the attorney who drew the deed, and also a check to my order for $75 in payment of my commission which I earned under the agreement for the sale of your lot. Up to the time of this writing, I still have not received any reply either to the above-mentioned .letter, or to the telegram. I am therefore writing you again, requesting you to be so kind and send me a check or money order for the items specified. In anticipation of a prompt reply, I am,

“Yours very truly, Daniel H. Hall.”

In reply to this letter, defendant wrote to plaintiff, June 8th, 1925.

“Mr. Daniel H. Hall, 169 Baltic Street, Brooklyn, N. Y.

“Dear Sir: Enclosed herewith you will please find $10, this being the fee for drawing deed some time ago.

“Very truly yours, Jno. M. Vandiver.”

“P. S. Am also returning $100 check of G. Larson. J. M. V.”

The plaintiff testified that on the date set by the Title Guarantee and Trust Company for closing the transaction, April 24, the purchaser, Larson, was ready, willing,- and able to buy the property and. pay the balance of the purchase-price of $1400. No evidence was offered by the defendant. The jury returned a verdict in favor of the defendant, and the plaintiff excepted to the overruling of his motion for a new trial.

Graham Wright, B. A. Benny Jr., for plaintiff.

Maddox, Matthews & Owens, for defendant.


text:
    18158.
    Kaylor v. Carrollton Bank.
    Appeal and Error, 4 C. J. p. 1148, n. 67 New.
    Evidence, 22 O. J. p. 998, n. 46.
   Jenkins, P. J.

1. In a suit against a bank on an alleged contract for services, where the plaintiff undertakes to show that the bank, while suspended in its ordinary operations as such, managed and controlled its property through a finance committee composed of certain individuals who had'authority to make the contract sued on, it is the general rule that the minutes of the corporation should be introduced to show the action of its directors and stockholders conferring such authority, and it is only when such minutes are silent upon the question involved that parol testimony or other proof is admissible to prove such authority as would bind the corporation. Caudell v. Athens Savings Bank, 140 Ga. 713 (79 S. E. 776); Bank of Garfield v. Clark, 138 Ga. 798 (7), 799 (76 S. E. 95). A different rule would apply where the question involved is not whether the bank is bound by the contract of an alleged agent, but whether the agent' can be held responsible for his own illegal acts done in behalf of the bank. In such a case it would be competent for a witness to testify that the designated person in fact controlled the bank, irrespective of his authority to do so. Cabaniss v. State, 8 Ga. App. 129 (11), 142 (68 S. E. 849). Accordingly, the court did not err in rejecting the parol testimony offered by the plaintiff to establish the authority of the agent to contract, without any effort having been made to produce the best evidence of his authority.

Decided January 16, 1928.

2. “The proper practice where the plaintiff fails to make out a prima facie case, and the defendant offers no proof, is to enter a judgment of nonsuit. In such a case, where a verdict for the defendant has been directed and no errors have occurred in the trial, the judgment will be affirmed with direction that the plaintiff have leave to vacate the verdict and substitute therefor a judgment of nonsuit, when the remittitur is made the judgment of the court below.” Zipperer v. Savannah, 128 Ga. 135 (4) (57 S. E. 311). Tnis rule is not in conflict with another rule, set forth in Thompson v. Etowah Iron Co., 91 Ga. 538 (2) (17 S. E. 663), which provides that “where the plaintiff fails to make •out a case, and the presiding judge, after so deciding, announces that he intends to direct a verdict for the defendant, thus giving the plaintiff an opportunity to take a nonsuit or dismiss his petition, neither of which is done, and the ease is then disposed of by directing a verdict, there is no error.” In the Thompson case, as was pointed out in Proctor & Gamble Co. v. Blakely Oil &c. Co., 128 Ga. 606, 616 (57 S.E. 879), “the direction of a verdict for the defendant did not follow the exclusion of evidence by which the plaintiff might have made out his case; but it came after the plaintiff, with fair and full opportunity to present his case to the jury, had shown that, with all his evidence in and none introduced by defendant, a legal recovery by him was impossible.” A litigant is privileged to test a ruling excluding testimony offered by him, without being penalized. If, upon the ruling excluding the plaintiff’s essential testimony, he had voluntarily taken a nonsuit or had ' voluntarily dismissed his petition, he would not have been permitted to except to that ruling. Proctor & Gamble Co. v. Blakely Oil &c. Co. supra, p. 615. Therefore the rule in the Thompson case, planted upon the plaintiff’s Having had an opportunity, and without penalty, to take a nonsuit rather than a directed verdict, has no application in a case where the exercise of such an option would have rendered him powerless to test the ruling complained of. It follows, that although the direction of a verdict was erroneous, yet since no other errors occurred in the trial, the judgment of the court below should be affirmed, with direction that the plaintiff be permitted to vacate the judgment rendered and substitute therefor a judgment of nonsuit when the remittitur is made the judgment of the court below. See Equitable Mfg. Co. v. Davis, 130 Ga. 67, 72 (60 S. E. 262), Callalum v. Atlantic Ice & Coal Corp., 33 Ga. App. 330, 334 (126 S. E. 278).

Judgment affirmed, with direction.

Stephens and Bell, JJ., concur.

Complaint; from Carroll'superior court—Leon Hood, judge pro hac vice. April 7, 1927.

Smith.& Taylor, for plaintiff.

Boylcin & Boykin, for defendant.


author: Jenkins, P. -J.

text:
    18198.
    Jolly v. City of Atlanta.
    Actions, 1 C. J. p. 1103, n. 80.
    Municipal Corporations, 43 C. J. p. 974, n. 43; p. 1216, n. 51.
   Jenkins, P. -J.

1. The general rule of law is that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and if it fails to do so, it is liable in damages for injuries sustained in consequence of such failure.

2. The rule which does not permit a joint action against two or more persons or corporations for injuries sustained from their independent conduct does not prevent the maintenance of a joint suit, even though actual, voluntary, and intentional concert of action on the part of the defendants is lacking, if their separate acts of negligence combine naturally and directly to produce the single injury. Brooks v. Ashburn, 9 Ga. 297 (3); Mashburn v. Dannenberg Co., 117 Ga. 567, 580 (44 S. E. 97); Aaron v. Coca Cola Bottling Co., 143 GA. 153 (84 S. E. 556); Scearce v. Gainesville, 33 Ga. App. 411 (3) (126 S. E. 883); Barrett v. Savannah, 9 Ga. App. 642, 644 (72 S. E. 49); 38 Cyc. 488; 22 L. R. A. 261.

3. Applying the foregoing principles to the instant case, a joint action against a municipality and a street-railroad company was not subject to demurrer on account of a misjoinder of parties, where the negligence alleged against the municipality consisted in its failure to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, in that it negligently allowed a hole to remain in the street at at a point where passengers from street-cars were accustomed to alight; and where the alleged negligence of the railroad company was that without notice or warning it ejected the plaintiff, a passenger, from its car at a place in the street where the hole was, and where on alighting lie was likely to be injured by coming in contact therewith. The instant case is distinguishable in its facts from that of City of Albany v. Brown, 17 Ga. App. 707 (88 S. E. 215), wherein it was shown by the petition that the street-car company was fully aware of the predicament of the plaintiff in being caught with his car by the obstruction in the road in front of the street-ear, but, notwithstanding such notice on its part, negligently ran down the plaintiff while in such predicament. In that case it could not reasonably be said that the city could foresee such a natural consequence of its own negligence in obstructing the street, and in such a case the entire responsibility for the injury devolved upon the street-ear company, whose alleged negligence necessarily constituted the proximate cause of the injury.

Decided January 16, 1928.

Action for damages; from Fulton superior court. Judge Humphries. April 13, 1927.

'G. L. Padgett, G. G. Finch, for plaintiff.

J. L. Mayson, G. S. Winn, for defendant.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18211.
    Johnson v. Georgia Railway & Power Company.
    Decided January 16, 1928.
    Action for damages; from Cobb superior court—Judge John S. Wood. May 7, 1927.
    Statement oe eacts by Jenkins, P. J.
    Johnson sued the Georgia Kailway & Power Company for damages on account of personal injuries alleged to have been sustained when a mule he was driving to a buggy became frightened at certain materials placed by the defendant on land which it had condemned, in or near a private roadway which the plaintiff was traveling, and ran away, throwing the plaintiff and his wife out of the buggy. On the former hearing this court reversed the judgment of the court below awarding damages in the sum of $500 to the plaintiff, and held that the evidence failed to show that the defendant was guilty of negligence such as would render it liable for the injury to the plaintiff. See Georgia Ry. & Power Go. v. Johnson, 34 Ga. App. 458 (129 S. E. 891). The proof on the trial of the instant case was substantially the same as that on the former trial. The plaintiff, after the former trial and judgment of this court, amended his petition and alleged that he retained his right of ingress and egress to and from his home over the private road along which the material was placed by the defendant, and along which he was traveling at the time of the runaway, after the condemnation of the right of way by the defendant; that the defendant had not prepared and did not intend to put up any poles for its power line near where the material at which the mule became frightened was placed, and that it'was not necessary to place the material there in order to carry on the construction of the defendant’s power line, and that none was to be used within fifty yards of the place; that the pile of materials placed upon or near the roadway by the defendant was calculated to frighten a mule of reasonable gentleness and cause it to run away, and that the defendant’s agents and servants knew it was so calculated, or by the exercise of ordinary care and prudence could have known it; that, “there being no necessity for piling up these cross-arms, poles, insulators and other material at this place, the piling the same in the road of plaintiff was gross negligence on the part of defendant, its agents and employees;” and that such act of the defendant was the proximate cause of the plaintiff’s injury. It is not alleged by the petition, or by the amendment, that the work of placing the materials to be used in constructing its power line at the place where they were located was negligently done, but it is alleged that the defendant was negligent in placing them there at all. It appears from the testimony of one of plaintiff’s witnesses that the materials placed by the defendant in or near the roadway “were the usual, necessary things to put up telephone lines or electric wires;” that it was about 2.0 or 25 yards from the place where the materials were to the nearest pole put up by the defendant, and that, at the time of the injury to plaintiff, the defendant was engaged in building an electric-power line across the land of the plaintiff and other land in the near vicinity of the place where the materials were located.
   Jenkins, P. J.

Under the ruling of this court on the former hearing of this case, the court did not err in directing a verdict for the defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Mozley & Gann, II. B. Moss, for plaintiff.

Colquitt & Gonyers, Jerome Jones Jr., John T. Dorsey, for defendant.


text:
    Farmers and Merchants Bank of Cleveland v. Miller, et al.

    Bills and Notes, 8 O. J. p. 767, n. 16; p. 1049; n. 24.
    Witnesses, 40 Cyc. p. 2313, n. 3; p. 2317, n. 37; p. 2324, n. 20.
   Jenkins, P. J.

1. Prior to tlie passage of what is known as the uniform negotiable instruments law, the holder of a promissory note was not protected from the maker’s defense that the consideration thereof was immoral and illegal, even though the holder may have purchased the note before it was due, and without notice of any defect therein or defense thereto. Thus, a promissory note given in the year 1921 for the purchase-price of liquors sold in violation of the law is unenforceable, even in the hands of a bona fide holder for value, who takes the same without notice of the consideration. Civil Code (1910), § 4286; Crigler v. Laramore, 18 Ga. App. 132 (988 S. E. 901); White County Bank v. Clermont State Bank, 37 Ga. App. 268 (140 S. E. 767).

Decided January 16, 1928.

Complaint; from Barrow superior court—Judge Stark. April 25, 1926.

W. L. Nix, J. N. Quilliam, for plaintiff.

G. A. Johns, for defendants.

2. “When any suit is instituted or defended by any person insane at time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person, as to transactions or communications with, such insane or deceased person.” Civil Code (1910), § 5858 (1). While the code section quoted does not prevent the opposite party from testifying as'to independent facts, knowledge of which was not derived from transactions or communications with the deceased (Watkins v. Stulb, 23 Ga. App. 181 (8), 98 S. E. 94), it does prevent the maker of a note, where suit is instituted thereon by the indorsee of the deceased payee, from testifying for the purpose either of affirming or of disaffirming transactions or communications with the deceased opposite party. That is to say, he is not competent to testify in his own favor either to the existence or non-existence of transactions or communications alleged to have taken between him and the deceased. Webb v. Simmons, 3 Ga. App. 639 (60 S. E. 334).

3. Thus, in a case where the defense interposed to the note sued on was that the consideration thereof was illegal and immoral, in that the note was given for the purchase-price of liquor sold in violation of the law, and where the only legal evidence to show the illegality of the consideration was the testimony of one who swore that he was present when the maker and the payee of the note -were discussing a debt due by the maker to the payee for liquor sold to him, and that he heard the payee demand of the maker a note for the indebtedness, but that he was not present when any note was given, and that he did not know what the note sued on was given for, or when it was executed, the maker was not competent to testify that the note sued on was given on that occasion and was the only note ever given by him to the deceased.

4. Under the testimony legally admitted, it can not be said as a matter or law that the presumption that the note was based upon a valid consideration was so far overcome as to demand a finding for the defendants. The court therefore erred in directing a verdict for the defendants.

Judgment reversed.

Stephens and Bell, JJ., coneur.


text:
    18261.
    Jackson v. Thomas.
    Contracts, 13 C. J. p. 416, n. 48.
    Decided January 16, 1928.
    Certiorari; from Fulton superior court—Judge Humphries. May 23, 1927.

      D. H. McWilliam, B. B. Jaclcson, for plaintiff in error.

      John W. Thomas, Horace Bussell, contra.
   Bell, J.

1. Even if it be the law that where persons charged with crime fled and violated their bonds an attorney at law who had been employed to defend them could not, consistently with public policy, enter into an agreement with their bail to procure and furnish information leading to their apprehension and arrest, still under the evidence in the present case, which was a suit by the attorney against the bail to recover the agreed price of his services in procuring and furnishing the information stated, it can not be held, as a matter of law, that the judgment in favor of the plaintiff was for that reason illegal. While it appears that the plaintiff, as attorney, had at some previous time and in an entirely different matter represented one or both of the persons on whose bonds the defendant became security, or bail, the evidence authorized the inference that such relation of attorney and client was terminated before the making of the agreement relied on by the plaintiff in this suit, and also that it had never existed as'to the particular case in which the bonds were given.

2. The evidence warranted the finding that the plaintiff complied with his agreement by procuring and furnishing the information which the defendant desired and for which he promised to pay the sum sued for.

3. The superior court did not err in dismissing the certiorari.

Judgment affirmed.

J&nlcms, P. J., and Stephens, J., concur.


author: Bell, J. Stephens, J.,

text:
    17909.
    McCrary v. Nashville, Chattanooga and Saint Louis Railway.
    1. In a suit- against a' railway company to recover a reward offered by the defendant for information resulting in the conviction of any person of a certain crime, where there is no allegation rendering proof of conviction unnecessary, the petition should show not only that the plaintiff has furnished to the defendant information touching another’s guilt of the offense named, but also that such information has resulted in the conviction of such person.
    2. The judgment of a juvenile court committing a child under the age of sixteen years to the Georgia Training School for Boys is an adjudication only that the child is a delinquent, and is not a conviction of an offense.

      Infants, 31 C. J. p. 1112, n. 6 New.
    Rewards, 34 Cyc. -p. 1756, n. 82.

      3. In a case of this sort, where the person apprehended was a child twelve years of age, the failure of the plaintiff to show conviction of the alleged offender can not be relieved by averments to the effect that such conviction was prevented by the act of the defendant in causing the child to be brought before a juvenile court and committed to the Georgia Training School for Boys, even though it appear that the defendant was actuated by an intention to defeat such conviction and thereby to escape liability for the reward. This is so for the reason that it can not be inferred that the child would have been convicted had the defendant not interfered.
    4. Neither count of the petition set forth a cause of action, and the court properly sustained the general demurrers.
    Decided January 16, 1928.
    Complaint; from Bartow superior court—Judge Tarver. October 28, 1926.

    M. S. McCrary brought suit in two counts against Nashville, Chattanooga & St. Louis Railway, to recover $5,000 as a reward which the petition alleged was due him because of his having accepted and complied with the terms of a public offer made by the defendant to pay that sum “for information resulting in the conviction of any one for the crime of wilfully dynamiting, tampering with, injuring, or obstructing its tracks, bridges, tunnels, or other portions of its roadway in such manner as to endanger the operation of trains.” The first count of the petition proceeded upon the theory that the plaintiff, relying upon this offer, had obtained information of the guilt of a certain person, to wit, a negro boy twelve years of age, named Willie Smith, of wilfully interfering with a switch connected with the defendant’s railroad, and that this information had been furnished by the plaintiff to the railroad company and had resulted in the conviction of the. offender. The conviction claimed was an order of the juvenile court of Bartow county, committing the accused to the Georgia Training School for Boys. The second count alleged the same facts as the first, but undertook to show further that, even if the information furnished by the plaintiff had not resulted in a conviction (that is, if the commitment by the juvenile court did not amount to such), the lack of a conviction was not attributable to any fault of the plaintiff, but that the defendant by its own intentional act had prevented a conviction. On this point it was averred that after the plaintiff had discovered the boy’s guilt and had procured his incarceration, the defendant, through its officers and agents, caused the prisoner to be brought before the juvenile court and committed to the training school, all for the purpose of preventing his conviction in a court of competent jurisdiction, and thus of defeating the plaintiff’s demand; that except for this interference by the defendant the plaintiff could and would have procured such conviction, against which “no legal reasons existed;” and that since the defendant intentionally frustrated the plaintiff’s efforts, it is liable for the reward just as though the offender had been tried and found guilty in a court of competent jurisdiction to try him for the offense. No other proceedings against Willie Smith are shown in either count of the petition.
    As appears in each count, the information which the plaintiff obtained and furnished to the defendant touching the guilt .of Willie Smith was' that on a certain occasion when one of the defendant’s trains had left the main track and had gone into a siding under circumstances indicating that it was not the purpose of the enginemen to run the train into such siding, the plaintiff immediately got into his automobile and drove to a point near which the train had been diverted and proceeded “to hunt the trouble and to hunt for the culprit who was tampering with the tracks and switch and causing the trouble in the operation of the defendant’s trains.” The plaintiff thereupon discovered the negro boy, Willie Smith, hiding near the track and “not far from the switch that had been tampered with.” The plaintiff arrested him and' carried him to the officers of the defendant, and he was afterwards delivered to the sheriff. He then confessed to having tampered with the switch, stating that he had broken the lock thereon, and showing the instrument with which he had done it. He explained his motive as a desire to board the train and steal a ride. All of these things were made known by the plaintiff to officers of the railway, with the view of earning and claiming the reward. Each count of the petition contained the following allegations:
    “9. Plaintiff shows that the turning of the switch as aforesaid was on the- State Road just a few miles south of Cartersville; that said line of railroad and the two trains which came so near to being wrecked as aforesaid were being operated by this defendant under the name and style of the Western & Atlantic Railroad, but that said railroad and said trains were being operated by this defendant, that the trains are the property of this defendant, and the line of railroad is leased by the defendant, and the defendant is operating same as lessee; that all its stationery, tickets, literature, contracts, bills of lading, and all written or printed matter of every kind and character-, are made and printed in the name of this defendant herein, and that the passenger-trains have the name of this defendant printed thereon in large letters. Plaintiff alleges that said offer of reward was posted along the line known as the State Road just as it was along the other 'lines owned and operated by the defendant, that although this particular part of the track and the particular trains in question were operated by the Western & Atlantic Railroad, a subsidiary of the defendant, the protection of said track and said trains was the protection of this defendant, and that the same was to the great benefit and advantage of said defendant.
    “10. Plaintiff alleges that the defendant herein operates and controls the railroad and the trains hereinbefore referred to; that the offer of reward made as aforesaid was intended to include and did include, and plaintiff and'the public was led by the acts of the defendant as aforesaid to believe that it did include, the said line of railroad and all trains running thereon; that the defendant got the benefit of the services of the plaintiff herein, and that the defendant is liable to pay for the same, and can not be heard to say that it did not get the benefit of said services, or set up any contention that said offer of reward did not apply to subject-matter of this suit.”
    The court below sustained the defendant’s general and special demurrers and dismissed the suit, and the plaintiff excepted.

      Joseph M. Lang, for plaintiff.

      Neel & Neel, Tye, Peeples & Tye, for defendant.
   Bell, J.

The plaintiff brought a prior action against the Western & Atlantic Railroad, and a judgment sustaining a general demurrer to that suit was affirmed by this court. McCrary v. Western & Atlantic Railroad, 35 Ga. App. 641 (134 S. E. 347). The defendant in that ease had offered no reward, and was, of course, not bound by the offer of the Nashville, Chattanooga & St. Louis Railway. A person offering a reward may prescribe whatever terms he sees fit, and these terms must be substantially complied with before any contract arises between him and another who claims the reward. The offer of the reward in this case was for information resulting in conviction, and, unless there be something to render allegation and proof of a conviction unnecessary in the particular case, the plaintiff can not recover without showing that he furnished to the defendant information touching the guilt of some person of the crime mentioned, and also that the information resulted in his conviction. Williams v. W. C. Ry. Co., 191 Ill. 610 (61 N. E. 456, 85 Am. St. R. 278). In the first count of the petition the plaintiff proceeds on the theory that the culprit was duly convicted, and hence gives no reason for a failure to convict. This count is bad because the proceeding before the juvenile court was not a trial for an offense, and the commitment by that court did not amount to a conviction. The only adjudication was that the child was a delinquent. See Williams v. Davidson, 147 Ga. 491 (94 S. E. 564). The defendant’s offer clearly contemplated a conviction on a prosecution for the offense, in a court of competent jurisdiction (see Penal Code (1910), §§ 513, 522); and such a conviction could not be had in a juvenile court. Section 12 of the act of August 16, 1915, as amended August 19, 1916 (Ga. L. 1915, p. 34; Ga. L. 1916, p. 58; 11 Park’s Supp. 1922, § 900 (1); Michie’s Code, § 900 (12)), providing for the establishment of juvenile courts, expressly declares that “No adjudication under the provisions of this act shall operate as a disqualification of the child for any office, State or municipal, and such child shall not be denominated a criminal by reason of such adjudication, nor shall such adjudication be denominated a conviction.” Counsel for the plaintiff in error suggests that the legislature intended by this section merely to prevent the child’s loss of the privileges of citizenship or to protect his good name, and that this was the only purpose of the language used. Regardless of other things which the legislature may have had in mind, we think the main object of this section was to so limit the jurisdiction of the juvenile court that it might not infringe upon the jurisdiction of the superior court and thus endanger the constitutionality of the act creating the former court. See Law v. McCord, 143 Ga. 822 (85 S. E. 1025); Hicks v. State, 146 Ga. 706 (92 S. E. 216); Williams v. Davidson, supra.

The plaintiff would not be entitled to claim the reward in this case merely by proof that he had furnished information resulting in an adjudication that the person apprehended by him was a delinquent child. Even though this adjudication may have served to identify the child as having committed an act specified in the defendant’s offer, the purpose of the railroad company in offering the reward was not simply to identify the perpetrator of the act, but to find and punish him as a criminal. The suit being predicated on an alleged contract, it is necessary to ascertain the intention of the railroad company as 'expressed in the offer which the-plaintiff claims to have accepted and complied with. The company’s offer was to pay “for information resulting in the conviction of any one for the crime” specified. Even the amount of the offer, in the large sum of $5,000, would tend to show that the mere identification of one as having tampered or interfered with the defendant’s property was not the thing desired. From all the language used, it is evident that the company was not seeking to satisfy a simple curiosity, but was desirous of bringing punishment upon the guilty party at the hands of the law, one of the purposes being to deter others from similar deeds and thus to add to the security of its property and to the safety of those who might operate or travel upon its trains. We conclude, therefore, that the first count of the petition failed to set forth a cause of action.

The defects inherent in the first count were not excluded from the second count by the allegations purporting to show that the conviction was prevented by the act of the defendant. The suspect was a mere child of the tender age of twelve years, and a person of this age can not be convicted of a crime or misdemeanor unless it appears from the evidence that he was capable of crime, and the burden of proving this fact rests upon the State. Brown v. State, 12 Ga. App. 722 (78 S. E. 352); Mallard v. State, 28 Ga. App. 570 (112 S. E., 296). It is our opinion that the petition did not set forth such facts as would render a conviction probable, and it is the merest speculation to say that the jury would have found the prisoner guilty had he been tried in a court having jurisdic-, tion to adjudicate that issue. In the case of Stephens v. Fulford, 153 Ga. 637 (112 S. E. 894), an attorney was employed to procure a pardon for a person who had been sentenced to and was confined in the penitentiary. The attorney’s fee was contingent on securing the pardon. While the application was pending before the Governor, with a favorable recommendation by the prison commission, the convict escaped, and his lather, who had engaged the attorney’s services on the terms stated,' having lull knowledge oí such escape and of his son’s whereabouts, and having the power to return him to the proper custody, refused to do so or to “let the penitentiary authorities know the whereabouts of his son,” or to assist in restoring him. The Supreme Court, on questions certified by the Court of Appeals, held: “An attorney at law can not recover the whole or any part of a contingent fee upon an express contract of employment, where the contingency provided for by the contract has not been brought about, although the entire work or service of the attorney has been duly performed, and although the possibility of the contingency being brought about is prevented by the subsequent wrongful conduct of the person for whose benefit the services were engaged, and with the subsequent continuing passive acquiescence of the client. Whether the undertaking would have proceeded to a successful or unsuccessful final determination had the client not passively acquiesced in the wrongful conduct is necessarily merely conjectural, and could not be considered in determining the question of liability.” Counsel for the defendant cite the case of L. & N. R. Co. v. Goodnight, 73 Ky. 552 (19 Am. R. 80), in whicli the Supreme Court of Kentucky, on facts similar to those now before us, with the exception of the ages stud the capacity of the persons apprehended, reached the conclusion that the reward could be collected; but being of the opinion that the above decision by our own Supreme Court is directly applicable, we.deem it unnecessary to comment on the Kentucky case.

There is no similarity between the present case and those cases in which it has been held that one who has been employed to consummate a sale of real estate is not to be denied compensation for his services where it appears that he has done all that he was required to do under the contract, and the sale was prevented by the refusal or interference of the owner. In that class of cases it is at least necessary that the agent bind a purchaser. Certainly a jury would not have been bound to convict the accused under the facts set forth in the petition in this ease. It not even appearing that the alleged offender would probably have been convicted had the defendant not interfered, it can not be said that his conviction was prevented by the act of the defendant. Furthermore, if the person alleged to have been discovered by the plaintiff is in fact guilty of the crime specified, may he not yet be subject to trial and conviction in the superior court, should the grand jury see fit to indict him and should the officers of that court deem it proper to try him; and has the same not been true all the while since the moment of his arrest? Hicks v. State, and Williams v. Davidson, supra. If so, how can it be said that his conviction was prevented by the defendant?

In pur view of the case, it is unnecessary to determine whether the offer of reward as made by the railroad company contemplated the line of road on which the switch was turned. Each count of the petition failed to set forth a cause of action, and the general demurrers were properly sustained.

Judgment affirmed.

Jenkins, P. J., concurs.

Stephens, J.,

dissenting. The word “conviction,” as used in the offer of a reward, does not necessarily bear the same construction as where used in the juvenile-court act. As used in the defendant’s offer, it should be given a non-technical construction. The offer of a reward should be construed with due regard to the evil sought to be obviated by the railroad. The railroad was necessarily seeking, in the interest of the safe operation of its train, the prevention of the criminal acts referred to, by the capture and punishment of any one guilty of such acts. It would seem that the trial of one in the juvenile court, and the adjudication of his guilt of any of the acts designated in the offer of a reward, and his commitment to the juvenile reformatory would have a deterrent effect upon the commission of such acts as contemplated by the defendant. I therefore am of the opinion that the trial of the boy in the juvenile court and his commitment to the State reformatory for the “offense of attempted train-wrecking” is a conviction in the sense in which this word is used in the defendant’s offer. And being of the further opinion that, under the facts alleged in the petition, the defendant’s offer of a reward applied to the Western and Atlantic Eailroad in Bartow county, I am of the opinion that the petition in the first count set out a cause of action, and that it was error to strike the plaintiff’s petition in its entirety. I can not concur in the judgment of affirmance.