text:
    15922.
    SEABOARD AIR-LINE RAILWAY COMPANY v. WRIGHT, comptroller-general.
    The tax levy for “current expenses” and fór “county purposes” combined having exceeded by one mill the seven and one half mills allowed by law, the affidavit of illegality, to the extent of such one mill, was meritorious.
    Decided May 19, 1925.
    Affidavit of illegality of execution; from Liberty superior court —Judge Sheppard. September 15, 1924.
    After a grand-jury recommendation that the levy of county taxes for Liberty county for 1922 should be fixed at 10 mills, the county commissioners, by resolution, levied this and an additional amount for certain other purposes, totalling 12-^4 mills, dividing the items as follows:
    1. Eor building and repair of roads, 4 mills.
    2. To repair, court-house, or jails, bridges, or other public improvements according to contract, ¿4 mill.
    3. To pay sheriff’s, jailor’s, or other officers’ fees that may be due for care of the jail, J4 mill.
    4. To pay expenses of the county for bailiffs at court, nonresident witness fees in criminal cases, fuel, servant hire, stationery, salary of officers due by the county, and the like, l-J/2 mills.
    5. To provide necessary sanitation, including expenses of eradication of cattle-tick, 3-J4 mills.
    6. To pay any other lawful charge against the county, J4 mill.

      7. For educational purposes, upon requisition from the board of education of Liberty county, 3 mills.
    To the levy of a tax execution issued by the comptroller-general, the defendant in fi. fa. filed an affidavit of illegality, attacking the tax levy made by the county, on the following grounds: (1) That the levy for “current expense's” and county expenses in items 1, 3, 4, 5, 6, and 7 of the levy, amounting to 12-J4 mills, was in excess of the 150 per cent, of the State tax of 5 mills, amounting to 7-yi mills, which could be lawfully levied. (2) That items 1, 3, 4, and 7 of the levy, amounting to 8-^4 mills, covering general “current expenses,” exceed the lawful 5 mills, 100 per cent, of the State tax of 5 mills being the maximum which could be lawfully levied. (3) That item 5 of 3-J/2 mills for sanitation and eradication of the cattle-tick, being for a “county purpose,” exceeds the lawful
      2~Yz mills, and that only 50 per cent, of the State tax of 5 mills could be lawfully levied for such purpose.
    The case was tried by the judge, without a jury, upon an agreed statement of facts, from which it appeared, as to item 1, that Liberty county operated under the “alternative road law,” and that the levy and expenses in this item were part of the system for raising regularly and annually, by county-wide taxation, funds for defraying the expenses of building, repair, and maintenance of such roads; as to item 4, that “salary of officers” referred to “regular salaries of officers fixed by law and chargeable to [the] county as a part of its regular annual expenses;” as to item 5, that this related to “the purpose of raising the necessary funds to defray the expenses incident to the eradication of the cattle-tick,” and “in the business of dipping the cattle of the county,” in accordance with the statute upon that subject; and as to item 7, that the levy and expenses were for “maintaining the system” of “regularly and annually” raising the necessary funds for the school system provided by the State laws. The court overruled and dismissed the affidavit of illegality, and the defendant excepted.

      Conyers & Wilcox, for plaintiff in error.

      W. C. Hodges, contra.
   Jenkins, P. J.

1. “County authorities may legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, without reference to a recommendation of the grand jury. Civil Code (1910), § 507.” Wright v. So. Ry. Co., 146 Ga. 581 (5) (91 S. E. 681); Sheffield v. Chancy, 138 Ga. 677 (75 S. E. 1112); Blalock v. Adams, 154 Ga. 326 (114 S. E. 345); So. Ry. Co. v. Wright, 154 Ga. 334 (114 S. E. 359). The proper county authorities “can levy 100 per cent, of the State tax to pay current expenses” alone, but a levy for both such “current expenses” and “accumulated debts,” by virtue of section 507, must not exceed 100 per cent, of the State tax, fixed at a maximum of 5 mills. Civil Code, § 6552. The tax authorized by section • 507, however, is an extra or special tax, and is in addition to the tax which the county can levy, under the recommendation of the grand jury, for “county purposes,” under section 508 of the Civil Code, limited to 50 per cent, of the State tax. Cen. of Ga. Ry Co. v. Wright, 156 Ga. 13 (1, 2), 15 (118 S. E. 709); Wright v. So. Ry. Co., supra (6); Southwestern R. Co. v. Wright, 156 Ga. 1 (2, 3) (118 S. E. 552); So. Ry. Co. v. Wright, 154 Ga. 334 (114 S. E. 359).

Thus, the county can levy up to 100 per cent, of the State tax for “current expenses” and accumulated debts, or for. current expenses alone, and, with the recommendation of the grand jury, can add thereto up to 50 per cent, of the State tax for “county purposes.” But the total levy for such combined-purposes must not exceed 150 per cent, of the State tax.

2. “The expression 'current expenses/ as used in section 507 of the Civil Code, and the expression 'county purposes’ in section 508, are not the same in meaning and effect. Current expenses all fall under the head of county purposes,, within the meaning of the latter expression as used in section 508; but there .-are certain county purposes for which a tax may be levied ..by the county authorities that are not current expenses. . . It may be said generally that 'current expenses’ include the ordinary exr penses of the county arising during the year for which the tax is levied, and 'county purposes’ include all purposes for which county taxation may be levied; that is, the ordinary expenses - of' the county and the unusual and extraordinary expenses as well.” “All of the items included in section 513 of the CNil Code are included within the term 'county purposes.’ ” “Items 3, 4, 5, .6, and 7 of section 513 of the Civil Code fall under the head of 'current expenses.’ . . Items 8 and 9 of section 513 may or may not fall under the head of 'current expenses.’” Seaboard Air-Line Ry. Co. v. Wright, 157 Ga. 722 (1, 2, 3), 725 (122 S. E. 36).

(а) ‘The court expenses and officers’ fees, referred to in items 3 and 4 of section 513, if lawfully incurred, come under the head of “county purposes,” and are also “current expenses” when “a part of the usual, ordinary annual expense of the county.” Seaboard Air-Line Ry. Co. v. Wright, supra.

(б) “Charges for educational purposes,” referred to in item 8 of section 513, “become a current expense where the county adopts or has adopted a system of schools, provided'for in the laws .of this State upon that subject, and where the necessary funds for maintaining the system are to be annually • and -regularly raised by county-wide taxation.” Seaboard Air-Line Ry. Co. v. Wright, supra.

(c) “Item 9 of section 513, that is, to pay 'any other lawful charge against the county/ may or may not fall under the head of 'current expenses/ accordingly as the county purpose for which the tax there specified and levied is a regular, ordinary expense or not.” Seaboard v. Wright, supra.

(d) “The levy of a tax for tick eradication is one for a county purpose, and the sum of this tax and other items of county taxation must not exceed 50 per cent, of the State taxation, except as otherwise provided by law.” Carter v. Shingler Realty Co., 157 Ga. 118 (2) (120 S. E. 784); McMillan v. Tucker, 154 Ga. 154 (9) (113 S. E. 391).

(e) “The ordinaries of the several counties have the power to levy an extra- tax sufficient to carry into effect sections 399 and, 400 [of the Civil Code], without a recommendation by the grand jury, whenever the necessities arise.” Civil Code (1910), § 504. The sections thus referred to provide for the erection, keeping in order, and repair of the “county buildings,”- court-houses, and jails, and the furnishing of. each with -necessary furniture and a safe or. safes. Thus, although.it is the, general rule that “the items im eluded in section 513 of the Civil Code are included within the term 'county purposes (Seaboard Air-Line Ry. Co. v. Wright, supra), and although .section 513, .enumerating certain “county purposes” for which county taxes shall be assessed, includes in-its. second item, as one -of such purposes, “to build or repair courthouses .or jails, bridges or ferries,- or other public improvements, according to the contract,” taxes for such special purposes have been -held not to come within the purview of section .508, allowing a levy of 50 per cent.-of the.State tax- for “county purposes” when two thirds of the grand jury so recommend, do not require the recommendation of a grand jury, and are.not to be estimated “in determining whether the tax levy exceeded 50 per cent, of the State tax.” Gaines v. Dyer, 128 Ga. 586 (6 (c)), 593, 594 (58 S. E. 175); Sullivan v. Yow, 125 Ga. 326, 327, 328 (54 S. E. 173).

(†). Code section 696 as.amended (Ga. L. 1911, p. 56) provides that the commissioners of roads, or the ordinary, shall levy a tax additional to any now authorized by law, of not more than four-tenths of one per cent, on all the taxable property of the county, 4 mills, as a fund for the working, improving, and repairing of its public .roads. This levy has been held to be not “dependent upon the action of the grand jury, and therefore the amount levied for this purpose is not to be considered in determining whether the tax levied for ordinary county purposes has exceeded 50 per cent, of the State tax.” Sullivan v. Yow, supra.

3. Under the foregoing rules, the items included in the levy made by the county commissioners, which were “current expenses” within the meaning of section 507, authorizing a levy of 100 per cent, of the State tax of 5 mills, are as follows:

Item 3. Sheriff’s, jailor’s, or other officers’ fees due for care of the jail (Item 3, § 513) ................. J4 mill

Item 4. Expenses for bailiffs at court, nonresident witness fees in criminal cases,’ fuel, servant hire, stationery, salary of officers due by the county (Item 5, § 513), which the agreed statement of facts recites were “.regular annual expenses,”............................l~y2 mills

Item 7. For educational purposes, which it was agreed were part of a regular annual practice of raising funds for the school system provided under State laws .............................................3 mills

Total, 4-24 mills

While as to item 6 of the levy,—“to pay any other lawful charge against the county, J4 mill” (Item 9, § 513),—it does not appear from the language of the levy or the agreed statement of facts whether this item was intended to cover the “regular, ordinary expense” annually levied, it will be assumed that such was its intent and purpose, since “all presumptions are in favor of the legality and validity of a tax” (Blalock v. Adams, supra; S. A. L. Ry. Co. v. Wright, 32 Ga. App. 258, 122 S. E. 900), and since by adding this item to the 4-24 mills of other “current expenses” levied, its levy may be held legal, for the reason that the aggregate of items levied for “current expenses” would not exceed the lawful 5 mills, authorized under section 507.

(a) As to item 1 of the levy, “for building and repair of roads, 4 mills,” and item 2, “to repair, court-house, or jails, bridges,' or other public improvements according to contract, 24 mill” (these being in item 2, § 513), such items are not included among those in section 513 which the Supreme Court has in terms held to be “current expenses” (Seaboard Air-Line Ry. Co. v. Wright, supra); nor are they such “county purposes” as require the recommendation of a grand jury, and estimation in determining whether or not the levy for “county purposes,” under section 508, exceeds 50 per cent, of the State tax as authorized by that section (Sullivan v. Yow, supra; Gaines v. Dyer, supra); but the levy therefor was legal as an independent levy for such extra or special purposes.

(6) The remaining item 5 of the levy, “to provide necessary sanitation, including expenses of eradication of cattle-tick, 3-yí mills,” being “one for a county purpose,” which must be estimated in determining whether a levy under section 508 exceeds 50 per cent, of the maximum State tax of 5 mills (Carter v. Shingler Realty Co., supra; McMillan v. Tucker, supra); and the levy for “current expenses” of the county under section 507 already amounting to the 100 per cent, of the State tax of 5 mills—even if it were proper to treat this item as one of annual “current expense” in the absence of anything in the statement of facts showing such fact—such item of 3-J4 mills exceeded by one mill the maximum 50 per cent, of the State tax of 5 mills, allowed for “county purposes” under section 508, in addition to the 100 per cent, of such State tax allowed for “current expenses” and “accumulated debts” under section 507. For this reason alone, it was error to overrule and dismiss the affidavit of illegality.

Judgment reversed.

Stephens and Bell., JJ., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15943.
    SOUTHERN SCHOOL SUPPLY COMPANY v. CITY OF ABBEVILLE.
    Prior to September 1, 1920, the board of education of the City of Abbe-ville, existing under an act of the General Assembly approved August 1, 1895 (Ga. L. 1895, p. 117), purchased from the plaintiff certain furniture and supplies for use in the schools of the city, to be paid for more than twelve months after the purchase. After the repeal of the act of 1895 (see Ga. L. 1922, p., 452), and after the consolidation of the schools of the City of Abbeville with those of certain districts contiguous thereto, to which consolidated school district the city had sold its school buildings and property, including a part of or all of the articles purchased by the board of education from the plaintiff, suit was brought by the plaintiff against the city, alleging that, because of the facts stated above and others set forth in the petition, the municipality was liable to the plaintiff for the purchase-price of the goods sold, or for the actual benefit received by the city from the plaintiff’s goods, or for the actual value thereof at the time the goods were sold by the city to the■ consolidated school. district, the petition being in .different counts declaring respectively upon the several theories of liability stated. Held: In no view of the case was a cause of action set forth, and the .court did not err in sustaining the general demurrer to the petition. - .
    Decided May 19, 1925.
    Complaint; from Wilcox superior court—Judge Crum. September 13, 1924. . ... • . ■
    The suit of Southern School Supply Company against- the City of Abbeville was dismissed on- general- demurrer,, and the plaintiif excepted. The petition was, in .three counts, classified by the plaintiff’s counsel-as follows: “The first count in. the declara-
    tion is one on the contract- signed by the board of education; the second is, admitting the contract to be non-enforceable, for the actual benefit received by the - city from plaintiff’s goods; and the third is for the actual'value received by the city for the goods at the time it sold them to the consolidated- school.”
    The first count alleged:
    “'1. ' The defendant herein, - City of Abbeville, which prior to 1897 was Town of Abbev-ille, is.a municipal corporation of the said State and county, and W. B. Guogeris. the mayor.
    “2, By act of the General .Assembly- of. the State of Georgia in the year. 1895 a system, of'public schools for the'said City of Abbeville was provided, and a board of education consisting of five members to be elected as therein provided was given- authority To devise, designate, and adopt a system of public schools in said town; to modify and change the same from time to time; to establish such schools as they may deem proper; to prescribe the curriculum, appoint and employ teachers for said schools, and a superintendent for same, to fix their compensation, to provide school houses, by rent or otherwise, to make and hold titles to such property, and to make such. by-laws, rules, and regulations for their own government and that of the superintendent, teachers, and pupils as they may deem proper and not in conflict with laws of this State, and to do any and all acts promotive of the best educational interests of said town not in conflict with the provisions of this act or the laws of the State.’
    “3. The said board of education was not created a body corporate nor given the right to sue, or to be sued.

      ■ “4. The board of education for the said City of Abbeville for the year 1920 and thereafter until abolished as hereinafter, set forth consisted of Charles C. Fulghum, Chairman, G. W. Mixon, Secretary, W. C. Oliver, L. A. Williams, and Mrs. M. P. Jackson, and for year 1920 L. M. Wilson was the superintendent of the schools.
    “ 5. On July 6, 1920, at the request of the said board of education and for said board, said L. M. Wilson sent to petitioner a written ordér for furniture and supplies for the city schools of Abbeville, of which a copy is herewith attached, marked Exhibit 'A/ and to which full leave of reference is prayed.
    “6. The articles specified in the said order were shipped to the said board of education at Abbeville, Ga., and were duly received and installed in the schools of said city.
    “6a. Your petitioner further shows that during the same year, to wit: the year.1920, other, articles were purchased from petitioner by the board of education of the City of Abbeville for the said city and for use in the schools under the. direction, control and management of said board. The said articles were as follows: 15 study chairs at $15 each, making a total of $225; and these chairs were shipped on August- 28, 1920, to said superintendent L. M. Wilson, and duly received; and also one 8" gong at $7.62, which was also shipped to said superintendent L.. M. Wilson on October 4, 1920,- and was duly received by the said board of education.
    “7. The articles so specified and described were proper and necessary for the support and maintenance of the school of the City of Abbeville in charge of .the said board of 'education.
    “8. The purchase of said articles, after having been received as aforesaid, was ratified by the said board of education, and approved by them; the order having been given in the first instance at the direction of the said board of education.
    “9. On the 14th day of November, 1920, after the receipt of said articles as aforesaid, by direction of and with the consent of the said board, a note was given- as. evidence of the amount due, a copy of which is-.hereto attached marked Exhibit ‘B,’ to. which full leave of reference is prayed; and .the said note- has never been paid nor any part thereof. , , ,
    “10. On or about the-day of May, 11)22, the local school system- of said City, of Abbeville was consolidated into a consolidated school district consisting of the City of Abbeville, as well as the territory immediately adjoining the same, and trustees for the said consolidated school were duly elected.
    “11. ■ The said consolidation was with the consent of, and was participated in, by the said City of Abbeville.
    “ 12. After the formation of the said consolidated school district as aforesaid, and after the election of trustees for said consolidated school district, the trustees of said consolidated school district made to said City of Abbeville an offer to purchase the grounds, buildings, and all fixtures and all equipment of the Abbeville high-school plant, clear of all encumbrances, for and at the sum of $13,000.
    “13. The said offer was duly accepted at a meeting of the mayor and council of the said City of Abbeville on June 13, 1922, and W. R. Googe, mayor, and J. F. Harrell, clerk of the city, were ■empowered and directed to execute and deliver proper conveyance, as is shown by the original minutes of said mayor and city council of date June 13, 1922, a copy of which is hereto attached, marked Exhibit ‘0/ to which full leave of reference is prayed.
    “ 14. On the-■ day of June, 1922, a deed was duly executed and delivered in accordance with said acceptance and authority for the said City of Abbeville, by the said W. R. Googe, mayor, and J. F. Harrell, clerk, and the property therein described was delivered.
    “15. Among the property so sold and delivered was the property which your petitioner had sold as hereinbefore set forth and described, and as shown in Exhibit ‘A’ hereto attached, and as set forth in the paragraphs of this petition.
    “16. At the .session of the General Assembly of the State of Georgia for the year 1922 act was passed repealing in toto the public-school system of the City of Abbeville, thereby abolishing its board of education.

      “17. The abolishing of said board of education and the repeal of said act was with the consent of the said City of Abbeville.
    “18. By reason of the facts as hereinbefore set forth, the said City of Abbeville became and is indebted to your petitioner in the sum of $829.30, with interest thereon from September 1, 1920, at 6 per cent, per annum.”
    Exhibit “A” was an order to the plaintiff, dated July 6, 1920, for certain desks, erasers, crayons, and a map. It contained a statement that the account would be paid “in one-year note bearing 6 per cent, interest given within thirty days after invoice,” and was signed, “L. M. Wilson, Supt. & Pur. Agt. City Schools, P. 0. Abbeville, Ga.” Exhibit “B” was a note payable to the plaintiff for $829.30, dated November 14, 1920, and due September 1, 1921, signed “Board of Education, by Chas. C. Eulghum, Ohm. (Seal), G. W. Mixon, Sect., L. M. Wilson, Supt. (Seal).”
    The second count was identical with the first with the following allegations added:
    “34. At the time of the acceptance of said offer as aforesaid, said City of Abbeville knew that the goods aforesaid had been purchased by its board of education and had not been paid for, and further knew that all of the said described property except the erasers and crayons of the price of $32.50 were a part of the property sold by it to said trustees of said consolidated school.
    “35. Among the property so sold and delivered was the property which your petitioner had sold as hereinbefore set forth and described in Exhibit ‘A’ hereto attached, and as set forth in the paragraphs of this petition, except the erasers and crayons as aforesaid.
    “38. Your petitioner shows that the certain erasers and crayons described in Exhibit ‘A’ hereto attached were used in the work of the schools of said City of Abbeville, were necessary and proper for the use of the said schools, were consumed in the use, were of the value of $32.50, and the said City of Abbeville by their use were benefited in the sum of $32.50; and the other articles described in said exhibit, and those described in paragraph 25 of this petition, were necessary and proper for the use of the said schools, were not consumed in the use, were of the value as shown in said exhibit, and said paragraph, of $786.80, and the said City of Abbeville by the use were benefited in the said sum of $786.80.”
    The third count was identical with the first except that the indebtedness was alleged to be only $786.80, with interest, and with the further exception that the third count contained • the following allegations in addition to those set forth in the first count:
    “55. At the time of the acceptance of said offer as aforesaid said City of Abbeville knew that the goods aforesaid had been purchased by its board of education and had not been paid for, and that all of said described property except the erasers and crayons (said erasers and crayons of the price of $32.50) were a part of the property sold by said city to said trustees of said consolidated school.
    “59. Petitioner shows that the said described property, other than the erasers and crayons, at the date of the sale by the said City of Abbeville to the trustees of said consolidated school district as aforesaid was worth the sum of $786.80, and entered into and was a part of the consideration of $13,000 received by said City of Abbeville, and that from the sale as aforesaid of said property the said City of Abbeville received the said sum of $786.80.
    “60. Petitioner shows that neither said City of Abbeville nor any one else has paid to petitioner any sum whatever for the said property.”
    The following averments were added to each count by amendment:
    “By act of the General Assembly of the State of Georgia for the year 1919 the mayor and council of the City of Abbeville were authorized and empowered to levy and collect for its public schools a tax of not to exceed 1 per cent, on all taxable property in said city.
    “At the time of the passage of said act the said City of Abbe-ville was authorized and empowered under its charter to collect a tax for all other purposes (besides schools) of 1 per cent.' on all taxable property in said city, and no more.
    “For the year 1921 therefore said City of Abbeville assessed for taxes on all property in said city 2 per cent., the same being a tax of 1 per cent, for public schools, and 1 per cent for all other purposes.
    “For the year 1922 the mayor and city council of the City of Abbeville, on October 10, 1922, made their tax assessment as follows: ‘Upon motion the tax levy be set at per cent.’ (See minutes, page 360.)
    “This levy included 1 per cent, for all other purposes and per cent, for schools, the schools being operated under the regular city school board for the spring term.
    “But while the taxes were collected as aforesaid, no part of the said taxes were turned over to the city school board, but were paid out directly by the City of Abbeville through its other officers for various purposes unknown to petitioner; and petitioner charges that all of said school taxes were not paid out for school purposes.
    “For the year 1923 the mayor and city council of the City of Abbeville, on June 26, 1923, made their tax levy as follows: ‘Motion and carried that the tax levy for 1923 be 1 ~y2 per cent.’ (See minutes, page 384.)
    “This levy was intended, as the preceding levy was, 1 per cent, on the taxable property for other purposes, and yí per cent, for schools.
    “Yet there was no city school board at that time, and the school tax was paid out by the mayor and city council through the proper city officer, and as your petitioner is informed, and so charges, it was paid out on claims other than for the debts of the schools aforesaid.”

      Hal Lawson, for plaintiff.

      M. B. Cannon, for defendant.
   Bell, J.

(After stating the foregoing facts.)

Under the act of the General Assembly approved August 1, 1895 (Ga. L. 1895, p. 117), creating a local system of schools for the City of Abbeville (then a town), a board of education to be selected by the mayor and council was vested with the exclusive control of the general fiscal affairs of the school system thereby established; and where the mayor and council levied, collected, and paid over to the board in a given year or years the maximmn tax allowed by the act, liabilities, though legally incurred by the board of education, were chargeable only against these funds in the hands of the board and certain other funds paid over to the board from the State taxes. Appling v. City of Abbeville, 136 Ga. 772 (72 S. E. 31).

In the absence of allegations to the contrary, this court may assume, when considering the petition on demurrer, that during the years 1920 and 1921 the mayor and council collected and paid over the maximum tax alleged to have been levied for school purposes, it being presumed that these public officers have done their duty and complied with the law. Connolly v. Atlantic Contracting Co., 120 Ga. 213 (2) (47 S. E. 575); Loudermilk v. Stephens, 126 Ga. 782 (1) (55 S. E. 956); Ponder v. Shumans, 80 Ga. 505 (3) (5 S. E. 502); Scott v. McDaniel, 64 Ga. 780 (3).

If, considering the petition on general demurrer, it could be assumed that, in the levy of taxes during the year in which the liability was incurred, provision was made for a sufficient sum to pay it, the mere fact that the board of education failed to discharge the same out of the funds levied and paid over for the purpose would not create a general liability against the city. Tinder the ruling in Appling v. City of Abbeville, supra, the plaintiff’s claim was payable only out of funds in the hands of the board. If it was a lawful claim, its payment could have been enforced by mandamus.' See Smith v. Board of Education of Washington County, 153 Ga. 758 (113 S. E. 147). The plaintiff, however, accepted a note due the following year, and after its maturity appears to have done nothing to exact payment out of the particular funds against which its claim was a charge. The fact that almost two years after the board incurred the liability the special school system was abolished would not cause its claim to then attach to other funds of the city levied and collected in its general municipal capacity. The board of education was initiated for a certain purpose and to administer a particular fund. When this board and the local system of schools were abolished, if there was a legal successor to the board, it was not the municipality but the trustees of the consolidated school district into which the Abbeville schools were merged. See Atlantic & Birmingham Ry. Co. v. Johnson, 127 Ga. 392 (2) (56 S. E. 482, 11 L. R. A. (N. S.) 1119); Walker v. City of Rome, 6 Ga. App. 59 (64 S. E. 310).

The further fact that for a consideration of $13,000 the city sold to the consolidated school district its school buildings and property, including a part or all of the articles purchased from the plaintiff, would not render the city liable. It appears that the supplies were sold to the board on account, and that later a note was given therefor, which was long past due when the consolidation of the schools and the sale of the property took place. If prior to the sale the city was not liable, there seems to be no law which would make the city answerable merely by reason of the sale. The chose in action against the board only would not be thereby converted into an actionable claim against the city. The plaintiff retained no legal or equitable title to the property purchased from it. While the note representing the indebtedness recites that “title to the said furniture and supplies shall remain in the [plaintiff] as security,” until payment of the note, the allegations of the petition, together with the original order attached thereto, clearly show that the purchase was upon open account. The board would not have had authority to place an incumbrance upon articles which it had unconditionally purchased on account several months previously, and which it had installed as necessary to the operation of the schools. Neal-Millard Co. v. Trustees of Chatham Academy, 121 Ga. 208 (48 S. E. 978); Walden v. Town of Whigham, 120 Ga. 646 (2) (48 S. E. 159); Civil Code (1910), § 899. Furthermore, the plaintiff nowhere in its pleadings seeks to rely on this provision of the note, and apparently recognizes that it has no efficacy as an enforceable agreement for the retention of title. The action was therefore not maintainable on the theory that the city had benefited by a sale of property to which the plaintiff held title.

In May, 1922, the schools of the City of Abbeville were consolidated with those of districts contiguous thereto, and by an act of the General Assembly approved August 1, 1922 (Ga. L. 1922, p. 452), the act of 1895 establishing a local system of schools for the City of Abbeville was repealed in toto. In the amendment to the petition it is alleged that thereafter, to wit, on October 10, 1922, the mayor and council made a tax levy for school purposes of one half of one per cent., this being but half of the rate allowed to be annually levied and collected by the City of Abbe-ville for schools, “the schools [of the city] being operated under the regular city school board for the spring term.” It is alleged that the city collected this tax and administered the fund through the mayor and council, and that “all of said school taxes were not paid out for school purposes,” implying that a part of the fund was diverted to other and improper purposes. Similar allegations were made with reference to a school tax levied in 1923. There being no liability at the time of the levies, none resulted by reason of the levies and the improper use of the funds derived therefrom, especially where it does not appear that the city expressly levied a tax for the purpose of paying the plaintiff’s claim, and that after the collection thereof the fund was still held by the city for that purpose. It is unnecessary to decide whether the mayor and council had authority to levy a tax for school purposes after the act creating the local system of schools had been repealed.

The action was not maintainable against the municipality for the value of the supplies purchased by the board. In no view of the case was a cause of action set forth, and the court did not err in sustaining a general demurrer to the petition as amended.

The principle laid down in the third headnote and third division of the opinion in Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. Rep. 244), has no application to a case like the present.

Judgment affirmed.

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


author: Beü, J.

text:
    16017.
    Beasley v. Howard.
   Beü, J.

1. The bill of exceptions is not subject to dismissal merely because it fails to specify all of the material parts of the. record. Atlanta Suburban Land Corp. v. Austin, 122 Ga. 374 (1), 377 (50 S. E. 124). See Mason v. Terrell, 3 Ga. App. 348 (5), 355 (60 S. E. 4).

2. While an acceptance of a bill of exchange, as well as a promise to answer for the debt of another, must, in order to be enforceable under the statute of frauds, be in writing and signed by the party to be charged therewith (Civil Code of 1910, § 3222, subsections 2, 8), yet in a suit upon a contract to which the statute of frauds is applicable the petition is not subject to'demurrer merely because of a failure to state whether the contract was in writing. In the absence of anything to the contrary, the presumption is that the statute was complied with. Kiser Company v. Padrick, 30 Ga. App. 642 (1) (118 S. E. 791), and cases cited.

3. Where, however, in such a case, it appears from the evidence upon the trial that the acceptance or promise was not in writing, and the statute has been duly invoked, a verdict for the plaintiff will be unauthorized. Bentley v. Johns, 19 Ga. App. 657 (2) (91 S. E. 999).

4. The present case was not brought within any exception to the statute by proof that upon the defendant’s making the oral acceptance or promise the plaintiff left the draft in his custody, or by evidence in support of an amendment to the petition to the effect that, because of the acceptance or promise, the plaintiff “abandoned valuable rights, to wit, the right to sue the drawer and to attach the shingles, for the purchase-money of which said draft was given; and as a result thereof said shingles were put out of reach of plaintiff by defendant and the drawer has left the State, which she had to enforce the payment of said sum against the drawer; and further that defendant authorized the drawer to make said particular draft, promising to accept and pay same.” Lewin v. Greig, 115 Ga. 127 (41 S. E. 497).

5. Applying the above rulings, the court erred in overruling the defendant’s motion for a new trial, whether the transaction relied upon be considered as an acceptance of a bill of exchange or as a promise to answer for the debt of another.

Decided May 19, 1925.

Complaint; from city court of Keidsville—Judge Cowart. September' 22, 1924.

E. 0. Beasley, for plaintiff in error.

E. C. Collins, B. W. Barnes, contra.

6. In tlie above view, it is unnecessary to determine whether the copy of the draft annexed to the petition was fatally at variance with the writing- introduced in evidence as such upon the trial.

Judgment reversed.

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


text:
    16114.
    Lime-Cola Bottling Co. v. Atlanta & West Point Railroad Co.
   Bell, J.

1. This being a suit against a railway company for injury to the plaintiff’s truck (and other property being transported thereon), which injury occurred in a collision between the truck and the defendant’s train at a public crossing, and one of the specifications of negligence being that the defendant violated the provisions of the blow-post law of August 19, 1918 (tía. L. 1918, p. 212; Park’s Ann. Code Supp. 1922, § 2677 (b)), the court erred in charging the jury as follows: “This act provides that the -engineer shall, when he reaches the blow-post, blow two long and two short blasts of his whistle at intervals of five seconds between each blast. This act further provides that during this time the engineer shall keep a constant and vigilant lookout ahead. I charge you that you must give this act a practical application, and determine if the engineer can strictly comply with both of these requirements. If he can not, then it is your duty to determine if the engineer exersised reasonable care in complying therewith.” The construction of a statute is the function of the court, and it was improper in this ease to submit to the jury the question of whether the engineer could “strictly” or “practically” comply with the requirements of the statute in question. Even if the rule should here be applicable that “a substantial compliance with any requisite of the code or laws amendatory thereof . .- shall be deemed and held sufficient” (Civil Code of 1910, § 4 (6)), it should not be left to the jury to determine whether a party could or could not substantially comply therewith. But even assuming that the above excerpt could be construed as tantamount to an instruction that a substantial compliance with the statute by the railway company would be sufficient, the duty of compliance to that extent would be absolute, and the company would not have discharged the duty merely by the exercise of reasonable care to that end, See Savannah &c. Ry. Co. v. Daniels, 90 Ga. 608 (2) (17 S. E. 647, 20 L. R. A. 416) ; Calhoun v. McLendon, 42 Ga. 405.

ja) The fact that, upon a plea being filed by the defendant, alleging /’.that the act in .question was invalid because it was impossible for the engineer to measure the intervals between the blasts of the whistle and at the same time to keep a constant and vigilant lookout ahead, the plaintiff’s counsel, in support of the validity of the statute, argued to the court “that it would be necessary for the engineer to give these " requirements practical compliance,” and “that the law would not require the engineer to time the spaces between each blast, as 'by a watch or clock,” would not estop the plaintiff from complaining of such error in the charge of the court, in a subsequent motion for a new trial. Martin v. Nichols, 127 Ga. 705 (2) (56 S. E. 995) ; Horton v. State, 120 Ga. 307 (2) (47 S. E. 969).

2. Error is assigned upon the following charge: “In order for the plaintiff to be entitled to recover in this case, it must appear that the defendant was negligent in one or more of the ways complained of, and that this negligence was the direct and proximate cause of the injury to the plaintiff,—that is, if you find that the plaintiff company was damaged. You must further find that the plaintiff itself was not negligent, that it did not consent to the injury inflicted, that by the exercise of ordinary care it could not have avoided the consequences of the defendant’s negligence, if you find that the defendant was negligent.” The issues stated in the first sentence of this excerpt would seem to be inclusive of those submitted in the second sentence. It was confusing and erroneous to instruct the jury that the establishment of the latter issues in the plaintiff’s favor in addition to the former would be necessary, in order to entitle the plaintiff to recover. Furthermore, the plaintiff was not to be barred from a recovery merely because there may have been some negligence on its part, provided the negligence of the plaintiff did not equal or exceed the negligence of the defendant. It was therefore improper to instruct the jury that the plaintiff must have been free from, negligence before it could recover. Civil Code (1910), § 4426; Americus &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105) ; Thomas v. Gainesville &c. Ry. Co., 124 Ga. 748 (52 S. E. 801).

3. Under the facts of this ease, in which it appears that the plaintiff’s truck driven by its employee was traversing the railroad-track at a public crossing, and in which one of the acts of negligence charged against the defendant railway company was an alleged failure to comply with the blow-post law, it was erroneous to instruct the jury generally and without qualification that it was for them to determine “what was the duty of each of these parties and whether or not they performed their respective duties,” and “what conduct on the part of the railroad company would amount to the exercise of ordinary care and diligence.” Such instructions might possibly have been proper as to other alleged negligence, not consisting in the omission of acts whose performance was enjoined by law; but where an act of diligence is prescribed by law, the province of the jury in determining whether or not there was negligence would not include the function of finding what duty was owing, but would be limited to the ascertainment of whether the prescribed duty was violated. The error in the charge here considered was accentuated by the instruction referred to in paragraph 1 above. Platt v. Southern Photo Co., 4 Ga. App. 159 (2) (60 S. E. 1068); White v. Knapp, 31 Ga. App. 344 (5) (120 S. E. 790).

Decided May 19, 1925.

Action for damages; from Campbell superior court—Judge Hutcheson. November 8, 1924.

Harwell, F airman & Barrett, for plaintiff.

Dorsey, Brewster, Howell & Heyman, for defendant.

4. The court instructed the jury as follows: “Plaintiff must recover, if at all, only by proof of some one or more of the acts of negligence which it alleges and specifies in its petition as the cause of its injuries;” and also: “If the plaintiff shows, by a preponderance of the evidence, that the defendant was negligent in the ways specified in its petition, and that this negligence on the part of the defendant was the direct and proximate cause of its injury, then it would have carried the burden which the law puts upon it.” Held: “It is. not incumbent upon the plaintiff, in a case where the injury complained of is caused by the running of the defendant’s cars, to prove the allegation of negligence of the defendant by a preponderance of the evidence. Killian v. Georgia R. Co., 97 Ga. 727 (3), 730 (25 S. E. 384); Civil Code (1910), § 2780.” Murphy v. Georgia Railway & Power Co., 146 Ga. 297 (1), 298 (91 S. E. 108). The excerpts complained of were erroneous; but since a new trial must result under the rulings in the preceding paragraphs, it is unnecessary to determine whether this error, standing alone, would be sufficient to require a new trial, in view of the entire charge. South Georgia Ry. Co. v. Ryals, 123 Ga. 330 (51 S. E. 428); Griswold v. Macon Railway Co., 6 Ga. App. 1 (1) (63 S. E. 1132); Pope v. Seaboard, Air-Line Railway, 21 Ga. App. 251, 255 (94 S. E. 311); Central of Georgia Ry. Co. v. Deas, 22 Ga. App. 425 (2) (96 S. E. 267). What is said here will apply equally to another instruction complained of.

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

Judgment reversed.

Jenlmns, P. J., and Stephens, J., concur.


text:
    16126.
    POLAND et al. v. OSBORNE LUMBER CO. et al.

    1. In this processioning case, the evidence did not demand, but would have authorized, a verdict for either side.
    2. The court erred in giving a charge not warranted by the evidence, and the losing party was probably prejudiced thereby.
    3. The court erred in charging the jury, in effect' thát they would be bound to find against the line as returned by the proeessioners if they found that there were existing ancient landmarks on trees on the line claimed by the protestants, but none on the line as run ’ by the proeessioners, there being some evidence of the previous existence of such marks on the latter line, and the evidence as a whole being such that a finding that this was the true line would have been authorized.
    4. Numerous grounds of the motion for a new trial are but amplifications of the general grounds and are disposed of in the ruling first announced above. Since a new trial is ordered for other reasons, no ruling is necessary upon the ground of the motion based upon the alleged disqualification of a juror. Other grounds present no question for decision. Under the rulings stated in headnotes 2 and 3 and the corresponding divisions of the opinion, the court erred in overruling the motion for a new trial.
    Decided May 19, 1925.
    Processioning; from Lincoln superior court—Judge Shurley. November 21, 1924.

      William II. Fleming, for plaintiffs in error.

      Callaway & Howard, contra.
   Bell, J.

This was a processioning case. The adjacent tracts of land between which the line was in dispute may be referred to as “the Searles tract,” lying west of the line, and “the BusseyBurch tract,” lying east of the line. The owners of the Searles tract were the heirs of John Searles, deceased. The owner of the Bussey-Burch tract was the Twin City Power Company. M. G. and J. J. Dorn had purchased the timber upon the Searles tract, and the Osborne-Lumber Company had purchased the timber upon the Bussey-Burch tract. The Osborne Lumber Company claimed that the Dorns were trespassing across the dividing line, and instituted proceedings, to have the line established by processioners. We thus have the Searles heirs and the Dorns on one side of the controversy and the Twin City Power Company and the Osborne Lumber Company on the other side.

All parties were agreed that the southern end of the dividing line was at a point known as the Tutt corner, evidenced by a rock, and that from this point the- true line ran in a northerly direction along a well-defined hedgerow for a distance of several hundred yards to an old road.' The dispute is as to the direction which the line should take fr.om the old road to the northern boundary of the two tracts. The owners of the Searles tract claimed that the dividing line continued from the old road in the same course, without variation, which it had taken from the point of beginning; that is, that the.- dividing line .was- a straight line from one end to the-other. The' owners of the -Bussey-Burch tract contended that the line varied or deflected westward at the old road at an angle of sixteen and one half degrees, and that it was evidenced by an old fencerow or hedgerow extending from the old road to the northern boundary. The area between the disputed lines was, therefore, in the shape of a Y or triangle. The processioners found that the line was a straight line as claimed by the owners of the Searles tract. The owners of the Bussey-Bureh tract filed a protest, on the trial of which the jury sustained the return of the processioners. The protestants filed a motion for a new trial, which was granted, and upon the second trial the jury found against the return of the processioners. The Searles heirs moved for a new trial, which the court overruled, and they excepted.

Each side claims to have been entitled to a verdict as a matter of law. By going through the record and selecting certain parts of the testimony of the several witnesses and ignoring the other evidence, it is possible to demonstrate that the evidence demanded a verdict in favor of the plaintiffs in error. By a like process, it may be shown that the verdict should have been for the defendants in error. But, without undertaking to summarize or outline it, we are satisfied that, upon a consideration of all of the evidence, a verdict was not demanded for either party, and that the question of whether the verdict shall be allowed to stand will turn upon the assignments of error in the special grounds of the motion for a new trial.

In ground 9 of the motion for a new trial error is assigned upon the following charge of the court: “And if you find that the owners of the Bussey-Bureh tract and those occupying said tract under said owner either cultivated said land on the east side of said hedgerow up to the hedgerow or fence row, or cut cedar posts or other timber up to the fencerow or hedgerow, then such acts would have been possession of the owners of the Bussey tract up to the old hedgerow.” The exception is that this charge was unwarranted by the evidence.

' A diligent- search of the record fails to disclose any evidence to the effect that the owners of the Bussey-Bureh tract ever cut any timber or cultivated any land on the disputed area,—that is, west of the line claimed as the true line by the owners of the Searles tract. The court, therefore, committed error in giving this charge. Were the losing parties prejudiced thereby? The court had just instructed the jury that a claim of right accompanied by actual possession for more than seven years should be respected and that the lines should be so marked as not to interfere with such possesr sion. It is not improbable that some such occurrence as the following took place in the jury-room when the jurors came to their deliberations: One juror takes the position that the protestants, or owners of the Bussey-Burch tract, are entitled to prevail because of actual possession under a claim of right for more than seven years. To another juror, who inquires as to the character of possession meant, he explains that he refers to the cutting of timber and the cultivation of the land. Challenged as to the evidence of such acts, he replies, more or less convincingly, that if there had been no evidence thereof the trial judge would not have instructed them that such acts on the part of the protestants or their predecessors in title would have constituted possession within the meaning of the law, or, in other words, that the judge would not have submitted the issue. The jurors might thus have been led into giving the protestants an advantage on a material matter, without evidence on which to do so.

In Culberson v. Alabama Construction Co., 127 Ga. 599 (1) (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507), the Supreme Court held that instructions not warranted by the evidence are cause for a new trial if it is not apparent that the jury could not have been misled by them. See also Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (2) (76 S. E. 387, Ann. Cas. 1914A, 880); Gaskins v. Gaskins, 145 Ga. 806 (1) (89 S. E. 1080); Southern Marble Co. v. Pinyon, 144 Ga. 259 (2) (86 S. E. 1086); Barrett v. Bryant, 156 Ga. 614 (1) (119 S. E. 599) : Kirkland v. Brewton, 32 Ga. App. 128 (2) (122 S. E. 814), and citations.

We can not say that the charge complained of was not prejudicial.

Complaint is made of the following charge of the court: “If you find the line as claimed by Mr. Osborne is indicated by old landmarks on the trees, and that these were ancient landmarks; and you further find that there were no landmarks of any character on the line run by the processioners, then it would be your duty, under the law, to find in favor of the line claimed by Mr. Osborne.” It is contended that this charge improperly confined the jury to landmarks now existing, to the exclusion of evidence of genuine landmarks that formerly existed.

One. of the witnesses testified that at one time there was a pine tree standing directly on the line run by the processioners, on which tree there were landmarks; and that while this tree had been cut down the stump was still there. This witness claimed to have been well acquainted with the lands for about fifty years. He further testified that at one time, evidently thirty-five or more years ago, there was situated along the line as returned by the processioners an old rail fence, which was “on the line. As to whether that fence was right on the line they said it was on the line, . . .and everybody recognized that fence was the line.” His evidence in regard to the line contended for by the owners of the Bussey-Burch tract, was in part as follows: “There never was any fence- over there. I went there in 1873, and there wasn’t nary one there then and there ain’t been none there since that I know of. . . There was never a fence row there, there was never a hedgerow there, there was nothing but a turn row, where I would turn around at in plowing.”

Even assuming with the defendants in error that the testimony of this witness was not of an exceedingly impressive character, the jury in their exclusive province could have believed it. There was still other evidence, not referring to landmarks, which tended to show that the line as run by the processioners was the true existing line. It is our opinión that the processioners, in seeking to locate and mark a line previously established and existing, would not be bound to follow the course of existing landmarks upon trees, in preference to some other course claimed to be the location of the true line, and which the processioners might believe from evidence of previous landmarks thereon to be the true line, even though such landmarks have disappeared and are not to be found at the time of the survey.

In Roberts v. Ivey, 63 Ga. 622, the Supreme Court, by Mr. Justice Bleckley, said: “The marked trees are strong for the Shockley, but the concurrent acts and declarations of former owners of the respective tracts are overwhelming for the Brittain. It is plain that the jury had ample evidence before them to justify a finding either way. Tradition was for one party, and trees for the other. The jury recognized the line which the early proprietors recognized and endeavored to establish. On such a controversy the rule in this court is to go with the jury where we are not certain of a better line, and the application of that rule forces us to declare for the Brittain.” See also Brantley v. Davis, 143 Ga. 73 (1) (84 S. E. 434); Cosby v. Reid, 21 Ga. App. 604 (1) (94 S. E. 824). We think the court erred in giving the instruction complained of.

In one ground of the motion complaint is made that the court erred in its charge in constantly using the word “hedgerow” as necessarily meaning a dividing line. This exception “did not include an entire sentence.” If there were no other errors, such exception would not be considered favorably as cause'for reversal (Sutton v. Ford, 144 Ga. 587 (2 a), 87 S. E. 799); and in the instant case we make no ruling thereon. But since the judgment refusing the motion for a new trial must be reversed on other grounds, we take occasion to observe that the evidence did not indisputably show the existence of a hedgerow at either of the disputed lines; and even if the jury found that there was a hedgerow along one of these lines, it did not follow as a necessary conclusion, under the evidence, that this hedgerow marked the location of the true line.

A further ground of the motion assigns error upon the following excerpt from the charge of the court: “If you should find that there was no acquiescence, and that there was no line established later, then the original line as contended for by the protestant.” It is impossible to determine from this ground whether the charge was error or not. The extract complained of does not seem to be a complete sentence, and an exception to “an extract from the charge, the extract consisting of an uncompleted sentence which is without meaning as it stands and announces no proposition of law, is without merit.” Parks v. Hailey, 142 Ga. 391 (9) (83 S. E. 100).

In another ground of the motion the- verdict is attacked because of the disqualification of one of the jurors, but the question raised by this assignment need not be decided. All other grounds of the amendment to the motion for a new trial are but amplifications, in one form or another, of the general grounds, and are covered by our ruling in the first division.

For the reasons stated in headnotes 2 and 3 and the corresponding divisions of this opinion, the court erred in overruling the motion for a new trial.

Judgment reversed.

Jenlñns, P. J., and Stephens, J., concur.


text:
    16134.
    SHAW v. ALLEN & CO.
    Where a suit upon an open account, for necessaries furnished to a wife, is brought against the husband, and where from the uncontradicted evidence it appears that the husband was not a party to the contract and that the wife, in making the purchase, expressly stipulated that she and not her husband was to be liable, and that the goods were furnished to her upon this condition, the husband is not liable under his general implied obligation, and a judgment against him is contrary to the evidence and unauthorized.
    Decided May 19, 1925.
    Rehearing denied June 15, 1925.
    Certiorari; from Fulton superior court—Judge Humphries. November 12, 1924.
    J. P. Allen & Company brought suit against Charles A. Shaw, in the municipal court of Atlanta. The trial resulted in a judgment in favor of the plaintiff. By certiorari the defendant carried the case to the superior court, where the certiorari was dismissed, and he excepted. The suit was upon an account in the sum of $147.50, for a coat furnished to the defendant’s wife. The sole contention of the plaintiff in error is that the judgment was contrary to the evidence and without evidence to support it.
    Mr. Byington, sworn for the plaintiff, testified as follows: “I am credit manager of J. P. Allen & Company. In October, 1920, Charles A. Shaw, defendant in this case, opened a credit account with the company. This is his letter in which he asks for a line of credit, giving several references as to his reliability (exhibiting a letter). He has never discontinued his line of credit with us. When credit is once extended it continues in force until the party notifies us to discontinue it. Several articles were bought by Shaw’s wife on his account during the past three years. The account sued on in this case was for a coat which Shaw’s wife bought from us on Shaw’s account. A little while before this suit Shaw brought the coat to us and offered' to return it, stating that he had not authorized his wife to buy it and that he was not going to pay for it. . . The defendant was not with his wife when she bought the coat. Shaw’s wife bought it from a saleslady. . I did not talk with her before or at the time the sale was made. After Shaw’s wife left, the saleslady consulted me relative to letting the coat be paid for on October 1, 1923. I informed her it was all right and the coat was sent out to Shaw’s home and charged to his account. The statement of the account was sent to Shaw’s wife and not to him. That is the custom in all stores in Atlanta.”
    .Mr. Shaw, the defendant, testified: “About three years ago I opened an account with J. P. Allen & Company, the plaintiff. 1 never bought anything for myself, but my wife took up an article or two on my account which were paid for by her, she having given the money to me for that purpose. She never obtained anything there on my account without first informing me about it. I knew nothing about the purchase of the coat in the case and did not authorize her to get the same on my account. The first I knew it was charged to my account was when she offered to return it after she found out that she could not pay for the same. She had never worn the coat at all. I told the credit manager that I would not pay for the coat, as it had not been purchased on my account. I did not tell him I was unable to pay him.”
    Mrs. Shaw testified as follows: “I am the wife of Charles A. Shaw, the defendant. In July of this year I went to J. P. Allen & Company to buy a coat. I knew that my husband had opened an account there two or three years ago, but I did not desire to get anything on his credit. I told the saleslady that I was a teacher in the public schools and would be able to pay for the coat on October 1, 1923, myself. I expressly told her that I wanted to get the coat on my own account and responsibility.” Mrs. Shaw testified that when she asked the saleslady if this could be done, the saleslady told her that she would have to see the credit manager, as she had no authority to open an account with anybody on credit. “A few days the coat was sent out, billed to me. I concluded that the saleslady had made the arrangement with reference to charging to my account in accordance with my request and with my specific statement to her that I did not want it unless it was charged to my account. I did not know until I offered to return the coat that they had charged it to my husband and not itó me. The monthly statements of the bill were addressed to me. This is a statement of the account 'sent to me by the company.”

      Walden & Hixson, for plaintiff in error.

      Eobah & Levy, contra.
   Bell, J.

(After stating the foregoing facts.)

In the absence of anything to the contrary, the presumption is that the husband and the wife were living together. The husband (who is the plaintiff in error) does not contend that the coat furnished to his wife should not be considered within the classifica- ’ tí on of necessaries suitable to her condition and habits of life. Cohabitation raises a presumption of the wife’s authority to purchase necessaries on the credit of her husband; and where the husband seeks to avoid liability on account of purchases so made, he has the burden of “showing that the goods were supplied under such circumstances that he is not bound to pay for them.” Mitchell v. Treanor, 11 Ga. 324 (1); Georgia Grocery Co. v. Brunson, 24 Ga. App. 484 (101 S. E. 130); Civil Code (1910), § 2996. The wife may by express contract bind herself personally for- necessaries for which the husband would otherwise be liable. Morrison v. Evans, 31 Ga. App. 256 (2) (120 S. E. 430). In the instant case she stipulated with the saleswoman that she did not want the coat, and would not take it, except upon the condition that credit therefor should be extended to her and not to her husband. While it appears that the saleswoman had no authority to close the bargain upon that condition, she was nevertheless the agent of the plaintiff and not the agent of the defendant’s wife, and notice to her of the only terms upon which the wife was willing to purchase was in reference to a matter connected with her agency and was notice to the plaintiff. “This is implied actual notice, and actual notice to the agent is imputed to the principal. . . In

a case where the agent has actual knowledge, the company has notice, upon the presumption that the agent will do his duty and inform his principal of those facts which affect the company’s -interest.” Wiley v. Rome Insurance Co., 12 Ga. App. 186, 188 (76 S. E. 1067). The saleswoman was the person with whom the wife dealt in making the purchase, and was the proper agent for the wife to notify of her intention not to purchase the coat except upon her own credit. Allen v. Hastings Industrial Co., 2 Ga. App. 291 (58 S. E. 504); Wilensky v. Martin, 4 Ga. App. 187 (1) (60 S. E. 1074). She was the proper person to receive the customer’s request and to convey it to the plaintiff’s agént- or officer having authority to determine the matter; although she had no authority herself to extend the credit. The plaintiff, being thus charged by the law with actual knowledge of the wife’s stipulation as to the only condition upon which she would buy, impliedly assented thereto when delivering the coat a few days afterwards. The testimony of the wife was uncontradicted and not for any reason subject to discredit. It matters not that the saleswoman may never have notified the plaintiff of the wife’s wishes, nor'that the plaintiff did not consciously extend the credit to the wife. Whether, urder the decisions, a wife living with her husband can not become personally bound for necessaries without an express promise on her part even where an actual intention by her to that effect is made manifest by the circumstances, it would seem clearly unnecessary to such result that the seller’s agreement to extend the credit to her should be express, provided there are circumstances from which, as in other cases, such agreement by him may be implied.

It conclusively appears that the purchase' was solely -upon the wife’s credit, and, this being true, the husband was not bound. The defendant indisputably and as a matter of law rebutted the presumption existing at the outset against him. The judgment of the municipal court was contrary to the evidence and without evidence to support it. The superior court erred in dismissing the certiorari.

Judgment reversed.

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

ON MOTION ROS REHEARING.

In the motion for rehearing it is insisted that in our decision we considered the evidence of Mrs. Shaw as set forth in the petition for certiorari, and that we overlooked the fact that the answer to the certiorari as made by the trial judge did not verify the petition with respect to her testimony. We examined the answer carefully and set out the evidence in the statement of facts in the light of it. It contains the following statement: “The testimony for the defendant, Charles A. Shaw, by himself and by his wife, is substantially correct, except that the wife did not state to the saleslady, ‘I did not want it on my husband’s account; that if it could not be charged to me personally, I would not buy it. • She told me that she.was sure it could be arranged. I told her then that if it could be arranged that way that I would want her- to send tbe coat out to me.’ Instead of the above quotation, the wife testified, in substance, as follows: ‘That she wanted to get the coat on her own account and responsibility, and when she asked the saleslady if it could be done, the. saleslady told her that she would have to see the credit manager, as she had no authority to open an account with anybody on credit.’ ” It will thus be noted that the answer verifies Mrs. Shaw’s testimony as set forth in the petition, with the exception of certain specified sentences. These were omitted from our direct quotation of her testimony, and, following the judge’s answer, we inserted in the place thereof the matter shown by the indirect quotation in the statement of her testimony. We considered only that part of her testimony which the answer verified, together with that which the answer substituted for the part it did not verify.

Motion for rehearing denied.

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


text:
    16138.
    Rhodes v. Gunn.
   Bell, J.

1. The exception to the judgment overruling the demurrer to the petition, not having been referred to in the brief of counsel for the plaintiff in- error, is treated as abandoned. Atkinson v. Olmstead, 140 Ga. 100 (2) (72 S. E. 720) ; Union Warehouse Co. v. Roper, 21 Ga. App. 182 (1) (94 S. E. 74).

2. Although it is true that, where a married woman borrows money for the purpose of paying her husband’s debts, and the lender, though knowing of her purpose, is not the husband’s creditor who is thus to be paid, and is not a party to the arrangement or scheme between the husband and wife which results in the making of such contract by her, she will be liable for the money so borrowed (Rountree v. Rentfroe, 139 Ga. 290 (2) (77 S. E. 23) ; Garrett v. Thornton, 157 Ga. 487 (3) (121 S. E. 820); Longley v. Bank of Parrott, 19 Ga. App. 701 (1) (92 S. E. 232)), still a wife can not bind her separate estate by any contract of suretyship nor by any assumption of the debts of her husband (Civil Code (1910), § 3007), and “No superficial appearance will be permitted to lead the court away from the true inwardness of the transaction.” Gross v. Smith, 31 Ga. App. 95 (1) (119 S. E. 541).

3. The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Shepard v. Chappell, 29 Ga. App. 6 (2) (113 S. E. 23); Woods v. Mercantile Bank & Trust Co., 32 Ga. App. 106 (122 S. E. 819); Reaves v. Columbus Electric & Power Co., 32 Ga. App. 140 (2) (122 S. E. 824). Thus, whether the testimony of the husband and the wife, to the effect that the wife signed the note sued on merely as the husband’s surety, was of such a character that the jury would have been authorized to disbelieve each of these witnesses, and, thereupon, to base their finding solely upon the other evidence, it affirmatively and indisputably appears from the plaintiff’s own testimony that the bond for which the note was given was indorsed only to the husband, to whom it was delivered, that it was thereupon placed by him with his creditors, and that his wife received none of the proceeds thereof. Erom these circumstances, together with the others shown in the plaintiff’s testimony, construed reasonably against her, it conclusively appeared that the defendant wife signed the note only as surety. The verdict found in the plaintiff’s favor as to that defendant was therefore contrary to the evidence. Jones v. Weichsel, 115 Ga. 369 (41 S. E. 615).

Decided May 19, 1925.

Complaint; from Taliaferro superior court—Judge Shurley. December 1, 1934.

To a suit upon a note signed by J. A. Rhodes and his wife, she set up the defense that she executed the note as surety for her husband. The trial having resulted in a verdict against both defendants, Mrs. Rhodes made a motion for a new trial upon the usual general grounds and several special grounds. Her bill of exceptions assigns error upon the overruling of the motion and upon exceptions pendente lite to the overruling of a demurrer to the petition.

Miss Delia Gunn, the plaintiff, testified:

“I am the owner of that note. . . I loaned Mr. Rhodes the sum of money stated in that note, $500, or I know he came for the money, and I let him have it. I did not extend the credit to Mr. Rhodes, but extended the credit to Mrs. Genevieve Griffith Rhodes, and looked to her to pay it. The credit extended was extended to Mrs. Genevieve Griffith Rhodes in this case, and she has never paid me the money, and no one else has ever paid me that money. . . Mr. Joe Rhodes came to see me about getting the money, and I never talked with Mrs. Rhodes about it, but he was getting the money for her. She never came to see me about it at all. As a matter of fact, the thing that happened was: he came out to see me and told me he wanted to borrow this money, and I told him that I had the money and would lend it to him if he would get his wife to give me a note for it, and that was the understanding. I told him if he would get his wife to give him her note for the money I would let him have the money. He was going to use the money in his business, and his wife was connected with his business. I don’t know that he explained to me at the time that the money was to be used in his business; I don’t know as he did say anything about that, he only wanted to get the money. I told him if he would get his wife to give me her note for it, that I would let him have the money. Later he came back and brought the note himself, and he got the money, or the bond; you understand it was a Liberty bond. The bond was transferred to him, and later he said we were to get the bond back. He told me that later he would bring the bond back to me, and that was our understanding. This note I was taking was simply Mrs. Rhodes’ note as a guarantee that Mr. Rhodes would bring me back my bond that he had borrowed from me, and we did not want to sell the bond; we wanted to hold on to that, as we thought it was a good investment and we drew interest on it, and Mr. Rhodes said he would return the bond. Later on we had trouble with him or litigation about the bond, because he had put that bond with some of his creditors, and it is true that I brought suit against the creditor to recover the bond. It is true that I tried to get the bond back from Mr. Rhodes, and at the time I claimed I loaned the bond to him, and that he was to return it to me, and it was my bond, and in that suit I did succeed in getting $150, and that $150 was a credit on the bond, and I claimed that this debt was made to secure or .to cover the Liberty bond which Mr. Rhodes had borrowed from me, which he was to return to me. He has never given the bond back to me,. Mr. Joe Rhodes has never given the bond back to me. He is the man that got the bond from me. He is the man I looked to to send the bond back to me. He is the man I claimed got the bond from me at the time I brought this suit and the man paid back to me $150 on the bond suit. Mr. Beazley paid that to me. I succeeded in getting that on the claim that that bond belonged to me; that is the way Mr. Beazley got it. As I said, Mrs. Rhodes never talked with me about this matter at all; she never came to see us about it when Mr. Joe Rhodes got the bond. We knew that Joe’s business was in bad shape, and were not willing to let the bond go, without his wife gave us her note, and that is what we explained when he came to me, and he told me that he would have his wife give me her note if I would let him have the bond. . . In delivering this bond to Mr. Rhodes, I delivered it to him for his wife, because we were not willing to let him have the bond; we knew that his business was in bad shape, and we did not like to let him have it. He did not ask to borrow the money for himself in his own name. He had asked me before that to let him have the money on the bonds, and I had refused to let him have it; I did refuse to let him have it alone, but I was willing to let his wife have the bond. Of course, we did not object to Joe’s name being there, but we were not willing for Joe to have it without his wife. We did not object to his name being on the note. With reference to this note, it has been my note all the time since executed. I transferred this note to Mr. Chapman, as he thought he would take the business off of us; he felt like we ought not to lose it, and he thought, he would try and collect it for us. I own this note now. . . .1 told Mr. Mitchell that I let Mr. Rhodes have this bond for Mrs. Rhodes, because I reckon she was connected with the business in some way. When he got the bond, I did not know how it was to be used by Mr. Rhodes. Joe did not explain to us how it was to be used; he just wanted to get the money. I did not understand that he himself was to return that bond, because he did not say he would; he said it would be returned to me. As I have told you, we would not loan the bond to Mr. Rhodes just by himself. When I brought the suit to recover the bond, I think it was brought against the one that got the bond, but I don’t know as to that myself. When Mr. Rhodes came to me to get the money, I told him if he would get his wife to give me a note for it, I would let him have it; that was the understanding. As to who I mean when I said £I let her have it/ I mean I let Joe have the money because he came after it; of course, he was managing it for his wife.”

4. This was a suit upon a contract, and not an action for fraud. Whether the lender could be defrauded into believing that a married woman could enter into a contract of suretyship, the mere fact that the defendant wife, together with her husband, may have known at the time of the transaction that her promise as a surety was not binding would not operate to change the rule and to render her liable on • the contract where otherwise she was not. Hood v. Duren, 33 Ga. App. 203 (2) (125 S. E. 787); Parks v. Simpson, 124 Ga. 523 (2) (52 S. E. 616) ; Peacock v. Horne, 159 Ga. 707 (5) (126 S. E. 813).

5. These rulings being controlling, it is unnecessary to pass upon the special assignments of error. Liverpool &c. Ins. Co. v. Hughes, 145 Ga. 716 (4) (89 S. E. 817); Edmondson v. State, 18 Ga. App. 233 (89 S. E. 189).

Judgment reversed.

Jenleims, P. J., amd Stephens, J:, concur.

M. L. Felts, for plaintiff in error..

J. A. Mitchell, contra.


text:
    16196.
    Hudson v. Cohen.
    Decided May 19, 1925.
    Certiorari; from Fulton superior court—Judge Humphries. December 18, 1924.

      Sam. G. Crane, for plaintiff in error.

      Carl B. Copeland, contra.
   Bell, J.

The judgment of the municipal court of Atlanta in favor of the plaintiff in a suit on account was not to be treated as a nullity merely because it was rendered without first requiring the plaintiff to comply with a demand filed by the defendant for a bill of particulars. Civil Code (1910), § 5960; Hill v. Harris, 11 Ga. App. 358 (1) (75 S. E. 518); Hudson v. Cohen, 32 Ga. App. 299 (122 S. E. 718). The superior court did not err in dismissing the certiorari.

Judgment affirmed.

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


text:
    16204.
    Clay v. Dinkler.
    Decided May 19, 1925.
    Action for damages; from city court of Atlanta—Judge Eeid. December 6, 1924.

      T. J. Lewis, for plaintiff.

      Walter A. Sims, James' E. Berman, for defendant.
   Bell, J.

A judgment refusing a motion to set aside a judgment opening a default and allowing the defendant to plead is not a final judgment. It appears from the record that the ease is still pending • in the court below, and has never been tried. The bill of exceptions, not assigning error upon a final judgment, is prematurely brought, and this court is without jurisdiction to entertain it. Bell v. Stewart, 116 Ga. 714 (43 S. E. 70) ; Farmers & Merchants Bank v. Pirkle, 9 Ga. App. 583 (1) (71 S. E. 940) ; Williams v. Chambers, 31 Ga. App. 807 (122 S. E. 97).

Writ of error dismissed.

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


text:
    16213.
    Hogg v. Cole & Harris.
    Decided May 18, 1925.
    Certiorari; from Fulton superior court—Judge Humphries. December 12, 1924.
    Cole & Harris, a partnership, sued E. H. Hogg upon an Recount. On the trial J. C. Harris testified as follows: “I am a member of the-firm- of Cole & Harris at Sharpsburg, Ga. We operated a store at Sharpsburg and carried on a general merchandise business. Mr. E. H. Hogg owns a farm near Sharpsburg and runs it through Mr. A. L. Hudson, who is overseer of the, farm for Mr. Hogg. Mr. Hudson operates the farm and buys the supplies necessary to run it. We never sold Mr. Hogg any merchandise on a credit, and whenever Mr. Hudson bought supplies for Mr. Hogg’s farm he would always issue a draft to us drawn upon R. H. Hogg for the merchandise bought. Mr. Hogg was thoroughly familiar with this fact and knew that Mr. Hudson obtained supplies for Mr. Hogg’s farm in this manner. During the year 1921 Mr. A. L. Hudson purchased 25 bills of merchandise from our store, and issued to us, in payment for the same, 25 drafts drawn upon R. H. Hogg, all of which drafts were paid by R. H. Hogg. The amounts of these drafts varied from $6 on up to $275 each. These drafts were drawn at intervals of one to two weeks. The first draft was drawn on March 10, 1921, and the others were drawn subsequently, at intervals of one to two weeks. On August 12, 1921, A. L. Hudson bought a bill of merchandise at our store which amounted to $191.02, and issued us a draft for this amount, drawn upon R. H. Hogg. On October 1, 1921, A. L. Hudson bought merchandise from our store and gave us a draft for $17.50 in payment for same, drawn upon R. H. Hogg. This was in accordance with his usual custom of obtaining supplies for Mr. Hogg’s farm, of which Mr. Hudson was overseer. Mr. Hogg had never instructed us to discontinue furnishing supplies to Mr. Hudson, and had never instructed us to refuse to accept these drafts as payment for the supplies. Mr. Hogg has never paid us the amount of the draft drawn on August 12 and' the amount of the draft drawn on October 1, 1921, and still owes us for these items, which amounts to $208.52. These two drafts were issued by Mr. Hudson and accepted by us in the regular course of business and in accordance with the custom which had been observed by Mr. Hogg, Mr. Hudson, and ourselves during the entire year of 1921. All these purchases were made by Mr. Hudson for Mr. Hogg. The supplies were purchased for use upon Mr. Hogg’s farm.” There was no other evidence.
   Bell, J.

1. Where in a suit upon an account the plaintiff proved that the goods were in the nature of supplies purchased in behalf of the defendant by his overseer for use upon the defendant’s farm, and that during the same year, and previously to the particular transaction, the’ overseer purchased from the plaintiff numerous bills of merchandise under similar circumstances, all of which the defendant paid, and that the overseer’s authority to purchase the supplies had never been questioned, a finding in favor of the plaintiff was authorized. Spencer v. Lovejoy, 96 Ga. 657 (1) (23 S. E. 836, 51 Am. St. Rep. 152) ; Hopkins v. Armour, 8 Ga. App. 442 (69 S. E. 580) ; Germain Compamy v. Bank of Camden County, 14 Ga. App. 88 (1) (80 S. E. 302) ; Armour Fertilizer Works v. Abel, 15 Ga. App. 275 (82 S. E. 917) ; Martin v. Bridges, 18 Ga. App. 24 (2) (88 S. E. 747) ; Bacon v. Dannenberg Company, 24 Ga. App. 540 (4) (101 S. E. 699); Gay v. Virginia-Carolina Chemical Co., 32 Ga. App. 720 (124 S. E. 364).

2. The plaintiff was not in any viéw precluded from suing the defendant upon the account merely because it had been covered by a draft upon the defendant, drawn in the plaintiffs’ favor, by the overseer, which draft the defendant refused to pay. It appearing that the plaintiff received the draft merely in conformity with a custom which had been employed as a convenient method of demanding and receiving payment of the defendant, and the particular draft never having been paid, the status was not thereby changed.

3. This ease is distinguishable from Render v. Hill, 30 Ga. App. 239 (2) (117 S. E. 258), in which it was held that the fact that one is an overseer is not, without more, sufficient evidence of his implied authority to act as a purchasing agent for his employer, and in which it was further held that his authority as such purchasing agent could not be established by proof of a previous course of dealing between the plaintiff and other employees of the defendant who may have formerly occupied a similar position.

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

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.

Yerdict, and judgment were rendered for the plaintiff in the sum sued for, and the defendant carried the case to the superior court by certiorari, complaining that the verdict and judgment were unsupported by evidence and contrary to law. The certiorari was dismissed, and the defendant excepted.

McMreath & Scott, for plaintiff in error.

J. C. Davis, Horace Sandiford, contra.


text:
    16274.
    QUICK TIRE SERVICE INCORPORATED v. BALL.
    Where in an action for damages for personal injuries a verdict was found in favor of the plaintiff for $10,000, and the defendant made a motion for a new trial, one of the grounds of which was that the verdict was excessive, and the plaintiff’s counsel thereupon wrote off the sum of $2,500, and where the presiding judge refused the motion by a judgment from which it appeared that he did not approve the amount of the verdict as originally rendered, and that his refusal of the motion was influenced by the plaintiff’s act of remitting a part of the recovery, and error is duly assigned specially upon such judgment, this court, under repeated x-ulings, will reverse the judgment, it appearing from the order itself that the motion should have been granted.
    Decided May 19, 1925.
    Damages; from Eulton superior court—Judge Ellis. January 17, 1925.

      Underwood, Pomeroy & Haas, for plaintiff in error.

      Hewlett & Dennis, contra.
   Bell, J.

In this action for damages for personal injuries the jury returned a verdict for the plaintiff in the sum of $10,000. The defendant moved for a new trial upon various grounds, one of which was that the verdict was excessive. The plaintiff wrote off $2,500, and the court rendered the following judgment refusing the motion: “The motion for new trial and the amendment coming on to be heard in the above-stated ease, after argument and consideration the court does not believe that any material error was made in the trial of the case. The charge of the court appears to have been fair and full. The only question which did not fully meet the approval of the trial court was as to the amount of the verdict; and, the plaintiff having written off the sum of $2,500, this court is of the opinion that the evidence justifies a verdict of $7,500, and therefore the motion for new trial is overruled and a new trial denied.”

The defendant has excepted in the usual form to the refusal of the motion, and has assigned error specially on the judgment, upon the ground that the trial judge did not exercise the discretion vested in him by law, and did not unqualifiedly approve the verdict, and upon the further ground, among others, that the judgment overruling the motion shows upon its face that the court was dissatisfied with the verdict and that the refusal of the motion was influenced by tbe plaintiff’s act of writing off a part of the recovery.

The special assignments upon the judgment denying the motion are controlled, we think, by the decision of the Supreme Court in Seaboard Air-Line Railway v. Randolph, 129 Ga. 796 (59 S. E. 1110). It clearly appears, from the face of the judgment, that the trial judge did not approve the verdict, and. that the overruling of the motion was affected or influenced by the plaintiff’s remitting a part of the recovery. In an action of this sort the judge is without authority to determine that the verdict should not exceed a particular sum, and if the verdict is for an amount in excess of that which in the exercise of the discretion vested in him by law he is willing to approve, it is his duty to set it aside. This is but to repeat what has been held in a number of decisions. It affirmatively appears from the judgment before us that the motion for a new trial in this case should have been granted, and this court has no alternative except to reverse the judgment. See further, in this connection, Atlantic Coast Line R. Co. v. Williams, 21 Ga. App. 453 (1) (94 S. E. 584); Central of Georgia Ry. Co. v. Perkerson, 112 Ga. 923 (4) (38 S. E. 365, 53 L. R. A. 210) ; Lee v. Bagwell, 14 Ga. App. 699 (82 S. E. 49); Atlanta Gas Light Co. v. Sams, 29 Ga. App. 446 (4) (116 S. E. 21); Murphy v. Mitchell, 30 Ga. App. 736 (119 S. E. 424).

• The effect of the court’s judgment being virtually to sustain that ground of the motion for new trial complaining that the verdict was excessive, no decision by this court seems to be required as to whether it was excessive or not.

In one of the special grounds of the motion for a new trial complaint is made of the following excerpt from the charge of the court: “A pedestrian, when lawfully using the public highway, is not bound to be continually looking and listening to ascertain if trucks or cars are approaching, under the penalty that if he fails to do so and is injured he is presumed to be negligent.” It is alleged that this charge was error because it amounted to an expression of opinion by the court that the failure of a pedestrian to be continually looking and listening for trucks and cars would not constitute negligence. We do not think that this exception is well taken. We are not to be understood, however, as holding that the charge was properly given, although it appears to have been taken from the decision by this court in O’Dowd v. Newnham, 13 Ga. App. 220 (2) (80 S. E. 36), and is a correct statement of the law to the effect that such failure of watchfulness on the part of a pedestrian could not be held to be negligence as a matter of law. As an instruction it might possibly be calculated to mislead the jury into believing that the plaintiff could not, under such circumstances, be found to be negligent as a matter of fact. But whether under other assignments of error than the one made the excerpt should be held erroneous is a question not presented for decision. We make these observations merely in order to prevent any misapprehension that we approve the excerpt as proper.

There is no merit in the remaining grounds of the motion.

Judgment reversed.

Stephens, J., concurs. Jenkins, P. J., disqualified.


text:
    16273.
    Quick Tire Service Incorporated v. Ball.
    Decided May 19, 1925.
    Damages; from Fulton superior court—Judge Ellis. January 17, 1925.

      Underwood, Pomeroy & Haas, for plaintiff in error.

      Hewlett & Dennis, contra.
   Bell, J.

This case is controlled by the decision this day rendered in Quick Tire Service Inc. v. Ball (No. 16274), 34 Ga. App. 122 (128 S. E. 205).

Judgment reversed.

Stephens, J., eoneurs. Jenldns, P. J., disqualified.


author: Luke, J.

text:
    15420.
    Long v. The State.
    Decided June 9, 1925.
   Luke, J.

1. The court did not err in overruling the defendant’s special plea in abatement. Long v. State (No. 15421), 34 Ga. App. 125.

2. Under the particular facts of the case this court can not hold as a matter of law that the judge abused his discretion in denying the motion to declare a mistrial, based upon alleged improper remarks of the solicitor-general during the trial of the case.

3. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

Shooting at another; from Walton superior court—Judge Fort-son. January 26, 1924.

Orrin Roberts, II. H. Chandler, for plaintiff in error.

TF. 0. Dean, solicitor-general, contra.


author: Bloodwortii, J.

text:
    15421.
    Long v. The State.
    Decided June 9, 1925.
    Possessing intoxicating liquor; from Walton superior court-judge Fortson. January 26, 1924.

      H. II. Chandler, Orrin Roberts, for plaintiff in error.

      W. 0. Dean, solicitor-general, contra.
   Bloodwortii, J.

1. Under the act of July 28, 1921 (Ga. L. 1921, p. 135), the judge of Walton superior court was authorized to require the grand jury which was sworn, impaneled, and served at the August term, 1923, of that court to attend and serve at the November term, 1923, of the court; and the grand jury so serving at the latter term was a lawful grand jury, and indictments returned by them were hot void.

2. The said act, being a general law, modified, so far as jurors serving in Walton superior court were concerned, the provisions of section 824 of the Penal Code, which declares that grand juries serving at one term are ineligible to serve at the succeeding term.

3. The foregoing rulings of the Supreme Court, in answer to questions certified to it by this court, dispose of the issues raised by the pendente lite exceptions in this case. For the full opinion of the Supreme Court see 160 Ga. 292 (127 S. E. 842).

4. The motion for a new trial contains no special grounds, and the evidence amply supports the verdict of guilty.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Per Curiam.

text:
    16144.
    Southern Railway Company v. Meers.
    Decided June 9, 1925.
    Damages; from Whitfield superior court—Judge Tarver. December 13, 1924.
   Per Curiam.

None of the special grounds of the motion for a new trial shows reversible error. There is some evidence to support the verdict, which has the approval of the trial judge, and the judgment is

Affirmed.

Broyles, O. J., and Bloodworth, J., concur. Luke, J., dissents.

Application for certiorari was denied by the Supreme Court.

Maddox, Maddox & Mitchell, for plaintiff in error.

William E. & Gordon Mann', contra!


text:
    16176. 16177.
    COKER et al. v. SHELTON MILLS. WALTERS et al. v. SHELTON MILLS.
    An offer to sell goods may be so indefinite and so lacking in mutuality as not to be capable of enforcement, yet wliere, under the agreement to sell, goods are ordered and the order is accepted and the goods are shipped and received, liability may not' be escaped upon the ground that the contract was lacking in mutuality.
    Decided June 9, 1925.
    Complaint; from Muscogee superior court—Judge Munro. December 31, 1924.

      McGutchen, Bowden & Gaggstatter, for plaintiffs in error.

      Foley & Chappell, Brock, Sparks & Bussell, contra.
   Luke, J.

Both these cases-arise by reason of a suit to recover for an indebtedness alleged to have arisen by reason of a certain agreement and bond, such agreement .and bond being as follows: “This writing between Shelton Mills, of Chattanooga, Tennessee, of the first part, and' J. B. Walters, of Cordele, Georgia, of the second part, witnesses as follows: Said Shelton Mills is to, from time to time, ship to said J. B. Walters, at Cordele, Georgia, such amounts of' flour and mill products- as may be mutually agreed upon, said flour and mill products to be received by said Walters as the property of said Shelton Mills, and stored in a warehouse for said mills, at the expense of said Walters, and' there held on consignment, without expense to said Shelton Mills, until sold. Said J. B. Walters is to sell said flour and mill products for said Shelton Mills at such prices as he may think proper, but in no case less than the prices which shall be fixed and specified from time to time by said Shelton Mills. Said flour and mill products shall remain the property of said Shelton Mills until sold, and shall be sold only for cash, and the proceeds of sale shall be the property of-said mills to the extent of said prices from time to time fixed by said mills. Any amount received from the sales of any particular flour or other mill products in excess of the price fixed thereon by said Shelton Mills shall be retained by said Walters as his entire compensation for storing, insuring and selling the same. At the end of each week during the continuance of this contract said Walters shall make to said Shelton Mills an itemized statement of all sales made during the week, and shall remit to said mills with said statement all proceeds of sales retained as compensation, etc., being the amount in excess of the prices fixed upon said flour and mill products by said Shelton1 Mills as aforesaid. Said flour and mill products, as soon as received and placed in the warehouse to be furnished by said Walters, shall be insured by said Walters for and in the name of said Shelton Mills, and the policy, or policies, of insurance shall be promptly sent by said Walters to said Shelton Mills. It is also understood that said J. B. Walters may, from time to time, as agent for said Shelton Mills, malee sales of flour and other mill products to other dealers, and shall send in the orders from such dealers direct to said mills, the shipments to be made by said mills direct to purchasers, and the proceeds of such flour and mill products sold other dealers through the agency of said Walters shall be quoted from time to time in advance by said mills to said Walters, and upon collection of amounts by said mills due for produets sold to other dealers through the agency of said Walters, said mills shall remit to said Walters, as his commission, such amount as may be collected and received for said products in excess of the prices quoted thereon by said mills to said Walters.” “Enow all men by these presents: That we, J. B. Walters as principal, and F. M. Coker and J. N. King, as sureties, are hereby firmly held and bound to Shelton Mills in the sum of two thousand ($2,000.00) dollars; but this bond shall be void in the event said J. B. Walters shall faithfully account for and remit to said Shelton Mills all moneys derived from the proceeds of sales of flour and other mill products and going to said Shelton Mills under the terms of the foregoing and attached contract between said Shelton Mills and said Walters, under which flour and other mill-products are to be consigned by said Shelton Mills to said Walters and sold, and proceeds accounted for as provided in said contract.” . The petition alleged: that pursuant to the foregoing agreement and bond Shelton Mills shipped flour to Walters to the amount of $1,813.20; that the flour was shipped upon the order of Walters and accepted by him, and that he failed, as provided in the contract, to account for or pay for the same; and that neither Walters nor his bondsmen would account for the flour so shipped. General and special demurrers to the petition ivere urged, upon the ground that the agreement between Shelton Mills and J. B. Walters was lacking in mutuality, without consideration, void, unenforceable, and unilateral, and that for these reasons the bond referred to in the petition is unenforceable. The sole exception to be considered is to the judgment overruling the demurrers of the defendants. “It is well settled that a promise, although a nudum pactum when made, because the promisee is not bound, may become binding, when he subsequently furnishes the consideration by doing that which he was expected to do.” Peeples v. Citizens &c. Insurance Co., 11 Ga. App. 177 (74 S. E. 1034), and cases cited. Even though the contract sued upon in this case be lacking in mutuality, it is pleaded that the plaintiff supplied the consideration and the obligee accepted the consideration. Though it be conceded that the agreement was lacking in mutuality and was in the beginning a naked promise, yet when under its terms the obligee ordered the goods referred to in the agreement and the obligor complied by a shipment, the contract become binding and enforceable. The promisor did that which he promised to do and he performed his part of the contract upon the order of the promisee. It is not necessary that each promise should be absolute, so that either party could enforce it against the other; for a promise .conditional, on the doing of some act may be rendered binding by the act, while it may give no right to compel the doing of it. Story on Contracts, § 569. Neither in good conscience nor in law can the obligees herein sued escape liability when the obligor has complied with his promise.

Judgment affirmed in loth cases.

Broyles, C. J., and Blood-worth, J., concur.


author: Bkoyx.es, C. J.

text:
    16380.
    Belcher v. The State.
    Decided June 9, 1925.
   Bkoyx.es, C. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a. new trial shows cause for another hearing of the case.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Indictment for assault with intent to murder; from Thomas superior court—Judge W. E. Thomas. January 26, 1925.

James B. Burch, for plaintiff in error.

Clifford E. Hay, solicitor-general, contra.