text:
    15859.
    Wesley v. Lewis Brothers.
    Decided April 18, 1925.
    Complaint; from Fayette superior court—Judge Searcy. July 11, 1924.
    In the judgment refusing a new trial the judge of the superior court said: “This is an action on account, which originated in the justice court. The court below rendered a judgment for the plaintiff. From this judgment the defendant Wesley (none of the other defendants having been served they did not appear) filed his appeal to this court. This appeal came for trial during the March term of court, and a verdict was returned by the jury in favor of plaintiff and against defendant Wesley. Being dissatisfied with this verdict, Wesley duly made a motion for new trial, which was later by him amended, and this motion as amended, after continuances, was regularly heard and submitted and by me taken under advisement. After consideration of the record and proof submitted, I reach the following conclusion: The case on its trial in this court presented for decision by the jury issues of fact sharply in dispute between the parties, and, although the jury might have [rendered] a verdict in favor of either which would have been supported by some evidence, they settled these issues in favor of the plaintiff by their verdict. There is abundant evidence to sustain this verdict, and, there being no error of law complained of, the general grounds of the motion are without merit.
   Jenkins, P. J.

1. The evidence, though in sharp conflict, fully authorized the finding that the plaintiff in error, who was one • of- the defendants in the court below, became responsible with the other defendants, to whom the goods were furnished, for the payment of the account sued on.

2. A surety may be sued separately from his principal. Civil Code (1910), § 3559; Amos v. Continental Trust Co., 22 Ca. App. 348 (2) (95 S. E. 1025). See also Cooper v. Cochran Cotton Mills, 30 Ca. App. 343 (118 S. E. 68); Draper, Moore & Co. v. Macon Dry Goods Co., 103 Ga. 661, 663 (30 S. E. 566). Accordingly, the fact that service was not perfected upon the principal debtor to whom the goods were furnished would not affect the validity of the judgment properly obtained against the surety.

3. The granting of new trials on newly discovered evidence is not favored by the courts. Relief can be properly granted upon such an extraordinary ground of a motion for new trial only where it is made to appear that ordinary diligence could not have discovered and produced the evidence thus offered, and it must appear that the witness is fully accredited in the manner provided by law, and that the newly discovered testimony as set forth in the motion is material and relates to a new, specific, and substantive fact, not merely cumulative, or impeaching in its nature, such as should and probably would change the result of the former verdict. Such an extraordinary ground of a motion is addressed to the sound legal discretion of the court; and where the newly discovered testimony is met by a counter-showing, the judge has a broad discretion as trior, and his judgment will not be controlled unless it has manifestly been abused. Cohen Co. v. Brown, 21 Ca. App. 668 (1) (94 S. E. 811); Wright v. State, 18 Ga. App. 705 (90 S. E. 285); Hayes v. State, 16 Ga. App. 334 (85 S. E. 253). In the instant case, assuming that the motion might otherwise have been sufficient to meet the requirements of law, it is nevertheless true that, in view of the strong counter-showing which was made, this court would be unauthorized to say, as a matter of law, that on another trial the newly discovered evidence should and. probably would change the result, and that the trial judge abused his discretion in overruling the motion.

Judgment affirmed.

Stephens and Bell, JJ., concur.

“By his amended motion the defendant Wesley seeks a new trial because of certain alleged newly discovered evidence. Assuming, for the purpose of this inquiry, that this evidence is newly discovered and material, and that movant’s showing measures fully up to the rulé in reference thereto, and so treating it, and after repelling the evidence objected to by movant which is irrelevant and illegal, it seems certain to me that another trial of this case, with the legal evidence submitted on this hearing all going to the jury, would not likely result in a different verdict. The witnesses for movant, purposing to testify to the newly discovered facts, are impeached both by proof of general bad character and contradictory statements which would render their evidence of little, if any, probative value.

“Having reached this conclusion, it follows that the motion for new trial is overruled.”

W. B. Soiling sivorih, for plaintiff in error.

Culpepper & Murphy, contra.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    15865.
    Levy v. McPhail.
   Jenkins, P. J.

1. While the contract of an infant is declared by the code to be “void except for necessaries,” it is well settled that such a contract is not void, but voidable, at the election of the infant after arriving at full age. The exemption of the infant is a personal privilege, and his contract is subject to ratification by his retention or enjoyment, after attaining majority, of the consideration received. Civil

Code (1910), §§ 4233, 4234; Hood v. Duren, 33 Ga. App. 203 (125 S. E. 787 (1)). But the infant need, not wait until majority, for, whatever may be the true rule with respect to realty, “ail contracts of an infant in relation to personal property (not excepted by statute), whether executory or executed, may be disaffirmed by the infant during his minority, and, for the purpose of enforcing such disaffirmance, the infant can bring suit in law, or equity, by guardian or next friend.” Gonackey v. General Accident Assurance Corporation, 6 Ga. App. 381 (1), 383 (125 S. E. 787); Harris v. Cannon, 6 Ga. 382 (1), 387 (2). In the instant case no question appears to have been raised in the courts below as to the right of the alleged infant to maintain in his own name the cross-action or plea of recoupment, and in any event the prosecution of a suit by an infant without a guardian or next friend is “not void,” but- a “defect” which is amendable before verdict and is cured by verdict. Civil Code (1910), § 5524.

2. In this action upon a promissory note given for the purchase of a phonograph, and cross-action or plea of recoupment by the defendant while an infant to recover monies paid thereon, assuming but not deciding that the statutory rule as to disaffirmances of contracts after majority, requiring restitution or a tender of the property shown to be still in possession of the infant, applies as well to disaffirmances made during minority (see Civil Code, § 4233; Shufford v. Alexander, 74 Ga. 293 (2), 295; So. Cotton Oil Co. v. Dukes, 121 Ga. 787-8, 793 (49 S. E. 788); Strain v. Wright, 7 Ga. 568, 572; Harris v. Cannon, 6 Ga. 382, 384, 387; Harris v. Collins, 75 Ga. 97 [2], 106; Thomason v. Phillips, 73 Ga. 140 (a); Richards v. East Tenn. &c. Ry. Co., 106 Ga. 614, 652 (33 S. E. 193, 45 L. R. A. 712); White v. Sikes, 129 Ga. 508 (2 b), 511 (59 S. E. 228, 121 Am. St. Rep. 228); Wickham v. Torley, 136 Ga. 594 (3), 599 (71 S. E. 881, 36 L. R. A. (N. S.) 57); Gonackey v. General Accident Assurance Corp., supra; Hughes v. Murphy, 5 Ga. App. 328, 331 (63 S. E. 231); Bell v. Swainsboro Fertilizer. Co., 12 Ga. App. 81 (76 S. E. 756); Clyde v. Steger Mfg. Co., 22 Ga. App. 192 (95 S. E. 434); 14 R. C. L. 238, 239; 33 Am. Dec. 184, notes), since it appears in the instant case that the defendant not only in his plea “repudiates said transaction, and tenders back said phonograph,” but in open court stated under oath, “the phonograph is at my room, [the plaintiff] can get it when he wants it,” such a tender was sufficient, and it was unnecessary to show that it was continuing or that the object was produced in court or ready to be so produced, as in cases of tender of payment of a debt. 31 Corpus Juris, 1074; 38 Cyc. 134-136. See, as to tenders of payment, Ragan v. Newton, 27 Ga. App. 534 (2) (109 S. E. 412); Jones v. Peacock, 29 Ga. App. 240 (114 S. E. 646).

3. “When the final determination of a case tried in a justice’s court, and carried by certiorari to the superior court, does not depend upon any controlling question of law, and there are issues of fact involved, the superior court has no authority to render a final judgment therein, although it may clearly appear that the verdict rendered in the lower court was without evidence to support it. . . This is true though a former certiorari in the same case, complaining of a similar verdict, may have been sustained. When it is proper so to do, the superior court may r'emand the case to tlie justice’s court with instruction” as to the direction to be given on a retrial if the evidence shall be the same or the particular deficiencies therein shall not be supplied. Patterson v. Central So. Ry. Co., 117 Ga. 827 (45 S. E. 250); Civil Code (1910), § 5201; Joseph v. Continental Jersey Works, 92 Ga. 542 (17 S. E. 923); Baker v. Kendrick, 9 Ga. App. 382 (17 S. E. 923); Fain v. Pilcher, 31 Ga. App. 115 (120 S. E. 27). The same rules apply to certiorari from municipal courts. It was for this reason error for the superior court to enter a final judgment against the plaintiff; and upon this ground alone the judgment must be reversed.

Decided April 18, 1925.

Certiorari; from Bibb superior court—Judge Mathews. July 25, 1924.

B. Q. PlunheU, for plaintiff in error.

PL. F. Stroheclcer, contra.

Judgment reversed.

Slep>hens and Bell, JJ., eoncw.


text:
    15872.
    Calhoun, administrator, v. State of Georgia.
   Jenkins, P. J.

1. “The proceeding authorized by section 20 of the act” providing for the condemnation of vehicles and conveyances used in the illegal transportation of intoxicating liquor (Act 1917, Ex. Sess., pp. 7, 16; Park’s Ann. Code Supp., § 448 (oooo)), “is one in rem, ‘against the offending thing, and not against the offending owner,’ ” and consequently survives the death of the owner, the right of the State to condemn in such a case being superior to the right of a personal representative of the deceased. Mack v. Westbrook, 148 Ga. 690 (2) (98 S. E. 339); Harwood v. State, 29 Ga. App. 464, 465 (116 S. E. 211):

2. The act in question provides that “the solicitor of the county, city, or superior court, having jurisdiction” shall, within “ten days from the time he receives” notice from the officer seizing the property, “institute condemnation proceedings,” and that a copy of the petition shall be “served upon the owner or lessee if known, and if the owner oi- lessee is unknown, notice of such proceedings shall be published once a week for two weeks in the newspaper in which the sheriff’s advertisements are published.” The act further provides, that, “if no defense is filed within thirty days from the filing of the petition, judgment by default shall be entered by the court at chambers, otherwise the ease shall proceed as other civil cases in said court.” The latter provision does not, however, render the proceeding invalid where such service is ' not perfected within thirty days from the- filing of the condemnation proceeding, but its effect is only to empower the State, after such service, to take a default judgment; and where the service has not been made within such time, the case should proceed, and service in the manner provided should be perfected, as in other civil cases. See Fletcher v. State, 24 Ga. App. 266 (100 S. E. 718); Griffin v. Smith, 23 Ga. App. 750 (99 S. E. 386). Where, therefore, as in the instant case, the owner driving the car was killed at the time of seizure, and a proper petition for condemnation was filed in due time, and the State did not attempt to take a default judgment, or to proceed otherwise in the action until personal service had been perfected upon the administrator of the estate, the subsequent trial was not invalid because the State had not previously attempted service upon other possible known or unknown owners pending the vesting of title in the administrator. See also Lummus v. Hopkins, 31 Ga. App. 274, 275 (120 S. E. 546).

Decided April 18, 1925.

Confiscation; from city court of Savannah—Judge Freeman. July 18, 1924.

Robert L. Golding, for plaintiff in error.

Walter G. Hartridge, solicitor-general, contra.

3. The trial court did not err, under the agreed facts, in entering a judgment of condemnation against the property.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    15882.
    MORRIS et al. v. SCOTT.
    Where the plaintiff in an execution transferred it to another, who placed it in the hands of the sheriff for levy, and the defendant, without suffering- a levy and sale by the sheriff for the purpose of making the money, paid that officer the amount of the ff. fa. voluntarily and with knowledge that in doing- so he was responding to the asserted claim of the transferee, he was not entitled thereafter to have the fund ajiplied to the payment of an execution purchased by him, against the original plaintiff in the execution so paid. After such voluntary pay- ■ ment any right he might have had to offset the judgments on which the ff. fas. issued no longer existed. Where the defendant, on making such payment, deposited with the sheriff the ii. fa. held by him against the plaintiff, with a demand for the money, the court, upon a money-rule, properly awarded the fund to the transferee at whose instance it had been collected.
    Decided April 18, 1925.
    Money rule; from DeKalb superior court—Judge Hutcheson. July 12, 1924.

      Parher & Patterson, for plaintiffs in error.

      McJElreath & Scott, contra.
   Bell, J.

John I. Miller procured a judgment against W. R. and T. J. Lightfoot as principals and L. M. Morris as surety. An execution ivas issued thereon and was transferred to Thomas H. Scott, Miller’s attorney, for no other consideration than professional services rendered in the case in -which the judgment was obtained. Scott placed the .execution in the hands of the sheriff for levy. Morris, with knowledge that the execution had been transferred to Scott, voluntarily paid the same, and simultaneously deposited with the sheriff two executions which he, Morris, had purchased and which had been transferred to him, against Miller, requesting that the fund should not be paid over to Scott until these fi. fas. had been satisfied. Scott obtained a rule against the sheriff for the money paid by Morris, and, the above facts appearing upon the hearing, the fund was awarded by the court to Scott; and Morris excepted. In the view which we take of the case it is immaterial to give the dates of the judgments, executions, and transfers, or the dates of the record of the executions and transfers.

It is insisted by Morris, the plaintiff in error, that as the transferee of the fi. fas. against Miller, considering with the other facts the dates of the several transactions and of the record, he was entitled to offset the judgments upon which the same were issued, against .the judgment which Miller had obtained against him and the Lightfoots. It is contended that Scott as the transferee of the judgment last mentioned held the same subject to all equities or defenses which he, Morris, might have against Miller, including the right of offset, especially since Scott was Miller’s attorney and acquired the transfer for no other consideration than legal services rendered in the particular case in which the judgment in favor of Miller was obtained. See Langston v. Roby, 68 Ga. 406; Smith v. Evans, 110 Ga. 536 (35 S. E. 633); Hargett v. McCadden, 107 Ga. 773 (33 S. E. 666); Watters v. Wells, 7 Ga. App. 778 (68 S. E. 450). These cases are relied upon by the plaintiff in error to sustain his right; and, as authority for the practice pursued, Wellborn v. Bonner, 9 Ga. 82, is cited.

After a careful examination of the authorities cited and a serious consideration of the points insisted upon, we have concluded that the position taken by the plaintiff in error is not sustainable, not because the legal propositions advanced may not be sound, but because in our opinion, assuming them sound, the case does not warrant their application. Morris voluntarily paid the judgment against him. How was he then in position to offset other judgments against it ? So far as he was concerned it was satisfied. He, being a surety, had the right, of course, to control it as against his principals, but he could not both pay and offset. The very purpose of an offset is to avoid an actual payment in cash. The case is controlled in principle, we think, by the decision of the Supreme Court in Carhart v. Grier, 56 Ga. 384, wherein it was ruled: “Where property offered for sale by the sheriff was withdrawn on the promise of the defendant that he would pay off the execution levied thereon, and this payment was in fact made, the money in the hands of the sheriff is not subject to an older execution against such defendant." In the opinion in that case it was said: “The money in the sheriff’s hands was not raised by the sale of the defendant’s property, but was a voluntary payment by the defendant of the Grier fi. fa., which he had the right to do, and it was the duty of the sheriff to have entered that payment on that fi. fa. in satisfaction thereof, there being no other fi. fa. in bis hands at that time. Grier became entitled to the money when it was voluntarily paid by the defendant in satisfaction of his fi. fa., and the fact that an older fi. fa. against the defendant was after-wards placed in the sheriff’s hands did not deprive Grier of his right to the money which the defendant had voluntarily paid in satisfaction of his fi. fa. If the money in the hands of the sheriff had been raised by a sale of the defendant’s property that would have presented a different question. There is nothing to prevent the plaintiffs in the older fi. fa. from levying it on the defendant’s property and making their money, so far as the record shows."

It would seem that if the sheriff, having received money by a voluntary payment by a defendant in fi. fa., would be unauthorized to pay it over to older fi. fas. against the same defendant, he would not be warranted in paying it to fi. fas. against the plaintiff whose execution had thus been paid, in order that the defendant, the parly making the payment, might be enabled to offset against the plaintiff’s judgment those upon which were issued the fi. fas. controlled by the defendant. In the reasoning in Wellborn v. Bonner, supra, it was suggested that a defendant in a judgment, out of whom the sheriff had made the money to satisfy the judgment, might obtain an application of the money to a judgment which he himself had against the plaintiff in the judgment upon which the sheriff had made the collection. However, what was said in that case was in reference to a mere possibility, and not to the existing, known facts, of a particular ease; and in view of the decision in the Carhart case, it is fair to suppose that in the Wellborn case the court had in mind not a voluntary payment by a defendant desiring an offset, but the actual making of the money by the sheriff through a levy and sale.

Morris knew that the execution against him in favor of Miller had been transferred to Scott, and that Scott had placed the execution in the hands of the sheriff for the purpose of levy. He knew that he was responding to the asserted claim of Scott when he made the payment. Under the circumstances the payment was voluntary, and not recoverable. The simultaneous deposit of the fi. fas. which he held against Miller did not amount to more than a protest, and “filing a protest at the time of payment does not change the rule.” Civil Code (1910), § 4317. Strange v. Franklin, 126 Ga. 715 (55 S. E. 943). If the money in the hands of the sheriff had been raised by a sale of Morris’s property, he would probably have been in a position to proceed in the manner suggested in Wellborn v. Bonner, supra. See also Columbus Factory v. Herndon, 54 Ga. 209, 211. But as it is, he is in no better position than if he had paid the money directly to Scott.

There is perhaps another reason why the court was right in refusing the offset. The code seems to make no provision for the offset of fi. fas., but where the defendant in one of them is insolvent, an offset will be allowed'in equity at the instance of the other (Lucas v. Wilson, 67 Ga. 356 (2)); and money rules, of course, are adjudicated upon equitable principles. Morris, without showing the'transfer of any judgment, relies solely upon the assignment of fi. fas. It was said in Bryant v. Hambrick, 9 Ga. 133 (2) : “The judgment, and not the execution issuing thereon, is the proper subject-matter of set-off.” We are uncertain, however, as to the applicability of the ruling in the Bryant case to the present situation, and we place our affirmance upon the other grounds stated.

Whatever remedy the plaintiff in error might have had or may yet have against Miller, we think that when he made a voluntary payment of the fi. fa. under which Scott was claiming he placed the fund beyond his reach, and that there was nothing to adjudicate in his favor upon a money rule.

Judgment affirmed.

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


text:
    15883.
    Swanson, agent, etc., v. Mobley, agent, etc.
    Decided April 17, 1925.
    Eviction; from Campbell superior court—Judge Hutcheson. December 15, 1923.
    IF. B. Sutiles, for plaintiff in error.

      J. II. Longino, contra.
   Jenkins, P. J.

1. “Generally, parol negotiations and stipulations preceding- tlie making of a written contract are merged in the writing. If the writing is ambiguous, it may be'explained by parol evidence, and even when not so, the admission of such parol evidence without objection affords no cause for a new trial.” Wheelwright v. Aiken, 92 Ga. 394 (3) (17 S. E. 610); Rome Hotel Co. v. Warlick, 87 Ga. 34 (2), 42 (13 S. E. 116); Goodwyn v. Goodwyn, 20 Ga. 600 (10); Supreme Lodge v. Gardner, 19 Ga. App. 58 (4), 59 (90 S. E. 986); Bugg v. State, 17 Ga. App. 211 (3) (86 S. E. 405).

2. In the instant ease, in which a verdict for the plaintiff was rendered in a dispossessory proceeding, the motion for a new trial is limited to the general grounds. The evidence, admitted without objection, authorized a finding that the defendant had failed to pay the money rent and keep the property insured, as required by the terms of the oral agreement, and had also failed to keep the premises in repair, as required by the terms of the written lease. The verdict for the plaintiff being thus authorized by the evidence, admitted without objection, the question as to error in the admission of such parol testimony, suggested only in the brief of the defendant’s counsel, can not be considered.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15890.
    Stein v. Lazarus et al. Lazarus et al. v. Stein.
    15893.
   Jenkins, P. J.

The action was in two counts,— (1) for general damages on account of an alleged libel, and (2) for damages on account of alleged fraud and deceit. The judge in one order overruled the general demurrer to the first count, and the special demurrer as to designated paragraphs thereof, but sustained the special demurrer as to other parts of that count. He sustained the general demurrer to the second count and dismissed it. The plaintiff sued out a bill of exceptions to the rulings adverse to himself, and several days later the defendants sued out and filed in the court below a bill of exceptions (not as a cross-bill but as an independent bill of exceptions) complaining of the rulings adverse to themselves. The defendants move to dismiss the bill of exceptions of the plaintiff, upon the ground that his writ of error is premature, there being no final judgment from which a writ of error at his instance will lie. Held:

1. The judgment having sustained the defendants’ general demurrer to tlxe second count and dismissed that count, hut having overruled the general demurrer to the first count, if a judgment as to the first count “had been rendered as claimed by” them (Civil Code of 1910, § 6138), it “would have been a final disposition of the cause,” and therefore their bill of exceptions was proper. As to the plaintiff’s bill of exceptions, however, since the judgment on the general and special demurrer to the' first count was not, as to him, a final disposition of the ease, and since a judgment in accordance with his contentions would not have been a final disposition of the ease, but the cause still remained pending on the first count, notwithstanding the dismissal of the second, his direct bill of exceptions (which might have been proper as a cross-bill had it been subsequent to and based on the direct bill of the defendants) was premature, and the motion to dismiss the same must be sustained. Civil Code (1910), §§ 6138, 6139, 6148; Southern Flour & Grain Co. v. Levy Rice Milling Co., 22 Ga. App. 554 (96 S. E. 593); Carhart v. Mackle, 22 Ga. App. 520 (96 S. E. 591). See also Berryman v. Haden, 112 Ga. 752 (2) (38 S. E. 53); Thomasville Iron Works v. Clark, 16 Ga. App. 537 (85 S. E. 674); Ogletree v. Ogletree, 127 Ga. 232 (1), 236 (55 S. E. 954); Funk v. Browne, 145 Ga. 829 (6) (90 S. E. 40). Leave, however, is granted to the plaintiff to treat the official copy of his bill of exceptions filed in the court below as exceptions pendente lite.

2. “While language used in a. publication charging the plaintiff with being insolvent, and that he is in pecuniary difficulties and forced to retire from business at the instance of defendant as a creditor of plaintiff, was not of such character as to authorize the court to instruct the jury as a matter of law that it was libelous, yet it would be proper to submit to the jury as a question of fact, under appropriate instructions, in case the evidence should authorize it, whether the language referred to was libelous or not. . . If the language is libelous per so and the jury should so find under proper instructions from the court, the plaintiff would be entitled to recover general damages, without proof of special damages. The plaintiff would not be entitled, without showing that he was in business at the time of the libelous publication, to recover general damages because of such publication, unless the matter of publication was libelous per se.” Weatherholt v. Howard, 143 Ga. 41 (3, 4, 5) (84 S. E. 119); Civil Code (1910), §§ 4428, 4433. Thus, where, as in the instant case, if appears, according to the averments of the petition, that the defendants mailed to the creditors of the plaintiff (some sixteen in number in the State of his residence and elsewhere) a letter containing the false statements that the plaintiff “hasn’t very much merchandise and has become dissatisfied to stay in • [the town of his residence], as he had some little trouble and got frightened to remain there,” and saying . to each, “if you will allow me 20 per cent, to save myself and you, I will send you a check,”—to the injury and damage not only of the business of the plaintiff, but of his “reputation,”—and the petition alleged that the reports related not only to the “financial standing,” but also to the “good name, character, and intent of the plaintiff with respect to his dealings in the business world,” whereas in fact he had ample assets to pay his creditors, and had contracted with" the defendants, in selling- out to them his business, that they should pay such creditors in full from a "part of the purchase price, this, count set forth a cause of action good as against general demurrer, -notwithstanding it claimed only general damages. Therefore, after striking from the petition, on special demurrer, averments relating "exclusively to damages to the business of the plaintiff and to the loss of money and credit he claims to have sustained (only general damages being prayed for), while the facts alleged in the petition show on their face that the plaintiff was not in business at the time of the publication,” the judge did not err in further ruling that the first count sued “for injury to the good name, reputation, and character of the plaintiff resulting from the publication by defendants of the alleged libelous matter,” and that “the question of whether or not the publication was in fact libelous” should be “left to the jury.” See Dun v. Weintraub, 111 Ga. 416 (2), 419; Witham v. Atlanta Journal, 124 Ga. 688, 691, 692; Johnson v. Bradstreet Co., 77 Ga. 172 (b), 175; Holmes v. Clisby, 118 Ga. 820, 822; Flanders v. Daley, 120 Ga. 885 (2), 887 (2), 124 Ga. 714, 717; Tillman v. Willis, 61 Ga. 434-436; Spence v. Johnson, 142 Ga. 267 (2), 269 (2), 270; Allanta Post Co. v. McHenry, 26 Ga. App. 341, 344; 17 R. C. L. 294-299.

Decided April 18, 1925.

Action of libel; from citj' court of Valdosta—Judge Little. August 9, 1924.

B. 0. Dickerson Jr., Hendricks & Hendricks, for plaintiff.

E. K. Wilcox, for defendants.

3. The court properly overruled the special grounds of demurrer to certain paragraphs in the first count, containing the allegations relating to general damages, referred to in his judgment and in the preceding paragraphs of this syllabus.

Writ of error in No. 15890 dismissed; judgment affirmed in No. 15898.

Stephens and Bell, JJ., concur.


text:
    15896.
    Cheshire v. Hightower.
   Jenkins, P. J.

1. “The form of the contract is immaterial, provided the fact of suretyship exists.” Civil Code (1910), §§ 3541, 3556. Thus, one who signs a note with another apparently as a joint principal may in an action by the payee plead and prove that he had no interest in the paper and was only surety for the accommodation of the other and principal signer, and that the plaintiff took the note with knowledge of such facts. Seymour v. Bank of Thomasville, 157 Ga. 99 (1) (121 S. E. 578); Hall v. Capital Bank of Macon, 71 Ga. 715; Buck v. Bank of State of Ga., 104 Ga. 660, 663 (30 S. E. 872); Hall v. Rogers, 114 Ga. 357 (1) (40 S. E. 250); Trammell v. Swift Fertilizer Works, 121 Ga. 778 (1) (49 S. E. 739); Williams v. Peoples Bank, 9 Ga. App. 714 (72 S. E. 177); McKibben v. Fourth Nat. Bank, 32 Ga. App. 222, 223 (122 S. E. 891); McKibben v. Luther Williams Bkg. Co., 32 Ga. App. 419, 425 (123 S. E. 726); Kenimer v. Henderson, 32 Ga, App. 203 (122 S. E. 820). Under such circumstances tire fact that the payee of the note might have been induced to make the loan on the faith of the surety’s credit, rather than upon that of the principal debtor, would not alter the rule. Cordray v. James, 19 Ga. App. 156 (1, 2) (91 S. E. 239).

Decided April 18, 1925.

Complaint; from city court of Blakely—Judge Gray. August 19, 1924.

Lowrey Slone, for plaintiff in error.

Glessner & Collins, contra.

2. “Where a note of the character mentioned in the first division is executed, and a contemporaneous mortgage is given by the principal to secure the indebtedness represented by the note, it is the duty of the payee to record the mortgage. Failure to record the mortgage will increase the risk of the surety and operate to discharge him, unless it is affirmatively shown that the omission to record the mortgage did not injure the surety.” Seymour v. Bank of Thomasville, 157 Ga. 99 (4) (121 S. E. 578); Cloud v. Scarborough, 3 Ga. App. 7 (3) (59 S. E. 202); Cordele Grocery Co. v. Thigpen, 4 Ga. App. 643 (62 S. E. 97).

3. But where it appears that, more than two yeax-s after the maturity of the note, the defendant surety, at his own request, was substituted for the original surety, under an agreemeiit whereby he was to “sign the note in [the original surety’s] place,” and where it appears that the mortgage given at the time the note was originally executed had been withheld from record with the knowledge and consent of the original surety, the substituted surety is not entitled to claim a discharge by reason of the mortgagee’s failure to x-ecord, on. the theox-y that it increased the risk, since the giving of the mortgage was .not “contemporaneous” or “simultaneous” with the assumption of liability by the new surety, and, in the absence of any fraud or deceit on the part of the plaintiff payee and mortgagee, such surety in signing the mortgage note at the instigation and for the benefit of the original surety is conclusively presumed to have been aware of the fact that it had thus remained unrecorded, and therefore could not be taken to have signed it because of the perfected lien created by the mox-tgage; and, under such circumstances, his offer to sign “in the place of” tlxe original surety must be taken as an offer to assume liability on the instrument as it in fact existed. The judge did not err in directixxg a verdict in favor of the plaintiff and against the defendant’s plea of discharge.

Judgment affirmed.

Stephens and Bell, JJ:, concur.


text:
    15899.
    PARKER MOTOR COMPANY v. SPIEGAL.
    Tlie motor company was a bailee for lure as to tlie automobile in question, when the ear was in its custody for repairs, under the contract of sale to the plaintiff, in ■which the company agreed to make adjustments and repairs of the car during a stated period.
    The case laid in the petition, in which the negligence alleged was the defendant’s failure to protect the car by preventing its being taken away at night, was made out by the evidence, from which it appeared that the car was taken- from the defendant’s storage-room at night by the defendant’s service manager, whom the defendant permitted to use the cars entrusted to its custody, and who, after taking out this ear, wrecked the car by driving it against a telegraph pole.
    Decided April 18, 1925.
    Action for damages; from Eulton superior court—Judge Humphries! July 22, 1924.

      Smith, Hammond & Smith, for plaintiff in error.

      Spalding, MacDougald & Sibley, Estes Doremus, contra.
   Jenkins, P. J.

Spiegal sued Parker Motor Company for damages, alleging that on April 29, 1921, he purchased from defendant a Marmon automobile for the.sum of $5,400, and that, as a part of the contract of purchase, the defendant company agreed to give service thereon for the term of three months thereafter, “replacing any defective material and making any adjustments and repairs during said periodthat the automobile was delivered to the defendant under the terms of the said sale agreement, for the purpose of making certain repairs and adjustments thereon; that while in the defendant’s custody as aforesaid tlie car was taken from its storage-room on the night of July 12, 1921, and driven against a telegraph pole and utterly demolished, so as to render it worthless as an automobile and leave it with a junk value of about $500; that the wrecking of the car was brought about by the negligence of the defendant in protecting and caring for the same; and the .defendant was negligent in not keeping the car securely locked up at night and where it could not be taken from the premises. On the trial, the plaintiff showed, that, under the direction of the president of the defendant company, he had taken up the matter of adjustment and repairs on the car with W. E. White, who was service manager and in charge of the service and repair department, and that the car was delivered to White personally, and he carried it to the company storage-room. It also developed on the trial, from testimony offered by the defendant, that the car was taken out by White himself, who, while driving it on the night of July 12th, wrecked it by driving it into a telegraph pole on Peachtree road. White, testifying for the defendant, swore, without being contradicted, that as such service manager he was authorized and empowered to take out and use this car or any other ear in the defendant’s custody. The jury found for the plaintiff: in the sum of $4,560. The contentions of defendants are, that (1) it never became a bailee, either gratuitous or for hire; (2) if it was a bailee at all, it was a gratuitous bailee; (3) if it was a bailee, either gratuitous or for hire, the undisputed evidence rebuts the presumption of negligence raised against it, and therefore the recovery in the lower court in favor of the plaintiff is contrary to law and contrary to the evidence; (4) that the court erred in submitting the case to a jury at all, and especially erred in so submitting it without confining the jury’s deliberations on the questions of negligence to the specifications of negligence set forth in plaintiff’s petition.

1. “A contract founded upon a consideration, whereby goods are intrusted to another for the execution of a special purpose, after which they are to be returned to the one making the delivery, constitutes the person receiving them a bailee for hire.” Fain v. Wilkerson, 22 Ga. App. 193 (1) (95 S. E. 752). The evidence abundantly authorized, if indeed it did not demand, a finding that the car was delivered and intrusted to the defendant company under the terms of its agreement, rather than to its service manager as an individual.

2. “When a transaction partakes of the nature both of a tort and a contract, the party complaining may waive the one and rely upon the other.” Civil Code (1910), § 4407. Thus, where the contractual relation of bailor and bailee exists between parties, whereby a duty is imposed by law upon the bailee as being incident to and arising out of the contract of bailment, the complainant setting up a breach of the duty may elect as to his remedy, and rely upon either his right under the contract or proceed for damages as in a case of tort. Fain v. Wilkerson, supra; Miller v. Ben H. Fletcher Co., 142 Ga. 668 (83 S. E. 521); DeLoach Mill Mfg. Co. v. Standard Sawmill Co., 125 Ga. 377 (54 S. E. 157); Owens v. Nichols, 139 Ga. 475, 476 (77 S. E. 635); Carr v. So. Ry. Co., 12 Ga. App. 830 (79 S. E. 41). In all such cases, after proof of loss, the burden of proof is on the bailee to show diligence. Civil Code (1910), § 3469. Under these principles of law and the evidence submitted, the first two contentions of the plaintiff iu error are without merit.

3. The contention that the plaintiff failed to prove his case as laid is likewise without merit. It is true that, where the bailor elects to proceed in an action in tort, he should set forth the specific acts of negligence relied on (Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695, 50 S. E. 914; Stewart v. Greene, 124 Ga. 975, 53 S. E. 450; Miller v. Ben H. Fletcher Co., supra), and'that in the instant case no charge of negligence in the employment by the defendant of its service manager is made; but since it appears by uncontradicted proof that the service manager, as such, was authorized and permitted by the defendant to use the cars entrusted to its custody, it did not become necessary to amend the petition by setting up any such additional negligence, upon the defendant’s showing that the car was removed by its own manager and agent; and the general averment that the defendant was negligent in failing to protect the car by preventing its being taken away at night was sufficient. See also, in this connection, Napier v. Strong, 19 Ga. App. 401, 404 (2) (91 S. E. 579).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15918.
    Wilcher v. Williams.
   Jenkins, P. J.

1. “When judgments have been obtained against several persons and one or more of them has paid more than his just proportion of the same, he or they may, by having such payment entered on .the fi. fa. issued to enforce said judgment, have full power to control and use said fi. fa. as securities in fi. fa. control the same against principals or cosureties, and shall not be compelled, as heretofore, to sue the codebtors for the excess of payment on such judgment.” Civil Code (1910), § 5971.

2. “A clerk of the superior . . court is not authorized by law to collect money on judgments or executions obtained in, or sued out of, their respective courts, and a payment made to a clerk, on a judgment or, execution, is not good as a payment against the plaintiff.” Bank of Georgetown v. Ault, 31 Ga. 359. Thus, where a general execution issues from a superior court on a judgment rendered against joint defendants, and there are entered on the fi. fa. stated sums as paid by one of the defendants to the plaintiff, followed by an entry, “This fi. fa. paid in •full . . by [the named defendant] to” the named plaintiff, all signed only by the clerk of the court, the entries are not sufficient to form a legal basis for a subsequent levy by the sheriff on property of one of the defendants at the instance of the defendant making the alleged payments, under the provisions of the quoted code section requiring such payments to be entered upon the Ji. fa. The judge of the. superior court, therefore, did not err in dismissing the levy, upon'the affidavit of illegality. As the levy was illegal for the reason stated, it is unnecessary to determine the additional grounds of illegality urged, or whether, if the entries of payment had been signed by the plaintiff in fi. fa. or a proper officer, they would have supported a valid levy, even though no written transfer, sufficiently indicating the amount of the payment, had been procured from the plaintiff in fi. fa. or from one duly authorized to collect the fi. fa. for him.

Decided April 18, 1925.

Illegality of execution; from Glascock superior court—Judge Slmrley. August 20, 1924.

J. G. Newsome, for plaintiff in error.

M. L. Felts, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    16022.
    MARYLAND CASUALTY COMPANY et al. v. BESS et al.

    1. Where an employee nineteen years of age lived in his father’s household as a member of the family, all of whom were dependent upon his earnings for a support, and his earnings were contributed to that cause, the cost of his.own maintenance as a member of the family was not to be considered in determining the amount of compensation to be awarded upon the claim of the father, under the workmen’s compensation act, made in behalf of himself, his wife, and other members of the family as dependents.
    2. Under section 38 (c) of the compensation act, the compensation to partial dependents shall be in the same proportion to the compensation for persons wholly dependent that the contribution by the deceased employee bears to his average weekly wages, irrespective of contributions made to the claimants by another or others upon whom they are also partially dependent.
    3. Under section 38 (c), where the. deceased employee contributed his enture wages to persons who were partially dependent upon him, there is no difference between the amount of compensation to be awarded and that which the claimants should receive as total dependents.
    Decided April 18, 1925.
    Appeal; from Colquitt superior court—Judge W. E. Thomas. October 10, 1924.

      Pottle & Hofmayer, for plaintiffs in error.
   Bell, J.

On November 15, 1923, Guilford Bess, aged nineteen years, an employee of Baker County Power Company, was killed under circumstances making his death compensable under the workmen’s compensation act (Ga. L. 1920, p. 167). 11 is father, in behalf of himself, his wife, and his other minor children, the decedent’s younger sister and younger brothers, made an application for compensation as dependents. Upon the hearing it appeared that the decedent lived with his parents and the other claimants, as did also his older brother John. Decedent contributed all of his earnings, $12 per week, to the family support, and John contributed about an equal amount. The claimants had no other means of livelihood and were actually dependent upon the earnings of these boys for a support. The Industrial Commission awarded compensation for 300 weeks at $5.10 per week, which was 85 per cent, of one half of the decedent’s weekly wages. The insurance carrier appealed to the superior court, where the award was affirmed, and it excepted.

Whether or not the fact that the decedent contributed his earnings to support of the claimants made a case of dependency, without proof of their actual dependency, is not in the case for decision, since actual dependency was established without dispute and beyond question. There is no insistence that the award was excessive or otherwise illegal because the claim was made partly in behalf of decedent’s minor sister and brothers, nor that they were not entitled, to be considered as dependents along with the parents. A father or mother, or both, can be legally dependent on their minor child, under the compensation act. The chief contention of the plaintiff, in error seems to be that the industrial commission allowed compensation as for total dependency when the dependency was equally upon the earnings of the decedent and those of his brother John. As one of the reasons for its order, the commission recited the fact that the father was entitled, under the law, to the earnings of the decedent as his minor child irrespective of the provisions of the compensation act. This right of the father was impertinent to the claim, but we do not think that its consideration by the commission affected the result, under the record. The question is, was the compensation to be diminished because another besides the decedent contributed to the family support ?

The amendment to section 38 of the act, passed in 1922 (Ga. L. 1922, p. 185), provides as follows:

“(6) The employer shall pay the dependents of the deceased employee wholly dependent on his earnings for support at the time of the injury a weekly compensation equal to 85 per cent, of the compensation which is provided for in section 30 for total disability for a period not exceeding 300 weeks from date of injury.

“(c) If the employee leaves dependents only partially dependent on his earnings for support at the time of his injury, the weekly compensation for those dependent shall be in the same proportion to. the compensation for persons wholly dependent as the average amount contributed weekly by the deceased to the-partial dependents- bears to his average weekly wages at the time of his injury.” Section 30 of the amended act, so far as here applicable, provides that total disability shall be computed at the rate of one half of employee’s average wages.

The plaintiff in error says that the award was erroneously made under subsection b, as for total dependency, whereas under the evidence the claimants were only partially dependent. In the particular case it matters not whether the award was under subsection b or subsection c. Since the decedent contributed his entire earnings to the family funds, the compensation would have been the same under either provision. If he had contributed only a part of his earnings, it then would have become material whether the award was under subsection c. As a matter of fact it does not affirmatively appear under which provision the award was made. The plaintiff in error seems to conclude that it was made under subsection b because of the amount awarded. As already stated, if the deceased employee contributed 100 per cent, of his earnings to the dependents, the calculation proceeds to the same result under both provisions. The act as amended, in fixing compensation to partial dependents, does not take into account the fact that there may also be a partial dependency upon others. The amount is to be determined solely by first- ascertaining what the claimant or claimants would be entitled to if the dependency were total, and then by taking the same proportion of this result that the “average amount contributed weekly by the deceased . . bears to his weekly wages at the time of injury.” If the proportion prescribed was that which the contributions by the decedent bears to the sum of all contributions, including those made by others, or to the total requirements for the dependents’ support, the question made by the plaintiff in error would be well taken. But such is not the statute.

The fact that the decedent himself was supported out of the common fund does not alter the ease. He was a minor and was entitled to be maintained at the parental domicile from the father’s resources, and the father was not less dependent because a part of the funds coming in for his administration went to the support of the decedent as his minor child, among the others of his household. Subsection c of the Georgia act is substantially the same as section 37 of the Indiana act, under which the Appellate Court of that State has held as follow's: “The cost of the maintenance of a minor son, who contributed to the support of his father’s family, so that the father was his partial dependent, should not be considered in determining the amount of compensation to which the dependent father is entitled under the workmen’s compensation act for the son’s death. . . Under workmen’s compensation act, § 37, providing that the compensation of a partial dependent shall be in the same proportion to the weekly compensation, for persons wholly dependent as the amount contributed by the deceased employee to the partial dependent bears to his annual earnings at the time of the injury, -where a father, partially dependent on his minor son, received all the earnings of the son, there is no difference between the amount of compensation he is entitled to receive for the son’s death and what a total dependent would be entitled to.” In re Peters, 65 Ind. App. 174 (5, 6) (116 N. E. 848). See also People’s Hardware Co. v. Croke, 66 Ind. App. 340 (118 N. E. 314).

But, independently of all precedent, and irrespective of a number of decisions cited by the plaintiff in error from other States, all of which have been carefully examined, we think the language' of the statute, so far as applicable tp the question under consideration, is plain and unambiguous, not requiring interpretation. The' commission did not, in its order, misconstrue or misapply it. The superior court did not err in affirming the award.

Judgment affirmed.

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


text:
    16107.
    WITT v. TRUSTEES LOAN & SAVINGS COMPANY.
    Where an action was brought by a corporation on a subscription for its stock, designated as securities in Class “D” under the '/securities act” (Ga. L. 1920, p. 250), it was a valid defense that the corporation, at the time of taking the subscription, had not complied with the provisions of section 13 of the act, as to the filing of certain statements with the securities commission, notwithstanding a license had been applied for and obtained from the commission.
    Decided April 18, 1925.
    Certiorari; from Fulton superior court—Judge Bell. November 8, 1934.
    Application for certiorari was denied by the Supreme Court.

      Noah J. Stone, for plaintiff in error.

      Fuller & Bell, contra.

      George M. Napier, attorney-general, T. B. Conner, for Georgia Securities Commission.
   Bell, J.

Trustees Loan & Savings Company brought suit in’ the municipal court of Atlanta against Charles'E. Witt upon a subscription for stock in Class “D,” under the “securities act” (Ga. L. 1930, p. 350). The subscription was made on February 30, 1933. The case resulted in a directed verdict in favor of the plaintiff, a certiorari was dismissed by the superior court, and the defendant excepted.

The plaintiff, at the time of taking the subscription, had applied for and obtained from the securities commission a license to soli its stock, under the securities act. The defendant, however, pleaded among other things that the plaintiff had not complied with section 13 of the act, and contended then and still contends that a failure by the plaintiff to comply with this section before taking his subscription rendered the subscription void, notwithstanding the license or permit. In support of this defense he offered in evidence a certified copy of the application as filed with the com-’ mission, disclosing that the facts were as the plea alleged. Thu offered also oral testimony to the same effect. All of this evidence was rejected as being irrelevant and immaterial, and this ruling is assigned as error.

In the opinion which we entertain with respect to the question, thus presented, and in view of the record, we do not deem it necessary to decide or state other points which the plaintiff in error has insisted upon, it appearing to be an undisputed fact that the plaintiff did not comply with the securities act in the particulars alleged. The act in question was amended in 1922 (Ga. L. 1922, p. 156), but none of the provisions of the amendment are here pertinent.

Section 13 of the original act provides that no securities in Glass “B” shall be sold or offered for sale until there shall have been filed in the office of the commission certain specified statements and documents, including a statement (subsection 4) of the names, addresses, and prior occupations, during not less than eight years next preceding, of the officers, directors, or trustees of the applicant if a corporation (as was the plaintiff), giving details as to time, place, and addresses of their employers, and reasons for discontinuance of employment. The effect of the court’s ruling was to hold that the noncompliance with these requirements would not constitute a defense to the suit upon the subscription. In our opinion this ruling was error. Section 35 provides that every sale and contract of sale made in violation of any of the provisions of the act shall be void at the instance of the purchaser at any time within twelve months from the date of the purchase or contract of purchase. The defense was interposed within the time limit prescribed. It matters not that the plaintiff may have obtained a license to sell the securities, or that the sale of the same without a license is made criminal. According to the clear and unequivocal language of the act, as expressed in the two sections just mentioned, a sale of securities in Class “D” may be voided by the purchaser, within twelve months if there was a failure to comply with the requirements of section 13, without reference to whether a license to make the sale has been granted or not.

The identical question seems to have been decided by the Supreme Court of Tennessee in Dixie Rubber Co. v. McBee, 148 Tenn. 168, 170 (253 S. W. 353). The contention of the plaintiff there, as here, was that the permit or license issued (in that State) by the secretary of State, authorizing it to sell its stock, was conclusive that the plaintiff had in all respects complied with the requirements of the statute to entitle it to offer its stock for sale. The defendant, on the other hand, insisted that the • failure to comply therewith rendered the. sale void, irrespective of the previous granting of the license,..-The court said: .“The act'in question [Public Acts of Tenn., First & Second Extra Sessions 1913, p. 500] specifically provides that before offering or attempting to sell any stock to any person in this State, every such investment company shall file in the office of .the secretary of State certain documents itemized, among them being those which we have mentioned as being absent from the secretary of State’s office, under the stipulation of counsel. It is further provided that any person or persons who shall sell or attempt to sell stocks or other securities of an investment company who have not complied with the provisions of the law shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than $100 nor more than $5,000, or by imprisonment of not more than ninety days, or both, at the discretion of the court. Under these provisions of 'the statute, the sale of this stock to the defendant was a violation of the law, expressly prohibited by the act, and no action could be predicated by the investment company on the note executed for stock thus sold, and the complainant would be repelled from this action, unless it can be said that the permit issued by the secretary of State concludes an examination into that fact. The contention of the complainant for the affirmative of that proposition is based upon section 5 of the act. That section makes it the duty of the secretary of State to examine the statements and documents filed; it authorizes him, if he deems advisable, to make or have made a detailed examination of the company’s affairs, and if he finds the company is solvent, its articles of incorporation, its constitution and by-laws, and its proposed plan of business and proposed conduct provide for a fair and equitable plan for the transaction of business, and in his judgment promises a fair return on the stocks or securities offered for sale, he shall issue to the company a statement reciting that such investment company has complied with the provisions of this act; that detailed information in regard to the company and its securities is on file for public inspection, and that such investment company is permitted to do business in this State. While the stipulation of counsel does not embrace a copy of any statement or permit issued by the secretary of State, but merely shows that a permit to sell its securities was issued by the secretary of State, we may assume fox the purposes of a decision of this case, that the permit contained .a statement such as is required by the statute.

“It will be observed that to entitle, the secretary of State to issue a permit, there must not only be on file in his office the statements and documents referred to, but he is required, if deemed advisable, to make a detailed and full examination, and determine therefrom that the proposed plan of business provides for a fair, just, and equitable plan, and that in his judgment it promises a fair return on the stock. To the extent that this discretionary power is vested in the secretary of State his action could not in a collateral proceeding of this sort be brought into question. The duty of filing these documents and papers is imposed by the act upon the investment company, and the secretary of State has no power or discretion to excuse the filing of such documents. The act specifically prohibits the offer or attempt to sell stock by the company until these documents have been filed. Of course, it can not transact business in the State without the permit of the secretary of State, but it can not offer or attempt to sell any stocks without first having filed these particular documents, and a violation of this requirement is made a misdemeanor punishable by large fines and imprisonment. Their filing is a condition precedent to its offer to make any contract, or the making of any contract with subscribers for its stock. It might be conceded, and we do not pass on that question, that the statement or permit issued by the secretary of State would afford prima facie evidence of these documents having been filed, but in this case we have before us every paper and document contained in the files of the secretary of State, and, since we can ascertain and know therefrom that certain required documents were not filed, we axe obliged to conclude that the law was not complied with when the contract and sale of the stock in question was had.” See also, in this connection, Goodyear v. Meux, 143 Tenn. 287 (228 S. W. 57); Biddle v. Smith, 148 Tenn. 489 (3) (256 S. W. 453); Johnson v. Baker, 149 Tenn. 613 (2), 618 (259 S. W. 909).

The Georgia securities law is very much more elaborate than the Tennessee act, and it is true also that the statutes are materially different in certain particulars. But there is little, if any, difference in the effect of the provisions of the two statutes relative to matter such as was relied on as a defense respectively in the case before us and in the Tennessee case from which we have quoted. .While some things said in decision in the Dixie Rubber Company case would be amiss under the language of the Georgia statute, the court's reasoning, we think, is, in -the main, sound, and we are persuaded to follow it. No other authority so directly in point has been found.

It is our opinion that evidence of noncompliance with the provisions of section 13 of the securities law of this State would have established a valid defense, and that the rejection of such evidence was error. Tbe superior court erred in dismissing the certiorari.

Judgment reversed.

J enhins, P. J., and Stephens, J., concur.


text:
    15908.
    KRAFT v. ROWLAND & ROWLAND.
    1. Questions not referred to in the brief or argument of counsel for the plaintiff in error will be treated' as. abandoned.
    2. A suit to recover for services, rendered as under a contract of employment in which the amount to be paid was stipulated, may be amended by the addition of a new count predicated upon the same transaction and seeking a recovery of the value of the services as under a contract of employment in which the amount to be paid was not stipulated.

    3. In this action by a real-estate broker, containing a count for the recovery of the reasonable value of services alleged to have rendered, the evidence having informed the jury as to the character and extent of the services rendered and as to all the attendant circumstances, and there being some evidence as to what were the common or ordinary charges among real-ostate brokers for services of like character in the same community, it can not be said that there was nothing- on which the jury might base a verdict in favor of the plaintiff.
    4. Where an owner of property engages the services of a broker to obtain an agreement from another to buy it at a price stipulated, a part of which is'to be paid iu cash, representing the price of the owner’s equity, and the remainder of which is to be satisfied by the purchaser’s assuming an outstanding loan upon the property, previously obtained by the owner, and where the broker, after compliance with his agreement, brings a suit against the owner to recover the reasonable value of his services, the jury, in determining the amount to be awarded, may take into consideration the price of the entire property, and are not confined solely to a consideration of tlio price of the owner’s equity.
    5. Where an owner of property, without any agreement as to the compensation he will pay for the services, employs a broker to procure from a designated person an obligation in writing whereby that person is to become bound to purchase the property and the owner is to become obligated to sell it, at, the price and on tlie. terms stipulated by the instrument, and where-the agent fully complies with the terms of Ms employment, but the owner, without any fault on the part of the agent or the purchaser, refuses to make the sale, the broker may recover the reasonable value of his services as upon a quantum meruit, under the law of implied contract.
    Decided April 11, 1925.
    Rehearing denied June 15, 1925.
    Complaint; from city court of Savannah—Judge Freeman. August 22, 1924.
    Application for certiorari was made to the Supreme Court. Rowland & Rowland, a firm of real-estate brokers, brought suit against Samuel Kraft for $1000. They alleged that the defendant agreed and undertook to pay them this sum as commissions if they would sell for him certain described property in the city oE Savannah, and that in accordance with the terms of their agreement with him they procured a purchaser for the property upon conditions agreed to by the defendant as shown in a certain “sale ticket,” a copy of which was attached to the complaint; that after they had procured the written obligation of another person to buy, the defendant failed and refused to sell, although the other person was ready, willing, and able to buy, and duly tendered the initial cash payment in accordance with the defendant’s terms of sale; and that the defendant failed and refused to pay to the plaintiffs their commissions as promised. During the trial of the case the plaintiffs, witli the court’s leave, amended their petition by adding a new count, in which it was alleged that “under an employment” by the defendant the plaintiffs procured a purchaser for the property -(describing it as before), in accordance with the terms and conditions agreed to by the defendant and the person whom they procured as a purchaser, as set out in a contract drawn in conformity to the defendant’s direction, being the “sale ticket” already referred to; that the plaintiffs procured the signature of the other person to the “sale ticket,” but that “the defendant failed and refused to execute said contract of sale,” and that although the plaintiffs fully performed “their contract” to obtain a purchaser for the property, ready, willing, and able to buy, the defendant failed and refused to pay the plaintiffs “the reasonable value of their services aforesaid, to wit, the sum of $1000.” The amendment appears to have been offered because the plaintiffs’ evidence failed to show that any particular or certain sum was agreed upon as commissions. The amendment was allowed over the objection that it set forth a new and distinct cause of action. A verdict was found for the plaintiffs in the sum of $750. The defendant’s motion for a new trial was overruled, and he excepted.

      Lawrence & Abrahams, David 8. Atkinson, for plaintiff in error.

      Mclntire, Walsh & Bernstein, contra.
   Bell, J.

(After stating the foregoing facts.)

There was a demurrer to the original petition, and exceptions pendente lite were duly filed to the action of the court in overruling it. Although in the bill of exceptions error is assigned upon the exceptions pendente lite, there is no reference thereto in the brief of counsel for the plaintiff in error, and these exceptions will be treated as abandoned. The only grounds for reversal insisted upon are those referred to below.

Did the court err in allowing the amendment ? The original petition was a suit for the recovery of the value of services rendered by the plaintiffs under a contract of employment in which the amount to be paid was stipulated. In the amendment it was alleged that the plaintiffs were acting “under an employment” with the defendant, and that they had completed “their contract.” In view of this and of the other language used, the amendment .is construed as seeking a recovery for the value of services rendered by the plaintiffs under a conventional agreement or contract whereby the plaintiffs were employed to render the services, bul in which the amount to be paid was not stipulated. Wilson v. Lattimore, 135 Ga. 469 (1); Cooney v. Foote, 15 Ga. App. 455 (3). It does not appear in the amendment that there was any express agreement to pay even the reasonable value of the services. An obligation, however, to pay whatever they were worth would be implied. Civil Code (1910), § 5513.

It was held in Gray v. Bass, 42 Ga. 270 (1), that a count on an implied contract may be joined with one on a special contract, and that, too, by amendment. See also Cox v. Georgia R. Co., 139 Ga. 532; Bright v. Central City Street R. Co., 88 Ga. 535; Bartow Guano Co. v. Adair, 29 Ga. App. 644 (1). On the other hand, it seems to be the rule in this State that a suit on an account or a quantum meruit can not be converted by amendment into a suit on an express contract. Pittman v. Hodges, 13 Ga. App. 25: Jones v. Schachter, 31 Ga. App. 709 (3), and citations.

While the plaintiffs in their amendment, as in their original petition, alleged an agreement for their employment, they relied in the amendment solely upon the implication of the law to establish the defendant’s promise to pay. See Jackson v. Buiee, 132 Ga. 51 (1). There appears no other substantial difference'between the-' original suit and the amendment. See the italics above. The; cause of action as first laid did not subsist alone in the agreement' between the parties, but arose from the combined facts of the contract, the rendition of the services, and the defendant’s refusal to pay. City of Columbus v. Anglin, 120 Ga. 185 (5). If, as we have seen, a suit upon an express contract may be amended by the addition of a count upon an implied contract, a forliori an amendment would be permissible where it invoked the law of implied contract only for the purpose of filling up a gap in an express contract. The amendment did not seek to add new terms to the agreement as set out in the original petition, but relies merely upon the-law to fill a vacuum in regard to the matter of compensation, which appeared in the original suit to have been covered by express understanding. In other words, it was declared in the suit as originally framed that the parties had agreed upon two matters: firstly, that the plaintiffs should perform for the defendant certain services; and secondly, that upon the performance thereof the defendant would pay to the plaintiffs a certain sum of money as their compensation; while in the amendment it is shown that the parties agreed upon one matter only, namely, that the plaintiffs would render the services. Thus far the new count is substantially identical with the old; and as to the second matter it does not substitute a new agreement, but relies upon the law to supply one where none had been made by the parties themselves. This we think distinguishes the case at bar from the case of Lamar v.Lamar, 118 Ga. 850, wherein the Supreme Court held that in a suit for a breach of contract the petition can not be amended by abandoning the contract first alleged and setting up another and different contract. In that case the plaintiff sought by amendment to substitute certain express terms of the agreement for other ex-' press terms set out in the original petition. The case was not one' in which the plaintiff merely sought by amendment to supply a hiatus in the agreement through the aid of the law.

Permission was given in the Anglin case for the review of all the-Georgia cases upon the question of when an amendment would add a new and distinct cause of action, and a number of cases were overruled in so far as they were in conflict with the decision then rendered, including one of the cases (Cox v. Murphy, 82 Ga. 623). cited as authority in the Lamar case, and including “also ao much of any other case as” conflicted with the ruling then announced. We take it that the Lamar case was not among those overruled, since it has been cited with approval in one of the Supreme Court’s later decisions (Muller Bank Fixture Co. v. Georgia &c. Association, 143 Ga. 940 (1)), and distinguished in another. National Surety Co. v. Farmers Bank, 145 Ga. 461 (2), 469. It has also been qited twice by this court since the decision in the Anglin case: McKenzie v. Miller, 6 Ga. App. 828 (2); Mauldin v. Gainey, 15 Ga. App. 353 (2). But we do not think that the Lamar case is authority in the present case, for the reason that the facts of the two cases are essentially different.

“Where there is a special contract which has been performed on one side, and there is nothing left to be performed but payment on the other, a recovery can be had either upon the contract or upon a general indebitatus assumpsit or quantum meruit.” Hill v. Balkcom, 79 Ga. 444; Baker Lumber Co. v. Atlantic Mill & Lumber Co., 24 Ga. App. 749 (1); Myers v. Aarons, 30 Ga. App. 750 (1).

It was further ruled in the Anglin case that “So long as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action.” In that case the court reaffirmed the doctrine of Maxwell v. Harrison, 8 Ga. 61: “The true criterion for determining whether an'amendment is admissible we take to be this—whether the amendment proposed is another cause of controversy, or whether it is the same contract or injury, and a mere .permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with his proof, and the merits of his case. For, while the plaintiff can hot introduce an entirely new cause of action, he may nevertheless add a new count, substantially different from the declaration, provided he adheres to the original cause of action.”

We are of opinion that the amendment clearly complained of the same wrong or cause of controversy as laid in the original petition, and that it was not objectionable as setting forth a new and distinct cause of action. Compare Sweat v. Hendley, 123 Ga. 332 (1); in re Cormick, 100 Neb. 669 (160 N. W, 989, L. R. A. 1917D, 265); 31 Cyc. 430. This conclusion is not in conflict with anything ruled in Walker v. O’Neal, 21 Ga. App. 563 (2), or in Alford v. Davis, 21 Ga. App. 820 (4). In the Walker case it was held that in a suit upon an express contract for commissions in a fixed amount it was error to admit evidence of what the services were reasonably worth; but this was not to decide that the petition might not have been amended by the addition oí a count upon a quantum meruit, which if done would have rendered the evidence admissible. In the Alford case it was held merely that in a suit for damages for the breach of an express contract the plaintiff can not recover upon a quantum meruit; so that neither in that case was there any ruling as to whether a count upon a quantum meruit might have been added to the petition by amendment.

IVe conclude that in the present case the court did not err in allowing the proffered amendment.

The verdict was founded upon the amendment or second count. It is insisted that the verdict is not supported, because of the failure of the evidence to establish the value of the services rendered. It appears that the defendant had previously listed the property for sale with the plaintiffs for a limited time, at a valuation of $55,000. The time expired without a sale, and the present action is to recover for services under a. subsequent agreement by which the plaintiffs were employed to procure a purchaser for the property at a valuation of $42,000.

A witness for the plaintiffs, who represented them in the dealings with the defendant, testified that the exact commission on a sale at the latter valuation would have been $1175, but that in the negotiations, by which the plaintiff was seeking to obtain the signature of the defendant to a binding agreement of purchase and sale already signed by the purchaser, the defendant raised objection to this amount. The witness further testified: “I told [the defendant] Eowland & Eowland might accept $1000. He told me. to bring him that in writing. I did. The paper is the agreement [referring to a document in evidence], I took it to him and showed it to him. He still wanted to balk on the commission; he talked of further reduction on the commissions, and asked me-if they would not take $750 or $500. . . There was nothing in the contract about what our commissions would be. There are established rules or established commissions which are expressly understood. . . Mr. Kraft asked me what commission we would accept, . . or what commission we expected, and I told him what the regular commissions were,—$1175; and he began to talk like he would have to have a compromise on that, and, after lie talked it over, I said, ‘Well, Rowland & Rowland may take $1000/ He said, ‘Bring me that in writing/ The $1175 is figured on $42,000.”

Assuming that the evidence of this witness should be construed not as expressing the witness’s opinion as to the value of the services, but as undertaking merely to say what the commissions should amount to under the rules and customs of local real-estate brokers, it was not without some probative value. In Camilla Cotton Oil Co. v. Walker, 21 Ga. App. 603 (1), which was a suit involving a diminution of the plaintiff’s earning capacity as a machinist of three years’ experience, it was held not error to allow the plaintiff to testify “as to what [were] the usual and customary wages of an expert machinist in this community at that kind of business.” In Dillard v. Hollzendorf, 140 Ga. 17, in which the value of the services of a physician was a pertinent matter of inquiry, the Supreme Court held: “Testimony that physicians in the locality of the venue of the suit were accustomed to charge certain fees for visits to patients was not inadmissible on the ground that such testimony was irrelevant and immaterial; no point being made that it did not appear that the charges in the two localities were similar.” “Prices at which similar articles are sold” may be considered as a circumstance in determining the value of particular property. Morrow Transfer Co. v. Robinson, 8 Ga. App. 409. There is no conflict between any of the rulings last referred to and the ruling in Western & Atlantic R. Co. v. Calhoun, 104 Ga. 384 (1). Value, as any other matter to be proved, may be shown circumstantially or inferentially as well as directly or positively. Ayers v. State, 3 Ga. App. 305 (4); Farm Products Co. v. Eubanks, 29 Ga. App. 604. By the other evidence the jury were fully informed as to the nature and extent of the services which the plaintiffs claimed to have rendered, and as to all the attendant circumstances. An opinion by the witness as to the value of the service, if given, would not have been conclusive upon the jury. They might have acted independently thereof or in opposition thereto by applying to the case their own experience, or by “exercising their ‘own knowledge and ideas’ on the subject.” Questions of value are peculiarly for the determination of the jury, where there is any data in evidence upon which they may legitimately reach a conclusion; and we can not hold as a matter of law that there was no data before them in the instant case upon which they might predicate a finding. See Baker v. Richmond City Mill Works, 105 Ga. 225 (2); Stweat v. Sweat, 123 Ga. 801; Georgia Railway Co. v. Tompkins, 138 Ga. 596 (8); Daniel v. McRee, 31 Ga. App. 210 (1).

The plaintiffs alleged that the terms of the sale were that the purchaser should pay for the property $42,000, of which $12,-000 should be in cash and of which $30,000 should be in the assumption by the purchaser of an outstanding loan on the property, obtained by the defendant owner, in the sum of $30,000; and the evidence tended to establish these allegations. In these circumstances it is insisted by the plaintiff in error -that a recovery of commissions in the sum of $150 was unauthorized; the contention being that the commission should be calculated only upon the valuation of the defendant’s equity, and that, since this was only $12,000, the commissions awarded by the verdict were excessive.

Even if the sale were considered as involving but $12,000, we should hardly be able to say as a matter of law that the commissions were excessive. But the jury were not bound, even if they would have been authorized, to consider only the amount which the defendant required to be paid to him in cash as the valuation of his equity, in determining the value of the services rendered. Under the terms of the sale, which the plaintiffs contended the defendant had agreed to, the assumption of the loan of $30,000 had as much bearing upon the magnitude of the transaction as if the defendant had stipulated for the payment of the same in cash. If the sale had been made the defendant would have received the equivalent of $42,000, in that as between him and the purchaser he not only would have received $12,000 in cash but would have been relieved of a debt in the sum of $30,000; so that in determining the amount of the commissions justly earned it was clearly the right, if not the duty, of the jury to consider the transaction as involving property of the value of $42,000.

The last question raised by the plaintiff in error is, “whether plaintiff could recover commissions on quantum meruit where the parties contemplated that the sale should not be consummated until the defendant signed the agreement, and the defendant refused to sign the agreement because there was no specific agreement with reference to the payment of commissions upon the sale.” We can not concur in the suggestion by the learned counsel that this question is not settled by our former decision in the case, wherein we held: “Where the owner of certain property employs an agent at an agreed contingent price to procure from a designated person an obligation in writing, previously approved by the owner, whereby that person is to become bound to purchase the property and the owner is to become obligated to sell it at the price and on the terms stipulated by the instrument, and where the agent fully complies with the terms of his employment by forthwith presenting to the owner for his signature an instrument signed by the prospective purchaser, which instrument is in meaning precisely the same as the agreement previously approved by the owner, the agent is not to be deprived of his earned commission because of the fact that the form of the instrument contemplates that it is to be signed by the owner as well as by the purchaser, and the owner, without any fault on the part of the agent or the purchaser, fails to give binding effect to the contract of purchase and sale, by refusing to sign the proffered instrument.” 31 Ga. App. 593. At the time of this ruling the petition had not been amended, and sought a recovery on the basis of an “agreed price” for the plaintiffs’ services. We see no reason why the rule should be different where the plaintiff seeks a recovery of the reasonable value of his services under the law of implied contract, as' was done in the amendment or second count. It would seem that it might possibly apply with even greater force in the latter instance, it appearing that the controversy with respect to the commissions arose after the plaintiffs had complied with the terms of their em'-, ployment by procuring an actual binding agreement to purchase upon terms which the defendant had stipulated. Hill v. Balkcom, 79 Ga. 444; Roberson v. Allen, 7 Ga. App. 142; Perdue v. Cason, 22 Ga. App. 294 (1); Stephens v. Fulford, 153 Ga. 637 (1).

The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    16120.
    Taylor Lumber Company v. Clark Lumber Company et al.

   Bell, J.

1. A corporation which lawfully acquires all the property of a partnership does not thereby become responsible for the partnership debts; and though the corporation has the same name as the trade name or device used by the partnership, and the persons who constituted the partnership own the entire capital stock of the corporation, the business of the partnership having been merged into that of the corporation, these facts alone would not make the corporation liable for the obligations of the partnership, and to create such liability “the same formalities are required as to make any individual liable for the debts of another.” Georgia Company v. Castleberry, 43 Ga. 187, 189; Culberson v. Alabama Construction Co., 127 Ga. 599 (4) (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507).

(a) This is not to rule that where a debtor conveys his property to another, and as part of the transaction the purchaser agrees to assume and pay the debts of the vendor, the creditor could not have relief in equity, with proper pleadings and parties. Sheppard v. Bridges, 137 Ga. 615 (1) (74 S. E. 345). See also Civil Code (1910), §§ 3216, 3217. But this case having first gone to the Supreme Court, its transfer by that court to this court is equivalent to a holding that the suit is not one in equity. Stone v. Edwards, 32 Ga. App. 479 (1) (124 S. E. 54).

2. Where a partnership composed of two named persons doing business un- . der the firm name of Clark Lumber Company entered into an executory contract for the sale of goods to another, and the time for delivery was extended from time to time, covering a period of several months, and, while the contract was still of force, the individuals composing the partnership became incorporated in the same name previously used by the partnership, and where, after the incorporation, the vendee received letters signed “Clark Lumber Company,” written by the corporation, declaring an intention to perforin the contract and requesting further extensions of the time for performance, which extensions were granted, an action by the vendee against the corporation and the partnership for a breach of the contract, in which, in addition to the facts just recited, it is alleged that the corporation assunied all liabilities and contracts, and took over all the assets, of the partnership, and in which by amendment it is alleged that the corporation, by its requests and promises as contained in such letters, became liable with the partnership, failed to set forth a cause of action against the corporation, whether as co-principal, or as a substituted debtor, or as a surety, where it further appears from the allegations of the petition that the plaintiff vendee never became a party to the agreement between the partnership and the corporation by which the latter was to assume the obligations of the firm, and did not know that the corporation was the author of any of the letters or communications received by the plaintiff until after the final breach of the contract by the refusal of the corporation to perform, since it thus affirmatively appears that there was never a meeting of minds as between the plaintiff and the corporation. Palmetto Mfg. Co. v. Parker, 123 Ga. 798 (2) (51 S. E. 714); Hawkins v. Central &c. Ry. Co., 119 Ga. 159 (6) (46 S. E. 82); Morgan v. Argard, 148 Ca. 123 (95 S. E. 986); Empire Insurance Co. v. Collins, 54 Ga. 376 (2); Gray v. Lynn, 139 Ga. 294 (77 S. E. 156); Civil Code (1910), §§ 4222, 4230.

Decided April 18, 1925.

Complaint; from Jefferson stiperior court—Judge Hardeman. August 14, 1924.

Roy V. Harris, Phillips & Abbot, for plaintiff.

Hardeman & Hardeman, M. G. Barwiclc, R. G. Price, for defendants.

3. The fact that the plaintiff may have been put to disadvantage and injury by the corporation’s conduct could not operate to create a contract between them. Hood v. Duren, 33 Ga. App. 203 (2) (125 S. E. 787); Parks v. Simpson, 124 Ga. 523 (2) (53 S. E. 568).

4. Applying the above rulings, the court did not err in dismissing, on demurrer, the petition as to the defendant corporation.

5. A part of the judgment excepted to was as follows: “No cause of action is set out against [B] as an individual separate and apart from his relation as a partner, . . and therefore the demurrer as to him is sustained.” Held: The court, having adjudged that the petition set forth a cause of action as to the partnership, erred in dismissing the petition as to one of the partners, although no liability was shown against him except such as flowed from his relation of partner. See Bender v. Hartford Fire Ins. Co., 33 Ga. App. 716 (127 S. E. 902). The trial judge evidently intended merely to rule adversely to a contention of the plaintiff that this partner, by certain conduct, had become liable as an individual, in addition to the liability devolving upon him as a member of the partnership; and if the judgment could be construed as having only that effect, there would be no error, but, upon a reasonable interpretation of the language used, tlio judgment must be construed as striking the petition entirely as to this party.

Judgment affirmed in part and reversed in part.

Jenkins, P. J., and Stephens, J., concw.


author: Luke, J.

text:
    16287.
    Parker v. The State.
   Luke, J.

The evidence amply authorized the defendant’s conviction of manslaughter. None of the special grounds of the motion for a new trial, which have the approval of the trial judge, show reversible error. The charge of the court, when read in its entirety, was full and fair. The defendant has had a legal trial, and the court properly overruled the motion for a new trial.

Decided April 21, 1925.

Indictment for murder—conviction of manslaughter; from Gilmer superior court—Judge Blair. January 17, 1925.

A. II. Burtz, William Butt, for plaintiff in error.

John 8. Wood, solicitor-general, Morris, Ilatokins & Wallace, contra.

Judgment affirmed.

' Broyles, O. J., and Blood-worth, J., eoneur.


author: Bloodworth, J.

text:
    16288.
    Salmon v. The State.
    Decided April 21, 1925.
    Indictment for possessing intoxicating liquor; from city court of Floyd county—Judge Bale. January 24, 1925.

      Porter & Mebane, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Bloodworth, J.

This is a companion case to that of Salmon v. State, 33 Ga. App. 695; the evidence is practically the same in the two eases, and the rulings in that case are controlling in this.

Judgment reversed.

Broyles, O. J., and Luke, J., oonew.


text:
    16291.
    Wood v. The State.
    Decided April 25, 1925.
    Indictment for possessing and transporting intoxicating liquor; from Haralson superior court—Judge Irwin. January 27, 1925.

      M. J. Head, Beall & Beall, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Luke, J.

The evidence amply authorized the conviction, and for no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J.¡ and Bloodioorth, J., oonew.


author: Bloodwoeth, J.

text:
    16292.
    Seals v. The State.
   Bloodwoeth, J.

1. 'The judge 'instructed the jury as follows: “To this indictment the defendant, A. J. Seals, pleads not guilty, and that makes the issue which you are called upon to try. The defendant enters upon the trial of this case with the presumption of innocence in his favor, and that presumption goes with him throughout the trial and until and unless his guilt be established beyond a reasonable doubt.” This is a correct statement of the law, and there was no request for fuller instructions. This court (citing a number of cases to support the proposition) held in Conley v. State, 21 Ga. App. 134 (1) (94 S. E. 261), that “a correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions.” Moreover, the charge of the court on reasonable doubt, in connection with the excerpt quoted, sufficiently informed the jury that the burden was upon the State to prove the guilt of the defendant. Finch v. State, 24 Ga. App. 339 (2) (100 S. E. 793); Pullen v. State, 30 Ga. App. 24 (2), 27 (2) (116 S. E. 871); Thomas v. State, 129 Ga. 419 (4) (59 S. E. 246). This ruling disposes of grounds 1 and 3 of the amendment to the motion for a new trial. .

2. The court charged the jury as follows: “You will notice from that definition that it makes no difference what person is restrained of their liberty. It would be equally false imprisonment whether Mrs. Brown is a good woman or a bad woman, a rich woman or a poor woman, an old woman or a young woman. Every person, regardless of character, sex, wealth, condition, or anything else, is entitled to their personal liberty; and if illegally restrained of that liberty, then there is a violation of the law of Georgia.” This portion of the charge is excepted to as being “argumentative,” “unauthorized by the law and the evidence in the case,” and as amounting to “an instructed verdict of guilty,” and to “an expression of opinion of the trial judge that the defendant is guilty.” This excerpt is not subject to any of these criticisms. " .

3. It is urged that the charge to the jury embodied in special ground 4 of the motion for a new trial is argumentative. We can not agree with this contention. In this charge the judge does not rmdertake to state the contention of the State or to give a summary of the evidence for .the State, and it is certainly not an argument tending to influence the • jury to form a conclusion adverse to the defendant independently of. the-evidence. This portion of the charge was simply an effort .on the part of the judge to make clear to the jury what constituted the offense of false imprisonment.

4. The charge given relative to good character was not “erroneous because it failed to state that evidence of.good character alone might be sufficient to generate in the minds of the jury a reasonable doubt.” Hill v. State, 18 Ga. App. 259 (1 b) (89 S. E. 351).

5. “It furnishes no ground for reversal that the presiding judge failed to charge the jury that they were judges of the law and the facts.” Bivings v. State, 29 Ga. App. 49 (3) (113 S. E. 57); Brown v. State, 150 Ga. 756 (4) (105 S. E. 289).

Decided April 21, 1925.

Rehearing denied May 14, 1925.

Indictment for false imprisonment; from Houston superior court —Judge Malcolm D. Jones. January 10, 1925.

To the instruction set out in the first paragraph of the decision the defendant excepted as follows: “The court should have charged the jury, in connection with the above charge, that the burden of-proof was upon the State to prove each and every material allega- > tion in the indictment beyond a reasonable doubt. .This charge is error for the further reason that the trial judge should have charged the jury that the burden of proof in every criminal case was upon the State, and if the State failed to establish the defendant’s guilt beyond a reasonable doubt, it would be their duty to acquit the defendant. Movant contends that nowhere in the court’s charge did he charge that the burden of proof was upon the State.”

6. Complaint is made that one of the jurors who tried the 'case was dis-qualified because of .prejudice against the accused. On the hearing of the motion for a new trial the State made a counter-showing, and on this showing the juror swore that the statement attributed to him was-not true, that he did not.make the statement attributed to him, and he further swore that at the time he entered upon the trial of the case there was neither prejudice nor bias resting on his mind against the accused. The court did not err in overruling this ground of the motion. Williamson v. State, 143 Ga. 267 (1) (84 S. E. 584), and citations.

7. When considered in connection with the remainder of the charge of the court, the excerpt embraced in ground 8 of the motion for a new' trial is not erroneous.

8. Complaint is made that the court charged the jury as follows: “It must also appear it [the detention] was done by legal authority. It is on the person to show you his warrant and authority.” In another ground it is complained that the court charged: “An officer has no more right than any other man if he has no warrant for the arrest of a person unless the crime be committed in his presence.” In the charge of the court the instruction in the first of these excerpts immediately preceded the second. The first was alleged to be error because “it contained an incorrect statement of law,” and in effect put upon the defendant the burden of showing that he was not guilty of false imprisonment; and the second because “said charge placed the defendant, admittedly a peace officer, in the same category with a private citizen as regards the right to arrest, giving him no more authority than that of a private citizen; whereas under the law an officer may arrest without a warrant if the offense is committed in his presence or the offender endeavoring to escape, or for other cause that [there?] is likely to be a failure of justice for want of an officer to issue a warrant.” There is no insistence that the accused was “endeavoring to escape,” or that there was “likely to be a failure of justice for want of an officer to issue a warrant” (Penal Code of 1910, § 917); and the failure to charge as to this portion of the statute could not have been harmful to the accused. While the sentence, “It is on the person to show you his warrant and authority,” left this portion of the charge somewhat “involved,” yet when it is read in connection with the entire charge and the facts of the case, the jury could not have been misled by it.

9. The verdict is not without evidence to support it.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.

IF. A. McClellan, IF. 0. Cooper Jr., J. IF. Bloodworih, for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.


text:
    16330.
    Clay v. The State.
    Decided April 21, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. February 5, 1925.

      Linton 8. James, IF. A. James, for plaintiff in error.

      John A. Boylcin, solicitor-general, Roy Dorsey, solicitor, Ralph H. Pharr, contra.
   Luke, J.

The defendant was fairly and legally convicted of the offense of simple larceny, and it was not error to overrule the certiorari.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., eonour.