text:
    18392.
    Odum v. Cotton States Fertilizer Company.
   Jenkins, P. J.

1. Under section 4210 of the Civil Code (1910), when the alleged maker of a deed'which is the basis of an action against him files an affidavit that the deed is a forgery, it is the duty of the court to arrest the case and require an issue to be made and tried as to the genuineness of the alleged instrument; but the court does not err in refusing to require such an issue to be made and in allowing the instrument to be admitted in evidence, where the defendant admits the genuineness of his signature, and where it appears, from his testimony, that the purpose of the affidavit is not to enable him to prove a material and fraudulent alteration of the instrument, subsequent to its execution, by the party claiming a benefit thereunder, but is merely to show that he was induced to sign the instrument without reading it, relying upon the good faith of the opposite party to incorporate therein the terms of the agreement previously arrived at. Ford v. Serenado Mfg. Co., 27 Ga. App. 535 (2) (109 S. E. 415).

2. “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it.” Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 (94 S. E. 892); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030); Barnes v. Slaton Drug Co., 21 Ga. App. 580, 582 (94 S. E. 896); Ward v. Colt Co., 28 Ga. App. 24 (109 S. E. 92). Accordingly, the exceptions to the failure of the court to admit certain evidence offered by the defendant are without merit.

3. This was a suit in trover to recover two mules, which, according to the bill of sale introduced in evidence, were conveyed by the defendant to secure a preexisting promissory note for $152.50. The bill of sale was dated November 15, 1923, and was given in consideration of the note being extended for thirty days thereafter. A demand for the property and a refusal by the defendant to deliver the same are admitted, but the record does not disclose the' date of the conversion. The case was tried in April, 1927. The bill of sale, in describing the mules conveyed thereby and for the recovery of which the trover suit was instituted, embodied as a part of the description the statement that one of them was worth $175 and that the other was worth $160. This was the only proof as to the value of the property, other than certain evidence as to the value of its hire. The judge in substance instructed the jury to return a verdict in favor of the plaintiff in the amount of the principal of the debt, and instructed them that the only question for them to determine was the value of the property for hire. The contention is made, under the general grounds of the motion for a new trial, that the verdict is unauthorized in that no proof was made as to the value of the property; and in other grounds it is contended that the judge erred in limiting the jury as stated. Held: Where a plaintiff in an action in trover elects to take a money verdict, the value of the converted property at the time of the conversion or at some period between the conversion and the trial must be proved. The statement in the bill of sale given as security for the preexisting debt, in consideration of an extension of the time of payment, that the property was then (to wit, on November 15, 1923) valued at a stated sum, can not be taken to establish conclusively its value at the time of the conversion, or at any time between the conversion and the trial, especially since there was no evidence as to its value or condition at the time of the conversion as compared with its value and condition when the bill of sale was executed. Oxford v. Ellis, 117 Ga. 817 (45 S. E. 67). The rule appears to be different in a suit based upon an instrument of conditional sale reserving title as security for the payment of purchase money, since in such a case it has been held that, as between the original seller and the original purchaser, the agreed contract price is prima facie, but not conclusive, evidence of the actual value of the property. Young v. Durham, 15 Ga. App. 678 (84 S. E. 165); Jones v. May, 27 Ga. App. 152 (1 a) (107 S. E. 897). The rule stated by the Supreme Court in the Oxford case and the rule stated by this court in the Young and Jones eases are not deemed to conflict, since the ruling in the Young and Jones eases is expressly limited to actions in trover under instruments of conditional sale reserving title to secure the payment of purchase money, the presumption being that the contract price was a fair price, and apparently that the unpaid purchase-money note continues to represent the value of the property which the defendant has unlawfully converted. There would seem.to be no reason, however, why such a presumption should be extended to apply to a case where, as here, the stated valuation of the perishable property amounted merely to a descriptive term, not contractual in its nature. Moreover, even had there been additional evidence as to relative values as between the two dates, the jury would not have been absolutely bound by such opinion evidence, but would have been entitled to consider the nature of the property involved, together with every other fact and attendant circumstance throwing light upon the subject, properly within their knowledge. Lott v Banks, 21 Ga. App. 246 (4), 250 (94 S. E. 322).

Decided March 16, 1928.

Judgment reversed.

Stephens and Bell, JJ., concur.

J. 0. Pratt, for plaintiff in error.

Richard B. Bussell Jr., contra.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    18394.
    BRADY v. BUGG, receiver.
    Decided March 16, 1928.

      R. D. Feagin and J. F. Urquhart, for plaintiff.

      Brandon & Eynds, John B. Guerry, J. B. Wall, A.- G. Garden, for defendant.
   Jenkins, P. J.

This was a suit for personal injuries to a railway employee, brought under the Federal emploj’er’s liability act. The petition shows that the plaintiff was injured while undertaking, alone and unaided, to move a push-car, weighing about 1,000.pounds and used for carrying coal, from the elevated side-track of the railway down'to its main line. It appears that the plaintiff sought to move the push-car because the side-track had become Blocked by a locomotive between the coal bins and the pumping station. While the petition alleges that the plaintiff had previously complained to the defendant about being required to transport coal from the coal-chute to the pumping station operated by-the-plaintiff, and that the defendant had instructed him to continue this portion of- his duties and employment, it does not appear that this complaint was based upon any danger which might result from such work, nor does it appear that the defendant had promised to rectify the condition complained of. It is alleged that since the push-car on the side-track at the coal-chute was blocked in by the switch-engine left on the side-track, the plaintiff, in order to procure coal to operate the pumping station, undertook to move the push-car from the side-track (elevated about four feet above the main line) down to the main line; that after having lifted the push-car oil the sidetrack and after having headed it down the embankment, with its front wheels abutting the first rail of the main track, and the body of the car resting up against the, inclined side of the embankment, he undertook to lift the front end of the push-car so as to place the car upon the track of the main line, and that when he was so doing the excessive weight of the car caused it to run down the embankment and against him, causing the injuries complained of. It is alleged that the push-car was deceptive as to its weight, and that the plaintiff did not know that it was beyond his capacity to move, but that the defendant did. The petition was dismissed on general demurrer, and the plaintiff excepted.

1. While it is true that in actions brought under the Federal employer’s liability act for personal injuries received by an employee of a railway company, contributory negligence of the employee will not bar a recovery, but in such cases the damages are to be diminished in proportion to the amount of negligence attributable to him, still in such cases, except where there is a violation of an act for the protection of employees, the defense of assumption of risk is available to the defendant, and when established is an absolute defense. Hightower v. Southern Ry. Co., 146 Ga. 279 (91 S. E. 52, L. R. A. 1917C, 481); Emanuel v. Georgia &c. Ry. Co., 142 Ga. 543, 546 (83 S. E. 320); Southern Ry. Co. v. Blackwell, 20 Ga. App. 630 (93 S. E. 321); Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (58 L. ed. 1062, 34 Sup. Ct. 635, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475).

2. The petition does not set forth anything that would render applicable the doctrine relative to the giving of a negligent order by a master to a servant (for a discussion of this principle see Central of Ga. Ry. Co. v. Lindsey, 28 Ga. App. 198, 199 (2), 110 S. E. 636), or the doctrine which might permit a servant, with knowledge of a dangerous situation, to proceed with the performance of his duties for a reasonable time, relying upon the promise of the master to rectify the dangerous condition complained of. Evans v. Central Ry. Co., 36 Ga. App. 58 (2), 60 (135 S. E. 760).

3. The situation was one which arose not on account of any sudden emergency, but because of voluntary acts and conduct of the plaintiff, which the master could not be presumed to have anticipated. A servant is presumed to know of the existence of the ordinary natural laws of universal application. Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117 (89 S. E. 158). Nothing is shown to indicate how the difficulty in lifting the push-ear, on account of its weight, could have been unknown to the plaintiff, who had just previously been engaged in lifting the same instrumentality. Whatever risk the plaintiff saw proper to thus assume was necessarily incident to his employment, and for its consequences the defendant could not be held liable. The court did not err in sustaining the general demurrer.

Judgment affirmed.

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


text:
    18396.
    UNITED STATES FIDELITY & GUARANTY CO. et al. v. GREEN, guardian.
    Decided March 16, 1928.

      Bryan & Middlebrooks, for plaintiffs in error.

      Slaton & Hopkins, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. Under the workmen’s compensation law, an employee is entitled to compensation for injuries from accidents arising out of and in the course of the employment; that is, for such occurrences as might have been reasonably contemplated by the employer as a risk naturally incident to the nature of the employment, or such as, after the event, might be seen to have had its origin in a risk connected with the business of the employment, and to have arisen out of and flowed from that source as a natural consequence. Keen v. New Amsterdam Casualty Co., 34 Ga. App. 257 (2) (129 S. E. 174). In the instant case, while the evidence was such as would have authorized a finding that the injury occurred during the course of the decedent’s employment, and while he was on duty, there is nothing to show that it arose out of his employment, but, on the contrary, the evidence conclusively indicates that the injury was altogether casual to and did not arise out of his employment, but was occasioned by an intervening agency such as could not have been reasonably contemplated by the employer as a risk naturally incident to the nature of the employment. The act of the fellow servant in picking up the pistol and handling it as a mere meddler and from a motive of idle curiosity was not such an act as originated in and was connected with the actual conduct of the business in which the plaintiff was employed. Georgia Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881); Maryland Casualty Co. v. Peek, 36 Ga. App. 557 (137 S. E. 121).

2. Under the foregoing ruling, the evidence did not warrant the finding of the industrial commission in favor of the claimant, and the judge of the superior court erred in sustaining the award of compensation.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18399.
    JOHNSON, administrator, v. CITIZENS FIRST NATIONAL BANK OF ALBANY.
    Decided March 16, 1928.

      E. L. Smith, for plaintiff in error. T7. II. Burt, contra.
   Jenkins, P. J.

A common-law execution against W. A. Johnson was levied upon certain crops grown in the year 1926 and certain farming implements, all of which were on premises occupied by the defendant in ff. fa. Johnson, in his representative capacity as administrator of his deceased wife, who had been deceased since 1918, filed a claim to the property on behalf of.the estate of his intestate. On the trial he admitted a prima facie case and assumed the burden of proof. He testified that the premises on which the crops were grown were rented by him as an individual until the year 1925, but that for the years 1925 and 1926 they were rented by him as administrator of his wife’s estate; that in the fall of 1924 all of his property, except perhaps some farm tools scattered about the premises, was destroyed by fire, and that he thereafter rented the land as administrator of his wife’s estate; that he qualified as such administrator in 1918; that he had not obtained an order from the ordinary to carry on her business, and that he kept no account of his personal money and the estate’s money, as he considered his interests and the estate’s interests as one and the same; that the farm tools levied upon were not held by the wife at the time of her death, in 1918, and he did not know when they were purchased or what was paid for them; that the money in his possession as administrator was derived from the sale of certain land belonging to the wife, but that he d'id not know how much of the estate’s money he had in 1925 or 1926. From the testimony of the ordinary it appears that no inventory or return had ever been made by Johnson as administrator. The record is silent as to whether the wife left any heirs other than Johnson, and as to whose labor produced the crops levied upon. The jury found in favor of the plaintiff. The administrator excepts to the judgment overruling his motion for a new trial, which is based upon general grounds only.

It can not be said, as a matter of law, that the verdict finding the property subject was unauthorized, or that the testimony of the defendant in fi. fa. demanded a contrary finding.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18403.
    CITY PURCHASING COMPANY v. CLOUGH.

      Decided March 16, 1928.

      B. B. Jaclcson, for plaintiff in error.

      Watkins, Aslill & Watkins, Homer Watkins, contra.
   Jenkins, P. J.

Plaintiff alleges that lie procured a loan from the defendant at a rate of interest in excess of that authorized by the provisions of the act approved August 17, 1920 (Ga. L. 1920, p. 215), and that in order to secure the loan he was required to execute in blank what purported to be an unconditional assignment of his salary to the defendant, with the express understanding, however, that the assignment was not “to be completed or used by defendant except as evidence of the indebtedness, and then only in the event of petitioner’s death or refusal to pay same.” The petition alleges that the defendant subjected itself to damages by seeking to enforce the assignment, not only because it was void, but in violation of its express agreement not to enforce the same, and with knowledge that it would cause the plaintiff to be discharged, as he in fact was, in accordance with a standing rule governing his employment, under which “petitioner is discharged automatically whenever he executed any sale or assignment of his wages.” The defendant excepts to the failure of the court to sustain its general demurrer to the petition.

1. The plaintiff can not rely upon the breach of the alleged contemporaneous oral understanding between himself and the defendant, by which he seeks to contradict the terms of the written assignment of his salary by showing that it was then understood and agreed that the assignment as made was not to be enforced. Hirsch v. Oliver, 91 Ga. 554 (18 S. E. 354); Rheney v. Anderson, 22 Ga. App. 417, 421 (96 S. E. 217). As against a general demurrer, the petition set forth a cause of action on the theory that the defendant, knowing that the plaintiff would incur the penalty of discharge upon his employer’s being apprised that he had sought to make an assignment of his salary, maliciously proceeded to serve the purported assignment upon the employer, though knowing that it was illegal, void, and of no effect. Had not the assignment been known to be illegal and void, as alleged, and if its service upon the employer had been made in an attempt to collect money under a bona fide legal claim, the mere exposure of the plaintiffs conduct, subjecting him to the penalty of the rule, would not constitute a cause of action. The gist of the action as set forth by the petition lies in exposing the plaintiff to the penalty of discharge, not for the purpose of collecting a bona fide claim, but for the purpose of illegally extorting money. Penal Code (1910), § 118; Chunn v. State, 125 Ga. 789 (54 S. E. 751).

2. This court is without jurisdiction to determine the remaining point raised by the bill of exceptions, to wit, that the court erred in dismissing the special demurrer of the defendant because not filed in time. See, in this connection, Turner v. Camp, 110 Ga. 632 (36 S. E. 76); Cone v. Hunter, 38 Ga. App. 45 (142 S. E. 468), and cases there cited. Since it appears from the record that exceptions pendente lite to the latter judgment were taken, no direction is given with reference to the reservation of such exceptions.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    18411.
    Bush v. Ogletree.
    Decided March 16, 1928.

      G. A. Byars, Glaude Christopher, for plaintiff.
   Bell, J.

1. Where goods are stolen and deposited by the thief in a warehouse, their delivery by the warehouseman to the depositor or his transferee, after notice of the theft and of the true ownership of the property, renders the warehouseman liable to the owner as for a conversion. 30 Am. & Eng. Enc. Law, 58; 27 R. C. L. 983, 1001.

2. Where an actual conversion of property is shown, no demand is necessary as a condition precedent to its recovery by the owner. Miller v. Wilson, 98 Ga. 567, 569 (25 S. E. 578, 58 Am. St. R. 319); Sappington v. Rimes, 21 Ga. App. 810 (95 S. E. 316); Merchants & Miners Trans. Co. v. Moore, 124 Ga. 482 (52 S. E. 802); 27 R. C. L. 1000.

3, In the present trover action the evidence was sufficient to identify the property and to show the plaintiff’s title thereto, as well as the value of it. The evidence would furtheT have authorized the inference that after the property had been stolen by a third person and deposited in the defendants’ warehouse, and after notice to the defendants of the plaintiff’s claim, the defendants delivered the property to a transferee of the depositor who had stolen it. In these circumstances, a verdict in favor of the plaintiff would have been warranted, and the court erred in directing a verdict in favor of the defendants.

Judgment reversed.

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


text:
    18521.
    Citizens and Southern Bank v. Edelstein.
    Decided March 16, 1928.

      Paul T. Chance, for plaintiff.

      Abram Levy, for defendants.
   Bell, J.

The transferee of a vendor’s interest in property for which he has made a bond for title can not maintain an action against a third person for damages for a trespass committed against the vendee in the bond for title, where the vendee, and not the plaintiff, was in actual possession of the premises at the time of the alleged trespass, and where there was no injury to the freehold. Civil Code (1910), § 4473; So. Ry. Co. v. State, 116 Ga. 276 (42 S. E. 508); Beasley v. Central of Ga. Ry. Co., 17 Ga. App. 615 (87 S. E. 907). There was no merit in any count of the petition, and the trial court correctly sustained the general demurrer thereto.

Judgment affirmed.

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


text:
    18362.
    Louisville & Nashville Railroad Co. v. Hogg.
    Decided March 27, 1928.
   Bell, J.

1. When this case was here upon a former occasion this court held that a verdict in favor of the plaintiff would have been authorized, and that the verdict in favor of the defendant as then attacked by the plaintiff should have been set aside because of errors in the charge of the court. Hogg v. L. & N. R. Co., 33 Ga. App. 773 (127 S. E. 830). The evidence was substantially the same at the next trial, and, under the law of the case as previously adjudicated, was sufficient to support the verdict in favor of the plaintiff.

2. Since the evidence would have authorized the jury to And that the damage to the plaintiff’s live stock resulted from a disease contracted without fault of the defendant railroad company the court erred in instructing the jury that “if they contracted the disease while in the hands of the railroad and . . [if] such disease caused the death and sickness of a portion, then and in that event the plaintiff would be entitled to recover.” This error was not cured by any oí the other instructions, and requires a now trial. Pa. R. Co. v. Goetchius, 135 Ga. 170 (68 S. E. 1110); Fish v. Chapman, 2 Ga. 349 (3) (46 Am. D. 393); Brown v. Clayton, 12 Ga. 565 (12); Ga. R. v. Spears, 66 Ga. 485 (42 Am. R. 81); L. & N. R. Co. v. McHan, 144 Ga. 683 (87 S. E. 889); Cooper v. Raleigh &c. R. Co., 110 Ga. 659 (2) (36 S. E, 240).

3. While several other excerpts from the court’s charge may not have been entirely correct, yet, when they are construed in the light of the remainder of the charge, none of them contain material or prejudicial error.

Judgment reversed.

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

Tye, Peeples & Tye, W. B. Short, for plaintiff in error.

John C. Bull, W. J). Crawford, contra.


text:
    18365.
    Brooks v. Jackins.
    Decided March 27, 1928.
   Bell, J.

1. A note given for an existing' indebtedness, even at a higher rate of interest and due at a later date, is not given for a new consideration, and therefore does not constitute a novation. In the absence of agreement to the contrary, promissory notes are not payment until themselves paid. Civil Code (1910), §§ 4226, 4326, 4314; Ga. Nat. Bank v. Fry, 32 Ga. App. 695 (1, 2) (124 S. E. 542); Schneider Marble Co. v. Knight, 37 Ga. App. 646 (141 S. E. 120).

2. The taking of such a note from a tenant by a landlord for an amount of rent, even after the rent is due, and even though the note is payable in the future, will neither extinguish nor postpone the landlord’s right to distrain, nor prevent final judgment in his favor in the distress-warrant proceeding, where the note is surrendered to the maker, or is sufficiently accounted for by showing that the maker will incur no further risk of liability thereon. Belmont Farm, v. Dobbs Hardware Co., 124 Ga. 827 (7) (53 S. E. 312); Securities Trust Co. v. Marshall, 30 Ga. App. 379 (118 S. E. 478); Brown v. Marbutt-Williams Lumber Co., 34 Ga. App. 348 (2) (129 S. E. 575); Hilley v. Perrin, 3 Ga. App. 143 (59 S. E. 342).

3. “This court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely qrtestions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case.” Weinkle v. Brunswick &c. R. Co., 107 Ga. 367, 368 (33 S. E. 471); Harvey v. Bowles, 112 Ga. 363 (37 S. E. 363); McCain v. College Park, 112 Ga. 701 (37 S. E. 971); Rowe v. Twiggs County, 152 Ga. 548 (110 S. E. 303); Carr v. Carr, 157 Ga. 208 (121 S. E. 227); Civil Code (1910), § 6204.

(a) The ruling by this court in Lowe Co. v. Teasley Co., 4 Ga. App. 155 (3) (60 S. E. 1077), to the effect that where a trial judge, in granting a new trial, places his judgment solely upon a specified ground alleging error of law, the merits of that particular ground will be inquired into regardless of whether the new trial is a first new trial or not, appears to be in conflict with the decisions of the Supreme Court and will not be followed.

4. The verdict in favor of the defendant not having been absolutely demanded by the evidence, the judgment of the trial court granting to the plaintiff a first new trial can not be disturbed by this court.

, iJudgment affirmed.

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

E. R. Lambert, for plaintiff in error. M. G. Few, contra.


text:
    18376.
    Whitfield v. Cohutta Banking Company.
   Bell, J.

1. The negotiable character of an unconditional promissory note-due on a date named is not destroyed by a stipulation therein that “time may be extended without notice to any of the sureties of this note." Such stipulation expresses no agreement to extend the maturity for a certain or an uncertain time, but leaves the matter optional with the holder or open to subsequent agreement between him and the maker, so that he may demand payment at the time specified. In such a case the stipulation does not affect the time of payment as fixed in the instrument, nor in anywise impair its negotiability. This ruling is deemed to be in accord with the sounder doctrine, although there is a conflict of authority upon the question.

(а) Moreover, the sole purpose of the stipulation in this case was evidently to prevent the discharge of sureties, if there were any, in the event of an extension by the holder; and since the particular note was signd only by the maker, there being no sureties, the stipulation was immaterial.

(b) See in this connection, First National Bank v. Stover, 21 New Mex. 453 (155 Pac. 905, L. R. A. 1916D, 1280, Ann. Cas. 1918B, 145); Stitzel v. Miller, 250 Ill. 72 (95 N. E. 53, 34 L. R. A. (N. S.) 1004, Ann. Cas. 1912B, 412).

2. Where a person signs an instrument in the form of a promissory note, payable to “self,” and then indorses it in blank, it is thereafter transferable by delivery, and the indorsement, so long as it continues in blank, makes the note, in effect, payable to bearer. Possession of such an instrument is presumptive evidence of title. South v. People’s Bank, 4 Ga. App. 92 (2) (60 S. E. 1015).

3. The holder of a negotiable instrument bearing an undated blank indorsement is presumed to have acquired it before maturity and to be a bona fide holder for value. Bothell v. Whitley, 3 Ga. App. 755 (3) (60 S. E. 371); Baskins v. Valdosta Bank, 5 Ga. App. 600 (63 S. E. 648); Butler v. First National Bank of Greenville, 13 Ga. App. 35 (3) (78 S. E. 772); Nell v. Snowden, 5 Ga. 1 (2); Roswell Mfg. Co. v. Hudson Co., 72 Ga. 24; Civil Code (1910), § 4288; Brantley v. Merchants &c. Bank, 22 Ga. App. 667 (97 S. E. 109). Hence, in a suit by such a holder against the maker, the burden is not upon the plaintiff to allege or prove that he acquired the note prior to maturity, or to show the date on which he did acquire it. If the plaintiff obtained the note after maturity, the onus of showing this fact would rest upon the defendant, where material to a defense pleaded by him. Hicks v. Hamilton, 3 Ga. App. 112 (59 S. E. 331); Harper v. Peeples, 11 Ga. App. 161 (2) (74 S. E. 1008); Harrell v. National Bank of Commerce, 128 Ga. 504 (57 S. E. 869); 8 C. J. 893. Compare Breman v. Rodbell, 31 Ga. App. 358 (126 S. E. 97); Central R. Co. v. Brandenberg, 129 Ga. 119 (58 S. E. 658); Edwards v. Camp, 29 Ga. App. 556 (2) (116 S. E. 210); 2 Dan. Neg. Inst. (6th ed.) 831, 926, §§ 728, 784. This case is unlike the case of Citizens First National Bank v. Wilson, 155 Ga. 321 (116 S. E. 316); s. c., 30 Ga. App. 295 (117 S. E. 827). In that case the notes were not indorsed but were transferred by a separate paper attached to the note: and there is a material difference between an assignment of that character and a regular indorsement. See Haug v. Riley, 101 Ga. 372 (2) (29 S. E. 44, 40 L. R. A. 244); 1 Daniel Neg. Inst. (6th ed.) 761, 762, §§ 688 (b), 688 (c); 8 C. J. 384, 388, §§ 568, 575.

Decided March 27, 1928.

Rehearing denied June 16, 1928.

Maddox, Maddox & Mitchell, for plaintiff in error.

J. A. McFarland, contra.

4. Applying the above principles, the court did not err in overruling the general and special demurrers -to the plaintiff’s petition.

5. The exceptions by the plaintiff in error are only to the judgment overruling the demurrers to the petition and to a judgment striking the defendant’s plea. There was no final verdict or judgment. While the defendant had the right to bring to this court a bill of exceptions to review the judgment overruling the general demurrer to the petition, yet since there has been no final judgment, he could not in the same bill of exceptions properly except also to the judgment striking the answer. Chatham Motor Co. v. Lincoln Motor Co., 31 Ga. App. 229 (2) (120 S. E. 444); Brown v. Marbutt Lumber Co., 34 Ga. App. 348, 350 (129 S. E. 575).

6. The note sued on was executed prior to the passage of the uniform negotiable instruments act of August 18, 1924, and no question as to the construction of that act is raised or passed upon.

Judgment affirmed.

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


text:
    18382.
    VANDIVER v. GEORGIA RAILWAY AND POWER COMPANY et al.

    Decided March 27, 1928.
    Rehearing denied May 22, 1928.

      Sims, Berman & Parham, for plaintiff.

      Colquitt & Conyers, Sidney Smith, Noah J. Stone, for defendants.
   Jenkins, P. J.

This was a joint action against the Georgia Railway and Power Company and against L. H. Everett and his wife. The judge granted a nonsuit as to the power company, and to this the plaintiff excepted. The power company moved to dismiss the writ of error, for the reason that after the nonsuit had been granted, the plaintiff elected to proceed with the trial against the other defendants singly, and prosecuted it to a conclusion, resulting in a mistrial. It supports the motion by the affidavit of its counsel setting up these facts. Counsel for the plaintiff in error, in an affidavit in resistance to the motion to dismiss, concedes that after the granting of a nonsuit in favor of the power company, the trial was prosecuted against the other defendants and resulted in a mistrial, but sets forth that upon the grant of the nonsuit in favor of the power company the plaintiff asked for a continuance, and that counsel for the power companjr thereupon advised the court that the proper procedure was to go on with the trial as to the other defendants, in order that a writ of error could lie upon a final adjudication. He sets forth in his affidavit that it was upon this advice that the motion for a continuance was overruled, and that he proceeded against the other defendants alone under protest.

1. When in the trial of an action against two or more persons the plaintiff is nonsuited as to any number of the defendants less than the whole number, he may thereupon except and bring the case to the appellate court in order that by a reversal of the judgment, if he be entitled thereto, he may have his action as brought reinstated and tried as a whole. After such a partial nonsuit has been granted, the joint action, unless reinstated, is at an end, and if the plaintiff acquiesces in such adverse judgment by electing to proceed against the other defendants alone, pending such adverse adjudication, he will be held to have thereby abandoned the suit as against the defendant in whose favor the nonsuit has been granted. Ellis v. Almand, 115 Ga. 333 (41 S. E. 642); Poole v. Southern Railway Co., 34 Ga. App. 290 (129 S. E. 297); McConnell v. Frank E. Block Co., 26 Ga. App. 550 (106 S. E. 617).

2. Where a motion to dismiss informs the appellate court of the existence of material parts of the record not specified in the bill of exceptions, it is incumbent upon this court to have the clerk oE the trial court transmit to it copies of the same (Atlanta Suburban Land Corp. v. Austin, 122 Ga. 374, 376, 50 S. E. 124), unless the existence and legal effect of the omitted portions of the record are admitted in writing by the opposite party, in which case this court can consider them as a part of the record without having them sent up. Civil Code (1910), § 6151. Counsel for the plaintiff in error having admitted that the record would show that after the granting of the nonsuit as to one of the defendants he proceeded under protest to prosecute the case against the remaining defendants, and that the trial proceeding against them alone resulted in a mistrial, the rule stated in the foregoing division of the decision must be given application. This is true even were it deemed permissible to consider the statement, dehors the record, of counsel for the plaintiff in error to the effect that counsel for the power company advised the court against granting the continuance prayed for by the plaintiff upon the grant of the nonsuit in its favor, and that the court was influenced thereby, since, whether the continuance was granted or not, the plaintiff could not proceed against the remaining defendants alone without electing to abandon his joint action against them all. His remedy, on refusal of the continuance, was to preserve the status of his suit as a joint action, by excepting to the contrary ruling, and he could not, even under protest, acquiesce in such adverse ruling, and himself elect to sever the action, and, after taking his chances in the trial of the ease against the other defendants alone, complain of the order of nonsuit to which, by his conduct, he had assented.

Judgment affirmed.

Stephens and Bell, JJ., concur.

On motion tor rehearing.

The plaintiff filed a motion for a rehearing, basing her contentions largely upon the rulings in Wood v. Stevens, 144 Ga. 518 (87 S. E. 658), and Ellis v. Almand, supra. In the latter case it was held that the right to review a judgment granting a partial nonsuit can not be preserved by exceptions pendente lite, the remedy being to file direct exceptions, as the plaintiff did in the instant case. The ruling in the Wood case is to the effect that where an action is brought against joint defendants, and a nonsuit is granted as to one of them, the Supreme Court will not entertain a bill of exceptions to review such judgment if it appears that after the grant of the partial nonsuit the plaintiff voluntarily dismissed his suit against the other defendant upon the erroneous theory that it was necessary so to do in order to bring the case to the appellate court for immediate and direct review of the judgment of nonsuit. The ruling in the Wood case recognizes that while the plaintiff had the right to except to the grant of a nonsuit as to one of the joint defendants, and to seek by a reversal of that judgment to have the joint action which had been thus terminated reinstated, yet such could not be done where it appeared that after the grant of the partial nonsuit the plaintiff chose to dismiss the ease as to the other defendant, thus voluntarily destroying its joint character and the power, of the court to reinstate the case as a suit against both defendants. We do not think that the authorities cited in the motion for a rehearing are out of harmony with the decision in this case, but, on the contrary, they indicate that the remedy of the plaintiff upon the adverse ruling granting the partial nonsuit was to preserve the status of her suit as a joint action by making, within the time prescribed by law, direct exceptions to the contrary ruling, without herself voluntarily destroying the joint nature of the action either by dismissing it as against the remaining defendants or by acquiescing in the adverse ruling of partial nonsuit. Her remedy to preserve her joint action was to except, but she could not except and either acquiesce in the court’s severance or, by her own act in dismissing as against the other defendants, destroy the joint nature of the action. The plaintiff can not ask the appellate court to restore the joint status of the action, because, by going to trial against one of the defendants, she has acquiesced in the court’s order of severance; in the Wood case the plaintiff could not ask that the joint nature of her action be restored, because she herself had terminated it by voluntarily dismissing her suit against the remaining defendant. If, upon the refusal of the court to grant a continuance, and a refusal by the plaintiff to proceed singly against the remaining defendant, the court had dismissed the suit as against the remaining defendant, the plaintiff could have excepted not only to the original order of nonsuit, but to the refusal of the court to grant a continuance and to the dismissal of the action against the remaining defendant. Rehearing denied.


text:
    18388.
    GOOGE v. YORK.

      Decided March 27, 1928.

      E. E. ■ Williams, for plaintiff. G. A. Williams, for defendant.
   Bell, J.

Mrs. Lavina Googe, as landlord, procured a warrant for the removal of Frank York, as tenant, upon the ground that he failed to pay the rent when due. The tenant arrested the proceeding by tendering an affidavit in which he denied his alleged default, and thus was formed the issue for trial. Civil Code (1910), § 5385 et seq. The lease was in writing and provided for a term of five years. It stated that the consideration was $200, and recited payment. After the introduction of this document in evidence the plaintiff testified that only one half of the consideration had been paid, and that the defendant had refused to pay the remainder. The verdict was in favor of the defendant, and the plaintiff excepts to the overruling of her motion for a new trial. She complains that the court erred in allowing the defendant to testify that “One hundred dollars was to be paid in cash, and one hundred dollars when half the term of the lease had expired, — two years and a half from date of the lease,” and in allowing the defendant’s wife to testify to the same effect. The plaintiff duly objected to the testimony in each instance, on the ground that it varied and contradicted the terms of the written contract, and was for that reason inadmissible.

Receipts for money are only prima facie evidence of payment and may be denied or explained by parol; and this is true even though the receipt may be contained in a contract, where, as here, it appears as a mere recital. Civil Code (1910), 4188, 5795; Graham v. Peacock, 131 Ga. 785, 787 (63 S. E. 348). It was thus permissible for the plaintiff to show by parol that not all of the rent had been paid at the execution of the contract, notwithstanding the statement to the contrary in the written agreement. Since it was established by testimony that only $100 of the rent was paid at the execution of the contract, the question arises as to when the remainder was due. If the answer to this question is to be found by a resort to the written instrument, then it was improper to allow evidence of a parol agreement in reference to such maturity. Where a contract provides for the payment of money and either expressly or impliedly fixes the date for the payment thereof, evidence that the parties orally agreed on a different date is inadmissible. Crooker v. Hamilton, 3 Ga. App. 190 (3) (59 S. E. 722); Jones v. Taylor, 5 Ga. App. 161 (62 S. E. 992); Civil Code (1910), § 5288.

The cardinal rule for the construction of a contract is to ascertain the intention of the parties, and, if that intention is clear from the language used and contravenes no rule of law, it shall be enforced in determining the rights of the parties. Civil Code (1910), § 4267. The language to be construed in this case is, “Eor and in consideration of the sum of two hundred dollars in hand paid, at and before the delivery óf these presents, the receipt of which is hereby acknowledged;” and, in the absence of anything further in the writing as to the time when the consideration was to be paid, it is obvious that the parties intended a cash transaction, in which the whole amount was due and payable at the execution and delivery of the contract. Any other interpretation would be inconsistent with the manifest understanding as thus expressed in the written agreement between the parties. While it was permissible for the plaintiff to show that a part of the rent was not “paid in hand,” it was a violation of the parol-evidence rule to allow proof of a prior or contemporaneous agreement that this part of the rent was not payable on the consummation of the contract as therein provided. Where no time for the payment of rent is fixed in the lease and the rent is reserved in gross, it generally does not accrue as a debt until the tenant has enjoyed the use of the land for the period for which it is payable, and thus is not due until the end of the term. Parker v. Gorlatowsky, 129 Ga. 623 (3) (59 S. E. 286); 18 Am. & Eng. Enc. of Law, 270; 24 Cyc. 1170. But the parties are, of course, free to agree and stipulate for the payment of the rent at any particular time, and by the positive terms of the agreement here under consideration the entire rent was due immediately. While it is true that the plaintiff delivered the contract and permitted the defendant to take possession of the premises upon the payment of only a part of the rent, this was a mere voluntary indulgence and did not constitute a departure from the terms of the original contract in relation to the time for payment, within the meaning of section 4227 of the Civil Code. See Young v. Durham, 15 Ga. App. 678 (2) (84 S. E. 165). Both parties are presumed to have understood the effect of the contract, and there is nothing to show a new agreement. We think the court erred in allowing the defendant to prove that by a contemporaneous parol agreement the part of the rent which was not paid in cash was not due until the expiration of one half of the rental period. The error in the admission of such testimony was vital and requires a new trial.

Judgment reversed.

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


author: Jenkins, R. J.

text:
    18729.
    Trustees of St. Clair School District No. 10 et al. v. Broxton et al.

   Jenkins, R. J.

1. “No person is lawfully entitled to vote in a school-district bond election held under section 143 of the Code of School Laws of Georgia’ (Acts 1919, pp. 288, 345), whose name does not appear on any list of the county registrars filed with the clerk of the superior court of the county, showing the names of the registered voters of the county entitled to vote.” Chapman v. Sumner Consolidated School District, 152 Ga. 450 (2), 453 (109 S. E. 129).

2. In the instant case it appears, without dispute, that no general or supplementary list purporting to show the registered voters of the school district in which the bond election was held, or of the county in which the district was located, had been certified by the board of registrars and filed with the clerk of the superior court since the year 1921; and it further appears, without dispute, that the names of at least four voters who participated in the bond election held October 17, 1927, and who voted for bonds at that election, had been placed upon the voters’ book after the year 1921, and that the names of such voters did not appear upon any general or supplementary list of voters certified by the registrars and filed by the registrars in the office of the clerk of the superior court; and it further appears, without dispute, that two other persons who voted for bonds were not, at the time of the election, residents of the school district in which the election was held, or of the county in which the school district was located. Accordingly, under the rulings in Chapman v. Sumner Consolidated School District, supra, the judge of the superior court properly ruled that such voters were not qualified to vote in the bond election.

Decided March 27, 1928.

George Hains, solicitor-general, H. J. Fullbrighi, G. 0. Anderson, for plaintiffs.

Lewis & Lewis, for defendants.

3. It appearing that at the bond election of October 17, 1927, twenty-eight persons cast their ballots in favor of bonds, and thirteen persons cast their ballots against bonds, and that of the twenty-eight voting in favor of bonds at least six were disqualified to vote in the election, and that after deducting from the total vote for bonds the ballots of such disqualified persons, the total number of votes cast in favor of bonds did not constitute two thirds of the total number of votes cast in the election, the judge of the superior court did not err in refusing to confirm and validate such bonds.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18757.
    OLIVER et al. v. GODLEY.
    Decided March 27, 1928.

      Robert J. Travis, John Z. Ryan, Oliver & Oliver, for plaintiffs in error.

      Hester & Lewis, contra.
   Bell, J.

(After stating the foregoing facts.)

Irrespective of whether the plea of set-off would have stood without the aid of the agreement between the attorneys, we think the agreement was such that it should have been enforced, and that in view of it the plea should not have been stricken. Rule 19 of the superior court (Civil Code of 1910, § 6278) provides that “No consent between attorneys or parties will be enforced by the court, unless it be in writing, and signed by tbe parties to the consent, where such consent or agreement is denied by the opposite party.” While this rule may not be strictly applicable under the facts of this case, it seems to have been invoked by counsel for the plaintiff in the court below and to have formed the basis of the court’s ruling. Assuming that the rights of the defendants should have been gauged by this rule, an'oral agreement is not necessarily excluded from the provisions thereof; on the other hand, an agreement between attorneys, acting within the scope of their authority, will be binding even though it is not in writing, where it is not denied by the opposite party and where, as here, it appears to have been executed to the detriment of the party invoking it. While the agreement relied on in this case was not in writing and while there may be a difference between counsel as to the construction to be placed upon the words which passed between them, there is in reality no dispute as to what was said. According to the statement of Mr. Hester, he agreed that if the attorneys for Oliver & Oliver would dismiss the suit previously filed against Godley, his firm would dismiss the plea in abatement which they had lodged in behalf of the plaintiff against the plea of set-off filed in the present case by E. J. Oliver and E. M. Oliver, and “would try it all together.” Such was the understanding as disclosed in open court, and there is no issue of veracity or of fact regarding it. It is also undisputed that the agreement was executed by the dismissal of the Oliver suit and by the withdrawal of the plea in abatement to the plea of set-off. It is contended by the attorneys for Godley that the agreement could not have been taken as an admission of the sufficiency of the plea of set-off, or as a waiver of its insufficiency, and therefore constituted no obstacle to their subsequent oral motion to strike the plea upon the ground that the claim made therein was not a proper matter of set-off. We can not agree with this construction. With the original suit of Oliver & Oliver against Godley out of the way, the agreement to “try it all together” clearly contemplated that the issues made in the plea of set-off would be tried upon their merits in the suit of Godley. There was no contention that the plea of the defendants failed to allege a cause of action against the plaintiff, but the sole insistence was that the cause pleaded was not a proper matter of set-off. The plea unquestionably alleged an enforceable debt in favor of the defendants as a firm against the plaintiff, and whether it could be sot up for the purpose of preventing a recovery by the plaintiff was a question more of technicality than of substantial right. The motion to strike the plea upon the ground stated had the purpose of eliminating the only issue raised by the defendants and of leaving the plaintiff’s suit undefended. Thus the claims of the respective parties would be disposed of separately as matters of law, whereas, according to the agreement, they were to be tried “all together.” Such a trial could be had only by allowing the plea to remain of file and trying the issues thereof as matters of fact in connection with the plaintiff’s suit. The motion to strike was inconsistent with the previous agreement as indisputably established by the statements of counsel, and, the agreement having been executed, we think the court erred in not holding the parties to it. Whether the court, under rule 19, should enforce an undenied parol agreement between counsel which is purely executory need not be decided in the present case.-

In Bradshaw v. Gormerly, 54 Ga. 557, several executions in favor of different plaintiffs were levied upon certain land as the property of the same defendant, and the same person filed separate claims. One of the claim cases was tried and the property was found subject. Thereupon the claimant determined to carry that case to the Supreme Court, and it was agreed by counsel that the other cases then ready for trial should be continued and abide the decision of the Supreme Court in the one case carried up. The judgment of the lower court was affirmed, the property was sold, and the proceeds were in order for distribution. The claimant then withdrew his claims in the cases that were continued and sought to have the money arising from the sale of the land paid to him and not to the plaintiffs. On the trial of the money-rule the plaintiffs offered to prove the agreement of counsel and the assent of the claimant thereto, and the court refused to allow them to do so. The fund was awarded to the claimant and the plaintiffs excepted. The Supreme Court, in ruling that the withdrawal of the claims by the claimant was a violation of his agreement, said: “He himself assented to what his counsel agreed, and it would be to permit a gross fraud to allow him to repudiate his bargain after lie had made it and lost the case here. If he had not assented in person, he would have been concluded by the acts of his counsel; for the agreement was executed by plaintiffs not trying but continuing their cases, and the claimant is estopped from saying that the agreement was not in writing.”

In Seals v. Stocks, 100 Ga. 10 (30 S. E. 278), the controversy was in relation to the effect of an order procured by the plaintiff dismissing an action of bail-trover in which the bond had been given by the plaintiff. It was insisted by the plaintiff that the suit had been dismissed with the understanding that the only effect would be a mere failure to recover in the action, while the defendant contended that because of such dismissal he was entitled to a judgment against the plaintiff and his sureties on the bond. In the opinion of the Supreme Court it was said: “While there was no agreement in writing which the court could enforce as such, there evidently was a definite understanding as to the legal effect of an order of court which the plaintiffs’ counsel, as a result of the conference had with counsel for the opposite party, caused to be entered under the honest belief that the latter consented thereto. It is true that Rule 20 [now Rule 19] of the superior courts declares: ‘No consent between attorneys or parties will be enforced by the court, unless it be in writing and signed by the parties to the consent, where such agreement is denied by the opposite party.’ But it was held in Bradshaw v. Gormerly, 54 Ga. 557, 559, that though such an agreement rested wholly in parol, yet, if acted upon in good faith and partly executed by one of the parties thereto, the opposite party would be estopped from saying that the agreement was not in writing. It is clear that counsel for the plaintiffs would not have procured the order in question to be entered but for the fact that he relied upon what he believed to be a distinct understanding and agreement between himself and opposite counsel that such order should operate as a final disposition of the case; and having acted upon and fully executed this agreement, it is binding upon the defendant as effectually as though it had been reduced to writing and signed by his counsel. It makes no difference that, owing to a misconception of the legal effect of the order, the end in view failed of accomplishment. This result grew out of the mutual mistake of counsel as to a matter of law, viz.: as to how their agreement could be legally carried into effect. It would be manifestly unfair to allow one of the parties to profit thereby, deriving an advantage not contemplated by the agreement as actually made. Indeed, our code distinctly recognizes the equitable principle that relief from consequences of a mistake of law will be granted where, through a misconception on the part of both parties to an agreement, the language employed to express the same has a different legal meaning from that contemplated, and ‘ operates as a gross injustice to one' of the parties, ‘and gives an unconscientious advantage to the other.' Civil Code, § 3979 [Code of 1910, § 4576]." See further, in this connection, Johnson v. Wright, 19 Ga. 509; Johnson v. Ga. Fertilizer & Oil Co., 21 Ga. App. 530 (94 S. E. 850).

While in the foregoing discussion we have proceeded upon the assumption that the case should be determined under Rule 19 of the superior courts, and have cited cases from the Supreme Court which apparently would justify this view, the case of Beverly v. Flesenthall, 142 Ga. 834 (83 S. E. 942), makes it doubtful whether the rule is really applicable. Here, as in the Beverly case, the controlling principle would seem to lie not in the rule of court, but in the .equitable rule of estoppel. In that case the Supreme Court said: “The case does not depend upon the rule of court that agreements between counsel in regard to matters of practice in the case must be in writing in order to be enforceable, but upon the question of whether the plaintiff acted upon certain statements and assurances as to the dismissal of suits, so that it would operate upon her as a fraud to take advantage of the fact that she did not file pleas in due time." In this view, it perhaps would have been more logical for the defendants to have alleged the facts touching the agreement in an amendment to the answer and to have submitted proof thereof in the trial of the main issue as formed by the plea. But since there was no objection to the procedure by which the defendants attempted to resist the motion to strike, and since the pleadings and the evidence in relation to the agreement were as a matter of law sufficient to let in the plea of set-off, and, the plea having thus been improperly stricken, it is immaterial whether, the issues in regard to the agreement were submitted to the court rather than to the jury. Turner v. Planters Chemical Co., 21 Ga. App. 480 (2) (94 S. E. 616). In any view, the counsel .having agreed that the issues as made in Godley’s suit upon the note and in the plea of set-off filed by the defendants should all be tried together, and the agreement being one which they were authorized to make (Commercial Union Assurance Co. v. Chattahoochee Lumber Co., 130 Ga. 191, 60 S. E. 554; Bryant v. Elberton & Eastern Ry. Co., 20 Ga. App. 586 (2), 93 S. E. 219), it was not permissible for the plaintiff’s attorneys to withdraw from the stipulation after the defendants had acted upon it to the extent of dismissing the suit which they had previously filed against Godley upon the account.

It is plain that the suit of Oliver & Oliver against Godley would not have been dismissed if it had been thought by counsel or parties in that case that the plea of set-off in the other case would thereafter be put in jeopardy by a motion to strike.. And we can not assent to the proposition that the dismissal of the suit against Godley at the expense of the plaintiffs therein constituted no loss or damage to them, even assuming it be true, as asserted by counsel for Godley, that there is nothing to prevent the partnership from bringing another action for the subject-matter of the set-off.

Moreover, we are of the opinion that, independently of all extraneous considerations, the plea of set-off was good. It is true that if Godley had sued only one of the indorsers, the defendant could not have pleaded as a set-off the claim of the partnership of which he was a member. Such a plea would have involved the right of a stranger to the action, whose consent to such use of the partnership claim could not have been assumed. Bishop v. Mathews, 109 Ga. 790 (35 S. E. 161); Dalton City Co. v. Dalton Mfg. Co., 33 Ga. 243; West v. Kendrick, 46 Ga. 526; Wilson v. Exchange Bank, 122 Ga. 495 (50 S. E. 357, 69 L. R. A. 97, 2 Ann. Cas. 597); Metcalf v. Peoples Grocery Co., 24 Ga. App. 663 (101 S. E. 768); Nellis v. Green, 36 Ga. App. 684 (2) (137 S. E. 843), and cit. In Bishop v. Mathews, supra, while both members of the partnership were sued, only one answered or attempted to plead a set-off and there was nothing to show the consent of the other partner thereto. In the instant case, however, the suit was upon a note in which the obligation was joint, even though at the same time several, and the plaintiff elected to bring a joint action. The individual defendants were the same persons, and all the persons who composed the partnership whose account against the plaintiff was pleaded as a set-off and joined in pleading it. All parties to both claims were before the court as parties to the issue, and no right of any other person appears to be infringed. Between the parties themselves any mutual demands existing at the commencement of the suit may be set off. Civil Code (1910), § 4340. Set-off must be between the same parties and in their own right. If originally otherwise, bnt at the commencement of suit equitably within this rule, they may be set off. Civil Code (1910), § 4341. We think the claim attempted to be set off in this case was such as to meet every test of these sections, and thus that the plea was good as against the motion to strike. Compare Youmans v. Moore, 11 Ga. App. 66 (3) (74 S. E. 710); McAllister v. Millhiser, 96 Ga. 474 (2) (23 S. E. 502); Fralick v. Cœur D’Alene Bank & Trust Co., 35 Idaho, 749 (208 Pac. 835, 27 A. L. R. 110), and cit. in note; 34 Cyc. 738.

Judgment reversed.

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


author: Luke, J.

text:
    17194.
    Decatur County v. Praytor, Howton & Wood Contracting Co.
    Decided April 10, 1928.

      H. G. Bell, Pottle & Hofmayer, for plaintiff in error.

      Jones, Bvins, Moore & Powers, Copeland & Dulces, T. G. Connell, B. K. Wilcox, contra.
   Luke, J.

Under the ruling of the Supreme Court in this case, made on February 14, 1928, 165 Ga. 742 (142 S. E. 63) (the case having been brought before that court from this court by writ of certiorari), the petition as amended failed to set out a cause of action, and the trial court erred in overruling the general demurrer. In conformity to that ruling, the former judgment of this court, holding that the trial court properly overruled the general demurrer to the petition as amended (36 Ga. App. 611, 137 S. E. 918), is vacated, and the judgment of the lower court is

Reversed.

Broyles, O. J., and Bloodworlh, J., eonew.


author: Broyles, C. J.

text:
    17850.
    Heath v. Philpot.
   Broyles, C. J.

1. “Where a motion for new trial has been decided upon its merits and a new trial refused without any motion having been made before the trial court to dismiss the motion for new trial on the ground that there was no brief of evidence, the reviewing court on a motion to dismiss the bill of exceptions will consider the motion for hew trial as sufficient to authorize an assignment of error upon the judgment refusing a new trial, notwithstanding a brief of evidence may not have been made, approved, or filed as a part of the motion for new trial.”

Decided April 10, 1928.

Pierce Brothers, for plaintiff in error.

Paul T. Chcmce, contra.

2. “Where a bill of exceptions duly assigns error on a judgment refusing a new trial, and also upon an antecedent ruling io which exceptions pendente lite had been duly taken, the bill of exceptions will be sufficient to bring- under review the assignment of error upon the judgment denying the motion for a new trial and also the assignments of error either on the exceptions pendente lite or assignments of error made directly upon the antecedent ruling complained of in the exceptions pendente lite, where the bill of exceptions was presented to the judge within the time allowed by law for excepting to a judgment granting or refusing a new trial, notwithstanding the bill of exceptions was not presented to the judge within 30 days from the date of the antecedent ruling.”

3. “If an agreement to pay a less sum in settlement than the amount claimed as damages in an action for a tort (injury to reputation) that was barred by the statute of limitations would afford ground for a cause of action, it would be a new cause of action which could not be added by amendment to the original petition in the action based on the tort.”

4. The preceding rulings are quoted from the decision of the Supreme Court in this case, in answer to questions certified by this court. 165 Ga. 844 (142 S. E. 283). Under the rulings in the first and second paragraphs the motion to dismiss the bill of exceptions is denied; and under the ruling stated in paragraph 3, the court erred in allowing the amendment to the original petition; and that error rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    17994.
    Export Insurance Company v. Womack.
   Luke, J.

1. “Where a suit is brought in the city court of Richmond county upon a policy of insurance issued by a company which was not organized under the laws of this State, and which has no agency or place of doing business in the State, but which is transacting business here under the provisions of section 2446 of the Civil Code of 1910, and which (in accordance with such provisions) has appointed a resident of Eulton county to acknowledge or receive service of process for and in behalf of the company in all proceedings that may be instituted against it in any court of this State, and where service is perfected upon the company by having the sheriff of Eulton county leave with such resident of the county personally in that county a copy of a second original of the petition and process of the suit, and where the company did not have an agency or place of doing business in Richmond county, either at the time the contract sued on was made or at the time the cause of action accrued, or at the time when the suit was instituted (the above-referred-to resident of Eulton county being the only agent of the company in this State upon whom service of the process in the suit could be made), and where the petition fails to show in what county the contract was made or where the loss sued for occurred, or where the plaintiff resided, the city court of Richmond county has jurisdiction of the suit.”

Decided April 10, 1928.

Smith, Hammond & Smith, Hull, Barrett & Willingham, for plaintiff in error.

W. Inman Gurry, contra.

2. The above-stated ruling was made by the Supreme Court in this case, in answer to a question certified by this court. See the full and exhaustive opinion written by Chief Justice Russell and handed down on February 16, 1928. 165 Ga. 815 (142 S. E. 851). Under that ruling the trial court did not err in overruling the demurrer to the amended petition and the motion to dismiss the action.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    18626.
    RICHARDSON v. SEIBERT et al.

    Decided April 10, 1928.

      Lee, Gongdon & Fletcher, for plaintiff in error.

      W. Inman Gurry, contra.
   Luke, J.

Seibert & Robinson brought this action against Harold A. Richardson to recover a balance alleged to be due under a contract for the restoration and repair of a dwelling house damaged by fire. The entire consideration of the contract, including certain extras agreed upon, was $12,396.22. In rendering a statement of the account, in which credit was given for a part payment of $5344.70, Seibert & Robinson made an error of $1000 against themselves, thus showing the balance claimed as due to be $6051.52 instead of $7051.52, and later received a check from Richardson for the erroneous balance indicated by the statement, and executed a release from further liability. As to the circumstances under which the check was given and the release executed, the testimony of the parties to the transaction is in conflict. This is especially true as to whether there was any actual dispute between the parties as to the amount claimed to be owing, and as to what was the real inducement and purpose of the release. It seems to be uncontroverted, however, that Richardson, after having detected the error in subtraction in the statement rendered, and without disclosing that fact, and without in anywise putting his creditor upon notice of it, invited Robinson to his office for the purpose of a settlement. It further appears quite clearly that Robinson did not discover and was not aware of the error until after he had received and accepted the check and had signed and surrendered the release. It also seems undisputed that Robinson acted in that connection under the delusion that he was receiving payment in full for the balance of the account against Richardson. Robinson, however, before using the cheek, was apprised of the mistake, and, immediately upon its discovery, notified Richardson, who suggested that, if not satisfied, he should return the check and litigate the claim. But Robinson deposited the check for collection, and, having collected the proceeds, afterwards instituted this action.

The essential question presented in this case, of course, is whether there was an accord and satisfaction between these parties, and whether the release is to be regarded as conclusive evidence of settlement for a sum less than claimed.

The question of fact whether there was an accord and satisfaction in this case was one which the jury primarily was called upon to determine. The circumstance' of Richardson’s silence, at a time and in a situation when in good faith he was bound to speak of the error in the statement then before the parties as the basis of the proposed settlement, was alone sufficient to warrant the finding of the jury that there was no accord and satisfaction. In view of the testimony, which the jury was entitled to accept, the release might well be regarded as a mere nullity in the hands of Richardson, for the reason that it owed its existence to the inadvertence upon the part of the creditors, Seibert & Robinson, the deceit upon the part of Richardson, and, according to the testimony of Robinson, the fraudulent inducement to its execution and delivery. In this view, then, what was the effect of the conduct of Robinson in retaining the check and appropriating it after the discovery of the actual facts, instead of returning it to Richardson and litigating the matter? The court is well aware of the rule of law requiring one who desires to avoid a contract to make, or offer to make, restitution of that which he has received by virtue of it. The reason of the rule, of course, is that the parties are to be restored to the status quo. But in this case, in the view that the jury evidently adopted, Robinson received nothing by virtue of the pretended accord and satisfaction. He testified that Richardson declared that he desired to pay the account in full, and that he accepted the check and gave the release under the misapprehension that he had received payment in full. Taking this testimony, to be true, it could make no possible difference to Richardson whether his check was used or not. He was not prejudiced by the retention of a payment for a portion of the amount for which he admittedly was indebted. So that in these circumstances no legal duty rested upon Seibert & Robinson to return the partial payment represented by the check in question, before bringing this action for the balance claimed, — no more, indeed, than there was a legal duty to return the payment that had been previously made upon the same account.

Nor is this court inclined to share the view of counsel for the plaintiff in error with reference to the court’s charge to the jury in this ease. The charge seems to embrace all the essential phases of the controversy upon which it was the duty of the judge to instruct the jury, and no prejudicial error appears in the interpretation of the legal principles involved.

Judgment affirmed.

Broyles, O. J., md Bloodworth, J., concur.


text:
    18636.
    FENDER et al. v. HODGES.
    Decided April 10, 1928.

      Little & JDicIcerson, for plaintiff in error.

      F. 8. Harrell, F. K. Wilcox, contra.
   Luke, J.

This case arose in a contest as to the priority of the respective claims of the parties to funds arising from the sale of described land, Mrs. M. A. Hodges (the plaintiff in the trial court, but now the defendant in error) claiming under an unrecorded bond for title which, as security for a loan, had been transferred to her by J. L. Roberts, A. T. Woodward, and L. S. Roberts (who took it from J. W. Lovejoy and J. H. Baskins, the original owners of the land), and the plaintiffs in error claiming under a security deed to Harry L. Winters Inc. from J. L. Roberts, one of the obligees in the bond for title, which deed, after several transfers to others, was finally transferred to the plaintiffs in error. Hpon an agreed statement of facts the ease was submitted to the court, to be tried without the intervention of a jury, and the court held that the claim of Mrs. Hodges was superior to that of the plaintiffs in error.

The substance of the agreed statements of fact appears from the following: On January 22,1918, J. W. Lovejoy and J. H. Baskins executed and delivered to Charles Forman a deed to certain land to secure the payment of a note for $2000. The deed was recorded March 2, 1918. On January 15, 1920, the makers of that deed executed and delivered to J. L. Roberts, A. T. Woodward, and L. S. Roberts a bond for title conditioned to make title to the said land upon the payment of certain purchase-money notes given by them for the land, and of the said Forman note. The bond for title was never recorded. J. L. Roberts entered into immediate possession of the land, and retained possession thereof until about January 1, 1927. On January 20, 1920, J. L. Roberts, Woodward, and L. S. Roberts borrowed from Mrs. M. A. Hodges $2500, giving her their joint note for it, due January 20, 1921, and transferred to her, as security for its payment, the said bond for title. This transfer was never recorded. On January 31, 1922, J. L. Roberts executed and delivered to Harry L. Winter Inc. a deed to the said land to secure a note for $5000. The security deed was not recorded until February 14, 1922. The $5000 was not actually delivered to J. L. Roberts until after the execution and delivery to him of the warranty deed next hereinafter mentioned. The security deed from J. L. Roberts to Harry L. Winter Inc. was taken by tbe latter “without personal or direct knowledge of the existence of any bond for title or of the transfer” of the same to Mrs. Hodges. On February 13, 1922, J. W. Lovejoy and J. H. Baskins executed and delivered to J. L. Roberts a warranty deed to the said land, which deed was recorded March 21, 1922. On November 22, 1922, Charles Forman transferred and assigned to Continental Casualty Company the security deed and notes given him by J. W. Lovejoy and J. H. Baskins. This transfer and assignment was recorded September 29, 1923. On February 26, 1927, Continental Casualty Company transferred and assigned to Mrs. Hodges the Forman security deed and notes, and the transfer and assignment was recorded March 9, 1927. On February 18, 1922, Harry L. Winter Inc. transferred and assigned to Bennington County Savings Bank the security deed given it by J. L. Roberts; and the transfer and assignment was recorded March 14, 1922. The said bank took the security deed and the note it was given to secure and paid for the same “without any personal or direct knowledge of the existence of said bond for title or of the transfer of same.” On November 6, 1926, the bank transferred and assigned tó Y. F. Carter all its right, title, and interest in the notes and security deed of J. L. Roberts to Harry L. Winter Inc., and this transfer and assignment was recorded July 6, 1927. Hnder the agreed statement of facts, the said Y. F. Carter and W. L. Fender jointly paid for the said security deed, but in the transfer and assignment Fender’s name was inadvertently omitted as one of the grantees. Just prior to purchasing the said security deed, Carter and Fender asked J. L. Roberts if there were any prior liens against the property described in the deed, and Roberts replied that there were none other than the Forman security deed. On September 6, 1927, Mrs. Hodges, as transferee of the notes and security deed given by J. W. Lovejoy and J. H. Baskins, sold the land, under the power of sale in that deed, to Fender and Carter for $7600. Prior to the said sale Mrs. Hodges and Fender and Carter entered into a written agreement whereby Mrs. Hodges should be first paid from the proceeds of the sale the full amount of her claim under the Forman security deed, “and that in the event either of the parties to said agreement should become the purchaser of said land, that the party that purchased would execute and deliver to the party that did not purchase a bond conditioned to pay the obligee in said bond the amount of their claim in the event it should be established by proper legal proceedings that the lien claimed by the obligee was superior to that claimed by the obligor; provided the remainder of the funds arising from the sale was sufficient to pay such claim after having first paid the amount due petitioner as assignee of the Forman debt, and in the event it was not sufficient, then the bond should cover such deficiency only.” This bond was given by the said Fender and Carter, with J. Floyd Fender as security. After paying to Mrs. Hodges the full amount of her claim under the Forman security deed, said W. L. Fender and Y. F. Carter had on hand for distribution $5245.36. After the transfer to W. L. Fender and Y. F. Carter of the security deed given by J. L. Eoberts to Harry L. Winter Inc.j Mrs. Hodges filed suit on the note given her by J. L. Eoberts, A. T. Woodward, and L. S. Eoberts (the said note being secured by the transferred bond for title), and procured a judgment thereon, which was never paid.

The court adjudged that Mrs. Hodges had a superior lien on the fund arising from the sale of the land to that claimed by W. L. Fender and Y. F. Carter under the Harry L. Winter Inc. security deed, and rendered judgment against W. L. Fender and Y. F. Carter as principals, and J. Floyd Fender Jr. as surety, for the full amount of principal, interest, costs and attorney’s fees recovered by Mrs. Hodges in her said suit against J. L. Eoberts, A. T. Woodward and L. S. Eoberts.

The first conveyance of the land in question (so far as shown by the record in this case) was by security deed from Love joy and Baskins to Forman, dated January 22, 1918, and recorded March 2, 1918. After many deeds and transfers between various parties, this original security deed finally came into the hands of Mrs. Hodges by a transfer to her from Continental Casualty Company, dated February 26, 1927, and recorded March 9, 1927. By a contract between the parties litigant this security deed is recognized as' a superior lien on the land; but reference thereto is made because it tends to show the consistency and sequence of Mrs. Hodges’ title, and because Carter and Fender obtained their alleged title between the dates of these two conveyances. It is also material to note that the notes and the security deed under which Carter and Fender claim were acquired by them after maturity of the notes.

Beference to the foregoing statement of facts will show that on January 15, 1920, Roberts, Woodward, and Roberts acquired a bond for title to the land in question, and that on January 20, 1920, they transferred this bond to Mrs. Hodges to secure a loan, and she now claims under this bond. Neither the bond nor the transfer thereof is recorded, but on the dates of the execution of the bond and its transfer there was no statute providing for the record of a bond for title or of the transfer thereof in order for it to be binding as against third persons. Guaranty Investment Sc. Co. v. Athens Engineering Co., 152 Ga. 598 (3) (110 S. E. 873); McClure v. Smith, 115 Ga. 709 (42 S. E. 53).

Carter and Fender claim as successors in title to Winter Inc., which acquired a security deed from Roberts on January 31, 1922. Since at that time there was absolutely no record of any title whatever in Roberts, ordinary diligence would have put Winter Inc. upon inquiry which would have disclosed that Mrs. Hodges was the holder of the bond for title to the said property. “Notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, is equivalent to knowledge, in fixing the rights of the parties.” Civil Code (1910), § 4530. See also Waller v. Neil, 117 Ga. 746 (45 S. E. 387); Picklesimer v. Smith, 164 Ga. 600 (2) (139 S. E. 72). However, since the claim of the plaintiffs in error comes through the deed from Roberts to Winter Inc., dated January 31, 1922, and since on that date Roberts had no title to the property nor even a right to title, he having previously on January 20, 1920, transferred to Mrs. Hodges his bond for title, Roberts had nothing to convey to Winter Inc., and Winter Inc., though it may have purchased in good faith, acquired nothing. “A purchaser in good faith from one who has no title, in ignorance of the rights of the true owner, obtains no title. He is not such an innocent purchaser as would be protected from the title of the owner.” Compton v. Cassada, 54 Ga. 74 (2).

Under the law and the agreed statement of facts, the court did not err in holding that the lien of Mrs. Hodges upon the funds arising'from the sale of the land was superior to that of the plaintiffs in error; and the judgment rendered in her favor is

Affirmed.

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


author: Broydes, C. J.

text:
    18686.
    CITY OF MANCHESTER v. DUNN.
    Decided April 10, 1928.

      W. B. Smith, J. F. Hatchett, for plaintiff in error.

      J. B. Terrell, G. 0. Thompson, contra.
   Broydes, C. J.

Dunn was convicted in the municipal court of the city of Manchester of the violation of a certain ordinance of that city, and by certiorari took the case to the superior court of Meriwether county. Upon the hearing the judge of the superior court held that the ordinance was invalid and sustained the certiorari. The City of Manchester excepted to that judgment and sued out a writ of error.

In no criminal or quasi-criminal case has the State or any municipality the authority to except to any sentence, judgment, or decision of the court. Such exception can be made only by the accused.

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


text:
    18687.
    Adams v. The State.
    Decided April 10, 1928.

      W. A. Hampier, for plaintiff in error.

      J. A. Merritt, solicitor, contra.
   Luke, J.

The evidence connecting the defendant with the oifense charged being, entirely circumstantial, the failure of the court to instruct the jury upon the law of circumstantial evidence was reversible error.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., eoneur.


author: Bloodworth, J.

text:
    18688.
    Harris v. The State.
   Bloodworth, J.

1. In this State a married woman cannot legally have, control, or possess intoxicating liquor, though it be owned by her husband. Smith v. State, 34 Ga. App. 776 (131 S. E. 185).

Decided April 10, 1928.

W. A. Dumpier, for plaintiff in error.

J. A. Merritt, solicitor, contra.

2. The motion for a new trial contains only the. usual general grounds, and the evidence authorized the conviction of the accused.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    18689.
    Jordan et al. v. The State.
    Decided April 10, 1928.

      F. A. Irwin, for plaintiffs in error.

      J. A. Wright, solicitor, contra.
   Broyles, C. J.

1. “Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” McCall v. State, 23 Ga. App. 770 (99 S. E. 471); Franklin v. State, 28 Ga. App. 460 (1 b) (112 S. E. 170). Under this ruling the first two grounds of the amendment to the motion for a new trial are too defective to raise any question for the consideration of this court.

2. The charge upon the subject of alibi, in the absence of a request for a fuller charge thereon, is not error for any reason assigned. See, in this connection, Hansom v. State, 2 Ga. App. 826, 827 (59 S. E. 101); Eugee v. State, 159 Ga. 604 (13) (126 S. E. 471).

3. The last special ground of the motion for a new trial is not referred to in the brief of counsel for the plaintiff in error and is treated as abandoned.

4. The evidence was in acute conflict as to whether the offense was committed in Alabama or in Polk county, Georgia, but there was some evidence that authorized the jury to determine that question in favor of the State.

5. The verdict was authorized by the evidence and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18691.
    TOWERY v. CITY OF McCAYSVILLE.
    Decided April 10, 1928.

      Thomas H. Crawford, for plaintiff in error.

      William Butt, contra.
   Luke, J.

In his petition for certiorari to review a judgment of the mayor’s court of the City of McCaysville, the plaintiff in error alleged that his case was tried on August 3, 1927. The mayor in his answer to the petition unqualifiedly admitted the paragraph containing that allegation. The copy of the certiorari bond attached to the petition as an exhibit recited that the petitioner was convicted on September 3, 1927, and the writ was sanctioned on September 14, 1927. It also appears from the record that the petition was presented to the court either on September 13 or September 14, 1927.

The judgment dismissing the certiorari was correct. See Civil Code (1910), § 5188; Landrum v. Moss, 1 Ga. App. 216 (57 S. E. 965); Sirmans v. Zucher Importing Co., 9 Ga. App. 789 (2) (72 S. E. 190).

Judgment affirmed.

Broyles, C. J., and Bloodivorth, J., concur.


text:
    18692.
    Candler Auto Company, for use, etc. v. Evans.
    Decided April 10, 1928.

      Hugh B. Kimbrough, J. L. Brown, for plaintiff in error.
    IF. T. Burhhalter, contra.
   Luke, J.

In this case there is no assignment of error upon a final judgment; and, indeed, there is no assignment of error upon the judgment overruling the motion for a new trial. It follows that the writ of error must be dismissed.

Writ of error dismissed.

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


author: Bloodwoktii, J.

text:
    18693.
    Motes v. The State.
    Decided April 10, 1928.

      F. A. Irwin, for plaintiff in error.

      J. A. Wright, solicitor, contra.
   Bloodwoktii, J.

1, The defendant's motion fox a continuance was upon the ground that he was physically unable to stand trial. He was present in court and the trial judge had an opportunity to consider his condition, as well as the evidence adduced on the hearing of the motion, and it does not appear that the judge abused his discretion in refusing to grant a continuance. Rowland v. State, 125 Ga. 792 (54 S. E. 694) ; Ogletree v. Slate, 22 Ga. App. 628 (96 S. E. 1049).

2. The evidence authorized the verdict, no error of law is shown, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Luke, J., eonour.


text:
    18694.
    REEVES v. THE STATE.
    Decided April 10, 1928.
    Rehearing denied Mat 15, 1928.

      H. A. Allen, Jesse B. Simmons, for plaintiff in error.

      John A. Boyhin, solicitor-general, J. W. LeOraw, John H. Hudson, contra.
   Broyles, C. J.

The indictment in this case charged “James Reeves, A. F. Reeves and Mrs. A. F. Reeves with the offense of misdemeanor, for that said accused, in the county of Fulton and State of Georgia, on the 13 day of March, 1927, with force and arms, did drive and operate an automobile along and upon Central Ave. (Hapeville), a public street and highway, James Reeves, the actual driver and operator thereof, being a boy under the age of sixteen years, and accused J. A. Beeves and Mrs. J. A. Beeves (italics ours) did counsel, aid, instruct, command, and procure James Reeves to commit the said act of operating said automobile as aforesaid, knowing that James Reeves was under the age of 16 years as aforesaid, Mrs. Beeves being present at the commission of said offense, and J. A. Beeves not being present at the commission of said offense.”

The indictment was not demurred to. Mrs. A. F. Beeves was placed on' trial and was convicted. In her motion for a new trial she attempts to raise a question as to the legal sufficiency of the indictment. It is well settled that such a question can not be properly raised in a motion for a new trial. Moses v. State, 123 Ga. 504 (51 S. E. 503), and cit. Where an indictment is on its face fatally defective, “advantage of such a defect must be taken by demurrer before pleading to the merits, or by motion in arrest of judgment after verdict.” Boswell v. State, 114 Ga. 40 (2) (39 S. E. 897).

Upon the trial the undisputed evidence showed that the boy charged with operating the automobile was thirteen years old, and that, on the day and highway charged in the indictment, he was driving an automobile owned by his father and mother; that his mother (the defendant) was riding in the 'car and that his father was not present. Under these circumstances the presumption arose (and there was no evidence, direct or circumstantial, to rebut it) that the defendant (the mother) knew that her son (the driver of the automobile) was under the age of sixteen years, and that he was operating the automobile with her knowledge, consent, and approval. It follows that she was present at the commission of her son’s offense and that she was aiding and abetting in it, and her conviction as a principal therein (all persons aiding and abetting in the commission of a misdemeanor being principals therein) was demanded. The refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18695.
    Bagwell v. Rice & Hutchins Atlanta Company.
    Decided April 10, 1928.
   Broyles, C. J.

The amended petition, properly construed (most strongly against the pleader), is an action for injuries to the reputation of the plaintiff; and, it appearing-upon the face of the petition that the causo of action originated more than one year before the filing of the petition, the action was barred by the statute of limitations and was properly dismissed on demurrer. Civil Code (1910), § 4497; Irvin v. Bentley, 18 Ga. App. 662 (90 S. E. 359).

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.

Charles W. Anderson, for plaintiff.

Alston, Alston, Foster & Moise, for defendant.


text:
    18696.
    COX et al. v. CENTRAL OF GEORGIA RAILWAY CO.

      Decided April 10, 1928.
    Rehearing denied May 15, 1928.

      Pool & Fraser, for plaintiff.

      Little, Powell, Smith & Goldstein, for defendant.
   Luke, J.

J. C. Cox and others brought this suit against the Central of Georgia Kailway Company, for' damages for the wrongful death of their mother by the negligent operation of its train at a public crossing in the City of Hapeville. A general demurrer to the petition was sustained; and the plaintiffs excepted.

The petition alleges that as Callie Cox, the mother of the plaintiffs, was walking across the right of way of the defendant in the City of Hapeville, upon a public crossing, used by the public, the defendant’s train was negligently run over her; that the train was being operated at an excessive, dangerous, and illegal rate of speed, of fifty miles per hour; that upon approaching the crossing no warning was given, no whistle sounded, and no bell rung, nor the speed of the train reduced; that no proper lookout was maintained; and that the defendant failed to keep the train under control, and failed to stop. The petition alleges also that the deceased was an able-bodied woman, etc.

Does the petition, with these allegations, sufficiently state a cause of action P It affirmatively appears .that the deceased was an able-bodied woman. Presumably she was in full possession of all her faculties. Tt is not suggested that she did not see or hear the approaching train, that her view of the tracks was obstructed or obscured, or that there existed any other fáct or circumstance to avoid the necessary, natural inference from the facts, specifically alleged, that she deliberately walked upon the railway tracks, toward which the rapidly moving train was approaching, within her plain sight and hearing, and thereby placed herself in a position of obvious peril. Indeed, nothing is alleged to relieve the deceased from the imputation in those circumstances that her death, was due entirely to her own negligence, — her failure to exercise ordinary care lor her own safety in the first instance.

Of course, the ordinary rule is that a plaintiff is required to allege only such facts as are necessary to make a prima facie case, and need not anticipate or avoid any defense, even that of contributory negligence. But here no fact is shown to indicate that the deceased was not wholly conscious of the obvious danger of going upon the track, and, therefore, it can not be fairly said that the facts alleged do not indicate that her death was not the direct result of her own conduct. See Peeples v. L. & N. R. Co., 37 Ga. App. 87 (139 S. E. 85).

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


author: Bboyubs, C. J.

text:
    18697.
    Fair et al. v. Culpepper & Son.
   Bboyubs, C. J.

1. The motion (made in the brief of counsel for the defendant in error) to dismiss the bill of exceptions is denied.

2. Although, “since the passage of the act of September 21, 1881, the plaintiff in an action in a justice’s court must set forth, with some degree of certainty, his cause of action” (Thomas v. Forsyth Chair Co., 119 Ga. 693, 46 S. E. 869), it is still true that the niceties of pleading required in superior courts and in city courts are not required in a justice’s court.

(a) “In a suit in a justice’s court it is immaterial whether the ‘copy’ of the ‘cause of action sued on’ is contained in the body of the summons or is attached as an exhibit thereto.” Southern Railway Co. v. Collins, 118 Ga. 411 (2) (48 S. E. 306). In the instant case the plaintiff’s proceedings were not subject to the demurrers interposed.

3 This was a suit in a justice’s court by a local agent of a fire-insurance company to recover from the insured the first annual premium which had been paid to the company by the agent for and in behalf of the insured. The insured pleaded, among other things, that the plaintiff was not entitled to recover, because the policy of insurance was void: (1) because it had never been actually delivered to the insured; and (2) because the insured’had no title to the property insured, and, therefore, the policy, under certain provisions therein, was void. These contentions are not sound. A manual delivery of a policy of fire-insurance is not required where the policy has been issued by the company and is merely retained by the agent for his individual protection until reimbursed by the insured. Fireman’s Fund Insurance Co. v. Pekor, 106 Ga. 1 (2) (31 S. E. 779). It is likewise well settled that a policy of fire insurance is not void by reason of the fact that the title to the property insured is not in the insured (a provision of the policy declaring that such fact voids the policy), where at the time of the writing of the policy that fact was known to the agent of the company writing the policy. Brown v. Globe &c. Insurance Co., 161 Ga. 849 (133 S. E. 260).

Decided April 10, 1928.

Bva Luke Hay, for plaintiffs in error. James B. Burch, contra.

4. The evidence on the trial was in acute conflict as to whether the agent writing the policy had authority from the insured so to do, but that question was resolved by the jury in favor of the plaintiff, and the finding was not without evidence to support it. It does not appear, for any other reason assigned in the petition for certiorari, that the verdict and judgment in favor of the plaintiff were unauthorized. The refusal of the judge of the superior court to sanction the certiorari was not error.

Judgment affirmed.

Luke and Bloodioorlh, JJ., concur.


author: Bboxles, C. J.

text:
    18698, 18699.
    Artope v. Central of Georgia Railway Company (two cases).
    Decided April 10, 1928.
   Bboxles, C. J.

1. “To entitle a party to recover damages of a railroad company on account of the negligence of its agents, it should appear that the negligence was the natural and proximate cause of the injury; for should it appear that the negligence of the railroad company would not have damaged the party complaining but for the interposition of a separate, independent agency, over which the railroad company neither had nor exercised control, then the party complaining can not recover.” Perry v. Central Railroad, 66 Ga. 746 (5). See also Andrews v. Kinsel, 114 Ga. 390 (2) (40 S. E. 300, 88 Am. St. R. 25); Beckham v. Seaboard AirLine Ry., 127 Ga. 550 (2) (56 S. E. 638, 12 L. R. A. (N. S.) 476); Bowers v. Southern Railway Co., 10 Ga. App. 367 (3) (73 S. E. 677); City of Albany v. Brown, 17 Ga. App. 707 (88 S. E. 215); Harper v. Fulton Bag & Cotton Mills, 21 Ga. App. 322 (94 S. E. 286); Atlantic Coast Line R. Co., v. Adeeb, 15 Ga. App. 842 (3) (84 S. E. 316); Shaw v. Mayor &c. of Macon, 6 Ga. App. 306 (64 S. E. 1102). Under the above-stated ruling, the petition in each of the instant cases failed to set out a cause of action and was properly dismissed on demurrer.

'Judgments affirmed.

Luke and Bloodworth, JJ., concur.

Walter DeFore, James G. Estes, for plaintiff.

ClevelandGoodrich & Cleveland, for defendant.


text:
    18700.
    JONES v. EMPIRE FURNITURE COMPANY.
    Decided April 10, 1928.

      D. K. J ohnston, for plaintiff in error. Kobalc & Levy, contra.
   Luke, J.

A plea was filed, but was withdrawn by the attorney representing the defendant. Subsequently, judgment was regularly entered against the defendant. She sought to vacate the judgment for the reasons that she had a good defense to the suit, as to part payment of the claim, that before the withdrawal of the plea certain credits were agreed to, and that the case was not on the calendar of cases to be tried. The evidence was in conflict as to credits claimed, etc. The court denied and overruled the motion to set aside the judgment.

There was no abuse of discretion in overruling the motion to vacate the judgment. The defendant being represented by counsel, and her counsel having withdrawn her plea, there was no defense, and the judgment necessarily followed.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    18701.
    Mincey v. Rogers.
    Decided April 10, 1928.

      P. M. Anderson, for plaintiff in error.

      H. Q. Beasley, contra.
   Luke, J.

The evidence in this case being conflicting, the jury had the legal right to find the property subject to the claim. Therefore the court did not err in overruling the motion for a new trial based upon the usual general grounds.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eoneur.


text:
    18702.
    TREADAWAY v. THE STATE.
    Decided April 10, 1928.

      John T. Dorsey, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
   Luke, J.

Just after dark, in Cobb county, two automobiles, a Eord roadster in front and a Ford coupé following at a distance of seventy-five yards, were seen by two officers traveling towards Five Points. The officers got in their car, and, passing the coupé, stopped the roadster. The defendant, who was driving the roadster, stopped immediately. In his car was an empty bottle that smelled as if it had had whisky in it, but there was no whisky in the car. In the rear car, which the driver had abandoned, was found fifty-four gallons of whisky. Neither of the officers saw or heard any signaling between the drivers of the cars. A week prior to this time the defendant was seen driving along this same road with a Ford eoupé behind him; and a month earlier the defendant was seen driving a Ford'roadster in front of three big cars which appeared to be heavily loaded. Not a great while before, the defendant was caught in Fulton county with liquor in his roadster. The defendant denied knowing who was in the car behind him, or that the car contained whisky, and denied his guilt.

The evidence did not exclude every other reasonable hypothesis than that of the guilt of the accused, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, Q. J., and Bloodworth, J., concur.