text:
    14856.
    DEWEY v. DENSON, executor.
    1. A writing' partly in the form of a promissory note, but providing merely for the accrual of a right to the maker upon its payment, and containing'a further stipulation, “that if said note is not paid on or before the date it becomes due, it shall thereupon cease to be a claim against the maker,” does not create any obligation against the maker. He may exercise the option of paying it and of obtaining the right, or he may if he chooses decline to make the payment and thus lose the right. Whether the payment will be made is a matter within the choice of the maker.
    2. Where the maker of such an instrument dies before its maturity, without removing the conditions therein existing in his favor, a provision in his will, by which his executor is directed to pay all just debts without unnecessary delay, cannot be construed as a direction for the payment of the sum of money mentioned in the instrument, which the maker 'might' have paid or not at his choice, and does not bind his executor to pay.
    3. In the present action by transferees of an instrument of the character above indicated against the executor of the maker, a judgment in favor of the defendant was proper.
    Decided December 7, 1923.
    Complaint; from city court of Quitman—Judge Baum. June 23, 1923.

      Branch & Snow, for plaintiffs.

      Bennet & Bonnet, for defendant.
   Bell, J.

Mrs. Julia Morton Dewey and Mrs. Cordelia Dewey Knight sued R. R. Denson, as executor of T. R. Denson, deceased, upon a “note” executed by T. R. Denson on March 7, 1921, and maturing on October 7th thereafter, payable to Maryland Life Insurance Company of Baltimore, for $150 principal, besides interest, and indorsed to the plaintiffs, upon which it was alleged that the defendant was “indebted.” The defendant filed an answer, a demurrer to which was overruled. The trial proceeded before the court without a jury, upon an agreed statement of facts, and resulted in a judgment in favor of the defendant. The plaintiffs excepted. The demurrer is not referred to in their brief filed in this court, and is treated as abandoned. The only question for determination is, was the judgment in favor of the defendant authorized under the facts?

Mention of certain facts appearing in the agreed statement logically will precede a specific reference to the answer. On March 7, 1921, T. R. Denson held two policies of insurance, issued upon his. life in favor respectively of the plaintiffs. The premiums were $117.31 each, and were payable in advance at this time for the year immediately following. He paid the cash equivalent of $84.62, executing and delivering for the balance of $150 the so-called note on which the plaintiffs are suing. He died testate on August 17, 1921. His will, in which the defendant E. E. Denson was named as executor, was duly probated, and one of its items directed that all his “just debts be paid without unnecessary delay.” The instrument sued on contained the following stipulations: “This note is accepted by said company at the request of the maker, together with dividend vouchers $20.82 and cash $63.80, on the following agreement: That policy No. 23481 and 42, issued by the Maryland Life Insurance Company of Baltimore on the life of T. E. Denson, shall be continued in force until midnight on the day on which said note is due, and upon the payment of said note and interest on or before said due date the said Maryland Life Insurance Company of Baltimore shall issue a receipt for the full annual premium of $234.62 due March 7, 1921, on said policy, which receipt shall be of the same force and effect as if said premium had been paid on the day due.” “That if said note is not paid on or before the day it becomes due it shall thereupon cease to be a claim against the maker, and said policy shall thereupon automatically cease and determine, and said cash shall be retained by the said Maryland Life Insurance Company of Baltimore, as part compensation for the privileges herein granted, it being well understood that this agreement is made at the request and for the benefit of the maker of said note, and shall in no manner increase the liability of the said Maryland Life Insurance of Baltimore as set forth in said policy.”

The insurance company required that the plaintiffs, the beneficiaries, should either pay the note or else allow the $150 therein mentioned to be deducted from the amount of the policy. They elected to pay the note and took a transfer or indorsement in form as follows: “In view of valuable consideration received, pay to Julia Morton Dewey and Mary Cordelia Dewey Knight, without recourse. Maryland Life Ins. Co. of Balto., by Geo. E. Kolb, Treas. & Comptroller.” The defendant, in an amendment to his answer, set up “that the note sued upon is not a liability against the estate of T. E. Denson,” because of the conditions therein contained and because T. E. Denson died before the maturity of the note without having ever authorized any one to pay the note for him. Other parts of the answer set out certain provisions of the policies, but these, in the view of the court, are immaterial, with the exception of one in regard to grace, to which reference will be made in the opinion.

We do not think that the instrument sued on can be accurately referred to as a promissory note. However, for convenience, we will call it a note. It is not an unconditional promise to pay. It amounts in fact to nothing more than an agreement between the insured and the insurer by which the insured, in consideration of having paid the equivalent of $84.62 in money upon the annual premiums, aggregating $234.62, obtained an extension of the life of the policy to October 7, 1921, and the option then of continuing it in force according to its terms upon the payment of the additional sum of $150, representing the balance of the premiums which had accrued upon the previous March 7. It was entirely optional with the insured whether or not he would pay the further sum. If he elected not to pay it, the policy would automatically cease and determine on October 7, the date when the so-called note matured. Of course, the mere payment of the $150 on October 7 would not have kept the policy alive in the future, but it would have prevented its lapse for a failure to pay the premiums which had theretofore accrued. If he did elect to pay, the policy would be continued in force, unaffected by the fact that the payment of these premiums had been delayed; and whether it would lapse would depend upon compliance thereafter with the provisions of the policy. In any event the policy was kept in life by this agreement until October 7. If he had not desired a continuance of the policy beyond that date he was not required to pay the note. Inaction on his part would have been a sufficient election, because it was provided “that if said note is not paid on or before the date it becomes due, it shall thereupon cease to be a claim against the maker.” It appears to be true, as alleged in the answer, that the maker “died before maturity of said note without having paid same, and that he never authorized any one to pay said note for him.”

It should not be forgotten that the insured was not obliged to pay the premiums of $234.62 on March 7, the date of the note. These were required for the year immediately following, and the policy could have been abandoned by the insured at that time. The company, however, gave him a chance to postpone his decision for seven months, in the meantime agreeing to keep him insured upon the payment of $84.62 in cash. This sum, with the grace of 31. days provided in the policy, would have kept the policy alive, even by its terms, until about the date of his death. The note really operated 'as an extension of the period of grace as applied to the unpaid portion of the premiums accruing on March 7, 1921. Calculation will demonstrate that the insured died at about the expiration of the period covered by the partial payment of $84.62 plus the 31 days of grace, and that the company did not actually carry the policy more than a day or so, if for any time, beyond a period for which it was compensated at the regular rates, with the period of grace added,—not the grace granted by the note, but that which was provided in the policy. Thus it will be seen that the insured did not actually get any considerable insurance, if any at all (we have not made an exact calculation), for which he did not pay, notwithstanding the note may never be paid, and the contention of the attorneys for the plaintiff in error that the note should be paid because of the insurance it procured is practically without substance. But regardless of that, the note was not an obligation unless the maker elected to so treat it.

While it is true that if the construction of a contract is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred, and that the law will not construe a contract so as to give the debtor the right to destroy it by a simple refusal to comply with it, unless the terms of the contract are so clear and unambiguous as to make irresistible the conclusion that no other result could possibly be reached and that such was the intention of the parties (Civil Code of 1910, § 4268 (4); Finlay v. Ludden, 105 Ga. 264 (1), 267, 31 S. E. 180), the language of this instrument clearly does not impose any liability or obligation upon the maker. On the contrary, its unambiguous terms could have no other effect than to extend to him a privilege; it does not make him a debtor. The provision thereafter in his will, directing that his executor should pay his debts, could have no reference to this instrument.

A “debt” has been defined to be a sum of money due by a certain and express agreement. A debt in its general sense is a specific sum of money which is due or owing from one person to another, and denotes not only the obligation of one person to pay, but the right of the other party to receive and enforce payment by judicial action; it is that which one is bound to pay to or perform for another; that which one is obliged to do or suffer. 8 Am. & Eng. Ency. Law, 982; 2 Words & Phrases, 1864; 1 Words & Phrases (2d series), 1226.

The instrument sued on could not fall within the item of the will above quoted. The word “debt” as therein used should be taken in its ordinary acceptation. “A party making a contract is presumed to intend to bind his executors and administrators, unless it is of such a nature as to call for some personal quality of the testator, or is so worded as plainly to negative such a presumption.” 11 R. C. L. 163, 173. But this contract called' for a personal quality of the testator. It did not create an obligation upon him unless he chose to make it such, and whether the executor might have made the election to pajq it is sufficient to say that he has declined such election.

The paper, without more, could not have been enforced in the hands of the insurer, and, the conditions being written in its face, it does not become stronger in the hands of the plaintiffs. The court does not rule that the policy did not create a liability against the insured for all premiums as they matured. That question is not involved, for the reason that the only obligation sought to be enforced is alleged to inhere in the note.

The court did not err in rendering a judgment in favor of the defendant.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    14859.
    SMITH v. SHINN.
    A false statement is not fraudulent when there is no reason why the statement should be believed and acted upon. Moreover, in the instant ease there was every reason, according to human experience, why the alleged false statement by which the plaintiff claims to have been injured should not have been believed by a person of ordinary intelligence, such as the plaintiff is presumed to be, in the absence of contrary averment.
    The demurrer to the petition was properly sustained.
    Decided December 7, 1923,

      Action of deceit; from city court of Carrollton—Judge Hood. July 9, 1923.

      Boykin & Boykin, for plaintiff.

      Smith & Taylor, for defendant.
   Bell, J.

Smith sued Shinn, and he excepts to the sustaining of a demurrer to his petition. His complaint was as follows: “That Paul Shinn is indebted to your petitioner in the sum of $110.45, besides interest at the rate of 7 per cent, per annum since December 18, 1922, as will more fully appear hereafter. Your petitioner shows that at the time the Merchants & Planters Bank at Bowdon, Georgia, closed, he had on deposit $440.18, and that on December 23, 1922, the said Paul Shinn came to your petitioner’s house at Lamar, Ala., and represented to your petitioner that said certificates of $440.18 was worthless and that he would never get anything out of it, but did agree to pay your petitioner the sum of $320.00 for it. Your petitioner further shows that the said Paul Shinn misrepresented known facts to your petitioner and fraudulently procured from him said certificates on the Merchants & Planters Bank by such representations, which were relied on by your petitioner and which the said Paul Shinn knew at that time to be false and were false, when in truth and in fact the said Merchants & Planters Bank had opened on December 18, 1922, and were cashing said certificates at par value at that time, and these facts were not known to your petitioner.”

“A false statement is not fraudulent when there is no reason why the statement should be believed and acted upon.” Branan v. Wakefield, 3 Ga. App. 586 (2) (60 S. E. 325). Here the plaintiff was the owner of "a time-certificate. His own property was represented by the defendant to be valueless. The party making the statement, however, offered in the same breath to give $320 for it. It is contrary to human experience that any one is willing to pay $320 for a thing that is absolutely worthless, unless it be an heirloom, relic, or antique, or something of sentimental or other special value to the person seeking to purchase, irrespective of its commercial or intrinsic worth; and, in the absence of some special reason why another would make such a bargain, there would be no reason for a person of ordinary intelligence to believe or rely upon the representation as to value accompanying the offer. On the contrary, there would be every reason for disbelieving the statement. Such a scheme to defraud is perfectly transparent. The courts will go a far distance to protect the over-credulous as against the machinations of the designedly wicked, but should not be called upon to protect one who has acted upon a statement which appeared to be false upon its face, where no special reasons are alleged why the patent and obvious falsity was not observed. In the absence of a contrary averment the plaintiff is presumed to be a person of ordinary experience and intelligence. If the defendant had represented that the certificate was worth only $320, the amount he offered to pay, or some approximate sum, and concealed the fact that the bank was at the time open and paying the face value for such certificates, with knowledge that the plaintiff was ignorant of this fact, an entirely different case would be presented; but the representation that the certificate was absolutely worthless, connected with his offer to buy it at $320, was an unmistakable self-negation, plainly and self-marked as untrue. The plaintiff has alleged in effect that he believed that the defendant,—a stranger, so far as is shown by the record,—without a reason was giving him $320 for nothing,—in other words, “something for nothing,”—a fortune which, universal experience has taught us, no one can reasonably expect. The plaintiff does not show any right of reliance. The demurrer to the petition was properly sustained. Compare Askew v. Central Trust Co., 26 Ga. App. 122 (1) (106 S. E. 198); Goodwyn v. Folds, 30 Ga. App. 204 (117 S. E. 335), and cases there cited.

Judgment affirmed.

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


text:
    14868.
    BREMAN et al. v. RODBELL et al.

    1. The petition was properly construed by the trial court to be an action for the difference between the contract price and the market price at the time and place for delivery, as damages for a refusal to accept and pay for goods according to the contract of purchase and sale.
    2. Such an action is not subject to a general demurrer because the alleged market value is not distinctly alleged to be the market value at the time and place for delivery.
    3. When a written contract for the purchase and sale of goods fixed no time for performance, it will be construed as implying that delivery will be made and accepted within a reasonable time, but parol evidence is admissible to prove a new and distinct subsequent agreement, mutually acted upon, that the deliveries will be made in installments at certain stated intervals. Tlie averment in regard to the times for delivery was not subject to demurrer as seeking to vary the terms of the written contract.
    4. The averment in a declaration by two persons, as partners, that the defendant had certain transactions with the “plaintiffs,” is not subject to a special demurrer on the ground that it is not alleged with which of the plaintiffs the defendant dealt. The averment implies that both of the plaintiffs were present participating in the transactions.
    5. Where a person who has contracted for the sale of goods to another sues for a failure of the latter to accept and pay for the goods, and elects as his measure of damages the difference between the contract price and the market price at the time and place for delivery, it is not necessary that the plaintiff shall allege that he used diligence to lessen his stated damages by selling the goods elsewhere for the best price obtainable, and the averment in regard to the resale at a price greater than the alleged market value will not be subject to a special demurrer on the ground that the time when and th,e person to whom the resale was made are not stated. The complaint, having given information not required, is not bad for failure to supply it more in detail.
    6. The petition set forth a cause of action, and the court did not err in overruling any of the demurrers. -
    Decided December 7, 1923.
    Breacli of contract; from city court of Atlanta—Judge Reid. June 12, 1923.
    J. H. Rodbell and Morris Cohen, doing business as Capital Hide and Junk Company, brought a suit against J. B. Breman and M. L. Breman, doing business as Stein & Company, claiming damages for the failure and refusal of the defendants to accept and pay for goods under an alleged contract of purchase and sale, of which the following is a copy: “Atlanta, Ga., Sept. 9, 1920. Capital Hide & Junk Co., City. Gentlemen: We confirm your sale and our purchase of 200 tons No. 1 steel @ $22.50 per GT. f. o. b. Atlantic Steel Co. Please ship same to Atlantic Steel Co., City. "Very truly yours, Stein & Company.” The petition as amended alleges that certain quantities of the steel were delivered, accepted, and paid for respectively on September 8, September 24, and October 4, 1920, in the aggregate of 181,000 pounds, leaving a balance of 267,000 pounds refused; that both before and after the confirmation of the contract in writing as stated above “the plaintiffs and the defendants agreed that shipments would be from a week to ten days apart and in carload lots.” The petition further alleges : “At or about the time of delivery of the shipment of October 4th, 1920, said defendants, acting by and through said M. L. Breman, approached plaintiffs and requested that deliveries be delayed, whereupon plaintiffs stated to defendants that they could not delay said shipments as the car was already loaded and ready to be delivered. . . Thereupon the said M. L. Breman, acting for said defendants, requested that future deliveries be held up until he should give further instructions, and these plaintiffs, at the request of defendants, did postpone deliveries, fully expecting, however, that delivery would be permitted after a reasonable time; and by mutual agreement, acting always at the instance of said defendants, plaintiffs did postpone deliveries, at all times relying upon said contract and that the said defendants' would complete said contract, accept deliveries, and pay for the merchandise. . . Such postponement of deliveries by mutual consent took place until ■fit or near the end of 19.20, to wit: some time the latter part of December, 1920, and before January 1st, 1921; these plaintiffs allege at all times in the meanwhile they were ready and able to complete deliveries, and so stated to defendants, and defendants requested that deliveries be postponed, until the latter part of December, 1920, as aforesaid, when defendants notified plaintiffs that they would not accept any further shipments, and that the plaintiffs should make no further shipments on the said contract. . . This was the first intimation that the plaintiffs had received from defendants that defendants would not accept deliveries on said contract, and plaintiffs allege that at the time of said refusal there was no market for the sale of said merchandise, and these plaintiffs could make no sale of same, and that the balance of said contract was an entire loss to them, the said plaintiffs. . . The plaintiffs allege that the only reason given by defendants at the time they definitely refused to accept further shipments was that the defendants could not afford to take the loss which they would be compelled to take provided they accepted further deliveries. . . At no time did these plaintiffs abandon the contract or release defendants from the contract, but at all times insisted upon making deliveries under said contract according to agreement, to wit: at times a week or ten days apart, and in carload lots. . . Plaintiffs made every effort to recoup the loss suffered by reason of the refusal of defendants to accept deliveries on said contract,” but the best price they were ever able to obtain for the unaccepted steel “was and is the sum of $9.50 per gross ton, f. o. b. Alabama City, Alabama, same being equivalent to a price of $7.60 per gross ton, f. o. b. Atlanta, Ga. . . Plaintiff alleges that defendant is indebted to plaintiff in the sum of $1,767.48, with legal interest; same being the difference between the contract price and the best market price which plaintiff has been able to obtain for said steel.”
    The defendants demurred generally and specially. The general demurrer and certain of the special demurrers were overruled, and the defendants excepted. The nature of the special demurrers will be sufficiently indicated in the opinion.

      Little, Powell, Smith & Goldstein, for plaintiffs in error.

      Slaton & Hopkins, contra.
   Bell, J.

(After stating the foregoing facts.)

It is insisted by the demurrer that the action should be construed as one for the recovery of the difference between the contract price and the alleged price on resale, and that the petition is insufficient to show a right of action, for the reason that it does not appear that any notice was given to the defendants of the intention to resell, and because it does not appear that the resale was made at the time of performance as-specified in the contract, nor within a reasonable time thereafter.

We think that the trial judge properly construed the action as one for the recovery of the difference between the contract price and the market price at the time and place for delivery. Civil Code (1910), § 4131“ The plaintiff, therefore, was not required to show that the defendants were given notice of intention to resell. The averments in regard to resale were voluntarily made, to illustrate the effort which the plaintiffs had made to lessen their damage, and might have been omitted. It is disclosed that the resale was for a price greater than the alleged market value, which it is averred was nothing, and thus that the damages resulting to the plaintiff from the breach was thereby reduced.

As indicated above, the measure of damages which the plaintiffs elected to claim was the difference between the contract price and'the market price at the time fixed by the agreement for the successive installment deliveries. The petition does not distinctly allege the market value at these times, but this did not require that the action be dismissed upon general demurrer. There was no special demurrer to this defect. See Smith v. Strickland, 6 Ga. App. 522 (1); Mendel v. Converse, 30 Ga. App. 551 (9) (118 S. E. 586).

It is suggested by tbe plaintiff in error that this court should take notice that such an article of commerce as steel could not be altogether without a market value, as the petition has alleged. Assuming that this is true, we could not for that reason go so far as to hold that the averment that the commodity was without a market value should be totally disregarded, as against a general demurrer. Such would be to rule in effect that we should know, without proof, that the commodity in question not only had a value, but a market value equal to or greater than the contract price, and thus that the petition wholly fails to show damage, notwithstanding the averment that the steel was wholly without a market value. Perhaps a special demurrer might have called for a statement of the reasons why a commodity of this nature did not have a market value, but this is not a question in the case. '

It is objected by the demurrer that the petition, in alleging that the plaintiffs and the defendants agreed that the shipments would be from a week to ten days apart, seeks to vary the terms of the written contract of sale. The writing itself does not ñx a time for performance and would require a performance within a reasonable time. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (3). Whether against the writing standing alone it might not be shown by parol that the deliveries were to be made as alleged,— namely, in carload lots from a week to ten days apart,—it is evident, from the petition, that the parties had pursued such a course of dealing in regard to certain deliveries which were made and accepted as to justify the averment, without an encroachment upon the parol evidence rule. “Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. ’ Until such notice, the departure, is a quasi new agreement.” Civil Code (1910), § 4337; Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 (2); Bearden Mercantile Co. v. Madison Oil Co., supra, headnote 4. Furthermore, parol evidence is admissible to enlarge the time or change the place of performance, or to prove a new and distinct subsequent agreement. Civil Code (1910), § 5794. A new agreement as to the time of performance would not be lacking in consideration where it is mutually assented to and mutually acted upon. The alleged agreement in regard to the time of delivery would appear to be enforceable, though not contained in the writing; and this ground of the demurrer was properly overruled.

A special demurrer objects that the petition does not allege with which one of the plaintiffs the defendant partner M. L. Breman dealt. If the petition had alleged that the dealings were had between Breman and the plaintiffs’ firm, it might have been necessary to allege with which of the plaintiff partners the transaction took place, but it is alleged that Breman dealt with “plaintiffs,” which would imply that both of the plaintiffs were present participating in the transaction, and not merely that the transaction took place with one of them unnamed. There was no merit in this demurrer.

The defendants demurred further to the averments in regard to the resale, on the ground that the date, and the party to whom the resale was made, are not alleged. It has been many times held that there must be a time averred in the writ, showing when every material, traversable fact transpires. Mandeville Mills v. Dale, 2 Ga. App. 607 (3) (58 S. E. 160); City Council of Augusta v. Marks, 124 Ga. 365 (1) (52 S. E. 539). This rule seems to have been applied to averments of fact which were necessary to be stated as a part of the cause of action or defense. A similar rule has been applied in some instances with reference to designating persons or parties with whom alleged dealings occurred. Cherokee Mills v. Gate City Cotton Mills, 122 Ga. 268 (2) (50 S. E. 82). But as we have said, the plaintiffs, in view of the measure of damages claimed, were not required to allege the resale. This fact was no part of the cause of action. The petition having set up the correct measure of damages under the facts alleged, it was unnecessary for the plaintiffs by the petition to show that they had undertaken to mitigate or lessen such damages. Mendel v. Converse, 30 Ga. App. 550 (5) (118 S. E. 586).

The unnecessary allegation that the plaintiff was diligent to lessen his stated damages by selling the goods elsewhere for the best price obtainable, which was more than the market price alleged, is not subject to a special demurrer on the ground that the time when and the person to whom the resale was made are not stated. The petition, having given information not required, is not bad for a failure to supply it more in detail. See Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 (59 S. E. 713). “The office of a special demurrer to a plaintiff's petition, in this State, is to compel the plaintiff to set forth his charge or ground of complaint plainly, fully, and distinctly, where he has failed to do so.” Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (2) (71 S. E. 691). Where the plaintiff has plainly, fully, and distinctly set forth his cause of action as required by law, matter voluntarily set forth, which is no part of the plaintiff's cause of action, but is purely anticipatory of a defense, need not be alleged with the same particularity required in declaring the pause of action. In this case no right of the defendants is prejudiced by the failure of the complaint to allege the particular matter more in detail. We are treating merely of the points as made, and nothing herein said shall be taken as deciding whether the plaintiffs were under a duty to lessen the measure of damages as elected; namely, the difference between the contract price and the market price at the time and place of delivery.

The petition alleges with sufficient certainty the times when the requests of the defendants were made for the postponement of deliveries. A cause of action was set forth, and the court did not err in overruling any of the demurrers.

Judgment affirmed.

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


text:
    14878.
    Flowers v. Faughnan.
   Bell, J.

1. “A pedestrian and a person with an automobile have each the right to use the public highway, but the right of an operator of an automobile upon the highway is not superior to the right of the pedestrian, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other. The .driver of an automobile is bound to use reasonable care and to anticipate the presence on the streets of other persons having equal rights with himself to be there; and a pedestrian, when lawfully using the public highways, is not bound to be continually looking and listening to ascertain if 'auto-cars aré approaching,. under the penalty that if lie fails to do so and is injured, it must be conclusively presumed that he was negligent.” O’Dowd v. Newnham, 13 Ga. App. 220 (1) (2) (80 S. E. 36). Upon applying this rule to the evidence in this case we cannot say that the verdict found for the plaintiff was unsupported.

2. Conceding that the answer contained a denial that the plaintiff had been injured, the fact of her injury, if not its extent, was shown by the evidence without dispute. The court, in the charge, therefore did not err in assuming that the plaintiff had been injured, no opinion being expressed in regard to the extent of such injury. Central of Ga. Ry. Co. v. Johnston, 106 Ga. 130 (1) (32 S. E. 78); Dexter Banking Co. v. McCook, 7 Ga. App. 436 (1) (67 S. E. 113).

Decided December 7, 1923.

Action for damages; from Long superior court—Judge Sheppard. June 30, 1933.

Parker & Parker, for plaintiff in error.

M. Price, contra.

S. The trial judge, in submitting the elements of damage which the plaintiff might recover if the defendant was liable, made a reference to “hospital bills.” No issue was presented by the pleadings or the evidence in regard to such item, the plaintiff not claiming to have incurred such expense; and the jury could not possibly have been misled by the charge into finding an amount for the plaintiff for “hospital bills.” “A charge touching a matter wholly irrelevant under the pleadings, even if erroneous, is not cause for a new trial, when it appears that the jury could not have been misled by such instructions to the injury of the complaining party.” Heard v. Tappan, 121 Ga. 437 (2) (49 S. E. 292); Southern Ry. Co. v. Reynolds, 126 Ga. 657 (5) (55 S. E. 1039).

4. The plaintiff sought damages for past lost time, of the value of $120, and expenses necessarily incurred as a result of her injury, as follows: “Doctors’ bill, $57; medicine bill . . $10; hired help to nurse petitioner and to do housework, $75;” and also to recover a named sum for physical pain and suffering. " There was no claim of a permanent injury. No issue was raised in reference thereto in the pleadings or the evidence. Excepting the irrelevant allusion to “hospital bills,” as indicated above, the jury were, correctly instructed as to the measure of damages in issue, and the court did not err in failing “tg give the jury any rule or charge as to the difference in the measure of the damages for temporary and permanent injuries.”

5. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    14883.
    Glisson, adm’r, v. Burkhalter.
   Bell, J.

1. A reservation of title, embraced in a written contract for the sale of personalty, will prevail over the claim of one acquiring the property from the vendee with actual notice of the reservation, though the contract be not recorded. Civil Code (1910), § 3319; Hill v. Ludden, 113 Ga. 320 (2) (38 S. E. 752); Donalson v. Thomason, 137 Ga. 848 (2) (74 S. E. 762).

2. A writing in the following form, signed by the vendor in such a contract: “Mr. John Lawson [the vendee in the conditional-sale contract] is hereby permitted to sell either Kate or Ida mule [the property to which the title was reserved] for not less than $250, and bring me the money,” when delivered by the vendee to the person to whom he proposed to sell one of the mules, was a sufficient circumstance to authorize an inference by the jury that the latter, when acquiring the property from the bearer of the writing, had notice of the reservation of title. “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.

3. Such a writing amounted to a power of attorney to the vendee to make a sale of one of the mules. Authority to an agent to execute in behalf of his principal a definite contract upon specified terms does not, without more, imply authority to make a different contract. Crawley v. Watt-Holmes Hardware Co., 12 Ga. App. 367 (2) (77 S. E. 106). Where a purchaser is charged with notice that an agent is only authorized to sell for cash, a sale on credit, or a barter, may be treated as void by the principal. Whitley v. James, 121 Ga. 521 (1) (49 S. E. 600). This ruling is not in conflict with Clarke v. McNalt, 132 Ga. 610 (4) (64 S. E. 795, 26 L. R. A. (N. S.) 585). It indisputably appeared in this case that the holder of the above-mentioned power of attorney violated its terms by making a barter, instead of a sale, and that the plaintiff did not receive any of the proceeds, and that the other-party to the transaction had knowledge, from the terms of the power of attorney, which was delivered to him at the time, that the agent was violating his instructions.

4. While such an unauthorized transaction by an agent may be validated by the principal, and ratification will result by operation of law from the principal’s acquiescence therein for an unreasonable length of time after notice (Whitley v. James, 121 Ga. 521 (3, 4), 49 S. E. 600; Brooke v. Cunningham, 19 Ga. App. 21 (5), 90 S. E. 1037), yet what is a reasonable time is ordinarily a question for the jury (Coursey v. Consolidated Naval Stores Co., 22 Ga. App. 538 (3) ); and the circumstances were not such in this case as to require a holding, as a matter of law, that the plaintiff’s delay, after knowledge, in either affirming or dis-affirming- the unauthorized conduct of his agent (the vendee in the conditional sale) continued for such a length of time as conclusively to imply a ratification. When the plaintiff showed that the transaction was unauthorized, and therefore voidable by him, the burden was shifted to the opposite party to show a ratification. De Vaughn v. McLeroy, 82 Ga. 687 (4 d) (10 S. E. 211).

5. The present action was instituted for the recovery of the mule disposed of by the vendee by a barter in violation of the instructions contained in the above-quoted power of attorney. It was claimed by the defendant that the plaintiff was concluded by a former suit against his vendee (or agent), involving the transaction now complained of, which suit, it was contended by the defendant, had been settled. While it is true that a settlement of pending litigation should put an end to the subject-matter of the controversy (Civil Code of 1910, § 4330; Boswell v. Gillen, 131 Ga. 310 (1), 62 S. E. 187), yet it is further true that where such a settlement is pleaded • as an estoppel, the burden is upon the party relying thereon to sustain the plea by showing that the particular matter in controversy was necessarily or actually involved in the former litigation. Harris v. Neil, 144 Ga. 519 (2) (87 S. E. 661). And even if such a plea was pertinent in the instant case, the parts of the record of the prior suit introduced in evidence by the defendant did not show anything as to the nature of the controversy therein, but showed merely certain isolated facts; and the undisputed fact that the former litigation had been settled, without more, did not sustain the defendant’s plea.

Decided December 7, 1923.

Trover; from city court of Beidsville—Judge Cowart. July 12, 1923.

Kirlcland & Kirlcland, for plaintiff in error.

H. H. aiders, 8. B. McCall, contra.

6. If in such former litigation against the vendee in the conditional sale,— namely, the party who violated the above-quoted power of attorney by bartering the property instead of selling it,—the plaintiff had claimed the proceeds of such barter, this might have amounted to a ratification of the unauthorized transaction now complained of, or to an election which would preclude the plaintiff from now asserting title (Padgett v. Ford, 117 Ga. 508 (3), 43 S. E. 1002; City of Elberton v. Auld, 28 Ga. App. 60, 110 S. E. 424), but it is noticed that the parties to the two actions were not the same, and no decision of this question is necessary and none is made, since it does not appear, as stated in the pre-' ceding paragraph, what was the nature of the prior proceeding, and therefore it cannot be determined whether in any event the plaintiff should be held thereby to an election or ratification.

7. The action was not instituted against the alleged tort feasor, but against his administrator. This court held in Alexander v. Dean, 29 Ga. App. 722 (116 S. E. 643), that such an action was not maintainable; but no ruling was invoiced in the present case, as was done in that case, against the plaintiff’s right to proceed. No such question is involved in the record or raised by the briefs, and the point will be treated as waived.

8. There was.no error in overruling the defendant’s motion for a new trial, for any reason urged.

Judgment affirmed.

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


text:
    14886.
    Bennett, superintendent, etc., v. Watson et al.

   Bell, J.

This was an action upon a note signed in the name of a partnership as maker. One of the members filed no defense, while the other pleaded that there was no partnership, alleging that the partnership previously existing under the name signed to the note had been dissolved and notice of that fact given to plaintiff bank’s cashier before the note was executed by the other alleged partner. It was further alleged that all the debts previously due by the former firm to the bank had been paid before the note was given. A verdict was found for the defendant, and, the plaintiff’s motion for a new trial having been overruled, the plaintiff excepted. Held:

1. A partnership may be dissolved at any time by the mutual consent of the parties. Civil Code (1910), § 3162. There was some evidence authorizing a finding that the partnership had been dissolved as alleged, though the evidence may have been slight. This court is without authority to set aside a verdict on the ground that it is unsupported, where there is any evidence to authorize it.

2. The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world. Civil Code (1910), § 3163. Actual notice of the dissolution given by one of the partners to the cashier of a bank, which sues upon a note thereafter executed at the instance of such cashier as the bank’s representative by the other alleged partner in the name of the partnership, and payable to the plaintiff, is sufficient notice to the bank. Morris v. Georgia Loan &c. Co., 109 Ga. 12 (2) (34 S. E. 378, 46 L. R. A. 506); Civil Code (1910), § 3599. The defendant who filed the plea of no partnership having testified unequivocally and without dispute that such notice was given, the fact that the publication of the dissolution was not made until after the note was executed would not conclusively destroy the effect of the prior actual notice, though it might be a circumstance to be considered by the jury on the issue as to when the dissolution took place.

3. The court charged the jury as follows: “The defendant contends that he notified, in the early part of 1920, the Bank of Mauk, through its cashier, Mr. Hendricks, that the partnership existing between him and Mr. Jinks had been dissolved. The plaintiff denies that such notice was given. If P. C. Watson notified Mr. Hendricks in the early part of 1920 that there was no longer a partnership between him and Mr. Jinks, if you should believe that Mr. Watson has shown by a preponderance of the evidence that he had given that notice to Mr. Hendricks, why, under the law that would be sufficient notice as to the Bank of Mauls of the dissolution of the firm of Watson & Jinks.” The evidence showed conclusively that this cashier had represented the bank in taking the note sued on. Error is assigned on this charge, on the grounds, that it was “prejudicial to the movant, because the court should have gone further and instructed the jury that, although Mr. Watson may have notified Mr. Hendricks, cashier of the bank, that the partnership was 'dissolved between him and B. M. Jinks, the notice would have been ineffectual unless the defendant had proved that the partnership had been dissolved according to law. Further, the court in this connection should have instructed the jury as to what was necessary to dissolve a partnership under the law.” The charge was not erroneous for any reason assigned. It had reference to the sufficiency of the notice of the dissolution, and not to the issue respecting dissolution. There is no assignment that the instruction assumed that issue in favor of the plaintiff. The issue, however, was fairly and fully submitted in other portions of the charge. Furthermore, the assignment made is faulty for the reason that “a correct statement of the law applicable to a case is not erroneous because the court failed in the same connection to give the jury other and further instructions. If these were desired in the instant case they should have been requested in writing.” Chero-Cola Co. v. Southern Express Co., 29 Ga. App. 656 (1) (116 S. E. 325); Georgia Railroad & Banking Co. v. Wallis, 29 Ga. App. 706 (6) (116 S. E. 883.).

4. The court did not err in charging the jury that if the partnership was in fact dissolved, and if the plaintiff bank had notice of the dissolution before the execution of the note sued on, the party executing the note purportedly on behalf of the alleged partnership would have had no authority as a partner to bind the other erstwhile partner without the direction or consent of the latter, even though the note was executed in renewal of an unpaid indebtedness which the firm had incurred to the bank before its dissolution. Mims v. Brooks, 3 Ga. App. 247 (7) (59 S. E. 711); Parker v. Southern Ruralist Co., 15 Ga. App. 334 (1) (83 S. E. 158); Civil Code (1910), § 3164. The charge was correct in the abstract, and there was some evidence to warrant it.

5. The defendant who contested liability testified as follows: “Mr. Hendricks, who was the cashier, just claimed it on his books of $1100 against us. I just went back to Columbus. I had seven bales of my individual cotton, and I sold that to Mr. Bradley and come back and paid Mr. Hendricks.” The plaintiff objected to the admission of this evidence on the ground that there was nothing in the pleadings to put the bank “on notice as to that date.” The objection was overruled. Later a motion was made to exclude the evidence “because the pleadings do not set up the specific date and the specific amount;” that although the witness “swears that this payment was made prior to the execution of this note, . . he is trying to defeat this note by that payment, and it is charged to the same transaction, and, before that evidence could go in, the pleadings would have to allege the date and amount specifically,” so as to put the plaintiff on notice. The evidence as set forth in this ground does not show on what date the transaction therein referred to took place. A ground of a motion for a new trial must be complete within itself. Hamrick v. Stewart, 29 Ga. App. 220 (4) (114 S. E. 723). The evidence was not objected to upon the ground that it did not disclose the date of the transaction. The fact that a specific date of the payment may not have been alleged would not necessarily be a ground for excluding the evidence. The insufficiency of the plea in respect to the allegation of the date of the payment would be a matter for demurrer. Prince v. Cochran, 10 Ga. App. 495 (2) (73 S. E. 693). No variance between the evidence and the plea was urged in the objection, and no question as to the inadmissibility of the evidence for that reason is presented for decision. Questions that are raised in the brief but not in the record cannot be adjudicated. This ruling controls grounds 4 and 5 of the motion for a new trial.

6. “In the absence of a special request the judge is not bound to instruct the jury as to the effect of an admission by either party to the record.” Wrightsville & Tennille R. Co. v. Lattimore, 118 Ga. 581 (7) (45 S. E. 453). “In the absence of an appropriate request it is not error for the trial judge to omit specific reference to particular points or phases of the evidence confirmatory of the contentions of either of the parties. Before the judge is required to direct the attention of the jury to a fact which a party may deem to be material, though only collaterally involved, a ruling upon its materiality must be invoked.” Bishop v. Georgia National Bank, 13 Ga. App. 38 (4) (78 S. E. 947); Branch v. Bishop, 135 Ga. 110 (2) (68 S. E. 1021). Whether there was a ratification was only collaterally involved in this case, and the court was not obliged to charge thereon without a proper and timely written request.

Decided December 7, 1923.

Complaint; from Taylor superior court—Judge Munro. June 19, 1923.

A. J. Perryman, for plaintiff.

G. W. Foy, for defendants.

7. There being some evidence to support the verdict, and no reversible error of law being assigned, the judgment overruling the motion for a new trial must be

Affirmed.

Jenkins, P. J., am,d Stephens, J., concur.


text:
    14890.
    Horne & Ponder v. O. B. & E. J. Evans.
   Bell, J.

1. The cardinal rule for the construction of contracts is to ascertain the intention of the parties. If that intention be clear and contravenes no rule of law, and sufficient words be used to arrive at the intention, it should be enforced, irrespective of all technical or arbitrary rules of construction. Civil Code (1910), § 4266. Parol evidence is inadmissible to add to, take from, or vary a written contract. All the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract only is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible. Civil Code (1910), § 4268 (1). All contemporaneous writings are admissible to explain each other; and parol evidence is admissible to explain all ambiguities, both latent and patent. Civil Code (1910), § 5789. The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part. Civil Code (1910), § 4268 (3).

2. It is not essential that a contract be contained in a single paper. Where an action was brought upon a promissory note reciting that it was given for the purchase price of a tractor, and containing the following clause: “No verbal statements have been made not included in this contract, and the property sold is sold without any warranty, express or implied, by vendor or his agent, not herein stated,” the note would appear, upon its face, to integrate all the terms and conditions of the sale, but it could be shown, by a writing simultaneously executed, to be only a part of the contract, and it was permissible for the defendant vendee to. plead, in defense to the action, that simultaneously with the execution of the note the plaintiff vendor executed and delivered to him a writing containing an express warranty of the quality and serviceability of the property sold, that the two writings together formed the contract, and that the warranty contained in the separate writing had been breached. Martin v. Monroe, 107 Ga. 330 (3), 333 (33 S. E. 62); Arnold v. Empire Mutual &c. Ins. Co., 3 Ga. App. 685, 702 (60 S. E. 470); Cable Co. v. McFeeley, 7 Ga. App. 435 (66 S. E. 1103); Guinn v. Marshall, 156 Ga. 480 (119 S. E. 397).

(а) The warranty so given by the vendor would not be invalid as a nudum pactum. Read v. Gould, 139 Ga. 499 (2) (77 S. E. 642).

(б) The clause in the note, that the property was sold without any warranty “not herein stated,” may be shown, by proof of the simultaneous execution of the warranty in a separate writing and of all the attending and surrounding circumstances, to refer, by the phrase just quoted, not merely to the note, but to the entire contract, consisting of both writings. Cable Co. v. McFeeley, supra.

(e) Applying the principles enunciated above, the court did not err in allowing, over objection of the plaintiff, an amendment to the answer, setting up the express warranty alleged to have been contained in the separate writing executed simultaneously with the note sued on; and when this amendment was allowed it was proper for the court to overrule the plaintiffs’ demurrer to paragraph 4 of the answer, referring to the breach of an express warranty, although it did not at first show that the warranty was in writing.

3. The express warranty pleaded was: (a) that the tractor was “new, [6] substantially constructed in workmanlike manner, and [e] that it would render all services required of a tractor of its design in every particular.” The testimony in behalf of the defendants tended to show the execution of the warranty as alleged, and also that it had been lost. While the plaintiffs denied the execution of such writing, the conflict in the evidence upon this point was one to be solved by the jury. One of the defendants testified as follows* in regard to the contents of this writing: “I don’t remember all that was in it, but I know it said it [the tractor] was guaranteed to be all right and to do as good work as any other tractor.” Upon the same point the other defendant testified: “It was a printed guarantee and said they guaranteed it to do good work and other things I don’t remember.” The wife of one of the defendants, who swore she had kept the instrument until it was lost, testified also regarding its contents: “I don’t remember all there was in it, but I am sure it said the machine would do first-class work.” Eeld: While it is true that where a party bases a right upon an instrument which has been lost or destroyed, he must show, among other things, what were the substantial terms and provisions of the instrument (Fay v. Burton, 147 Ga. 648 (4), 95 S. E. 224; New Ware Furniture Co. v. Reynolds, 16 Ga. App. 19 (3), 84 S. E. 491; Greer v. Young, 113 Ga. 120, 38 S. E. 314), the above-quoted evidence was sufficient to meet this requirement, and was not a fatal variance from the alleged warranties designated above as b and c.

4. The defendants pleaded that they purchased the tractor “to be used for the purpose of threshing grain, plowing, and general traction work,” “which fact and use the plaintiffs knew at the time of the sale;.” and thereupon sought a recovery for a loss of toll during the years 1920 and 1921, which they might have earned by the operation of a public threshing machine propelled by the power of the tractor, if the tractor had conformed to the warranties, and also for the loss of the time of 'several laborers employed to assist the defendants in carrying on the enterprise named, who were idle certain days in each of the years 1920 and 1921 when the tractor would not work. Held: The plea was not sufficient to show that in the sale of the tractor the parties contracted with reference to the intention of the defendants to use the tractor'in this enterprise; and the damages which the defendants sought to recoup were not recoverable. They were dependent upon 'a collateral enterprise not shown to be in the contemplation of both of the parties at the time of the sale. See Civil Code (1910), § 4394; Willingham v. Hooven, 74 Ga. 233 (3) (58 Am. Rep. 435); Orr v. Farmers Alliance Co., 97 Ga. 241 (4) (22 S. E. 937); Thornton v. Cordell, 8 Ga. App. 588 (4) (70 S. E. 17); Hall v. Case Threshing Machine Co., 11 Ga. App. 840 (76 S. E. 597); Smalls v. Brennan, 14 Ga. App. 84 (80 S. E. 339); Williams Mfg. Co. v. Schofield’s Sons Co., 21 Ga. App. 23 (2) (93 S. E. 527); Montgomery v. Alexander Lumber Co., 140 Ga. 51 (2) (78 S. E. 413); Upmago Lumber Co. v. Monroe, 148 Ga. 847 (2) (98 S. E. 498).

(a) Under this ruling the court erred in not striking so much of paragraph 5 of the answer as sought recoupment.

(b) This ruling is not to be understood as a decision of whether such damages might be shown recoverable by further allegations.

5. “Where goods of a certain quality are ordered on contract for future delivery, and goods of an inferior quality are delivered, the measure of damages is the difference between the market value of the goods delivered, at the time and place of delivery, and the value of goods of the character ordered, at the time and place of delivery. Seaboard Lumber Co. v. Cornelia Planing Mill Co., 122 Ga. 370 (50 S. E. 121).” Atlanta, Milling Co. v. Acme Manufacturing Co., 25 Ga. App. 699 (104 S. E. 457). See also Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (118 S. E. 446). The averments of the defendants’ answer did not show any reason for a variance of this rule.

6. The court allowed an amendment to the answer, setting up fraud in the plaintiffs at the execution of the note. This amendment alleged that the defendant partner who signed the note on behalf of the firm could not read “understandingly, and therefore he could not read the contract sued on,” and that the defendants were deceived by certain verbal representations made by the plaintiffs inconsistent with the writing. It appears from the amendment that the other partner was present at the time of the execution of the note, and that the representations were made to both defendants. There is no averment that the other partner could not read, and no reason appears why tire note was not read by one of the partners before it was signed. Assuming that the averment that the partner who signed the writing could not read understandingly, and therefore could not read the contract sued on, would have excused this partner from reading the instrument, the amendment was insufficient to show fraud, in the absence of like averments with reference to the other partner. Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915). The court erred in allowing such amendment, over the objection of the plaintiffs attacking its sufficiency as an allegation of fraud.

7. The action was in a city court. The verdict was as follows: “We, the jury, find in favor of the defendant and that the plaintiff repossess the machinery as set out in the mortgage dated June 5th, 1920, and that the note and mortgage cancelled and returned to defendant, and that counter-suit of defendant be cancelled.” The plea, by a statement in regard to the operation of the tractor in connection with the defendants’ threshing- machine, disclosed that it had rendered at least five sevenths of the service which the defendants required of it in 1920, and eight elevenths in 1921, failing to operate five days in 1920 and three days in 1921. Thus it was shown by the plea that the tractor was not worthless. The evidence did not furnish to the jury any sufficient data by which to estimate the extent to which the consideration had failed. Held:

(a) In order that a recovery may be had for a breach of warranty, damages and the amount thereof resulting from the breach must be shown, and the burden of proof is upon the purchaser! Brooks v. Camak, 130 Ga. 213 (1) (60 S. E. 456). Such a burden is not in any case discharged, unless some data is furnished by which the jury may determine the extent of the damage or failure of consideration. Hornsby v. Butts, 85 Ga. 694 (11 S. E. 846); Otis v. Holmes, 109 Ga. 775 (2) (35 S. E. 119); Myers v. Philip Carey Co., 17 Ga. App. 535 (2) (87 S. E. 825); Clegg-Ray Co. v. Indiana Scale Co., 125 Ga. 558 (54 S. E. 538). The proof must be such “that the jury may calculate the amount from the figures furnished, and will not be placed in the position where their allowance of any sum would be mere -guesswork. ” National Refrigerator Co. v. Parmalee, 9 Ga. App. 725 (1), 726 (72 S. E. 191).

(b) An action for the purchase price of goods cannot be defeated by a plea of total failure of consideration, unless the evidence shows that they were totally worthless for any purpose. Hardee v. Carter, 94 Ga. 482 (1) (19 S. E. 715); Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (1) (73 S. E. 412); Taylor v. Cone, 19 Ga. App. 454 (91 S. E. 910); Muller v. Ludlow-Saylor Wire Co., 141 Ga. 376 (2) (81 S. E. 127).

(c) There being no sufficient plea of fraud the defendants were not entitled to a rescission of the contract. Hendley v. Chambliss, 30 Ga. App. 736 (119 S. E. 351). A further reason why a rescission could not have been had, even if fraud had been pleaded and shown, is the fact that the defendants kept and used the tractor for a long period of time after the discovery of alleged defects. Civil Code (1910), § 4305.

(d) A jury in a city court cannot lawfully render a verdict granting to one of the parties affirmative equitable relief, as the jury undertook to do by the verdict set out above. Ragan v. Standard Scale Co., 123 Ga. 14 (1) (50 S. E. 951). While this court has held that where the jury in the trial of a trover case based upon an ex parte rescission for fraud renders a finding the effect of which is to adjudicate that the fraud was perpetrated, and therefore that the entire transaction was null, an additional part of the verdict, providing that a note executed and delivered as a part of the transaction should be cancelled, may be considered as surplusage (see Davis v. Preston, 12 Ga. App. 65 (2), 76 S. E. 766; King v. Dobbs, 30 Ga. App. 441, 118 S. E. 428), such a holding cannot properly be made in the case at bar. This was an action upon a note. There was no sufficient plea of fraud. The evidence did not more than authorize an inference of a breach of a warranty. The transaction could not be found by the jury to be void, and the finding that the tractor should be restored to the plaintiffs and that the note which, was the property of the plaintiffs should be cancelled and returned to the defendants was unauthorized, either by the pleadings or the evidence, exceeded the powers of the city court, and was so much of the substance of the verdict that it cannot be disregarded as surplusage.

Decided December 7, 1923.

Complaint; from city court of Barnesville—Judge Bedding. May 88, 1983.

Dobbs & BarreU, for plaintiffs.

Ogden Persons, Herman Johnson, for defendants.

8. Applying the rulings of paragraph 7 above, the court erred in overruling the plaintiffs’ motion for a new trial, whatever construction may be placed upon the verdict.

Judgment reversed.

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


text:
    14896.
    TAYLOR v. CENTRAL OF GEORGIA RAILWAY CO.
    1. While a bill of lading does not necessarily determine the local or foreign character of the shipment, it is prima facie evidence on the subject; and in the absence of proof, direct or circumstantial, that an interstate movement was in the contemplation of the parties when the goods were delivered for carriage, a bill of lading for a purported intrastate shipment will not, without further evidence, be presumed to have issued for an interstate shipment. “There is no presumption that a transportation when commenced is to be continued beyond the State limits. ”
    2. Whatever right of diversion, in the absence of provision therefor in the contract, a consignor of goods to himself or agent may have under the laws of Georgia, no right to divert can be claimed after arrival of the goods at the destination first agreed upon. A further shipment will require a new contract.
    3. Where goods have been shipped from one point to another in this State, consigned from the shipper to himself, and where, on the arrival of the goods at the point of destination, the shipper-consignee is afforded an opportunity to receive delivery, but nevertheless orders the shipment diverted to another carrier for further transportation, the liability of the first carrier on complying with such order is determined. Having completed its contract, it does not extend the relation as carrier merely by a delivery to the other carrier designated.
    4. In such a case between the shipper and the first carrier the acts of Congress in regard to interstate transportation are inapplicable, although the second carrier may have received the- shipment for carriage to a point beyond the State limits.
    5. The evidence in this case showed, as between the plaintiff and the defendant carrier, a contract for an intrastate shipment, and that the liability of the carrier was ended when it delivered the goods to another carrier at destination for transshipment upon the order of the plaintiff, who was both consignor and consignee. The damage complained of having occurred after delivery by the defendant as the plaintiS’s forwarder or agent to another carrier, liability as alleged was not proved; and the court did not err in awarding a nonsuit.
    6. Furthermore, a party who lays his case against a railroad company on the theory of a breach of an express interstate contract of affreightment does not establish his case as laid on proving that the carriage to the ultimate destination was effectuated by two separate contracts, one being express and intrastate, and the other implied and interstate.
    Decided December 7, 1923.
    Certiorari; from Fulton superior court—Judge Humphries. June 7, 1923.

      Carl B. Copeland, G. N. Bynum, for plaintiff.

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

Jeff A. Taylor brought a suit against the Central of Georgia Kailway Company in the municipal court of Atlanta, for damages alleged to have resulted from a breach of a contract of carriage. The petition alleges that on August 1, 1922, the plaintiff delivered to the defendant railway company at Buena Yista, Georgia, a carload of watermelons, consigned in the bill of lading to S. W. Bacon Produce Company, Atlanta, Georgia, which was merely his agent, and that when the melons arrived in Atlanta on August 2 the shipment was diverted and reconsigned to himself at Chattanooga, Tennessee, on his instructions to agents of the defendant; that the melons were not delivered in Chattanooga until August 7, whereas they should have been delivered by August 4; and that they arrived in Chattanooga in a damaged condition, as a result of the defendant’s negligence in failing promptly to transport the same from Atlanta to that point. The measure and extent of the damage are set forth. The suit would make a case of continuous carriage by the defendant from Buena Yista to Chattanooga, interrupted only by the reconsignment. It does not appear therefrom that any other carrier was concerned. There was no demurrer. At the close of the evidence upon the trial the court awarded a nonsuit. The plaintiff’s certiorari was dismissed by the superior court of'Fulton county, and he excepted.

The testimony of the plaintiff, the only witness, showed that when the melons arrived in Atlanta “the Central of Georgia Bail-way Company, on his orders, diverted it over the N., C. & St. L. Eailroad to Chattanooga, Tenn.” The plaintiff “saw the ear of melons in the watermelon yard of the Central of Georgia Railway Company in Atlanta, Georgia. . . The melons were in good condition when they arrived in Atlanta. . . So far as he knew, the Central of Georgia delivered the watermelons in good condition to the N, C. & St. L. Railroad.” The bill of lading covering the shipment from Buena Vista to Atlanta was introduced, and contained no agreement for the defendant to do more than to transport and deliver the melons to the consignee in Atlanta. No new bill of lading was issued for the further shipment from Atlanta to Chattanooga. The entire freight charges from Buena Vista to Chattanooga were paid by the plaintiff to the delivering carrier in Chattanooga, upon a bill for freight, $20.45, advances, $40.61; total, $61.06. The plaintiff testified, “that when he shipped the melons from Buena Vista, Georgia, he had an idea of shipping them elsewhere, if he could not dispose of them in Atlanta.” Without detailing the further evidence, it may be said that the plaintiff’s ease was made out, provided no infirmity is disclosed in the proof as stated above.

We think that the shipment from Buena Vista to Atlanta was purely intrastate. “Goods are in interstate commerce when they have been delivered for continuous transportation to a point of destination in another State. Texas &c. R. Co. v. Sabine Tram Co., 227 U. S. 111, 123 (33 Sup. Ct. 229, 57 L. ed. 442); Southern Pacific Terminal Co. v. Interstate Commerce Com., 219 U. S. 498, 527 (31 Sup. Ct. 279, 55 L. ed. 715); Coe v. Errol, 116 U. S. 517 (6 Sup. Ct. 475, 29 L. ed. 715). In order for a shipment, thus destined from the beginning for such continuous transportation, to be interstate in character, it is not required that it be originally routed by the initial carrier to a point of destination beyond the limits of the State, since the nature and essential character of the transportation is the controlling factor. Texas &c. R. Co. v. Sabine Tram Co., supra. See also Gulf &c. Ry. Co. v. Texas, 204 U. S. 403, 414 (27 Sup. Ct. 360, 51 L. ed. 540); Ill. Cent. R. Co. v. DeFuentes, 236 U. S. 157 “(35 Sup. Ct. 275, 59 L. ed. 517); Penn. R. Co. v. Clark, 238 U. S. 456 (35 Sup. Ct. 896, 59 L. ed. 1406).” Davis v. Phillips, 27 Ga. App. 814 (109 S. E. 924).

The form of the bill of lading is not necessarily determinative of the question of the local or foreign character of the shipment. Exportation is not begun until goods are committed to the common carrier for transportation ont of the State to the State of their destination, or until they have started on their ultimate passage to that State. Coe v. Errol, 116 U. S. 517 (29 L. ed. 715). Even though the bill of lading may call for a shipment from one point to another in the same State, it may be shown that an interstate or foreign movement was contemplated or reasonably to be anticipated by the parties, and thus that the shipment was in fact interstate. This is the true test. Railroad Com. of Ohio v. Worthington, 225 U. S. 101 (56 L. ed. 1004); Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. S. 111 (57 L. ed. 443); Bracht v. San Antonio &c. R. Co., 254 U. S. 489 (65 L. ed. 367). While the rulings by this court on the same subject in Augusta Brokerage Co. v. Central of Ga. Ry. Co., 5 Ga. App. 187, were believed in Davis v. Phillips, supra, to be inaccurate, “there is no presumption that a transportation when commenced is to be continued beyond the State limits.” Gulf &c. Ry. Co. v. Texas, 204 U. S. 404, 415 (51 L. ed. 540).

Here, so far as appears by the evidence, neither the shipper nor the carrier had in contemplation any movement beyond the desti-' nation specified,—namely, Atlanta,—and the contract between them must be determined from the original bill of lading and the local laws and regulations. See Bracht v. San Antonio &c. R. Co., supra. Although the plaintiff testified that he had an idea of diverting the shipment to some other point, he does not say that such other point was beyond the State limits, nor even that such probable purpose on his part was in the knowledge or contemplation of the carrier.

When goods in carload lots are consigned from one point to another in this State and transported to their destination over the railroad on which they are shipped, and the consignee is given notice and afforded an opportunity to receive and unload, but orders a delivery to some other person, which is made, the liability of the railroad company as a common carrier ceases. Cf. Seaboard Air-Line Ry. v. Dixon, 140 Ga. 804 (79 S. E. 1118). It appears in this ease that the plaintiff had notice of the shipment and an opportunity to receive it in Atlanta, the original destination, but desired a further transportation to a point beyond the State. This required a new contract.

In addition to what is contained in the above statement and preceding what is there quoted in reference to the same matter, the plaintiff testified that “when the watermelons got to Atlanta he asked the Central of Georgia Railway Company to divert them to him at Chattanooga, Tennessee, in direct route from Buena Vista, Georgia.” He does not say that the company assented. The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is contradictory, vague, or equivocal. Southern Ry. Co. v. Hobbs, 121 Ga. 428 (1) (49 S. E. 294); Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (1) (51 S. E. 438). The request which the plaintiff made was an offer to extend the relation of carrier on the part of the defendant, so as to make it continuous from Buena Vista to Chattanooga. The offer does not appear to have been accepted, but on his order shipment was diverted to another railroad. Eor that purpose the defendant acted only as forwarder or agent. Gulf &c. Ry. Co. v. Texas, 204 U. S. 404 (51 L. ed. 540); Bracht v. San Antonio &c. R. Co., 254 U. S. 489 (65 L. ed. 367). This ruling is sustained also by the decisions of the Supreme Court of this State. See Seaboard Air-Line Ry. v. Friedman, 128 Ga. 316 (1) (57 S. E. 778), and the cases there cited.

In Pere Marquette Railway Co. v. French, 254 U. S. 538 (65 L. ed. 391), the shipment “having reached Louisville, its destination named in the bill of lading, it was physically delivered by the Big Four, upon the request of one Bindner [acting for the holder of the bill of lading], to the Southern Railroad, to be forwarded to Dumesnil.” The Supreme Court of Michigan held that the Big Four, in sending the car over the Southern to Dumesnil at the request of Bindner, made, not a delivery, but an irregular reconsignment. The Supreme Court of the United States, however, differed from this conclusion, and, speaking through Mr. Justice Brandéis, said: “Whatever name he used in referring to the act of forwarding the car, the Big Four when it [surrendered] possession of the car to the Southern at Bindner’s request, terminated its relation as carrier; just as it would have done if, at his request, it had shunted the car onto a private industrial track, or had given the control of it to a truckman on the team tracks. Having brought the goods to the destination named in the bill of lading, the carrier’s only duty under its contract was to make a delivery at that place; and it could make that delivery by turning the goods over to another carrier for further carriage. Compare Bracht v. San Antonio &c. R. Co., decided by this court January 3, 1921, 254 U. S. 489, ante, 366 (41 Sup. Ct. Rep. 150); Seaboard Air-Line R. Co. v. Dixon, 140 Ga. 804 (79 S. E. 1118); Melbourne v. Louisville & N. R. Co., 88 Ala. 443 (6 So. 762). The fact that, in forwarding the car, the Big Four used the original waybill, striking out the word 'Louisville’ under • the 'destination’ and substituting 'Dumesnil, Ky. So. R. R.’, is of no significance. The shipment from Louisville to Dumesnil was a wholly new transaction. In turning over the car for this new shipment, the railway made a disposal of it in assumed termination and discharge of its obligations, which was, in legal contemplation, a delivery.” We think that this ruling is quite apposite to the question in hand. It will be noticed that the decision of the Supreme Court of this State in the Dixon case is cited among the authorities. In the Alabama case of Melbourne v. Louisville & N. R. Co., cited in the same connection, it was said: “The owner of goods shipped—and prima facie the consignee is the owner—may change his instructions as to their destination, and substitute a different place of delivery; but this, we apprehend, he must do during the transit, and not after their destination has been reached and the terms of the carrier’s obligation have been fulfilled.” Mr. Hutchinson states the rule to be that the owner cannot change the destination and require delivery somewhere else, except upon the basis of a new contract, where the carrier has completed his undertaking and carried the goods to the destination first agreed upon. See 2 Hutchinson on Carriers (3d ed.), § 660. Thus, continuous shipment from Buena Vista to Chattanooga was not effectuated merely by a diversion not exercised until the goods had arrived at the original destination. It is unnecessary for us to decide to what extent the right of a consignor who is also the consignee to divert the shipment may prevail in this State, independently of provision therefor in the contract, but we are satisfied that no such right can be exercised upon the basis of the original bill of lading, after the shipment has once arrived at the destination originally specified.

The fact that the carriage charges of both railroads were paid to the delivering carrier in Chattanooga does not of itself determine that the shipment was entire from Buena Vista to Chattanooga. “The right of the last carrier to pay the charges of previeras carriers, and hold the goods for reimbursement, as well as for his own charge of the freight earned, is undoubted.” Georgia Railroad Co. v. Murrah, 85 Ga. 343, 347 (11 S. E. 779); Seaboard Air-Line Ry. Co. v. Southern Flour & Grain Co., 138 Ga. 604 (75 S. E. 654). If this principle should be applicable only in cases of connecting carriers (and this we do not think is such a case,—see the Dixon case, supra), then the failure of the Central of Georgia Railway Company to collect its charges in Atlanta had merely the effect of a waiver of its lien. Southern Ry. Co. v. Farrar Lumber Co., 136 Ga. 479 (71 S. E. 769).

The melons were in good order when the plaintiff saw them in the possession of the defendant in Atlanta. He does not claim that they were thereafter damaged in its possession, but even if such claim should be made, it could not stand without evidence, because of the presumption that the ultimate carrier would not have received them in bad order. Cf. Atlanta & West Point R. Co. v. Broome, 3 Ga. App. 641 (4) (60 S. E. 355).

The only shipment undertaken by the defendant, or in which it was concerned as a carrier, being purely intrastate, the act of Congress of June 29, 1906 (34 Stat. 593, c. 3591; Interstate Com. Act., 20 a.), amending the act of February 4, 1887 (24 Stat. 379, c. 104, U. S. Comp. St. 1913, 8592, pars. 11, 12), providing that any common carrier receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder for any damage caused to the property by it or any carrier to which the property may be delivered or over whose lines it may pass, is wholly inapplicable. The shipment being intrastate, and the defendant having made the equivalent of a delivery to the shipper at the destination agreed upon in the contract, it was not liable for subsequent damage. Seaboard Air-Line Ry. v. Dixon, 140 Ga. 804, 805 (79 S. E. 1118). The act of the General Assembly of August 18, 1906 (Civil Code, § 2777), does not require a different conclusion. The facts in the Dixon case arose several years after the passage of this act.

This case is clearly distinguishable from Baltimore & Ohio R. Co. v. Montgomery, 19 Ga. App. 29 (90 S. E. 740). In that case the original contract was interstate, and was subject of course to the provisions of the act of Congress above referred to. The question there was, whether the defendant was the initial carrier under an interstate shipment. The question here is, was there ever a contract of interstate carriage between the parties?

As has been stated, no bill of lading was issued from Atlanta to Chattanooga. The plaintiff in error has called attention to the fact that a bill of lading is not an indispensable requisite to a valid contract of affreightment. This is true. City of Bainbridge v. Smith, 13 Ga. App. 790 (1) (79 S. E. 1130). But the defendant was not a party to the implied contract upon which the plaintiff relies. The plaintiff cannot consistently claim that there was a contract for continuous shipment from Buena Vista to Chattanooga, and rely upon an express contract to Atlanta and an implied contract from Atlanta to Chattanooga. We have seen that the original contract was terminated in Atlanta. We have also observed that no new contract was made between the plaintiff and the defendant for the further shipment, but that the defendant was merely an agent or forwarder in delivering the goods to the Nashville, Chattanooga and St. Louis Bailroad. Of course, if we could hold that the transaction between the plaintiff and the defendant in Atlanta had the effect of making a new contract for transportation by the defendant to Chattanooga, the liability of the defendant would probably be shown, but this would not have prevented the nonsuit.

Let us assume for the moment that we are in error in holding that the defendant was merely the plaintiff’s agent or forwarder from Atlanta, and grant that the defendant undertook the further transportation. This is the effect of the contentions of the plaintiff in error upon the evidence. The averments of his suit do not make such a ease, but are laid upon the theory of an interstate shipment, a continuous movement from Buena Vista to Chattanooga. One contract only is alleged, predicated upon the bill of lading and a diversion. Proof of two separate contracts, one express and the other implied, one intrastate and the other interstate, would vary materially from the averments of the complaint. We believe that if the plaintiff’s own contentions as based upon his evidence were assumed to be correct he still would have failed to prove the case which he laid. The plaintiff must recover upon the cause of action as laid in the petition. If he sued upon an express contract, he could not recover upon an implied one. Seaboard Air Line Ry. Co. v. Henderson Lumber Co., 28 Ga. App. 391 (111 S. E. 220), and cases cited; Seaboard Air-Line Railway v. Friedman, 128 Ga. 316 (1) (3) (57 S. E. 778).

The defendant in error has urged that the judgment of nonsuit was right for the further reason that the suit was not brought in the proper county. This court judicially knows that the principal office of the Central of Georgia Eailway Company, which is a corporation of this State, is located in Chatham county. Central of Ga. Ry. Co. v. Dickerson, 15 Ga. App. 293, 298 (82 S. E. 942); Central of Ga. Ry. Co. v. Kuhns Lumber Co., 16 Ga. App. 700 (86 S. E. 56). The petition did not allege that the contract upon which the suit was founded was either made or to be performed in Eulton county. The courts of Fulton county did not have jurisdiction. Wright v. Southern Railway Co., 7 Ga. App. 542 (2) (67 S. E. 272); Civil Code (1910), § 2798; Bracewell v. Southern Ry. Co., 134 Ga. 537 (68 S. E. 98). This is so even under the act of Congress of July 29, 1906. Central of Ga. Ry. Co. v. Touchstone, 148 Ga. 861 (98 S. E. 485). This defect was apparent upon the face of the petition and could have been reached by demurrer. Payne v. Chambliss, 27 Ga. App. 374 (5) (108 S. E. 472); Robertson v. Tallulah Falls Ry. Co., 29 Ga. App. 530 (4) (116 S. E. 65). Having concluded that the judgment of nonsuit was right upon the evidence, we. do not deem it necessary to enter upon a decision of whether a defect appearing in the petition may be considered in connection with the evidence in passing upon a judgment of nonsuit, although it would seem to be clear that such a defect when standing alone would furnish no ground for a demurrer to the evidence, or nonsuit, but should in practice be taken advantage-of in some other way. Kelly v. Strouse, 116 Ga. 872 (4) (43 S. E. 280).

The judge of the superior court properly dismissed the certiorari.

Judgment affirmed.

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


text:
    14900.
    Jackson v. State.
    Decided December 7, 1923.
    Condemnation under liquor law; from Gwinnett superior court —Judge Fortson. June 9, 1923.

      G. A. Johns, for plaintiff in error.

      P. Cooley, solicitor-general, contra.
   Bell, J.

Where in the trial of a proceeding under section 20 of the prohibition act of March 28, 1917 (Act Ex. Sess. 1917, pp. 7, 10), to condemn an automobile used in transporting prohibited liquors or beverages, the jury were instructed that the State could not prevail unless it appeared that the vehicle was so used with the knowledge of the defendant owner, it was not cause for a new trial to the defendant that the judge, in the absence of a timely written request, did not further charge that the burden of proving such knowledge was one to be carried by the State. “Where the court fairly states the contentions of both parties, and instructs the jury upon the law appropriate thereto, and the rule as to the preponderance of evidence, he is not bound, in the absence of a proper written request, to charge on which particular issues, respectively, the plaintiff held the burden of proof and on which the defendant held the burden of proof.” Brandon v. Pritchett, 133 Ga. 480 (2) (66 S. E. 247); Southern Ry. Co. v. Wright, 6 Ga. App. 172 (7) (64 S. E. 703); Hickman v. Bell, 10 Ga. App. 319 (2) (73 S. E. 596); Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5).

Judgment affirmed.

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


author: Bebe, J.

text:
    14915.
    Jones v. Norris N. Smith Company.
   Bebe, J.

The plaintiff alleged an express contract with the defendant real-estate broker, providing that they would pool their interests with reference to the sale of certain property which the plaintiff claimed had been listed by the owner with each for sale, and that the commissions should be equally divided between them in case of a sale by either. The plaintiff further alleged that a sale was thereafter made by the defendant, for which the defendant received a given sum from the owner as commissions, and that the plaintiff was entitled to a half of this sum, which the defendant refused to pay. The defendant contended that the property was listed with it exclusively, and that it only agreed to divide commissions in ease of a sale to a purchaser “produced” by the plaintiff, and that the plaintiff did not furnish any customer. A verdict was found for the defendant; and the plaintiff excepted to the overruling of his motion for a new trial. The defendant company’s officer testified: “It is customary, where a real-estate agent holds an exclusive sales contract, to deal with other agents on the theory of them producing a customer,—to split; and I so told [the plaintiff] at the time.” Another witness for the defendant testified to the existence of a custom among real-estate agents in the vicinity where the alleged contract was made, to the effect that where an agent held an exclusive listment, “and another agent produced a customer who bought, the commission would be divided; if that other agent did not produce a customer who bought, there was no division.” The evidence quoted was objected to in each instance upon the ground that the plaintiff was suing upon an express contract, and in such a case proof of a custom would be irrelevant and inadmissible. With reference to this evidence the court charged the jury as follows: “I permitted this evidence to go to you, not that it might defeat a recovery in this case by itself, because you are not trying this case upon a custom, but upon a contract, if there was any contract, But the court has permitted this evidence to go to you to aid you, if it does aid you, in determining the question of whether or not Mr. Smith made a contract of the character he claims he made, or a contract of the character Mr. Jones claims he made at the time. If you find this evidence aids you in determining that question any way, you may consider it, otherwise you will not consider it.” This charge is assigned as error upon substantially the same ground as that urged to the admission of the evidence. Reid:

1. The testimony of the defendant’s officer as set out above was admissible as a part of the res gestas.. Civil Code (1910; § 5766; Cook v. Pinkerton, 81 Ga. 89 (3) (7 S. E. 171, 12 Am. St. Rep. 297).

2. “While, strictly speaking, the proper office of usage is to aid in the interpretation of contracts, yet evidence of the usual or customary way of doing a certain thing will frequently be admitted for other purposes in order to shed light on, or explain, the acts of parties or to arrive at the intent underlying such acts.” 29 Am. & Eng. Enc. Law, 417. The defendant having offered evidence which if true would have shown that the plaintiff was told of the custom applying in the defendant’s line of business, proof of its existence as a part of the surrounding circumstances, or atmosphere, of the transaction in question was not improper. In view of the purposes to which the court limited the testimony relating to the custom, as given by the defendant’s witness other than its officer, neither the admission of the evidence nor the court’s charge in reference thereto was cause for a new trial. Civil Code (1910), §§ 5745, 5766.

3. The evidence authorized the verdict.

4. The rulings made above will dispose of all grounds of the original motion for a new trial and the amendment thereto. After this was overruled, the plaintiff filed an extraordinary motion for a new trial, based upon alleged newly discovered evidence, from which and the record the following facts are disclosed: The plaintiff alleged that the contract upon which he relied was made in October, 1919. The suit was filed on November 13 next following. The case was tried twice, the last time on April 13, 1923. The newly discovered evidence is contained in the affidavits of Stansell and Davis, who depose that they were present and heard the conversation between the plaintiff and the defendant’s officer at the time of the making of the alleged contract on which the plaintiff sued. They depose to facts which would show that the agreement was made as contended by the plaintiff. In undertaking to account for his diligence in discovering this evidence, the plaintiff movant avers in his extraordinary motion that “he knew that there were two men standing at the place testified to by them, but in the way they were standing at the time, and his attention being on the matter in hand between himself and Smith, he did not recognize who they were; that he used all ordinary care and diligence to locate and identify these men who were so standing at said place, before the trial of said case, and then again before the trial of the motion for new trial; that he inquired of numerous parties trying to learn the names of said parties and failed utterly to do so; that during the week beginning July 2 [1923] some one suggested to him [to] place an advertisement in the local papers, asking that the parties who were present at the time communicate with him, and he did so. . . That on Saturday, July 7, 1923, said Stansell came to movant and informed him that he and said Davis were the men standing at the mail-box at the time of the conversation referred to, and then informed movant as to what he would testify; this was the first time that movant knew who said men 'were, and he had never at any time spoken to either of them about said transaction before July 7, 1923, and did not know what they knew nor what they would testify in said case.” It thus would appear that more than three and a half years after the plaintiff’s suit was filed and after two trials and the overruling of his original motion to avoid the second verdict, the plaintiff advertised for the two persons who he claims were present and heard the conversation upon which he relied to establish his contract. Assuming that there was no other reason whatsoever which would have authorized the presiding judge to overrule the extraordinary motion, the conclusion is not demanded that there was an abuse of discretion on his part in holding that the plaintiff had not shown the proper diligence in discovering and producing the alleged newly discovered evidence. This court cannot say that the judge could not have found that the plaintiff, in ordinary diligence, should have done long before what •he ultimately did, by which the identity of the witnesses was discovered. The action of the court in overruling the extraordinary motion will not be interfered with. Evans v. Grier, 29 Ga. App. 426 (3) (115 S. E. 921); Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (7) (118 S. E. 467); Farmers Union Warehouse v. Boyd, 31 Ga. App. 104 (119 S. E. 542).

Decided December 7, 1923.

Complaint; from Floyd superior court—Judge Wright. July 25, 1923.

M. B. Eubanks, F. W. Copeland,, for plaintiff.

Denny & Wrigid, for defendant.

Judgment affirmed.

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


text:
    14922.
    Carnes v. Bray.
   Bell, J.

1. There was some evidence to authorize the verdict found for the claimant.

2. The court did not err in refusing a new trial to the plaintiff in fi. fa. on the ground that a previous verdict in favor of the claimant, later set aside by the grant of a new trial, was allowed to go out with the jury in the second trial, the prior verdict being written upon the claim, and no request or motion for its concealment or exclusion being made by the plaintiff in fi. fa. or his attorney. See Keefer v. Pinion, 11 Ga. App. 843 (76 S. E. 648); Kincaid v. State, 13 Ga. App. 683 (3) (79 S. E. 770). This ruling is not in conflict with the decision of this court in Waters v. State, 25 Ga. App. 577 (3) (103 S. E. 835). In that ease, the verdict was not written upon the indictment, but upon a separate sheet of paper which was pinned thereto. This sheet was detached by the defendant’s attorney and handed to the clerk. Thereafter in some way unknown to the defendant or his counsel “said verdict did go out with the jury.” In the decision in that case the court said: “If the Summerlin verdict [Summerlin being a joint defendant] had been written on the presentment itself, we would hold that counsel for the defendant should have made such a motion to the court.”

Decided December 7, 1923.

Levy and claim; from Putnam superior court—Judge Park. July 18, 1923.

B. C. Jenlcins, for plaintiff.

Davidson, Callaway & DeJarnette, contra.

Judgment affirmed.

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


text:
    14925.
    Pendergrass Banking Co. v. Murphy & Sons et al.

    Decided December 7, 1923.
    Action for damages; from Jackson superior court—Judge Fort-son. July 11, 1923.

      John J. Striclcland, 8. J. Nix, for plaintiff.
    P. Cooley, Jere 8. Ayers, for defendants.
   Bell, J.

The evidence in this case conclusively established a settlement of the pending litigation before the trial. • Besides other evidence to the general effect, the plaintiff’s vice-president testified without dispute or objection with reference to the controversy involved in the suit: “I went out there and made settlement,” stating the terms. The plaintiff accepted and held the proceeds with knowledge of the facts. See Tyler Cotton Press Co. v. Chevalier, 56 Ga. 494 (5); Riley & Co. v. London Guaranty & Accident Co., 27 Ga. App. 686 (1 a) (109 S. E. 676). The verdict found for the defendant being demanded by the evidence, this court should not reverse the judgment merely for errors in the charge, assuming their commission. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., a/nd Stephens, J., concur.


text:
    15071.
    WIDINCAMP v. GLENNVILLE BANK.
    The answer admitted the execution and delivery of the unconditional note sued on, .and attempted to set up fraud and want of consideration, but, neither defense being shown by the facts alleged, the court did not err in striking the answer and entering judgment for the plaintiff.
    Decided December 7, 1923.
    Complaint; from city court of Eeidsville—Judge Lanier presiding. September 11, 1923.
    Glennville Bank sued E. Widincamp upon a promissory note. Tire defendant by his answer showed that he and one DeLoach were originally indorsers on a note executed by another to the plaintiff bank; that, suit having been instituted on this note against the principal and the indorsers, this defendant paid one-half of the obligation and gave his note (for which that sued on is a renewal) for the remainder; that “C. W. Kicklighter, acting for the Glennville Bank, told this defendant that the bank had plenty of the property of . . DeLoach to pay his half of the original debt and that he would make the money out of that property, and never bother this defendant, but that he must have this note of the defendant to represent the debt while the bank was trying to collect it out of DeLoach;” “that this note was given for no consideration, and there has been a total failure of consideration, as this defendant simply gave his note to represent the debt that was to be collected out of DeLoach, and the said C. W. Kicklighter told this defendant that if he would sign this note, he would get the note of” DeLoach, indorsed by others, which was never done; and that the plaintiff “procured the name of this defendant to be signed to said note by. fraud,” alleged to consist of the conduct of the plaintiff’s agent as above set out. The answer alleges further that at the execution of the renewal note sued on the plaintiff’s agent repeated the statements detailed above.
    The court on motion struck defendant’s plea, and entered up judgment in favor of the plaintiff, for the principal sum sued for, together with interests and costs; and the defendant excepted.

      H. H. Elders, for plaintiff in error. J. T. Grice, contra.
   Bell, J.

(After stating the foregoing facts.)

The answer failed to show that the note sued on was without consideration. The defendant was originally liable on the note of anpther as indorser and thi§ liability furnished a consideration in succession for each of the notes given thereafter in renewal. Also the plea was insufficient as a plea of fraud. Sasser v. McGovern, 11 Ga. App. 88 (74 S. E. 797); Haymans v. Bennett, 29 Ga. App. 265 (114 S. E. 923); Tennille Banking Co. v. Ward, 29 Ga. App. 660 (116 S. E. 347).

Judgment affirmed.

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