author: Jenkins, R. J.

text:
    18668.
    American National Insurance Company v. Brantley.
    Decided August 30, 1928.
   Jenkins, R. J.

1. An assured may direct that the money be paid to his assignee, and ■where such direction is assented to by the insurer, no other person can defeat it. Civil Code (1910), § 2498. “At common law [the assignee] could not sue at law, but under modern statutes he ■ may, and in most States must sue. In any event it is clear that an assignment of a policy of insurance, consented to by the insurer, effectuates a new contract with the assignee, on which the assignee may sue in his own name. . . The fact that the assignee may not be entitled as against third persons to retain the whole proceeds does not affect his right to sue where he has the legal title and a beneficial interest in the policy.” 14 R. C. L. 1429, § 588; Brown v. West, 35 Ga. App. 444 (133 S. E. 304).

2. “Under the provisions of section 2549 of the Civil Code (1910), the liability of an insurer for attorney’s fees and damages can not accrue until the lapse of sixty days from the date of a demand, made when there was a right to demand.” New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773, 775 (8) (116 S. E. 922); Lester v. Piedmont &c. Ins. Co., 55 Ga. 476 (4); Ancient Order United Workmen v. Brown, 112 Ga. App. 545 (3) (37 S. E. 890). In other words, the penalty accrues by virtue of a demand, and the demand must be made at a time when a demand for immediate payment is in order. Accordingly, in those cases in which the policy provides that the company may defer payment for sixty days from the filing of proof of loss, a demand made contemporaneously with the proof of loss could not be taken as a demand for payment when payment was due, and in such cases it was held that in order for the penalty to be incurred, a demand for payment must be made after the expiration of the sixty days allowed for payment by the terms of the policy. Lester v. Piedmont &c. Ins. Co., supra; Alliance Insurance Co. v. Williamson, 36 Ga. App. 497, 503 (6) (137 S. E. 277). In the instant case, however, where the policy became due and payable immediately upon proof of loss, a contemporaneous demand made at the time of the filing of the proof of loss meets the requirements of a demand when there was a right to demand.

3. Under the foregoing rulings, the plaintiff, as the acknowledged assignee under a valid assignment of the policy, was entitled to recover the full value thereof, and the demand made by him at the time of filing proof of loss was sufficient to give rise to an action for the penalty provided by section 2549 of the Civil Code upon the refusal of the company to pay the loss within sixty days from the date of such demand. Whatever might have been the purpose and intent of the company in seeking to protect and adjudicate the rights of other parties owning an interest in the proceeds of the policy, it can not be said as a matter of law that the company was not guilty of bad faith, in a legal sense, in refusing to pay the policy within the time prescribed by the statute.

Judgment affirmed.

Stephens and Bell, JJ., concur.

C. G. Crockett, lor plain tiff in error.

Hightower & New, contra.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    18669.
    Calhoun v. Georgia Veneer & Package Co.
   Stephens, J.

1. In a suit between two adjoining landowners, where the plaintiff sought to recover the value of timber which the defendant had taken from land claimed by the plaintiff, and where the defendant’s claim of title was dependent upon the establishment of a designated line as an agreed dividing line between the two tracts of land by virtue of a parol agreement between the defendant and the plaintiff’s predecessor in title, evidence that the strip of land to which the defendant claimed title by virtue of the alleged agreed dividing line was unimproved wild land, covered with timber, with no field or building on it, and that no fence had been on it, that the only markings of the alleged agreed line consisted in blazes apparently recently made upon the trees, and the only evidence of possession by the defendant of the disputed strip • of land, up to the alleged agreed dividing line, was the occasional cutting of timber thereon by the defendant, and that the plaintiff, upon acquiring the title under which he claimed the land in dispute, had no notice of any claim by the defendant as to such alleged agreed dividing line, the evidence was insufficient to demand an inference, and to establish as a matter of law, that the parol agreement between the defendant' and the plaintiff’s predecessor in title, establishing the dividing line between the two tracts of land, had become duly executed, either by actual possession or otherwise, or that the plaintiff had notice of such occupancy by the defendant. Miller v. McGlaun, 63 Ga. 435; Osteen v. Wynn, 131 Ga. 209 (3) (62 S. E. 37, 127 Am. St. R. 212); Bunger v. Grimm, 142 Ga. 448 (83 S. E. 200, Ann. Cas. 1916C, 173); Farr v. Woolfolk, 118 Ga. 277 (45 S. E. 230).

2. There being no issue respecting the size and shape of the entire tract of land belonging to the defendant, but the only issue being as to the true dividing line between the defendant’s tract and the tract of the plaintiff, a plat of the- land, purporting to show the dividing line be- , tween the two tracts as contended for by the plaintiff, was not inadmissible as evidence upon the ground that the. plat appeared upon its face to be an incorrect representation of the size and shape of the defendant’s land. There being some evidence that the plat was correct, it was properly admitted in evidence as a circumstance, to be taken together with other testimony, as tending to establish the true dividing line between the two tracts of land, and the probative value of the plat was a question for the jury.

3. A return of processioners, made after the termination of the case and the rendition of the verdict for the plaintiff, establishing as the true line between the two tracts of land the alleged agreed line contended for by the defendant, when made without the knowledge of the plaintiff and in a proceeding in which the plaintiff was not served and was not a party, is, as respects the plaintiff, a mere nullity and has no probative value whatsoever, and. can not, as newly discovered evidence, afford ground for the grant of a new trial.

Decided August 30, 1928.

William B. Kent, M. B. Calhoun, for plaintiff.

George H. Harris, for defendant.

4. The evidence authorized the inference that the true dividing line between the two tracts of land was as contended for by the plaintiff, and that the title to the timber cut and removed by the defendant was in the plaintiff.

5. The verdict found for the plaintiff in the amount found was authorized, and no error appears.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


author: Jenkins, P. J.

text:
    18672.
    Brown, administrator, v. Bowman.
    Decided August 30, 1928.

      B. B. Jones, for plaintiff in error. H. A. Wilkinson, contra.
   Jenkins, P. J.

The remedy by affidavit of illegality can be employed to go behind and attack a judgment only when it is shown that the judgment is absolutely void, in that the court rendering it was without jurisdiction so to do, or that the defendant has not had his day in court. McConnell v. Mason, 30 Ga. App. 82 (116 S. E. 658). In the instant case it is not disputed that a court of competent jurisdiction entered its decree vesting in the affiant’s intestate title to the land levied upon, subject to the lien of the execution sought to be enforced, nor is it disputed that the affiant’s intestate was represented in the proceeding resulting in the decree, and by his counsel consented thereto. Accordingly the decree can not be attacked by him by affidavit of illegality, and this is true irrespective of whether or not it is conclusive upon other persons who might have had an - interest in the property, but who were not represented in the proceeding resulting in the decree. Accordingly, the court did not err in sustaining the demurrer interposed by the plaintiff in fi. fa. to the affidavit of illegality.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18673.
    Doster v. Mobley, superintendent of banks.
    Decided August 30, 1928.

      Hal Lawson, for plaintiff in error. J. H. Dorsey, contra.
   Stephens, J.

1. A suit instituted by tlie superintendent of banks, under authority of the act of August 21, 1922, amending the banking act of this State by providing that suits may be instituted by him in the name of the bank (Ga. L. 1922, pp. 63-65, sec. 7-a), for the purpose of collecting moneys due to a bank taken over by him under authority of the banking act approved August 16, 1919 (Ga. L. 1919, pp. 154-156), may be instituted by him for the bank in his own name as superintendent of banks.

2. It is not essential to the liability of a stockholder in an insolvent banking corporation, for the assessment of his capital stock in the corporation for the benefit of the creditors of the corporation, that the stock stand on the books of the corporation in the name of the stockholder assessed, but such assessment may be made against the real owner, although the stock stands on the books of the corporation in the name of another who has no interest therein. Harris v. Taylor, 148 Ga. 663 (6) (98 S. E. 86); Civil Code (1910), § 2248.

3. The fact that capital stock in a banking corporation has been set aside to a widow as a year’s support out of her deceased husband’s estate affords no ground for exempting the stock, as the property of the widow, from assessment for the benefit of creditors of the -bank as an insolvent corporation.

4. The method of collecting an assessment against a stockholder of an insolvent banking corporation by a summary execution issued by the superintendent of banks against the stockholder, as provided in section 20, article 7 of the banking act of this State, approved August 16, 1919, and amended August 26, 1925 (Ga. L. 1919, pp. 154-160; Ga. L. 1925, p. 125, sec. 9), is not exclusive, but is cumulative only. As assessment so made may be collected by a common-law suit instituted by the superintendent of banks, suing as provided in the sections cited in paragraph 1 above.

5. It is not a condition precedent to the right of the superintendent of banks to maintain a common-law suit to recover an assessment of a stockholder in an insolvent bank that the stockholder be given notice of the assessment as required in section 20, which provides for the collection of the assessment by a summary execution.

6. Under the above rulings the petition of the superintendent of banks, in a suit against the defendant as a stockholder in an insolvent bank, set out a cause of action, and the court did not err in overruling the demurrer interposed.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    18675.
    PENN MUTUAL LIFE INSURANCE COMPANY v. TAGGART.
    Decided August 30, 1928.

      11. Wiley Johnson, for plaintiff in error.

      Lawrence tG Abrahams, Edwin A. Cohen, contra.
   Jenkins, P. J.

1. Fraud is either actual or constructive. Either constitutes legal fraud. Actual' fraud “consists of any kind of artifice by which another is deceived.” It involves moral guilt, since there must be an intentional purpose to deceive. Constructive fraud “consists in any act of omission or commission, contrary to legal or equitable duty,, trust, or confidence justly reposed, which is contrary to good conscience.” It does not involve moral guilt, since it is the act' itself, as taken in connection with the relationship of the parties, and not the guilty purpose or intent, which constitutes constructive fraud. Civil Code (1910), § 4622..

(а) Either actual or constructive fraud may consist in the misrepresentation of a material fact. Whether the fraud is actual depends on whether the false representation was made with the purpose and intent to deceive.

(б) A material misrepresentation constituting actual fraud may give rise to an independent action in tort for deceit, to recover for damage thus occasioned. In such a suit it is necessary to show, not only that a material misrepresentation was made for the purpose of inducing the plaintiff to act, that he had a right to act, and that he did act thereon to his injury, but it must be shown that such representation ivas wilfully and knowingly false, or what the law regards as the equivalent of knowledge, a reckless or fraudulent representation about that which the party pretends to know, but about which he knows that he does not know, and by which false pretense his purpose and intent is to deceive. Thus, in any suit sounding in tort for damages on account of actual fraud, the gist of the action is the purpose and design to deceive. Civil Code (1910), § 4410; Wooten v. Calahan, 32 Ga. 382, 386; Cooley v. King, 113 Ga. 1163 (2) (39 S. E. 486); DeVaughn v. Harris, 103 Ga. 102 (29 S. E. 613); Gordon v. Irvine, 105 Ga. 144, 148 (31 S. E. 151); Burpee v. Holmes, 132 Ga. 464, 466 (64 S. E. 486); Dumas v. Ware, 143 Ga. 212 (84 S. E. 538); Camp v. Carithers, 6 Ga. App. 608 (5) (65 S. E. 583); 10 Michie’s Enc. Dig. 409, 3.

(c) Constructive fraud, as limited and defined by section 4622 of the Civil Code (1910), and made to “consist in any act of omission or commission contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience,” is broadened, so far as it relates to misrepresentations of a material fact, by the succeeding section of the code (§ 4623), since the latter section specifically provides that innocently made misrepresentations, if acted on by the opposite party, constitute fraud, without reference to any limitation being fixed upon the relationship occupied by the parties to whom-and by whom such representations are made. Consequent^, an innocently made material misrepresentation which the opposite party has a right to act on and does in fact act on to Iris injury is made to constitute fraud by section 4623 of the code; but the fact that the opposite party may occupy one of the relationships mentioned by the preceding section defining constructive fraud does not operate to change that which would otherwise be mere constructive fraud, on account of lack of the element of guilty intent, into actual intentional fraud. It follows that whatever may be the rule in certain foreign jurisdictions with reference to innocent misrepresentations when made by one charged with a special duty to the opposite party to know and to impart the truth (see, in this connection, 12 R. C. L., 334, §§ 91-93), under the statutes and decisions of this State such misrepresentations can not amount to anything more than constructive fraud, and, as such, are not creative of any independent right of action for damages in tort in favor of the injured party; but they may support an action in equity to rescind a contract so induced. Reese v. Wyman, 9 Ga. 430; Newman v. Claflin Co., 107 Ga. 89 (32 S. E. 943); Civil Code (1910), § 4113; see also Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100); King v. Dobbs, 30 Ga. App. 441 (118 S. E. 428). Or they may be pleaded in defense to a suit on a contract thus procured (Walters v. Eaves, 105 Ga. 584 (2) (32 S. E. 609); Pilcher v. Thompson, 29 Ga. App. 493 (2) (116 S. E. 49). Or they may, it might seem, under the doctrine of estoppel, be employed in support of an action founded on the contract itself. Wilkins v. McGehee, 86 Ga. 764, 770 (13 S. E. 84); Equitable Mortgage Co. v. Butler, 105 Ga. 555 (31 S. E. 395); American Freehold &c. Mortgage Co. v. Walker, 119 Ga. 341 (3) (46 S. E. 426); Parks v. Simpson, 124 Ga. 523, 524 (52 S. E. 616); Hood v. Duren, 33 Ga. App. 203 (2) (125 S. E. 787). But see, in this connection, Tinsley v. Rice, 105 Ga. 285, 290 (31 S. E. 174).

2. The uniform-procedure act of 1887 provides, as codified by section. 5406 of the present code, that the superior courts of this State shall give effect to all the rights of the parties, legal or equitable, or both, and apply such remedy, legal or equitable, or both, in favor of either party, as the nature of the ease may allow or require. The purpose of this act was to afford a party the opportunity to have all his rights in regard to the subject-matter tried in one action in the superior court. Delaney v. Sheehan, 138 Ga. 510, 513 (75 S. E. 632). It does not purport to create rights otherwise unauthorized or prohibited. TFnder the principles of law set forth in the preceding division of this decision, while section 4623 of the Civil Code provides that the innocent misrepresentation of a material fact, if acted on by the opposite party, constitutes fraud in a legal sense, it does not purport to establish or define what rights or remedies accrue to the opposite party from the perpetration of such constructive fraud. It is only to such rights as the litigants have that the superior courts of this State must give effect. Another and different provision of the code (§ 4410) undertakes to limit and define what misrepresentations of a material fact will give rise to a right of action in tort for damages. It is there provided that in order to support such an action a guilty purpose to deceive is a necessary element. None of the cases cited (Smith v. Newton, 59 Ga. 113; Ellis v. U. S. Fertilizing &c. Co., 64 Ga. 571; Smith v. Mitchell, 6 Ga. 458; Reese v. Wyman, 9 Ga. 430; Bailey v. Jones, 14 Ga. 384; Hawk v. Leverett, 71 Ga. 675; Johnson v. Dooly, 72 Ga. 297) seem to hold or imply that an affirmative right of action in tort for damages can be maintained under § 4623, or otherwise, on account of a misrepresentation innocently made.

3. In the instant case, the petition for damages in tort, not being grounded on actual fraud involving conscious, moral guilt, with the purpose and intent to deceive, did not set forth a cause of action, and the court erred in overruling the demurrer pointing out such deficiency. The suit being admittedly an action in tort for damages, nothing is adjudicated or intimated concerning what rights, if any, the plaintiff, as assignee and owner of the policy of insurance, might have to recover the cash value thereon as it was represented to be by the defendant and acted upon by the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18678.
    HALLMAN v. OZBURN.
    Decided August 30, 1928.

      W. H. Terrell, for plaintiff. Hooper & Hooper, for defendant.
   Jenkins, P. J.

1. Malicious use of legal process is where the plaintiff in a civil proceeding employs the court’s process in order to execute the object which the law intends for such a process to subserve, but proceeds maliciously and without prohable cause. McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190). In such a proceeding, while it is necessary that it shall appear that the previous litigation has finally terminated against the plaintiff therein, this fact, while generally sufficient to indicate where the preponderance of the evidence lies, furnishes no proof or presumption that the former proceeding was instituted maliciously or without probable cause (Farrar Lumber Co. v. Hogan, 25 Ga. App. 597, 103 S. E. 863); and this is the gist of the action. It is not the policy of the law to give rise to a cause of action based on the malicious use of legal process merely because the plaintiff loses his case; if this were the rule, “the end of the action would be merely the beginning of litigation.” Porter v. Johnson, 96 Ga. 145, 148 (23 S. E. 123). “The restrictions under which such actions are placed, and the guarded conditions authorizing them, clearly show that they are not highly favored or much encouraged, and this is because of their tendency to promote litigation and engender strife, as well as to deter persons from coming forward to vindicate the public justice and to insist upon their private rights in the only way that the law allows.” Wilcox v. McKenzie, 75 Ga. 73. Accordingly, in a suit based upon the malicious use of legal process, not only must the termination of the previous litigation against the defendant be averred and proved, but it must also appear “from the facts alleged in the petition," that the defendant in instituting the process acted maliciously and without probable cause. Smith v. National Clothing Co., 29 Ga. App. 421 (116 S. E. 52). In such a suit, it is not sufficient for the pleader to merely set forth his conclusions in the language of the statute, but such facts must be averred and shown as will enable the court to say that, upon the proof of such facts, the jury would be authorized to find that the former suit was instituted maliciously and without probable cause, or that from such lack of probable cause they would be authorized to infer malice. Civil Code (1910), § 4444; Darnell v. Shirley, 31 Ga. App. 764 (122 S. E. 252). Wilcox v. McKenzie, supra.

2. In accordance with the foregoing ruling, the court did not err in dismissing the present action for an alleged malicious use of legal process by the defendant in having previously sued out a process of garnishment based on a pending suit to recover on a note the sum of $755, and on a check the sum of $250. While the petition alleges that the garnishment proceeding was instituted maliciously and without probable cause, and merely for the purpose of harassing the defendant in that suit into settling the claim, the petition fails to set forth any fact such as would authorize the pleader’s conclusion that its purpose was malicious and without probable cause. Accordingly, the court did not err in dismissing the petition on demurrer, after-having given the plaintiff opportunity to cure this fatal defect by amendment.

Judgment affirmed.

Stephens and Bell, J., concur.


text:
    18685.
    Knight v. Floyd County.
   Stephens, J.

The mere fact that a bridge, at its entrance on a highway, is narrower than, the road, and that by reason of this discrepancy in width a vehicular traveler approaching the bridge and adhering to the outer edge of the road will fail to take the bridge and will fall from the road into a declivity on the side of the road at the entrance to the bridge, constitutes no defect in the bridge itself or in the abutments to the bridge, or in the manner in which the bridge is connected with the highway. See Howington v. Madison County, 126 Ga. 699 (55 S. E. 941). While the dangerous situation thus ei-eated is at the entrance to the bridge, and relates to the condition of the bridge as respects its width relatively to the road, the danger created, not by any defect in the maintenance of the bridge and its approaches, but solely by the excess in the width of the road over the width of the bridge and the road’s close proximity under such conditions to the declivity at the entrance to the bridge, all of which are independent of the construction and maintenance of the bridge and its approaches. Since a county is not liable to a traveler on a highway for injuries to him resulting from a defect in the roadway, but is liable to him only for injuries resulting from defects in bridges on the highway, as provided in the Civil Code (1910), § 748, the court, upon the trial of a suit against the county to recover damages because the automobile in which the plaintiff was traveling along the highway failed to take the bridge as a result of the road being wider than the bridge, and fell into the declivity on the side of the road at the entrance to the bridge, properly directed a verdict for the defendant. See, in this connection, Smith v. Colquitt County, 37 Ga. App. 222 (139 S. E. 682).

Decided August 30, 1928.

M. B. Eubanks, for plaintiff. Graham Wright, for defendant.

Judgment affirmed.

Jenkins, P. J., and Bell, J., ooneur.


text:
    18384.
    Hinson v. Seaboard Air-Line Railway Company.
   Stephens, J.

1. Notwithstanding the holder of the legal title to personalty may maintain an action in tort for damage to the property (L. & N. Railroad Co. v. Dickson, 158 Ga. 303, 123 S. E. 12), one who is not the holder of the legal title, but who is in legal possession of the property, having a special interest therein 'and holding an equitable title thereto as purchaser with part of the purchase-money unpaid, may maintain an action in tort to recover for the entire damage to the property, the amount recovered however, being subject to his own use and that of the holder of the legal title as their respective interests may appear. City of Atlanta v. Callaway, 137 Ga. 495 (73 S. E. 736); Mack v. Augusta Belt Railway Co., 28 Ga. App. 816 (113 S. E. 66); Fender v. Lee County, 31 Ga. App. 604 (121 S. E. 843); Allen v. Southern Railway Co., 33 Ga. App. 209 (126 S. E. 722); Bugg v. Daley, 37 Ga. App. 645 (141 S. E. 323); 6 C. J. 1166, 1168. In a suit for damage to personal property it is no defense that the plaintiff, who at the time of the injury was in possession of the property as purchaser, was not the holder of the legal title.

2. This being a suit to recover for damage alleged to have been caused by the defendant’s railroad-train running into the plaintiff’s automobile at a public crossing while the automobile was stalled upon the track of the railroad, and there being evidence from which the jury could have inferred that the damage in a definite amount was caused by negligence of the defendant, and that the plaintiff was the holder of the equitable title to the property as purchaser, the court erred in admitting evidence to the effect that the legal title to the property, was not in the plaintiff; but in another as security for the purchase-money, and in directing a verdict for the defendant.

Decided August 31, 1928.

II. W. Nalley, for plaintiff. W. S. Mann, for defendant.

Judgment reversed.

Jenlcms, P. J., and Bell, J., concur.


text:
    18523.
    Nunnally v. Wheeler.
    Decided August 31, 1928.

      Titus & Delete, for plaintiff in error.

      J. J. Hill, H. II. Merry, contra.
   Stephens, J.

1. Where a leak, coming from the outside through a wall into the inside of a house, is caused by water entering through the weather-boarding at a place where the supports of a platform built upon the outside of the house is attached to the weather-boarding, it is a question of fact whether a person when repairing the leak can by the exercise of ordinary care discover a rotten and unsafe condition of the supports under the platform where they join the weather-boarding and rest upon a horizontal plank nailed to the house at the place where the water causing the leak enters through the weather-boarding. Zaban v. Coleman, 27 Ga. App. 376 (3) (108 S. E. 555).

2. In a suit against the landlord where the plaintiff alleges in the petition that while lawfully occupying the premises he was injured as a result of the falling in of the platform with him, due to the rotten and unsafe condition of the supports under the platform where they join with the weather-boarding, the petition, under the above ruling, alleges a negligent failure of the defendant, with notice of the condition of the inside of the house due to the leak, to discover the alleged dangerous and unsafe condition of the platform, and otherwise alleges a cause of action. The court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Jenlcms, P. J., and Bell, J., concur.


author: ¡Stephens, J.

text:
    18540.
    Roswell Motor Company v. Hackett.
   ¡Stephens, J.

1. Where, in defense to a suit on a note given by the defendant for work done by the plaintiff in repairing a tractor for the defendant, the defendant pleaded a failure of consideration, in that the plaintiff, in making the repairs, failed to put the tractor in good operating condition according to the terms of the contract, evidence that when the tractor was used for the first time after the making of the repairs it did not operate properly was sufficient to authorize the jury to find that the failure of the tractor to operate was due to the failure of the plaintiff to properly make the repairs. This is true notwithstanding a period of two or three months intervened between the date of the making of the repairs by the plaintiff and the use of the tractor by the defendant, and notwithstanding a crack had appeared in the cylinder block after the plaintiff had made the repairs. The jury could have inferred that the failure of the tractor to operate properly was caused not by the two or three months’ delay in the use of the tractor or by the defect in the cylinder block, but by the failure of the defendant to properly make the repairs according to the contract.

Decided August 31, 1928.

H. M. Broadwell, J. B. Mozley, for plaintiff.

J. P. Broolce, for defendant.

2. The verdict found for the defendant on the plea of failure of consideration was authorized.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


author: Bell, J.

text:
    18614.
    NEWMAN v. GRIFFIN FOUNDRY & MACHINE CO.

      Decided August 31, 1928.

      Henry Walker, for plaintiff.
    Willingham, Wright & Covington, for defendant.
   Bell, J.

Estelle Newman filed suit against Griffin Foundry and Machine Company to recover damages for the death of her husband, caused by the accidental discharge of a pistol with which he was armed while employed by the defendant as night watchman. The court sustained a general demurrer to the petition, and the plaintiff excepted.

The allegations made for the purpose of showing the cause of the decedent’s death and the defendant’s responsibility therefor were as follows:

“6. It was a requirement of defendant as well as a condition of entry into its service as an employee that said weapon be carried by decedent during the hours of his watch, although there was no necessity of so doing.
“7. Said husband was a young man without means other than his labor, he was likewise without employment, and the job on which he lost his life was the only work offered him, or available at that time; hence it was entered upon.
“8. The exaction of defendant was unnecessary, it did not serve any reasonable purpose in the line of duty assigned decedent by defendant, the imposition of bearing and carrying said weapon was a burden upon and a hazard to said employee, not assumed by said decedent, but exposed him to an artificial danger negligently created by defendant, the consequences of which were alone hurtful to said employee by superadding a risk he did not assume, nor was it incident to his employment.
“9. Not only was this condition capricious, hut it disclosed a wanton disregard of the duty defendant owed its said employee for his personal safety. This duty-imposed by statute impressed upon defendant a solemn obligation to protect its employee against risks he did not assume as an incident to his duties. This duty it not only neglected, but its exaction in respect to bearing said firearms as herein averred exposed him to a super-danger which resulted in the sudden and violent death of its said employee, by an accidental discharge of said weapon whilst in the prosecution of his duty between the hours of 5:30 a. m. and t o’clock in the forenoon of said fateful day.
“dLO. Whilst it was necessary as well as a legal requirement that a license be obtained from the office of the ordinary of said county, a bond given and a definite period' fixed during which said firearms might be lawfully carried as prescribed by statute, yet defendant did not provide such license, a permit to lawfully bear and carry said firearms, but required its said employee to carry said weapon in violation of said statute and his personal safety.
“11. It was a duty owing by defendant to its said employee, to obtain timely license from said ordinary, who alone had authority to grant and issue such permit to bear firearms.
“IS. Defendant not only created a super-danger, wantonly and cruelly subjecting its said employee to it, and without notice or warning fixed upon him the status of a culprit. In the absence of such license, defendant’s requirement, a condition annexed by it to said employment, was an illegal exaction. Known to defendant, but not known to its said employee, and wholly unnecessary.
“13. Said sudden and violent death resulted from bearing said deadly weapon, and not otherwise, the carrying of which enjoined by defendant upon its said employee, was involuntarily borne by the latter. It is averred said employee was not the victim of his volition, but was lured to death by the discharge of a death-dealing weapon.
“14. By its said illegal, wanton and cruel exaction as herein averred, defendant betrayed a gross disregard of and indifference to the right consideration due a human being who had not equal means or opportunity to the matters and things as alleged herein, as were possessed and enjoyed by said defendant. The disparity between them, as well as distinct and subservient environment resulting from the relative relation of master and servant.”

In the original petition and also in an amendment thereto were certain allegations made for the purpose of showing that the case did not fall within the purview of the -workmen’s compensation act.

Assuming that the compensation act was inapplicable, as contended by the plaintiff, the petition nevertheless failed to set forth a cause of action, in view of the principles stated in the headnotes. The general demurrer was properly sustained.

Judgment affirmed.

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


text:
    18648.
    BIGGERS v. BANK OF RINGGOLD.
    Decided August 31, 1928.

      McClure & McClure, T. G. Head, for. plaintiff in error.

      James H. Anderson, contra.
   Bell, J.

Bank of Einggold brought suit by attachment, on the ground of nonresidence, against W. E. Biggers, as drawer, upon two drafts aggregating $8,296.44 and drawn upon Georgia Cotton Growers Co-operative Association of Atlanta, Georgia, payable at sight to the order of Bank of Einggold. There was attached to the drafts at their execution a bill of lading covering 139 bales of cotton, in payment for which it was expected that the cotton growers association would honor the drafts, and thus reimburse the plaintiff for the amount it had advanced to the defendant thereon. The association, however, declined acceptance of the cotton and refused to pay the drafts. After some delay the cotton was sold and the proceeds, less certain items of expense, were credited upon the drafts, and the suit was to recover the alleged balance in the amount of $2,161.31.

The trial resulted in a verdict in favor of the plaintiff, and, the defendant’s motion for a new trial being refused, he excepted. Two grounds of the motion for a new trial assign error upon the overruling of a motion to dismiss the attachment. Exceptions to this ruling were also taken pendente lite, but there was in the final bill of exceptions no assignment of error either upon the exceptions pendente lite or upon the rulings therein excepted to.

The defendant traversed the ground of the attachment alleging that he was a nonresident of the State of Georgia, and upon the trial of the issue thus formed the court directed a verdict in favor of the plaintiff. This ruling is made one of the grounds of the motion for new trial.

There was an issue in the evidence as to whether plaintiff had given to the defendant notice of the dishonor of the drafts within the contemplation of the uniform negotiable instruments act of August 18, 1924 (Ga. L. 1924, p. 126, sections 89, 103, 104, 114). The court nevertheless instructed the jury to return a verdict in favor of the plaintiff for the amount sued for, except a sum representing certain items of expense which the plaintiff had deducted as above stated, and as to its authority to deduct which there was a material conflict in the testimony.

It is unnecessary to set forth the grounds of the motion to dismiss the attachment. To have raised the question of whether the court erred in overruling this motion, the ruling should have been excepted to directly. Bulings upon pleadings can not properly be made grounds of a motion for a new trial. Southern Pacific Co. v. DeCristina, 36 Ga. App. 433 (2) (137 S. E. 79), and cit. While it appears that exceptions pendente lite were taken, there is in the final bill of exceptions no assignment of error either upon the exceptions pendente lite or upon the rulings therein excepted to. House v. American Discount Co., 31 Ga. App. 396 (120 S. E. 701).

The court property directed a verdict in favor of the plaintiff and against the defendant upon the issue formed by the defendant’s traverse of the ground of the attachment alleging that the defendant was a nonresident of this State. While it was admitted by the plaintiff that the defendant had retained his legal citizenship in the State of Georgia, being a registered voter of Catoosa county and having the right to vote in that county in elections held in this State, it is conclusive, from the evidence of the defendant himself, that he was a nonresident of the State of Georgia within the meaning of the attachment laws. He testified that while he owned a farm and other property in Catoosa county, he had no dwelling place in that county; that for several years he had been in business in the City of Chattanooga, Tennessee, and had owned and occupied a residence there at the same location for at least three and one half years. He removed from Einggold, Georgia, first to Union Avenue in Chattanooga, where he lived for about six months. He later removed to 1411 Bailey Avenue in the latter city, where he was still living at the date of the trial. His name was listed in the Chattanooga telephone directory as having both a residence and a business telephone. His daughter attended the public schools of that city. The defendant further testified that he intended to keep his citizenship in Georgia, but there is nothing to indicate that he expects ever to return to this State to live. Physically he seems to be permanently located in Chattanooga, Under the facts as thus disclosed, the defendant was a nonresident of the State of Georgia for the purposes of attachment.

As to ordinary suits, section 5563 of the Civil Code of 1910 provides that leaving a copy at the defendant’s residence shall be sufficient service. The defendant here could not have been so served. In a case of this sort the question is not one of domicile merely, but is one of actual residence. Eesidence has been defined to be an act, and where a person voluntarily removes from this State for the purpose of living and carrying on business elsewhere for an unlimited period, he is, for the purposes of attachment, a nonresident of Georgia, nothwithstanding he may occasionally visit this State and may intend to return at some indefinite time in the future.

The facts as disclosed by the record demanded a finding that the defendant was a nonresident of the State of Georgia, and there was no error in directing the jury to return a verdict accordingly. Stickney v. Chapman, 115 Ga. 759 (42 S. E. 68). Tliis case is distinguishable from the case of Flemister Grocery Co. v. Wright Mercantile & Lumber Co., 10 Ga. App. 702 (73 S. E. 1077).

The defendant contends that the court erred in not submitting the case to the jury upon the question of whether he was discharged by the failure of the bank to notify him, within the terms of the negotiable instruments law, of the dishonor of the drafts by the drawee, the cotton growers association. There was testimony for the bank showing that notice was given in strict accordance with the statute. This, however, was denied in the testimony of the defendant, so that in the absence of a waiver of notice by him, there was an issue for the jury as to the fact of notice.

It is clear that the parties did not contemplate that the bank was buying the cotton. The defendant thought he was selling it to the cotton growers association and drew upon the association for the purchase price, attaching bill of lading for the shipment. The association declined the shipment and refused payment of the drafts. This was about the middle of February, 1926. After some negotiation and controversy the defendant wrote and delivered to the plaintiff the following letter:

“Ringgold, Ga., June 1, 1926.
“Bank of Ringgold, Ringgold, Ga.
“Gentlemen: You are hereby authorized to sell the 139 bales of cotton stored in Atlanta, Ga., at 10-1/8 cents per pound f. o. b. loaded on cars Atlanta, Ga., for my account and credit drafts due said bank. [Signed] W. E. Biggers.”

The cotton was sold by the bank in accordance with this authority, and the proceeds, less certain items of expense, were credited upon the drafts.

The'defendant testified: “I arranged the sale’of this cotton myself; that is, I had an offer from James and Milner. I had a very good offer, it was in the summer time and a large crop was planted, and the crop looked good, and it looked like it was going-lower, and I knew the uncertainty of lawsuits, and I thought the best thing to do was to get out from under that cotton, and I wrote Mr. Merritt [cashier of the bank] and told him about this offer on the cotton and to sell the cotton. That is the letter introduced in evidence. The cotton was sold to my customer and the money applied to the drafts, or a part of it. I think they applied a part of it on lawyers’ fees and interest. . . I don’t know that it is true that there was considerable eifort made to sell that cotton by me and Mr. Merritt too, and that both of us were trying to find a buyer for it. I don’t know what Mr. Merritt was doing, I don’t remember having talked to him along that line, about getting the best price we could for it. He said something to me once about selling it and I told him to secure the best price he could get and I would let him know whether I was willing for him to sell it or not. I was not trying very hard all the time to get a buyer I could get. I did sell the cotton; that is, I found the buyer. It is true I would not let Merritt sell it except on my approval. I didn’t give him written authority to sell the property regardless of price, and I says, Get the price and then I will give you the authority if the price is suitable.’ ”

The negotiable instruments act (Ga. L. 1924, p. 148, sec. 109) provides that “notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.” Assuming, without deciding, that the transaction in question was one in which notice of dishonor was necessary under the provisions of the statute, we think the evidence established conclusively and as a matter of law an implied waiver of such notice on the part of the defendant. The bank plainly did not purchase the cotton, and only held the bill of lading therefor as security for the ultimate payment of the drafts. To whom did the cotton equitably belong on its rejection and the dishonor of the drafts by the cotton growers association? There is nothing to show that the association could ever have been held upon the drafts, even if it might have been liable upon some contract to purchase the cotton. During the course of the delay, if the cotton had so advanced in price that the proceeds from a sale would have been more than sufficient to pay the drafts, would the defendant have claimed the excess, or would the bank have been entitled thereto as a profit upon a deal in cotton? If the defendant was discharged from liability upon the drafts because of the bank’s failure to give him notice of dishonor, why did he then contend about the cotton at all? His assertion of the right to control the sale of the property held by the bank as security for the drafts was inconsistent with his claim of nonliability. In the writing which he signed as set out above he authorized the bank to sell the cotton for Ms account and to credit drafts due the bank. This was an instruction to sell for his benefit, and unless he was the bank’s debtor he had no interest to be served. The writing recognizes that some one is indebted to the bank upon the drafts. No other person than the defendant could have been so indebted.

The defendant made to the bank a proposition which contained an implied admission of liability, and the proposition was accepted and acted upon. Had it occurred to the bank that the defendant would later contest his liability, the bank might have declined to sell the cotton upon the terms limited and specified by the defendant, preferring to hold it as its own in the hope of finally selling for a price that would save the bank from loss. The evidence established as a matter of law a waiver of notice of dishonor. There is no suggestion that the proposition made and accepted as above indicated was advanced by way of compromise, and all the evidence relating thereto was admitted without objection.

It follows from what has been said that the instructions eliminating want of notice of dishonor as a defense were not erroneous. Citizens National Bank v. Jennings, 33 Ga. App. 659 (127 S. E. 657); Hongkong &c. Banking Corp. v. Lazard-Godchaux Co., 207 App. Div. 174 (201 N. Y. S. 771); Belch v. Roberts, 191 Mo. App. 243 (177 S. W. 1062); Richardson v. Kulp, 81 N. J. L. 123 (78 Atl. 1062); Stewart v. Soenksen, 173 Ill. App. 1; Louisa First Nat. Bank v. Anderson, 125 Va. 103 (99 S. E. 561); Creteau v. Foote &c. Glass Co., 40 App. Div. 215 (57 N. Y. S. 1103); Weil v. Corn Exch. Bank, 135 App. Div. 915 (119 N. Y. S. 1149), affirmed 63 Misc. 300 (116 N. Y. S. 665); Fashion Hat Frame Co. v. Ringel, 81 Cal. App. 556 (254 Pac. 375); County Sav. Bank v. Jacobson, 202 Ia. 1263 (211 N. W. 864); Morgan v. Huffman, 76 Mont. 396 (247 Pac. 326).

Judgment affirmed.

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


text:
    18661.
    TUFF v. LOH.

      Decided August 31, 1928.

      E. F. Goodrum, for plaintiff in error. John J. McCreary, contra.
   Bell, J.

In the bill of exceptions in this case error is assigned upon a judgment of the superior court of Bibb county refusing to sanction a petition for certiorari to review a judgment of the municipal court of Macon sustaining a general demurrer to an affidavit of illegality.

The defendant (here the plaintiff in error) in his affidavit of illegality made the following allegations: The defendant was sued to the January term, 1925, of the municipal court of Macon upon a debt dischargeable in bankruptcy. During the pendency of this suit he was, on January 7, 1935, adjudicated a bankrupt. On January 17, 1935, he filed a plea of bankruptcy, as a result of which the action was stayed pending his application for a discharge. Such discharge was granted to him on October 8, 1935, “with notice to the plaintiff.” On July 6, 1937, the attorney for the plaintiff “represented to the presiding judge that defendant had not received a discharge in bankruptcy when, in truth dischargé had been granted defendant; and acting on said information and without any notice to defendant of said motion or information to the court, the presiding judge entered judgment for plaintiff and against defendant, as reference to the records will show. No notice of plaintiff's intention to seek a judgment was had by defendant, and it was not until after the judgment was entered and execution issued, and garnishment was served on defendant's employer, that defendant had any notice whatsoever of said execution and conduct of the plaintiff. . . Defendant further shows that he never waived notice in said case, that he never received notice of said motion of plaintiff’s which resulted in judgment against him on July 6, 1937, and that he has not had his day in court, and that the debt forming the basis of said execution was discharged in bankruptcy, as reference to the records will disclose.” For these reasons it was claimed by the defendant that the judgment of the municipal court was void, and that the execution issued there.on was proceeding illegally against the defendant's property and should be quashed.

Under the principles enunciated in the headnotes there was no merit in the affidavit of illegality and the municipal court properly struck the same on general demurrer. It follows that the judge of the superior court did not err in refusing to sanction the petition for certiorari.

It is, of course, to be understood that in making this decision we are passing merely upon the sufficiency of a pleading and that nothing said herein should be taken as an intimation by this court that the plaintiff’s attorney was-in fact guilty of any improper conduct.

Judgment affirmed.

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


text:
    18660.
    Tuff v. Continental Trust Co.
    Decided August 31, 1928.
   Bell, J.

This ease is controlled by the companion case of Tuff v. Loll, ante, 526. Judgment affirmed. Jenlcms, P. J., and Stephens, J., concur.


text:
    18671.
    NEWBERRY v. CITY OF MACON.
    Decided August 31, 1928.

      J. B. Hughes, for plaintiff.

      B. W. Maynard, Arthur Lewis, for defendant.
   Bell, J.

Mrs. W. M. Newberry brought suit against the City of Macon for the homicide of her husband, alleged to have been caused by the defendant’s negligence in the maintenance of a hole sixteen inches deep, about three feet wide, and several feet long, in Carling Avenue, one of the defendant’s streets, and near the intersection of that street with Rembert Avenue. The transaction is the identical one considered by this court on demurrer in City of Macon v. Newberry, 35 Ga. App. 252 (132 S. E. 917), where it was held that the petition failed to set forth a cause of action and should have been dismissed on general demurrer. It is apparent that the action was subsequently withdrawn and then renewed. The allegations in the second petition vary but slightly from those in the original suit.

In the complaint as last filed it was alleged that the plaintiff’s husband was traveling out Rembert Avenue in a one-horse wagon on his way home, and, in turning to the right into Carling Avenue around the hole and at a safe distance therefrom he would have passed by if the horse “had not shied and suddenly turned to his right, — suddenly running the right front wheel of his wagon into said hole, throwing your petitioner’s husband . . out of the wagon,” and causing him the injuries from which he died. The “said hole was dangerous, there [were] no barriers to protect your petitioner’s husband from the said dangerous hole, the city was negligent in allowing said hole to remain in said street, the city knew said hole was in said streets and had actual notice of the existence in said streets of said hole, said hole was in said streets from 40'to 60 days before said injuries were sustained.” The petition alleged that the plaintiff’s husband was not negligent and was exercising due care, and it showed nothing as to his own knowledge of the defect.

After the introduction of evidence by the plaintiff, the court awarded a nonsuit, and the plaintiff excepted.

The evidence established the existence of the hole, about as alleged in the petition. The only witness to the accident who was introduced was C. A. Williams, who testified: “I live at 201 Carling Avenue. I remember the accident Mr. Newberry had out there on the streets. I saw it. I was sitting on my porch suing looking at it. He was coming out Bembert Avenue and turned down Carling Avenue. I couldn’t tell exactly what rate of speed, just a little slow jog of a trot, his horse was going. He was going a little faster than a man can walk, something like that. When he got to the intersection of Bembert and Carling Avenue, the wheels ran into a little gulley there, the front wheel in a little gulley, and he had a spring seat on the wagon, and it sorter throwed him forward, hind one dropped in, and the next I seen was his heels up and he fell out forwards. . . Mr. Newberry was pulling the left-hand rein that guided the horse around the hole, and seemed like the horse swayed back the least bit to the right. The horse did not do it suddenly;.just as he slowed it seemed like he swayed back a little; when the horse swayed back was when the wheel dropped into the hole. I suppose if the horse had gone like Mr. Newberry was driving him it would have dropped in before, because the hole reached away out. After the horse turned, he turned at the corner like this, and after he turned the wheel dropped in, because it was on the lower corner; he had to turn the corner before the wheel dropped in. . . When I first saw Mr. Newberry coming down the street the horse was in a slow trot, there was no change in the horse’s speed as I could tell. The horse did not get frightened at anything that I saw. The horse did not shy, he seemed to sway when he slackened his line. As he slackened his line to make a turn around, the horse swayed back toward the middle of the road. He was pulling him to the left but he swayed to the right. Mr. Newberry did not appear to try to check the horse before he got to the place, the horse was going at a little slow jog of a trot. I have seen plenty of horses walk faster than he was going at that time. As far as I know the horse was gentle. I have seen Mr. Newberry driving the horse time and again. Mr. Newberry went up Dannenberg to get to where he lived, and in order to get from Dannenberg Avenue where he lived and go out toward town, he had to come up Carling Avenue and turn into Eembert where this hole was, that is always the way he came. I have seen him driving by that place time and again. The hole had been ,there for two or three months, and I have seen Mr. Newberry drive by there frequently. I saw Mr. Newberry drive by there that day, and there were two men on the seat with him. I could not tell any difference in that horse going around a curve than any other horse going around a curve. It was a perfectly natural movement on the part of the horse.”

It is apparent from the evidence that the plaintiff’s husband knew of the defect in the street and observed it at the particular time, but that he either carelessly waited too late to guide his horse around it or else was negligent in not guiding him properly. The petition alleged that the horse shied, implying a sudden start, as from fright. The evidence, however, showed only a swaying, as a leaning or inclining to one side rather than the other. The hole was not the cause of any action on the part of the horse, either shying or swaying. If the decedent did not control the horse, his failure to do so was not the result of the defendant’s negligence. The horse was subject to control, and the decedent could easily have driven him in such manner as to have avoided the injury.

According to the evidence the horse “seemed to sway when he [the decedent] slackened his line,” or “when the wheel dropped into the hole.” Since it appears from the evidence that the horse was entirely subject to the will of the plaintiff, and the other facts are not materially different from those alleged in the first petition, the question of error in the granting of the nonsuit is controlled adversely to the plaintiff in error by the law of the case as laid down by this court in the former hearing. The ruling then made was as follows: “In a suit against a municipal corporation for damages for the homicide of the plaintiff’s husband, where the original petition, properly construed (most strongly against the plaintiff), shows that the deceased, while in the full possession of all his faculties and in the daytime, was driving a horse hitched to a wagon upon a street of the city, and drove into a hole sixteen inches deep, three feet wide and ten feet long, causing him to be thrown from the wagon and fatally injured, the petition sets out no cause of action, as it is apparent that he saw or should have seen such an obvious danger, and that he failed to exercise ordinary care for his protection.” 35 Ga. App. 252. Compare Cook v. Atlanta 94 Ga. 613 (19 S. E. 987); City of Macon v. Jones, 36 Ga. App. 799 (138 S. E. 283); Rome Railway & Light Co. v. McCartha, 36 Ga. App. 805 (138 S. E. 359); Central of Georgia Ry. Co. v. Heard, 36 Ga. 332 (136 S. E. 533); City of Rome v. Phillips, 37 Ga. App. 299 (2) (139 S. E. 828).

Judgment affirmed.

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


text:
    18677.
    Ross & Williams v. Southern Exchange Bank of Dublin.
    Decided August 31, 1928.
   Bell, J.

1. An agreement between the superintendent of banks and the maker of a promissory note, to the effect that the superintendent will not enforce the stipulation in the note with reference to the payment of attorney’s fees, is not binding where the agreement is entirely executory and is not supported by a valuable consideration and where no element of estoppel enters. Rylee v. Statham, 7 Ga. App. 489 (6) (67 S. E. 383; Southern Mfg. Co. v. Moss Mfg. Co., 13 Ga. App. 847 (3) (81 S. E. 263); Civil Code (1910), §§ 4241, 4326, 4329; 29 Am. & Eng. Ency. L. (2d ed.) 1097. This is not to decide whether the superintendent might effectively waive the collection of such fees under other circumstances.

2. The alleged agreement of the superintendent to waive the payment of such fees, as disclosed in the proffered amendments to the defendants’ answer, appearing to be a nudum pactum, the court did not err in disallowing the amendments.

Judgment affirmed.

Jenlcms, P. J., and Stephens, J., concur.

G. G. Groclceti, for plaintiffs in error. Ilightoiver & New, contra.


text:
    18176.
    18177.
    Logan v. Tennessee Chemical Company. Tennessee Chemical Company v. Logan.
    Decided September 1, 1928.

      W. P. Wallis, Hollis Fori, for plaintiff in error.

      Bennet & Peacock, W. W. Dykes, contra.
   Jenkins, P. J.

In accordance with the answer returned by the Supreme Court to the one controlling question involved in these cases, as certified to it by this court (166 Ga. 680, 144 S. E. 269), the trial court erred in refusing to grant the motion for a new trial made by the plaintiff in the court below. The grant of a new trial to the plaintiff, under its motion, in accordance with the rulings of the Supreme Court, being controlling, the writ of error sued out by the defendant in the court below is dismissed.

Judgment reversed in No. 18177. Write of error dismissed in No. 18176.

Stephens and Bell, JJ., concur.


text:
    18372, 18373.
    FIDELITY & DEPOSIT COMPANY OF MARYLAND v. NORWOOD, ordinary, for use, et al.; and vice versa.

      Decided September 1, 1928.

      Underwood, Haas & Gambrell, Jay & Garden, for plaintiff in error.

      J. B. Wall, A. J. McDonald, contra.
   Bell, J.

J. I. Norwood, as ordinary, brought suit against W. D. Branch as principal and Fidelity and Deposit Company of Maryland as surety upon a guardian’s bond. The suit ivas defended only by the surety company, and the term defendant as used herein will refer to that party; and although there is a controversy.as to the -time when the guardianship began, we may for convenience refer to Branch as guardian, irrespective of the legal contention between the parties upon that point. After the petition and the answer- were both amended and after the court had overruled the defendant’s general and special demurrers to the petition and sustained a demurrer of the plaintiff to a part of the defendant’s answer, the case was referred to the Honorable Hal Lawson as auditor, and he made findings of fact and findings of law, and concluded that the plaintiff should recover. To this report no exceptions were filed by the plaintiff. Numerous exceptions to it, however, were filed by the defendant. The plaintiff moved to strike all of these exceptions, upon the ground that each of them failed to set forth the material evidence or to point it out in the brief of evidence. The case as thus made was submitted to the court, without a jury, for the further necessary proceedings and for final determination. The presiding judge overruled the plaintiff’s motion to strike the defendant’s exceptions and, after sustaining some of the exceptions and overruling others, rendered final judgment in favor of the plaintiff; and to this judgment the defendant excepted.

The plaintiff also sued out a bill of exceptions, in which, besides excepting to certain antecedent rulings, he assigned error upon the final judgment because the court refused a part of the claim as to interest.

In our view of the case the rulings made in the opinion below are controlling, making it unnecessary to deal specifically and in detail with all of the many exceptions and assignments. In the state of the record there is no question in this court as to the existence of any basic fact as found by the auditor, though some of his inferences or conclusions, especially his conclusions of law, are drawn in question. Therefore, this court is not required to determine whether any finding of fact was or was not authorized by the evidence, but the facts as they are presented by the auditor’s report are to be treated as undisputed.

Two bonds of different dates are involved in the controversy, but the suit as amended appears to be predicated mainly, if not solely, upon the second bond, although the validity and effect of the first bond are matters for collateral consideration; and one of the questions to be determined is whether the guardianship dated from the execution of the first bond or only from the making of the second bond.

The petition filed on March 34, 1935, made the following case: On February 3, 1919, W. D. Branch was, upon his petition filed in the court of ordinary of Berrien county, duly appointed guardian of the person and property of Bobert Bussell Branch and Felix W. Branch, minor children of the applicant and his deceased wife. Thereafter on the same date the applicant executed and delivered a bond as such guardian in the sum of $13,000, with Fidelity and Deposit Company of Maryland as surety thereon. This bond, as appears from a copy annexed as an exhibit to the petition, required that the principal should “well and truly perform and discharge the duties of guardian,” and purported to have been signed by the principal and by Fidelity and Deposit Company of Maryland by J. D. Lovett, attorney in fact.

On February 3, 1930, the said W. D. Branch as principal and the said Fidelity and Deposit Company of Maryland as surety made and delivered a bond cumulative to the first, bond, the second bond being in the sum of $15,000 and conditioned as follows: that the principal should “taire good and lawful care of their [his wards’] person and property, according to the laws of this State, and shall annually make a just and true return of all his actings and doings herein unto the said ordinary and pay over all assets that may remain in his hands when said guardianship shall legally terminate.” This second bond was signed by the principal and by Fidelity and Deposit Company of Maryland by Fair Dodd, agent, and by Aaron Haas, Son & Howell, general agents. The reason for the making of the second bond was that the principal and the surety and the said J. I. Norwood, ordinary, reached the conclusion that the first bond was improperly executed, they being in doubt as to the authority of J. D. Lovett to execute said bond on the part of the surety company, and, without any citation on the part of the ordinary, the principal and surety gave said second bond “in order to cure any possible defect existing in said first bond.” The surety company “received the premium for said first bond, and if said agent did not have the authority to execute said first bond, said company ratified his act in receiving the premium from said William D. Branch, as guardian as aforesaid. . . Petitioner shows that under the facts in this paragraph alleged said second bond was cumulative to said first bond and said Branch and said surety company thereby become liable by virtue of said second bond for past as well as future handling of said wards’ property by virtue of said bond.” Branch as guardian as aforesaid “came into possession of the following amounts and sums, to wit: April 1, 1919, $6000; December 3, 1919, $3094.94; March 26, 1920, $600,” the same belonging in equal parts to Felix W. Branch and Robert Russell Branch. Robert Russell Branch reached his majority in October, 1924. Thereafter he demanded of W. D. Branch as guardian aforesaid the amount due him by the said Branch as such guardian. The petition prayed for an accounting and for the recovery of the aggregate amount of $9994.94, together with interest.

The plaintiff by amendment made the following further allegations: Before bringing this suit W. D. Branch, the guardian, had spent for his own benefit “all of said sums received for said words,” none having been spent for purposes authorized by law. Petitioner does not know when the funds were spent except that they were spent before suit and before demand. At the time of the demand and of the bringing of the suit Branch was insolvent.

The last amendment alleges: At the making and delivery of the second bond by Branch as guardian and Fidelity and Deposit Company of Maryland as surety, Branch as guardian “should have had the funds that had been paid to him belonging to said wards, and said wards do not know whether he actually had the cash at that time or not, but if he did not he was solvent and said amount could have been made by judgment and execution against the said guardian, W. D. Branch, he being worth, at that time, more than the amount that he had collected, and that if he had already at said time spent said money, it was the duty of the said guardian to have collected said money from the said W. D. Branch, and the failure so to do was a breach of said bond.”

As above stated, tire defendant demurred generally and specially to the petition as amended, and, while the court overruled all grounds of the demurrer, both general and special, and exceptions have been duly taken to this ruling, it is not necessary, in our view of the case, to set forth the grounds of the special demurrer.

The defendant in its answer denied the authority of J. D. Lovett to execute the first bond, and also denied that it had received any premium on such bond or had in any way ratified the act of Lovett in purporting to make and deliver the same in its behalf. The answer further alleged, that, the first bond being void and of no effect, the second bond, the execution of which was admitted, could not be construed' as cumulative of the first bond, and hence the defendant can be held liable only for such defaults on the part of the principal as occurred subsequently to February 2, 1920, the date of the second bond. The defendant denied that any delinquencies or defaults had been committed by the principal since the execution of the second bond, and hence contended that no breach of this bond had been committed either by Branch as principal or the defendant as surety. The court, in ruling upon the plaintiff’s demurrer to the defendant’s answer struck that part of the answer in which it was alleged that the defendant could only be held liable for defaults occurring subsequently to the execution of the second bond. The answer also contained general denials sufficient to put the plaintiff upon proof, and set up by amendment other facts which are now immaterial.

From the auditor’s report and the further proceedings relative thereto the following facts are to be taken as true: W. D. Branch was the natural guardian of the minors above named, and, as such, was entitled to demand and receive any property belonging to them, upon his taking oath and giving bond as required by law. On February 3, 1919, he appeared before the ordinary and took the oath and filed what is described and set forth in the petition as the first bond. J. D. Lovett, who signed this bond in behalf of the bonding company, had no authority to act for the company in such matter, and the company had no actual knowledge of his having done so. The company did not receive any part of the premium paid for the first bond and did not otherwise ratify the act of Lovett in signing it. The second bond was duly executed by the company on February 2, 1920, and on that date, Branch, the guardian, was solvent. The minors inherited from the estate of their grandfather S. B. Dorminey certain funds which the administrator of that estate paid over to their father, W. D, Branch, as follows: March 5, 1919, $1,853.91; April 1, 1919, $4,146.09; December 5, 1919, $94.94; December 5, 1919, $3,000; and on March 26, 1920, $600, making a total of $9,694.94. It is to be noted from these dates that each item except the last was paid over and received after the making of the first bond on February 3, 1919, but before the execution of the second bond on February 2, 1920. The first item was not actually received, but the facts connected therewith as found by the auditor were as follows: “W. D. Branch bought in certain lands from the estate that his two wards were interested in. He agreed to pay $1,420 for this land, and instead of paying the actual money he gave to the estate his receipt for the $1,420 as guardian for his children, and the $433.91 was paid as follows: The said estate held against W. D. Branch an individual note payable by him alone to the amount of $433.91; this note was surrendered [to] W. D. Branch and he gave his receipt for the $433.91 as received by him as guardian.” In each of the transactions representing the payment and receipt of money as hereinbefore referred to Branch intended to act and be dealt with in the capacity of guardian, and the other party, the administrator of the Dorminey estate, acted and dealt with him accordingly. Before the giving of the second bond on February 2, 1920, Branch had appropriated to his own use the whole amount of money and assets that had come into his hands up to that time as above indicated, total $9,094.94, with the exception of certain small items duly accounted for. The defendant’s liability for the $600 received by Branch as guardian after February 2, 1920, is not disputed.

As appears in the brief of evidence made and filed by the auditor, letters of guardianship were issued by the ordinary to Branch on February 3, 1919, the date of the first bond, just as though the bond had met all the legal requirements.

The petition was not subject to demurrer upon the ground that the right to sue was-not in the ordinary. Each of the bonds was payable to him in his official capacity as such, and it was his right in like capacity to bring suit upon any cause of action arising under either instrument. Civil Code (1910), § 5516; Bailey v. McAlpin, 122 Ga. 616 (50 S. E. 388). This is not to hold that such a suit might not be instituted by a ward in his own name after arriving at his majority. In that case the suit could be brought either in the name of the ordinary as obligee or in the name of the ward. Civil Code (1910), § 13; Wynn v. Maddox, 33 Ga, App. 87 (125 S. E. 516); Harrell v. Emanuel, 27 Ga. App. 546 (109 S. E. 294); Boyd y. Crews, 32 Ga. App. 138 (2) (122 S. E. 802); Sheppard v. Clark, 35 Ga. App. 503 (134 S. E. 125). The petition, fairly construed, especially in view of the last amendment, includes a complaint upon the second bond, and, under principles to be stated in the third division of this opinion, was sufficient to set forth a cause of action thereon; and the same would be true even though it had affirmatively appeared from the petition (as it did later from the evidence) that the defendant was not bound upon the first bond. However, since it is averred in the complaint that the defendant, if not originally bound by the act of Lovett in executing the first bond in its behalf, nevertheless fully ratified the same, the defendant, if the allegations were true, was bound upon each bond, and on that hypothesis the second bond appeared to be cumulative. In such a case the surety on the second bond would be liable for past as well as future defaults. Civil Code (1910), §§ 3049, 3050; Remington v. Hopson, 137 Ga. 95 (72 S. E. 918). Whether the petition be construed as declaring upon either bond to the exclusion of the other, or upon both bonds together, a cause of action was set forth, and the general demurrer was properly overruled.

In our view of the case we have deemed it unnecessary to set forth the several grounds of the special demurrer to the petition. These have been carefully examined, however, and while as an original proposition we are inclined to think that some of them should have been sustained, yet, upon a consideration of the entire record, we are satisfied that the' defendant was not harmed by the court’s judgment thereon. All facts material to the defendant’s defense were fully developed, and it is clearly apparent that the defendant was not misled nor put to any disadvantage by such ruling.

“Where it afterwards appears from the evidence adduced upon the trial that the ruling made by the court upon a demurrer was harmless to the party objecting thereto, the judgment of the court on the demurrer will be affirmed.” Bell v. Tucker, 37 Ga. App. 254 (3) (139 S. E. 573); Riverside Academy v. Urigh, 33 Ga. App. 455 (126 S. E. 900); Tennessee Chemical Co. v. George, 34 Ga. App. 824 (3) (131 S. E. 918); Minler v. Malsby Machinery Co., 17 Ga. App. 443 (87 S. E. 607).

The same is also true of the judgment sustaining the plaintiff’s demurrer to a part of the defendant’s answer. In that ruling the court struck the defendant’s allegations to the effect that it could only be held liable for defaults on the part of its principal occurring subsequently to February 2, 1920, the date of the second bond, and could not be held liable for any defaults prior to that date. While, as we shall explain below, we agree with the contention as thus set forth in the answer, it appears that this theory of defense was ultimately sustained by the trial court, and that the defendant was held liable only for breaches occurring subsequently to the execution of the second bond. Thus, the judgment will not be reversed because the court may have erred in sustaining a part of the plaintiff’s demurrer to the defendant’s answer.

It appearing without dispute that the name of the defendant was signed to the first bond without its authority, and that it did not receive the premium thereon nor otherwise ratify the execution of the same by Mr. Lovett, the defendant was not liable on that bond. The question then arises whether the appointment of Branch as guardian on February 3, 1919, should be considered as void and of no effect, or merely irregular, because such bond, given in pursuance of such appointment and on the same date, was without security. In other words, did the guardianship begin on this date or was its beginning postponed until the execution and approval of the second bond on February 2, 1920! The answer to this question is important in determining one or more other questions which are presented for decision. As will be seen presently, it is our opinion that the defendant surety was properly held liable as to the amount of principal awarded against it in the judgment. The date from which interest should be calculated will depend upon the time of the commencement of the guardianship. Also, upon the hypothesis that the appointment of Branch as guardian was wholly ineffective or at least in abeyance until the giving of the second bond, the defendant contends that as a consequence assets and monies which may have come into his possession from the administrator of the Dorminey estate prior to that time could not have been treated as property of his wards, but that the payment of the same to him was a mere waste or dissipation of the Dorminey estatq by the administrator thereof. Assuming that if such premise be true, the legal conclusion stated would necessarily follow, we think that for the purposes of this case the guardianship should be held to have begun on the first of the two dates mentioned.

On the question of whether the appointment of a guardian should be held a nullity under similar circumstances there appears to be a diversity of opinion among the various courts, although no cáse involving facts identical w^h those of the present case has been brought to our attention. See, in this connection, Perkins v. Dyer, 6 Ga. 401; Echols v. Barrett, 6 Ga. 443; Howard v. Worrill, 42 Ga. 397; Southwestern R. Co. v. Chapman, 46 Ga. 538; Cuyler v. Wayne, 64 Ga. 79 (3); McCrary v. Clements, 95 Ga. 778 (22 S. E. 675); Hatch v. Ferguson, 68 Fed. 43 (33 L. R. A. 759, and note).

Speaking of the “first bond,” we can not say that it was no bond at all. Certainly Branch himself was liable thereon, and the paper was a bond even though without security. 9 C. J. 10. It is true that the statute was not satisfied merely by the giving of a bond, but required “bond and surety.” Civil Code (1910), § 3032. Yet the appointment itself -was regular and Branch took oath and gave bond; also, letters of guardianship were issued to him. The defect was merely in his failure to give security. So the case before us is not one in which the guardian has failed to 'give bond and also to give security, but is a case in which he gave bond though failing to give security. Furthermore, the name of the defendant was signed to the bond as surety by one purporting to act as its agent, and the unauthorized act of such agent could have been ratified. The appointment is not to be declared void merely for the want of some act on the part of the defendant ratifying the attempted execution of the bond in its behalf, when at all times subsequently the same could have been ratified in numerous ways.

We therefore hold that the appointment of Branch as guardian, while irregular and defective, was not fatally defective or void, and that his guardianship dated from February 3, 1919'. Funds which he received and receipted for as shown in the statement of facts were impressed with the character of trust funds and were to be dealt with by him and to be considered in law as the property of his minor children of whom he was guardian; especially so at the election of the ordinary, to whom the guardian was accountable. Also, such should be the time of the commencement of the guardianship for the purpose of determining the date from which interest is to be charged. Whether, if suit had been brought, not upon any bond of such guardian, but against the administrator of the Dorminey estate, by one properly representing the minors, such administrator could have been held liable, under the facts appearing, for paying over to Branch the funds belonging to such minors is a question with which we are not at present concerned.

It is perhaps fair to state that while Mr. Lovett had no authority to execute a guardian’s bond in behalf of the defendant surety company, he was the agent of the company to write various classes of bonds and appears to have acted in good faith in undertaking to execute the bond as he did in this case, although his authority was in writing and the effect of the same could very easily 'have been ascertained by him.

Since the defendant was never a party to the first bond, its liability, if existing, arose only upon the second bond; and, this bond not being cumulative, the doctrine of cumulative suretyship is inapplicable; and since there is no express or implied stipulation as to past waste or misconduct on the part of the guardian (Civil Code of 1910, §§ 3049, 3052), the defendant’s obligation as surety can be held applicable only as to a devastavit or breach of duty committed by the guardian after the execution of the second bond. Lamar v. Walton, 99 Ga. 356 (3) (27 S. E. 715); Huson v. Green, 88 Ga. 722 (16 S. E. 255); Justices of the Inferior Court v. Woods, 1 Ga. 84; Bryant v. Beall, 1 Ga. 355. But Branch, at the time of the execution of this bond, being personally liable to the estate of his wards for money and assets belonging to the estate, which he had previously converted to his own use, and being solvent at that time, committed a breach of the bond by failing to collect from himself the amount of his indebtedness thus existing.

In 28 C. J. 1290, it is said: “The sureties in a guardian’s bond are liable for a debt which the guardian owed the ward at the time of his appointment, provided that the guardian was then solvent.” This statement appears to be well supported by the cases cited, all of which we have carefully examined: Pfeiffer v. Knapp, 17 Fla. 144; Johnson v. Hicks, 97 Ky. 116 (30 S. W. 3, 16 Ky. L. R. 827); Black v. Kaiser, 91 Ky. 422 (4) (16 S. W. 89, 13 Ky. L. R. 11); Mattoon v. Cowing, 13 Gray (Mass.), 387; Sargent v. Wallis, 67 Tex. 483 (3 S. W. 721); O’Neall v. Herbert, 1 McMull. (S. C. Eq.) 495; Clement v. Hughes, 13 Ky. L. R. 352 (16 S. W. 358, 17 S. W. 285).

In Ætna Indemnity. Co. v. State, for use of Gallaspy, 101 Miss. 703 (57 So. 980, 39 L. R. A. (N. S.) 961), the Supreme Court of Mississippi held as follows: “Sureties on the bond of a guardian, executed after he has converted property of his ward to his own use, are liable for the defalcation if, after' the bond is executed, he continues solvent, so that he could have restored the funds to the trust, which he failed to do.” In that ’case the facts were that Gallaspy was appointed guardian of his three minor children, June 27, 1899. At that time there was very little property to be taken into his custody, and the court required a bond of only $500 to be executed for each child. The sureties were the same upon each of these bonds. Subsequently the guardian received for each of his wards a much larger sum and after the lapse of an additional period of some eighteen months the court, on the application of the sureties on the first bonds, made an order that these sureties be relieved from further liability and that a new bond be executed, which was accordingly done on May 13, 1907. This new bond was in the sum of $6000 and was given for the protection of all three of the children. In a suit upon the latter bond it appeared that the whole amount of money which the guardian had received under the first bond had been deposited in a bank to his individual credit, and was checked out to pay his personal debts, and that this was done before the execution of the second bond. As was said by the court: “In other words, Gallaspy took this whole sum and treated it as his own, and converted it to his own use, and disposed of it prior to the giving of the second bond, and that he had not only done this, but that he had overdrawn some $4000. While the record unquestionably shows that while acting under the first bonds he had converted to his own use the money belonging to his wards, it also appears that on May 13, 1907, when this bond was executed, Gallaspy was still solvent and worth several thousand dollars more than was due his wards.” Continuing, the court in its opinion said: “When this second bond was given, although the actual conversion of these wards’ property had taken place under the first bond, the guardian was solvent and fully able to pay the amount then due the wards. The amount was lost to them because the guardian failed and. neglected to pay over the amount to them as ire should have done, and it was because'of this neglect that they Jost their money. It is true that in this case it was a debt owing by the guardian to the wards, and not the debt of a third party. It is also true that the neglect of the guardian was the failure to pay over for the wards, while he was solvent, and from himself, a sum of money which he had converted, and which belonged to them. But this fact can not affect the legal principle. The duty imposed by law for him to protect his wards from loss by neglect to exercise reasonable diligence to collect debts owing to them rested more heavily upon him when he was their debtor by his own wrongful act than it would if he had merely failed to collect a debt from some third party. Under these circumstances the law would hold his bondsmen liable under a state of facts that might exculpate them under other circumstances. A rule of law that would exculpate a guardian for failing to collect from himself when he had wrongfully converted the funds of his ward, merely because the debt was owing by him, and he as an individual would have to make the payment to himself as guardian, would be a perversion of the right, and we apprehend that no court will ever so hold. Of course, it must appear in every case that the guardian was solvent and could have been made responsible during the currency of the second bond. In short, it must be shown that the wards have actually suffered loss by reason of the neglect. If it were shown that the guardian was insolvent, and that at no time during the life of the second bond could the amount have been collected, the second bond would not be liable for the neglect, because no damage was done by it.” A number of decisions are cited, and it is observed that “The law announced by the above cases is the universal law, so far as we have been able to ascertain it.”

The effect of the decision in the' Gallaspy case was not to hold the defendant liable on the second bond for prior or past defaults; but the theory of that and like cases is that the guardian, being-solvent and having failed to collect from himself amounts for which he is personally liable to the minor’s estate, commits a breach of such bond for which he and his surety are answerable, without any sort of retrospective construction of the obligations thereof. See, in this connection, Cowden v. Trustees, 235 Ill. 604 (885 N. E. 924, 23 L. R. A. (N. S.) 131); Bassett v. Fidelity & Deposit Co., 184 Mass. 210 (68 N E. 205, 100 Am. St. R. 552); State ex rel. McClamrock v. Gregory, 119 Ind. 503 (2) (22 N. E. 1); U. S. Fidelity & Guaranty Co. v. Smith, 40 Ind. App. 136 (81 N. E. 226 (3)); Coleman v. Smith, 14 S. C. 511, 514; Owens v. McMahon, 122 Wash. 191 (210 Pac. 200).

The principle jwas not involved either in Lamar v Walton, supra, or in Huson v. Green, supra, and no case has been cited to us, and we have found none, in which its soundness has been brought directly into question. Although the rule laid down in the Gallaspy case seems never to have been invoked in this State, we are of the opinion that it is not in conflict with any of our statutes or decisions, but that it is consistent therewith.

Counsel for the defendant cite and rely upon the case of Farrar v. United States, 30 U. S. 373 (8 L. ed. 159). In that case the alleged principal for whose defaults it was sought to hold the sureties liable was commissioned as surveyor on June 13 and bonded on August 17, 1823. The sum of money found by the jury for the government had been paid to him before either the date of his commission or the date of his bond. In the bill of exceptions it was complained that the court erred in rejecting evidence offered by the sureties to the effect that their principal had appropriated the money to his own use before the date of the bond. The Supreme Court, in discussing the case, said: “We feel no difficulty in affirming that for any sums paid to Rector [the principal] prior to the execution of the bond there is but one ground on which the sureties could be held answerable to the United States, and that is on the assumption that he still held the money in bank or otherwise. If still in his hands, he was, up to that time, bailee to the government; but upon the contrary hypothesis, he had become a debtor or defaulter to the government, and his offense was already consummated. If intended to cover past dereliction, the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct. They ought, therefore, to have been let into proof of the actual state of facts so vitally important to their defense; and whether paid away in violation or in execution of the trust reposed in him, if paid away, he no longer stood in the relation of bailee. . . In giving instructions to the jury on these points, therefore, the court erred, as well as in refusing to let the defendants into proof, as prayed;.since such testimony presents a direct negative to the breach alleged, -which is that the obligor then had the money in his hands.”

We do not know what finally became of that case, but we assume that if the pleadings had so warranted, the plaintiff, on proof of the above facts by the defendant, would have been permitted to show in rebuttal that Rector was solvent on and after the execution of the bond sued on, and that his failure to- collect the money from himself under that bond constituted a breach for which he and his sureties would be liable thereon. The government made no effort in that case to sustain its claim of liability against the sureties upon any such theory as the plaintiff has advanced in the present case; so that the ruling there made is not authority against the contention of the plaintiff in the case at bar.

In view of the fact that Rector was a public officer and, as such, was to receive and discharge specific funds, while here the principal of the bond was a guardian and, as such, was to have charge and control of an estate, it may be that the bonds were so different in character and effect that other distinctions than the one noted should exist between the Farrar case and this case.

If the guardian was solvent on February 2, 1920, when he made the second bond, that would mean that he had sufficient property and assets to pay his debts, including the personal debt to the estate of his wards. Griffin v. State, 142 Ga. 636 (4), 643 (83 S. E. 540, L. R. A. 1915C. 716, Ann. 1916C, 80). And we agree with the learned judge of the trial court that his failure to dp so was a breach of the bond. This conclusion may appear to be a hard one, but it is not without equitable justification in favor of the beneficiaries of the bond. While the guardian was yet solvent and eo-uld have been required personally to account to his wards, the defendant came in and gave a bond which, so far as appears, was deemed by everybody to be good and sufficient. If this bond had not been given, the guardian would probably have been required to straighten out his affairs and make good his misappropriations while he was yet personally able to do so. Those interested in the bond were thus lulled into a sense of security and were kept in such condition until it was perhaps too late for them to look elsewhere for their protection. It seems that the doctrine of estoppel should have some application. While it has been found that the defendant had no actual knowledge of the first bond, an appreciation of the facts is not essential to the application of the principle of estoppel.

In reaching our conclusion stated above, we have assumed that the auditor, in finding that the defendant had no actual knowledge of the attempted execution of the first bond at the time it signed the second bond, intended to exclude all actual knowledge, even imputed knowledge such as might have been charged to the defendant from the knowledge of its agent Lovett, under some circumstances. German American Mutual Life Asso. v. Farley, 102 Ga. 720 (2) (29 S. E. 615); Springfield Fire &c. Ins. Co. v. Price, 132 Ga. 68 (64 S. E. 1074). Thus, we have not considered the extent of the facts with which Lovett appears to have been familiar, nor whether such knowledge as he may have had should have been imputed to the defendant.

Again, the auditor appears to have concluded, on the law side of the case, that irrespective of any question of actual knowledge, the defendant was charged, as a matter of law, with knowledge of the existence of all proceedings before the ordinary, including the first bond. This was to charge constructive knowledge where there was no actual knowledge; and, while such conclusion by the auditor was reversed by the trial judge upon exceptions by the defendant, this is another question which we have found it unnecessary to decide in the'present case, and we have stated the question solely for the purpose of exclusion and not for decision.

The amount $1,853.91 mentioned in the above statement includes two transactions: (1) Branch as guardian bought lands in his own name from the estate in which his wards were interested, bidding the same in at $1,420. Instead of paying this amount in cash, he gave to the administrator his receipt as -guardian. (2) The same estate held a note against Branch in his individual capacity for $433.91. This note was surrendered to him for his receipt as guardian for a like amount.

It is contended by counsel for the defendant that in no event could the defendant be held liable on these transactions. In the brief it is said that “Neither of these items ever constituted any actual payment to Branch in any capacity other than as an individual, as they were amounts owing by him personally to the Dorminey estate. He gave his receipt as guardian therefor, and the Dorminey estate diminished the amount owing to the wards correspondingly.” We can not agree with this contention. Branch used the credit of his wards to his personal benefit in the amount named. He gave his receipt as for funds paid over to him, and thus obtained the land and his personal note of the aggregate value of $1,853.91. Under the facts of this case, the guardian, having issued his receipts as such for his personal obligation and having obtained a deed to land and the surrender of his note, may be treated as the debtor of his wards’ estate for the amount of such receipts; and if in these matters he became personally liable to the estate of his wards, as we think he did, it was his duty as guardian 'to collect such indebtedness, provided it was still owing at the making of the second bond and provided he was then solvent and able to pay the same.

Under the principles enunciated in the preceding division, there was no error in holding the surety liable as for a breach of the second bond in his failure to perform such duty. This conclusion, we think, is supported by the following additional cases: Clements v. Ramsey, 9 Ky. L. R. 172 (4 S. W. 311); State v. Hull, 53 Miss. 626; Avent v. Womack, 72 N. C. 397 (367); Sanders v. Forgasson, 3 Baxt. (Tenn.) 249. These cases are collected in a note in 28 C. J. 1290, and sustain the statement to which they are cited. See also to the same effect: Martin v. Davis, 80 Wis. 376 (50 N. W. 171); Pfeiffer v. Knapp, 17 Fla. 144 (2); McGill v. O’Connell, 33 N. J. Eq. 256; U. S. Fidelity & Deposit Co. v. Smith, supra.

Judge Crum in rendering judgment for the plaintiff expressed in the record his opinion that even if Branch was insolvent and thus “could not, by a disposition of all his property, pay his debts, including the amounts he had received rightfully belonging to his wards,” then, as to all items received by him prior to the execution of the second bond, he should on his final qualification have proceeded against the administrator of the S. B. Dorminey estate, such administrator being shown by the evidence to have been then and at all times solvent, and that the failure of Branch to do so constituted a breach of his second bond as guardian. In the bill of exceptions this expression is termed a ruling or holding, and is assigned as error upon the following grounds: (1) contrary to law; (2') no such breach was declared on in the petition; (3) the court, having found that the administrator of the Dorminey estate is solvent, a recovery can still be had against him, and therefore no damage is shown.

In view of what we have said above, we are of the opinion that the judgment rendered against the defendant was demanded by the facts as they appear without dispute in the record, upon the theory discussed in the third division above, that being the case as laid in the petition; and, if in this we axe correct, it is immaterial that the judge may have expressed an erroneous opinion as to some other theory of liability. Smith v. Page, 72 Ga. 539 (2a); Brunswick & Birmingham R. Co. v. Hoodenpyle, 129 Ga. 174 (6) (58 S. E. 705).

The bill of exceptions of the defendant contains no assignment of error upon the overruling of any of its exceptions to the auditor’s findings of fact. It is therefore immaterial to this court that as to these exceptions the court below refused the plaintiff’s motion to strike the same. However, this was not an equity case, but a law case, and the exceptions both of fact and of law were not subject to dismissal upon the grounds taken in the plaintiff’s motion. Johnson v. City of Cairo, 27 Ga. App. 125 (2) 107 S. E. 551).

One of the auditor’s conclusions of law was that the guardianship dated from February 3, 1919, and that interest should be charged against the guardian from February 3, 1920, as to all amounts received by him in the meantime, one year being allowed by law for the collection of assets and to ascertain the indebtedness of the estate, during which no interest should be charged. See Civil Code (1910), §§ 4077, 4078; Griffin v. Collins, 125 Ga. 159 (5) (53 S. E. 1004). The judge of the superior court, upon a review of the case upon exceptions by the defendant to the auditor’s report, differed with the auditor as to the time of the commencement of the guardianship, holding that the appointment was absolutely of no effect until the making of the second bond on February 2, 1920. Consistently with this conclusion he held that interest should be calculated only from February 2, 1921, and rendered judgment accordingly. From what we have said in the second division it follows that the judgment sustaining the exception to the auditor’s report as to the matter of interest must be reversed.

Although the bill of exceptions brought by the plaintiff, the ordinary, is on its face denominated a cross-bill, since it was tendered within thirty days from the final judgment and contained a proper assignment of error thereon, it can be, and is, treated as a main bill. Latimer v. Bennett, 37 Ga. App. 246, 253 (139 S. E. 570); Everett v. Shy, 30 Ga. App. 383 (2) (118 S. E. 577); Ruffner v. Dunlop, 32 Ga. App. 693 (4) (124 S. E. 544).

Judgment affirmed in No. 18872, and reversed in No. 18878.

Jenlcms, P. J., and Stephens, J., concur.