text:
    938.
    HENDERSON et al. v. HUGHES.
    1. While a landlord lias no lien for supplies furnished by another to his tenant, and can not acquire a lien by voluntarily assuming, without the consent of the tenant, liability for supplies to be furnished, nor obtain a lien for any pre-existing debt for supplies, nor as surety for payment of his tenant’s debt for supplies, still he is entitled to his lien for supplies where, at the request or with the consent of the tenant, he directs the furnishing of supplies to the tenant by an agent, and assumes sole liability for the debt thus created. In such case the authority to sell to the tenant, given by the landlord to the merchant, is an original undertaking, and not an agreement to pay the debt of another, and the supplies are indirectly furnished by the landlord, through the merchant as his agent, instead of being directly delivered by his hands.
    2. The question as to whether certain supplies were furnished by the landlord or by another being a matter of fact for determination by the jury, and there being sufficient evidence to authorize a verdict foreclosing a landlord’s lien, it was not error to overrule the motion for new trial.
    Foreclosure of lien, from city court of Dublin — Judge Burch. October 23, 190?.
    Argued February 18,
    Decided March 16, 1908.

      K. J. Hawkins, for plaintiff in error. IF. G. Davis, contra.
   Russell, J.

D. G. Hughes Jr. foreclosed a landF lien, against Henderson, his tenant, in the city court of Dum , It was levied upon crops raised on the rented premises. To the foreclosure Henderson filed his counter-affidavit, denying the existence of the plaintiff’s lien, and the Sam Weichselbaum Company intervened, under §2?69 of the Civil Code, and by counter-affidavit denied the validity and existence of the Lien claimed by the plaintiff, and claimed that the proceeds of the property should be applied to the payment of a mortgage given to that company by Henderson for supplies furnished by it to make the crops. By consent of parties the two cases were consolidated and tried together. The jury found a verdict for $342.6?, principal, with interest and costs, in favor of the plaintiff, Hughes; and the defendants excepted to the ruling of the court in refusing a new trial, based upon the general grounds.

It is undoubtedly true that a landlord can not take a lien for supplies already furnished to his tenant by a third person on the tenant’s credit. Elliott v. Parker, 94 Ga. 620 (20 S. E. 106). Consequently, a special contract for such a lien, even though executed by a tenant in writing, and though the special contract was agreed upon and the writing prepared, for execution, and the assignment of it promised before the supplies were furnished, has no validity as against other creditors of the tenant. The specific holding in the Elliott case, supra, was, that no lien which a landlord can assign can be created except by special contract in writing. It is equally true that a landlord has no lien lor supplies purchased by his tenant from a merchant, and for the payment of which a landlord is a mere security. Brimberry v. Mansfield, 86 Ga. 792 (13 S. E. 132); Rodgers v. Black, 99 Ga. 139 (25 S. E. 23); Scott v. Pound, 61 Ga. 579; Swann v. Morris, 83 Ga. 143 (9 S. E. 767). These are the two propositions on which the plaintiffs in error planted their ease; and the evidence might have authorized the jury, upon this view, to find a verdict against the plaintiff in the court below, instead of in his favor. It must be borne in mind, however, that in the Elliott case neither landlord nor tenant was a party thereto, and the single question involved was, whether an alleged lien, transferred by the landlord, Veal, to Elliott, and which, admittedly, had not been executed in writing or transferred by the landlord until after all the goods had been furnished, was superior to a judgment obtained by Parker against the tenant, King. This is not the question involved in the present case. The issue, in the case at bar was whether Hughes, the landlord, or Thomas, the storekeeper, furnished Henderson, the tenant, supplies to make the crop of 1906. It is significant, however, that in the case of Elliott v. Parker the fact is brought out (p. 621) that the goods were sold to the tenant, King, and not to Veal for King by Elliott. In Rodgers v. Black, supra, the Supreme Court, while reiterating the rule that “a landlord is not entitled to a lien upon his tenant’s crop for supplies unless the same are furnished by tlje landlord himself,” held unequivocally that “if the tenant signed a promissory note for the price of the supplies, and the landlord, though he may have endorsed the same or signed it as surety (doing this with the tenant’s consent), was in fact the real purchaser, he would be entitled to his lien, the truth of the matter being a question for the 'jury.” In Scott v. Pound, supra, it was held that the landlord must furnish the tenant, and not merely become the tenant’s surety for the price to some other person, by whom they are sold to the tenant. And this is perhaps the strongest statement of that side of the issue. In Brimberry v. Mansfield, supra, “furnishing” was defined, and it was held that if the landlord ordered the supplies upon his own credit, and in that manner furnished them to his tenant, he would be entitled to a lien therefor. In Fargason v. Ford, 119 Ga. 345 (46 S. E. 431), the landlord furnished the defendant money only, and was held to have a, lien under §2800 of the Civil Code; and in this comparatively recent decision the case of Swann v. Morris, supra, was distinguished, and attention was called to the fact that in the Swann case the “landlords did not sell or furnish the guano to the tenant, but sold it to him as- agents for another, and took a note for the price of the same, payable to their principal, which they subsequently paid, and then sought to foreclose a lien upon the tenant’s crop.”

We take it, then, that the law is well settled that a landlord has no lien for supplies furnished to aid in making a crop, if they are furnished by another, or if they are furnished without the tenant’s consent, or the debt is assumed by the landlord without the tenant’s consent. Nor has the landlord any lien for articles he may furnish in his capacity as a mere agent for another. The articles furnished in the latter case are really supplied by a third person, the principal, whose agent the landlord is. A mere suretyship assumed by the landlord to guarantee the payment of a pre-existing debt of the tenant, though it be for supplies, will not entitle the landlord to foreclose a lien for supplies. But on the other hand, if supplies are furnished at the instance of the landlord by a merchant to his tenant, upon a previous understanding with the tenant that the supplies shall be so furnished, and the landlord is responsible for the payment of the debt thus created, the landlord is entitled to foreclose a lien for any supplies necessary to make the crop, and for which he himself undertook to pay the dealer, with the knowledge and assent of the tenant. Boyce v. Day, 3 Ga. App. 275 (59 S. E. 930).

As ruled in the case of Rodgers v. Black, supra, it is an issue of fact for the jury, whether the landlord or some one else furnished the supplies in question, or any portion thereof. There is no complaint that this issue was not fully and clearly submitted to the jury by the trial judge; and while Henderson emphatically denied making any agreement with his landlord with reference to the supplies, and while the account was charged on Thomas’ books to Henderson, and not to Hughes, and while Thomas took a mortgage from Henderson to secure the debt, the evidence in behalf of the plaintiff fully authorized the verdict rendered; and though it appears that the testimony in behalf of the defendants would have justified a finding in behalf of the counter-affidavit, the jury gave the preference to the plaintiff’s theory of the case and the evidence in its support. There seems to have been no evidence contradicting the amount of the indebtedness claimed by Hughes after deducting a credit of $50. The plaintiff testified that the defendant Henderson was his tenant in the year 1906, and had rented some of his land for that year; that on the same place Mr. J. G. Thomas conducted a store, and he arranged with him, with the consent of Henderson, to furnish him and his other tenants with the necessary supplies to make the crop for the year 1906. He testified positively that he did not stand security for what Thomas was to furnish, but agreed to pay it himself, and authorized Thomas to furnish Henderson at his expense, asking him to charge what each tenant got to the tenant, and not to him (Hughes); to obviate the landlord’s keeping a set of books. Thomas testified, that he looked to Hughes for payment; that in taking the mortgage to partly secure the debt, and in all other transactions with relation to the matter, he acted for Hughes. This evidence would have authorized the jury’s verdict, and we have no power to set aside a verdict which is authorized by the evidence, where no error of law has been committed. Judgment affirmed.

Hill, O. J,, disqualified.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    939.
    ARNOLD v. ADAMS.
    1. A witness testifying by interrogatories to. the correctness of an account, as to the items of which he has personal knowledge, may include, as a part of his testimony, a copy of the account, thereby identifying the subject-matter of his testimony.
    2. “An objection that a document offered in evidence was not admissible, because the execution of the same was not proved as required by law, being overruled, the presumption is that the execution was duly proved, unless the contrary affirmatively appears, either by an authentic state- , ment that there was no evidence of execution, or by setting out such, evidence on that subject as was adduced to the presiding judge. Mere preliminary evidence upon such a question is not for insertion in the brief of evidence requisite to support a motion for a new trial. Consequently, its absence from the brief does not warrant the conclusion that the overruled objection should have been sustained.”
    3. -Where, there is a conflict in the evidence as to whether a third person was agent for one of the parties, the court may admit testimony as to transactions with the alleged agent, and submit it to the jury, with appropriate instructions as to its relevancy being conditioned upon their finding that the agency did in fact exist.

      4. Minor and immaterial errors in the admission of testimony will not work the reversal of a verdict fully supported by the evidence.
    Appeal, from Morgan superior court — Judge Lewis. December 2, 1907.
    Submitted February 25,
    Decided March 16, 1908.

      George & Anderson, for plaintiff in error.

      Percy MiddlebrooTcs, M. 0. Few, contra.
   Powell, J.

A witness who testifies as to the correctness of an account sued on, consisting of several items of goods furnished to the defendant, may, after showing that he has personal knowledge of the correctness of each item, attach a copy of the account with due reference thereto as an exhibit to his interrogatories; the copy of the account is thus simply a part of the means by which the witness presents the facts to which he testifies. The fact that the witness may have refreshed his memory from his books or from any other source, or that the exhibit, which embodies the substance of his testimony, is a literal copy from his books, does not render the testimony inadmissible, if, after all, the witness testifies to the correctness of the same from his own knowledge, memory, and recollection.

A ground of the motion for a new trial complains that the court admitted in evidence a certain telegram, on the ground that its execution by the defendant, by whom it purported to have been signed, was not proved. This ground of the motion does not Teeite any of the preliminary evidence heard by the court as to the authenticity of this telegram, or as to whether the defendant signed it. The second headnote, which is copied literally from the case of Kelly v. Kauffman Milling Co., 92 Ga. 105 (18 S. E. 363), fully disposes of this assignment of error.

Where there is evidence pro and con as to whether a named person was or was not the agent of the defendant, and the plaintiff offers to prove transactions and communications with such alleged agent dum fervet opus, it is proper for the court to submit all the evidence to the jury, letting the question of the effect to be given to these communications and transactions with the agent abide their determination of the preliminary question as to whether the alleged agent was in fact authorized to act for the defendant in the given transaction. In this case there was evidence that the defendant had admitted that the person placing orders with the plaintiff for a portion of the goods was in fact authorized by him to place those orders; therefore the court properly submitted the whole matter to the jury, including memoranda and declarations made by the alleged agent.in placing the orders.

The court allowed the plaintiff to testify that he knew that the defendant had received the goods which he had sent him by express, for that otherwise the express company would have returned them. Considered alone, this would seem to be a violation of the rules of evidence. However, under the facts of this ease, if it were error, it was harmless, because the plaintiff did not have the burden of showing delivery to the defendant in person, but merely of showing delivery to the transportation company; and this he did. If the ease were very doubtful and close, such an error might authorize a reversal on the theory that it tended to confuse the issues and to improperly influence the jury in their finding; but certainly it would be a prostitution of the powers of this court to overrule the judgment of the trial court refusing a new trial, upon an error so slight as this, in a case where the evidence so strongly preponderates in favor of the verdict. The plaintiff, most probably in doubt as to whether he had made sufficient proof of two items im the account, wrote off from his judgment the amount recovered for them. Some of the grounds of the motion for a new trial complain of the admission of testimony tending to support these items. If there was error in any of these rulings, the plaintiff’s action in writing off from his judgment of recovery has cured it.

Judgment affirmed.


author: Hill, C. J.

text:
    964.
    Boyd v. The State.
    Accusation of keeping a gaming-house, from city court of Dawson — Judge Edwards. December 16, 1907.
    Submitted February 25,
    Decided March 16, 1908.
    The prosecutor (a bailiff) testified, that he, with a policeman and two other men, went at night to the house of Lavonia Boyd, the accused, and saw a crowd of negroes squatting on the floor, and heard them saying, “I’ll bet you a quarter better,” or “half a dollar better.” He heard Lavonia Boyd say “You must pay me.” Some of'the negroes said “There’s the white folks out there.” Somebody outside the house shot a pistol just as the prosecutor’s party were entering the back and front doors of the house, and this seemed to frighten the negroes. Ten of them were arrested and others ran off. The prosecutor saw one of the negroes pick up some small change from a quilt on the floor. None of the witnesses saw any cards or any other indication of gambling than has been stated. There was evidence as to confessions made by the accused, to the effect that the negroes gambled with cards at her house that night, and paid her for the rent of the house.
   Hill, C. J.

A confession without aliunde proof of the corpus delicti is not sufficient to convict. ' Judgment reversed.

Marlin & Hoyl, Baines & Gurr, J. G. Parks, for plaintiff in error. M. J. Yeomans, solicitor, contra.


text:
    966.
    Joiner v. The State.
    Indictment for forgery, from Sumter superior court — Judge Littlejohn. December 19, 1907.
    Submitted February 25,

    Decided March 16, 1908.

      L. A. 'Whipple, Williams & Harper, for plaintiff in error.

      P. A. Hooper, solicitor-general, contra.
   Powell, J.

The evidence was such as to justify the verdict rendered. No material error appears in the record. Judgment affirmed.


text:
    967.
    Johnson v. The State.
   Hill, C. J.

1. Where two men suddenly fall out and quarrel, and draw-knives and fight, and one kills the other by stabbing him, the offense is voluntary manslaughter. Gann v. State, 30 Ga. 67.

2. The theory of involuntary manslaughter in the commission of an unlawful act arises solely from the statement of the accused, and is in conflict with the evidence. The court, therefore, was not bound to give in charge the law of involuntary manslaughter, in the absence of a timely and pertinent written request. Hardin v. State, 107 Ga. 718, (33 S. E. 700) ; Richards v. State, 114 Ga. 834 (40 S. E. 1001) ; Baker v. State, 111 Ga. 141 (36 S. E. 607).

3. While there can be neither murder nor voluntary manslaughter without an intent to kill, yet where the weapon used was a pocket-knife, and the defendant stabbed the deceased in the neck with it, an intent to kill may be presumed; and it was harmless error not to charge specifically that the evidence must show an intent to kill, especially in the absence of a timely written request. Jones v. State, 29 Ga. 608; Lawrence v. State, 68 Ga. 289.

Indictment for murder, from Oglethorpe superior court — Judge Worley. December 12, 1907.

Submitted February 25,

Decided March 16, 1908.

Sibley & McWhorter, for plaintiff in error.

David W. Meadow, solicitor-general, contra.

4. Error is assigned on the following charge: “If the defendant killed the deceased, and if there was no necessity for the defendant to kill the deceased to save the life of the defendant, and if the circumstances were • not sufficient to excite the fears of a reasonable man that the deceased was intending, by violence or surprise, to take the life of the defendant, and if the killing was unjustifiable and unlawful, then defendant would be guilty of voluntary manslaughter.” This charge contains no prejudicial error to the defendant, who was convicted of voluntary manslaughter.

5. The definition of reasonable doubt, given by the court in the instructions to the jury, was inapt, and probably did not enlighten them as to the meaning of the term. The evidence, however, clearly supporting « the verdict for voluntary manslaughter, the error was immaterial and harmless.

6. No material or reversible error was committed, and the verdict is supported by the evidence. Judgment affirmed.


author: Russell, J.

text:
    968.
    Hartman Stock Farm v. Henley et al.

    Practice in the Court of Appeals.
    Argued February 25,
    Decided March 16, 1908.
    J. S. James, for plaintiff in error.

      Roberts & Hutcheson, contra.
   Russell, J.

A writ of error sued out to a judgment overruling a demurrer, where a judgment sustaining the demurrer would not be a final determination in the case, is prematurely brought and must be dismissed. But the bill of exceptions having been presented and certified within the time allowed by law for the filing of exceptions pendente lite, the dismissal is ordered with direction that the bill of exceptions operate as exceptions pendente lite in the cause in the lower court.

Writ of error dismissed, with direction.


text:
    972.
    SPARKS IMPROVEMENT COMPANY v. JONES.
    1. The defendant can raise the point that the plaintiff has recommenced an action previously dismissed, without paying the costs of the former 'suit, only by a timely plea in abatement.
    2. -Material amendments to a party’s pleadings, made pending the trial, may entitle the opposite party to a continuance or postponement of the case, if a motion for that purpose be duly presented. In the present .ease the court did not err in overruling the defendant’s motion.
    3. Except where the statute of frauds prevents, parol evidence is admissible to show that a written agreement, since its execution, has been enlarged, diminished, altered, or abrogated, by mutual consent of the parties.
    4. Grounds of a motion for a new trial, assigning error in the admission or rejection of testimony, should be complete within themselves.
    Complaint, from city court of Nashville — Judge Peeples. January 10, 1908.
    Submitted February 25,
    Decided March 16, 1908.

      Hendricks & Christian; for plaintiff in error.

      Buie & Knight, contra.
   Powell, J.

That the plaintiff recommences an action previously dismissed without the payment of the costs of the first suit is not a matter affecting the merits of the controversy; it is matter of abatement only. To raise any issue upon this question, the defendant must file a timely formal plea in abatement. Such pleas must be filed under oath at the first term. Stirk v. Central Ry. Co., 79 Ga. 495 (5 S. E. 105); Sweeney v. Malloy, 107 Ga. 80 (32 S. E. 858); Wright v. Jett, 120 Ga. 995 (48 S. E. 345); Board of Education v. Kelley, 126 Ga. 479 (55 S. E. 238). The case having resulted favorably to the plaintiff, grounds of error assigned by the defendant upon the manner in which the question as to whether the costs of the first suit were in fact paid are wholly immaterial, there having been no plea in abatement filed.

Material amendments to the pleadings, made pending trial, may entitle the defendant to a continuance upon the ground of surprise. In such cases the party should formally move the court for a continuance,- and declare that he is surprised and less ready to proceed with the trial; whereupon the court, looking to the nature of the amendment and to all the history of the case, should exercise a sound discretion in refusing or granting a postponement or continuance. Such a discretion is reviewable; and in this case no abuse appears.

Suit on account may be maintained for goods furnished or work done, though the original agreement whereon the goods were furnished or the work was done may be evidenced by a written contract. Chapman v. Conwell, 1 Ga. App. 212 (58 S. E. 137). Parol evidence is admissible to show that the terms of a written contract have been changed by mutual consent of the parties since its execution, except so far as the statute of frauds may prevent such changes; and in this case the contract having been fully performed, any exception made by the statute of -frauds is not applicable. Rogers v. Atkinson, 1 Ga. 12; Jones v. Grantham, 80 Ga. 472 (5 S. E. 764) ; Augusta Southern Ry. Co. v. Smith, 106 Ga. 864 (33 S. E. 28), and cit.

Usually, grounds of a motion for new trial must be complete within themselves, and must not require reference to other portions of the record to complete them or to show the error complained of. While the trial court or the reviewing court may look to other portions of the record, and therefrom hold that an error duly assigned in a ground of a motion is not, in the light of all the facts, cause for new trial, this in no wise relaxes the requirement that the movant must present his grounds completely within themselves. This rule has been applied by the Supreme Court and by this court so often that no citation of authority is necessary. Many of the grounds of the motion for new .trial now under review are defective in this respect. Upon a careful consideration of the whole case we find-that a just verdict has been rendered, fully supported by evidence, and that no reversible error is shown; therefore the judgment is Affirmed.


text:
    975.
    Cleveland v. The State.
   Powell, J.

In a prosecution for tlie offense of being intoxicated on a public highway, the burden is upon the State to show that the road in question was in fact a public highway. Johnson v. State, 1 Ga. App. 195 (58 S. E. 265). This may be shown directly or circumstantially. See Central Ry. Co. v. Ross, 107 Ga. 74 (32 S. E. 904). There is no evidence of any character in the record as to whether the road upon which the defendant was alleged to have been intoxicated was a public highway or not. . Judgment reversed.

Accusation of misdemeanor, from city court of Hartwell — Judge Hodges. December 16, 1907.

Argued February 25,

Decided March 16, 1908.

A. G. & Julian McCurry, for plaintiff in error.

James H. Shelton, solicitor, contra.


text:
    976.
    Anderson v. The State.
    Accusation of abandoning child, from city court of Ashburn— Judge Hawkins. December 33, 1907.
    Submitted February 25,
    Decided March 16, 1908.

      B. A. Rogers, John B. Hutcheson, for plaintiff in error.

      J. A. Corner, solicitor, contra.
   Hill, C. J.

The special assignments of error are entirely without merit, and the verdict is-amply supported by the evidence.

Judgment affirmed.


text:
    983.
    BRINSON v. CHANDLER.
    1. A distress warrant is amendable under the same rules and to the same extent as a declaration or petition in a suit. But a distress warrant sued out for the rent of a described tract of land for the year 1907 is not amendable by substituting therefor rent due for three different tracts of land for the year 1906. The original distress warrant may, even by unnecessary averments, clearly show that the proposed amendment sets up a new and distinct cause of action.
    2. “The contents of an amendment, as compared with what is already in the declaration, may tend to show, either that the plaintiff is endeavoring to follow up a cause of action, or supposed cause, which he had in view when the declaration was prepared and filed, or, that having since discovered that no such cause exists or is maintainable, he has concluded to shift his ground and bring in surreptitiously a new and distinct cause of action. Ellison v. Ga. R. Go., 87 Ga. 708 (13 S. E. 809).”
    3. There was no error in directing the verdict.
    Distraint, from city court of Waynesboro — Judge Johnston. November 6, 1907.
    Submitted March 11,
    Decided March 16, 1908.

      Lawson & Scales, for plaintiff.

      H. J. Fullbright, for defendant.
   Russell, J.

Chandler gave a rent note to his landlord, Mrs. Mattie E. Brinson, on January 14, 1907, payable October 15, 1907, reciting that It-Ms for the payment of the balance of the rent for the year 1906, for a farm known as the “burnt house place.” It appears that Chandler was unable to pay the rent for .1906, and this note was given to obtain an extension. The description of the premises, for the rent of which the note was given, was written by Chandler. Chandler continued as a tenant of Mrs. Brinson’s in the year 1907 and paid the rent in full for that year. On September 23, 1907, Mrs. Brinson sued out a distress warrant, which was levied upon certain growing crops which had been raised by Chandler. . The distress warrant issued for rent of land on the Brinson home tract for the year 1907, and was for the sum of $216.68. The defendant filed a counter-affidavit, in which he averred’ that he was not indebted to the plaintiff for rent as alleged in said affidavit of foreclosure, or any part thereof.

According to the testimony of the plaintiff, the note above referred to was for $261.48, and was made up of a balance of $16.20,. rent of Adam Ellison on the “boggy cut place” for 1906, and of $110.30, balance of Willie Bell’s rent on the “Jackson place,” and $135, rent for gin-house and land around it on the “burnt house place,” known as the “Brinson home place,” each item being for rent for 1906; and the plaintiff’s own testimony showed that the rent for 1907 was embodied in another' note, which had been fully paid. The testimony of the defendant did not differ materially from the evidence offered in behalf of the plaintiff. He testified that no part of the note offered in evidence was for rent for the year 1907. He differed somewhat in his testimony from the evidence given by the witnesses for the plaintiff, as to the items which constituted the consideration of the note, but admitted owing the note for the rent for 1906. It was stated in the note itself, which was introduced in evidence, that it was given for balance on rent for 1906. The defendant moved the court to direct a verdict in his favor. Thereupon, the plaintiff moved to amend her distress warrant as follows: “That said H. H. Chandler was due and owing to M. E. Brinson, for balance of land rent for the year 1906, on the boggy cut place to the extent of $16.20; on the Willie Bell place to the extent of $110.30; and for the gin-house, land, and store on the burnt house place to the extent of $135, making the amount claimed, for the rent distrained for, $261.48.” The court declined to allow the amendment, and directed a verdict in favor of the defendant; and exception is taken to both of these rulings.

We think the court properly declined to allow the amendment. As liberal as we have been in Georgia in the allowance of amendments, it has always been held to he improper to allow an amendment setting up an entirely new and distinct cause of action. If the trial judge had allowed the amendment in the present case, there would have been nothing in common between the original cause of action and the new cause of action proposed by the amendment, except that the parties were identical. The' distress warrant was sworn out for a certain amount of rent, to wit, $216.68, due for the .year 1907; the proposed amendment was for $261.48, for rent for the year 1906. The distress warrant was for rent of one tract of land; the proposed amendment was for the unpaid balance on three tracts of land. It seems to us that a distress warrant sworn out for the rent for 1907, regardless of the description of the land, constituted a complete cause of action, necessarily disr tinct from any other cause of action; and when it was not only proved, but admitted, that the rent for 1907 had been paid, there was no alternative except a verdict for the defendant, and in that state of the case it was not error for the judge to direct a verdict. It can not be held, as insisted by counsel for the plaintiff in error, that-she was legally entitled to recover under the law, because the only question was whether or not the defendant was due the rent to her, and that it is immaterial for what year the rent is due. A distress warrant is amendable to the same extent as a petition in an original suit would be amendable. We hardly think, however, that it would be seriously contended, if A claimed that B owed him two notes for borrowed money, and brought suit on one note, that A would then be permitted to strike the suit on the first note and insert, by amendment, a cause of action dependent upon the second note, unless B consented to the amendment. And yet both, notes would be for borrowed money. The cause of action set forth by the plaintiffs affidavit was not only for 1907, instead of 1906, but was for the rent of a particular place described in the affidavit, whereas the proposed amendment, as before stated, was for the rent of three places. The fact that the defendant wrongly described the premises for which the rent for 1906 was due was not material to the issue then before the court. In a proceeding by distress warrant, the issue is formed by the counter-affidavit; and the only issue before the court was whether the defendant owed rent for 1907 as alleged. To have reformed the note given for 1906, so as to make it speak the truth of the transaction as contended by the plaintiff in error, would not be within the jurisdiction of the court before which the distress warrant was pending.

Counsel for the plaintiff in error insists that Chandler is estopped by his written contract and conduct from complaining, and that the evidence demanded a verdict for the plaintiff, with or without the amendment. This principle, if applicable, can properly be raised in a proceeding to question the note given for 1906, but even the fact that the defendant may have been guilty of a fraud as to that note would not justify, even as against him, the substitution of one cause of action for another. Every defendant has the right to be apprised of what he is called upon to meet in court, and to be given a reasonable opportunity to prepare his defense thereto.

It has been held that it is not necessary to specify the particular premises out of which the rent arises, or the time when the rent became due, but if the premises are stated, and the time when the rent is due is given, to identify the transaction, and it is thus identified, a suit upon another transaction can not be substituted for the distinct cause of action thus identified. The identification might not be necessary (Driver v. Maxwell, 56 Ga. 12; Renew v. Redding, 56 Ga. 311; Lathrop v. Clewis, 63 Ga. 282; Tucker v. Cox, 65 Ga. 700), in order to perfect the description of the transaction, where it does not appear that there was more than one transaction between the same parties; but where even unnecessary description, is employed in setting forth a cause of action, it frequently becomes material, and it may always be used for the purpose of distinguishing the transaction referred to in the pleadings from another and independent transaction which may be sought to be engrafted. Under the rules laid down by Judge Bleckley, in Ellison v. Ga. R. Co., 87 Ga. 691 (13 S. E. 809), there can be no amendment of the distress warrant in this case, except by the substitution of a new cause of action, because the affidavit and the distress warrant based thereon needed no amendment. They were perfect both in form and substance. The trouble was that the proof did not fit the case. Where the original action is perfect in every detail, an amendment is allowable to set forth the same cause of action as having arisen in a different manner; but it is not the purpose of amendment to destroy one cause of action and create another in its place. As Judge Bleckley says, amendments are constructive; they are never wholly destructive. The administration of an emetic is about as severe a course of treatment as is given by amendment. “To render the amendment offered admissible, it must contain not merely the quantity -and general quality' of matter requisite to fill out the declaration, but its matter must be the residue of the identical cause of action of which a part is already described in the declaration. . . Some transaction must be indicated, and some particular duty and breach in respect to the transaction must apparently be asserted by the declaration, and must be shown to exist by the amendment. If the plaintiff has two causes of action of the same class, though the same facts may, in part, be common to both of them,, he is not allowed to declare upon one and afterwards abandon it and substitute the other by amendment. . . And as the original cause must be adhered to, and no other substituted in its place, the trace furnished must be sufficiently plain and distinct to identify the particular cause of action to which the declaration points or refers.” Ellison v. Ga. R. Co., supra, 709-710.

We conclude, therefore, that the court properly disallowed the amendment. Judgment affirmed.


text:
    988.
    RAY, alias MOORE, v. THE STATE.
    1. In prosecutions for larceny, if the ownership of the stolen property is unknown to the grand jury, it may be so charged in the indictment; but if it appears upon the trial that it was in fact known, or that in the exercise of reasonable inquiry it might have been ascertained with such certainty as would have justified the grand jury in asserting it, there is a fatal variance. However, if it was unknown to the grand jury at the time of their action on the case, its subsequent discovery and proof on the trial will not constitute such a variance.
    2. The corpus delicti of a larceny may be proved by circumstantial evidence.
    3. As a general rule, in the prosecution of a particular crime, evidence tending to show that the defendant has committed other offences is not admissible; but where the testimony offered has a distinct relevancy to the ease on trial, it is not inadmissible merely because it also tends to show the defendant’s connection with some other criminal transaction.
    4. Minor and immaterial errors in the admission of testimony will not work a reversal.
    5. Trial judges should usually leave the examination of witnesses to the attorneys conducting the case. However, when the record fails to show any prejudice to the complaining party, a new trial will not he granted because the judge asked questions of witnesses.
    Indictment for larceny, from Dougherty superior court — Judge Spence. January 6, 1908.
    Submitted March 10,
    Decided March 16, 1908.

      J. W. Walters & Sons, for plaintiff: in error.

      W. TS. Wooten, solicitor-gen eral, contra.
   Powell, J.

The defendant was charged in the indictment with having stolen a bale of lint cotton, “the marks, brands, and owner being to the grand jurors unknown.” It was shown that he was an employee of a compress company at Albany; his true name was Frank Pay; he caused a negro drayman to take a bale of cotton from the compress yard to a warehouse; it bore a tag in the name of W. M. Moore and was stored in the warehouse under that name; he called at the warehouse and in the name of Moore sold the cotton, taking in payment a check payable to W. M. Moore, which he indorsed in that name and collected at the bank; he sold and collected for two or three other bales of cotton in similar name and manner during the same season; he was not a cotton planter or anything of that kind, but was a mere compress foreman; the compress company had no customer by the name of W. M. Moore; and no such man was known in the community. About the time the bale of cotton in question was sold, Carter & Patterson of Sylvester, Ga., sent a car-load of' cotton to the compress at Albany, for compressing; the defendant checked it out and reloaded it for shipment to Savannah; upon reloading, the number of bales checked up all right, but later a bale of cotton purporting to be of this shipment was returned from Savannah, showing that it was composed of compress “sweepings,” and not of cotton of the character sent by Carter & Patterson to the compress at Albany; in this bale were found certain tags, etc., which indicated that the “sweepings” came from the door of the Albany compress. In the course of a year’s run several bales of these sweepings would accumulate at the compress, and it frequently devolved upon the defendant, as one of his duties, to bale them. When the bale of cotton alleged to have been stolen was delivered by the defendant to the drayman, to be carried to the warehouse, a piece of the bagging had been cut entirely away from the bale at the place where the mark or brand is usually stamped. The defendant offered no explanation, introduced no testimony, and made no statement. He was convicted; and, his motion for a new trial having been overruled; he brings error.

That the defendant stole the bale of cotton in question admits of but little, if any, doubt. It is not one of those close cases in which slight error might warrant the grant of a new trial. The defendant presses the point that the indictment alleges that the ownership of the cotton was unknown, when, as a matter of fact, the State’s testimony shows or tends to show that it belonged to Carter & Patterson. The insistence of the State is that the ownership of the cotton was not disclosed with any reasonable certainty by the evidence, and that the testimony as to Carter & Patterson’s cotton was offered merely to show how the defendant could have accomplished the larceny of this or any other bale of cotton'belonging to any of the compress company’s customers. We may concede that it is strongly probable that the particular bale of cotton, for the larceny of which the defendant stood charged, belonged to Carter & Patterson; still this rests so much on suspicion, rather than proof, that we are not willing to say that even if all the facts as to this question which developed at the trial were known to the grand jurors at the time the indictment was returned, that body was not warranted in charging the ownership of the property as unknown. We understood the rule on that subject to be this: If the. ownership of the stolen property is unknown to the grand jurors, it may be described in the indictment as being unknown, or unknown to the grand jurors; but if it appears that it was in fact known, or that in the exercise of reasonable inquiry it could have been ascertained with such certainty as would justify the grand jury in asserting that ownership, there is a fatal variance. If it was in fact unknown at the time of the indictment, but is subsequently discovered, proof of it at the trial will not constitute a variance or render the indictment insufficient. Stringfield v. State, 25 Ga. 474, 476, and cit.; Nelms v. State, 84 Ga. 466 (10 S. E. 1087, 20 Am. St. R. 377); Martin v. State, 115 Ga. 255 (41 S. E. 576); White v. People, 32 N. Y. 465; Check v. State, 38 Ala. 227; Hill v. Commonwealth, 11 Cush. (Mass.) 137; Rex v. Bush, Russ. & Ry. 372; Clark’s Crim. Prac. 168, 229, 233, 340. The instructions of the court on this subject were fully favorable to the accused, and he has no just cause of complaint in respect thereto.

Corpus delicti, as well as any other substantive fact of a criminal case, may be proved by circumstantial evidence. State v. Williams, 52 N. C. 446 (78 Am. Dec. 248, especially note 6); 12 Cyc. 488. “Upon the trial of an indictment for larceny, if the circumstantial evidence satisfies the jury of the guilt of the prisoner, he may be- convicted, though the prosecutor is unable to swear that he has lost the thing charged to have been stolen.” The dictum of Lord Hale (2 Hale, 290), that a man should not be convicted of murder or manslaughter on circumstantial evidence alone, unless the body be found, is a rule of prudence, not of law. Reg. v. Burton, 6 Cox, C. C. 293, 24 Eng. L. & Eq. 551; Reg. v. Mockford, 11 Cox, C. C. 16; State v. Davidson, 30 Vt. 377 (73 Am. D. 312). Of course the circumstantial evidence should be so conclusive as to exclude every reasonable hypothesis other than that a crime has been committed.

Exceptions are taken to rulings of the court in allowing proof that the defendant had stored several other bales of cotton in the warehouse, and had sold them in the name of W. M. Moore. It*is true that the evidence may have tended to establish other larcenies on the part of the defendant, but this does not necessarily render the testimony incompetent or irrelevant. As a general rule, in the jprosecution of a particular crime, evidence tending to show that the defendant has committed other crimes is not admissible; and this is always true if the facts proved do not of themselves tend to illustrate the transaction in issue, or to establish some necessary ingredient of the particular ofíense under investigation. But where the testimony has a distinct relevancy to the case on trial, it is not inadmissible merely because it may also tend to show the defendant’s connection with some other criminal transaction. The evidence was relevant in the present case. Cawthon v. State, 119 Ga. 409 (46 S. E. 897); Farmer v. State, 100 Ga. 41 (28 S. E. 26); 12 Cyc. 406, et seq.

One of the witnesses, in telling of the bale of "sweepings,” which was probably substituted for one of Carter & Patterson’s bales of cotton which they had sent to the compress at Albany, in connection with his testimony describing the condition of the sample taken from the bale of "sweepings,” incidentally referred to the receipt of a letter in connection therewith in which it was said that this substituted bale was not worth over three cents a pound. This whole testimony, including the statement as to the contents of the letter, was objected to, and the overruling of the objection constitutes one of the assignments of error in the- motion for a new trial. The long-established rule is that where objection is taken to testimony in bulk, if any part of it is admissible as against the objection made, the exception is not well taken. In the present instance, however, since the substitution of the sweepings, and not their value, was the only thing material or of any probative value, any slight or technical error in the admission of the statement made in the letter, that the cotton was not worth but three cents a pound, would not work a reversal. There were a few other similar immaterial errors in the admission of testimony, but none of them are of sufficient importance to justify a reversal.

The remaining ground of the motion for a new trial complains of the fact that the trial judge conducted the examination of the State’s witnesses. It is true, as *we find from the record, that during the progress of the trial the judge asked a great many questions; and this is a practice concerning which this court has freely expressed its lack of approval on several previous occasions. See Sharpton v. State, 1 Ga. App. 542 (57 S. E. 929); Taylor v. State, 2 Ga. App. 723 (59 S. E. 12); Dicks v. State, 2 Ga. App. 192 (58 S. E. 335); Ford v. State, 2 Ga. App. 834 (59 S. E. 88). In the present instance, the examination of the witness by the trial judge was neither so extended nor so pointed as in the cases cited. Where the assignment of error is general, as it is in this case, and no particular language or question of the judge is specifically pointed out as being in violation of our code section prohibiting the . trial judge from expressing any opinion as to what has or has not been proved, the court looks only to the assignment as an entirety, to see whether the examination has been conducted in such manner as substantially to prejudice the rights of the accused and to render the trial unfair in the legal sense of the word. Thus viewing the examination of the witnesses as made by the judge in the case at bar, we can not find that the defendant’s interests were prejudiced; indeed, if the questions asked by the judge, when taken in connection with the context, are capable of conveying any intimation as to the state of his mind regarding the case, they convey rather the impression that the judge was doubtful of the sufficiency of the State’s case, and was really trying to see whether the State’s witnesses in fact knew all they were attempting to testify about. We do not think it can be legitimately said that the court’s conduct in this respect in any wise operated to the injury of the defendant. However, it is unnecessary for us to repeat what we have so often said before, as to the advisability of our trial judges leaving to counsel, especially in cases so ,ably represented on both sides as the one at bar, the examination of witnesses, especially as to all material or contested issues in the case. We have never meant to say that the trial judge should be a mere figurehead; that he might not ask casual questions for any incidental purpose, provided that he take care and caution so to frame and time his question that the jury could not be misled into believing that the judge was either crediting or discrediting the witnesses, or that he thought that some particular fact was especially material or immaterial.

, After a careful survey of the record we are of the opinion that the defendant’s guilt was fully shown, and that no material error prejudicial to him has been committed. The judgment refusing him a new trial is therefore Affirmed.


text:
    989.
    White v. The State.
    Accusation of selling mortgaged property, from city court of Dublin. Judge Burch. January 13, 1908.
    Submitted March 10,
    Decided March 16, 1908.

      K. J. Eawldns, for plaintiff in error.
   Hill, C. J.

Where the prosecution relies exclusively upon circumstantial evidence for a conviction, it is the duty of the trial judge, whether so requested or not, to instruct the jury on the rule of law applicable to such evidence, as laid down in section 984 of the Penal Code. Riley v. State, 1 Ga. App. 651 (57 S. E. 1031); McElroy v. State, 125 Ga. 37 (53 S. E. 759). Judgment reversed.


text:
    996.
    Brown v. The State.
    Indictment for selling liquor, from Macon superior court— Judge Littlejohn. January 10, 1908.
    Submitted March 10,
    Decided March 16, 1908.

      Tlixon & Greer, James M. duPree, for plaintiff in error.

      Frank A. Hooper, solicitor-general, contra.
   Powell, J.

This ease is controlled by Plummer’s case, 1 Ga. App. 507 (57 S. E. 969), and Tompkins’ case, 2 Ga. App. 639 (58 S. E. 1011).

Judgment affirmed.


author: Russell, J. Powell, J.,

text:
    1015.
    SCOTT v. THE STATE.
    1. This ease is controlled by the decision of this court in Rouse v. State, 2 Ga. App. 184 (4), (5), (58 S. E. 416). It is error for the presiding judge to argumentatively stress the contentions of either of the parties. This error is aggravated if like reference is not made to the contentions of the opposite party, especially if the attention of the court has been called to the omission. A summary of all the evidence favorable to the State, in a criminal case, and the omission of a like statement of the evidence in behalf of the accused, is unfair to the latter, and is reversible error.
    2. The remaining exceptions are without merit and, except as above indicated, the trial was free from error.
    Accusation of assault and batteiw, from city court of Bainbridge —Judge Harrell. January 22, 1908.
    Submitted March 11,
    Decided March 16, 1908.

      B. G. Hartsfield, for plaintiff in error.

      M. H. O'Neal, solicitor, contra.
   Russell, J.

The trial in the court below seems to have been, in the main, free from error; and for that reason we shall not consider the exceptions which we do not deem to be meritorious. One error in the charge, however, under the' provisions of the Civil Code, §4334, leaves us no discretion, and demands a new trial. The plaintiff in error complains that the court erred in its charge to the jury by summing up and. stressing the circumstances insisted on by the State, tending to prove the guilt of the defendant, and the lack of sufficient provocation by the use of opprobrious words, without a corresponding statement of the circumstances brought out by defendant and insisted on for his defense, tending to show sufficient provocation; especially in view of the fact that his counsel, before the jury retired, requested the court to supply the omission and charge the jury as to his contentions.

Upon consideration of the charge, we are satisfied that this case falls clearly within the ruling in Rouse v. State, 2 Ga. App. 184 (4), (6), (58 S. E. 416). The court charged the jurjr as follows : “In the case at bar the State insists that the defendant is guilty of the charge. The State insists, that the prosecutor, John O’Donnell, was in a saloon on Water street, and that the defendant, W. H. Scott, in company with policeman Book, came into the saloon, and Book arrested some one, and that the only words spoken by the prosecutor, John O’Donnell, were, 'I wonder why they have arrested that man;’ the prosecutor, at the time, stating, 'líe has done nothing to be arrested for; I presume they arrested him for the $1.95;’ and that-Scott became offended and asked the prosecutor if he meant to insinuate that he would arrest a man just for the costs. The State insists that the prosecutor stated to Scott, who was a policeman in uniform, that he did not intend the remarks for him, but the prosecutor said it was the general talk about the town that officers were making arrests just for the costs. The State insists that the prosecutor told Scott that he intended no reflection on him, that the words used were not intended for him. The State insists that policeman Scott became enraged and knocked the prosecutor, O’Donnell, to the floor, bruising him severely on the nose and face. The State insists that the defendant, W. H. Scott, is a young man, vigorous and strong, and that the prosecutor, John O’Donnell, is feeble and about sixty-two years old. The State insists that the prosecutor, at the time he received the blow, was making no effort of any kind to do violence to the defendant.” After thus presenting all of the contentions of the State, the court said nothing as to the defendant’s contentions, except to instruct the jury that “the defendant has a right to offer in evidence any opprobrious words or abusive language offered by the prosecutor as a defense. They may or may not have justified the battery; so you-would look to the evidence to see what opprobrious words were used, if any. You will also look to the testimony to see what battery, if any, was inflicted upon the prosecutor.” The extract from the charge of the court, that “if the jury believe that the only words used by the prosecutor in this case were ‘I wonder why they arrested that man/ and that they were not used to or of Scott, and that this was all that was said by the prosecutor, and the defendant knocked him down to the floor and bruised him in the manner testified to, the defendant would not be justifiable,” may have tended to further impress the jury with the superior credibility of the testimony in behalf of the State, in view of the fact that only the testimony upon that subject, and law applicable to it, were concretely presented. As an abstract proposition, the portion of the charge last, quoted was a correct statement of law; and the court did not err in applying the law to the facts. The error consisted in not presenting both sides with equal fullness to the jury. If the judge thought proper to charge the jury as he did upon this subject, he should also have told them that if they believed, from the evidence, that other words or additional words were used by the prosecutor to the defendant, and if such words were, under the circumstances, opprobrious, and were used without provocation, then it would be for the jury to say whether the battery, if one had been proved, was justifiable. As there was evidence to the contrary of that presented by the judge in his charge, the law should have been applied to both phases of the contention, with equal fullness and exact impartiality. It is quite apparent to us that the presentation of the State’s theory in this case, without like presentation or instruction as to the testimony in behalf of the defendant, was unfair to the defendant, though not intentionally so; and for that reason a new trial should be granted. Judgment reversed.

Powell, J.,

dissenting. That instructions to the jury of the nature indicated in the excerpt from the charge quoted in the opinion in chief are not to be commended; that the judge should not state or summarize the individual or particular facts appearing in the proof of either party, even though he does not present them as' facts proved but as contentions; that, if challenged by an appropriate specific assignment of error, certain portions of the charge.in this ease could not be successfully defended, I do not gainsay. That the defendant is guilty; that even under his own testimony he would probably have been convicted; that another trial will reach the same result as the one already had, none of us seriousty doubt. That the grounds of the motion for a new trial in which the attack on the charge is made do not themselves contain that element of completeness, which, under repeated rulings of the Supreme Court, is a prerequisite to their consideration here, can not be questioned. I agree with my brethren of the bench that these precedents have established a rule too technical, more technical, indeed, than the law ever intended. However, I do not recognize any right or ’power on our part to break away from or to reverse these precedents; and if I ever intentionally consent to disregard them, it will be to keep some defendant, whom we believe to be innocent, from suffering an unjust sentence, not to give one whose guilt admits of little doubt another chance to escape condign punishment. The portion of the charge upon which the majority of the court rests the judgment of reversal is nowhere set forth, mentioned, or pointed out in the motion for new trial, but has been extracted by the patience of my brother Bussell from the entire charge which appears in the record. The ground of the motion for a new trial in which the question is sought to be raised is but a scattering fusillade directed against the charge as a whole. The exception as taken is that the charge summarizes and stresses the contentions of the State without presenting a corresponding summary of the defendant’s contentions. By what portions of the charge the contentions of the State are unduly stressed is not asserted; what contentions of the defendant were neglected is not stated. The only contention of the- accused which grew out of the evidence .was that the prosecutor had provoked the difficulty by the use of opprobrious words. The court charged fairly, fully, and correctly as to this. He ought not to have particularized the individual contentions of facts made by either party as to the mere details of the quarrel and difficulty under investigation- By going through the entire charge we find that the judge did particularize some of the individual facts proved bj the State; this, I am frank to concede, he ought not to have done; but the exception is not broad enough to raise the question. Bead as a whole, especially in connection with the brief of the evidence, the charge is very much fairer to the defendant than the isolated excerpt quoted in the majority opinion seems to indicate. For these reasons I dissent.


text:
    1021.
    Walker v. State.
    Accusation of larceny, from city .court of Griffin — Judge Hammond. January 13, 1908.
    Argued March 11,
    Decided March 16, 1908.
    Andrew Walker was convicted on an accusation charging him with the larceny of two hens, the property of B. N. Barrow. Barrow testified, that the hens were taken from his yard, and he found in his garden, near where they were taken, one person’s tracks, which went in the direction of the road; and, where these tracks led out of the garden, he found tracks of two persons, which led towards town. He went to town and got a-policeman, who went with him to the house of Andrew Walker’s mother, about a mile and a half from where the hens were taken, and there got the hens.' Andrew Walker did not live there. He lived in town, and worked at a place about 400 or 500 yards from the house of the witness, between the house of the witness and town. Alex Harris was convicted of - stealing the samé hens. The mother of the accused testified, that the two hens, were brought to her house at night, in a sack, by Alex Harris, who wanted to sell them to her. Andrew Walker came with him. She told Alex she did not want to buy them, and he asked her to let them stay there until he came-back for them. She told him they could stay; and he did not come back. Andrew Walker did not' say anything about the hens. He and Alex remained a short time and left together. The accused made the following statement to the jury: I started home from my work place the night the chickens were stolen, and met Alex Harris. He offered to sell me some chickens. I told him I did not want to buy, that I had no money. ^ He asked me if my mother wanted some. I told him I did not know, but that he could see. I went with him to my mother’s, stopped in with him a short time, left, and went home. I had nothing to do with the chickens in any way.
    The accused excepted to the overruling of his motion for a new trial, which was on the ground, among others, that the verdict was without evidence to support it.

      Thomas W. Thurman, for plaintiff in error.

      William H. Beck, solicitor, contra.
   Powell, J.

The evidence is not sufficient to connect the defendant with the larceny. Judgment reversed.


text:
    1026.
    MOBLEY v. THE STATE.
    In prosecutions under the act of 1903 (Acts 1903, p. 90) which makes penal certain fraudulent practices in connection with contracts of labor, the State must allege and prove that the defendant, without good and sufficient cause, failed to perform his contract or repay the advances obtained.
    Accusation of misdemeanor, from city court of Fitzgerald— Judge Jay. February 14, 1908.
    Submitted March 11,
    Decided March 16, 1908.
    The accusation charged Davis Mobley with “the offense of misdemeanor, for that the said Davis Mobley, . . on the 7th day of September, 1907, . . did unlawfully, fraudulently, and with intent to cheat and defraud B. Y. Handley, contract with said B. V. Handley to work and labor for the said B. Y. Handley as a farm laborer, the said contract being as follows: that the said Davis Mobley should pick cotton for the said B. Y. Handley at sixty-five cents per one hundred pounds, beginning the first of September, 1907, and to work continuousty until he, the said Davis Mobley,paid by said work the full amount he was due the said B. Y. Handley; the said Davis Mobley then and there contracting with the said B. Y. Handley with the intent to procure money from the said B. Y. Handley and not to perform the services contracted for as aforesaid, and did, on the 7th day of September, 1907, after having so contracted, procure from the said B. Y. Handley one dollar and sixty-two cents, with the intent not to perform the said services, and did not perform the services contracted for; to the loss and damage of the said B. Y. Handley in the sum of one dollar and sixty-two cents; whereby the said Davis Mobley did then and there cheat and defraud said B. Y. Handley in the sum aforesaid, contrary to the laws of said State,” etc.
    B. Y. Handley testified: The defendant “had been working for-me all the year, and on December 17, 1907, which was Saturday,he wanted money. He owed me quite a lot of money, and I owed him $3.38 for some work he had done that week. He wanted $5, and I didn’t want to let him have it. I -had been paying him 60 cents per 100 pounds for picking cotton. That evening we made a new trade and I agreed to give him 65 cents per 100 pounds for all the cotton he picked. He agreed to pick, beginning on the 9th day of September, and to pick continuously until he should have paid me the amount I was then letting him have in excess of the amount I owed him for work done that week, and also other indebtedness he was due me. I let him have $5, which was $1.62 more than I owed him for thetwork already done that week after we traded as I have just stated. He agreed to pay it back first, piicking cotton, and to pick continuously until it was paid, and also until all he owed me was paid. I let him have the money, i. e. the $1.62, because I wanted him" to pick the cotton as he then promised. I let him have the $1.62 because I wanted to get my cotton picked, and I also had hope of getting him to work out the back indebtedness. The $1.62 was paid in Ben Hill county, Georgia, and the contract was made therein. He did not do any of the work nor offer to pay me the money I let him have, and I lost the $1.62.” The defendant stated to the jury: “I owed Mr. Handley, and I gave him all my furniture, and he credited my account with that. I would have paid Mr. Handley all I owed him, if he had given me time.”
    After verdict of guilty and before sentence, the defendant made a motion in arrest of judgment, on the ground that “there was no offense alleged in said accusation, it not being alleged therein that the said Davis Mobley had, without good or sufficient cause, failed and refused to carry out his contract.” To the overruling of this motion he excepted. He excepted also to the refusal of his motion for a new trial.

      McDonald & Quincey, for plaintiff in error.

      O. H. JSllcins, solicitor, contra.
   Powell, J.

The proposition stated in the headnote .is supported by the following decisions, and perhaps others: Mason v. Terrell, 3 Ga. App. 348 (60 S. E. 4); Glenn v. State, 123 Ga. 585 (51 S. E. 605); Johnson v. State, 125 Ga. 243 (3), (54 S. E. 184). Prom this it follows that the motion in arrest of judgment should have been sustained. If the fact be properly alleged, it may be shown inferentially or circumstantially, but it must be shown. Judgment reversed.


text:
    730.
    SOUTHERN RAILWAY COMPANY v. RUTLEDGE.
    1. As an employee of a railway company does not, in this State, assume risks due to the negligence of his fellow-servants, it is his duty to obey a superior who is the alter ego of the corporation as to the work in. hand, unless by such obedience the servant should expose himself to manifest hazard, or place himself in a plainly dangerous position.
    2. Loyalty in the service of his employer, and forgetfulness of self, where both plainly appear, are not to be imputed as faults, to a servant engaged in carrying out the orders of the master, except where it also appears that the servant was unnecessarily rash or reckless. Whether a servant’s seeming negligence is real and he should be held chargeable therewith, or whether it be due to the absorbing nature of his duties, is in every case a question of fact for the jury. Some risk must necessarily be taken in obedience to orders; and mere exposure to an extra hazard, under direct orders of a superior, will not defeat a recovery. It- is the duty of the employer to direct and protect; the duty of the servant is obedience and performance.
    Action for damages, from city court of Atlanta — Judge Calhoun. July 13, 1907.
    Argued December 1, 1907.
    Decided March 30, 1908.

      Dorsey, Brewster, Rowell & Reyman, for plaintiff in error.

      Riñes & Jordan, contra.
   Russell, J.

The defendant in error brought an action for damages against the Southern Railway Company for injuries alleged to have been sustained by reason of the fall of a telegraph post upon his body. It seems that several gangs of the defendant railway company’s employees were engaged in repairing damages to telegraph lines, which had been caused by the storm and sleet. According to the evidence for the defendant, the pláintiff, without any necessity therefor, went under a telegraph post, which was being sawed down by other employees of the defendant, and was, perhaps, the cause of his own injury. On the other hand, according to the testimony for the plaintiff, he was directed by his immediate superior, the foreman of the bridge gang, under whom he labored and to whose orders he was subject, to get two shovels which were near the telegraph pole in question, and, while carrying out the orders of his superior, received the injury of which he complains. The testimony for- the plaintiff further shows, that the post was supported and was being held by guy ropes, and that the purpose of those having the work in charge was to drop the lower end of this pole, when it was sawed off, into a hole in the ground, which had been dug for that purpose, and not to allow it to fall at all; that this had been done with several other posts, and that there was no reason apparent-why it could not be done with this post, and, therefore, nothing to put the plaintiff on notice of any hazard to be assumed by him in attempting to carry out the order of his boss in getting the shovels:

The evidence presented a conflict upon these two points: first, whether the servant was ordered into a place of danger by a vice-principal of the company; and secondly, whether there was anything to put the servant on notice of such impending danger as would have authorized him to disobey. It is clear that if the evidence answered the first of these two questions in the negative, the plaintiff would not be entitled to recover; but if the evidence authorized an affirmative answer to the first of these questions, and if the second should be answered in the negative, the plaintiff was entitled to the verdict rendered in his favor. The plaintiff testified, that he was told by Mr. Butler to go back to the post which was being sawed, to get two shovels to dig a hole to put up another post, arid that by the time he got back there and started to get the shovels, the post fell on him, and the post and wires mashed him down, injuring his ankle. Butler was the foreman of the gang to which the plaintiff belonged; he employed and discharged-the members of the gang. As to his knowledge of the danger, the plaintiff testified that he knew that they were cutting the posts off at the bottom, so as to drop them into a hole and set them up again. He knew that the hands were working on the post at that time, and that the shovels were under the post they were working upon, and that the posts were fairly new. He also testified, however, that while the pole was leaning over, the wires held it some; it was being held by men with ropes, and the men around the pole also were holding it, safely as it appeared to him. While, of course, the plaintiff assumed the risk of the breaking of any of the posts from the effect of the heavy sleet upon them, it would seem from the foregoing testimony that he would have had the right to presume that the post would not be allowed to fall upon any one as a result of the sawing. According to his testimony, the pole was not only secured bj ropes and supported by the wires, but several men were around, holding it. It appears that some one or more of the men must have turned the post loose, and a contingency which this employee could not have foreseen occurred.

It was the duty of the defendant in error, as an employee, to obey the foreman, Butler, and do whatever he was told in regard to the work in hand, short of exposing himself to a manifest hazard, or of placing himself in a plainly dangerous position. We do not think that the circumstances which surrounded him were such as to indicate that he was exposing himself to any extraordinary peril in obeying the order; and for that reason, if the jury believed his testimony, his recovery could not be defeated by reason of the fact that his injury was occasioned by his exposing himself to danger. It of course devolved upon him to show that he was without fault, or he was not entitled to recover. We do not think that the obedience of this servant to his superior, who was the alter ego of the corporation as to the work in hand (in view of the fact that therff was nothing in the circumstances which surrounded him to indicate that he assumed any extraordinary risk), should be either imputed to the plaintiff as a fault, or held to be a failure to exercise ordinary care.

Some point is made that the plaintiff testified, on cross-examination, that he went hurriedly for the shovels, without making a. final survey of the condition of the post, and without inquiring ■hcfw nearly it was sawed in two. We attach but little importance to this, in view of the other testimony in the case, and especially in view of the fact that a diligent, obedient' servant should not be punished for his very diligence. The jury had the right to presume that the very absorption of this plaintiff in the duty of obeying promptly and without question the order of his superior may have withdrawn him from an overweening regard for his own safety. Some risks must necessarily be taken in obedience to orders, and the courts of this State have frequently held that mere exposure to an extra hazard under direct orders of a superior will not defeat recovery. It is the duty of the employer to direct and protect; the duty of the servant is obedience and performance. And while a servant is not required to expose himself to a known peril, sound public policy encourages (what the success of every master’s enterprise requires) a zealous, and not a halting performance. As the plaintiff was the employee of a railway company, and did not assume any risks due to the negligence of his fellow-servants, we think that the verdict was authorized by the evidence, and that the court did not err in overruling the motion for new trial. * Judgment affirmed.


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    756.
    DAVENPORT v. PUETT et al.

    An appeal in a justice’s court, from tlie judgment of the justice to a- jury-in the court,, can not be dismissed, unless some requirement of the statute allowing the appeal has not been complied with. The justice has no authority to dismiss the appeal because of a failure to prosecute or sustain the appeal. The ease, but not the appeal, should be dismissed.
    Certiorari, from Forsyth superior court — Judge Gober. August 37, 1907.
    Argued December 16, 1907.
    Decided March 30, 1908.

      H. L. Patterson, for plaintiff. BrooTce & Henderson, contra..
   Hill, C. J.

The questions in this ease arise on a motion to distribute a fund in a justice’s court. Davenport and Puett liad brought the money into court on process of garnishment, and there were three claimants of the fund, — Davenport, Puett, and Fowler, ■ — all of whom held executions against the defendant. These fi. fas. were a part of the motion to distribute, and it appeared .that the oldest was that in favor of Fowler, and the next in-date’ihat in favor of Puett. Davenport filed a caveat to the fi. fa. held by Puett, on various grounds, and had written consent to make an oral attack on the fi. fa. in favor of Fowler, on the ground of dormanc3. The justice found against the caveat to Puett’s fi. fa., and awarded the fund to the respective fi. fas. according to their priority in daté. From this judgment Davenport entered an appeal to a jury in the justice’s court. On the trial of the appeal, the justice held that Davenport was entitled to open and conclude. Davenport thereupon offered his executions, which, on objection, were ruled out by the justice, on the ground that as Davenport had made an attack on the fi. fa. in favor of Puett, he must introduce Puett’s fi. fa., before the fi. fás. in his favor would be relevant. Davenport refused to introduce the fi. fa. in favor of Puett; whereupon the justice, on motion of Puett, dismissed Davenport’s appeal. This judgment was, on certiorari, affirmed by the superior court, and the certiorari overruled. The ease comes to this court on exceptions to the judgment overruling the certiorari.

An appeal to a jury in a justice’s court is a- de novo investigation. Except for defects in the appeal proceedings,- — -such as defects in the time of entering the appeal, in the- bond, etc., — the appeal can not be dismissed. If the appellant does not appear, to prosecute his appeal, or for any legal reason fails to make out his case, the case can be dismissed, but not the appeal. Rousch v. Green, 2 Ga. App. 112 (58 S. E. 313). The burden was on Davenport to make out his ease. All the -executions claiming the fund were a part of the record; and if it appeared that the executions in favor of Puett and Fowler, or either, were prior in date to that in his favor, it was necessary for Davenport to make a successful attack upon these executions to overcome the apparent priority. This was the issue before the jury. We do not think it was necessary to formally introduce in evidence the executions, as they were already before the court as a part of the motion to ‘distribute. But even if necessary for the appellant to do so, he could nevertheless attack their validity, for any of the reasons set out in his ca-veat. If he failed to sustain his attack, he failed in his ease, and the verdict should have been against him. But in no event should his appeal have been dismissed because of a failure to make out his case. These errors of the justice should have been corrected on certiorari, and the case remanded and ordered reinstated and submitted to the jury. The judgment overruling the certiorari is

Reversed.


text:
    774.
    Barge et al. v. Irwin.
    Action for damages, from city court of Sandersville — Judge Jordan. August 14, 1907.
    Submitted December 17, 1907.
    Decided March 30, 1908.

      W. B. .Armisiead, for plaintiff in error.

      T. W. Ear divide, A. R. Wright, contra.
   Russell, J.

A verdict for the plaintiff was authorized, under the law and the evidence; but the amount of the jury’s finding was greater than authorized by the evidence, there being no evidence to authorize 'the recovery of exemplary damages. It is, therefore, ordered that the judgment be affirmed, on condition that the defendant in error reduce the judgment in her favor to the sum of $7.32, the actual damages shown. Upon failure to do this the judgment refusing a new trial is

Reversed.


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    802.
    HAWLEY DOWN DRAFT FURNACE COMPANY v. VAN WINKLE GIN AND MACHINE WORKS.
    1. While in a contract of sale there can be no coexistence of express and implied warranties on the same subject, since the one, ipso facto, excludes the other, still this exclusion does not necessarily extend to every feature of the contract. When a known, definitely described article is purchased, the very terms of description used are, generally speaking, so far express warranties as to the kind of article to be supplied that no implied warranty of its fitness to any particular use intended by the buyer arises, though the seller may be cognizant of the particular use contemplated; however, the express warranties contained in ordinary descriptive words of make, size, grade, quantity, etc., are not usually so general in their relation to the subject-matter of the sale as to exclude an implied warranty that the article is merchantable and free from such inherent defects as render it worthless or not reasonably suited to the purposes for which ordinary articles covered by the descriptive terms employed are designed and intended.
    2. A verdict will not be set aside as unsupported by the evidence when the amount of it is within the range covered by the testimony, though it may not correspond with the contentions of either party.
    Complaint, from city court of Atlanta — Judge Reid. September 21, 1907.
    Submitted January 20,
    Decided March 30, 1908.
    The plaintiff sued for the price of two Hawle.y Down Draft furnaces which" it had contracted to install and did install at the defendant’s oil mill in Gulfport, Miss. The agreement was silent as to warranties, except so far as the specific designation of the particular make, size, style, etc., is to be regarded as a warranty. The defendant admitted contracting for the furnaces and that they were installed, and pleaded a failure of consideration, for that the furnaces were wholly worthless and did not accomplish the purposes for which they were intended; “that said furnace is an attachment to be attached to a boiler for the purpose of consumíag less fuel in making steam, entirely consuming the coal or other fuel used, and also consuming the smoke caused by the combustion; that said furnaces failed to accomplish either of these objects, and therefore were wholly worthless.” The jury rendered a small verdict in favor of the plaintiff, and it excepts. The further facts necessary to an understanding of the case appear'in the course of the opinion.

      Tye, Peeples, Bi’yan & Jordan, for plaintiff.

      Wimbish, Watkins & Ellis, Frampton E. Ellis, for defendant.
   Powell, J.

(After stating the foregoing facts.)

An express warranty in the sale of goods excludes all implied warranties on the same subject. Johnson v. Latimer, 71 Ga. 470. The rule is sometimes stated in language broad enough to convey the idea that if there is an express warranty as to any feature of the sale, all implied warranties are to be excluded; but we do not think there has ever been any deliberate intention to extend the rule this far; because unless the express and the implied warranties relate to the same thing, there is no reason in law or in logic why one should exclude the other. For example, though the seller of a horse expressly warrants that his title to it is perfect, the implied warranty that the animal is free from latent undisclosed physical unsoundness is not excluded; the two warranties here relate to different subjects, and therefore neither affects the other. “When a known, described, and definite article is ordered of a manufacturer, although it be stated by the purchaser that it is required for a particular purpose, yet if 'the known, described, and definite thing, which is of the kind and quality called for by the order, be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” Fay & Eagan Co. v. Dudley, 129 Ga. 314 (58 S. E. 826); Seitz v. Brewers’ Co., 141 U. S. 510 (12 Sup. Ct. 46, 35 L. ed. 837); DeLoach v. Tutweiler, 2 Ga. App. 493 (58 S. E. 790); Crankshaw v. Schweizer, 1 Ga. App. 363 (58 S. E. 222). There is absolutely no conflict between this statement and the principle announced in the Civil Code, §3555, which provides that in sales without express warranty, the seller in all eases, unless the contract itself expressly or from the nature of the transaction makes an exception, is by construction of law held to warrant that the article sold “is merchantable and reasonably suited to the use intended;” for the expression “use intended,”' here found, is not equivalent in import to the words “use intended by the buyer.” To make the particular plans and purposes of the purchaser a part of the warranty, they must be a part of the contract. For example, a sportsman intending to shoot wild ducks orders cartridges of standard make and specified load; the seller, although he knows the use intended, does not make the individual theories of the sportsman as to the particular form of shell or amount of load he shall use a part of the contract of sale, but he does warrant that the cartridges he delivers are merchantable and reasonably suited for the purpose for which cartridges of that style and load are manufactured and sold. If the cartridges delivered are improperly manufactured, or the powder is defective or the priming imperfect, there is a breach of the implied warranty; but if no defects of this character exist and the cartridges are up to the standard of that make, there is no breach of warranty even though they be wholly unsuited to the killing of wild ducks. This distinction, which in the very nature of things must exist, no matter how much it may have been obscured by the maze of precedents in which notice of it may have been neglected, is clearly recognized in the leading case of Seitz v. Brewers’ Refrigerating Co., supra. In that case it appears that Seitz desired to maintain in one of his rooms, in which beer was stored, a constant temperature of 40° Fahrenheit; the refrigerating company manufactured machines designed for the purpose of reducing the temperature of closed rooms; Seitz ordered one of this company’s No. 2 machines, intending to use it instead of ice, to obtain the desired low temperature in his beer room, and the company knew of the purpose for which he intended to use it; the machine proved inadequate for this purpose, and Seitz attempted to avoid paying for it, and to set up an implied warranty of fitness for the use he intended, and a breach thereof. The court, through Mr. Chief Justice Fuller, said: .“It is not denied that the machine was constructed for refrigerating purposes, and that it worked and operated as a refrigerating machine should; but it is said that it did not so refrigerate as to reduce the temperature of the brewery to 40° Fahrenheit, or to a temperature which would enable defendant to dispense with the purchase of ice. The rule invoked is, that where a manufacturer contracts to supply an article which he manufactures, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment of the manufacturer, the law implies a promise or undertaking on his part that the article so manufactured and sold by him for a specific purpose, and to be used in a particular way, is reasonably fit and proper for the purpose for which it is known to be required; but it is also the rule, as expressed in the text-books and sustained by authority, that where a known, described, and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the known, described, and definite thing' be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Benjamin on Sales, §657; Addison on Contracts, Book II, e. vii, p. *977; Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288; Dist. of Columbia v. Clephane, 110 U. S. 212 (28 L. ed. 122); Kellogg Bridge Co. v. Hamilton, 110 U. S. 108 (3 Sup. Ct. 537, 28 L. ed. 86); Hoe v. Sanborn, 21 N. Y. 552 (78 Am. D. 163); Deming v. Foster, 42 N. H. 165. In the case at bar the machine purchased was specifically designated in the contract, and the machine so designated was delivered, put up and put in operation in the brewery. The only implication in regard to it was that it would perform the work the described machine was made to do, and it is not contended that there was any failure in such performance. This is not the case of an alleged defect in the process of manufacture known to the vendor but not to the purchaser, nor of presumptive and justifiable reliance by the buyer on the judgment of the vendor rather than his own, hut of the purchase of a specific article, manufactured for a particular use, but in respect to the operation of which, in producing a desired result under particular circumstances, the buyer found himself disappointed.” The difference, but also the harmony, existing between the two principles so often confused is thus perfectly established, and it may be seen that the quality of natural justice existing in each principle may be extended to its fullest scope without the slightest infringement upon the other.

In the case sub judice the defendant pleaded not merely that the furnaces were not reasonably suited to the use he intended, the .•accomplishment of a particular object in his individual plant, but that they were not reasonably suited to the uses for which they were manufactured and sold, namely the consuming of less fuel in making steam and the consuming of all of the fuel used, as well as of the smoke caused by the combustion. The plaintiff did not dispute that these were the objects for which the machines were designed and intended; the defendant did not contend that furnaces of the type ordered, if they had been up to the standard of the plaintiff’s manufacture, could not have accomplished these results at his plant; the burden of his complaint is that the plaintiff, instead of installing new furnaces of ordinary efficiency, took some second-hand furnaces, which, after having been subjected to use for -about eighteen months, had been stored in a warehouse for a time, and repainted them so as to give them the appearance of newness, and put these in his plant, and that they were not capable of doing the things usually done by such furnaces, and were wholly worthless; that the failure in these respects at the defendant’s plant was not due to the inadaptability of these machines to peculiar conditions prevailing there, but to their inherent deficiencies. Along this line the battle was fought. The court, after stating to the jury that the whole case turned upon the special issue made by the defendant’s plea that the purpose of the machine was to save fuel, burn smoke, etc., and that they were worthless because incapable of performing this purpose, succinctly referred the question to the jury, thus: “If you believe they were reasonabty suited for the use intended, the guaranty put upon the plaintiff by the law would be satisfied, and the defendant would be under the legal duty to pay for them. If you believe they were valueless and not reasonably suited to the use intended, the defendant would be released from its obligation to pay under- the contract, and would not be liable in this suit.” The court also explained to the jury that if the failure of the furnaces resulted from conditions prevailing at the defendant’s plant, and not from inherent defects, the plaintiff would be entitled to fecover. The furnace company not only assigns error upon the charge quoted above, but says that the court should have charged, at its counsel’s request (though it is not alleged that the request was in writing, as required by statute; so that nothing except the direct, immediate, and necessary pertinence of the principle to the issue is included in the exception), that “the law of implied warranty does not apply where a specific article of a certain kind is ordered and delivered, except that the seller undertakes that the thing delivered corresponds to the description, and, in fact, is an article of the species, kind, and quality expressed in the contract.”

We hope that what we have said above makes it plain that the court below tried the case upon the proper theory, and that, under, the particular facts, the specific principle which the plaintiff in error says was pretermitted in the charge was not immediately in point. It may be noted that in the present case the general use for which the machines were designed and the particular result de.sired by the buyer were identical; so that there was little or no chance of prejudicing the plaintiff by confusing these two things, which it is frequently necessary to consider separately in order to secure a proper determination of the rights of the parties.

As to the contention that the amount of the verdict is not consistent with any phase of the testimony, see the following cases: Ellis v. U. S. Fert. Co., 64 Ga. 751; Roberts v. Rigden, 81 Ga. 440 (7 S. E. 742); Mullins v. Murphy, 69 Ga. 754; Taylor v. Gilmore, 3 Ga. App. 93 (59 S. E. 325). Judgment affirmed.


text:
    806.
    BRANCH v. JAMES & PEDDY.
    Where a promissory note given for the purchase-money of a mule contained an express stipulation that the seller of the mule “does in no wise guarantee, except in title,” and the only defense set up to a suit on the note was failure of consideration, growing out of the unsoundness of the mule at the time of sale, there was no error in excluding parol testimony, offered in support of the plea, which contradicted the terms of the written contract,- and in directing a verdict for the plaintiff.
    Complaint, from city court of Dublin — Judge Burch. September 10, 1907.
    Submitted January 20,
    Decided March 30, 1908.

      J. S. Adams, for plaintiff in error. W. C. Davis, contra.
   Hill, C. J.

This was a suit on a purchase-money note given for a mule. It is expressly stipulated in the note that “the seller of said stock or other property does in no wise guarantee, except in title.” The defendant filed a plea of failure of consideration, and attempted to set up, in support of the plea, a parol agreement between him and the seller of the mule, which was in contradiction of the express and unambiguous provision in his written contract. The court excluded this testimony, and, there being no other defense made, directed a verdict for the plaintiff for the full amount of the note.

We think this direction by the court was proper. The contract contains no express covenant of warranty, and the defect in the mule, which was attempted to be shown, was a patent defect, which was not covered by the implied warranty. Besides, any implied warranty as to the soundness of the mule is expressly provided against by the contract. While the word “guarantee,” in the note, when considered with reference to its technical legal meaning, is not an apt word in the connection in which'it is used, the context shows that it is nsed as synonymous with the word “warrant.” Indeed, in popular parlance, the words “guaranty” and “warranty” are used interchangeably, without reference to any difference in meaning. While the term “warranty” is applied to a contract as to title, quality, or quantity of something sold, and the word “guaranty” is held to be a contract by which one person is bound to another for the fulfillment of a promise or engagement of a third party, the two words are derivatives from the same root, and are identical in significance and effect. It is clear that in the present case the word “guarantee” is used in the sense of a warranty, and that the seller of the mule limited his warranty to the title, expressly excluding any warranty of soundness; and such stipulation is plainly expressed and agreed to by the written contract of the defendant. There was no error, therefore, in the judgment of the court in excluding testimony which contradicted by parol the terms and conditions of the written contract, .and in directing a verdict for the plaintiff. McNeel v. Smith, 106 Ga. 215; Jackson v. Langston, 61 Ga. 392. Judgment affirmed.


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    817.
    Broxton Artificial Stone Works v. Jowers.
   Hill, C. J.

A claim of lien by a materialman, duly recorded, is as follows:

“State of Georgia, Coffee county. The undersigned Broxton Artificial Stone Works, C. A. Tyler, ag^nt, claims a lien upon a certain building or structure erected upon certain premises or real estate of J. J. Jowers, building erected by Woolsey Bros, as contractors, and situated in said county and upon said real estate. Said building or structure may be described as follows: One two-room stone building on Railroad Avenue in the city of Broxton, now occupied by the Broxton Meat Market. Said lien is claimed for material furnished for building said structure. The amount the undersigned claims this lien is $192.00, with a credit of $142.00, leaving a balance of $50.00. And now, within three months since the same was furnished, the undersigned records this lien in the office of the clerk of the superior court of the county where said property is situated as aforesaid pursuant to the said provisions of 2804 of the Civil Code, C. A. Tyler. Sworn to and subscribed before me this the 16th day of July, 1906. Thos. McGovern, N. P. ex. off. J. P.”

Foreclosure of lien, from city court of Douglas — Judge Boan. September 17, 1907.

Submitted January 20,

Decided March 30, 1908.

Philip Newbern, F. Willis Dart, for plaintiff.

O: A. Ward, Lawson Kelly, for defendant.

Held: (1) The premises and real estate upon which the lien was claimed are sufficiently described. (2) The claim of lien is made, by the Broxton Artificial Stone Works, and the words “C. A. Tyler, agent,” contained in the claim of lien, and the signature “C. A. Tyler,” attached to the claim of lien, are surplusage. (3) The claim of lien is a substantial compliance with the statute, and the court erred in excluding it as evidence on the grounds that it did not sufficiently make a claim of lien upon any real estate, and was not signed by the party who claimed the lien. Judgment reversed.


text:
    822.
    South & Lane v. People’s National Bank.
    Appeal, from Troup superior court — Judge Freeman. . September 24, 1907.
    Submitted January 20,
    Decided March 30, 1908.

      E. T. Moon, Isaac Jaclcson, for plaintiff in error.

      W. U. Mooty, contra.
   Hill, C. J.

1. The holder of a negotiable instrument indorsed in blank by the payee is presumed to be such bona fide and for value, and is entitled to sue the maker. Unless the indorsement is denied on oath, it need not be proved. Habersham v. Lehman, 63 Ga. 380; 1 Daniel on Negotiable Instruments, §693; Tiedeman on Commercial Paper, §256.

2. A bill or note indorsed in blank is transferable by delivery, and the indorsement, so long as it continues in blank, makes the bill or note in effect payable to bearer. Possession of. such a negotiable instrument proves property. Chitty on Bills, 253-255; Stirling v. Bender, 7 Ark. 201 (44 Am. D. 539).

3. Where there is conflict in the evidence relating to a plea of non est factum, and the verdict of the jury against the plea is approved by the trial judge, the verdict will not be disturbed. Judgment affirmed.