text:
    15881.
    Wynne & Son v. Paulk.
    Decided September 2, 1925.
    Action for damages; from Irwin superior court—Judge Eve. August 21, 1924.

      A. J. & J. G. McDonald, for plaintiffs.

      Quincey & Bice, Bogers & Bogers, for defendant.
   Stephens, J.

1. One who, to the damage of another, disposes of property upon which the latter possesses a lien, is not liable for such act unless at the time he had actual knowledge of the existence of the lien. DeVaughn v. Harris, 103 Ga. 102 (29 S. E. 613).

2. In a suit by the lienholder against one who it was alleged has wrongfully and to the plaintiff’s damage secreted certain personal property upon which the plaintiff held a mortgage, where it did not appear that the defendant, who had bought the property, had had actual notice of the plaintiff’s lien before the property had been secreted by the defendant and had passed beyond his control, a verdict for the defendant was properly directed.

Judgment affirmed.

Jenloins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    15902, 15904.
    Harper Manufacturing Co. v. William Alsberg & Co. Inc.; and vice versa.

   Stephens, J.

1. This being a suit by the seller against the purchaser to recover an amount alleged as due for goods tendered and refused under a contract of sale, and it appearing from uncontradieted evidence that ■ the time for delivery under the contract of sale had, by mutual agreement between the parties, wherein the purchaser was not defrauded, been postponed to a future date, and that upon the failure of the purchaser to accept delivery upon the deferred delivery date agreed upon, the goods contracted for and not accepted were, after due notice to the purchaser, stored for his benefit, and the correctness of the amount sued for being admitted, a verdict for the plaintiff was properly directed.

2. The purchaser’s contention that, when delivery was due to be made under the terms of the contract as originally executed, he was induced to enter into the agreement to postpone the date of delivery upon a false representation by the seller that the latter at the time had the goods in possession and ready for delivery, is not sustained where the agent of the purchaser, who conducted the negotiations, testified that, at the time he entered into the agreement to postpone the delivery, he had reason to believe that the seller did not have the goods on hand.

Decided September 2, 1925.

Complaint; from city court of Floyd county—Judge Bale. August 25, 1924.

Maddox, Matthews & Owens, for Harper Co.

Willingham, Wright & Covington, contra.

3. The evidence of an agent of the purchaser to the effect that, after the litigation had begun, he visited the place of business of the seller, where it was claimed by the seller that the goods in controversy were being kept in storage for the purchaser’s benefit, and, upon witness’ request to be allowed to inspect the goods, the agent of the seller gave directions to a subordinate to “have these goods fixed up because (witness) is here to look at them,” and kept witness waiting about an hour * before permitting him to see the goods, and that the goods were in bins with fresh paper on' them without any dust thereon, although there was dust on everything else nearby, is insufficient to authorize an inference that the seller had not, before the time of the visit of the witness to the seller’s place of business, placed the goods in storage.

Judgment affirmed on the main hill of exceptions; cross-hill dismissed.

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


text:
    15914.
    Candler v. Dodge County Lumber Co.
    Decided September 2, 1925.
    Action for damages; from Dodge superior court—Judge Graham. July 26, 1924.

      Hal Lawson, J. H. Bolerts, W. M. Clements, for plaintiffs.

      J. H. Milner, W. A. Wooten, for defendants.
   Stephens, J.

1. Since the vendee of land held under a bond for title from the vendor is, as to third persons, to all intents and purposes the true owner of the land, it follows that one who purchases timber from the vendee and removes it from the land is not, in the absence of any contractual relation with the vendor, accountable to the vendor for the value thereof. Pulton County v. Amorous, 89 Ga. 614 (3) (16 S. E. 201); Guin v. Hilton & Dodge Lumber Co., 6 Ga. App. 484 (65 S. E. 330); Colquitt County Land Co. v. Rowell, 30 Ga. App. 738 (119 S. E. 223); Boswell v. Ivie, 31 Ga. App. 807 (122 S. E. 97).

2. In a suit by the vendor against the purchaser of the timber, the petition set forth no cause of action and was properly dismissed upon demurrer.

Judgment affirmed.

Jenlñns, P. J., and Bell, J., concur.


text:
    16109.
    Poole v. Southern Railway Company et al.

   Stephens, J.

1. Where, in a suit against two defendants alleged to be joint tort-feasors, a special demurrer of one of them, upon the grounds of misjoinder of parties and of causes of action, is sustained “with leave to plaintiff to proceed against either defendant,” and the plaintiff thereafter elects to proceed against the other defendant alone, and, after he has so elected, the ease proceeds to trial and results in a nonsuit, he will, by so electing and proceeding to trial, be held to have abandoned the suit as against the first named defendant. An as-* signment of error, in the bill of exceptions by the plaintiff, to the order of the judge sustaining the demurrer against the first-named defendant presents no question for determination. Adams v. Georgia Ry. & Electric Co., 142 Ga. 497 (83 S. E. 131); Rome R. Co. v. Thompson, 101 Ga. 26, 32 (11) (28 S. E. 429); Morris v. Wofford, 114 Ga. 935 (41 S. E. 56) ; McMillan v. Rodgers, 32 Ga. App. 647 (124 S. E. 354).

2. The mere passage of a municipal ordinance laying out and establishing a street over the land and tracks of a railroad company is, in the absence of an actual laying out and establishing of such street or of a legally acquired right so to do, insufficient to establish a street over the land and tracks of the railroad company. Brunswick & W. R. Co. v. Waycross, 94 Ga. 102 (21 S. E. 145) ; Collins v. Mayor, 77 Ga. 745; Georgia R. & Banking Co. v. Union Point, 119 Ga. 809, 816 (47 S. E. 183) ; Robins v. McGehee, 127 Ga. 431, 435 (56 S. E. 461) ; Atlanta & West Point R. Co. v. Atlanta, 156 Ga. 251 (119 S. E. 712).

3. The owner of land traversed by a public highway is under no duty to a traveler along the highway to maintain in a safe condition for travel the abutting premises at a point such a distance from the highway that it can not be reached by the ordinary deviations from the highway incident to careful traveling thereon, but can only be reached by a traveler who has, negligently and in- a manner oblivious of his own safety, completely abandoned the highway and gone over onto the abutting premises. Hutson v. King, 95 Ga. 271 (22 S. E. 615) ; Collier v. Georgia R. R., 76 Ga. 611; Zettler v. Atlanta, 66 Ga. 195; Western & Atlantic R. Co. v. Rogers, 104 Ga. 224 (3) (30 S. E. 804) ; King v. Central of Ga. Ry. Co., 107 Ga. 754 (33 S. E. 839).

4. Where such a highway is a street maintained by a municipality, the abutting landowner owes no duty to a traveler, by reason of the street being upon his own premises, to see that the municipality maintains the highway in a safe condition for travel. Georgia Ry. & Electric Co. v. Tompkins, 138 Ga. 596 (2) (75 S. E. 664).

5. A demurrer by the Southern Railway Company to the second count of the plaintiff’s petition was, under the rulings in paragraphs 3 and 4 above, properly sustained.

6. The ease having proceeded to trial against -the Southern Railway Company alone upon the first count of the petition, wherein it was alleged that the plaintiff was proceeding in the city of Toccoa along a public street which crossed the railroad-tracks of the defendant at a place where the tracks ran through a cut about twelve feet below the grade of the street, and that by reason of the railway company’s failure to maintain a bridge in the street across its railroad-tracks, as required by law, or to erect proper guards or barriers at such crossings, the plaintiff, who was travelling along the street at night, in the exercise of ordinary care and without observing the absence of any bridge or barricade, fell into the cut and was injured, and, although it appears from the evidence that.the street had been laid out across the railroad by an ordinance of the city of Toeeoa, it appears without dispute that the street had not in fact been established or in fact laid out up to the railroad cut, but stopped within about fifty feet of the out and there intersected a street on the defendant’s right of way and parallel to the railroad tracks, and where it further appears that the land between the terminus of the street and the railroad cut belonged to the defendant railway, and where it does not further appear from the evidence that any right in the city of Toeeoa or in anyone else to construct a street over the defendant’s property and the defendant’s railroad-tracks had been acquired either by contract or condemnation proceedings, the evidence failed to authorize any recovery against the defendant railway company, and the court properly awarded a nonsuit.

Decided September 2, 1925.

Action for damages; from Stephens superior court—Judge J. B. Jones. October 29, 1924.

Application for certiorari was denied by the Supreme Court.

H. H. Chandler, Winston Owens, G. L. Goode, George & John L. Westmoreland, for plaintiff.

Charters & Wheeler, J. K. Jordan, Bond & McClure, Fermor Barrett, for defendants.

Judgment affirmed.

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


text:
    16117.
    Fraser v. Smithwick.
   Stephens, J.

1. In a suit to recover for money had and received, where it was alleged that money due to the plaintiff by a third person had been paid to the defendant, and that the defendant refused to account to the plaintiff therefor, and where the defense interposed was that the money sued for had not been due to the plaintiff but had been due to the defendant by the third person, and was paid to the defendant under a contract between the defendant and the third person, to which the plaintiff was no party, and where there was evidence to the effect that the plaintiff had been employed by the third person to sell on commission certain timber belonging to the third person, and that the plaintiff associated the defendant with him for such purpose, and agreed to divide his commission with the defendant, that this agreement between the plaintiff and the defendant met with the approval of the third person, and that a new contract was entered into between the plaintiff and 'the defendant upon the one part and the third person upon the other part, by the terms of which the plaintiff and the defendant were given an option upon the timber, although the option was in fact taken only-in the name of the defendant and the third person, a finding in favor of the plaintiff for money had and received, as alleged in the petition, was authorized. The agreement between the plaintiff and the defendant, dividing the commission, was not the contract sued on. Its existence, however, was essential to the establishment of the plaintiff’s ease as laid in the petition.

Decided September 2, 1925.

Action for money liad and received; from Colquitt superior court. —Judge W. E, Thomas. November 11, 1924.

E. E. Whelchel, for plaintiff in error.

J. L. Dowling, contra.

2. Therefore, a charge by the court that the plaintiff could recover upon proof of an agreement and understanding between him and the defendant that they were to be associated as agents to sell the timber and to share the profits, and that they procured an option to sell the timber and did sell it and make the profits therefrom, was adjusted to the evidence. Such charge was not error.

3. The evidence authorized the verdict found for the plaintiff, and the court, fairly to the defendant, submitted the issues to the jury.

Judgment affirmed.

Jenkins, P. J.,- <md Bell, J., concur.


author: Bell, J.

text:
    16422.
    ANDERSON et al v. HOWARD et al.

    1. There being no provision of law for disqualifying a member of the board of commissioners of Putnam county from presiding on the hearing of an application for a road, because of his having expressed an opinion “concerning said road” or because he had “personal feeling and was prejudiced,” it was not permissible to challenge a member of the board upon these grounds.
    2. The commissioners were not required to hear the application for the road on their “regular court day.” Nor was their judgment, under the facts of this case, vitiated because it was rendered on December 9, notwithstanding, after hearing the evidence and the argument of counsel on December 6, they had agreed with the parties to withhold judgment until December 13.
    3. Where an application is made for the establishment of a new road, county commissioners, in the appointment of reviewers to examine and report on the public utility of the proposed road, are clothed with some discretion and are not bound to appoint men living nearest thereto, without regard to their fitness for the duties imposed upon them. In the absence of anything to the contrary, the presumption would be that the appointment was properly made. No abuse of discretion was made to appear in this ease.
    4. It was not a good ground of objection to the proceedings, by persons required to be served in the manner prescribed by § 642 of the Civil Code, and duly served accordingly, that others of the same class were not likewise served.
    5. It was not necessary that the notice served on the objectors should be signed by all the commissioners. A majority was sufficient.
    6. The words in the notice, “said road to be fifty feet in length,” clearly appeared to be a clerical error, and, the length of the road otherwise appearing therein, it was proper to overrule a motion to dismiss the proceeding, based on the ground that the notice showed that the road was to be only fifty feet long, and for that reason could not be of public utility.
    7. The adoption by the reviewers, in their report, of a map or plat attached thereto and made a part thereof, containing all the information and data necessary for the definite location of the road, was a sufficient compliance with the law as to “marking it out.”
    (а) Furthermore, the reviewers could not be heard to impeach their return, and, there being no testimony except by them that they did not mark out the road according to law, the objection to the adoption of the report on that ground was not sustained.
    (б) In any view, the commissioners were not bound to sustain this objection. solely upon the testimony of the reviewers in contradiction of their sworn report.
    Decided September 2, 1925.
    Certiorari; from Putnam superior court—Judge Park. April 11, 1935.

      E. B. Lambert, B. C. Jenkins, for plaintiff in error.

      Callaway & DeJarnette, contra.
   Bell, J.

TJpon the application of certain citizens of Putnam county, made to the county commissioners, for a new road, three road commissioners or reviewers were appointed to make the examination and report required by statute. Their report being favorable, certain other citizens,—W. D. Anderson and J. C. Anderson,—interposed objections to the establishment of the road, and the case as thus made came on for trial before the county commissioners. Their judgment being in favor of the application, ■the objectors sued out a certiorari to the superior court, where the certiorari was dismissed, and they excepted.

The objectors challenged the qualification of one of the county commissioners to preside in the case because “he had already expressed an opinion concerning said road before hearing the evidence, and because he had personal feeling and was prejudiced.” The commissioner was sworn and testified: “My mind is already made up concerning this road .before hearing any of the evidence. When this matter was before us a month ago I asked the attorneys for W. D. and J. C. Anderson if they were not merely playing for time;” “I can hear the evidence now and pass on the matter and do what I think is right.” The board thereupon ruled that the commissioner was qualified, and this ruling is assigned as error. It is provided in the Civil Code (1910), § 859, that, “In a civil cause, it is good cause for challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to .which should succeed.” See also Justices of the Inferior Court v. Griffin & West Point Plank Road Co., 15 Ga. 39; Haney School Furniture Co. v. Hightower Baptist Institute, 113 Ga. 289 (1) (38 S. E. 761) ; Sullivan v. Padrosa, 122 Ga. 338 (1) (50 S. E. 142); Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696 (1) (70 S. E. 234). But whether the evidence would have demanded a finding that the commissioner was disqualified if he had been serving as a juror, county commissioners, in passing upon a matter of the kind here involved, sit not as jurors, but as judges. Atlanta & West Point R. Co. v. Redwine, 123 Ga. 736 (51 S. E. 724). In the absence of statutory provision, a judge is not disqualified by prejudice or bias, or the previous expression of an opinion on the merits of the controversy. The only general provisions in our law in reference to the disqualification of judges, or of any officer exercising judicial functions, are contained in the Civil Code (1910), § 4642, as follows: “No judge or justice of any court, no ordinary, justice of the peace, nor presiding officer of any inferior judicature or commission, can sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the fourth degree of consanguinity, or affinity, nor of which he has been of counsel, nor in which he has presided in any inferior judicature when his ruling or decision is the subject of review, without consent of all the parties in interest: provided, that in all cases in which the presiding judge of the superior court may have been employed as counsel before his appointment as judge, he shall preside in such cases if the opposite party or counsel agree in writing that he may preside, unless the judge declines so to do.”

There is nothing on the subject in any act of the legislature relative to the board of county commissioners of Putnam county. See Ga. L. 1878-79, p. 334; Ga. L. 1921, p. 555. Whether a member of that body might be disqualified for a cause falling -within the terms of § 4642, there is no provision of law anywhere for his disqualification on the grounds urged in this case. Tibbs v. Atlanta, 125 Ga. 18 (2) (53 S. E. 811); Elliott v. Hipp, 134 Ga. 844 (2) (68 S. E. 736, 20 Ann. Cas. 423, 137 Am. St. Rep. 272); Beavers v. Armistead, 156 Ga. 833 (5) (120 S. E. 526); Barnard v. Durrence, 22 Ga. App. 8 (1) (95 S. E. 372); Carson v. Blair, 31 Ga. App. 60 (1) (121 S. E. 517). It follows that there was no error in the board’s ruling.

The notice of the application, served on the objectors as persons residing on the lands immediately affected, was alleged to be invalid because it required them to show cause on a day other than the commissioners’ regular court day. The original act creating the board of commissioners for Putnam county (see act of September 8, 1879, Ga. L. 1878-9, p. 334) provided that the commissioners might hold special meetings whenever they saw fit, and this provision has not been changed by any subsequent legislation. The code provides for the publication of a citation to the public, notifying all persons that the application will be heard on “a certain day therein named,.” and also for the service of an additional notice in writing upon all persons, their overseers or agents, “residing on land which such road goes through.” Civil Code (1910), §§ 641, 642. It was not necessary that the hearing should be had on a “regular court day.”

In this connection we will refer to another assignment of error, kindred to that just considered. The record shows that at the conclusion of the evidence and after argument of counsel, on December 6, the day appointed for the hearing, “it was agreed by the court and all parties concerned that the board of commissioners, sitting as a court, would withhold its judgment in this case until Saturday, December 13, 1924, and in the meantime said board is to investigate the new proposed road offered by W. D. and J. C. Anderson” and another. Complaint is made because the “said board, unknown to [objectors] and without their consent, called said court in session on the 9th day of December, 1924, and rendered judgment.” We have already seen that the commissioners could hold special meetings at any time they deemed proper, and it is not contended that they were not lawfully in session at the time they rendered judgment. All evidence was in and counsel had completed their arguments. It is not alleged that the commissioners failed “to investigate the new proposed road” as they agreed. The objectors had been fully heard, and, so far as the record shows, had nothing further to offer. What right of theirs did the commissioners infringe by taking action on the matter on December 9 instead of waiting until December 13 ? None.

The return of the road commissioners, or reviewers, was attacked because one of them did not “reside as near where such road is intended to pass as possible” (see Civil Code (1910), § 640), but lived nine and one quarter to eleven and one half miles distant therefrom, and, according to the testimony of one of the objectors, owned no land in the immediate vicinity of the road, and “had no business that calls him out there as often as he goes.” There were several citizens residing within from one to five miles, and there was no reason “why these men living out there could not act in the place” of the one objected to, that the witness knew of. The county commissioners are vested with some discretion in making such appointments, and are not required to appoint those residing nearest to the proposed road, without regard to their fitness for the duties imposed. In the absence of anything to the contrary, the presumption would be that an appointment was properly made; and it is not made to appear that the commissioners committed any abuse of discretion in this case. See Brown v. Sams, 119 Ga. 22 (2) (45 S. E. 719).

It was admitted that the citation was published as required by § 641, but plaintiffs in error objected to the proceedings because certain other persons, through whose land the road would pass, had not been served with written notice as required by § 642. The service prescribed by this section is in order that the owners of the lands affected “may put in their claim for damages or be forever after estopped.” Manifestly, it was of no concern to the plaintiffs in error that some other persons may not have been notified in order that they might be heard on the matter of damages.

It was not necessary that all the county commissioners should sign the notice served on the objectors. Under the Civil Code (see subsection 5 of § 4) a majority was sufficient, and, besides, it was specially so provided in.the act of 1879, creating the board. It might perhaps be that the signature of the clerk or of one commissioner would be enough, if duly authorized by the board; and it might not even take special authority, where the. application was set down regularly for hearing and the usual notice ordered.

Error was a§signed upon the overruling of a motion to dismiss the proceedings because the original notice to the objectors described the proposed road as being fifty feet in length and such road could not be of public utility. Attached to the notice and made a part thereof was a plat which definitely described the location of the road and showed that its length would be 9652.7Q feet. This was even shown in the face of the notice. Later came the words, “Said road to be fifty feet in length.” This was evidently a mere clerical error, and was cured by the exhibit. The motion to dismiss was properly overruled.

One of the objections to the establishment of the road was that the road commissioners, or reviewers, did not physically “mark out” the road as required by section 640. The testimony showed that they went on the lands of the objectors only, but that in doing so they could see practically all of the proposed road. The evidence was that they did not actually stake or mark out the road on the ground, or designate its location in any other way except on paper. They did, however, attach to and make a part of their report a map or plat containing all the information and data necessary for the definite location of the proposed road; and this we think was a sufficient compliance with the law as to marking it 'out. Compare Green v. Road Board of Bibb County, 126 Ga. 693 (1) (56 S. E. 59).

But granting that the law contemplates an actual marking out of the road on the earth, the only evidence that they did not so mark it was by the reviewers themselves, and was in the very teeth of their sworn written report. See Frith v. Justices of the Inferior Court, 30 Ga. 723.

In their investigation they were acting in a capacity such as that of jurors, and jurors can not impeach their verdict. Civil Code (1910), § 5933. This rule is not of statutory origin, but was laid down by the Supreme Court as a matter of public policy (Bishop v. State, 9 Ga. 121 (4); City Council of Augusta v. Hudson, 94 Ga. 135 (6), 21 S. E. 289), and, on principle, would be equally applicable to reviewers, or road commissioners, appointed to examine into whether a proposed road would be of public utility, and, if so, “to mark it-out, and make their report under oath . . that it was laid out and marked conformably to law.” The county commissioners had no legal authority to receive or consider the evidence of these reviewers impeaching their return (Hale v. State, 91 Ga. 19 (3), 16 S. E. 105; Hill v. State, 91 Ga. 153 (3), 16 S. E. 976; City Council of Augusta v. Hudson, supra); and, there being no other evidence on the subject, the objection failed. And still, even if they had power to hear and consider such evidence, they certainly were not hound to accept it as true, since the sworn statements of the reviewers to the contrary, appearing in the record, at least made the credibility of the reviewers as witnesses a question for determination by the county commissioners acting as a trial court, whose findings on the matter in issue the judge of the superior court was not compelled to set aside, in the absence of other evidence sustaining the objection as a matter of law, the burden being on the objectors to sustain the attack made.

From what has been said, it follows that the judge of the superior court did not err in dismissing the certiorari.

Judgment affirmed.

Stephens, J., concurs. Jenlcins, P. J.. disqualified.


author: Jenkins, E. J.

text:
    15380.
    Holston Box & Lumber Company v. Vonberg & Bates.
   Jenkins, E. J.

1. Under the ahswer of the Stipreme Court to the question certified to it by this .court as to whether a bill of exceptions, such as here brought, would be valid, where it merely assigned error on the judgment overruling- a motion for a new jury trial on exceptions of fact to an auditor’s report, but did not assign error on the final judgment making such report the judgment of the court, the motion to dismiss the writ of error is denied. 160 Ga. 813 (129 S. E. 92).

2. In order for the pendency of a former suit for the same cause of action and involving the same parties to be good cause of abatement, the first action must not be “so defective that no recovery can be possibly had” therein. Civil Code (1910), § 5678. An attachment proceeding instituted by affidavit in the name of an individual will not support a declaration brought in the name of a partnership; and such an affidavit is not amendable by substituting the name of the partnership for the individual. Blackwell v. Pennington, 66 Ga. 240; Thompson v. McDonald, 84 Ga. 55 (2) (10 S. E. 448) ; Busby v. Elliott, 22 Ga. App. 391 (95 S. E. 1014) ; Tolar v. Funderburke, 21 Ga. App. 436 (94 S. E. 592); Massoud v. Lamar, Taylor & Riley Drug Co., 18 Ga. App. 398 (89 S. E. 442). Since in the former proceeding, as here pleaded, the attachment affidavit was made by an individual in his own name, claiming both the legal and the beneficial interest as plaintiff in the suit, while the declaration was brought in the name of a partnership for his use, under the above rulings, as the record appears, the partnership had no legal right of recovery on the declaration as filed, and therefore the trial judge did not err in striking the plea of abatement based upon the pendency of the former suit.

3. The general rule, as expressed in Dolan v. Lifsey, 19 Ga. App. 518 (5) (91 S. E. 913), that “where the plaintiff bases his right to recover upon an express contract, which is entire and indivisible, he can not recover unless he has performed all his obligations under the contract,” does not require such performance, or a tender of performance of remaining executory obligations, by a plaintiff vendor, where the vendee, after partial delivery of the merchandise contracted for, has repudiated or refused to be bound by the terms of the contract. Southern Upholstering Co. v. Lieberman, 27 Ga. App. 703 (2, 3) (109 S. E. 509). Such a breach amounts to a breach of the entire contract, relieves the vendor from further performance, and authorizes his action for the breach. White & Hamilton Lumber Co. v. Lynch, 31 Ga. App. 697 (121 S. E. 874). In such a partially performed contract for the cutting and delivery of lumber f. o. b. cars at a designated place, the plaintiff vendor is entitled to recover the value as fixed by the contract price for such lumber as has been actually delivered and accepted by the vendee. 24 R. C. L. 117 (§ 386). If the undelivered lumber, at the time of the anticipatory breach of the contract, has not been cut and manufactured ready for tender at such time, in an action for recovery of damages therefor the measure is the difference between the contract price and the cost of production,—that is, the actual profit which the vendor by the terms of his contract would have made had the sale been consummated. But if the lumber has been cut and tendered, or the processes of manufacture are completed so that the goods are on hand ready for delivery at the time of such breach, the measure of damages is “the difference between the contract price and the market price at the time and place of delivery.” White & Hamilton Lumber Co. v. Lynch, 159 Ga. 283, 284 (125 S. E. 472, 473). “If the cost of delivery at the place fixed therefor is saved to the seller, deduction therefor should be made.” 24 R. O. L. 116 (§ 386). In such a ease, where lumber is to be delivered f. o. b. ears at a designated place at a stated pi-ice, the expense of making the agreed, delivery is an element in the contract price.

(«) In the instant action by the vendors for damages upon a contract for the sale of lumber to be cut and delivered, such as described above, some of which had been delivered and accepted by the vendee prior to its breach, that the original petition erroneously laid the measure of damages for unaccepted lumber as the entire contract price thereof, the same as laid for lumber actually accepted, was not ground for sustaining a demurrer to the amended petition, or for setting aside a judgment for the plaintiff vendors, where the plaintiffs, by direction of the court, amended their petition so as to lay the proper measure, where the a nditor, after awarding damages based upon the erroneous rule, reheard the case and corrected his findings to conform to the proper measure as laid in the amended petition, and where, on the trial before a jury on exceptions of fact, the jury, under evidence authorizing a recovery based on the correct measure, found in favor of the auditor’s revised report.

(6) The judge of the superior court did not err, on his own motion, after the filing of the auditor’s first report and exceptions thereto, complaining that the report was based on-an erroneous measure of damages, in recommitting the cause to the auditor solely for the purpose of readjusting his findings according to the correct measure, even though no formal motion to recommit had been made by either of the parties. See Civil Code (1910), §§ 5139, 5128; Trentham v. Bluthenthal, 118 Ga. 530 (1) (45 S. E. 421), where the right, but not the duty, of the trial judge in his discretion to recommit or refuse to recommit seems to be recognized.

(c) Thé order of the judge recommitting the cause to the auditor directed that he “sustain the demurrers, .unless the plaintiff amends by seeking recovery at the contract price for such lumber as he may itemize as having been delivered to the defendant f. o. b. cars, and by setting out and adopting as his measure of damages the difference between the contract price and the value of such lumber as plaintiff contends was not delivered because of the refusal of the defendants to accept it,” and that he “revise his findings . . so as to conform to this ruling upon the law of the case and to the facts adjusted to the pleadings as amended.” The only exceptions of the defendant vendee, taken and preserved to this portion of the order, are, (1) that the recommittal was without authority of law, and (2) that the allowance of the amendment added a new cause of action distinct from that laid in the original petition. There was no ground of exception to this order, which in terms ruled as to “the law of the case,” that the measure of damages was in itself erroneous; but, on the other hand, it was contended, as grounds of demurrer to the original petition and of exception to the auditor’s first report, that “plaintiffs mistook their remedy; if there was a breach of contract, plaintiffs’ remedy” was either a suit “for the difference between the contract price and the market price at the time and place of delivery,” or a suit based upon a choice of one of the other two remedies provided by section 4131 of the Civil Code, and that plaintiffs were not entitled to recover, as sought, the full purchase price on all of the lumber, delivered and undelivered, as originally sued for. The amendment to the petition thus set up one of the measures of damages contended for by the defendant, under the order of the judge ruling as to the law of the case. Nor did such a change in the measure of damages add a new and distinct cause of action. St. John v. Leyden, 111 Ga. 152 (36 S. E. 610); Rowland co. v. Kell Co., 27 Ga. App. 107 (107 S. E. 602).

(d) The court and the auditor did not err in overruling the grounds of renewed demurrer to the petition as amended.

4. In the trial on the exceptions of fact to the auditor’s revised report, the judge fully and fairly charged the contentions of the parties and the law of the case substantially in accord with the foregoing ruling. Such of the requests to charge as were pertinent and correct were sufficiently covered by the general instructions, or where given but qualified, the qualifications were proper or not harmful to the defendant under the rulings here made and the law of the case as fixed by the court.

Decided September 9, 1925.

Attachment; from Murray superior court — Judge Tarver. December 39, 1933.

B. Noel Steed, William B. & W. Gordon Mann, for plaintiff in error.

G. N. King, W. G. Martin, Maddox, McOamy & McFarland, contra.

5. The grounds of the motion for new trial and exceptions pendente lite which are not treated or covered by the foregoing rulings are without merit and require no elaboration.

6. The verdict finding in favor of the .auditor’s revised report and against the defendant’s exceptions of fact was authorized, except that in the auditor’s original report a finding was made in favor of the defendant, charging against the plaintiff vendors certain items of expense saved to them in not hauling and delivering the lumber f. o. b. cars at the place designated by the contract, amounting to a total of $279.26. This allowance, supported by evidence, was proper under the ruling made in the 3d division of this syllabus, no exception was taken thereto, and the trial judge in effect charged the jury that such items of expense would be proper allowances. The auditor’s amended report failing to credit such items, exceptions being taken thereto, and the verdict and final judgment, making the auditor’s revised report the judgment of the court, also omitting to credit these amounts in favor of the defendant, the verdict and judgment to this extent are contrary to law and the evidence. If the plaintiffs in the court below shall, when the remittitur of this court is made the judgment of the lower court, strike from the amount of the judgment this sum, the judgment under review is affirmed; otherwise it is reversed.

Judgment affirmed, on condition.

Stephens and Bell, JJ., eoncur.


text:
    15805.
    Mutual Life Insurance Co. v. Brown, administrator.
   Stephens, J.

1. Where a physician has, in behalf of a life-insurance company, examined an applicant for insurance whose application has been procured by a soliciting agent of the company, an acceptance of the physician’s report with knowledge of this fact, and the issuance to the applicant of a policy of insurance based upon the report, amount to a ratification of the act of the physician in making the examination for the company; and it follows that the physician in making the examination acted td all intents and purposes as the duly authorized agent of the company.

(а) It is not a requisite to such ratification that the insurer," through its officers who accepted the report of the physician and issued the policy, should have actual knowledge of all the information given to the physician by the applicant in the course of the examination.

(б) Any such information given by the applicant to the physician making the examination in behalf of the company, although it is not reported to- the officers of the company whose duty it is to pass upon applications and issue insurance, is nevertheless notice to the company.

2. Where the answers made to the physician by the applicant, in response to certain questions propounded to him by the physician, are not recorded by the physician and are not reported by the physician to the officers of the company whose duty it is to .pass upon applications and issue policies of insurance, and although the applicant may have signed the record of his answers made by the physician, and certified that “each and all of the foregoing statements and answers were read by me and are fully and correctly recorded by the medical examiner,” the company can not, against a suit on the policy, defend on the ground that the applicant withheld certain material information and thereby fraudulently induced the company to issue the policy. This is true notwithstanding a provision in the policy to the following effect: “This policy and the application herefor, copy of which is endorsed hereon or attached hereto, constitute the entire contract between the parties hereto. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement of the insured shall avoid or be used in defense to a claim under this policy, unless contained in the written application herefor and a copy of the application is endorsed on or attached to this policy when issued.”

3. An applicant for life insurance, when giving to the company’s medical examiner information in response to questions propounded to him by the examiner, has a right to rely upon a discharge by the medical examiner of his duty to properly report the answers to the company. The insured is therefore under no duty afterwards to make an examination of the policy to ascertain upon what representations the policy purports to have been issued.

4. Where the beneficiary of a life-insurance policy is the estate of the insured, it is immaterial that the proof of death of the insured, when properly made out and submitted, is furnished by the husband of the deceased as sole heir of the deceased and not by the representative of the estate. Especially is this true when the husband is afterwards appointed administrator of the estate and maintains the suit as plaintiff to recover under the policy.

5. This being a suit by the administrator of the insured to recover upon the policy, which was made payable to the decedent’s estate, and which suit is defended upon the ground of fraud, and it appearing without dispute from the evidence not only that the company ratified the acts of the physician in making for the company the examination of -the applicant for the insurance, but that, at the time, the physician had already been “arranged with” by the company’s superintendent of agents, to examine applicants for insurance in the defendant company in the territory of the insured’s residence, and it appearing without dispute that the information relied upon by the defendant as having been fraudulently withheld from the company by the insured, by having been omitted from the written answers made by the medical examiner, had in fact been given to the medical examiner by the insured, and that therefore the company had notice and was not defrauded, the defense of fraud is not 'sustained.

Decided September 9, 1925.

Action on insurance policy; from Ben Iiill superior court-judge Crum. June 16, 1924.

Application for certiorari was denied by the Supreme Court.

Frederick L. Allen, Quincey & Rice, Smith, Hammond & Smith, for plaintiff in error.

G. W. Bussell, A. J. & J. 0. McDonald, contra.

6. Applying these rulings and the rulings made in this case when before this court upon another occasion, as reported in 29 Ga. App. 794 (116 S. E. 559), the court properly overruled the fifty-seven grounds of the defendant’s motion for a new trial.

7. See, in this connection, Cooley’s Briefs on the Law of Insurance, vol. 3, pp. 2561, 2572; Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13 (63 N. E. 763, 57 L. R. A. 318, 88 Am. St. Rep. 625) ; Manhattan Life Ins. Co. v. Carder, 82 Fed. 986; McElroy. v. British America Assur. Co., 94 Fed. 990; Cranston v. West Coast Life Ins. Co., 72 Or. 116 (142 Pac. 762); Abraham v. North German Ins. Co., 40 Fed. 717.

Judgment affirmed.

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


text:
    15942.
    Sheffield v. Atlantic Refining Company.
   Stephens, J.

1. Where a blacksmith’s helper, whose duties require him to work in a blacksmith shop under the direction of the blacksmith, assists the blacksmith in making a pair of hinges for the helper’s own personal use, which the blacksmith makes at the helper’s request, and where it has been the custom of their common employer, a company, to do work for its employees, and the helper has, in working for the company, under instructions from the blacksmith, performed such work for other employees of the company, the inference is authorized that the helper, when so engaged in assisting the blacksmith in making the hinges for the helper’s own use, is, notwithstanding the fact that the work may be knowingly done by both the helper and the blacksmith in violation of a rule of the company which requires an order from the mechanical department before such work can be done, nevertheless performing work in the course of his employment. The work performed being of such a character as from time to time, under the rules of the company, falls within the duties of the helper, and it being the duty of the helper to work under instructions from the blacksmith, the performance by the helper of such work under such directions, although knowingly done in violation of a rule of the company prohibiting such work “unless duly authorized,” which rule is necessarily directory only, does not deprive the helper when doing such work of his status as an employee of the company acting within the course of his employment.

Decided September 9, 1925.

Rehearing denied September 30, 1925.

Appeal; from Glynn superior court — Judge Highsmith. August 27, 1924.

Certiorari was granted by the Supreme Court.

Farr & Powell, for plaintiff.

Bennet, Twitty & Reese, for defendant.

2. Where the helper, when so engaged, suffers the loss of one of his eyes by reason of a piece of metal flying from one of the hinges in which he is attempting to punch a hole, the injury arises out of and in the course of his employment, and is compensable under the workmen’s compensation act.

3. In a claim by the helper for compensation for the injury thus sustained, where the industrial commission, on the competent evidence introduced, found the facts as narrated in paragraph 1 of this syllabus, the award of compensation made by the commission was legally authorized, and the judge of the superior court erred in setting the award aside.

Judgment reversed.

Jenlcins, P. J., and Bell, J., conew.


text:
    16019.
    Central of Georgia Railway Co. v. Leverette.
   Stephens, J.

1. Upon the arrival of freight at the point of destination within the usual time required for transportation, the carrier may, in the absence of any custom of the trade as to delivery, immediately store the same in a place of safety and hold it as a warehouseman, and not as a carrier, until its delivery to the consignee. Civil Code (1910), § 2730; Southwestern R. Co. v. Felder, 46 Ga. 433; Western & Atlantic R. Co. v. Camp, 53 Ga. 596; Almond v. Georgia R. Co., 95 Ga. 775 (22 S. E. 674); Georgia & Alabama Ry. v. Pound, 111 Ga. 6 (36 S. E. 312); Kight v. Wrightsville & Tennille R. Co., 127 Ga. 204 (56 S. E. 363).

2. Mere proof that the” consignee received notice from the carrier of the arrival of the freight at the point of destination is insufficient to establish any custom as to delivery.

3. A failure of the carrier to deliver the shipment to the consignee on demand, on account of a temporary inability to make delivery, such as an inability to reach the freight by reason of its not having been unloaded from the car, or inability to move the freight, because of its weight and a lack of skids, or inability to deliver it by reason of the consignee having no truck to receive it, is not an absolute refusal to deliver to the consignee. It is therefore not a conversion, but is only a failure to deliver the shipment at the particular time.

Decided September 9, 1925.

Action for damages; from Putnam superior court — Judge Park. October 18? 1924.

Meriwether F. Adams, for plaintiff in error.

Joseph B. Duke, contra.

4. When the carrier afterwards stores the freight and holds it ready for delivery to the consignee, the carrier’s liability thereafter becomes that of a warehouseman and not that of an insurer; and where, in such a case, after a period of three days, during which time the consignee failed to call for and demand delivery of the freight, it was destroyed by fire, without negligence on the part of the carrier, the carrier was not liable therefor to the consignee.

5. The rule of the public-service commission of the State, which provides that upon personal notice to the consignee of the arrival of a shipment of freight, there shall be a period of “free time” within which the consignee may receive the freight, which period of time may be extended “as the inclemency of the weather may render the removal of the freight in question from the custody of the carrier reasonably impracticable,” has reference solely to the liability of the consignee for storage, and can not affect the liability imposed by law upon the carrier as a warehouseman only.

6. The carrier’s failure to make delivery of the freight to the consignee on demand, as indicated above, not being an absolute refusal to deliver, did not constitute a conversion, and did not operate to extend indefinitely the carrier’s liability as an insurer. This being a suit by the consignee against the carrier to recover for the loss of the freight by fire, an instruction by the court, that the carrier, at the time of such demand, was bound to deliver the freight to the consignee, was error, in that it was not adjusted to the issues in the case and was calculated to cause the jury to believe that the carrier’s failure to make such delivery on demand constituted a conversion, or indefinitely extended the carrier’s liability as an insurer.

• 7. The trial court having submitted the case to the jury under a theory in conflict with these rulings, the court erred in admitting certain evidence excepted to in ground 4 of the motion for a new trial, and also erred in the charge excepted to in ground 6.

Judgment reversed.

Jenkms, P. J., and Bell, J., concur.


text:
    16030.
    Decatur County v. Southern Clay Manufacturing Company.
   Stephens, J.

1. A county which has entered into a contract for the construction of public work for the county and has failed to take from the contractor the statutory bond required under the act approved August 19, 1916, providing that in such cases a bond be furnished by the contractor for the use of persons doing work, furnishing material, etc., under and for the purpose of the contract, is liable to any person furnishing material to the contractor for the purpose of the contract, for any loss resulting to such person from the failure of the county to take the required bond. Ga. L. 1916, p. 94. It is not essential to the county’s liability under this act that the work for which the county contracted shall have been completed.

Decided September 9, 1925.

Complaint; from city court of Bainbridge — Judge Spooner. October 27, 1924.

H. G. Bell, Poitle & Ilofmayer, for plaintiff in error.

T. 8. Hawes, Dodd & Dodd, contra.

2. In a suit against a county by one who has furnished material to one who has contracted with the county for the construction of a bridge for the county, where it appears that, under the ruling in American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617), the bond which was given to the county by the contractor was not such a bond as is required by the act of 1916, supra, and where it appears that the material furnished was used in the construction of the bridge for 'the county’s benefit under the terms of the contract, and that the contractor to whom the plaintiff furnished the material is insolvent, and that for this reason the plaintiff will suffer a loss in the amount of its claim unless it can hold the county liable therefor, the county is liable to the plaintiff in the amount sued for as representing the loss sustained by the plaintiff as a result of the county’s failure to take the required bond. See, in this connection, Ty Ty Consolidated, School District v. Colquitt Lumber Co., 153 Ga. 426 (112 S. E. 561) ; Hannah v. Lovelace-Young Lumber Co., 159 Ga. 856 (127 S. E. 225).

3. The petition set out a cause of action, and the judgment finding for the plaintiff in the amount sued for was authorized by the evidence.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    16097, 16098.
    Brogan v. Bridges et al., receivers, et al., (two cases).
   Jenkins, P. J.

Under rulings of the Supreme Court and of this court, “unless there has been a final termination of the case in "the court below, a writ of error will not lie to an order striking a plea, even though the effect of such order may be to entitle the plaintiff to a judgment or verdict as matter of course;” and for the same reason, and under rulings of this court, a writ of error to an order overruling a demurrer or motion to strike such a plea will not lie upon the theory that if a judgment as contended for by the plaintiff had been rendered, it would have been a final termination, where no final judgment has been in fact rendered, even though the effect and purpose of the effort to strike the defenses is to leave the cause ripe for such a judgment. The motions to dismiss these bills of exceptions must therefore be granted. Johnson v. Battle, 120 Ga. 649 (2) (48 S. E. 128) ; English v. Rosenkrantz, 150 Ga. 745, 746 (105 S. E. 292); City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755); Braswell v. Macon Savings Bank, 30 Ga. App. 325 (117 S. E. 664) ; Samson Tractor Co. v. Furlong, 28 Ga. App. 659 (112 S. E. 903); Goodrich Rubber Co. v. Capital City Tire Co., 28 Ga. App. 645 (112 S. E. 902); Payne v. American Surety Co., 30 Ga. App. 127 (117 S. E. 275) ; Donalsonville Oil Mill v. Robinson, 26 Ga. App. 181 (105 S. E. 719).

Decided September 9, 1925.

- Complaint; from Worth superior court — Judge Eve. November 7, 1924.

Claude Payton, for plaintiff.

Perry & Tipton, for defendant.

Writs of error dismissed.

Stephens and Bell, JJ., concur.


text:
    16129.
    United States Fidelity & Guaranty Co. et al. v. Hall.
   Bell, J.

1. Where a claimant seeking compensation as a total dependent, under the workmen’s compensation act, testified to having received from the deceased employee a regular contribution of $1 per day, but where the industrial commission, upon sufficient competent evidence as to the employee’s earnings and lack of other income or resource, found that it was impossible for the employee to have contributed that amount, and where the commission was warranted in finding that in the very nature of things the testimony, as to amount, was either true or knowingly false, the commission was authorized to discard the evidence of the claimant entirely, and, in the absence of other unimpeached evidence, to refuse the claim. The fact that the claimant’s testimony was corroborated by. the evidence of another witness did not alter the ease as a matter of law, where the same circumstances which authorized the commission to discredit the testimony of the claimant equally justified it in rejecting that of the other witness. Since there was no other evidence showing what amount the deceased employee contributed, or whether lie in point of fact contributed anything to the claimant’s support, the commission was not bound to make an award even as for partial dependency. Compare Civil Code (1910), §§ 5883, 5884; Payne v. Reese, 28 Ga. App. 180 (1); (110 S. E. 740); Glenn v. Augusta Railway & Electric Co., 121 Ga. 80 (48 S. E. 684).

2. There is no contention by the claimant that the order and decree was procured by fraud. The findings of the commission and the refusal of any compensation whatever were justified by the evidence, under the ruling made above. The findings of fact made by the commission, if supported by any evidence, will in the absence of fraud be conclusive. Ga. L. 1920, p. 199; New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (1), 686 (118 S. E. 786) ; London Guarantee & Accident Co. v. Shockley, 31 Ga. App. 762 (1) (122 S. E. 99).

Decided September 9, 1925.

Appeal; from Wilkinson superior court — Judge Park. November 24, 1924.

Byals & Anderson, for plaintiffs in error.

Eli B. Hubbard, contra.

3. The workmen’s compensation act provides that “No order or decree of the industrial commission shall be set aside by the court upon any grounds” except that the. industrial commission acted without or in excess of its powers, that the order or decree was procured by fraud, that the facts found by the commission do not support the order or decree, that there is not sufficient competent evidence in the record to warrant the commission in making the order or decree complained of. or that the order or decree is contrary to law. Ga. L. 1920, p. 199. Since the order of the commission was not subject to be set aside upon any of the grounds stated, the superior court erred in sustaining the claimant’s appeal and ordering a new trial.

4. Under the provisions of the workmen’s compensation act, the judge of the superior court, upon appeal, has not that discretion to set aside an order or decree of the industrial commission which he exercises in passing upon motions for new trial and petitions for certiorari in cases where the evidence would authorize a finding or judgment for either party. See Moore v. Macon Railway & Light Co., 8 Ga. App. 786 (70 S. E. 156) ; Maryland Casualty Co. v. England, 160 Ga. 810 (129 S. E. 446).

Judgment reversed.

Jenhvns, P. J., and Stephens, J., concur.


text:
    16197.
    Kiser Real Estate Company v. Shippen Hardwood Lumber Company.
   Jenkins, P. J.

1. “The general rule, in the absence of a different agreement, is that a real estate broker in whose hands property is placed for sale earns his commissions when, during the agency, he finds a purchaser ready, willing, and able to buy, and who offers to buy on the terms stipulated by the owner.” Winer v. Flournoy Realty Co., 27 Ga. App. 87 (1) (107 S. E. 398); Houser v. Vose, 33 Ga. App. 431 (126 S. E. 869, 870). Thus, under the general rule, where the broker has thus complied with his usual undertaking, he is entitled to his commission although the sale fails of consummation on account of the owner’s inability to make good title. Davis v. Morgan, 96 Ga. 518 (23 S. E. 417). But where by the terms of the contract of listment it is expressly agreed that the broker’s right to commission is conditioned upon an actual transfer of the property, the contract providing that he shall be paid “on the date formal transfer is made,” such a provision is binding, and the broker is not entitled to his commission until the sale is actually effected, unless it be shown that he has fully complied with his undertaking by producing a purchaser ready, willing, and able to buy, and who actually offers to buy on tbe agreed terms, and that the sale fails of consummation only because the owner in bad faith fails and refused to effectuate the same. See Rowland & Rowland v. Kraft, 31 Ga. App. 593, 595 (1) (121 S. E. 526); Nutting v. Kennedy, 16 Ga. App. 569 (85 S. E. 767). In other words, it is possible for the owner and the broker to so contract as to change the genera] rule, and by their special agreement to provide that commission shall not be earned unless or until the sale becomes actually effectuated. .In such a case, where the offer of the purchaser does not absolutely obligate him to buy, but limits the proposal to his approval of title, and where the sale fails to become effected on account of defective title, and not on account of the owner’s refusal to sell, the owner, under such special contract of listment, does not become liable for commission.

Decided September 9, 1925.

Complaint; from Fulton superior court — Judge Humphries. November 25, 1924.

Anderson, Rountree & Crenshaw, F. P. Tuttle, for plaintiff.

Randolph, Parker & Fortson, Jones, Fvins, Moore & Powers, for defendant.

2. If the petition, which sets forth and relies upon a written offer to purchase procured by the plaintiff, should be construed as a suit for commission as earned by a sales agent who had thus procured the necessary valid and binding offer to purchase (see Roberts v. Prater, 29 Ga. App. 245, 114 S. E. 645), it was subject to demurrer, in that the proposal failed to identify with any sort of certainty the property proposed to be purchased. If the petition be treated as a suit for commission by a broker, but limited in its right to commission by the special terms of its contract of listment, making such right contingent upon the final consummation of-the trade (see Payne v. Ponder, 139 Ga. 283, 285, 77 S. E. 32), it was not entitled to recover, even should it be entitled to introduce parol evidence in aid of the pleaded written proposal for the purpose of identifying the property intended to be referred to thereby; since the proposal was on its face conditioned upon the acceptance of the title by the offerer, and under the terms of the contract of listment, the owner would be subject to the payment of commission, not under the terms of section 3587 of the Civil Code (1910)., but only when the sale was actually consummated. It not appearing that the offer was unconditional, or that the defendant owner refused to consummate the terms of the proposal, he was not subject to the payment of commission, and the trial judge did not err in sustaining the demurrer to the petition.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    16022.
    O’Quinn v. Carter.
    Decided September 9, 1925.
    Complaint; from city court of Jesup — Judge Clark. December 16, 1924.

      W. B. Gibbs, for plaintiff.

      J. 11. Thomas, for defendant.
   Jenkins, P. J.

1. “If the fact of suretyship does not appear on the face of a note, it may be proved by parol; and the relative position of the makers’ names is immaterial, if one is surety of the other.” Trammell v. Swift Fertilizer Works, 121 Ga. 778 (49 S. E. 739). Where a tenant and a landlord both sign a mortgage note for the purchase of a mule, apparently as joint makers, but it is agreed between them that the tenant is to “buy” the animal, and the landlord is to “endorse his note for same,” and the tenant accordingly so purchased the mule, the landlord is a surety and not a joint maker.

2. Where the transaction between the landlord and tenant is one merely of suretyship on the part of the landlord, such as his indorsement of a mortgage note as described above, for the purchase of a mule, the landlord is entitled to no lien for supplies under section 3348 of the Civil Code -(1910) on account of having furnished the animal. Brimberry v. Mansfield, 86 Ga. 792 (13 S. E. 132); Rodgers v. Black, 99 Ga. 139 (25 S. E. 23); Phillips v. Freeman, 30 Ga. App. 450 (1) (118 S. E. 404). Nor can estoppel operate to create such a special lien, where none exists under the statute. Parks v. Simpson, 124 Ga. 523 (2) (52 S. E. 616).

3. Where a landlord has no title or lien upon property of the tenant, the oral promise of a third person that, if the landlord will permit the tenant’s property to be removed from the landlord’s premises to those of the third person, he will be responsible for the payment of a mortgage note, executed by the tenant as principal and by the landlord as surety, is void and unenforceable, as being without a consideration moving either to the promisor or to the tenant.

4. Construing against the pleader, as must be done, the allegation of the landlord’s petition for the enforcement against a third person of a promise such as is described above, the plaintiff landlord being merely a surety on the tenant’s mortgage note and having no legal right of lien against the tenant, the promise of the defendant to be responsible for the tenant’s debt was without a consideration, and for this reason the court did not err .in sustaining the general demurrer to the plaintiff’s petition. The petition being thus properly dismissed, it is unnecessary to consider additional grounds of the demurrer relating to the statute of frauds.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16205.
    Maryland Casualty Company v. Campbell.
   Jenkins, P. J.

1. Tlie Georgia -workmen’s compensation act provides, where death follows an injury to an employee, that those entitled to compensation shall have been wholly or partly “dependent upon his earnings for support at the time of the injury,” and that “questions of dependency, in whole or in part, shall be determined in accordance with the facts as the facts' may be at the time of the accident, . . and no compensation shall be allowed, unless the dependency existed for a period of three months or more prior to the accident.” Ga. L. 1920 (sections 38 (b), (c), 39), pp. 188-190; Park’s Code-Supp. 1922, § 3254 (11), (mm). The question of dependency is one of fact, to be determined according to the facts and circumstances of each particular case, from the amounts, frequency, and continuity of actual contributions of cash or supplies, the needs of the claimant, and the legal or moral obligation of the employee. While, under the act, “dependency” must have actually existed “at the time of the accident” and also “for a period of three months or more prior to the accident,” physical contributions of cash or supplies are only evidential of such dependency, and the fact that such physical contributions were temporarily interrupted by unemployment or some cause independent of the will and desire of the employee, and were not made continuously for three months immediately preceding the injury, will not of itself necessarily negative dependency, where it otherwise appears, from the evidence, that for several years before the employee left the home of his claimant mother, two months and nine days prior to the accident, he regularly and continuously contributed one half of the amount necessary for her support, by buying her groceries, in the sum of $10 to $12.50 a week, that he left home for another city merely to obtain employment and money, that at the time of leaving he arranged with his mother to continue his contributions, and during his absence his mother continued to purchase and use groceries according to previous practice, under which he had either paid the grocer directly or had given her the necessary money therefor, that at the time he left home he also promised to send money back, that, six days before the accident, a letter from him was written and received, stating that he expected to come home in three weeks and would bring her some money, and that previously during similar temporary unemployment or absences he always made his grocery payments. Under this evidence, the commission was authorized to find that dependency existed within the meaning of the statute, and the superior court, on the appeal of the insurance carrier, did not err in affirming such a finding. See Millers’ Indemnity Underwriters v. Green (Tex. Civil App.), 237 S. W. 979; ex parte Jagger Coal Co,, 211 Ala. 11 (99 So. 99) ; 20 Neg. & Comp. Cases, 674; case notes, 30 A. L. R. 1253-1256; Fuller v. Inman, 10 Ga. App. 680 (1), 686 (74 S. E. 287) ; 1 Schneider Workmen’s Compensation Law, pp. 869, 926, 927; 1 Honnold on Workmen’s Compensation, pp. 224, 256, 269.

2. Exception is taken to the amount of the award by the commission of $3.91 per week for 300 weeks as unsupported by evidence, and it is contended that the correct amount should have been $2.98 per week, UndeF section 38, subdivisions b and c, of the act as amended, and section 30, the findings of the commission on which its award was . based appear to have been fully authorized, and its calculation therefrom correct.

Decided September 9, 1925.

Appeal; from Fulton superior court — Judge Humphries. December 17, 1924.

Underwood, Pomeroy & Haas, for plaintiff in error.

E. 0. McGord & Son, Dorsey, Brewster, Howell & Heyman, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16214.
    Southern Railway Company v. Clark.
    Decided September 9, 1925.
    Action for damages; from Fulton superior court — Judge Humphries. December 23, 1924.
    Certiorari was granted by the Supreme Court.

      McDaniel & Neely, Rembert Marshall, for plaintiff in error.

      R. B. Blackburn, contra.
   Jenkins, P. J.

1. A passenger of a railway company who has been carried beyond her destination may elect to sue either for a breach of the contract or in tort. In this action the plaintiff has expressly elected to sue in tort.

2 It being shown by the petition that the alleged continuous tort was committed partly in one of tlie counties of this State, and continued beyond the limits of this State over in an adjoining State, in which the principal injury was committed, the court of the county where the tort originated did not have exclusive jurisdiction (Central of Ga. Ry. Co. v. Dorsey, 116 Ga. 719 (3), 42 S. E. 1024) ; and since “the statutory rule confining suits against railroad companies for torts to the county in which the cause of action arose does not apply to torts committed beyond the limits of the State by a non-resident railway company” (Atlantic Coast Line R. Co. v. Stephens, 11 Ga. App. 520 (1), 75 S. E. 841), there was no error in overruling the demurrer to the petition, based upon the ground that the court was without jurisdiction, where it appears that the suit against the foreign railway corporation was brought in another county of this State, in which the defendant maintained an office and place of business.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16216.
    Wimberly v. Tanner, guardian.
    Decided September 9, 1925.
    Rule; from Laurens superior court — Judge Kent. December 31, 1934.

      S. P. New, M. H. Blachshear, H. B. Wimberly, for plaintiff in error.

      B. B. Blount, contra.
   Bell, J.

1. The rule that contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument (Civil Code of 1910, § 5788) is not violated by proof of a new and distinct subsequent agreement in the nature of a novation. Civil Code (1910), § 5794. But the novation, to be valid, must be supported by some new consideration. Civil Code (1910), § 4226; Collier Estate v. Murray, 145 Ga. 851 (1) (90 S. E. 52).

2. Where under a written contract an attorney at law was employed to represent the other contracting party in obtaining satisfaction of a claim for damages for a tort committed by a third person, and was empowered to enter suit whenever in the opinion of the attorney it became necessary, and was expressly authorized to make such settlement of the claim as he saw fit, without further consent from this client, the authority to compromise, owing to the peculiar relation of attorney and client, was revocable by the client at will at any time before it was executed. Glover v. Dimmock, 119 Ga. 696 (1) (46 S. E. 824) ; Davis v. First National Bank, 139 Ga. 702 (78 S. E. 190, 46 L. R. A. (N. S.) 750); Bearden v. State, 13 Ga. App. 264 (2), 267 (79 S. E. 79) ; Maxwell v. Pate (Miss.), 16 So. 529.

3. Where an attorney at law, who was employed under a contract containing the provisions mentioned above and further providing that he should receive for his services a contingent fee of fifty per cent, of the recovery, after suit filed informed his client that he was about to compromise the case upon the payment by the defendant of the sum of $1,500, to which the client objected, contending that the sum was too small and instructing the attorney to proceed with the litigation unless he could procure better terms of settlement, and where the attorney replied with a proposition to the effect that if the client would consent to the settlement as stated he, the attorney, would exact as his compensation only one third of the recovery, to which proposition the client assented, and the attorney thereupon effected the settlement accordingly, such new and subsequent oral agreement in regard to fees was not wanting in consideration; nor was it a violation of the parol-evidence rule to admit proof of the same, in the trial of a money rule upon a petition by the client against the attorney wherein the only issue in dispute was as to the amount of the attorney’s fee. This case is distinguishable from such eases as Willingham Sash & Door Co. v. Drew, 117 Ga. 850 (1) (45 S. E. 237).

4. Applying these rulings, the court did not err in overruling the attorney’s motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., ooneur.


text:
    16218.
    Hale, administrator, v. Hale, administratrix.
   Jenkins, P. J.

An administrator sued an administratrix on a promissory note executed by lier intestate. The defendant by her plea admitted “a prima facie case for the plaintiff,” setting up the execution of the note by her intestate, and admitting that “the plaintiff as administrator . , is the holder thereof,” but in her plea further averred that the note not only was paid, but was thereafter surrendered. to defendant’s intestate, and, while in his possession at the time of his death, wrongfully came into the possession of the plaintiff administi'ator. On the trial of the case the defendant, without objection, assumed the burden of proof, and obtained the opening and conclusion. The defendant introduced, without objection, certain evidence indicating payment, and certain evidence indicating subsequent possession of the note by the defendant’s intestate. The judge in his charge instructed the jury that possession of the note by the payee is presumptive evidence of nonpayment, but further instructed them to the effect that if they should believe that the note had been surrendered to the defendant’s intestate, this would raise a rebuttable counter-presumption of payment. To this charge the plaintiff excepted, on the theory that the defendant, having admitted a prima facie case, was not entitled to the benefit of any such counter-presumption as was authorized by the charge. Exceptions were taken also to the exclusion of certain evidence. Seld:

1. When suit is brought upon an unconditional contract in writing, and the defendant in his answer admits a prima facie case, and states that he executed the note and that the plaintiff is the actual holder thereof, this constitutes such an admission as would authorize a judgment in the amount sued for, unless under other portions of his plea he should prove a defense such as would prevent a recovery. A presumption of non-payment arises from the plaintiff’s possession of the note, and in like manner, a presumption arises from the payee’s possession that he is legally entitled thereto. Merchants Nat. Bank v. Trustees, 62 Ga. 271, 272 (4) ; Brantley v. Merchants Bank, 22 Ga. App. 667 (2, 3) (97 8. E. 109) ; Walden v. Downing Co., 4 Ga. App. 534 (61 S. E. 1127). If the defendant, in accordance with his pleading, shows that the note had been surrendered to him, the presumption of non-payment would be met, and the burden of showing non-payment would shift to the plaintiff. The charge of the court was in accordance with the law as stated above. The fact that the defendant admitted that the plaintiff as administrator was the actual holder of the note, and was therefore presumably entitled to a judgment, would not estop her from proving the remainder of her plea, to the effect that such possession was in fact illegal and wrongful, and that the plaintiff was not entitled to a recovery, as prima facie appeared to be the case. Especially would she be entitled to the benefit permitted by the charge, when the evidence in support of such defense in her plea, setting up wrongful possession on the part of the plaintiff, was admitted without objection. The note in question was executed and the suit thereon was instituted prior to the enactment of the present Negotiable Instruments Law on August 18, 1924, although the case was tried on the day following enactment. Ga. Laws 1924, pp. 126, 138. Whether or not the provisions of section 59 of that act would operate to change the previous rule as to the burden of proof under the plea need not be decided, since no exception is taken to the defendant’s having been allowed the right to open and conclude. See also Goodell v. Wright, 72 Ga. 899; McCranie v. Williams, 27 Ga. App. 693, 697 (109 S. E. 699) ; Standard Paint Works v. Powell, 27 Ga. App. 691 (2) (109 S. E. 513) ; Adams & Co. v. Skipper, 9 Ga. App. 123, 126 (70 S. E. 692).

Decided September 9, 1925.

Complaint; from Walton superior court—Judge Fortson. December 31, 1924.

B. L. & H. C. Cox, A. G. Stone, for plaintiff.

Orrin Roberts, Wolver M. Smith, for defendant.

2. The court did not err in excluding as irrelevant a writing offered by the plaintiff, signed by two of the brothers of the defendant’s intestate, but unsigned by him, embodying the terms of an alleged settlement between the decedents of the parties and their brothers and sisters in adjusting an estate, in connection with which the note was given, there being no sufficient evidence to show an acceptance of the provisions of such writing by the defendant’s intestate. Nor did the court err in excluding the testimony of the widow and heir at law of one of the brothers of defendant’s intestate, as to a conversation between the husband of the witness and the defendant’s intestate with reference to the receipt by the intestate through the mail of the writing described above, and as to his connection therewith; the witness, being “a person interested in the result of the suit,” and such testimony, if otherwise relevant, being inadmissible under section 5858, subdivisions 1 and 4 of the Civil Code (1910).

3. The court properly overruled the plaintiff’s motion for a new trial.

Judgment affirmed.

Sie2)hens and Bell, JJ., concur.


text:
    16219.
    Owens, by guardian, v. Anchor Duck Mills.
   Bell, J.

1. In order for a mother to recover under the provisions of § 4424 of the Civil Code for the homicide of her child, it must appear not only that the child contributed substantially or materially to her support, but also that she was dependent upon it to an appreciable or material degree therefor. Clay v. Central R. Co., 84 Ga. 345 (1) (10 S. E. 967) ; Western Union Telegraph Co. v. Harris, 6 Ga. App. 260 (4) (64 S. E. 1123) ; Central of Georgia Ry. Co. v. Swann, 19 Ga. App. 691 (1) (91 S. E. 1068) ; Savannah Electric Co. v. Thomas, 30 Ga. App. 405 (8) (118 S. E. 481).

2. Where the mother of a child for whose death she sued by guardian, under § 4424, supra, had, while a citizen of this State and long prior to the child’s homicide, been duly committed by the ordinary to the. Georgia State Sanitarium, as an insane person, and remained an inmate of that institution under the commitment until the time of the homicide, she was not dependent upon the child for her support within the meaning of the code section just referred to. Civil Code (1910), §§ 1576, 1601, 1605, 1606, 1607; Smith v. Hatcher, 102 Ga. 158 (2) (29 S. E. 162) ; Rees v. Penrikyber Nav. Colliery Co. (1903), 1 K. B. 259, 72 L. J. K. B. 85, 87 L. T. 661, 5 B. W. C. C. 117; Roberts v. Whaley, 192 Mich. 133 (1) (158 N. W. 209, L. R. A. 1918A, 189).

Decided September 9, 1925.

Action for damages; from Floyd superior court — Judge Wright. January 10, 1925.

Porter & Mebane, for plaintiff.

Paul H. Doyal, Maddox, Matthews & Owens, for defendant.

3. The above facts appearing in the petition should prevail over the conclusion of the pleader that the plaintiff was dependent upon the child. Conclusions in pleadings are to be disregarded where they are contradicted by the particular facts alleged. Flynt v. Southern Ry. Co., 7 Ga. App. 313 (1) (66 S. E. 957); Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (4) (118 S. E. 471).

4. Counsel for the plaintiff in error, who seek to have the petition construed only as an action under § 4424, supra, seem to concede that the petition fails to show dependency, but contend that this fact is not essential to the action where it sufficiently appears that the child contributed materially or substantially to the parent’s support. Notwithstanding dependency and contribution are mentioned alternatively in the code,- it has been uniformly held, since the decision of the Supreme Court in Clay v. Central R. Co., supra, that dependency and contribution must both be shown in order for the parent to be entitled to recover in such an action. See Hudson v. Devlin, 28 Ga. App. 458 (1) (111 S. E. 693).

5. The court did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

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


text:
    16235.
    DILLIN v. UNITED ROOFING & SUPPLY COMPANY et al.

    1. Where, after a judgment in the municipal court of Atlanta, one of two defendants in the action, on carrying the case by certiorari to the superior court, gave bond payable only to the plaintiff, the other defendant was not a party to the certiorari and the superior court properly refused to sustain the certiorari merely to correct an error relating only to a contention between the petitioner in certiorari and the other defendant.
    2. One who was not a party to the certiorari proceeding is not a proper party to a bill of exceptions complaining of a judgment therein and should not be made a party to the bill of exceptions even upon his own application.

      3. In order to obtain in this court a reversal of a judgment, the burden is upon the plaintiff in error to show both error and injury. It does not appear in the instant case that the judgment excepted to hurt the plaintiff in error.
    Decided September 9, 1925.
    Certiorari; from Fulton superior court •—■ Judge Humphries. December 1, 1924.

      George Westmoreland, W. S. Dillon, W. J. Davis Jr., for plaintiff in error.

      Stephens Mitchell, Augustin Sams, contra.
   Bell, J.

United Roofing & Supply Company brought suit in the municipal court of Atlanta against H. W. Dillin, as contractor, and H. H. White, as owner, for the purpose of procuring a personal judgment against Dillin and of foreclosing a materialman’s lien on certain real estate belonging to White, to improve which the material had been furnished to Dillin in the erection of a dwelling house. Dillin answered that he procured the materials as agent, and that the liability was White’s. White pleaded that the material had been purchased by Dillin as contractor, and that for certain reasons, which need not be here stated, the plaintiff was not entitled to a lien against the realty. It seems that each of the defendants was perfectly willing for the plaintiff to have relief against the other, but denied the plaintiff’s right as against himself. The trial resulted in a personal judgment against Dillin, the alleged contractor, without any lien against the realty. Dillin filed a petition for certiorari in which the following were the assignments of error: “Petitioner avers that said court erred in entering up a judgment as aforesaid; that the plaintiff in said case should have been awarded a judgment against said H. H. White as owner of the property as well as against your petitioner. The evidence in said case showed that there was certain extra work in connection with said original contract which was authorized by the owner; that there was an agreement by the owner to pay said extra work and that said owner had failed to pay for the extra work; that the extra work in question as a matter of law was fully within the contract, and the lien of the subcontractor attaches to the money due for such additional work as completely as to the work done under the specifications in the contract and that the United Roofing & Supply Company in this case should have a lien against said property in the amount sued for, and that the court erred in its failure to so hold.”

The certiorari bond was payable only to the United Roofing & Supply Company. The certiorari was overruled or dismissed, and Dillin excepted. The bill of exceptions having been only against United Roofing & Supply Company, White made application, to the court to be made a party thereto, waiving service and agreeing that the case might be heard. The record is somewhat voluminous, but, in the view we take of the case, the above is a sufficient statement.

The plaintiff materialman sought a personal judgment against the alleged contractor, and also a lien against the real estate improved. He got only the personal judgment, but appears to be satisfied. The alleged contractor is the only party who is displeased with the judgment, and his dissatisfaction is solely because the plaintiff did not obtain the relief sought against the other defendant. He takes the position that the failure of the judgment to set up a lien in the plaintiff’s favor against the property is an adjudication against his contention, made in the trial court, that the original contract for the erection of the building was enlarged so as to include certain extras or additions, and that the price originally agreed upon between him and the owner for its erection was increased accordingly. Whether the contractor could use the materialman’s action for the purpose of setting up such a contention between him and the owner, it would seem that if he might do so at all, the owner would be a necessary party to all proceedings in' which such contention was made. The bond accompanying the petition for certiorari was payable only to the United Roofing & Supply Company. The statute requires that it shall be payable to the adverse party. Civil Code (1910), § 5185. The fact that White was not included as one of the obligees was a sufficient, if not a compelling, reason for the refusal of the superior court to render any judgment on the certiorari affecting his interests. Indeed, because of this failure to make White a party to the bond, he was not a party to the certiorari. As to him the proceedings were void. Camp v. Bacon Fruit Co., 117 Ga. 149 (43 S. E. 425); Hawkes Co. v. Cowart Co., 21 Ga. App. 397 (2) (94 S. E. 643); Cole v. Thurman, 119 Ga. 55 (45 S. E. 718).

2. Since White was not a party to the judgment on the certiorari, he is not a proper party in this court to the bill of exceptions. Chason v. Anderson, 119 Ga. 495 (1) (46 S. E. 629); Armistead v. Beavers, 32 Ga. App. 464 (2) (124 S. E. 61). Although he has applied to be made a party, if the application should be granted and if we should then consider the case for the purpose of reviewing the judgment excepted to as between him and Dillin, we would be dealing with a case entirely different from that which was before the superior court, whose judgment, as we have said above, was entirely proper because of the absence of White in that court as a party to the certiorari. The application is therefore denied.

An affirmance of the judgment would necessarily result from what has been said above, without more. But even assuming that White was a party to the certiorari, and that his application to be made a party to the bill of exceptions should be granted, the judgment of this court would not be different. Without stopping to decide whether Dillin might have been able, in the nature of the proceeding, to show prejudice to himself by the refusal of the trial court to set up a lien in the materialman’s favor against the realty, we are clearly of the opinion that he has not done so. “In order to obtain in this court a reversal of a judgment of which complaint is made, the burden is upon the plaintiff in error to show not only error but injury.” First National Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717 (1) (48 S. E. 326). The assignments of'error in the petition for certiorari, even if sufficient to present a question for decision, go no further than to allege that the judgment ought to have granted more to the materialman. It is not shown that the judgment, in failing to establish a lien in the plaintiff’s favor upon the property of White, was in any sense adverse to Dillin. “It is not the privilege of a party to an action to except to the judgment therein rendered, unless he is, either as an individual or in a representative capacity, aggrieved thereby; and no-one is, in a legal sense, aggrieved by a judgment which does not prejudicially affect his rights of property or pecuniary interests, or those of others for whom he is, relatively to the suit in which the judgment is rendered, the duly constituted representative.” Lamar v. Lamar, 118 Ga. 684 (1) (45 S. E. 498). Also, in this connection, see Townsend v. Davis, 1 Ga. 495 (44 Am. Dec. 675); O’Halloran v. O’Halloran, 49 Ga. 301; Braswell v. Equitable Mortgage Co., 110 Ga. 30 (35 S. E. 322); Collier v. Hyatt, 110 Ga. 317 (1) (35 S. E. 271); Johnston v. Coney, 120 Ga. 767 (4) (48 S. E. 373); Douglas v. Trust Co., 147 Ga. 724 (95 S. E. 219); Penland v. Jackson, 157 Ga. 569 (122 S. E. 44). Nothing said herein is to be construed as adjudicating the rights of White and Dillin; and whether they have been adjudicated by the judgment o of the superior court or of the municipal court is not for decision under the present record. In any possible view of the case the superior court was right in dismissing the certiorari.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    16224.
    Wilson v. Gray.
    Decided September 9, 1925.
    Complaint; from city court of Houston county—Judge Riley. December 29, 1924.

      Marx Kunz, for plaintiff in error.
   Jenkins, P. J.

This was a suit on a promissory note, brought by the transferee of a decedent payee as holder and owner. The defendant introduced testimony of himself and of another in support of his plea of payment. There were certain facts and circumstances in evidence which might have been taken as discrediting defendant’s testimony. The jury found in favor of the plaintiff, and exception is taken to the overruling of a motion for a new trial based on the general grounds only. Held: The rule involved that “a defense established by the positive and uncontradicted testimony of unimpeached witnesses can not lawfully be arbitrarily disregarded” (Western & Atlantic R. Co. v. Beason 112 Ga. 553 (1) (37 S. E. 863)) does not mean that the jury are obliged to believe testimony which under the facts and circumstances disclosed they in fact discredit, but means that they are to consider the testimony of every witness who is sworn, and not arbitrarily disregard the testimony of any witness. Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842, 844 (1) (39 S. E. 551, 61 L. R. A. 513); Cen. of Ga. Ry. Co. v. Mote, 131 Ga. 166 (8) (62 S. E. 164) ; Haverty Furniture Co. v. Calhoun, 15 Ga. App. 620 (1) (84 S. E. 138). The trial court having approved the finding in this case, the evidence disclosed by the record is not such as would permit this court to set aside the finding of the jury.

Judgment affirmed.

Stephens and Bell, JJ., concur.