author: Broyles, C. J. Bloodworth, J.,

text:
    15487.
    FOWLER v. THE STATE.
    A conviction of gaming was not authorized by the evidence.
    Decided May 15, 1924.
    Accusation of gaming; from city court of Baxnesville — Judge Redding. February 9, 1924.

      Claude Christopher, for plaintiff in error.

      Herman M. Johnson, solicitor, contra.
   Broyles, C. J.

The defendant was convicted of playing cards for money. The only witness for the prosecution testified that he looked through the window of a house and saw the defendant and two other persons inside the house, engaged in a game of cards, and that they were gambling. The statement that they were gambling was of course, a conclusion of the witness, based upon what he saw (he heard nothing). The only facts positively proved against the defendant were that he and two other persons were playing cards and that each of them “had” money. It was not shown where the money was — whether in their hands, in front of them, or in their pockets. The witness did not testify that he heard any bet made, or that he saw any money put down or taken up by any of the men engaged in the game of cards, although he swore that he saw the defendant “win one time.” The witness testified also that the three men ran and escaped when he forced open the door to the house and fired a pistol. The defendant in his statement to the jury admitted that he was playing cards, but denied that he was gambling, and two other* witnesses (the only persons not playing cards in the room where the alleged gambling was going on) corroborated the defendant’s statement. The evidence for the State was sufficient to raise a strong suspicion that the defendant and his companions were gaming, but, as was said by Judge Eussell in Griffin v. State, 2 Ga. App. 534, 535 (58 S. E. 139) : “The law does not authorize conviction upon suspicion, no matter how violent, nor relax the rule laid in the Penal Code [of 1895], § 984 [Penal Code of 1910, § 1010], for the mere reason that gambling is detestable, that gamblers should be punished, and that proof of guilt is hard to obtain. The same rule applies to gaming as to all other offenses. cTo warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.’ Circumstances which authorize a mere conjecture of guilt are not sufficient to warrant a conviction, and the evidence, when entirely circumstantial, should connect the defendant with the criminal act.”

It follows from what has been said that the defendant’s conviction was unauthorized by the evidence, and that the court erred in overruling the motion for a new trial.

Judgment reversed.

Lulce, J., concurs.

Bloodworth, J.,

dissenting. I think the evidence amply sufficient to support the verdict.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14431.
    Tilley v. Cook & Flake.
    Decided May 17, 1924.
    Affidavit of illegality of execution; from Eockdale superior court —Judge Hutcheson. January 17, 1923.

      J. R. McOalla, for plaintiff in error.

      Q. L. Williford, contra.
   Jenkins, P. J.

Under the answer of the Supreme Court to the controlling question certified to it by this court, the trial court had'no jurisdiction to entertain the motion of the defendant in fi. fa. to dismiss the levy, and consequently the judgment overruling the motion must be affirmed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15066.
    ROWAN v. NEWBERN.
    1. “The purchaser of lands obtains with the title, however conveyed to him, at public or private sale, all the rights which any former owner of the land, under whom he claims, may have had by virtue of any covenants of warranty of title . . contained in the conveyance from any former grantor, unless the transmission of such covenants with the land is expressly negatived in the covenant itself.” Civil Code (1910), § 4192. The purchaser at an official sale of real estate, legally made by an administrator, with reference to a covenant of warranty made by the former owner, “is put in the same situation that the intestate was in.” Itedmne v. Brown, 10 Ga. 311 (11), 320. Where an administrator applied to the ordinary for leave to sell all the lands of the estate of an intestate including a described tract, and, after citation, an order was granted accordingly and the tract sold, the fact that so far as this tract was concerned the administrator, at the time of the petition, the order, and the sale, had only an interest evidenced by a bond for title from the vendor to the intestate, with part of the purchase-money paid, would not .invalidate the sale and prevent the purchaser of the particular tract from maintaining an action against the original vendor on a breach of warranty of title, where immediately following the administrator’s sale the purchaser paid the full purchase price, arid the administrator paid to the vendor the balance of the consideration due under the bond for title, the vendor thereupon executing to the administrator a deed containing the warranty of title, and the administrator on the same date executing a deed to the purchaser.
    2. “In suits for breach of warranty the burden of proof is on the plaintiff, except in cases where outstanding incumbrances have been paid off, or possession has been yielded in consequence of legal proceedings of which the warrantor had notice and an opportunity to defend.” Civil Code (1910), § 4197. “Even where there has been no suit in court to recover land from” the plaintiff, “if he can show by proof that there was a paramount title outstanding against him, to which he was obliged to yield obedience, and that parties had taken possession under that title, this in itself would in law amount to an eviction, and would be such a breach of warranty as would authorize him to recover.” “It is not necessary that the tenant should be forcibly ejected or dispossessed of the demised premises by process of law, but he may peaceably yield possession to the person who has the superior title.” Lowery v. Yawn, 111 Ga. 61, 63, 64. In the trial of the instant action for damages for a breach of warranty, the evidence as to the previous proceedings brought by the plaintiff in the city court against another for damages on account of timber trespass, and the verdict and judgment for the defendant in that suit, were material only as a part of the history of the ease, showing why and how the plaintiff had yielded possession or claim of the tract in question to the successful defendant in that suit, and did not establish or tend to establish that such person held a paramount title, but the burden was upon the plaintiff to establish otherwise such alleged paramount title.
    3. The effect of a recorded deed which has not been attested as required, by law to entitle it to registration is the same as if the deed had not been recorded. MoCandless v. Yorkshire Corporation, 101 Ga. 180 (4) (2S S. E. 663).
    4. “Constructive possession of lands is where a person having paper title to a tract of land is in actual possession of only a part thereof. In such ; a case, the law construes the possession to extend to the boundary of the tract.” Civil Code (1910), § 4166. “Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced therein.” Civil Code, § 4167. This latter section, first codified as section 3587 in the Code of 1895, has evoked the question, as yet apparently undetermined in its applications, as to whether and under what circumstances possession under an unrecorded deed executed since 1895 will ripen into a prescriptive title. Powell on Actions for Land, §§ 310-313, notes and cases cited; Roberson v. Downing Co., 120 Ga. 833 (48 S. E. 429, 102 Am. St. Rep. 128, 1 Ann. Cas.' 757), reviewing cases. But, “waiving all considerations as to the effect of the Code of 1895 on the subject of the essentiality of recordation of a deed as to constructive possession, in the case of a deed executed prior thereto record of it was not necessary in order for it to operate as color of title so that possession of a part of the tract of land covered by it would extend to the limits of the tract described in it. (a) The possession of a person having paper title to a designated lot of land laid out by official survey, which is traversed by a stream, and who is only in possession of the part of the lot on one side of the stream, will be construed to extend to the boundaries of the lot.” Dodge v. Cowart, 131 Ga. 549 (3 a), 550 (62 S. E. 987). The jury in the instant case found for the plaintiff. On the issue as to whether the plaintiff had yielded to an outstanding-paramount title, the evidence was such as to demand a verdict for the plaintiff, since it indisputably appears that a good prescriptive title by seven years possession under an unrecorded deed had ripened, long prior to the date when the plaintiff acquired his deed, in favor of the one to whom the plaintiff surrendered his claim. Consequently it is unnecessary to consider the exceptions with reference to that question presented in the defendant’s motion for a new trial, and it is only necessary to determine the exceptions relating to the value of the part of the property the title to which had failed, as to which the evidence was conflicting.
    5. “Upon a covenant of warranty of title to land, the damages should be the purchase money with interest thereon from the time of sale, unless the jury should thiiik, under the circumstances of the case, that the use of the premises was equal to the interest on the money, and that such equitable set-off should be allowed.” Civil Code (1910), § 4400. Where the title to only a portion of the land conveyed has failed, the damages are fixed on the basis of the proportionate value that.such part bears to the purchase money paid for the whole. The court properly charged in effect the language of the code and this principle, and the reference to the allowance of a set-off to the defendant could not have been injurious to him. The amount of the verdict was authorized by the evidence.
    Decided May 17, 1924.

      Action for breach of warranty; from Cook superior court — Judge Dickerson. September 18, 1923.

      W. I). Buie, B. A. Hendriclcs, for plaintiff in error.

      William Story, John P. & Dewey Knight, contra.
   Jenkins, P. J.

The tract in question was a part of the lands conveyed by the deed of Bowan to an administrator and by the administrator to the plaintiff. This part consisted of 47-% acres, located in the northeast corner of lot No. 227 in a stated district and county, bounded on the south and west by “the run of Bushy creek.” The alleged paramount title held by Tyson was based on a deed from Young dated December 8, 1884, bearing entry of record January 22, 1904. There being no official witness, this record, however, was void and ineffective. The deed to Tyson purported to convey the entire north half of lot No. 227, including the 47-% acres in controversy. The undisputed testimony of Tyson showed that under this deed he went into possession of the lower portion of the tract in 1887, built a house, and cleared up 25 or 30 acres of land, on which he had made crops continuously each year since that time without intermission. This actual adverse possession of a part of the lot under-paper title was sufficient to extend constructive possession to the northern boundary of the lot, including the 47-% acres, and thus to ripen into a good prescriptive title after seven years, viz. in 1894, unless the ripening of such prescription was defeated or interrupted by one of the-recognized exceptions.

The defendant claimed under deeds to himself and to his grantors, covering the tract in question, but failed to show a good paper title; the original deed to his grantors being executed November 21, 1891, several years subsequent to the deed held by Tyson, and being recorded February 5, 1898. The defendant’s deed to the administrator containing the warranty, and the deed by the administrator to the plaintiff, were made November 5, 1912. There was testimony elicited on cross-examination of the plaintiff to the effect that there had been some cutting and “turpentining” of timber on the 47-% acres by the plaintiff’s predecessors in title, since the deed was made to the plaintiff and during the alleged ownership of the defendant and his grantors; but the periods and dates of this cutting were not fixed, so as to show an interference ■with the exclusiveness of Tyson’s prior and continued possession up to the time that his prescriptive title had ripened. The evidence as to turpentining was likewise wholly insufficient to raise an issue for the jury. Although the plaintiff testified that such work “was going on for a number of years, probably 20, — I don’t know about that,” elsewhere stating that it was “12 or 15 years” while the plaintiff and his predecessors “had it” (the suit being filed in 1918, and the testimony given at the trial in 1921), there was not only a failure to show the nature, openness, and extent of the acts of “turpentining,” so as to present an issue for the jury whether these were sufficient to interfere with the exclusiveness and continuity of Tyson’s possession (Flannery v. Hightower, 97 Ga. 592 (3), 606, 25 S. E. 371; Walker v. Steffes, 139 Ga. 520 (3, 6-7, 9 b), 77 S. E. 580; Mitchell v. Crummey, 134 Ga. 383 (6), 387, 67 S. E. 1042), but also a failure to identify or fix the time when such “turpentining” began and ended, or any fact to indicate that it commenced as early as or prior to 1894, by which time the possession and prescriptive right of Tyson under his older, though unrecorded, deed had become complete. His title being thus perfected and his possession of the premises continuing, the subsequent acts of the defendant and his predecessors with reference to the timber, so far as shown by the evidence, would not defeat such title.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15084.
    Columbus Electric & Power Company v. Wheat.
   Jenkins, P. J.

1. This ease involves the same transaction involved in the case of Central of Ga. Ry. Co. v. Wheat, 32 Ga. App. 151 (122 S. E. 794), and the general and special demurrers of the electric-railway company to the petition present the same questions' relating to misjoinder of parties and of causes of action as were determined adversely to the railway company in that case. It was not contended, under the general grounds of demurrer, that the petitions failed to set forth a cause of action for any reasons except the alleged misjoinders, these questions being specifically raised by both the general and special demurrers.

2. The 10th paragraph of the petition alleges: “At said time and place the street-car in which plaintiff was a passenger was what is known as a ‘one-man’ car, — that is, a ear operated and controlled by only one person, who performs the duties and services usually performed by the motorman and conductor; said motorman-eonductor who was in charge of said car at said time allowed passengers to enter and leave said car, collected fares, operated tfie mechanical devices by which said car was propelled, and was in general and exclusive charge of said car.” The 17tji paragraph alleges: “that there was on February 13, 1923, a valid and existing ordinance of the City of Columbus, which ordinance was at said time in full force and effect, and which, so far as material hereto, provided as follows: “Sec. 2. It shall be unlawful for any street-railroad company, or any employee thereof, to run or operate any street-car over and across any railroad track or tracks, commercial or street-railroad, before first bringing said street-car to a full stop at a point not less than twenty feet from the nearest rail of said track about to be crossed, and before such crossing the conductor in charge of said street-ear shall precede his ear, and under no circumstances shall he dllov) said car to proceed until he has looked in both directions for the approach of engine or engines and ears upon such intersecting railroad track or tracks.” The 25th paragraph, in specifying alleged acts of negligence on the part of the electric company, causing the collision between the streetcar and the train, alleges negligence “in the motorman-conductor in charge of defendant electric-company’s street-car, not preceding said street-ear across said intersecting track of said railway company; ” and “in said motorman-conductor in charge of defendant electric-company’s said street-ear, not looking in both directions for the approach of engine or engines and cars upon said intersecting track of said railway company.” The defendant filed no demurrer to paragraph 10 describing the method of operating the car by one man as both motorman and conductor, or to paragraph 25 specifying the acts of negligence, but did demur specially to the italicized language from the ordinance quoted in paragraph 17, “because said petition shows on its face that said ordinance is a penal ordinance and should be strictly construed, and that said defendant . . had no conductor in charge of its car at the time and place set out in said petition, and said petition shows on its face that said ordinance does not apply to the one-man ear alleged in said petition, and the allegations setting out said ordinance are harmful to this defendant and should be stricken from said petition.” Held: The portion of the ordinance attacked makes two requirements of the “ street-railroad company or any employee thereof,” — (1) that “the conductor in charge of said street-car shall precede his car” before crossing a railroad track, and (2) that he shall not “allow said ear to proceed until he has looked in both directions for the approach of engine or engines and ears upon such intersecting track or tracks.” It is insisted that, as it was a physical impossibility for only one man, in charge of an electric-car as both motorman and conductor, to precede the ear and at the same time propel it across the track, the italicized portion of the ordinance did not apply to the ear in question, and should be stricken. As to special demurrers moving “to strike . . entire paragraphs as being immaterial and impertinent, ” it has been held that where “ some of the allegations in each paragraph criticized were not open to this objection, the court did not err in refusing to strike the entire paragraph.” Southern Ry. Co. v. Phillips, 136 Ga. 282 (1), 285 (71 S. E. 414). While the special demurrer in the instant case does not point out a particular portion of a paragraph and ordinance as objectionable, and the question here is therefore somewhat different from that in the ease cited, the demurrer does not segregate the alleged objectionable part from an unobjectionable part of the ordinance,' but moves .to ■ strike the italicized language as a whole. In view of the acts of negligence charged in the 25th paragraph as to neither of which is the paragraph attacked, and the facts that, even conceding, as insisted, that it would be a physical impossibility for a lone operator of a one-man street-ear tp observe the first of the requirements of the ordinance in preceding his own car across the railroad track, no such impossibility could exist with reference to the requirement that he should “look in both directions for the approach” of engines or trains before allowing his ear to proceed. Since such latter portion of the ordinance was pertinent to the omission in that respect which is charged as an act of negligence, and the special demurrer attacks this portion with the other portion, in moving to strike them as a whole, without specifying the objectionable part, this ground of special demurrer was properly overruled.

Decided May 17, 1924.

Action for damages; from Muscogee superior court — Judge Munro. September 26, 1923.

Frank U. Garrard, A. S. Bradley, for plaintiff in error.

McLaughlin & Foley, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jeniuns, P. J.

text:
    15216.
    Western & Atlantic Railroad Co. v. Legg.
   Jeniuns, P. J.

1. “Upon an interstate shipment the freight charges for the transportation of the goods are fixed by the schedule of rates and joint tariffs filed and posted in accordance with the act of Congress of ■ June 29, 1906, known as the ‘Hepburn act;’ and though a common carriel’, by mistake or otherwise, delivers goods upon the payment of a lower rate than that stated in the schedules, the carrier may thereafter demand of the shipper the difference between the rate collected and that which should have been collected, and upon his refusal to pay may maintain an action therefor.” Seaboard Air-Line Ry. v. Luke, 19 Ga. App. 100, 102 (90 S. E. 1041); Ga. R. v. Creety, 5 Ga. App. 424 (63 S. E. 528); Cen. of Ga. Ry. Co. v. O’Neill Mfg. Co., 19 Ga. App. 490 (91 S. E. 877).

(а) “The fact that the rate was agreed on through mistake of pneor both parties does not affect the operation of the rule requiring the established rate to be charged and paid, since both are bound to take notice of the filed tariff rates. Nor is it material whether the mistaken rate is fixed in the bill of lading or whether it was by parol agreement on a mistaken quotation of the rates made by the agent at the point of shipment.” 10 C. J. 511, 512.

(б) .The carrier may collect freight charges from either the consignor or the consignee, in the absence of a special contract binding itself to collect such charges from one of them only. So. Cotton Oil Co. v. So. Ry. Co., 147 Ga. 646, 647 (95 S. E. 251); s. c. 19 Ga. App. 453 (91 S. E. 876); Seaboard Air-Line Ry. Co. v. Montgomery, 28 Ga. App. 639 (1) (112 S. E. 652).

2. While it is the general rule that the terms or efficiency of a bill of lading evidencing a through contract of carriage cannot be varied or destroyed by parol evidence (Albany &c. Ry. Co. v. Merchants Bank, 137 Ga. 391 (4), 397, 73 S. E. 637; 10 C. J. 198), and that the bill of lading is prima facie evidence that the goods were, delivered to the carrier as therein described, such recitals are not conclusive, and it may be shown by parol that none, or only a part, of the goods described in the bill of lading was actually received. Atlantic Coast Line R. Co. v. Hill, 12 Ga. App. 392 (5), 397 (77 S. E. 316); Cen. of Ga. Ry. Co. v. Cook, 4 Ga. App. 698 (1) (62 S. E. 464); 10 C. J. 199, 200.

Decided May 17, 1924.

Complaint; from Gordon superior court — Judge Tarver. November 22, 1923.

Tye, Peeples & Tye, F. A. Cantrell, for plaintiff.

Lang & Lang, for defendant.

3. The freight rule as filed with the interstate commerce commission, offered in evidence by the plaintiff carrier in connection with the lawful posted rates, provided that “when freight is loaded in a car by shipper and such car is not fully loaded but is tendered as a carload shipment, and the ear is forwarded without other freight therein, the shipment will be charged for as a carload.” The consignee testified that the car contained only his goods. The bill of lading described the goods shipped as “Car H. H. goods — shipper’s load and count — weight (subject to correction) 12,000.” While it does not thus necessarily appear from the bill of lading itself that the goods were tendered and shipped as a carload lot at the rate applicable thereto, and parol evidence by the carrier and the shipper was admissible to establish the actual agreement with reference to the class of shipment and the actual weight of the goods shipped, nevertheless the carrier’s evidence was such as to establish its case as laid by the petition, and it was error to direct a verdict for the defendant. The issue raised by the plaintiff carrier’s evidence on the one hand, and the defendant’s evidence on the other hand to the effect that the defendant had asked for the “cheapest rate” as between the carload lot and the less than carload lot, taken with his rather indefinite evidence to support his contention that the actual weight of the shipment was only 4,200 pounds, should have been submitted to the jury.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15223.
    Weathercraft Company v. Byrd.
   Jenkins, P. J.

“A party to a contract who has partly performed his obligations thereunder by rendering valuable services may, where it appears that the opposite party has repudiated and abandoned the contract, or has prevented the former from further performance, waive his right to recover for a breach of the contract, and, by treating the contract as rescinded, maintain an action in quantum meruit against the other contracting party for the value of the services rendered. Beck v. Thompson, 108 Ga. 243 (33 S. E. 894). The doctrine of Blue v. Ford, 12 Ga. 45, as distinguished and explained in Tumlin v. Bass Furnace Co., 93 Ga. 594 (20 S. E. 44), and Southern Printers Supply Co. v. Felker, 125 Ga. 148 (54 S. E. 193), prevents a recoveryun a suit on indebitatus assumpsit [account], where it appears from the evidence that the plaintiff is seeking to recover under the terms of a special contract which the plaintiff has not fully performed, but does not apply where the contract has been abandoned and repudiated by the defendant.” Myers v. Aarons, 30 Ga. App. 750 (119 S. E. 223). In the instant case the plaintiff does not rely upon the contract, but it is used merely as evidencing the cost or value of the goods or of the services sued for on account. Civil Code (1910), g 4321; Tumlin v. Bass Furnace Co., 93 Ga. 594 (20 S. E. 44); Talbotton R. Co. v. Gibson, 106 Ga. 229, 234 (32 S. E. 151); Rogers v. Parham, 8 Ga. 190, 193; Ford v. Smith, 25 Ga. 675 (3); Sentell v. Mitchell, 28 Ga. 198, 199; Haralson v. Speer, 1 Ga. App. 573 (2, 3), 576-578 (58 S. E. 142); Byck v. Weiler Co., 3 Ga. App. 387, 391 (59 S. E. 1126); So. Ry. Co. v. Branch, 9 Ga. App. 310 (1), 312 (71 S. E. 696); Flake v. Bowman, 28 Ga. App. 443 (7) (111 S. E. 747).

Decided May 17, 1924.

Complaint] from Fulton superior court — Judge E. D. Thomas. October 19, 1923.

Anderson & Slale, for plaintiff.

B. B. Blackburn, for defendant.

The instant action on account is to recover “for labor and material furnished to defendant in covering 335 squares of roofing at $7.35 per square” on a described building. It appears that, while there was a written contract evidencing an agreement to roof the total number of squares and at the price shown by the petition, the plaintiff, according to its evidence, after a partial performance, was without just cause or excuse prevented from completing the entire work, by the positive action of the defendant, through the architect representing him, in forbidding the plaintiff to continue. The plaintiff was thus entitled, under its evidence, to recover for the 200 squares actually laid, and it was accordingly error to grant a nonsuit; although it was not entitled to recover for the additional squares sued for, on which it was not shown that any labor had been performed.

Judgment reversed.

Stephens and Bell, JJ.s concur.


text:
    15229.
    Bates v. Madison County.
   Jenkins, P. J.

1. “A county is not liable to suit for any cause of action unless made so by statute.” Political Code (1910), § 384. It is the general rule that “a county, when exercising governmental functions and acting as an agency of the State, is not liable, in the absence of statutes imposing liability, for its failure to perform a duty or for its negligent performance of the duty, not even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act -which ought to have been, performed, and the performance of the duty in a negligent manner.” 15 C. J. 568, § 272; Millwood v. DeKalb County, 106 Ga. 743 (32 S. E. 577); Mitchell County v. Dixon, 20 Ga. App. 21 (92 S. E. 405).

Decided May 17, 1924.

Action for damages; from Madison superior court — Judge Eodges. November 20, 1923.

2. “Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid.” Park’s Code, § 6388. Accordingly, where the tortious acts of the officers, agents, and servants of a county amount to the taking or injury of private property directly for the public use, the county can be held liable to the extent of the injury sustained, not on the theory that the county is liable, as are other tort-feasors, for the negligent acts and conduct of its agents while acting within the scope of their authority, but for the reason that it cannot, either with or without the guise of contractual authority, appropriate or damage the property of another for its own benefit without just and adequate compensation being paid. Terrell County v. York, 127 Ga. 166 (56 S. E. 309); Elbert County v. Brown, 16 Ga. App. 834 (86 S. E. 651); Rheberg v. Grady County, 27 Ga. App. 578 (109 S. E. 542); 15 C. J. 571, note 82.

3. A tort is a legal wrong committed upon the person or property, independent of contract; it may, however, arise from “the violation of some private obligation by which damage accrues to the individual.” Civil Code (1010), § 4403 (3). Thus, where the contractual relation of bailor and bailee exists between parties whereby a duty is imposed by law upon the bailee as being incident to and arising out of the contract of bailment, the complainant setting up a breach of the duty may elect as to his remedy and rely upon either his right under the contract or proceed for damages as in a case of tort. Fain v. Wilkerson, 22 Ga. App. 193 (2) (95 S. E. 752). A suit “should be treated as an action ex delicto, when it is manifest from the allegations and structure of the petition that the plaintiff is seeking a recovery because of the defendant’s breach of duty, and not on account of its breach of contract.” Rushin v. Central of Ga. Ry. Co., 128 Ga. 726 (3) (58 S. E. 357); Miller v. Ben H. Fletcher Co., 142 Ga. 668 (2) (83 S. E. 521). Accordingly, this suit must necessarily be treated as for a tort; and it must be so treated for the additional reason that the petition affirmatively shows that the contract of bailment alleged to have been made with the county was neither in writing nor recorded as required by statute in order to afford the basis of an action thereon. James v. Douglas Co., 131 Ga. 270 (62 S. E. 185). But even were it to be treated as based not on the tort, but on the failure of the defendant to exercise ordinary diligence with respect to the care of plaintiff’s property under the alleged contract of bailment, the county could not be held liable for the alleged negligent acts of its servants, unless the negligence amounted to damaging or appropriating the property for the benefit of the county. Since the alleged negligent injury to the car cannot be thus taken or construed, the verdict for the plaintiff was properly set aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.

This was a suit for damage to an automobile which the plaintiff alleges was, by virtue of an oral understanding, hired to the county for the purpose of hauling its convicts, and which, according to the petition and the evidence, was damaged by fire on account of the negligence of one of the convicts, acting under orders of the county warden. The evidence does not show that the automobile was then being used for county purposes. The judge charged the jury that the county, as bailee, was chargeable with ordinary diligence in protecting and keeping safely the property bailed. The jury found for the plaintiff $75. Exception was taken to the grant of a new trial. The judge’s order granting a new trial was as follows: “After giving the entire record in said case and the briefs of argument of counsel mature consideration, the motion filed is granted, on the sole ground that the verdict is contrary to law. A county is not liable for suit unless expressly authorized or by implication. Civil Code, §§ 383, 384, and citations thereunder [in Park’s Code]. A county is not liable in damages for tortious acts of its officers and servants which are not proximately connected with the work incident to the making of public improvements. 72 Ga. 188; 106 Ga. 743; 127 Ga. 166; 111 Ga. 314. In legal contemplation it cannot be said that the destruction of the car was proximately connected with the work incident to the making of public improvements. In the cases cited by respondent’s counsel, to wit: 85 Ga. 420 (2); 109 Ga. 388; 16 Ga. App. 834, it will be observed that the property in question was taken or damaged for public use. These decisions are doubtless based upon the constitutional inhibition that e Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.’ Civil Code, § 5024. Whereupon it is ordered and adjudged that a new trial be and the same is hereby granted in said case, solely upon the ground that the verdict rendered is contrary to law.”

R. Howard, Gordon, for plaintiff.

Berry T. Moseley, for defendant.


author: Bell, J. Bell, J.

text:
    15233.
    Stanley v. Richardson & Son et al.

   Bell, J.

1. Where there were five claimants to a fund in the hands of a sheriff, under a money rule, and the judge directed a verdict, upon which judgment was entered, awarding the fund to four of the claimants, to the exclusion of the fifth, each of the four was a necessary party defendant to a bill of exceptions brought by the fifth to review the verdict and judgment. Craig v. Webb, 70 Ga. 188 (1); Knox v. McCalla, 70 Ga. 725; Hall v. Davis, 129 Ga. 498 (59 S. E. 241); Civil Code (1910), § 6176.

2. Service of a bill of exceptions may be made by the sheriff of the county in which the ease was tried, and the official entry of such officer will be sufficient evidence of service; but service by any other must be verified by affidavit made in due time. Head v. Bridges, 72 Ga. 30 (1); Walter v. Kierstead, 74 Ga. 18 (1); Tucker v. Mayor &c. of Graysville, 120 Ga. 148 (47 S. E. 523); Anderson v. Humphries, 140 Ga. 368 (1) (78 S. E. 1079); Elrod v. Black, 148 Ga. 194 (96 S. E. 180).

(a) The fourth section of the act organizing the Supreme Court provided for service of a bill of exceptions by a sheriff, constable, or attorney of the superior court, but this section of the act was changed by the law as now contained in the Civil Code (1910), § 6160. Henderson v. Henderson, 7 Ga. 421; Cloud v. State, 50 Ga. 369; Lyons v. Winter, 129 Ga. 416 (3) (59 S. E. 130).

3. All of the successful claimants to the fund in this case were named in the bill of exceptions as defendants in error, but as to one of them, who neither acknowledged nor waived service, the only evidence of service is an unverified entry of a constable. Held: The motion of that claimant to dismiss the bill of exceptions for the want of service is well taken and must be sustained.

4. It does not appear that the motion to dismiss the writ of error has been served ripon the plaintiff in error, but, there being no service of the bill of exceptions, or waiver thereof, as to the movant, who was an essential party to the bill, and such service or waiver being necessary to give this court jurisdiction of the case, that portion of Rule 23 of this court (Civil Code of 1910, § 6347) which provides that “no motion to dismiss a writ of error will be considered unless notice of such motion and of the grounds thereof, in writing, be given to counsel for plaintiff in error twenty-four hours before the ease is called for argument,” does not apply, but the case is controlled by the last sentence of the rule, to wit: “If the court has no jurisdiction,.it will dismiss the writ whenever and however this may appear.” Seliger v. Coker, 105 Ga. 512 (2) (31 S. E. 185); Whitley Grocery Co. v. Walker, 111 Ga. 846 (36 S. E. 426); Smith v. McKnight, 28 Ga. App. 732 (3) (113 S. E. 48); Teasley v. Cordell, 153 Ga. 397 (2) (112 S. E. 287).

5. There being no service upon, or waiver thereof by, one of the successful claimants, who was a necessary party defendant to the bill of exceptions, the sustaining of his motion to dismiss the bill of exceptions upon that ground will operate to dismiss the bill as to all the defendants in error. Teasley v. Cordell, supra (p. 397); Douglas v. Brooke, 152 Ga. 373 (110 S. E. 16); Edwards v. Wall, 153 Ga. 776 (1) (113 S. E. 190).

6. Eurthermore, even if service by the constable had been otherwise suffieient, it was fatally defective for the reason that it recited the service to have been made on October 10, 1923; whereas the bill of exceptions was not certified until December 10, 1923. “Service of a.bill of exceptions being essential to give the court jurisdiction of the case, and service before the bill of exceptions is certified by the judge being in law no service, a writ of error upon which there appears no other service than that effected before the bill of exceptions was certified will be dismissed.” Consolidated Naval Stores Co. v. McPhatter, 147 Ga. 797 (95 S. E. 686). The practice act approved August 21, 1911 (Ga. L. 1911, p. 149, § 4), providing that an acknowledgment of service shall be a complete waiver of all defects in the service which the counsel signing it is legally competent to waive, whether such signing is done before or after the signing of the writ of error, has no application except in cases where service is acknowledged or waived. Where the plaintiff does not procure such acknowledgment or waiver, but seeks to have service perfected, the rule obtains, as before, that the service of a bill of exceptions before its certification by the judge amounts to no service whatsoever. Whitley Grocery Co. v. Walker, supra; Consolidated Naval Store Co. v. McPhatter, supra.

Decided May 17, 1924.

Rehearing denied July 14, 1924.

Money rule; from Whitfield superior court — Judge Tarver. November 12, 1923.

J. A. Longley, for plaintiff.

W. G. Mann, W. M. Sapp, G. G. Glenn, J. G. Mitchell, J. A. McFarland, F. K. McGutchen, contra.

Writ of error dismissed.

Jenkins, P. J., and Stephens, J., concwr.

ON MOTION ROE REHEARING.

Bell, J.

The plaintiff in error urges in the motion for a rehearing that the service of the bill of exceptions was actually made on December 10th, and that the date of October 10th appearing in the entry of the constable was erroneously inserted by inadvertence. It is alleged further in the motion that the plaintiff in error is prepared to show to the satisfaction of the court that service of the bill of exceptions was made personally and in time by the attorney for the plaintiff in error upon the attorney for the defendant in error.

Even if the alleged error in the date could be corrected, the bill of exceptions should still be dismissed, for the reason that the want of an affidavit to the service by the constable would of itself be fatal, and it is too late now to cure that defect or to supply an affidavit that the service was perfected by the attorney for the plaintiff in error upon the attorney for the defendant in error. Brantley v. McArthur, 132 Ga. 459 (64 S. E. 326).

Rehearing denied.

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


author: Bell, J.

text:
    15248.
    Hanna v. Jamison.
    Decided May 17, 1924.
    Rehearing denied July 14, 1924.
   Bell, J.

1. Where, in a petition for certiorari by the defendant, to review a judgment in favor of the plaintiff, in a trover action in the municipal court of Macon, it appeared that the plaintiff had delivered the property for a specific purpose to the defendant, as her agent, and that he had converted the same, unless, as he contended and offered evidence tending to show, the owner, subsequently to the original delivery, executed a valid bill of sale, conveying the property to him absolutely, and where the answer to the writ, as made by the judge of the municipal court, denied that certain testimony tending to establish the validity of the bill of sale (which in this case was the sole material issue upon the trial, — see Roark v. Whelchel, 31 Ga. App. 75 (1), 119 S. E. 451) had been given as alleged in the petition for certiorari, and set forth the evidence more favorably to the contentions of the plaintiff that the instrument was invalid because of fraud and want of consideration (see Grimsley v. Singletary, 133 Ga. 56 (1), 65 S. E. 92, 134 Am. St. Rep. 196; Davis v. Morgan, 117 Ga. 504 (1), 43 S. E. 732, 61 L. R. A. 148, 97 Am. St. Rep. 171; Bailey v. Devine, 123 Ga. 653 (5), 51 S. E. 603, 107 Am. St. Rep. 153), it was error for the judge of the superior court, on general demurrer, to strike so much of a timely and proper traverse by the petitioner in certiorari to the answer of the trial judge as averred that the evidence bearing upon the validity of the bill of sale was as set forth in the petition for certiorari, and not as related in the answer. It was consequently error to overrule the certiorai’i. Civil Code (1910), § 5200; Watson v. Lithonia Banking Co., 23 Ga. App. 808 (99 S. E. 544).

2. A judge of the superior court, in passing upon a certiorari where questions of fact are involved and the evidence is conflicting, has a discretion to sustain or overrule the certiorari similar to that which' he may exercise under like circumstances in granting or refusing a first application for a new trial (Weathersby v. Jordan, 124 Ga. 68 (1), 52 S. E. 83; Shirley v. Swafford, 119 Ga. 43 (2), 45 S. E. 722; Daniel v. McRee, 31 Ga. App. 210 (2), 120 S. E. 448); but where there is a traverse to the answer to the writ as made by the trial judge, raising an issue as to what was the material evidence upon the trial, that issue should first be determined, in order that the certiorari may be passed upon in the light of all the material evidence found to have been adduced upon the trial. It is not an exercise of discretion upon evidence, alleged in a traverse to an answer to the writ to have been given upon the trial, for the judge of the superior court to eliminate it by striking the traverse.

3. Applying the rulings of the preceding paragraphs, the judge of the superior court erred in this case in striking paragraphs 1, 2, 3, 4, and 5 of the traverse. There was no error in striking the exceptions to the answer, nor otherwise than as stated above.

Judgment reversed.

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

Certiorari; from Bibb superior court — Judge Malcolm D. Jones. October 29, 1923.

D. L. Ohurchwell, for plaintiff in error.

Walter DeFore, James G. Fstes, contra.


text:
    15310.
    LOGANVILLE BANKING COMPANY v. LESTER et al.

    The wife’s equity in the land conveyed by her husband to the banking company as security for the payment of his note upon which it was suing in this action, and upon which land the plaintiff was seeking to establish a special lien under the security deeds, could, without allegation or proof of the plaintiff’s insolvency, be set up by the wife and a prior lien on the land established by a verdict and judgment in her favor in the same action, the wife having come in as a party defendant to the suit and by her pleadings and by the evidence shown that a stated sum had been paid by her in the purchase of one of the tracts of land conveyed by her husband to the bank, and that the bank was notified of this at the time the deed was made, and then agreed to recognize her priority to that extent and to pay her that amount from the proceeds.
    The verdict in favor of the wife being demanded by undisputed evidence, any error in the charge as to the effect of a tender by the plaintiff to the wife and her refusal of the tender would not be ground for setting aside the verdict.
    The bank’s obligation to the wife under its agreement would not be affected by proof that the husband was otherwise indebted to her.
    Decided May 17, 1924.
    Complaint; from Walton superior court — -Judge Eortson. December 26, 1923.

      J. H. FeVeer, for plaintiff.

      Orrin Roberts, for defendants.
   Jenkins, P. J.

Tlie bank sued Lester on a promissory note secured by deeds to two tracts of land, and praj^ed for a general judgment against the defendant and special liens on the two parcels of land. The defendant admitted the allegations of the petition, but set up that at the time the deed to one of the tracts of land was made the bank was notified that the defendant’s wife had paid $1,084.49 in its purchase, and that if was then agreed that the bank recognized her priority to that extent, and would repay to her that amount from the proceeds. The answer asked that she be made a party to the proceeding, in order that she might assert her superior claim upon the premises to the extent ‘of the sum tiras named. The wife, adopting the answer-, was made a party to the proceeding, and by an amendment alleged that “at the time of taking said deed the officer of said bank was informed of the equity of the defendant Parilee Lester, to the amount of $1,084.16, with interest from May 16, 1918, at 8 per cent., and said bank then and there agreed to pay said equity as a part of the consideration of said deed;” and she prayed that a special lien be set up in her favor. On the trial there was no dispute as to the understanding and agreement set forth above, but the bank sought to show that the sum mentioned had been tendered to and refused by the wife. No allegation or contention as to the bank’s insolvency was made by the wife in her effort to assert her superior claim upon the premises. The court charged the jury that if the bank, at the time the deed was taken by it, offered to pay the wife the amount indicated, as it had agreed, and if the offer was, without more, refused, this would amount to a compliance by the bank, and a verdict should be rendered in its favor, but that if the bank took the deed without making any such agreement, but with actual knowledge of the wife’s equity, a verdict should be rendered in her favor. The jury found in favor of the wife in the sum of $1,084.49, under her pleadings, and a judgment was entered setting up a prior lien on the land in her favor to that extent.

A verdict in favor of the wife being demanded under all of the evidence, in accordance with her pleadings as to the bank’s promise to refund the amount of the purchase-money furnished by her, the lack of any allegation or proof as to the plaintiff’s insolvency, such as might otherwise establish an equity in her favor, would not prevent the setting up of her legal claim; and since the verdict in favor of the wife’s legal claim was -demanded under the undisputed evidence, any error in the charge of the court as to the effect of a tender and refusal would not authorize setting the verdict, and judgment aside. See, in this connection, Ragan v. Newton, 27 Ga. App. 534, 535 (109 S. E. 412).

Proof that the husband might be otherwise indebted to the wife in a named amount would not affect the obligation of the bank to the wife under its agreement.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15136.
    SOUTHERN RAILWAY COMPANY v. PAIR.
    Although it appears from the evidence that the engineer was unable to stop the train after the automobile, which had stalled on the railroad-track at a public crossing, became visible to him, this court cannot as a matter of law hold that the degree of care imposed by law was exercised on the part of the railroad company in the approach of the train before the crossing became visible, or that the proximate cause of the striking of the automobile by the train was not the failure to exercise such care. Consequently the jury’s finding thereon, approved by the trial judge, cannot be set aside.
    Decided May 17, 1924.
    Action for damages; from Cobb superior court — -Judge Blair. January 5, 1924.

      Fred Morris, Maddox, McCamy & McFarland, for plaintiff in error.
   Jenkins, P. J.

Plaintiff recovered $200 on account of tbe demolition of his Buick automobile which was struck by a locomotive of the defendant company on a public-road crossing. It indis-, putably appears that the car had stalled on the track, and had so remained for about a minute and a half before it was struck; that the self-starter was not working, and the plaintiff had promptly gotten out to crank the car, but was delayed in doing so, on account of having left it in gear; and that before he could get back, adjust the gear, and crank the car, it was struck by the fast-moving train. Plaintiff alleged negligence on account of the failure of the defendant company to blow the whistle of the locomotive on approaching the crossing, on account of its failure to maintain a lookout, and on account of the negligent rate of speed at which it approached and passed the crossing. Upon the question as to whether the whistle was blown the evidence was in conflict. The evidence for the defendant was that the train passed the crossing at a speed of about forty miles per hour, and that this was perhaps ten miles per hour faster than usual and customary. The evidence shows that the crossing is upon a curve, and that consequently the car could not be seen until the train was almost immediately upon it, and that, traveling at the rate it was, nothing could have been done to avoid the collision after the car had been or could have been discovered.

Negligence which could not constitute the proximate cause of the injury is not such as will authorize a recovery. Shaw v. Mayor &c. of Macon, 6 Ga. App. 306 (64 S. E. 1102). Accordingly, since, under the undisputed evidence, the car had already stood stalled upon the track prior to the time that the whistle should have been sounded, the failure of the defendant so to do could not authorize a recovery, unless the jury should have believed that such warning would have enabled the plaintiff to save the car by pushing it out of danger.

The blow-post law as amended no longer imposes the specific duty which formerly required that, upon reaching the blow-post, the engineer should cheek and keep checking the speed of the train so as to stop in time should any person or thing be crossing the track on the road; but the amended law (Ga. L. 1918, pp. 313, 313) provides that, “after reaching the blow-post furthest removed from said crossing, and while approaching said crossing,” the engineer “shall keep and maintain a constant and vigilant lookout along the track ahead of said engine, and shall otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which may be on such crossing, or upon the line of said railway at any point within fifty feet of such crossing.” While it appears that the engineer was unable to stop the train, traveling at the rate of speed it was, after the car had become visible, this court is unable to say, as a matter of law, that the defendant exercised the degree of care imposed by law in approaching the concealed crossing, or that its failure to do so did not constitute the proximate cause of the injury. Consequently the approved finding of the jury on that issue cannot be set aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15325.
    Lester v. Graham.
   Jenkins, P. J.

1. “A judgment founded on a verdict obtained by fraud practiced on the defendant and the court may be set aside, and the original case reinstated, in a court of law, with proper pleadings, and with all the,parties at interest as parties to the motion; the motion being made at the term of the court at which the verdict and judgment were entered, and the movant showing that he was not in laches, had a meritorious defense, and announcing ready for an instant trial. ” Roberts v. Roberts, 150 Ga. 757 (1) (105 S. E. 448).

2. “The defendant duly filed a plea presenting a meritorious defense to the action, and setting forth fully the alleged facts constituting his defense, which was referred to in the motion to set aside the judgment against him and thus made a part of said motion, so that the motion itself disclosed the specific nature and character of the defense relied upon.” Maddox Coffee Co. v. McHan, 22 Ga. App. 198 (2) (95 S. E. 736).

Decided May 17, 1924.

Complaint; from city court of Decatur — Judge Daley. December 10, 1933.

B. B. Jaclcson, T. L. Lanford, for plaintiff.

B. M. Habersham, W. I. Heyward, contra.

3. This court cannot say that the judge abused his discretion in granting the prayer of the petition. Ford v. Clark, 129 Ga. 292 (58 S. E. 818).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15449.
    Reeves v. Maynard et al.

   Bell, J.

1. “Accurately speaking, there is no such a thing as a ciñl action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone. While the crime of conspiracy may be committed without doing any overt act in pursuance of the combination, no civil liability is incurred for the conspiracy, but only for the overt acts of the conspirators.” 5 R. O. L. 1901, § 41. “Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.” Woodruff v. Hughes, 2 Ga. App. 361 (1)_ (58 S. E. 551); Wall v. Seaboard Air-Line Ry., 18 Ga. App. 457 (2) (89 S. E. 533); National Bank of Savannah v. Evans, 149 Ga. 67 (99 S. E. 123); s. c. 23 Ga. App. 736 (99 S. E. 393).

2. A complaint for tortious acts committed in pursuance of a conspiracy, as in other tort actions, must show both damage and causal connection between the wrong and the injury. 12 O'. J. 631; 1 Sutherland on Damages, §§ 30, 33. “The most generally accepted theory of causation is that of natural and probable consequences.” Gillespie v. Andrews, 27 Ga. App. 509 (108 S. E. 906). Although the damages claimed may be traceable to the original act, if they are not themselves legal or material consequences they are too remote to be recovered. Civil Code (1910), §§ 4509, 4510.

3. A corporation being an entity apart from its stockholders and officers, and its credit, or commercial good name, being, in a legal sense, likewise separate and distinct from theirs, acts alleged to have been done by two officers of a private trading corporation and others, such as the misapplication and misappropriation of its credit and assets, in pursuance of a conspiracy to wreck the company’s business and thereby to upbuild the business and assets of a rival concern which some of the conspirators had organized, and alleged to have had the intended effect, could not be said to have resulted in injury to the plaintiff’s credit and standing in the commercial world merely because he was a stockholder in and the president of the company whose financial ruin was the aim and accomplishment of the unlawful combination. Such is the effect of the plaintiff’s petition in this ease, construing it most strongly against him, as must be doné on demurrer; thus, irrespective of whether the petition was otherwise fatally defective, the court did not err in sustaining the general demurrers severally interposed thereto. Compare Brown v. Bass, 132 Ga. 41 (1) (63 S. E. 788); Bethune v. Wells, 94 Ga. 486 (21 S. E. 230); McAfee v. Zettler, 103 Ga. 579 (1) (30 S. E. 268); Steele Lumber Co. v. Laurens Lumber Co., 98 Ga. 329 (5) (24 S. E. 755).

Decided May 17, 1924.

Action for damages; from Upson superior court — Judge Searcy. February 11, 1924.

Application for certiorari was denied by the Supreme Court.

Lawton Nalley, Claude Worrill, for plaintiff.

J. B. Davis, IF. 7. Allen, E. IF. Maynard, for defendants.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., eoneur.


author: Dell, J.

text:
    15452.
    Neill, administrator, v. Hill.
   Dell, J.

1. Suit against the administrator of Lou Hill, who died in September, 1922, was filed on April 13, 1923, by Dilsey Hill, upon a writing of which the following is a copy:

“Columbus, Ga., Sep. 10, 1910.

“Received from Dilsey Hill $375. I agree to take care of her during her life. If [I] should die before she dies, she (Dilsey Hill) is to receive the sum of $500 from my estate. This agreement is in consideration of the above loan to me by her-(Dilsey Hill) of the $375. Resp.,

her

“Lou x 1-Iill

mark

his

“Witness: Jasper x Williams mark.”

In one paragraph of the petition it was alleged that the defendant’s intestate failed and refused to comply with the terms of this agreement, in that she did not take care of petitioner “from September 10, 1910, until her decease,” and did not furnish petitioner with “clothing, food, . . lodging, and other necessities of life.” The court overruled a demurrer by which it was insisted that the action was based upon a breach of the alleged contract, occurring in September, 1910, and that, the writing not being under seal, the action was barred by the statute of limitations, because it was not brought within six years thereafter.

Held: The plaintiff having sued solely for the recovery of the sum of money which the alleged maker therein agreed should be paid to the plaintiff out of the maker’s estate at her death, there was no error in overruling the demurrer. Civil Code (1910), § 4389.

2. Where two witnesses, including the alleged attesting witness, testified positively to having been present at the execution of the alleged instrument, and to having seen the defendant’s intestate sign the same by her mark, and where the testimony of each was self-consistent and consistent with that of the other, and where the credibility of neither was attacked, and there were no circumstances to discredit either of them, unless in the fact that one of them was a nephew and the other a daughter of the payee, and where the testimony of the payee’s, daughter was further that she wrote the instrument at the request of the alleged maker, who was “droopy and grievous” because of the recent death of her husband, and preferred the witness to do the writing because, as the maker said, the witness could write better, — it appearing without dispute that the maker could write but “poorly,” — there was no error in directing a verdict in favor of the plaintiff, and against a plea of non est factum filed by the administrator, where the only evidence in rebuttal to that introduced by the plaintiff, as stated above, was the testimony of a witness that he had known the intestate for a long time, that she could read and write, and that in 1910 and 1911 she indorsed in her own handwriting certain checks which this witness produced, to the number of five, that it was her habit and custom to sign her own name, that in July, 1910, she wrote a letter in her own hand to the witness’s daughter, which also was produced, and that the witness never in his life knew her to sign her name by mark. This point is controlled by the decision of this court in Jones v. Teasley, 25 Ga. App. 784 (3) (105 S. E. 46), wherein it was ruled: “The mere fact that a person was sufficiently literate to be able to write out her own name, and was in the habit of doing so, is not only not inconsistent with the evidence of the unimpe.ached witness in the ease, but such a circumstance does not render it inherently absurd or improbable that she together with her husband signed the instrument by mark, as shown by the undisputed evidence of an unimpeached witness.”

(a) The testimony of witnesses who swear positively, and are not otherwise impeached or discredited, should not be discarded merely because they are related to the party in whose behalf they testify, although it is proper for the jury to consider such relationship when there is other matter by reason of which they may legitimately question the credibility of the testimony. 28 R. C. L. 660, § 245; Central of Ga. Ry. Co. v. Bernstein, 113 Ga. 175 (6) (38 S. E. 394); Armstrong v. Ballew, 118 Ga. 168 (2) (44 S. E. 996); Macon & Birmingham R. Co. v. Revis, 119 Ga. 332 (46 S. E. 41); Detwiler v. Cox, 120 Ga. 638 (48 S. E. 142); Civil Code (1910), § 5878.

(b) A fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradieted, reasonable and unimpeached testimony that the fact does not exist. Frazier v. Ga. Ry. &c. Co., 108 Ga. 807 (1); Hendon v. State, 10 Ga. App. 78 (72 S. E. 522); Georgia Ry. & Elec. Co. v. Harris, 1 Ga. App. 714, 717 (57 S. E. 1076).

(c) Whether the evidence, introduced by the defendant, that the intestate or alleged maker was able to write her own name and was in the habit of doing so, might be relevant and furnish a “collateral prop” to other evidence, it could not have been within itself sufficient to support a verdict in favor of the plea, as against the character of evidence introdueed by the plaintiff in opposition thereto. This case is distinguishable from Dillard v. Holtzendorf, 140 Ga. 17 (1) (78 S. E. 414), and Stewart v. White, 143 Ga. 22 (1) (84 S. E. 63). In each of those cases there was other evidence in support of the plea.

Decided May 17, 1924.

Complaint; from Miiscogee superior court — Judge Munro. February 13, 1924.

Worsley & Flournoy, for plaintiff in error.

Hatcher & Hatcher, contra.

In connection with the ruling in paragraph 2 above, see the following: Mayes v. Power, 79 Ga. 631 (2) (4 S. E. 681); Atlanta & West Point R. Co. v. Newton, 85 Ga. 517 (2) (11 S. E. 76); Central Railroad Co. v. Kent, 87 Ga. 402 (3) (13 S. E. 503); Atlanta & West Point R. Co. v. Holcombe, 88 Ga. 9 (1) (13 S. E. 751); East Tenn. &c. R. Co. v. Kane, 92 Ga. 187 (4) (18 S. E. 18, 22 L. R. A. 315); Atlanta & West Point R. Co. v. Smith, 94 Ga. 107 (3) (20 S. E. 763); Atlanta Consolidated Street Ry. Co. v. Bates, 103 Ga. 333 (6) (30 S. E. 41); Conyers v. Ford, 111 Ga. 754 (2) (36 S. E. 947); Southern Railway Co. v. O’Bryan, 112 Ga. 127 (3) (37 S. E. 161); DeNieff v. Howell, 138 Ga. 248 (2) (75 S. E. 202); Georgia Southern & Florida Ry. Co. v. Thornton, 144 Ga. 481 (1) (87 S. E. 388); Ham v. Brown, 2 Ga. App. 71 (3) (21 S. E. 204); Western & Atlantic R. Co. v. Slate, 23 Ga. App. 225 (3) (97 S. E. 878); Brooke v. Cartersville Chero-Cola Bottling Co., 23 Ga. App. 671 (97 S. E. 778); Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (12) (118 S. E. 435); Zucker v. Whitridge, 205 N. Y. 50 (98 N. E. 209, 41 L. R. A. (N. S.) 683), and note; 10 R. C. L. 955, § 127.

Judgment affirmed.

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


author: Belt., J.

text:
    15484.
    Watson v. Sudderth.
   Belt., J.

1. The entry of levy did not show the defendant in fi. fa. in possession of the property. The burden of proof, therefore, rested upon the plaintiff in fi. fa. and not upon the claimant. Civil Code (1910), § 5170. It was not reversible error, however, in the absence of a timely and proper request, that the trial judge omitted to instruct the jury upon the burden of proof. Brooks v. Griffin, 10 Ga. App. 497 (5) (73 S. E. 752); Whittle v. Central of Ga. Ry. Co., 11 Ga. App. 257 (1) (74 S. E. 1100); Jackson v. State, 31 Ga. App. 383 (120 S. E. 668).

2. Where a tenant subleases a part of a farm, the title to crops grown on the subleased premises is in the subtenant. Boyd v. Kinzy, 127 Ga. 358 (1) (56 S. E. 420); Nash v. Orr, 9 Ga. App. 33 (4) (70 S. E. 194); Andrew v. Stewart, 81 Ga. 53 (3) (7 S. E. 169); Worrill v. Barnes, 57 Ga. 404 (1); Teel v. State, 7 Ga. App. 600 (2) (67 S. E. 699). Under the facts of this case it was error to instruct the jury that “if the lands were subrented by [the original tenant] with the knowledge and consent of the parties from whom he rented, . . though they may have had a lien thereon, the title would still be in the man who rented the land. In other words, the title [would] vest in the roan who rented the land.” This charge was susceptible of the construction that the title to the crops grown on the subrented premises would be in the original tenant.

Decided May 17, 1924.

Levy and claim; from Miller superior court — Judge Yeomans. March 7, 1924.

An execution in favor of D. G. Suddertli against R. G. Pope was levied upon two bales of cotton as the property of the defendant. A claim was filed by S. M. Watson. The only evidence in relation to the title was that of R. G. Pope, who was sworn in behalf of the plaintiff in fi. fa., and testified as follows: “I sold these two bales of cotton in question to Mr. Watson, . . that cotton belonging to Rob Campbell, a renter, when I sold it. . . Those two bales of cotton were raised on place belonging to Farmers Land Loan & Title Company. I was living on the place. . . I rented the land. . . I was operating that year as a renter. . . I was to give $1,000 rent. This cotton was made on that place, made by a renter, Robert Campbell. He rented from me. It was Ilobert Campbell’s cotton. I had no interest in it whatever. He brought it out here, ginned it, and put it in my name. I sold it to Mr. Watson. Campbell subrented from me, and turned that cotton over on his rent. He had it ginned and put it in my name. That was not the instructions he had. He carried the receipts back and gave them to me. . . When he carried those receipts to me he turned them over to me on his rent. The rent was due to the Farmers Land Loan & Title Company, and I took that cotton for the Farmers Land Loan & Title Company and sold it. I carried that same money to Albany and delivered it to them that same day. I did not have a bit of interest in the cotton. . . I did not authorize that darkey to put any cotton in my name. I did not know that he had put any cotton in my name, until he came to me with the receipts. . . I did not sell that cotton as my own. . . I sold it as the property of the Farmers Land Loan & Title Company. . . Eobert Campbell . . owed the notes to the Farmers Land Loan & Title Company; they were transferred to them, and I give this note [the note of Pope to the landlord], and I turned in the other notes .as fast as I taken them. . . I took [Campbell’s] rent note. He rented from me . . with the consent of the Farmers Land Loan & Title Company.” The sale by Pope to Watson was made on August 15, 1922, and the levy on the cotton was made on the same day. The fi. fa. was issued on a judgment rendered in 1920, and was entered on the general execution docket on August 16, 1921. The verdict was in favor of the plaintiff in fi. fa. The claimant excepted to the overruling of his motion for a new trial.

3, Where a tenant, with the knowledge and consent of his landlord, subleases agricultural lands and takes a note from the subtenant, payable to himself, which he transfers to the landlord, and where the subtenant delivers a part of the crops grown by him to the original tenant, who accepts the same solely as a go-between of the subtenant and the landlord, selling the property and paying the proceeds over to the landlord in satisfaction of the subtenant’s transferred note, the original tenant having reserved no rights against the subtenant in the transfer and claiming no interest in the property, the title thereto never vests in the original tenant. Such were the facts appearing, without dispute, in this case. The verdict found for the plaintiff in fi. fa. was therefore unauthorized by the evidence. Bolton v. Duncan, 61 Ga. 103; Flournoy v. Wardlaw, 67 Ga. 378; Lathrop v. Clewis, 63 Ga. 282 (1) (2); McCulloch v. Goode, 63 Ga. 519; McBurney v. McIntyre, 38 Ga. 262 (1); Strickland v. Stiles, 107 Ga. 308 (3) (4) (33 S. E. 85); Beall v. Patterson, 146 Ga. 233 (2) (91 S. E. 71); International Agricultural Corp. v. Powell, 31 Ga. App. 348 (1) (120 S. E. 668).

(a) In so far as the plaintiff in ft. fa. is concerned, the above ruling is' not altered by the fact that the subtenant may not have known that his note to the tenant had been transferred to the landlord, since it appears without dispute that the original tenant did not accept the cotton as owner, but, even if under, an assumed agency, received it only for the landlord as his principal, undisclosed both to the subtenant and the claimant. McConnell v. East Point Land Co., 100 Ga. 129 (2) (28 S. E. 80); Civil Code (1910), § 3596.

4. Under the rulings in the two preceding paragraphs, the court erred in refusing the claimant’s motion for a new trial.

Judgment reversed.

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

W. I. & P. Z. Geer, for plaintiff in error.

N. L. Stapleton, contra.


author: Bloodworth, J.

text:
    14804.
    TICE COMPANY et al. v. EVANS.
    1. Tlie motion to dismiss the writ of error is overruled.
    2. A cause of action was set out, and the general demurrer to the petition was properly overruled. Even where a petition sets forth two distinct causes of action and there is no special demurrer, it will not he dismissed on general demurrer. Central of Ga. Ry. Co. v. Banks, 128 Ga. 785 (58 S. E. 352).
    3. The ground of the demurrer to paragraph 5 of the original petition, that it alleges that the plaintiff is to receive additional compensation , on “repeat orders,” without putting the defendant on notice of how much additional compensation is claimed, is without merit, because the original contract, which is attached to and made a part of the petition, shows that the additional compensation to be paid is 2 per cent, on repeat orders within 90 days, and 1 per cent, during the following-twelve months.
    4. The alleged defects in paragraphs 7 and 8 of the petition, which are attacked by grounds 3, 4, 5, and 6 of the demurrer filed on March 14, 1921, are cured by amendments.
    5. Ground 1 of the second demurrer (filed September 26, 1921), attacking paragraph 2 of the amendment filed the same date, is lacking in merit.
    0. Grounds 2 and 3 of the second demurrer, each attacking paragraph 8 of the amendment filed September 26, 1921, are without merit, as the alleged immateriality and indefiniteness of this paragraph were cured by additional amendments to the paragraph.
    7. Ground 4 of the second demurrer, which attacks paragraph 10 of the amendment filed September 26, 1921, is without merit. To this paragraph is attached a list of the orders given, and the paragraph shows that the original order given by Renfrew Manufacturing Company was accepted by the defendant, and alleges that Wentley, who gave the order, was the agent of the Renfrew Company; and, when read in connection with other portions of the petition, this paragraph is sufficiently specific in its allegations.
    8. For no reason alleged did the court err in overruling ground 5 of the demurrer to paragraph 11 of the amendment of September 26, 1921. Moreover, this ground of the demurrer is itself subject to criticism, in that it fails to show the name of the party whose authority is questioned.
    9. Grounds 6 to 38 inclusive (except ground 21) of the second demurrer are all directed against the amendment filed September 26, 1921, and are answered as far as necessary by an amendment filed in October, 1921. Ground 21 of the demurrer is directed against paragraph 23 of amendment, and is answered by the striking of paragraph 23 in a later amendment.
    10. The third demurrer contains three grounds, each directed against paragraph 2 of the amendment filed on September 26, 1921, and all of ihein are without merit.
    11. An additional demurrer to the petition was filed on May 15, 1922. This demurrer was to paragraph 8 of the amendment filed September 20, 1921. This paragraph, in connection with Exhibit B, referred to therein and in connection with other amendments to the petition, is sufficiently specific to withstand the demurrer.
    12. The evidence of Higgenbotham, incorporated in ground 4 of the motion for a new trial, is in no sense newly discovered, and this ground shows no reason why a new trial should be granted.

      (a) There is nothing in this ground of the motion which shows any legal reason for a continuance of the case.
    13. Ground 5, which refers to the absence of Higgenbotham, is lacking in merit.
    14. Under the particular facts of the ease there is nothing in grounds 6 to 9 inclusive which would require the grant of a new trial.
    15. Grounds 10 to 12 inclusive, 14 to 24 inclusive, 36 to 38 inclusive, 40, 44, and 47 to 49 inclusive, in the light of the charge given and the facts of the case, are without merit.
    16. “Under repeated rulings of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court. McOall v. Stale, 23 Ga. App. 770 (99 S. E. 471); Roddenberry Hardware Go. v. Merritt, 17 Ga. App. 425 (87 S. E. 681), and citations.” Franklin v. State, 28 Ga. App. 460 (1 6) (112 S. E. 170). Under the foregoing ruling grounds 39, 41, 42, 43, 45, 46, 50, 51, and 52 will not be considered.
    17. A new trial will not be granted because of the alleged error in the charge of which complaint is made in ground 13.
    18. In ground 25 it is alleged that the verdict is excessive because the $6.25 to be allowed the plaintiff on repeat orders should have included only repeat orders submitted within ninety days from the original order. This ground is without merit. The written contract as verbally modified and set up in the amendment to paragraph 5 of the petition eliminated this reference to ninety days or twelve months, and simply provided for a commission of $6.25 per pair of racks, for repeat orders.
    19. “Rulings upon the sufficiency of pleadings are not proper subject matter for a motion for a new trial.” Ooulson v. State, 13 Ga. App. 148 (2), 150 (78 S. E. 1108), and citations. Tompkins v. American Land Go., 139 Ga. 377 (2) (77 S. E. 623), and citations. Under the foregoing ruling grounds 26 to 35 inclusive are without merit.
    20. There was no error in admitting the evidence complained of in ground 36, as this evidence was necessary in order to ascertain the amount of commissions due the plaintiff.
    21. There is evidence to support the verdict against the J. T. Tice Company Incorporated.
    Decided June 10, 1924.
    Breach of contract; from city court of LaGrange — Judge Duke Davis. April 3, 1923.
    A. Y. Evans sued J. T. Tice Company and the J. T. Tice Company Incorporated for damages because of the breach of a contract, and for commissions due under the contract, on account of the sale of calendar racks to certain mills. The petition is as follows:
    “The petition of A. Y. Evans, as plaintiff, against J. T. Tice Company, a company composed of J. T. Tice and R. J. Higgenbotham and the J. T. Tice Company Incorporated, a corporation duly incorporated and chartered under the laws of the State of Georgia, as defendants, respectfully shows:
    “1. That said defendant company is a resident of said county, and that J. T. Tice and R. J. Higgenbotham as principals of said company are residents of said county and have been doing business under the name of the J. T. Tice Company.
    “2. That the J. T. Tice Company Incorporated is a corporation duly incorporated and chartered. under the State laws of Georgia, with its principal place of business and office in La-Grange, Troup county, Georgia.
    “3. That on the — day of —, 1920, the said J. T. Tice Company was duly chartered and incorporated by the superior court of this said county at the February term of the City Court, and that the said J. T. Tice Company Incorporated on the day aforementioned absorbed and took over the said J. T. Tice Company and assumed all the said J. T. Tice Company’s liabilities, assets, contracts, and business.

      “4. That the said defendant company has injured and damaged your petitioner in the sum of $3,000.00, by reason of the following facts, to wit:
    “5. That on the 17th day of September, 1919, your petitioner did enter into a contract with said company to act as their agent and salesman above the Mason and Dixon line, your petitioner to receive as compensation for his services thereunder 40% of net proceeds on all his sales of calendar racks made by him at any mill above the Mason and Dixon line, together with additional compensation for repeat orders.
    “6. That in said contract, a copy of which is hereto attached and made a part of this petition and marked exhibit A, your petitioner faithfully performed his duties as set out in the contract.
    “7. That defendant company has damaged your petitioner in the above-stated sum of $3,000.00 by not complying in good faith with their part of the contract, in that they were negligent in filling orders, that they turned out bad work, and made substitutions not called for in your petitioner’s original orders, and in' not shipping goods according to sample furnished your petitioner by defendant company to use in making sales.
    “8. That by reason of the above your petitioner was unable to secure orders which otherwise he would have gotten, causing him the damage mentioned above in the above-stated sum.
    “9. That said defendant company is indebted to your petitioner in the further sum of $5,691.98 under the statement of your petitioner of sales, commissions, and payments, copy of which statement is hereto attached, made a part of this petition, and marked exhibit B.
    “10. That this amount is due your petitioner, under the contract above mentioned and described as exhibit A, as commissions due him on sales enumerated in said statement.
    “11. That your petitioner has made demand upon defendant’s company for said sum, which demand has been refused, although the said sum is past due.
    “Wherefore your petitioner prays judgment for the full sum of $3,000.00 damages, and the further sum of $5,691.98, with interest at 8% from date, under the above statement of facts, and also that said defendant company be required to appear personally or by attorney at the next term of said city court of LaGrange to answer your petitioner’s complaint; and he will ever pray.”
    The contract attached to the original petition is as follows: “This contract made and entered into this September 17, 1919, between the J. T. Tice Company of West Point, Georgia, said county, and A. Y. Evans, LaGrange, Troup County, Georgia. It is agreed that the J. T. Tice Company, party of the first part, is to pay A. Y. Evans, party of the second part, 40% of net proceeds on all his sales of calendar racks made by him at any mill above the Mason and Dixon line. He is also to receive 2% on all orders going from aiiy mill ninety days after initial order is placed, and one per cent, during the following twelve months. Party of the second part is to pay all expenses necessary for him to make sale to any mill, letting all orders pass through the J. T. Tice Company office at West Point, Georgia. . Contract remains in force until January 1st, 1920, and thereafter until either party sees fit to withdraw the same.
    (Signed) “K. J. Higgenbotham, Mgr.
    “J. T. Tice Company.
    “Accepted: A. Y. Evans, party of second part.” '
    The plaintiff, in response to demurrers, amended the petition and amendments thereto, and in the amendments alleged more specifically the items of damage, the acts of negligence on the part of defendant, the commissions due by defendant, and increased the amount of damage previously alleged. The 5th paragraph of the original petition was so amended as to read, “That on the 17th day of September, 1919, your petitioner did enter into a contract with said company to act as their agent and salesman above the Mason and Dixon line, your petitioner to receive compensation for his services thereunder 40% of net proceeds on all his sales of calendar racks made by him at any mill above the Mason & Dixon line, and about January 1st, 1920, made verbal agreement with defendants whereby he was to receive additional compensation of six and 25/100 ($6.25) dollars per pair racks for repeat orders.”
    The defendants answered, denying the material allegations of the petition, and by amendment to their answer alleged that “the J. T. Tice Company, a corporation, have never had any contract whatever with the said plaintiff;” also that plaintiff was indebted to the J. T. Tice Company in a named sum as shown by a full accounting between plaintiff and J. T. Tice Company, and because of damage arising out of plaintiff’s representations and his performance of said contract.
    The jury rendered a verdict “against the defendants J. T. Tice Co. $1,030.00 principal and $115.56 interest; also J. T. Tice Co., incorporated, $4,060.73 principal and $455.59 interest, with cost of suit. Total principal $5,090.73, total interest $571.15.” Upon this verdict a judgment was rendered against the J. T. Tice Company and against the J. T. Tice Company Incorporated for the respective amounts found against them.
    The defendants made a motion for a new trial, which was overruled, and they excepted.

      Raymond Martin, Sidney Holderness, for plaintiffs in error.

      Harry M. Breed, Terrell, Howard & Terrell, contra.
   Bloodworth, J.

(After stating the foregoing facts.) The record in this case is quite voluminous, and we have for consideration a motion to dismiss the writ of error, a motion to continue, various amendments to the petition, amendments to a number of these amendments, about a half hundred demurrers to the petition and the amendments thereto, and fifty-two grounds of the motion for a new trial. In the headnotes we have covered every question raised in the record, and in addition thereto we will discuss fully headnotes 1, 5, 10, 12, 14, 17, and 21.

A. motion to dismiss the bill of exceptions was made upon the grounds: that (1) the evidence is not briefed as required by law, (2) the defendant in error was not served with a copy of “law brief” as required by tbe rules of court, (3) tbe brief of evidence was not “properly approved and identified by the trial judge.” We will discuss these grounds in their order. (1) Although the evidence is far from brief, it is sufficiently briefed. “Where there has been a substantial compliance with the law as to bringing a brief of evidence to this court such a brief will not be disregarded although it may not be in absolute compliance with the statute.” Crumbley v. Brook, 135 Ga. 723 (2) (70 S. E. 655). Nor is such a brief a sufficient reason for dismissing a writ of error. Fleming v. Roberts, 114 Ga. 634 (40 S. E. 792). Saint Amand v. Lehman, 120 Ga. 253 (3) (47 S. E. 949). (2). “Failure to serve counsel of the opposite party with the brief of counsel for the plaintiff in error, as required by rule 15 of this court (Civil Code of 1910, § 6339),. is not ground for dismissal of the writ of error.” Marietta Fertilizer Co. v. Gary, 22 Ga. App. 604 (3) (96 S. E. 711), and cases cited. (3) The record-shows that the brief of evidence was “approved as correct and ordered filed as a part of the record” by the trial judge. As to grounds 1 and '3 of the motion to dismiss, see also Park’s Arm. Codé, § 6090 (a); Ga. L. 1911) p. 150, sec. 3; Allen v. State, 29 Ga. App. 213 (114 S. E. 583), and citations. The motion to dismiss the bill of exceptions is overruled.

Ground 1 of the second demurrer, demurring to paragraph 2 of the amendment to the petition for the reason that the parol agreement changed the terms of the written contract, is without-merit. Since the contract, with this amendment thereto, is a part of the petition, we will construe it in the light of the other allegations of the petition, in testing it as against a demurrer. The petition shows that the original contract was between plaintiff and the J. T. Tice Company, and that after the execution of the original contract “the said J. T. Tice Company was duly chartered and incorporated, . . and that the said J. T. Tice Company Incorporated absorbed and took over the said J. T. Tice Company and assumed all the said J. T. Tice Company’s liabilities, assets, contracts and business.” Under this allegation the corporation stepped into the shoes of the company, and in legal contemplation the parol agreement (which the petition shows was but a modification of the original contract) was between the same parties as the original contract, and such alteration was permissible under the law, and therefore an allegation to that effect is permissible. “If both parties to a contract change or alter its terms by mutual consent, the contract is still binding on both.” Haigler v. Adams, 5 Ga. App. 641 (63 S. E. 717). “Where a contract is in writing each party has a right to expect the other to do precisely what he promises; but if, in the course of the execution of its terms— the carrying them into practical execution in a continuous business-some of the terms are departed from, and money is paid and received on that departure for some time, then, before the one can recover from the other for failure to pursue the letter of the agreement, he must notify him with clearness of his purpose thenceforth to stand on the original contract.”. Eaves v. Cherokee Iron Co., 73 Ga. 459 (2).

The third demurrer contains three grounds, all directed against paragraph 2 of the amendment filed Séptember 26, 1921, and to the effect that the verbal agreement as to $6.25 commission on repeat orders varies the terms of the written contract. This demurrer is without merit. In Kennesaw Guano Co. v. Miles, 132 Ga. 770 (64 S. E. 1087), Mr. Justice Holden said: “We think that under the facts appearing in the record the court was not required, but was authorized, to find that in the course of the execution of the contract the parties departed from its terms, and paid and received money under such departure, as a result of which the plaintiffs were relieved of the duty to fulfill the guarantee provided for in the original written contract.” See authorities cited on the opinion. Justice Holden said also (p. 771) : “We think that the conduct of the parties, after the expiration of the contract made in writing, was such as to renew such contract as it previously existed, and each of the parties was bound by the terms of such previously existing contract as' modified by the mutual departure therefrom. In .this connection, see Hill v. Goolsby, 41 Ga. 289, 291; Roberson v. Simons, 109 Ga. 360 (34 S. E. 604).” See also Holman v. Ga. R. Co., 67 Ga. 595 (2); Lippincott v. Behre, 122 Ga. 546, 547 (50 S. E. 467). See also ' our discussion of ground 1 of the second demurrer, supra, and cases there cited.

The 4th ground of the motion for a new trial (1st special ground) contends that a new trial should be granted because of certain evidence set out in the affidavit of E. J. Higgenbotham and attached to this ground. This ground shows on its face that this evidence is not newly discovered, but was known to defendants before the call of the case for trial. Indeed it is not really offered as newly discovered evidence.

(a) Neither does this affidavit or anything in this ground show cause for a continuance of the case. A note attached to this ground shows that the “defendant announced ready for trial upon the call of the case, without calling the court’s attention to the absence of E. J. Higgenbotham, or the materiality of this evidence. The case proceeded to trial until the third day, and the plaintiff had announced closed with his evidence when the defendant made a motion to continue the ease on account of the absence of E. J. Higgenbotham, whose absence ivas lenown to the defendant at the time he announced ready for trial.” (Italics ours.)

We will consider together grounds 6, 7, 8, and 9 of the motion for a new trial. In them the verdict is alleged to be “contrary to the pleadings,” “contrary to the law and the evidence,” and it is alleged that the portion of the verdict against the J. T. Tice Company Incorporated “is not supported by any evidence in the ease,” and “is contrary to the sworn testimony of the plaintiff.” It is true that there was a misjoinder of parties. Plaintiff sued both the “company” and the “corporation.” This could be taken advantage of by special demurrer only, and none was filed. Ga. Railroad Co. v. Tice, 124 Ga. 462 (52 S. E. 916, 4 Ann. Cas. 200); Rusk v. Hill, 117 Ga. 722 (3) (45 S. E. 42); Eagan v. Conway, 115 Ga. 130 (6) (41 S. E. 493); Fleming v. Roberts, 114 Ga. 638 (40 S. E. 792). The petition sets out a cause of action against the J. T. Tice Company Incorporated, and therefore the verdict was not “contrary to the pleadings.” Is there any evidence to support this verdict ? The main contention of the plaintiff in error is that J.' T. Tice Company Incorporated did not contract with the plaintiff, did not assume the contracts or liabilities of the J. T. Tice Company, and that there is no evidence of any contractual relation between the plaintiff and the corporation. There is evidence to show that the written contract was between the plaintiff and the company, and was dated September 17, 1919; that the plaintiff made his first trip under the verbally altered agreement in January, 1920; and that he severed his connection with the defendant in January, 1921. Conceding, but not deciding, that the altered agreement was an entirely new contract, there is some slight evidence that it covered a period only from January, 1920, to January, 1921; and if this were believed by the jury, it was not more than a year, and need not, under the statute of frauds, have been in writing. However, we hold that the parol agreement was but a modification of the original written contract between the parties. Both parties litigant agree to the validity of the original written contract. All that part of the original agreement relating to the parties, the 40 per cent, commission to be paid on initial sales, expense necessary to make sales, territory to be covered, orders passing through the company’s office, and compensation on repeat orders, remained unaltered. The only change in the contract alleged is that the plaintiff “was to receive additional compensation of $6.25 per pair racks for repeat orders,” instead of the commission on repeat orders, set out in the original contract. This is but a modification of the original contract. There is evidence to show that it was made by the company just before the company was absorbed by the corporation, and that the corporation acted upon it and received and shipped orders and paid out money under it. As stated in Lippincott v. Behre, supra: “If the contract as originally signed did not bind the defendants, the allegations of the petition are sufficient to show that the same had been adopted by them, and that partial payments thereunder had been made to the plaintiff. '. . .The allegations that the defendants changed some of the terms of that original agreement . . and increased his commissions are also sufficient to show that the defendants recognized and adopted .the contract which had been made by Alfred Lippincott representing Charles Lippincott & Co.” The contract was changed by the plaintiff and the company which originally made it, and “If both parties to 'a contract change or altep its terms by mutual consent, the contract is still binding on both” (Haigler v. Adams, supra), and, of course, binding on the corporation which later assumed it. The petition alleged that the corporation absorbed the company. and assumed ■ the company’s liabilities and contracts. This being true, whatever was due this plaintiff was due by the corporation, either on account of its assuming the liabilities of the company, or on account of the corporation’s dealings with the plaintiff after it came into existence. Without quoting further from the evidence, we content ourselves by saying that it is ample to show a contractual relation between plaintiff and the corporation. The business conducted by the J. T. Tice Company lapsed into the business conducted by the J. T. Tice Company Incorporated. With the knowledge and consent of the corporation, the plaintiff continued to render to it the same service that he had performed, for the company, and the corporation accepted his services with the full knowledge of all the facts and knowing that he expected to carry out the contract with it as it was made with the company.

The 13th ground complains in part of the following charge: “So you look to the evidence and determine if the parties to this written contract, subsequent to its execution, agreed to modify the terms as to the amount to be received by the party of the second part for original orders and also repeat orders, as contended by him.” This charge was not entirely relevant, because there were no pleadings as to a modification of a written contract so far as original orders were concerned. However, there was some evidence, in the absence of pleading, that the written contract was modified so far as original orders were concerned; and there was pleading and evidence that the written contract was modified as to repeat orders. The pleadings set up that the commission to be allowed the plaintiff on repeat orders was changed to $6.25, and there was evidence to this effect, and there was also evidence that at the same time the defendant guaranteed that the 40 per cent, commission, allowed the plaintiff on the original orders as set out in the contract, would amount to $10 or more. In the light of the pleadings and the evidence relative to the modification of the contract, we hold that the error complained of in this ground is not such as to require the grant of a new trial, the charge being in the main relevant and proper.

The jury decided that the plaintiff was entitled to recover, under his contract, and the pleadings and the evidence authorized a finding that the corporation assumed this contract and accepted the services of plaintiff thereunder; and the verdict and judgment against the corporation are legal and binding. See Moss v. Fortson, 99 Ga. 496, 499 (27 S. E. 745); International Power Co. v. Hardy, 118 Ga. 512 (45 S. E. 311).

While this court has “no power to add to a verdict” (Renwick v. LaGrange Bank, 29 Ga. 203 (2)), it is expressly provided by section 5696 of the Civil Code (1910) that where part of a verdict is legal and part illegal, the part which is illegal may be written off, and this court “is clothed with power to direct any order necessary for the proper direction of a cause.” Finley v. Southern Ry. Co., 5 Ga. App. 722 (64 S. E. 312); Civil Code (1910), §§ 6103 (2), 6205.

It is therefore ordered that as to the J. T. Tice Company Incorporated the judgment be affirmed, and as to the J. T. Tice Company it be

Reversed.

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