text:
    14698.
    SMITH et al. v. JOHNSON.
    The trial judge in his original answer to the writ of certiorari, and in his response to the exceptions to the answer, having stated that because of the lapse of time he could not remember what happened on the trial of the case, and for that reason could not answer, and the answer of the trial judge being “the only medium through which error can be shown,” the judge of the superior court properly overruled and dismissed the certiorari, and rendered final judgment in favor of the defendant in certiorari.
    Decided October 3, 1923.
    Rehearing denied November 14, 1923.
    Certiorari, from Fulton superior court—Judge Bell. April 3, 1923.

      Morris Maclcs, for plaintiffs in error.

      Arminius Wright, contra.
   Bloodworth, J.

E. F. Johnson sued H. Smith and Joel Eausin, doing business as American Hoofing & Paint Company, in the municipal court of Atlanta, on an account, and obtained judgment against them. Defendants filed a petition for certiorari in the superior court, and writ of certiorari issued from that court, directed to the trial judge, who answered: “Because of the lapse of time your respondent does not remember what happened on the trial of this case, and for that reason cannot answer.” Plaintiff in certiorari excepted to this answer, the exceptions were sustained, and the respondent was directed to answer again the petition for certiorari. In his second answer the trial judge reiterated the fact that “on account of the lapse of time your respondent does not remember what happened on the trial of this case, and for this reason cannot answer.” Plaintiffs in certiorari then presented to the judge of the superior court “their petition for the respondent and the defendant in certiorari to show cause . . why the petition . . should not be taken as true, inasmuch as the memory of the respondent had lapsed, there being a hiatus in the law to meet such an emergency; the Civil Code of Georgia of 1910 providing in section 5202 that in the event the magistrate or judge of the inferior court, before whom the case was tried, die before answering the writ of certiorari, it shall be the duty of the judge who granted the writ of certiorari forthwith, either in term time or vacation, to order a new trial to be had upon the case in the court below.” A rule was issued by the judge of the superior court, requiring the respondent and the defendant in certiorari to show cause why movant’s prayers should not be granted. Respondent and defendant in certiorari both answered, “and petitioners filed their demurrer and also their traverse to the answer filed to the rule nisi.” The judge of the superior court, in separate orders, dismissed the rule nisi, struck the traverse to the answer of the trial judge and defendant to the rule nisi, struck the demurrer to the rule, and overruled and dismissed the certiorari and rendered final judgment in favor of E. E. Johnson, defendant in certiorari, and against Smith and Rausin, the original defendants in the trial court, later plaintiffs in. certiorari and now plaintiffs in error. To each of the above rulings the plaintiffs in certiorari excepted, and now except and assign error thereon; and “error is further assigned upon the judgment of the court overruling and dismissing the certiorari and rendering final judgment, for the reason that the court erred in dismissing the rule nisi, and in dismissing and striking the demurrer and traverse to the answer to the rule nisi.”

1. The case of Colbert v. State, 118 Ga. 302 (45 S. E. 403), is particularly and peculiarly applicable to the case under consideration, both as to the facts and as to the language of the court in delivering the opinion. In that case the trial judge, in response to the writ of certiorari, answered (p. 303) : “Respondent says further that he cannot now recall the evidence introduced at the trial of the case,” and the Supreme Court said (p. 305) : “We know of no adequate remedy for such a case as this. . . In a ease like the present, where the infirmity in the answer is owing to an infirmity of memory on the part of the trial judge, we know of no remedy which the law affords to the applicant for certiorari, however unfortunate it may be for him that the judge who tried the case is unable to remember what occurred at the trial. That there ought to be a remedy in such a case we have no doubt, but until the lawmaking power provides one, an application for certiorari seems to be remediless when the judge who tried the case is unable, through lapse of memory, to furnish a reviewing court with a statement of the facts which occurred at the trial.” The headnote in that case (p. 302) is as follows: “When upon the trial of a certiorari case none of the assignments of error made in the petition for the writ can be determined without considering the evidence introduced in the lower court, and the answer of the judge of such court fails to disclose in any way what the evidence was, the judge of the superior court, upon the hearing .of the certiorari, cannot do otherwise than to overrule the same.” In the case of Buckner v. State, 115 Ga. 238 (41 S. E. 583), the principle involved was the same as in the one now under consideration, and the Supreme Court in that case said (p. 239) : "The only medium through which error can be shown is the answer to the certiorari; and if the answer does not disclose any error, an affirmance of the judgment necessarily results.” (Italics ours.) And the court said (p. 240) : “The fact that the accused may have been without a remedy cannot alter the well-settled rule, founded upon obvious considerations, that in certiorari cases the answer of the trial judge is the only source from which knowledge of the facts of the case and the rulings made must be derived. If the accused was improperly convicted, it is certainly unfortunate that the judge before whom he was convicted could not, in answering the certiorari, remember what occurred at the trial. It is immaterial that counsel for the accused may have been responsible for the delay which seems to have been the occasion of the loss of memory. It was not necessary for the judge to give any reason for his want of recollection. He answers that he does not remember what occurred, and that is an end of the whole matter. Under such an answer the judge of the superior court could not have done otherwise than to overrule the petition for certiorari.”

It matters not that plaintiff in certiorari failed to except to the answer in the Buchner case, supra, while the plaintiff in certiorari did except to the answer in the ease under consideration. The answer of the trial magistrate in response to the exceptions in the instant case was in effect the same as his original answer, and therefore the same status exists as if there had been no exceptions to the answer filed. This being true, the same “infirmity in the answer” exists for which, as stated in the Colbert case, supra, “we know of no remedy.” “The only medium through which error can be shown is the answer to the certiorari, and if the (second) answer does not disclose any error” the situation is not benefited by the exceptions having been filed, and “an affirmance necessarily results.” We therefore hold that the trial judge in his original answer to the writ of certiorari, and in his response to the exceptions to said answer, having stated that because of the lapse of time he could not remember what happened on the trial of the case and for that reason could not answer, and the answer of the trial judge being “the only medium through which error can be shown,” the judge of the superior court properly overruled and dismissed the certiorari, and rendered-final judgment in favor of the defendant in certiorari.

2. Because of the foregoing ruling the other questions raised by the assignments of error become moot.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    14700.
    Goebel, adm'r, et al. v. Lucas et al.

    Decided October 3, 1923.
    Appeal, from Haralson superior court-—-Judge Irwin. April 17, 1923.

      M. J. Head, Lloyd Thomas, for plaintiffs in error.

      Griffith & Matthews, contra.
   Luke, J.

A judgment dismissing a motion for new trial because of failure of movant to present for approval brief of evidence as required by law is complained of in this ease. It was not error for the trial judge to dismiss the motion for a new trial, upon the grounds urged.

Judgment affirmed.

Broyles, G. J., amd Bloodmorih, J., concur.


author: Bloodworth, J.

text:
    14701.
    KETCHUM v. PRICE et al.

    The court did not err in overruling the special ground of the demurrer that there was a misjoinder of parties defendant.
    Decided October 3, 1923.
    Damages;. from Lee superior court—Judge Littlejohn. April 7, 1923.

      B. B. Forrester, Milner & Farltas, for plaintiff in error.

      W. G. Martin, contra.
   Bloodworth, J.

Goode Price and J. M. Cannon brought suit in the superior court of Lee county against C. L. Ketchum and Georgia-Alabama Power Company. The petition shows: that Ketchum is a resident of that county; that the Power Company “is a corporation engaged in the business of generating electricity and transmitting it over wires in said county,” but has its principal office in Dougherty county (plaintiff having prayed that second original issue, directed to sheriff of Dougherty county for service upon said Power Company); that on May 26, 1920, Ketchum sold to the plaintiff Price (who sold a half interest to his coplaintiff, Cannon) “all the hardwood, pine, and other trees and timbers of all kinds” upon certain lands; that plaintiffs had five years from said date in which to cut and remove said trees from said lands; that on June 4, 1921, after having sold the timber to plaintiffs and before the expiration of the five years which plaintiffs had in which to remove it, Ketchum executed an instrument of writing to his codefendant, Georgia-Alabama Power Company, “giving it all the right to back water and overflow said above-described lands, and also giving to it any other right or interest in said land that shall be necessary or incidental in the proper use of said land for overflow or backwater purposes” by reason of a certain' dam erected by said Power Company; that at the time of the execution of said instrument both Ketchum and the Power Company knew that plaintiffs owned the timber on said lands; that in November, 1921, all the land on which the trees previously sold to plaintiff were standing “was flooded by back-water from said dam, said back-water being from five to fifteen feet deep, all of which resulted in the absolute destruction of the value of said trees,” as set out in the petition. Ketchum demurred to the petition and the amendment, thereto, the judge overruled the demurrer, and he excepted.

The only ground of the demurrer insisted upon or argued is that “there is a misjoinder of parties defendant,” and only such facts have been set out in the above statement as are necessary for a discussion of this ground. Counsel for plaintiff in error stresses the point “that Georgia-Alabama Power Company was and is a public utility, with the right of eminent domain, . . and therefore had the right to overflow what lands were necessary, . . and it was its right to either condemn said property in question or purchase the same without resorting to condemnation proceedings. In the present case the parties got together and' agreed upon a satisfactory price, and thus made it unnecessary to resort to condemnation proceedings.” The fallibility ■ of this contention is that the Power Company “got together” with only one of the parties at interest, viz. Ketchum, who owned the land, and ignored the plaintiff, who owned the timber on the land, and did this with full knowledge, according to the petition (which must be taken as true), that plaintiff did own said timber. The Power Company made no contract with plaintiff for the timber, and instituted no condemnation proceedings therefor. It cannot be contended that the deed from defendant Ketchum to plaintiff Price gave either of the defendants a right to destroy this timber, or fixed the damages which are sued for. “On the contrary, it appears to us that the parties to the deed merely agreed that upon the happening of certain contingencies the purchase price of the trees and timber in question would be lessened $500.” See Price v. Ketchum, 29 Ga. App. 179 (115 S. E. 34). Certainly the deed did not provide that Ketchum could sell plaintiff the timber and then sell to some one else the right to destroy this timber. From this it will be seen that the Power Company contracted with Ketchum only, and the record shows no contract or proceeding authorizing the destruction of plaintiffs’ property. However, Ketchum, after having sold this timber to plaintiff, and of course knowing that it belonged to plaintiff, did sell to the Power Company the express right to overflow the land on which this timber was located; and the Power Company, knowing that the timber belonged to plaintiff, and without purchasing or condemning said property, overflowed said land and destroyed this timber; and the loss sustained by plaintiff was the natural consequence of the wrongful acts of these two defendants. The Power Company, in overflowing the lands and destroy-mg the timber, acted under and by virtue of the instrument which it had procured from Ketchum, and therefore Ketchum’s selling this alleged right to overflow the land, coupled with the act of the Power Company in overflowing the land, was the cause of plaintiffs’ damage.

Ketchum, the plaintiff in error in this case, procured the commission of the trespass by executing this instrument to the Power Company. “One who procures or assists in the commission of a trespass, or does an act which ordinarily and naturally induces its commission, is liable therefor as the actual perpetrator.” Burns v. Horkan, 126 Ga. 161 (3) (54 S. E. 946). In discussing the Burns case, Judge Pottle, in the case of Burch v. King, 14 Ga. App. 155 (2) (80 S. E. 605), said: “It appears to be well settled that anyone who procures or assists in the commission of a trespass, or directs or requests that it be done, or does an act which ordinarily or naturally produces the trespass, is liable jointly with the actual perpetrator.” (Italics ours.) Certainly Ketchum in selling the express right to overflow this land did an act which ordinarily and naturally produces such a trespass. See also Civil Code, §4469; Brooks v. Ashburn, 9 Ga. 298 (3); Williams v. Inman, 1 Ga. App. 323 (1) (57 S. E. 1009); Chattahoochee Brick Co. v. Goings, 135 Ga. 535 (69 S. E. 865, Ann. Cas. 1912A, 263); Graham v. Dahlonega Co., 71 Ga. 297 (3 a).

Applying the foregoing decisions to the allegations of the petition in the instant case, we find that there was no “misjoinder of parties defendant,” and the court did not err in overruling the demurrer on this special ground.

Judgment affirmed.

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


text:
    14711.
    Brown v. The State.
   Bloodworth, J.

1. The court did not err either in failing to give in charge to the jury the definition of circumstantial evidence, or in failing to instruct them as to “the force and effect of circumstantial evidence.” Moreover, “The ground of the motion for a new trial which complains of the failure of the court to instruct the jury upon the law of circumstantial evidence (ño request therefor having been made) is too defective to be considered, since it is not alleged therein that the conviction of the defendant depended entirely upon circumstantial evidence.” Dudley v. State, 28 Ga. App. 711 (4) (113 S. E. 24).

Decided October 3, 1923.

Accusation of possessing intoxicating liquor; from city court of Thomasville—Judge Hammond. May 9, 1923.

Eldon L. Joiner, for plaintiff in error.

E. J. MacIntyre, solicitor, contra.

2. The evidence is ample to support the verdict, which has the approval of the trial judge, and, as no error of law was committed, this court is powerless to interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Broyles, C. J.

text:
    14998.
    14999.
    Kirksey v. Geer, Judge. Sheffield v. Geer, Judge.
    Decided October 3, 1923.
    Application for mandamus.

      B. W. Grow, for the applicant.
   Broyles, C. J.

In each of the above-stated cases the petition for mandamus, praying that this court compel the trial judge to certify a bill of exceptions, shows that the fine imposed by the court was paid by the movant after the refusal of the judge to sign the bill of exceptions. The cases, therefore, have become moot, and the applications for mandamus are denied. This is true although the sentence in each case was that unless the defendant paid the fine he must serve a certain number of months in the chain-gang, and although the movant alleges that on the next day after the refusal of the judge to certify the bill of exceptions the sheriff told him that he must pay the fine at once or go to the chain-gang, and, “fearing the hard labor” imposed, he (the movant) paid the fine. See, as to the principle involved, the following eases: Leverelte v. Kilpatrick, 29 Ga. App. 333 (115 S. E. 34); Hoard v. Jordan, 23 Ga. App. 656 (99 S. E. 144); Johnson v. Harris, 13 Ga. App. 618 (79 S. E. 588); Cook v. Lowry, 148 Ga. 516 (97 S. E. 440).

Mandamus nisi denied.

Luke and Bloodworth, JJ., concur.


text:
    14222.
    SOUTHERN FLOUR AND GRAIN COMPANY v. SMITH.
    The contract upon which the action was based was void, because violative of the law which requires that “all concentrated commercial feeding-stuffs shall be in standard-weight bags or packages of fifty, seventy-live, one hundred, one hundred and twenty-live, one hundred and fifty, one hundred and seventy-five, or two hundred pounds each” (Civil Code of 1910, § 2107), and which penalizes violation of this requkement by fine or imprisonment, or both (Penal Code of 1910, § 452); the contract being for the sale of beet pulp, a concentrated commercial feeding-stuff (Civil Code of 1910, § 2106), in bags of eighty-eight pounds each.
    The court therefore erred in overruling the demurrer to the petition.
    Decided October 4, 1923.
    Rehearing denied November 14, 1923.
    Action for breach of contract; from Fulton superior court— Judge Bryan. November 23, 1922.

    Application for certiorari was denied by the Supreme Court.

      W. A. Sutherland, Jones, Evins & Moore, for plaintiff in error.

      Norman I. Miller, contra.
   Luke, J.

C. E. Smith Company, a copartnership, sued the Southern Flour & .Grain Company for the difference between the contract price of certain beet pulp and its price on resale. From the petition it appears that the contract between the parties stipulated for the purchase of beet pulp in bags of eighty-eight pounds each. By general demurrer the defendant presented the contention that the contract sued on was void and illegal, for the reason that it was violative of section 2107. of the Civil Code (1910), requiring that “all concentrated commercial feeding-stuffs shall be in standard-weight bags or packages of fifty, seventy-five, one hundred, one hundred and twenty-five, one hundred and fifty, one hundred and seventy-five, or two hundred pounds each.” Defendant insists that the overruling of its demurrer was error.

1. Where the terms of a contract directly involve the infraction of a civil statute not enacted for the purpose of raising revenue, and such infraction is penalized by a fine, or imprisonment, or both, the contract is void and unenforceable. Conley v. Sims, 71 Ga. 161; Civil Code (1910), § 4251. For the case of a statute enacted for the purpose of raising revenue, see Toole v. Wiregrass Development Co., 142 Ga. 57 (82 S. E. 514).

2. Section 2106 of the Civil Code (1910) is sufficiently broad to include beet pulp as a “concentrated commercial feeding-stuff;” and since the litigants specifically contracted for the sale and purchase of beet pulp in sacks containing 88 pounds, in direct violation of section 2107, and since section 452 of the Penal Code penalizes any violation of the provisions of chapter 3 of the fifteenth title of the Political Code, which includes section 2107, by a fine, or imprisonment, or both, the contract under consideration was void, and the court erred in overruling the defendant’s demurrer. The decision in the recent case of Southern Flour & Grain Co. v. Pillsbury Flour Mills Co., 29 Ga. App. 671 (116 S. E. 910), does not conflict with the ruling now made. In that case the violation of the interstate-commerce act was independent of and did not enter into the contracts sued upon; whereas in the instant case the violation of section 2107, supra, was not independent of and did enter into the contract sued upon.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    14231.
    GEORGIA RAILWAY & POWER CO. v. BRITT.
    Erroneous instructions by the court to the jury as to the rule of law on a material issue in the ease are cause for a new trial, although the correct rule be given in another part of the charge, unless the judge calls attention to the erroneous instructions and specifically withdraws them, or unless “it can with perfect safety and fairness be said that the jury were not misled to the injury of the complaining party.”
    The court erred in overruling the motion for a new trial.
    Decided October 4, 1923.
    Action for damages; from DeKalb superior court—Judge Hutcheson. November 25, 1922.

      Colquitt & Conyers, for plaintiff in error.

      Branch & Howard, contra.
   Bloodworth, J.

A. C. Britt sued the Georgia Railway & Power Company for damages on account of personal injuries. Upon the trial of the case a verdict for the plaintiff was rendered, a motion for a new trial was filed by the defendant, which, after amendment, was overruled, and the defendant excepted.

The 17th ground of the amendment to the motion for a new trial alleges that the court erred in charging the jury as follows: “One method by which you could ascertain this would be to determine from the evidence the probable expectancy of the plaintiff from this time, and to ascertain from the evidence the annual earning capacity of the plaintiff,—that is, seek honestly to reach a just conclusion from the facts before you, as to what amount should be regarded as fairly representing his yearly income from his own labor to the end of his life, if he had not been injured, giving due weight to the contingencies that will be pointed out to you; and having from the evidence fixed as accurately and fairly as you can upon the number of dollars representing the yearly earnings of the plaintiff, and having ascertained from the evidence his expectancy (that is, the number of years which he probably would live), you could, by multiplying one of these numbers by the other, determine approximately what would be the gross amount of the earnings of his whole lifetime, of course keeping in view that you should reduce it to its present cash value, as I have heretofore stated to you.” This charge was alleged to be error, “for that the same was (a) an instruction that the whole earning capacity of the plaintiff was destroyed; (I) for that the same was an intimation on the part of the court that the whole earning capacity of the plaintiff was destroyed, and that plaintiff could recover for the entire destruction of his earning capacity in this case; (c) for that said instruction was in violation of the law as contained in code section 4863, in that it was an expression or intimation on the part of the court that plaintiff’s whole earning capacity had been destroyed.”

Under this charge the jury would have been authorized to return a verdict for the gross amount of the earnings of the plaintiff for his whole life, reduced to its present cash value, notwithstanding the fact that the petition alleges that the earning capacity of the plaintiff “will be diminished at least two thirds as a result of the condition in which he has been left from his injuries;” and the evidence shows that the plaintiff has worked and earned money since the injrrry. Under the ruling in Central of Ga. Ry Co. v. Johnson, 106 Ga. 130 (4) (32 S. E. 78), the foregoing excerpt from the instructions given to the jury is error requiring the grant of a new trial. In that case Justice Lewis said: “It clearly appears from the record in the case that the earning capacity of the defendant in error was not totally destroyed by the injuries he received. He himself admitted upon the stand that he had pursued the practice of his profession to some extent after receiving these injuries, and had made some money in his business, specifying the amount. Indeed, it was not contended by his counsel that there was any testimony in the record from which it could be inferred that the ability of the defendant in error to pursue his regular occupation to some extent, and to earn money in such pursuit, had been entirely destroyed. In the charge of the court complained of, the jury were, in effect, instructed that they could take, as a basis of a recovery for any financial loss which the plaintiff below may have sustained, what his- earnings will or would be for the length of time he is expected to live, and after ascertaining such amount, they should then reduce it to its present value. It was manifest' error, inasmuch as the language used gave the jury the latitude of basing their finding of damages upon the entire earnings of the plaintiff, instead of upon the difference between what his earnings would be after the injury and what they would have been had he not been hurt. It was contended, however, by counsel for defendant in error, that in other portions of the charge the court fairly and fully instructed the jury on this subject, and that, considering the charge complained of in connection with the entire charge upon the subject, the jury could not have been misled by the instructions given them. It is true, as contended, that the judge did, in another portion of the charge, correctly state the law on this particular point. The charge complained of, however, was not given in the same connection. After instructing the jury fully upon the measure of damages, the court proceeded to give them at considerable length the rules of law in regard to pleadings, degree of diligence railroad companies should exercise in such cases, rules of evidence, and other matters not directly connected with the subject relating to the measure of damages in this particular case. The judge then, at the conclusion of his charge, again adverted to this subject relating to the measure of damages, instructing the jury that they should find what the plaintiff’s earnings will or would be for the length of time that he was expected to live, and to reduce that amount to its present value. We think the language used was calculated to leave upon the minds of the jury an erroneous impression as to what rule should govern them in reference to this very important issue on trial; and coming, as it did, at the conclusion of the charge, and being the last impression received from the court, it might have supplanted the correct ideas the jury may have at first entertained from previous portions of the court’s language. This court has repeatedly held that where an erroneous rule of law is given to the jury on a material issue in a case, i new trial will be granted, notwithstanding the correct rule may have been announced in other portions of the charge. (Italics ours.) Georgia R. Co. v. Hicks, 95 Ga. 301; Powell v. State, 101 Ga. 11 (6); Port Royal & W. C. Ry. Co. v. Davis, 103 Ga. 579. It does not follow, however, that because one portion of the charge is totally repugnant to another, even on a material point, such a mistake on the part of the court will necessarily be reversible error. If, for instance, the verdict rendered by the jury was demanded by the evidence, a new trial will not ordinarily be granted, regardless of errors of law committed. Or if the verdict was for such an amount as to clearly indicate upon its 'face that the jury must have applied the correct rule laid down by the court, and not the erroneous rule, it would be at once concluded that the error worked no harm to the plaintiff in error. The real question seems to be whether or not, on account of such conflicts or inconsistencies in the instructions of the court upon vital issues in a case, it can with perfect safety and fairness be said that the jury were not misled to the injury of the complaining party. Applying this doctrine to the case at bar, we think there was error in overruling this ground of the motion for a new trial. The verdict found by the jury was certainly not demanded by the evidence; nor was there anything in the amount of the finding to indicate or to authorize the inference that they did -not apply the erroneous instead of the correct rule on the subject of the- financial damages which the defendant in error has sustained; for, if the last rule on this subject laid down by the court had been adopted by the jury, the most favorable view of the evidence that could be taken indicates that they nevertheless found, in addition to such damages, several thousand dollars for pain and suffering. We do not mean to intimate that the verdict in this case was contrary to evidence, or that it was so excessive as to authorize this court to infer bias and prejudice in the minds of the jury either against the plaintiff in error or for the defendant in error.” See Atlantic Coast Line R. Co. v. Andrews, 20 Ga. App. 605 (93 S. E. 261); Chattanooga Railroad Co. v. Owens, 90 Ga. 266 (8), 281 (8) (15 S. E. 853); Morris v. Warlick, 118 Ga. 423 (45 S. E. 407); Savannah Electric Co. v. McClelland, 128 Ga. 87 (2) (57 S. E. 92). In the opinion in the last-named case (p. 89) Justice Beck said: “Juries should not be left to reconcile conflicting principles of law; nor are they supposed to be able to eliminate errors in the charge, even with the aid of a correct statement of the law preceding or following the erroneous instruction, when their attention is not directed to the conflict between the erroneous and the correct rule, and they are not instructed as to which of the two conflicting principles should be disregarded and which should be observed and applied. Morrison v. Dickey, 119 Ga. 698.” In the case we are now considering we are not prepared to say “with perfect safety and fairness” that the jury were not misled to the injury of the complaining party by the charge of which complaint is made.

As a new trial will result from the foregoing ruling, and as the questions raised by the other assignments of error are not likely to recur when the case is again tried, it is unnecessary to consider them.

Judgment reversed.

Broyles, O. J., and Luke, J., concur.


author: Stephens, J.

text:
    14245.
    Carter v. Bassett.
    Decided October 11, 1923.
    Certiorari; from Bibb superior court—Judge M. B-. Jones. January 5, 1923.

      H. F. Bawls, for plaintiff in error.

      J. P. Burnett, contra.
   Stephens, J.

1. The facts in this case being substantially the same as those reported in the ease of Adams v. McClendon, 30 Ga. App. 559 (118 S. E. 497), the trial court erred in passing adversely upon the defendant’s motion to stay the suit pending the defendant’s bankruptcy proceedings and until the question of the defendant’s discharge should be finally determined, where such refusal was based upon the ground that “a bankrupt having had his first petition in bankruptcy dismissed for want of prosecution, he could not maintain a second petition in bankruptcy, against the creditors scheduled in first petition, and also scheduled in second.” What is actually decided here and in Adams v. McClendon, supra, is not in conflict with McLeod v. Mills, 29 Ga. App. 87 (91 S. E. 239).

2. The judge of the superior court therefore erred in overruling the defendant’s certiorari.

Judgment reversed.

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


text:
    14253.
    Young v. Landers.
    Decided October 11, 1923.
    Lien foreclosure; from Fulton superior court—Judge Ellis. December 11, 1922.

      Burress & Dillard, for plaintiff in error.

      Norman I. Miller, contra.
   Stephens, J.

1. In a suit by a materialman to foreclose against the owner of real estate a lien for material furnished to a contractor upon a contract between the latter and the materialman and used in the improvement of the property, it is essential to show that the plaintiff had completed and performed his contract with the contractor within twelve months prior to the filing of the suit. Civil Code (1910), § 3353 (2 a).

2. A bill or written statement of the account, made extrajudicially by the plaintiff, reciting that the contract was completed upon a specified date (which date was within twelve months of the filing of the suit), without showing that it was ever rendered or made to the defendant, was purely hearsay and a self-serving declaration tending to show the date of the completion of the contract, and the court erred in admitting it over objection by the defendant that it was a self-serving declaration.

3. Where the suit was filed on September 17, 1920, evidence to the effect that the contract was completed “about the middle of September” of the previous year, the exact date not being positively known, is insufficient to establish that the suit was filed within twelve months after the completion of the contract. This infirmity in the evidence is not cured by the positive statement in a preceding part of the testimony of the same witness that the contract was completed on September 19 of the year previous to the filing of the suit, since the testimony is that of the plaintiff himself and must be construed most strongly against him. Southern Bank v. Goette, 108 Ga. 796 (33 S. E. 974).

4. Where the lien was asserted by recording the same in the office of the clerk of the superior court on December 8, 1919, such evidence is, however, sufficient to establish that the lien was recorded within three months of the completion of the contract.

5. The court having erred in admitting certain testimony as above indicated, and the remaining testimony being insufficient to support the verdict rendered for the plaintiff, which .must necessarily be based upon a finding that the suit was filed within twelve months after the completion of the contract, the court erred in not sustaining the defendant’s motion for a new trial.

Judgment reversed.

Jenloins, P. J., and Bell, J., conaur.


author: Bell, J.

text:
    14260.
    Carson v. Blair, administrator.
   Bell, J.

1. The statutory grounds of the disqualification of a judicial officer as contained in the Civil Code (1910), § 4642, are exhaustive, and a judge is not disqualified to preside in a given case merely because previously, as an attorney at law for one or both of the parties, he drew the contract on which the action or defense is founded. Luke v. Batts, 11 Ga. App. 783 (3) (4) (76 S. E. 165).

2. A judicial officer is not disqualified to preside in the trial of a suit to recover, besides principal and interest upon a promissory note, a sum for attorney’s fees under the provisions of the Civil Code (1910), § 4252, because of the mere fact that the attorney for the plaintiff is a son of the judge. The stipulation in the note for the payment of attorney’s fees was made for the benefit of the holder of the note, and presumably the suit, in counting for attorney’s fees, is proceeding solely for the benefit of the plaintiff. It is not to be inferred from these facts alone that the plaintiff’s attorney is performing his services for a conditional or contingent fee. In the instant case there was no evidence, introduced upon the motion to disqualify, which tended to show that the fees to be paid to the plaintiff’s attorney were conditional or contingent upon the fact or amount of plaintiff’s recovery. See, in this connection, Kirkland v. Kirkland, 146 Ga. 347 (1) (91 S. E. 119).

3. An assignment of error upon the refusal of the court to permit a witness to answer a question propounded on direct examination is incomplete and cannot be considered where it is not stated in the assignment what answer was expected and that the trial judge was informed thereof at the time the question was propounded. Seaboard Air-Line Railway v. Vaughn, 19 Ga. App. 397 (2) (91 S. E. 516). The assignment here referred to shows only that the court excluded the testimony of the defendant’s husband that he sought in her behalf to obtain an extension of the maturity of one of the notes. It is nowhere assigned that the defendant offered or that the court rejected any testimony tending to show any agreement by the plaintiff granting the desired extension. Without more, no reversible error appears.

(а) It is therefore unnecessary to determine whether, if the extension had been obtained, it would have been based upon a valuable consideration. Bennett v. Williams, 54 Ga. 526 (2).

(б) There is no evidence in the record that the plaintiff at any time made an agreement, binding or otherwise, to extend any of the notes sued upon; and, no error being shown in the rejection of any additional evidence upon the subject, it was not improper to direct a verdict in favor of the plaintiff as against that part of the defendant’s plea which set up that the notes were not due at the time of the institution of the action.

4. That a note sued on and offered in evidence by the plaintiff, upon which a payment has been made, does not bear an entry of the fact and date of the payment, is no reason for excluding the note from evidence. The burden of showing the facts touching a payment, or in relation to an extension of the remainder of a note in consideration of the payment of a part before maturity, is one to be carried by the defendant.

Decided October 11, 1923.

Rehearing denied January 21, 1924.

Complaint) from Cobb superior court-—Judge Blair. November 21, 1922.

Application for certiorari was denied by the Supreme Court.

W. A. James, Neufville & Neufville, for plaintiif in error.

Anderson & Roberts, Glay & Blair, contra.

5. Where, under the provisions of the Civil Code (1910), § 4122, a vendee who is sued upon notes for the purehase-priee of lands pleads a rescission on account of fraud, and where it indisputably appears upon the trial, from the evidence and the plea taken together, that on discovery of the fraud the vendee offered to rescind and restore the status, and that after this offer was refused the vendee made a partial payment of the purchase-price, seeking at the time an extension of the remainder of the note upon which the payment was made, that still later, when all of the notes, which under an accelerating clause had matured, were placed in the hands of an attorney for collection, the vendee tendered the remainder of the note which by its face had matured, and that the vendee continued in the unqualified possession and use of the property until and including the date of the trial, approximately two years from the time of the discovery of the fraud, there is no error in holding that the right of rescission was waived, and directing a verdict in favor of the plaintiff and against the plea. Fannin v. Thomason, 50 Ga. 614 (2); Gray v. Angier, 62 Ga. 596; Tuttle v. Stovall, 134 Ga. 325 (67 S. E. 806); Couch v. Crane, 142 Ga. 22 (7) (94 S. E. 888); Legg v. Hood, 154 Ga. 28 (2) (113 S. E. 642); Sutton v. Coleman, 27 Ga. App. 406 (108 S. E. 803); 4 R. C. L. 511-2, §§ 23, 24; 6 R. C. L. 932, § 316; 27 R. C. L. 658, § 420; 2 Black on Rescission & Cancellation, 1391-2, §§ 601, 602.

(a) If there was error in the rejection of evidence of fraudulent representations made by the plaintiff vendor in regard to the acreage before and at the time of the making of the sale, the error was harmless, since the evidence admitted conclusively showed that with knowledge of the fraud the defendant vendee had waived her right of rescission, there being no other plea upon which such evidence was relevant.

6. Irrespective of whether the facts stated above would bar the defendant from the right of an apportionment of the purchase-price' because of a deficiency in the acreage, and of whether the evidence would have required a submission of that issue to the jury if pleaded, the court did not err in declining to submit such issue, there being no plea or prayer for an apportionment or reduction of the purchase-price. See Civil Code (1910), § 5636.

7. The evidence demanded a finding in favor of the plaintiff and against the defendant upon such pleas as wore made, and the judge did not err in directing a verdict accordingly.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eonour.


text:
    14264.
    COFFEE v. WORSHAM & WEAVER.
    1. A breach of warranty, express or implied, in the sale of personalty, gives the purchaser the right to damages (Civil Code of 1910, § 4136), the measure of which is the difference between the contract price and the actual value of the goods at the time and place of delivery. Oxford Knitting Mills v. Wooldridge, 6 Ga. App. 301 (1) (64 S. E. 1008); Americas Grocery Co. v. Brackett, 119 Ga. 489 (5) (46 S. E. 657) ; Springer v. Indianapolis Brewing Co., 126 Ga. 321 (2) (55 S. E. 53).
    2. But, in order that a recovery may be had for a breach of warranty, damage and the amount thereof resulting from the breach must be shown, and the burden of proof is upon the purchaser. Brooks v. Camak, 130 Ga. 213 (1) (60 S. E. 456). Such a burden is not in any ease discharged unless some data is furnished by which the jury may determine the extent of the damage or failure of consideration. Hornsby v. Butts, 85 Ga. 694 (11 8. E. 846) ; Oiis v. Holmes, 109 Ga. 775 (2) (35 S. E. 119) ; Myers v. Philip Carey Co., 17 Ga. App. 535 (2) (87 S. E. 825) ; Clegg-Ray Co. v. Indiana Scale Co., 125 Ga. 558 (54 S. E. 538). The proof must be such “that the jury may calculate the amount from the figures furnished, and will not be placed in the position where their allowance of any sum would be mere guesswork.” National Refrigerator Co. v. Parmalee, 9 Ga. App. 725 (1), 726 (72 S. E. 191).
    3. Applying the above-stated principles to the facts of the instant case, the evidence was insufficient to sustain the defendant’s plea; and the verdict for the plaintiff was demanded. It follows that any errors in the charge of the court or in the admission or rejection of evidence, none of which related to the extent of the defendant’s damage, were harmless and immaterial. The defendant’s motion for a new trial was properly overruled.
    Decided October 11, 1923.
    Complaint; from city court of Valdosta—Judge Little. December 15, 1922.
    Worsham & Weaver, a partnership, sued J. P. Coffee upon a promissory note for $394.51 principal, besides interest and attorney’s fees. The defendant pleaded that the note was one of a series of five promissory notes executed and delivered to the plaintiffs as the purchase-price of a Monarch caterpillar tractor and one Oliver disc-plow, the other four notes being for $500 each, representing the purchase-price of the tractor, and the note sued on representing the price of the plow; and that the defendant, having previously paid the notes for the tractor, in the hands of an innocent holder, was entitled to recoup against the plaintiff for damages resulting from a breach of warranties in respect to the tractor. It was alleged that the tractor was warranted to operate “at a speed of 3 miles per hour, pulling said plow, and would plow from 10 to 12 acres per day, operating on a 10-hour day, and would consume from 15 to 20 gallons of gas per day (ten hours);” and that the tractor fell wofully short of the warranty in each of these particulars, with resulting damage to the defendant in the sum of $1,200.
    It was also pleaded that, “as a part and parcel of said contract of purchase and sale, plaintiffs promised the defendant to establish an agency at Valdosta, carrying all the repair parts for said tractor, and that they would keep a service man in the Valdosta territory; all of said promises and warranties having been made by the plaintiffs to the defendant as a part and parcel of the contract for purchase and sale, whereby the defendant purchased from the plaintiffs said tractor, and said promises and warranties were a part and parcel of said contract;” that this promise was breached, and that “the defendant, when his said tractor broke down, was unable to use the same for more than 30 days, and at two other times for more than three weeks, being unable to secure the repair parts so that said tractor could be repaired and put in shape to operate. The defendant was thereby injured and damaged in the sum of not less than $300.” There were no demurrers. The defendant admitted a prima facie case in the plaintiffs, and assumed the burden. The verdict was for the plaintiff. The defendant excepted to the overruling of his motion for a new trial.

      Dan R. Bruce, for plaintiff in error.

      Patterson & Copeland, contra.
   Bell, J.

(After stating the foregoing facts.) We think that the evidence demanded the verdict, and that the result would not have been different if all the rulings and charges had been as the plaintiff in error would have had them.

Dealing first with the covenant of the seller to establish at Valdosta an agency carrying parts, and to keep a service man in that territory, so that the tractor might be kept in running order conveniently and without delay, there was sufficient proof that this promise was both made and breached, but not a scintilla of evidence as to what was the extent of the resulting damage. No witness testified in regard to the value of any lost time. Nor did the jury have before them any other data from which they might determine what loss was sustained. The allegation in the answer, of damage from this cause in the sum of $300, is all that is shown in the record on the point, and it is needless to say that the plea is not evidence.

Again, the record is nearly but not quite as barren on the question of damages arising from the warranty of a certain standard of performance by the tractor, taking it as proven without doubt that the warranty was made and breached as claimed. The measure of the resulting damage would be the difference between the contract price of the tractor, $2,000, and its actual value at the time and place of delivery. There is no evidence whatever of its actual value at any time, unless in the testimony of the defendant that he sold this property at a valuation of $500 with some other property for the aggregate sum of $4,500. He bought the tractor in December, 1919. The date of the trial was October 12, 1921. He testified: “I have sold this tractor to Bob Dasher and delivered it to him. I sold the tractor with eight or nine mules [with some other property] for $4,500. I think the tractor was valued at $500.” He elsewhere testified: “I have not done anything with the tractor since I put it away in March, 1920.”

Whether he sold it shortly before the trial nearly two years after he had bought it, or soon after he “put it away” in March, 1920, is not shown by the record. Was this any evidence of the extent to which the value of the tractor was lessened at the time of the sale by reason of the breach of the warranty? It was said by the Supreme Court in the case of Watson v. Loughran, 112 Ga. 841 (2) : “While the cost of property may be considered, in connection with other facts, in determining its value, evidence of its cost, without more, is not sufficient proof of its market value.” Assuming (but not deciding) that notwithstanding the plaintiffs were not parties to the resale, the testimony here considered was some evidence against them of the value of the tractor at the time the defendant sold it, we do not think that, standing alone, it constituted any sufficient proof of the actual value of the tractor when he bought it from the plaintiffs, especially since the date and circumstances of the resale are not stated. During the lapse of time other causes than a breach of the warranty may have entered into its depreciation in value, and probably did. It is common knowledge that a vehicle, when sold as second-hand, usually goes, on this account alone, at a somewhat abated price. There are also market fluctuations, even though they may be not acute as to this kind of article.

Furthermore, in determining to what extent its value would be lessened by reason of a breach of the warranty, it would be pertinent to know something of the value of gasoline, of which it is claimed the tractor consumed more than it was represented to do. Again, if it would not plow as many acres per day as it was warranted to plow, what would be the difference in the value of its service ? It is not a sufficient answer to suppose that the jurors may have been acquainted with these matters. Evidence is not sufficient in any case which must depend upon the private information of the jurors. “Where a party sues for specific damages, he has the burden of showing the amount of the loss, and of showing it in such a way that the jury may calculate the amount from the figures furnished, and will not be placed in the position where their allowance of any sum would be mere guesswork.” National Refrigerator Co. v. Parmalee, supra.

Where there has been a breach of warranty in the sale of personalty, “the measure of damages is ordinarily the difference between the value of the goods ordered and those delivered, at the time and place of the delivery. The amount which the plaintiff would be entitled to recover is not affected by the subsequent rise or decline in prices of those ordered, or of those delivered; nor is it changed by the fact that the plaintiff subsequently resold at an increased or decreased price. Compare Berry v. Shannon, 98 Ga. 461. Often in fact and alwajrs in theory the party who is damaged by such breach of a warranty of personal property can resell on the same day, or he can retain the goods at that day’s market price, and the difference thus calculated represents his actual loss, as well as the measure of legal damage. If the goods thus retained decline in value, the amount he is entitled to recover is not increased'; if the goods advance, the defendant’s liability is not lessened. The rights and liabilities of each are fixed on that day, and subsequent changes in the value of the goods ordered or delivered are wholly immaterial.” Americus Grocery Co. v. Brackett, supra. What the defendant in the resale “realized is of no consequence except as to its evidentiary bearing upon the question of value.” Berry v. Shannon, supra. Even if the price received in the resale is an evidentiary circumstance upon the question of value, it must be held wholly insufficient to establish the value of the tractor at the time of its purchase from the plaintiffs, when, for aught that is shown in the record, the resale may have occurred as much as twenty-two months thereafter, with also a complete silence in regard to its circumstances. See also Allen v. Harris, 113 Ga. 107 (4) (38 S. E. 333); Southern Ry. Co. v. Williams, 113 Ga. 335 (1) (38 S. E. 744) ; Elder v. Woodruff, 9 Ga. App. 484, 486 (71 S. E. 806). Nothing here said is in conflict with any part of the decision of this court in Lott v. Banks, 31 Ga. App. 246 (94 S. E. 322).

With the exception of the single statement that at some time between March, 1930, and October 13, 1931, the defendant sold the tractor at a valuation of $500, there is no evidence in the record of the value of anything whatsoever which would be pertinent to the issue here involved. We conclude that the defendant did not successfully carry his burden of giving to the jury some data by which they could estimate with reasonable certainty the extent of the damage resulting from the breach of the plaintiffs’ warranties. See, on this question, in addition to the authorities cited in the head-notes: Thompson Oil Mill Co. v. Murray, 19 Ga. App. 137, 139 (91 S. E. 217); Consolidated Phosphate Co. v. Sturtevant, 30 Ga. App. 474 (5), 479 (93 S. E. 155); Spence Drug Co. v. American Soda Co., 11 Ga. App. 473, 477 (75 S. E. 817); Grier v. Enterprise Stone Co., 126 Ga. 17 (1) (54 S. E. 806); Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (3) (73 S. E. 412); Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (118 S. E. 446).

In the motion 'for a new trial there is an assignment of error upon the exclusion of certain evidence, but this did not in any wise appertain to value; and if it had been admitted, the result could not have been different. Various excerpts from the charge are also complained of, as well as other rulings upon the admission of evidence ; but, inasmuch as the verdict was demanded by the evidence, and would still have been demanded if no evidence had been excluded, all errors upon the trial, even if committed as alleged, were harmless and immaterial. No other result could legally have been reached under the record, and the court was right in overruling the motion of the defendant for a new trial.

We will qualify the statement that no other result could legally have been reached, by observing that this will apply only to the defendant. The jury did allow an offset of approximately $100, This, under the evidence, was unauthorized. But the plaintiff is not complaining.

Judgment affirmed.

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


text:
    14290.
    Van Dyke v. Van Dyke.
   Bell, J.

1. “Assignments of error upon the admission of evidence, in order to avail the plaintiff in error here, must show, not only in what respects the evidence admitted was objectionable, but that this objection was urged at the time of the admission of the evidence.” Henslee v. Harper, 148 Ga. 621 (1) (97 S. E. 667). Under this ruling, none of the assignments in the petition for certiorari upon the admission of evidence can be considered.

2. “In the absence of an appropriate request it is not error for the trial judge to omit specific reference to particular points or phases of the evidence confirmatory of the contentions of either of the parties. Before the judge is required to direct the attention of the jury to a fact which a party may deem to be material, though only collaterally involved, a ruling upon its materiality must be invoked.” Bishop v. Georgia National Bank, 13 Ga. App. 38 (4) (78 S. E. 947); Branch v. Bishop, 135 Ga. 110 (2) (68 S. E. 1021). “The failure to give instructions to the jury not demanded by the evidence will, in the absence of a written request to so charge, in no event be cause for a new trial.” Cooper v. Nisbet, 119 Ga. 752 (3) (47 S. E. 173). Under this rule, there was no error in the failure of the court to charge certain principles not requested.

3. “This court cannot consider exceptions to the refusal of the trial judge to comply with written requests to charge, unless it is made to appear that they were tendered to the court before the jury retired to consider the case. Shirley v. State, 5 Ga. App. 611 (63 S. E. 583). In this case it is not disclosed that the written requests to charge were so tendered.” Seaboard Air-Line Railway v. Barrow, 18 Ga. App. 261 (4) (89 S. E. 383); Southern Railway Co. v. Williams, 19 Ga. App. 544 (5) (91 S. E. 1001).

4. An assignment that “the court erred in charging without qualification” a designated excerpt, but not specifying in what respect the instruction should have been qualified, is not sufficient to present any question for decision. Early v. State, 14 Ga. App. 467 (5) (81 S. E. 385); Riddle v. Sheppard, 119 Ga. 930 (3) (47 S. E. 201); Webb v. State, 8 Ga. App. 430 (4) (69 S. E. 601); Tarver v. Deppen, 132 Ga. 798 (4) (65 S. E. 177, 24 L. R. A. (N. S.) 1161). The criticism upon the charge is limited to the complaint that it was not in some way qualified by other or additional instructions, without stating what qualification the complaining party deems to have been necessary. The assignment therefore does not fall within- the rule that a general assignment of error upon a designated charge will be sufficient to raise the question of its abstract correctness, and will require a reversal if the charge was pot » correct statement of the law and it appears from the record to have been prejudicial to the complaining party. Anderson v. Southern Railway Co., 107 Ga. 500 (4) (33 S. E. 644); Knowles v. Stegall, 120 Ga. 451 (47 S. E. 902). Under the assignment as made, this court cannot undertake to determine either the abstract correctness of the excerpt complained of or its applicability to the particular facts of this case.

Decided October 11, 1923.

Certiorari; from Fulton superior court—Judge Humphries. November 8, 1922.

B. Bmyihe Gambrell, Underwood, Pomeroy & Haas, for plaintiff in error. Bryan é Middlebroohs, contra.

(a) Under the principle that all pleadings must be given a construction according to their reasonable intendment, the employment of the phrase “without qualification” manifests that it was not the intention of the pleader merely to assign generally that the excerpt was error, so as to test its abstract correctness,—a thing to have been done more naturally and easily, besides with more clearness, without using the quoted expression.

5. None of the assignments are sufficient to include an attack upon the verdict for defects of form, and the objections to its formulation as contained in the brief are unavailing.

6. There was no error in overruling the certiorari.

Judgment affirmed.

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


text:
    14300.
    BLALOCK et al. v. ADAMS.
    1. There being some evidence to support the verdict, which has the approval of the trial judge, this court, in reviewing the judge’s order refusing the motion for a new trial, is without authority to set aside the verdict upon a consideration of the general grounds only.
    2. Under conilicting evidence the judge did not err in refusing to grant a new trial on account of alleged prejudice and bias of one of the jurors.
    Decided October 11, 1923.
    Complaint; from Fayette superior court—Judge Searcy. January 10, 1923.
    J. E. Adams brought a suit against S. T. and A. 0. Blalock, a firm composed of A. 0. Blalock individually and A. O. Blalock as executor of S. T. Blalock, deceased, for $12,028.24, principal, besides interest, alleging that he borrowed $5,850 from the defendants, who operated a bank, for which he gave his promissory note dated November 1, 1920, secured by 100 bales of lint-cotton, the warehouse receipts for which were pledged with the note. The note was renewed on April 1, 1921; and the plaintiff alleged that on May 19 next thereafter he paid off the note and called for his cotton, but discovered that the defendants had sold the cotton without authority, on November 5, 1920, at 24% cents per pound and for the aggregate sum sued for-. He sought to recover the proceeds of the sale as for money had and received.
    The defendants filed an answer, in which it was set up, that, at the time the cotton was pledged, the plaintiff agreed with the defendants that they could sell or dispose of it at any time and in any way that they might desire, provided they retained samples, so that the plaintiff, at any time he wished the price of the cotton, might settle with the defendants at the price of the cotton as of that date; that it was agreed between the parties that the plaintiff should have the right in this manner to determine the price which he would receive for his cotton at any time during the existence of the indebtedness; that on May 13, 1921, he came to the defendants to get the samples, and took the samples out to ascertain what was then the price, in order for a settlement as of that date; that the .defendants then and there agreed with him to settle at the then prevailing price as soon as the plaintiff ascertained it and returned with the information; that under the agreement between the parties, made at the time the cotton was pledged, that the plaintiff might select any day during the existence of the indebtedness on which a settlement would be required, the rights of the parties became fixed as of May 13, 1921, when the plaintiff demanded 'the settlement and the defendants assented; and that on that date the 'prevailing price of cotton pledged was 13% cents per pound. The defendants alleged also, that, notwithstanding the defendants’ offer to settle according to the agreement and the plaintiff’s election, the plaintiff unreasonably and unlawfully then refused to settle on the stipulated basis,'and demanded .of the defendants the particular 100 bales of cotton which he had left with them, and which he well knew he had given the defendants complete authority to sell, and which he also knew they had sold long before. It was set up further that when the plaintiff demanded his 100 bales of cotton the defendants had in their possession the same quantity of cotton in bales, of the same grade and quality, worth equally as much money, which they tendered to the plaintiff in satisfaction of his demand, but which the plaintiff refused. The plaintiff having paid the note, the defendants pleaded a tender of $5,278.30, as the value of the cotton as of May 13, less storage and insurance.
    The verdict was for the plaintiff, for the principal sum sued for, with interest. The defendants filed a motion for a new trial. The only ground added to the general grounds was based upon alleged prejudice and bias of a juror, who, it was averred by certain affiants, had made statements, prior to the trial, indicating a conviction in his mind that the plaintiff should prevail. The juror, in an affidavit produced by the plaintiff at the hearing, denied making the statements attributed to him. Upon this issue the parties introduced various supporting affidavits. The trial judge overruled the motion, and the defendants excepted.

      B. B. Arnold, W. B. Hollingsworth, for plaintiffs in error.

      Culpepper & Murphy, Beagan & Beagan, contra.
   Bell, J.

(After stating the foregoing facts.)

In the absence of a special contract the defendants, who took the warehouse receipts merely as collateral security for the debt, could only sell after maturity of the debt, at public sale, to the highest bidder, after giving notice to the plaintiff of their intention to sell. Civil Code (1910), § 3530; Whigham v. Fountain, 132 Ga. 277 (1) (2) (63 S. E. 1115). See also Park v. Swann, 20 Ga. App. 39 (3) (92 S. E. 398); Campbell v. Redwine, 22 Ga. App. 455 (96 S. E. 347). The defendants did not undertake to come within the provisions of this principle, but set up a special contract. Of course, if the special contract existed as the defendants contended, the parties were bound by it, and the plaintiff should not have recovered; but the existence or non-existence of the special contract was in issue. A preponderance of the evidence, judging by the number of witnesses, rested apparently with the defendants, but all their material contentions were denied by the testimony of the plaintiff, and the verdict was therefore not without some evidence to support it. It is insistently contended by the plaintiffs in error that the evidence shows, without dispute, that when the cotton was demanded by the plaintiff the defendants offered to deliver to him 100 bales of the same grade, quality, and weight. But the record discloses that this question was also in issue by the testimony. The plaintiff testified that Mr. Blalock told him he would buy for him 100 bales of cotton, but that “there wasn’t anything said about grades.” Moreover, if there had been no dispute between the parties on this point, “the general rule is that the bailee can discharge his liability to the bailor only by returning the identical thing which he has received under the terms of the bailment.” 3 R. C. L. 115; 6 C. J. 1139. There are certain exceptions to the rule, but the exceptions are not here material. We should hold, therefore, that it is really immaterial whether the evidence upon this feature of the ease was in conflict or not. An oiler to deliver other cotton of the same quantity and ^quality would, under the rule stated above, constitute no defense to the plaintiff’s action. The only issuable defense which the defendants asserted was that of the special contract. The settlement of this issue by the jury upon conflicting evidence is conclusive upon this court in a consideration merely of the general grounds of the motion for a new trial. The trial judge, in overruling the motion, approved the verdict, and this court is powerless to interfere. There is nothing better settled than that if the verdict is supported by the testimony of a single witness and has the approval of the judge who tried the case, this court is without constitutional power to set the - verdict aside, though a multitude of witnesses may have testified to a contrary state of facts.

But it is also contended that the evidence of the plaintiff was so self-contradictory and uncertain that in law it should be disregarded. However much the plaintiff’s testimony may have been contradicted by others, we cannot say that it is materially contradictory in itself. It is the peculiar function of the jurors to settle the disputes of the witnesses; and where they have done, so and the judge has overruled the motion of one of the parties for a new trial, in which no error of law is complained of, the Court of Appeals is concluded. “This coirrt has no power to determine that the preponderance of the evidence is in favor of one party to the cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to support the verdict rendered.” Bunn v. Hargraves, 3 Ga. App. 518 (4) (60 S. E. 223). “A verdict cannot be set aside by this court merely because it is against the weight of evidence.” Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132).

It is equally well settled that where a verdict is attacked in a motion for a new trial because of the prejudice of a juror, and an issue is formed by the evidence introduced by the parties upon the motion, the judge is the trior, and, unless there is an abuse of discretion, his finding against the movant and in favor of the impartiality of the juror is to be treated as final. Such is this case. Jefferson v. State, 137 Ga. 382 (1) (73 S. E. 499); Webb v. State, 138 Ga. 138 (1) (74 S. E. 1001); Embry v. State, 138 Ga. 464 (2) (75 S. E. 604).

Judgment affirmed.

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


text:
    14309.
    Davis Construction Co. v. Albany Produce Co.
    Decided October 11, 1923.
    •Levy and claim; from Colquitt superior court—Judge W. E. Thomas. January 26, 1923.

      P. Q. Bryan, for plaintiff in error.

      J. L. Dowling, II. II. Whelchel, Askew & Mather, contra.
   Bell, J.

Where the sole defect in a chattel mortgage fi. fa. is the fact that the mortgage was foreclosed in the wrong county, advantage thereof can be taken by a claimant of the property levied upon only by objecting to the admission of the fi. fa. in evidence, or by a motion to dismiss the levy. Where the claimant does neither, and upon the trial of the claim case a verdict is directed for the plaintiff in fi. fa. upon evidence showing, without dispute, that the property is subject to the lien of the mortgage, the verdict should not be set aside merely because of the defect in the fi. fa. Bosworth v. Clark, 62 Ga. 287 (1); Morton v. Gahona, 70 Ga. 569 (1); Dixon v. Williams, 82 Ga. 105 (1) (9 S. E. 468); Gazan v. Royce, 78 Ga. 512 (1) (3 S. E. 753); Osborne v. Rice, 107 Ga. 281 (2) (33 S. E. 54); Morrison v. McRae, 111 Ga. 847 (36 S. E. 462); Carreker v. Thornton, 1 Ga. App. 508, 511 (57 S. E. 988); Rossiter Co. v. Carrollton Electric Light Co., 5 Ga. App. 393 (1) (63 S. E. 233). The claimant’s motion for a new trial was properly overruled.

Judgment affirmed.

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


text:
    14315.
    Hill v. Wallace.
   Bell, J.

This was an action to .recover the value of personalty alleged to have been sold on account to the defendants H. and S. as partners. H., the only defendant answering, denied the plaintiff’s material allegations, and specifically pleaded the nonexistence of the partnership. Two issues were raised by'the evidence, involving independent defenses: (1) whether the defendants were partners as alleged; (2) whether, even if the partnership existed, the property was not in fact sold to and purchased by S. upon his individual account. A verdict was returned against the defendants as partners, and TI. excepted to the overruling of his motion for a new trial. The court charged the jury as follows: “It is a question of fact for you to determine whether or not Smith and Hill were in partnership at the time of the purchase of the cattle in question. If they were, and either of the partners bought the cattle in question, then both would be liable therefor;” and also: “So, you see, the main question for you to decide in this case, and about the only question, or controlling question, is whether or not, at the time of the alleged purchase, there -was a partnership existing between Hill and Smith. If there was, Hill would be liable equally with Smith. On the other hand, if there was not a partnership existing, but Smith bought the cattle in question on his own account, then Hill would not be liable for the purchase price of the cattle.” In the motion for a new trial these charges and the admission of certain evidence referred to below are alleged to be error. Held:

1. Each of the charges was subject to the assignment that it authorized a recovery against the defendants as partners, merely upon proof of the partnership, irrespective of whether the sale was solely to S. upon his individual account, thus excluding one of the defenses of H. In view of the pleadings and the evidence, the charges wei'e prejudicial and require a new trial. Jewell-Loudermilk Co. v. Palmour Hardware Co., 29 Ga. App. 772 (116 S. E. 557 (4)); Floyd v. Wallace, 31 Ga. 688 (5). This ruling is not in conflict with the decision of the Supreme Court in Hutchinson Shoe Co. v. Elko Mercantile Co., 143 Ga. 170 (84 S. E. 453), in which the only issue upon the trial material to a consideration of the assignment of error upon the charge was whether two of the persons sued as such were members of the partnership.

2. “Following the ruling in Fleming v. Roberts, 114 Ga. 634 (3), it is not error to refuse to rule out evidence tending to support the allegations of a petition, irrespectively of the question whether the petition is good in substance or not, or whether the evidence when admitted establishes ■ a right to recover.” Kelly v. Strouse, 116 Ga. 872 (2) (43 S. E. 280). The decision in the former case is criticised in the latter, but not overruled, and continues to be the law. It appears by the petition in the instant case that the plaintiff and another were owners of the property at the time of the sale. It is alleged, however, that the plaintiff settled with the other owner for his share or interest in the property, and that the latter “has assigned in writing all his interest in the same to peti- ‘ tioner, . . and has now no further interest” in the property or “the proceeds, as will appear by a written assignment, a copy of which is . . attached” to the petition, marked exhibit “A”. When the document copied as the exhibit was offered in evidence ’ the defendant objected to its admission upon the ground that it did not identify' and assign any particular claim of indebtedness or account. Irrespective of whether such objection should ordinarily have been sustained, the evidence tended to support the allegations of the petition, and the objections were properly overruled. If this ruling is in conflict with anything held in Tolar v. Funderburke, 21 Ga. App. 436 (94 S. E. 592), or in Gamble v. Shingler, 22 Ga. App. 608 (4) (96 S. E. 705), the decisions of the Supreme Court cited above are controlling and must be followed. “Testimony is admissible which tends to prove a fact alleged in the petition, irrespective of the question whether, when admitted, it tends to establish a right to recover or not.” Tifton &c. Ry. Co. v. Butler, 4 Ga. App. 191 (4) (60 S. E. 1087).

Decided October 11, 1923.

Complaint; from Banks superior court—Judge W. L. Hodges. January 20, 1923.

S. B. Jolley, A. J. Griffin, H. II. Perry, for plaintiff in error.

J. W. Arnold, W. ~W. Stark, G. P. Martin, contra.

(a) If the plaintiff in error shall desire upon another trial to question the right of the plaintiff to maintain the action, on the ground of an in- ■ sufficient assignment of the account, it should be done by a different mode of procedure, in which event.the plaintiff may wish to amend by substituting in his stead the names of the persons who owned the property at the time of the sale, suing for his use (Civil Code of 1910, § 5689) ; but as to the rights of each of the parties in regard to these matters no question is presented for decision at this time.

Judgment reversed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    14318.
    Butler et al. v. Jaques & Tinsley Co.
   Bell, J.

1. “There are many decisions” of the Supreme Court “to the effect that a brief of the evidence is an indispensable statutory requisite to a valid motion for new trial. In other words, if there is no brief of evidence, no motion for new trial exists.” Whitaker v. State, 138 Ga. 139 (1), 140 (75 S. E. 254); Civil Code (1910), §§ 6080, 6306.

2. The brief required is a brief of the evidence adduced upon the trial, upon which is predicated the verdict complained of, and not merely a brief of the evidence introduced upon a motion of one of the parties for a continuance.

3. The bill of exceptions recites that at the time of the hearing of the motion for new trial “a brief of the evidence was presented and duly approved' by the court,” but the transcript contains a brief only of the evidence introduced upon a motion to continue; and this court having of its own motion (Civil Code of 1910, § 6149 (4); Thompson v. Simmons, 139 Ga. 845 (1), 78 S. E. 419), directed the clerk of the court below to certify and send up a brief of the evidence adduced upon the trial, and having received from that officer a response that the brief of evidence contained in the transcript is the only brief ever filed in his office, the case will be determined upon the record before us. Atlantic Coast Line R. Co. v. Jones, 127 Ga. 447 (3) (56 S. E. 761); Beck v. Thompson, 112 Ga. 683 (4) (37 S. E. 983); Neal Loan & Banking Co. v. Chastain, 124 Ga. 940, 942 (53 S. E. 549).

4. “Where one dissatisfied with a verdict files during the term a motion for a new trial, and, instead of pursuing the strict law in such cases provided, obtains an order allowing him until a future time in vacation to prepare and file a brief of the evidence in the case and to amend the motion, he must abide by the terms of the order thus obtained; and consequently, if no brief of evidence is prepared and presented, the motion for a new trial is not made either in the manner required by law or in that pointed out by the order, and therefore is subject to be dismissed on motion; and this is true although the motion for a new trial may have been amended by the addition of a new ground the determination of which would not require a consideration of the evidence.” Baker v. Johnson, 99 Ga. 374 (27 S. E. 706).

Decided October 11, 1923.

Complaint; from Lamar superior court—Judge Searcy. November 4, 1922.

A. M. Zellner, for plaintiffs in error.

Jones, Parle & Johnston, Dobbs & Barrett, contra.

5. “It results as a logical conclusion from the decision . . in Baker v. Johnson & Harris, 99 Ga. 374, that where, after the trial of a case the losing party filed a paper purporting to be a motion for a new trial, alleging therein that the verdict was contrary to law and to the evidence, and that the court erred in specified particulars, but no brief of evidence was filed, such a paper could not be treated as a valid motion for a new trial, or made the basis of a judgment setting the verdict aside. Accordingly, there was no error in overruling such a ‘motion’ [merely so-called], or in refusing to grant a new trial thereon.” Holloman v. Small, 111 Ga. 812 (1) (35 S. E. 665). Such was this case. See also Mize v. Americus Mfg. Co., 106 Ga. 140 (32 S. E. 22); Douglas County v. Sayer, 119 Ga. 551 (46 S. E. 654); Price v. Price, 122 Ga. 321 (50 S. E. 91); Whitaker v. State, 138 Ga. 139 (1) (75 S. E. 254), and cases therein cited.

Judgment affirmed.

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


text:
    14386.
    WHELCHEL v. ROARK.
    1. Where an action of trover is based upon a claim of absolute title by the plaintiff and is supported by evidence, and where the answer admits the •defendant’s refusal to deliver to the plaintiff the property sued for, disputes the plaintiff’s title, and asserts absolute title in the defendant, it is not necessary that the plaintiff shall show a demand and refusal to deliver, or possession of the property in the defendant at the time the suit was filed, or otherwise establish a conversion by evidence. In such case the answer concedes a conversion if the defendant shall not sustain his title. The sole issue is one of title, excepting the question of value where a money verdict is elected.
    2. The court did not err in refusing the written request to charge, nor in giving in charge the excerpt complained of.

      3. The verdict for the plaintiff was authorized by the evidence. The court did not err in overruling the defendant’s motion for a new trial.
    Decided October 11, 1923.

      Trover; from Hall superior court—Judge J. B. Jones. January 27, 1923.

      W. V. Lance, P. R. Mathews, Johnson & Adderholdt, for plaintiff in error. Charters, Wheeler & Lilly, contra.
   Bell, J.

C. B. Boark brought an action in trover against Hugh Whelchel, and recovered, electing a money verdict. The defendant excepted to the overruling of his motion for a new trial.

The evidence of the plaintiff tended to show that after some association between the parties in Atlanta he loaned to the defendant his automobile,—the property in dispute,—and that on failure of the defendant to return it within the terms of the bailment he instituted possessory-warrant proceedings in Hall county for its recovery, where the defendant had gone and was still in the possession of the property. It appears that oar the trial of the possessory-warrant ease a judgment was awarded in favor of the defendaait. The plaintiff gave notice of certiorari, and the property was held by the officer. Certiorari, however, was not pursued, but the plaintiff instead brought his action in trover before the property had been restored to the defeardaart. It appears that the defendant asserted in that proceediaig, and even before then, that he had procured the possession of the property from the plaintiff by purchase, thus claianing it as his own. He so testified on the trial of the present action. His answer to the present suit admitted the plaintiff’s averment of his refusal to deliver, denied the plaintiff’s title, and asserted ownership iai himself by virtue of the alleged purchase. There was a pointed conflict iaa the evidence of the parties as to whether the transaction between them was a loan or a sale, and on this issue a finding would have been warranted for either party. The further material facts will be stated iaa. the opinion.

In the amended motion for a new trial the defendant assigns error upon the action of the court in excluding froan evideaa.ce the possessory-warrant proceedings, with the judganent of the magistrate thereoao., the saane having beeaa offered, as alleged in the motion, “for the purpose of explaining possession of the automobile sued for, and in support of the allegatioais of defendant’s answer as to said possession, counsel for defendaaat stating: fIt shows the fact that we held possession of the car, and the possessory-warrant proceeding is set np in the answer and explains onr position at the time of the bail-trover proceedings and at the time it was filed.’ ” ■ Error is assigned also, in separate grounds of the motion, upon the failure of the court, without request, to instruct the jury (a) that if at the time of the institution of the trover action the automobile in question was still in the custody of the sheriff of 'Hall county by virtue of the judgment in the possessory-warrant proceedings, and if no demand to deliver had been made by the plaintiff and no refusal to deliver after that date and before the institution of the trover .case, the plaintiff could not recover, it being contended by the plaintiff in error that the judgment in the possessory-warrant proceedings “adjudicated the fact that the possession of the automobile up to that date was legal and not wrongfully withheld from the plaintiff”; (6) that even should the plaintiff prove a legal title to the property to be in himself, he yet could not recover if it should appear from the evidence either that at the time the trover action was instituted the defendant was rightfully entitled to the possession of the property sued for,' or that at the time the action was brought the plaintiff was not entitled to thé possession of the property; (c) that if at the time the trover action was instituted the defendant’s possession of the automobile was had under a judgment awarding it to him, based on possessory-warrant proceedings sworn out by the plaintiff, such possession would be a legal possession, and would not alone constitute a conversion of the property sued for, without a subsequent demand and refusal or other act inconsistent with the plaintiff’s title, and that before the plaintiff would be entitled to recover it would be necessary, under such eircumstancés, to establish a conversion in some other way than by such possession.

The assignments of error referred to above, embracing grounds 4, 5, 6, and 7 of the motion for a new trial, will be treated together. At the outset it must be borne in mind that the defendant by his answer solemnly admits in judicio that he refuses to deliver the property, as the plaintiff had alleged, and that he denies the plaintiff’s title, asserting complete and absolute ownership in himself. The gist of an action of trover is the conversion of the plaintiff’s property by the defendant. It is not always necessary to prove possession in the defendant at the time of the bringing of the action, in order to establish a conversion. Miller v. Wilson, 98 Ga. 567 (1) (25 S. E. 578, 58 Am. St. R. 319); Wallace v. Mallary, 117 Ga. 161 (43 S. E. 424); Chambless v. Livingston, 123 Ga. 257 (2) (51 S. E. 314); Thompson v. Carter, 6 Ga. App. 604 (3), 606 (65 S. E. 599). Section 4483 of the Civil Code merely provides “that it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought.” It might be stated conversely that it is not necessary to prove possession in the defendant at the filing of the suit, if that fact is not needed as a circumstance in establishing the conversion. “A conversion may consist in a tortious taking of a chattel, or in a wrongful assumption of property in it [italics ours], or in making an illegal use of it; if there be a deprivation of property to the plaintiff, it will constitute a conversion, though there be no acquisition of property by the defendant. 2 Leigh’s Nisi Prius, 1477. . . The action of trover being founded on a conjunct right of property and possession, any act of the defendant which negatives or is inconsistent with such right amounts in law to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary that it should be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff’s right? If he does, that is in law a conversion, be it for his own or another person’s use.” Liptrot v. Holmes, 1 Ga. 381 (3), 391. “It is but a reiteration to say that in order to constitute a conversion it is not necessary that one charged with the tort should have had the actual manual possession of the property, either at the time of the conversion or at the time the action is brought, it being sufficient if he has assumed such control over the property by a possession, either actual or constructive, as deprives the owner of his dominion over or enjoyment of the property.” Bowers on the Law of Conversion, § 298.

Where in the answer to a trover action the defendant sets up title adverse to the plaintiff and admits a refusal to deliver, it is not necessary that the plaintiff shall show by evidence a demand for the property prior to the suit. Collins v. Hilton, 27 Ga. App. 439 (2) (108 S. E. 824). A refusal presupposes a demand. It does not constitute the conversion, but is evidence thereof. Sappington v. Rimes, 21 Ga. App. 810 (1) (95 S. E. 316). Where a defendant in a trover action “alleged in her answer that she was the owner and admitted that she refused to deliver the property to the plaintiff, it was not incumbent upon them [the plaintiffs] to prove a demand and a. refusal of the defendant to deliver.” Moore v. Ramsey, 144 Ga. 118 (1) (86 S. E. 219). The effect of this decision is to hold that in such a case it is not necessary that the plaintiff should make proof of the conversion. While an examination of the original record discloses that in this case the defendant was in possession of the property at the time the suit was filed, this fact does not seem to have been taken into consideration in the Supreme Court’s decision. The defendant’s admission of his refusal to deliver, and the assertion of title in himself, concedes a conversion, if the plaintiff shall sustain his title. The conversion is established by the pleadings, and proof of it is not necessary. The sole question is one of title, excepting the question of the value where the plaintiff elects a money verdict.

Facts positively alleged in a pleading are constructive admissions in favor of the opposite party of the facts so alleged, and therefore need not be proved by other evidence. Their author, by introducing them and making them a part of the record, precludes himself from disputing their truth. They estop him so long as they stand. Civil Code (1910), § 5775; Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138 (1) (33 S. E. 945); New Zealand Insurance Co. v. Brewer, 29 Ga. App. 773 (6) (116 S. E. 922).

The defendant contends that he came lawfully into possession of the property or at least that this was adjudicated by the magistrate in the possessory-warrant proceedings. A demand and refusal would ordinarily be necessary under such circumstances. It probably would have been necessary in the instant case, in view of the judgment of the magistrate, but for the nature of the contentions which are made by the defendant in his answer. In Wallis v. Osteen, 38 Ga. 250, 251, the Supreme Court, in referring to the effect upon a trover action of a judgment in favor of the defendant in a prior possessory-warrant proceeding, said: “The question made by the record in this case is whether the plaintiff in the court below could maintain his action of trover for the watch, against the defendants, without shewing title in himself thereto? The defendants had the possession of the watch, under the judgfnent of a judge or justice, as provided by the 3959th section of the Code; that possession was, prima facie, lawful, as against the plaintiff, and to allow him to recover the watch from the defendants, on proof of his former possession alone,, was but reopening the question of possession of the watch, which had been adjudicated under the possessory-warrant proceeding. The judgment in that proceeding determined the right of possession to the watch, as between the parties, to belong to the defendants. In order to deprive them of that lawful possession, thus acquired, the' plaintiff was bound to show something more than his former possession of the watch; he was bound to show a right to the present possession of the watch as against the defendants. If he had shewn, by the evidence, a general property in the watch, or title thereto in himself, then- he would have shewn his right to the possession of it by construction of law, as against the defendants, who relied on their possession alone. See 2 Greenleaf’s Evidence, 528, § 640. We think the court below erred in holding that the plaintiff was entitled to recover the watch from the defendant, under the evidence of this ease.”

If the plaintiff in the case at bar had relied, not upon the general title to the automobile, but merely upon a right of possession, he would probably have been precluded by the adjudication in the possessory-warrant proceedings, but having shown a general property in the automobile or title thereto in himself, he has established his right to the possession of it by “construction of law.”

On the question of possession: the sheriff, after the judgment in the possessory-warrant case, held the property for the defendant, the plaintiff having abandoned his intention to certiorari (Sumner v. Bell, 118 Ga. 240, 44 S. E. 973; Barton v. Thompson, 13 Ga. App. 786, 787, 80 S. E. 30), and it is shown in the answer, as well as in the evidence, that the defendant obtained the possession from the officer after the beginning of the pres'ent ,'suit, by executing the usual replevy bond. The case does not.-calhfor an application of the principle that trover will not lie for the recovery of property in the custody of the law (Chipstead v. Porter, 63 Ga. 220; Geer v. Thompson, 4 Ga. App. 756 (2), 62 S. E. 500; Barton v. Thompson, supra), the action not being against the sheriff, and that custody having been ordered released. In Peoples Bank v. Pierce, 143 Ga. 563 (1) (85 S. E. 860), the custody of the-law had continued. and it did not appear, as here, that the defendant was disputing the plaintiff’s title.

■ In view of the defendant’s answer, which in effect conceded a conversion, unless he sustained his own claim of title, there was nothing in the judgment of the magistrate in the possessory-warrant proceedings, or in the fact that the property seized thereunder had not been restored to him, which had any bearing on the case.

It follows from what is said above that there was no merit in^ any of the grounds of the motion for a new trial thus far referred to.

Exception is taken to the refusal of the court to charge as follows: “Without any intimation as to the facts in this case, but simply as a rule of law, I charge yon, that if the plaintiff C. R. Roark and the defendant Hugh Whelcliel entered into a consent or agreement whereby one of them was to use the automobile in question for the purpose of violating the prohibition law, and the defendant Hugh Whelcliel obtained the automobile for this purpose, and in pursuance of’ such an agreement between him and Roark, then the law would not aid either of them, and would leave both parties where it found them; and if this was the case, and the plaintiff C. R. Roark parted with possession of the car for such an illegal purpose, he could not recover it in this case, and your verdict would be for the defendant.” We do not find it necessary to determine whether such a charge would have been authorized by the pleadings, for clearly no issue such as the charge would have submitted was involved under the evidence. J. G. Tatum a witness for the plaintiff testified on cross-examination: “I heard something down there about a contract between Mr. Whelcliel and Mr. Roark, where Roark was to furnish the car and Mr. Whelcliel was to take the car, go after- the liquor, and they were to split the profits, but wouldn’t swear just what it was., No,. I didn’t tell Mr. Mathews that this-conversation occurred;, we talked, about-it, but I can’t recall all that was said. Best I remember' about it, Clarence [the plaintiff] didn’t want no liquor ‘hauled with his car. I wouldn’t swear, that it was finally agreed for. Roark to furnish the car and for Whelchel to go after the liquor, or wasn’t. I didn’t tell Mr. Mathews that in a conversation some time ago. No, I cannot remember now whether or not a conversation of that kind did occur; I was- not there all the time. If it .occurred in my presence I don’t remember. They did talk something about it in my presence, but I don’t remember no agreement they made. I heard them discussing the proposition a number of times. From the conversation I heard in Atlanta, when I saw Mr. Whelchel in Dawson county, I didn’t know but what they made a trade of that kind.” This evidence does not do more than show that the plaintiff and the defendant probably discussed the question of entering the illegal enterprise. The only other evidence upon the subject was that of Mr. Wheeler: “.I think Mr. Eoark requested Mr. Lance and Mr. Johnson not to interrogate Mr. Tatum in regard to any liquor transaction,—that Tatum nor Eoark neither one wanted it brought into it.” This evidence was wholly insufficient to establish that the defendant had procured the car through an illegal and immoral contract, and the request to charge was properly refused. In this view it is also unnecessary to determine whether the charge would have been appropriate if supported by evidence. On this question see Harris v. Barfield Music House, 18 Ga. App. 444 (1) (89 S. E. 592); Garland v. Isbell, 139 Ga. 34 (1) (76 S. E. 591); Abbott Furniture Co. v. Mobley, 141 Ga. 456 (81 S. E. 196); Jones v. Owens, 149 Ga. 72 (2) (99 S. E. 121).

The only other special assignment in the motion for a new trial complains that an excerpt from the charge was argumentative and contained an expression of opinion; but the exception is clearly without merit.

The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    14402.
    McPherson v. Capuano & Co. et al.

   Bell, J.

1. “Persons who engage in the business of furnishing food for consumption by man are bound to exercise care and prudence respecting the fitness of the articles furnished, and they may be held liable in damages, if, by reason of any negligence on their part, corrupt or unwholesome provisions are sold and persons are made ill thereby. . . It is not necessary to aver that the defendant knew of the injurious quality. It is sufficient if it appears that he ought to have known of it, and was negligent in furnishing unwholesome food, by reason whereof the plaintiff was injured.” 11 R. C. L. 1118, § 25; Civil Code (1910), § 4460. This is not to hold that a person engaged in the business of serving foods for human consumption is an insurer of the wholesomeness of the food, for he is liable “in case of injury to a patron from the consumption of 'deleterious food so furnished . . only where there was a failure to exercise reasonable care in respect to its quality and preparation.” Rowe v. Louisville & Nashville R. Co., 29 Ga. App. 151 (113 S. E. 823). Irrespective of whether or not in a case like the present, where the food complained of was not served in the restaurant but purchased by the plaintiff and carried away to be eaten, the case might have been laid upon the theory of a breach of implied warranty, the plaintiff did not so lay it. He se'eks a recovery upon the theory of negligence, and the principle governing liability, under the petition, is the same as declared in the ease just cited.

2. While proof by one claiming to have been injured by eating food furnished to him at a public restaurant or “delicatessen,” merely that he ate the food and in consequence became sick, would not, without more, establish the averment that the food was unwholesome (compare Wiedman v. Keller, 58 Ill. App. 382; Sheffer v. Willoughby, 163 Ill. 518, 34 L. R. A. 464; 11 R. C. L. 1121, § 26), yet where, as in the instant case, the testimony of the plaintiff tended to show that after a long prior condition of good health he partook of an ordinary meal between 2 and 3 o’clock in a certain afternoon, and received into his stomach no other food until between 10 and 11 o’clock in the evening thereafter, when, feeling in a normal condition, he purchased and consumed the barbecued sandwich alleged to have been unwholesome, that within one or two hours thereafter he became suddenly and violently ill, and that he had theretofore frequently eaten such sandwiches under similar circumstances without any discomfort or harmful results, and where the testimony of one physician, in conjunction with the testimony of the plaintiff, would have authorized the inference that the sudden illness was caused by the eating of the sandwich, which, as the jury could have found from the testimony of another physician, would not have produced the illness if the sandwich had been wholesome, such evidence was sufficient to make a prima facie ease in favor of the plaintiff against the defendant restaurant keeper-.

3. Where in such case it is shown that the plaintiff suffered injury from eating unwholesome food prepared and furnished to • him by the defendant restaurant keeper, and the evidence by which the food is shown to have been unwholesome does not negative the defendant’s negligence, it is error to grant a nonsuit on the ground that negligence of the defendant is not shown. Where the plaintiff establishes the unwholesome quality of the food, with “injury from its consumption, these facts in themselves would sufficiently speak of the defendant’s negligence to make a prima facie case; and until the defendant is exonerated, the jury would be authorized to apply the maxim res ipsa loquitur, and to find such issue in favor of the plaintiff. Chenall v. Palmer Brick Co., 117 Ga. 106 (3) (43 S. E. 443); Sinkovitz v. Peters Land Co., 5 Ga. App. 788 (2) (64 S. E. 493); Stamps v. Newton County, 8 Ga. App. 229 (4) (68 S. E. 947); Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S. E. 1087); Davis v. Savannah Lumber Co., 11 Ga. App. 610 (5) (75 S. E. 986); Commerce Coca-Cola Bottling Co. v. Farabee, 17 Ga. App. 487 (2) (87 S. E. 720); Bradfield v. Atlanta Coca-Cola Bottling Co., 24 Ga. App. 657 (101 S. E. 776); Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (1) (102 S. E. 542); Civil Code (1910), § 5743.

Decided October 11, 1923.

Rehearing denied January 21, 1924.

Action for damages; from Fulton superior court—Judge E. D. Thomas. January 4, 1923.

Application for certiorari was denied by the Supreme Court.

Lawlon Nalley, II. W. McLarty, for plaintiff.

Roy Lewis, for defendants.

4. Under the rulings made above, the plaintiff’s evidence was sufficient to carry the case to the jury, and the judgment of nonsuit was error.

Judgment reversed.

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