text:
    19284.
    MANDEVILLE MILLS et al. v. MILAM.
    Decided May 20, 1929.

      Bryan & Middlebroolcs, B. D. Jackson, 8. P. Boykin, Boykin & Boykin, for plaintiffs in error.

      Smith & Millican, Smith & Taylor, Willis Smith, contra.
   Bell, J.

Mrs. Jennie Lou Milam, as beneficiary, brought suit against 2Etna Life Insurance Company and Mandeville Mills, a corporation, upon a policy of insurance issued upon the life of her husband on what is known as the “group-policy plan,” under which separate certificates were issued to the various persons whose lives were insured by the policy. The certificate to the plaintiff’s husband was issued on August 1, 1927, while he was in the' service of the Mandeville Mills, and was in the sum of $1,000. The case was tried in the court below upon an agreed statement of facts, and resulted in a judgment in favor of the plaintiff against Mandeville Mills for $982.70, this being the full amount sued for, less certain deductions assented to by the plaintiff. The defendants then, by direct bill of exceptions, brought the case to this court, and the sole question for determination is whether, the defendant employer, through whom the insurance was payable, had the right to deduct the amount of a certain note due to it by the insured, before settling with the beneficiary. The master contract or policy was made between the employer and the insurance company, and the certificate in suit, issued and signed by the employer upon the basis thereof, recited that “under and subject to the terms and conditions of said policy, and the application therefor, the life of H. J. Milam, an employee, is insured for the sum of one thousand dollars,” and named the plaintiff, his wife, as the beneficiary. The certificate further provided that the insurance might be terminated whenever the employee for any reason ceased to be “in the employ of said employer.” The main policy was issued upon an application signed by the employer, which stated that the proceeds should be payable to the employer, but that “said employer, after reimbursing itself for any cash advances made by said employer to and for the insured as shown by its books or records, of for any promissory notes of the insured in favor of the employer, or for any bills paid by said employer either before or after the death of the insured for medical attention to the insured and funeral and burial expenses, shall pay the balance, if any, to the beneficiary or beneficiaries especially designated by the insured, approved by the employer, and filed at the home office of the company. . . Payment by the company to the employer shall be in full satisfaction of every obligation of said company.” The policy was intended only for employees, and was payable “as requested in the application,” which was expressly made a part of the contract. The premiums were paid by the employer, but deducted from the wages of the employees.

The insurance company pleaded that it had paid the face amount of the policy to the employer, in satisfaction of its liability. The defendant employer set up that at the time of the insured's death he was indebted to it in the sum of $365.31 principal and $274.66 interest, upon a promissory note executed by him in 1920, and also for certain other items, amounting to $17.30 (about which there is no controversy), and that this defendant was entitled to retain the aggregate of such indebtedness, to wit $657.27, out of the proceeds of the policy, after deducting which there would remain a balance of $343.40 due to the plaintiff beneficiary, which balance the defendant tendered into court with its answer. One of the facts admitted in the agreed statement was that the note referred to in the answer of Mandeville Mills, the employer, “was for fertilizer purchased from the Mandeville Mills prior to the time he was employed by the said Mandeville Mills, and before the issuance of the policy.” It was contended on the part of the plaintiff that this note was not “deductible,” and this was the only issue upon the trial.

We think the court properly rendered judgment in favor of the plaintiff for the entire amount of the policy, less the $17.30 mentioned above, about which there was no controversy. The question presented is not without difficult]', and the fair and able counsel for the respective parties have very frankly declared their inability to cite any case bearing directly upon the point, although counsel’ for the plaintiff in error offer certain cases as supporting, by analogy at least, their contention that the defendant employer was entitled to retain the amount of the note before settling with the beneficiary. Among these cases are such as Exchange Bank of Macon v. Loh, 104 Ga. 446 (31 S. E. 459, 44 L. R. A. 372), in which it .was held that a creditor may insure the life of his debtor for the purpose of securing the payment of the indebtedness, and Washington Exchange Bank v. Smith, 149 Ga. 650 (101 S. E. 769), in which it was ruled, in effect, that the provision in a note that any excess of security upon such note shall be applicable to any other note or claim held by the payee against the maker, gave to the payee .the right to apply to another note, previously executed between the parties, any excess of the security pledged or conveyed to secure the note containing such stipulation.

In our opinion none of such cases go sufficiently to the question now under consideration to be satisfying, even if they are to some extent persuasive. It seems that aid to a proper determination of the question in hand can be had only from the settled rules of construction which are applicable generally in the interpretation of contracts. The cardinal rule of construction, to which all others are subordinate, is to ascertain the intention of the parties, and in order to do this the language of the agreement should be considered in the light of the attendant and surrounding circumstances. The court should place itself as nearly as possible in the situation of the parties, in seeking the true meaning and the correct application of the language of the contract. Civil Code (1910), §§ 4866, 4868(1); Bridges v. Home Guano Co., 33 Ga. App. 305, 309 (185 S. E. 878); 13 C. J. 548).

If a policy or contract of insurance is fairly susceptible of more than one construction, the interpretation most favorable to the insured will be given effect. Columbia Casualty Co. v. Rogers, 157 Ga. 158 (181 S. E. 884); Penn Mutual Life Ins. Co. v. Milton, 160 Ga. 168 (187 S. E. 140, 40 A. L. R. 1388). As to a group policy this rule should enure to the benefit of the several individuals for whose protection the policy was issued, and not to the advantage of the nominal party, — as in this case the employer, to whom the policy is made payable, since the several holders of the certificates issued upon the basis of the main contract are the parties chiefly interested. While, as stated above, the principal contract was between the company and Mandeville Mills, the protection was intended mainly for the employees, and any uncertainties or ambiguities in the contract having reference to the respective rights of the employer and employee should be construed favorably to the latter. One of the reasons for this view is that the contract was apparently the result of negotiations between the insurance company and the employer, without consultation with the employees as to the language to be used; and in such circumstances, if words of uncertain meaning have been adopted, it is only fair that even as between the employer and the employee the doubt should be resolved against the former as one of the authors of the instrument. Gaudier Investment Co. v. Cox, 4 Ga. App. 763 (62 S. E. 479); Ætna Insurance Co. v. Lipsitz, 330 Ga. 170 (2) (60 S. E. 531, 14 Ann. Cas. 1070); Moorefield v. Fidelity Mutual Life Ins. Co., 135 Ga. 186 (2) (69 S. E. 119) ; 13 C. J. 542.

Another important factor to be considered is the object and purpose of the agreement. We think it evident that a group policy of insurance obtained by an employer for employees is intended for the protection of the employees as a class, especially where the policy provides that only the employees shall be eligible to obtain certificates thereunder, and are persuaded that it was not the purpose of the instant policy to provide a means whereby the employer might collect from the employee an indebtedness which existed previously to the assumption of such relation between them. Such a construction of the policy would tend to make of it an instrument whereby the employer would be enabled to collect preexisting insolvent debts, whereas the employee was doubtless moved to enter the compact out of a desire to make provision for his family or dependents, in case of death, and this fact must have been known to the employer.

The construction contended for by the employer in this case would seem to be subversive of the controlling purpose which the parties had in mind at the time the insurance was issued. If the aróte which the defendaaat held against Milam had amounted to as much as the face of the certificate, the insurance would have been entirely for the protectioaa of the employer, as betweeaa that party and the beneficiary, and in that case the plaintiff could have been classed as a beneficiary in name only; whereas the employee undoubtedly was intending to procure insurance for the plaintiff’s beaaefit, irrespective of aaay iaadebtedness which existed against him and in favor of the defendant, at the time of his employment.

The language preceding as well as that which immediately follows the provision relied oar plainly has reference to indebtedness connected with or incident to the employment, and the "particular descriptions, as “cash advances made by said employer . . as shown by its books of records,” aaid as “any bills paid by said employer . . for anedical attention to the insured and funeral and burial expenses,” should have some weight in ascertaining the meaning of tbe more general terms which are used in the same connection. Fleming v. City of Rome, 130 Ga. 383, 387 (61 S. E. 5).

The note in question was not a note in favor of the maker’s “employer” at the time it was executed, but the payee became his employer afterwards. We think it was not the intention of the policy to protect a note which not only was executed prior to the employment but was based upon a consideration entirely foreign thereto.

In this view it is unnecessary to decide whether under the provisions of the particular policy the defendant could have deducted the amount of the note if the policy had been payable to the insured’s estate and not to another person as beneficiary. See, in this connection, Jefferson Standard Life Ins. Co. v. Rankin, 39 Ga. App. 373 (147 S. E. 157).

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    19388.
    Teasley v. Nelson.
   Bell, J.

1. Detention by a proper officer under a valid warrant can not amount to false imprisonment. Page v. Citizens Banking Co., 111 Ga. 73 (7) (36 S. E. 418, (51 L. R. A. 463, 78 Am. St. R. 144). Even where the warrant is defective or void for want of jurisdiction, neither the party procuring it nor the officer executing it, if acting in good faith, is guilty of false imprisonment; the bona fides to be determined by the circumstances of each case. Civil Code (1910), § 4448.

2. Thus, where a convict, claiming that he had completed the servitude required by his sentence, applied to the judge of the superior court of the proper county for the writ of habeas corpus against the warden having him in custody, and on the hearing of the petition the writ was dismissed and the petitioner remanded to custody, the warden was not guilty of false imprisonment in holding the prisoner pending a review of the case by the Supreme Court, although the judgment of the trial court in such proceeding was erroneous, and was reversed by the Supreme Court. See Teasley v. Nelson, 164 Ga. 242 (138 S. E. 72). Such judgment was in the nature of a warrant, and was issued by a judicial officer having jurisdiction to issue it, and even if it could be said to have been defective so as to make the good faith of the warden an issue, there was in the present case no evidence that the warden acted in bad faith, and none tending in that direction was offered.

3. The plaintiff’s evidence failed to make a case of liability, and since the result would not have been different had the court admitted all of the evidence tendered, any possible error in the rejection of evidence was immaterial. The court did not err in granting a nonsuit. McDonald v. Sowell, 129 Ga. 242, 244 (58 S. E. 860, 12 Ann. Cas. 701); Butler v. Tattnall Bank, 140 Ga. 579 (79 S. E. 456), and cit.

Decided May 20, 1929.

William, E. & Gordon Mann, for plaintiff.

J. A. McFarland, B. G. Pittman, W. M. Sapp, for defendant.

Judgment affirmed.

Jenkins, P. J., amd Stephens, J., concur.


text:
    19421.
    Evans v. North Carolina Mutual Lire Insurance Co.
    Decided May 20, 1929.

      W. H. Burt, for plaintiff. S. B. Lippitt, for defendant.
   Bell, J.

Under the rulings made by this court upon a former hearing of this case (38 Ga. App. 178, 143 S. E. 449), the evidence on the second trial, as on the first, conclusively and as a matter of law established the plea of the insurer based upon a stipulation against liability for death resulting from any unlawful act of the insured. Despite changes in the personnel of the witnesses and some new evidence, including certain impeaching testimony, there was one witness who upon both trials testified positively to facts sustaining the defense, and who was in no way impeached or discredited, such contradictions as were made of his testimony being immaterial and affording no ground for disregard of his testimony by the jury. The evidence of this witness alone demanded the verdict for the defendant, and the court did not err in giving direction accordingly.

Judgment affirmed.

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


author: Jenkins, P. J. Stephens, J.,

text:
    19423.
    KLEINBERG v. LYONS.
   Jenkins, P. J.

1. Under the rules of the common law, the duty of making repairs upon rented premises devolved upon the tenant, but by the provisions of section 3699 of the Civil Code (1910), in the absence of an agreement to the contrary, this obligation is placed upon the landlord, who is liable to the tenant for any injury incurred by reason of his failure to perform such duty. But in a case where the landlord has fully parted with possession and right to the possession of the premises, there is no duty of inspection on his part for the purpose of discovering defects arising subsequent to the time of the lease, and he is, therefore, not liable to his tenant for injuries resulting from defects thus arising, unless he has had actual knowledge of them, or has been notified of such defects and has failed to make repairs within a reasonable time and the tenant could not have avoided the injuries resulting therefrom by the exercise of ordinary care on his own part. Stack v. Harris, 111 Ga. 149 (36 S. E. 615) ; McGee v. Hardcare, 27 Ga. App. 106 (2) (107 S. E. 563).

2. Where, however, a qualified possession and right to possession is retained in the landlord for a specified purpose, such, for instance, as will enable him to comply with his contractual obligation to provide heat for the rented tenement, the duty of inspecting the heating plant and appliances, for the purpose of discovering and remedying any defects arising from their proper and ordinary use, is incumbent upon the landlord, and consequently, independently of any notice, he would be liable to the tenant for any injury occasioned by the defective condition of such appliances arising from their proper and ordinary use, or by reason of the negligent performance of such duty on the part of the landlord, either by himself or by an agent. But an inspection by the landlord is not required for the purpose of anticipating and discovering defects arising from an abnormal and improper use or misuse of such equipment. In such a case it would be incumbent upon the tenant to repair any defect thus occasioned, and this duty could not be transferred to the landlord by notifying him of the condition which the tenant had thus brought about.

3. It is the duty of the tenant “to abstain from using any part of the premises the use of which would be attended with danger,” and such continued use of that portion of the knowingly defective premises which ordinary prudence would suggest would be attended with danger will amount to contributory negligence on the part of the tenant, such as would preclude a recovery for the injury which must have been reasonably anticipated. Stack v. Harris, supra; Donehoe v. Crane, 141 Ga. 224, 225 ( 80 S. E. 712).

4. It is a general rule that the members of the tenant’s family, as well as visitors, customers, servants and licensees in general, stand in the same position, so far as injuries caused by a defective condition of the rented premises are concerned, as the tenant himself does, and if the tenant has a prima facie cause of action against the landlord on account of the landlord’s failure to perform his duty to repair a defective condition of the rented premises, such members of the family, visitors, or licensees, standing in the tenant’s shoes, would have the same right to complain. But since the right of such third persons is dependent upon a breach by the landlord of his duty to the tenant, they would not ordinarily have any greater prima facie right than the tenant himself. 16 R. C. L. 1067, § 588. As a general rule, the landlord is not liable to third persons for any injuries they sustain, occasioned by the wrongful act of Ms tenant, since the tenant is not the agent of the landlord, and he is not responsible as such for the tenant’s misconduct. Edgar v. Walker, 106 Ga. 454 (32 S. E. 582) ; Gardner v. Rhodes, 114 Ga. 929 (42 S. E. 63, 57 L. R. A. 749). It might well be, however, that although the obligation to invitees is the same, and not greater than, the obligation to tenants, this does not mean that any defense available against a tenant would necessarily also be available against a stranger lawfully visiting the tenant. 36 C. J. 224, § 913. In other words, conduct on the part of the tenant constituting contributory negligence such as might, under the preceding part of this decision, bar a recovery on his part, would not necessarily be taken as constituting the proximate cause of an injury such as would bar a visitor who did not himself participate in the negligent act of the tenant.

5. Where, however, as in the instant case, the act of the tenant does not consist merely in contributory negligence in continuing to occupy a portion of the rented premises after knowledge of its dangerous condition, but where the steam explosion causing the injury was occasioned by the act of the tenant in turning on the heat after admitted knowledge that the air valve had become loose so as to render the radiator dangerous, and after the steam had been cut off for that reason, her act in so doing must necessarily be accounted, not as mere contributory negligence, such as would bar a recovery on her part, but as constituting the proximate cause of the injury, such as would prevent recovery on the part of any person claiming damages on account of the failure of the landlord to perform his duties to the tenant. The most generally accepted theory of causation is that of natural and probable consequences; and in order to hold the defendant liable, the evidence must show either that the act of the defendant complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer. Gillespie v. Andrews, 27 Ga. App. 509, 510 (108 S. E. 906). Assuming, therefore, negligence on the part of the defendant, it can not be reasonably supposed that the defendant could have foreseen that one knowing the condition of the valve, and knowing that its operation would be attended with danger, would, after the radiator had been shut down on account of such danger, and the defect and danger reported to the landlord by herself, proceed to turn the steam back into the radiator while in such dangerous and defective. condition. To suggest that the assumed original negligence of the defendant was such as could have caused her to anticipate that some one in the role of an intervening agency, who was unaware of the defective and dangerous condition of the radiator, might naturally proceed to turn on the steam, does not meet, the facts and circumstances in the ease as they actually exist, since the injury was not thus brought about; but the intervening agency actually causing the injury was not such as the defendant could reasonably have anticipated or foreseen. This being true, the intervening agency must be taken to constitute the proximate cause of the plaintiff’s injury. See Andrews v. Kinsel, 114 Ga. 390 (2), 392 (40 S. E. 300, 88 Am. St. R. 25).

6. In the instant case it was a question of fact whether the defect in the air-valve had been brought about by the ordinary and proper use of the heating appliance, or whether it had been brought about by the misuse and manipulation of the same by the children of the tenant using it for a plaything. It was further a question of fact whether the landlord, after knowledge, or after having imputed knowledge, of its dangerous condition, had uséd all proper and reasonable diligence in taking steps to remedy such defect, as well as whether the landlord had used proper precautionary measures towards preventing the use of the defective radiator pending its repair. These were questions of fact for the jury which might or might not have been resolved in favor of the defendant. But since the evidence is plain, and it is admitted, without dispute, that the tenant, after ascertaining the defective condition of the air-valve, and after reporting it as dangerous, and after the steam had been cut off from the radiator to which it was connected pending repairs, turned the steam back into the radiator, according to the evidence for the defendant, over the protest of the janitor, but, at all events, with knowledge of the dangerous condition, it must be held, as a matter of law, that one claiming damages on account of the failure of the landlord to comply with duties to the tenant can not recover for an injury which' necessarily must have been proximately brought about by the negligent act of the tenant. This is true irrespective of any possible error in the charge relative to the imputation of all negligence of the tenant to the plaintiff, such as would bar a recovery by the plaintiff on- account of mere contributory negligence by the tenant, and irrespective of any error in the charge relative to the duty of a three-and-a-half-year-old child to exercise any degree of care and diligence on its own part. The verdict being demanded by the evidence, the judgment overruling the motion for new trial is

Decided June 3, 1929.

Affirmed.

Bell, J., concurs. Stephens, J., dissents.

Branch & Howard, JE. L. Tiller for plaintiffs.

Reuben R. & Lowry Arnold, B. P. Gambrell, for defendant.

Stephens, J.,

dissenting. I can not concur in the conclusion of the majority of this court that it is conclusively established by undisputed testimony, as a matter of law, that Mrs. Mendel, the tenant, turned the steam into the radiator with knowledge of the attending danger, and that therefore her act in' so doing was an agency independent of any act of the defendant and is the proximate and solely responsible agency causing the resulting injury to the plaintiff.

The record shows that Mrs. Mendel, in addition to testifying as indicated in the statement of facts, testified in immediate connection therewith as follows: “As to why I did not let the children play in the other room, if I had known it was that dangerous I would not have allowed them in there. No, I did not know anything like that was going to happen. No, sir, nobody could know it was going to happen. No, I had no idea it was going to happen. No, I had never known one of these valves in a radiator to blow out before. I did not know anything about radiator valves. No, I never knew of one to blow out before.” She testified also as follows: “As to why I thought the valve dangerous — because it seemed to be loose; I did not know why it was leaking; I thought it was dangerous to have leaking around the radiator valve.” On the other hand Mrs. Lyons, the defendant, who was the owner of the building, testified, in reference to the alleged statement to her by Mrs. Mendel that the radiator was in a dangerous condition, that “she [meaning Mrs. Mendel] did not say she thought it was dangerous, . . she did not tell me it was dangerous.”

Mrs. Mendel's testimony to the effect that, before the explosion of the radiator, she had notified the defendant, Mrs. Lyons, that the condition of the radiator was dangerous, is not evidence that it was in fact dangerous and that she, Mrs. Mendel, knew of the danger, but is evidence only to the effect that she had, in an extrajudicial statement, stated that the condition of the radiator was dangerous. As Mrs. Mendel is not a party to the ease, this statement, if made by her, has no probative value as an admission. It is purely hearsay, and, as such, of course, has no probative value as tending to prove the condition of the radiator. It possesses value only as tending to impeach the testimony of Mrs. Mendel, who was only a witness in the case. Besides, this statement, if Mrs. Mendel made it, does not demand-the inference that, if the radiator at the time was in a dangerous condition, Mrs. Mendel knew of this danger. The jury could have regarded this statement as being merely an emphatic, exaggerated and self-serving statement made by the tenant for the purpose of inducing the landlord to repair the radiator, and not as establishing as a fact that the true condition of the radiator was known to the tenant. Mrs. Mendel having testified that had she known that the condition of the radiator was dangerous she would not have allowed the children to play near it, and that when she turned the steam into it she did not know what the result would be, and there being testimony that she had not made the statement attributed to her that the condition of the radiator was dangerous, the evidence authorizes the inference that she did not know the danger incident to the turning of the steam into the radiator, and that she did not have sufficient knowledge to cause her to anticipate that the turning of the steam into the radiator would produce what actually happened as a result thereof.

I am of the opinion that the evidence is sufficient to authorize the inference that the defendant was negligent in leaving the radiator in a dangerous condition, and that this negligence was the proximate cause of the plaintiff’s injury. I am of the further opinion that the court erroneously instructed the jury that the negligence, if there was any, of the tenant, Mrs. Mendel, could be imputed to the plaintiff; and since the evidence was sufficient to authorize a verdict for the plaintiff, this error demands that the verdict found for the defendant be set aside and that a new trial be granted to the plaintiff.


author: Jenkins, P. J.

text:
    19424.
    Kleinberg v. Lyons.
    Decided June 3, 1929.
   Jenkins, P. J.

This is a companion case to Kleinberg v. Lyons, ante, 774, being a suit by the father of the plaintiff in that case for expenses incurred in treating her injuries, and is controlled by the decision rendered in that case.

Judgment affirmed.

Bell, J., concurs. Stephens, J., dissents.


text:
    19425.
    Mendel v. Lyons.
    Decided June 3, 1929.
   Jenkins, P. J.

This is a companion case to Kleinberg v. Lyons, ante, 774, being' a suit by the child of the tenant who occupied premises leased from Mrs. Lyons, for injuries sustained in the transaction referred to therein, and is controlled by the decision rendered in that case.

Judgment affirmed.

Bell, J., concurs. Stephens, J., dissents.


author: Bloodwobth, J.

text:
    19600.
    Braddy v. The State.
    Decided May 14, 1929.
    Rehearing denied June 11, 1929.

      Dampier & Watson, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Bloodwobth, J.

The special grounds of the motion for a new trial are not unqualifiedly approved by the trial judge, and consequently will not be considered. The State made out a case, and the defendant introduced no evidence and made no statement. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.

ON MOTION FOB BEHEAEING.

A motion for a rehearing was made, in which it is stated that “it appears from the record, which must have been overlooked by the court, that .the amended motion was approved unqualifiedly, but a marginal note [was] made by the trial judge in substantiation and explanation of the approval.” This court did not overlook what appears in the record. The record shows no approval whatever of the special grounds of the motion for a new trial. Eollowing these grounds the following appears: “The above and foregoing am'ended motion is hereby allowed, and the same ordered filed along with the record in said case. See marginal note No. 1.” The marginal note shows no approval of the special grounds. The 2d headnote of the decision in Jackson v. State, 116 Ga. 834 (43 S. E. 255), is as follows: “Though the amendment to the motion for new trial was allowed and ordered filed, it does not appear that the trial judge approved it or certified its grounds as true. The assignments of error therein will, therefore, not be considered.” In the opinion in that case Chief Justice Simmons said: “An approval of the amendment does not follow from its having been allowed and ordered filed. Such amendments may be, and frequently are, allowed and ordered filed subject to subsequent approval. Unless the grounds are approved or certified to be true, we have no jurisdiction to consider them,” citing Gamble v. State, 113 Ga. 701 (39 S. E. 301) ; Taylor v. Brown, 114 Ga. 299 (40 S. E. 281); Dunn v. State, 116 Ga. 515 (42 S. E. 772). In Tribble v. Tribble, 166 Ga. 850, 855, Chief Justice Russell said: “Nothing is better settled than that an assignment of error which is not approved by the trial court can not be considered in a court of review.” See Wright v. State, 9 Ga. App. 235 (70 S. E. 968) ; Pollard v. State, 125 Ga. 270 (54 S. E. 171).

Motion to rehear denied.

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


text:
    19201.
    ROBINSON COMPANY et al. v. RICE.
    Decided June 3, 1929.

      Howell, Heyman & Bolding, Hugh Howell, Jere S. Ayers, for plaintiffs.

      Erwin, Erwin & Nix, E. O. Siarlc, P. Oooley, for defendant.
   Jenkins, P. J.

The trial judge, in overruling the motion for new trial, made the following statement in his order: “There is some doubt in the mind of the court, under the evidence, whether Mrs. Eice sustained her defense, but the jury agreed with her version of the same. It is therefore ordered and adjudged by the court that the motion be and same is hereby overruled and a new trial refused.” If the proper construction of this order would be to clearly indicate that, although the trial judge did not himself approve the finding, it was nevertheless reluctantly allowed to stand because of the fact that the issue had been passed upon by the jury, the order overruling the motion would be subject to reversal for that reason, unless the evidence was such as to demand the verdict rendered. A. C. L. Railroad Co. v. Williams, 21 Ga. App. 453 (94 S. E. 584). Where, however, as in this case, the language of the trial judge is susceptible of the interpretation that the verdict was in fact approved by him in the exercise of a sound legal discretion, and that, although the issue involved was doubtful, the evidence, in the light of the verdict, convinced him of its correctness, it could not be set aside as not having the approval of the trial judge. Walter v. State, 6 Ga. App. 565 (65 S. E. 357).

2. Where one who can read signs a contract without apprising himself of its contents otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud, such as would reasonably prevent him from reading it. Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892). It is a well-recognized principle of law, however, that as between the original parties the consideration of a contract is ordinarily open to inquiry for the purpose of showing either that the consideration was originally illegal and the resultant promise therefore void, or that the consideration subsequently failed in whole or in part, so as no longer to support the promise as made. Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217).

3. Under our law a married woman can not assume the debt of her husband (Civil Code (1910), § 3007), and no superficial appearance will be permitted to lead the court away from the true inwardness of the transaction. Bank of Eufula v. Johnson, 146 Ga. 791 (92 S. E. 631). Thus, if the wife did not in fact purchase and was not to receive the stock of goods under the contract sued on, but the whole transaction was merely a colorable scheme or device by which the wife was induced by the plaintiff to assume the previous debt of the husband, without any valid consideration flowing to her, she would have the right to repudiate the entire illegal and void transaction, no matter by what device its true inwardness and purpose had been concealed. Civil Code (1910), § 5790; Purcell v. Armour Packing Co., 4 Ga. App. 253, 256 (61 S. E. 138).

4. Where, however, at the time the debt was created the creditor really and in good faith intended to extend credit to the wife and not to the husband, and the consideration for her promise passed legally and morally to her, the transaction will be treated as a valid one, provided the seller committed no fraud on her and knew of none committed by the husband. Schofield v. Jones, 85 Ga. 816 (11 S. E. 1032); Longley v. Bank of Parrott, 19 Ga. App. 701 (92 S. E. 232). This is true notwithstanding there might have been previous negotiations with the husband for the purchase of the bargained propertjr, which the husband was unable to consummate on account of his financial inability. McDonald v. Blumenthal, 117 Ga. 120 (43 S. E. 422). Hull v. Sullivan, 63 Ga. 127. The rule holds good even though by reason of her purchase an indebtedness of the husband based upon a prior sale of the same property to him might have been cancelled. In such a case, where the purpose and effect of the contract is that the wife shall pay only for what she bought, the debt is as much her own as if there had been no previous sale of the property to the husband. Simmons v. International Harvester Co., 22 Ga. App. 358 (5) (96 S. E. 9); Strickland v. Gray, 98 Ga. 667 (27 S. E. 155); Bateman v. Cherokee Fertilizer Co., 21 Ga. App. 158 (93 S. E. 1021).

5. If the real purpose and effect of the contract had not been that the wife should pay only for what she bought, but under the pretended contract of purchase and sale the true purpose and effect of the agreement had been that the wife, by such a subterfuge, should become responsible for the debt of the husband, and such consideration as actually passed to her had not -in fact represented the true and full consideration for her promise, the fact that she might have thus purported to become the purchaser of property, under cover of such an illegal assumption on her part of her husband’s debt, would not prevent the court from inquiring into the true inwardness of the transaction, despite such superficial appearance. No such question is, however, presented under the facts of the record. So far as the record shows or indicates, the only consideration of the defendant’s obligation represented the actual purchase-price, under a fair and just valuation, of the bargained property. The evidence shows without dispute that the negotiations between the plaintiff and the defendant married woman resulted in an unambiguous written contract and agreement, whereby the plaintiff agreed to sell and the defendant wife, together with certain other persons, agreed to purchase a certain stock of goods, which, under her testimony, had been previously bargained to the husband and certain other persons, but which previous negotiations, under the testimony of the plaintiffs, had not resulted in a sale; and it being undisputed that the defendant, together with her actual co-purchasers, became the actual owners, and went into actual possession of the bargained property, and, at least for the time being and for a particular purpose, recognized her status as a part owner in the business represented by such purchase, and there being no evidence to indicate that in the purchase of the bargained property any fraud was practiced upon her by the plaintiffs, or that they knew of any committed by the husband, or that there was in fact any committed by the husband, the defendant was bound by the contract as made, and the verdict in her favor in a suit brought on notes given in pursuance thereof was contrary to law, as being without evidence to support it.

Judgment reversed.

Bell, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting. However undisputed much of the testimony may be, it nevertheless appears to me that from all the testimony, including that which is* undisputed, a reasonable inference can be drawn that the present suit is predicated upon an obligation of the defendant, who was a married woman, to pay a debt of her husband. I am of the opinion that the verdict for the defendant was authorized, that no error was committed, and that the judgment overruling the plaintiffs motion for new trial should be affirmed. I therefore dissent from the judgment of reversal.


text:
    19404.
    Kumpe v. Hudgins.
   Bell, J.

1. Where, on hearing a general demurrer to a petition, the court sustained the demurrer, but in the order provided that the plaintiff should have “ten days leave to amend, and [that] upon failure to amend so as to set out a case the petition shall stand as dismissed,” the effect of the judgment was that, in the absence of any sort of amendment, the petition was dismissed at the expiration of ten days. Georgia Railway & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300) ; Beermann v. Economy Laundry Co., 153 Ga. 21 (111 S. E. 399); Warm Springs Banking Co. v. Riehle, 39 Ga. App. 288 (146 S. E. 646) ; Atlantic Refining Co. v. Peerson, 31 Ga. App. 281 (3) (120 S. E. 652); Smith v. Bugg, 35 Ga. App. 317 (2), 320 (133 S. E. 49).

2. “Under the decision in Johnson v. Vassar, 143 Ga. 702 (85 S. E. 833), the mere filing in the office of the clerk of the superior court of a paper called an amendment, but without any allowance by the judge or order permitting- it to be filed, does not amount to amending the petition.” Clark v. Ganson, 144 Ga. 544 (2) (87 S. E. 670). Even if tendering an amendment to the presiding judge and furnishing a copy to opposing counsel could be considered as answering this rule, the presiding judge in the present ease failed to verify that the amendment had been tendered to him, certifying that he had no recollection of such fact, and it affirmatively appearing that the amendment, though filed in the office of the clerk of the court, was never allowed, this court is compelled to treat it as a mere nullity as respects any compliance with the judgment upon the demurrer. See also Pasco Flour Mills Co. v. City Supply Co., 23 Ga. App. 95 (2) (97 S. E. 558); Dunham Lumber Co. v. Tumlin, 28 Ga. App. 424 (111 S. E. 586).

Decided May 15, 1922.

Rehearing denied June 17, 1929.

Charles W. Anderson, for plaintiff.

Carl T. Hudgins, for defendant.

3. If the judgment had overruled the demurrer so as tó leave the case pending, the defendant might have filed exceptions pendente lite, in which event the ruling on the demurrer would have become interlocutory and reviewable only after termination of the case, on exceptions to the final judgment therein (Durrenee v. Waters, 140 Ga. 762, 79 S. E. 841; Durrence v. Waters, 143 Ga. 223, 84 S. E. 471); but since the judgment was such as to sustain the demttrrér and to operate as a dismissal of the case, where the petition was not amended, the plaintiff had the option either of amending the petition or Of suing out a direct bill of exceptions; but the judgment could not be made the subject of exceptions pendente lite. Chipman v. Cornwell, 111 Ga. 862 (2) (36 S. E. 923).

4. The judgment on the demurrer having been rendered on July 14, the bill of exceptions tendered on October 26 was too late to bring such judgment under review. Civil Code (1910), § 6152. The bill of exceptions, however, will not be dismissed in the instant case, since it contains a timely assignment of error upon a later judgment entered by the court upon a motion of the defendant, which, though referring to the same ease, constituted a new proceeding.

5. The plaintiff having failed to amend the petition within the terms of the order, but the case having remained upon the docket and having been assigned for trial, the court did not err in sustaining the motion of the defendant to strike the ease from the docket and to declare it dismissed as of the date of the original judgment on the demurrer.

Judgment affirmed.

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


text:
    19417.
    Hill v. Kitchens.
   Bell, J.

1. Ordinarily, advertisement is not essential to the validity of a sale under a fi. fa.; and where imperfect advertisement is made, the irregularity therein will not vitiate the sale, but the remedy of the defendant in fi. fa. would be against the officer. The purchaser at a sheriff’s sale depends upon “the.judgment, the levy» and the deed,” and all other questions are between the parties to the judgment and the officer making the sale. Brooks v. Rooney, 11 Ga. 423 (56 Am. D. 430); Conley v. Redwine, 109 Ga. 640 (2), 644 (35 S. E. 92); Johnson v. Reese, 28 Ga. 353, 356 (73 Am. D. 757) ; Jeffries v. Bartlett, 75 Ga. 230; Georgia Northern Ry. Co. v. Cone, 17 Ga. App. 786 (2 b) (88 S. E. 701).

(a) Furthermore, the advertisement as shown by the record in this ease, which described the fi. fa. as being in favor of the original plaintiff and against the defendant and stated their names, constituted a substantial compliance with section 6062 of the Civil Code, which provides that the advertisement shall make known “the name of the plaintiff and the defendant,” although at the time of the levy and of the advertisement the fi. fa. was owned by a transferee, who had acquired it by a written transfer, and who was not mentioned in the advertisement.

2. A sale regularly made by virtue of judicial process issuing from a court of competent jurisdiction conveys the title as effectually as if the sale were made by the person against whom the process issues; and the purchaser at such sale is ordinarily entitled to immediate possession, which he may obtain by writ of possession; but this is not his exclusive remedy. Civil Code (1910), §§ 6051, 6073; Suttles v. Sewell, 105 Ga. 129 (31 S. E. 41) ; Hines v. Lavant, 158 Ga. 336 (5) (123 S. E. 611); Chambers v. Collier, 4 Ga. 193 (3), 197.

3. Such right of possession in the purchaser would imply a correlative duty on the part of the defendant in fi. fa. to vacate the premises promptly on notice of the sale, or in any event on demand by the purchaser. '

4. An estate at sufferance arises where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. Willis v. Barrell, 118 Ga. 906 (3), 908 (45 S.E. 794); Taylor v. West, 142 Ga. 193 (82 S. E. 518). The original entry need not have been under lease or as a tenant of the dispossessing landlord. Kimbrough v. Kimbrough, 99 Ga. 134 (2) (25 S. E. 170); Godfrey v. Walker, 42 Ga. 562 (6).

5. A tenant at sufferance may be evicted by a dispossessory warrant, where he fails to surrender the premises on demand, and is liable for double the rental value of the premises after such demand. Stanley v. Stembridge, 140 Ga. 750 (5) (79 S. E. 842).

6. In the present proceeding to dispossess the defendant as a tenant at sufferance, the evidence demanded a finding that the defendant’s possession as owner was changed to the possession of a tenant at sufferance, on the consummation of the sale under the fi. fa., and did not show that such tenancy was converted into a tenancy at will. Chason v. O’Neal, 158 Ga. 725 (3), 733 (124 S. E. 519); Crawford v. Crawford, 139 Ga. 394 (4), 398 (77 S. E. 557); Prichard v. Tabor, 104 Ga. 64 (2) (30 S. E. 415) ; 35 C. J. 1137.

7. There was no evidence to indicate that the plaintiff did more than merely to tolerate the defendant’s possession for the time being, the defendant leading the plaintiff “to believe that she was going to get out.” The mere fact that the plaintiff stated to the defendant that “she would have to pay rent” could not have been taken as converting the tenancy át sufferance into one at will, it appearing that the plaintiff constantly requested possession and at no time consented to a continuance of the occupancy. Such statement on the part of the plaintiff appears to have been given as a warning to the defendant that she could not continue to occupy the premises as her own, and amounted to a statement only of what the law would require. Smith v. Singleton, 71 Ga. 68 (3); Civil Code (1910), § 3692.

Decided May 15, 1922.

Rehearing denied June 17, 1922.

Orrin Roberts, for plaintiff in error. Reuben M. Tuck, contra.

8. Under the evidence no other verdict than one of eviction (as rendered) would have been authorized, and none of the alleged errors complained of in the defendant’s motion for a new trial could have affected the result. The court did not err in refusing the motion.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., conowr.


author: Luke, J.

text:
    19444, 19449.
    VANDERGRIFF v. SHEPARD; and vice versa.

    Decided June 11, 1929.

      J. RJ. VanValkenburg Jr., Hendrix & Buchanan, for plaintiff.

      Jones, Rlvins, Powers & Jones, for defendant.
   Luke, J.

Mrs. J. W. Yandergriff filed a claim against Y. W. Shepard before the industrial commission of Georgia for compensation for the accidental drowning of her husband, J. W. Yandergriff. Commissioner Stanley held that Shepard had more than ten employees regularly in service in the same business, and that the accident arose out of and in the course of the employment of the deceased, and made an award in favor of the claimant. On review the full commission affirmed the findings of the commissioner ; but on appeal the judge of the superior court set aside the award of the industrial commission “upon the ground that the evidence in the record is not sufficient to show that said Y. W. Shepard was an employer having regularly in his service ten or more employees in the same business within this State.” ' ■

Claimant excepted to the foregoing judgment, and the employer, by cross-bill, also excepted thereto. The gist of the cross-bill is that the said judgment limited the setting aside of the award to the single ground mentioned therein, whereas it also appears, from the evidence, that the death of Yandergriff did not arise out of and in the course of his employment.

On August 16, 1923, the Deaf and Dumb Association, acting by and through R. L. E. Rogers, put on an entertainment at East Lake in the City of Atlanta, consisting in part of a dinner served at. about seven o’clock in the evening and of a pageant. Rogers arranged for some fireworks, dancing by professional dancers, and a float which was to be paddled across the lake. He employed Y. W. Shepard, a decorator by trade, to construct and decorate this float, which was built on a platform placed upon three boats. Shepard commenced work on the float on August 15, 1923, and completed it the next day. At about nine o’clock in the evening of the 16th the float, occupied by six dancing girls, a deaf and dumb girl named Miss Morris, a man named Persons, J. W. Yandergriff, and the president of the Deaf and Dumb Association, left the shore. Yandergriff and Persons were paddling the raft. Rogers was ready to set off the fireworks, when he heard a commotion on the water, and the drowning occurred. Whether one of the boats leaked so that the three boats would not hold up the weight of the party, or whether the girls became excited and tilted the raft, Rogers could not say, he being on land and his vision being obstructed by auto mobiles.

Miss Nellie Sullivan, sworn for the claimant, testified: that she was a dancing teacher and a professional dancer; that she was employed to put on a dance for the carnival, and hired for that purpose six dancers; that Y. W. Shepard never hired her or the girls; that the float was lighted, but that she was on the shore and could not see what was occurring on the float, because her view was obstructed by the crowd; and that neither the defendant nor Mr. Rogers had instructed her to keep quiet in regard to the tragedy. Miss Shirley Smiley, sworn for the claimant, testified: that she was Miss Sullivan’s pupil; that she and the other dancing girls, the chairman of the convention, Mr. J. W. Yandergriff, and a boy in a bathing suit were on the float when it began to sink; that all the girls were supposed to be and, so far as she knew, were perfectly still; that she remained on the float until it went down under her, and then she began to swim; that Miss Sullivan had told her not to mention the accident, because the girls “were playing another convention” soon, and it would make them afraid.

• Mr. Fred Cooledge, sworn for claimant, testified: that he was a member of the Athletic Club, and understood that Miss Sullivan had been employed by the defendant to dance on the night in question, because at entertainments given by other organizations Shepard had done the decorating and arranged for girls to dance; that when witness arrived at the raft shortly after the catastrophe there was one other person on it; that witness dived four or five times from the raft and recovered the body of Miss Morton twenty minutes after the accident, and 112 feet from the shore; that Mr. Yandergriff’s body was found at about 3:45 next morning, about twelve feet from where the body of Miss Morton was found; that defendant remained at the lake until they came in at five o’clock next morning; that on the way back to town defendant asked witness if he, defendant, could be held liable for any damages. The witness answered questions as to what defendant did at a Kiwanis entertainment, but his answers throw little or no light upon the issues in this case.

Fred O. Martin, for claimant, testified: that on August 16 and 17, 1923, he was working for Shepard in the decorating business; that on the night of the accident he helped fix and decorate the float; that witness and Isaac Farrar and another built the raft the day before the accident; that the middle boat leaked; that Mr. Yandergrifl: was Mr. Shepard’s foreman and had charge of the construction work; that just before the raft started on its fatal trip, one Persons, whom Mr. Eogers had gotten to paddle the boat, came and took a paddle; that witness was to help paddle the boat, but that Yandergrifl: told him to stay on shore — that something might happen, and that he, Yandergrifl, would row the boat; that the first day one Davis, Farrar, and witness were working on the raft, and the next day Mr. Yandergrifl, Farrar, and witness; that Shepard generally had in his employ from two to eight persons; that, during conventions Shepard had extra help, but that ordinarily he hardly ever had over four men and the office girl in his employ; that Mr. Yandergrifl did all the hiring and firing; that defendant told Mr. Davis, witness, and Farrar to go out and fix the raft, Mr. Davis being in charge because Mr. Yandergriff was in town; that Mr. Eogers selected the boats on which the raft was built; that one of the boats leaked, but witness considered the float safe, and was of the opinion that there must have been some “running around” to sink it; that the five regular employees of Mr. Shepard could do his work “when there wasn’t nothing rushing . . , and part of the time these five were setting down doing nothing;” and that Mr. Yandergriff looked after things generally for Mr. Shepard.

Isaac Farrar, sworn for claimant, testified that he was working for Mr. Shepard, and helped build the raft, but that he was sitting in an automobile waiting for Mrs. Yandergriff, and did not see the accident. J. T. Gibson, sworn for claimant, testified: that he was a decorator and helped Mr. Shepard out on special jobs, but did not work regularly for him; that he was working for Mr. Shepard and helped build the raft on East Lake; that Mr. Eogers was present and gave instructions as to how the raft should be constructed; that Mr. Shepard was there “for a while,” and that Mr. Shepard regularly employed four or five hands, and hired others when he got some big job.

Y. W. Shepard testified: that Mr. Eogers hired him to do some decorating at East Lake; that Eogers told him just how the raft was to be built, and witness carried out instructions; that when the tragedy occurred witness had completed his work as decorator and let his employees go, and was helping Eogers purely for accommodation ; that Eogers told witness that he wanted some one to help him operate the lights that were to be turned on the float, and that witness told Eogers that he might be able to get Mr. Yandergriff, but that he, Eogers, would have to pay him for half a day’s work for working at night; that upon Eogers’ request, witness saw Yandergriff, who agreed to help Eogers for the pay offered; that Eogers told witness one of the men “for the boat” had not shown up; that witness said his men were all off, but that he would see if any one of them was about who would help with the boat; that witness approached Martin, who said he would go on the raft; that it later developed that Yandergriff went on the float and Martin remained on shore; that witness had finished his job and neither Yandergriff nor Martin was working for him at the time; that wit- _ ness had nothing whatever to do with Yandergriff’s going on the raft, and did not see it start; that he never had in his regular employ more than three or four hands, and that he hired extra help when he got a very big job; that witness was paid $100 for decorating at the Ansley Hotel and for his work at the carnival; that he carried no liability insurance at the time the accident occurred, because he did not employ ten men regularly; that he took out such insurance, he thought, about a month after the accident; that he employed more than ten, but not over fifteen men during the Pure Food show, and as many as twenty-five at the Elks’ Convention; that he did not think he employed over ten persons during the Kiwanis convention, and that he employed less than that number at the laundrymen’s convention; that at the time of the trial he had only three or' four persons regularly employed; that witness called on Mrs. Yandergriif and told her that her husband was missing and he did not know where he was (one witness had sworn that he thought he saw Yandergriif returning to the shore in a boat after the float sank, and this created some doubt as to what'had become of the deceased); and that witness did not tell Mrs. Yandergriif that he saw her husband and Fred Martin, and Fred did not want to go “out there,” and that witness then said, “Well, it’s up to you.”

Mrs. Yandergriif testified that Shepard came to her house and made a statement to her. We quote her language as follows: “He came out there and told me this boy was supposed to run on the raft with Mr. Persons, the boy who was supposed to do so did not show up, and that he went to Yan and says, 'What are we going to do? Now we have got to run it.’ So he said, 'You go out on the raft, and I will run the lights.’”

Counsel agreed that Shepard was paying J. W. Yandergriif $6 a day for his services at the time of his death, and for some time prior thereto, or an average weekly wage of $36.

It appears from the commissioner’s record that Y. W. Shepard took out liability insurance with the Georgia Casualty Company on August 20, 1923, just four days after the accident.

Extracts from the time-book of J. W. Yandergriif, used while in the employ of Y. W. Shepard, were introduced in evidence. “Exhibit A,” headed “Pure Food Show,” and undated, shows that twenty-three persons were hired, one for seven days, two for “full week,” two for four and a half days, and the rest for periods varying from half a day to three and a half days. Immediately following the above in the same time-book is a statement showing that fifteen persons worked, two for seven and a half days, one for seven days, two for six and a half days, one for six days, two for four days, and the rest for periods of time varying from a half day to one day. The next group, headed “Same book (presume third week following Pure Food Show),” discloses that thirteen persons worked, five for seven days, one four days, one for three and a half days, three for three days, and three for a half day each. The next group, headed “Immediately following — same book,” shows that thirteen persons worked, one for six and three quarters days, one for six and a half days, three for six days, one for five and a half days, one for three days, and the rest for less than three days. The next group, headed “Book 1 — Week ending May 12, 1923,” discloses that eleven persons worked, one six and three quarters days, six for six and a half days, and the others from one day to three and a half days. The next group headed “week following,” shows that fourteen persons worked, four for eight days, three for seven days, one four and a half days, and one for three days. The time worked by the others is not stated. The next group, headed “week following — in same book,” shows sixteen persons, four working eight and a half days, one working seven days, one working five and a half days, two working four and a half days, one working four days, and the others for lesser periods of time. The time of one Pemberton is not given, but he appears to have been paid $24. The next group, headed “Week following — in same book,” shows that eleven worked, five for seven and three quarters daj^s, one for seven and a quarter days, three for six days, one for two days. Lewis Bullard, whose time is not given, was paid $3.75. The next group, headed “Week following,” shows that twelve persons worked, six for seven days, four for six days, one for five and a half daj^s, and one for five days. The next group, headed “Week following,” shows that eleven persons worked, two for six and a half days, eight for six days, and one for four and a half days. The next group, headed “Week following,” shows that eleven persons worked, one for six days, one for five and a half days, three for four and a half days, and the remainder for lesser periods of time. The next group, headed “Week following,” shows that ten men worked, one for six and a half days, two for five and a half days, one for six days, two for five days, two for four days, and one for two days. The next gronp, headed “Exhibit B. To date given in Book II,” shows that twenty-one persons worked, three for eight daj's, one for six and a half days, three for six days, one for five days, one for four and a half days, one for four days, and the others for periods of time ranging from one to one' and a half days. The next group, headed “week following Exhibit B, Book II,” shows that fifteen persons worked, two for seven days, one for six and a half days, two for six days, two for five days, seven for three days, and one for one day. The next group, headed “Exhibit C, no date given — in Book III,” shows that sixteen persons worked, three for eight and a half days, one for seven days, one for five and a half days, one for five days, one for four and three quarters days, and the others for periods, ranging from one and a half to three and a half days. The next group, headed “Exhibit D, no date given — in Book III,” shows that eleven persons worked, two for eight days, one for seven days, one for four- and a half days, one for four days, one for three days, one for one and a quarter days, and four for one day. The next and last group is headed as follows: “Exhibit E, dated July 7, 1923, in Book II.” It appears from it that twenty-five persons worked, two for ten and a half days, one for ten days, one for nine and a half days, two for eight and a half days, two for eight days, two for seven days, one for six and a half days, one for five and a half days, three for five days, two for four days and the others for lesser periods of time.

In two of the groups referred to above more than ten persons worked a full week. In the others, fewer than ten persons worked full weeks.. In very many instances the employees worked less than half a week. In most cases the time when the work was performed can not be satisfactorily ascertained. The last pay-roll is dated July 7, 1923, and the accident in which Vandergriff lost his life occurred August 16, 1923. It clearly appears from the record that the dancers at the entertainment were not in Shepard’s employ, and that he did not regularly employ dancers in his business. All the oral evidence is to the effect that he did not regularly employ as many as ten persons and we do not think that the extracts from the time-books, together with the fact that Shepard took out liability insurance shortly after the accident, meet the requirements of section 15 of the workmen’s compensation act (G-a. L. 1920, p. 167), which provides that the act shall not apply “to any persons, firms, or private corporation, including any public service corporation, that has regularly in service less than ten employees in the same business within this State; unless such employees and their employers voluntarily elect to be bound by this act.”

Therefore the evidence fails to show that the industrial commission had jurisdiction of the claim; and the judge of the superior court correctly so held. In view of the conclusion reached, it is not necessary to discuss the cross-bill of exceptions.

Judgment on main hill affirmed; cross-hill dismissed.

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


text:
    19593.
    Owens v. Glover Grocery Company.
    Decided June 11, 1929.

      IJal Lawson, for plaintiff in error. J. II. Dorsey, contra.
   Luke, J.

1. Where A and B wish to buy the same property, and A has negotiated with the owner to the extent that the latter will not negotiate with B until the negotiations with A have terminated, a promissory note given by B to A in consideration of the withdrawal by A from further negotiations and the surrender to B of his right to purchase, is not without consideration, and therefore, according to its terms, is enforceable. See Civil Code (1910), § 4242; Burruss v. Smith, 75 Ga. 710 (2).

2. The exceptions to the charge of the court, when the charge is read in its entirety and is applied to the issues raised by the pleadings and the evidence, do not show error.

3. The evidence, though in sharp conflict, was sufficient to authorize the verdict. The trial judge having approved the verdict, and no error appearing for any reason pointed out in the record, a new trial was properly denied.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    19598.
    Haddon v. Brinson.
   Luke, J.

Where an action was dismissed by a judgment sustaining a general demurrer, and during the same term of court the plaintiff orally moved to set the judgment of dismissal aside as having been erroneously granted, but procured no ruling thereon, and filed no written motion with an order of the court directing the defendant to show cause, etc., a renewal of the oral motion at a subsequent term of the court came too late, and was therefore properly overruled. See E. T., V. & G. Ry. Co. v. Greene, 95 Ga. 35 (22 S. E. 36) ; Alley v. Holcombe, 96 Ga. 810 (22 S. E. 901) ; So. Ry. Co. v. Empire Printing Co., 120 Ga. 43 (47 S. E. 542); Shore v. Brown, 19 Ga. App. 476 (6) (91 S. E. 909).

Decided June 11, 1929.

D. R. Bryan, R. G. Hartsfield, for plaintiff.

A. B. Conger, for defendant.

Judgment affirmed.

Broyles, O. J., and Bloockoorth, J., concur.


text:
    19603.
    BUCHANAN et al. v. TESLER.
    Decided June 11, 1929.

      McElreath & Scott, for plaintiffs in error.

      George & John L. Westmoreland, J. M. Jones, contra.
   Luke, J.

J. A. Tesler broughtan action for damages against Mrs. T. T. Buchanan and Mrs. T. T. Brannen, alleging in substance as follows:

1. Defendants are residents of Fulton county, Ga.

2. Defendants have damaged plaintiff in the sum of $10,000.

3. On January 1, 1925, plaintiff leased from defendants a storehouse in the City of Atlanta, known as 20 West Mitchell Street, for five years, at a rental of $300 per month.

4. Plaintiff rented said property for his' own use, and was conducting therein a profitable, retail clothing business.

5. “The defendants were sisters of one M. L. Thrower, and he was the owner of several store-houses lying next west of the premises leased by the plaintiff, except the one immediately west and adjoining it, and he owned the west half of that store, the east half being the property of the plaintiff’s lessors.”

6. Plaintiff’s lessors and said Thrower inherited their property,

“and the store-house occupied by the plaintiff and the store next adjoining it on the west was all one building and covered by one roof/’ but said parties had partitioned said building, and “in the division the said Thrower obtained title to the west half of the store-house, and the plaintiff’s lessors obtained title to the east side.”

7. Between the store-house leased by plaintiff and the one owned by said Thrower “there was no brick or other substantial partition, but the same was constructed with what is known as beaver-board and covered by paper.”

8. During the month of February, 1926, while plaintiff was occupying the store leased from the defendants and doing a profitable business therein, said Thrower “tore down and removed the brick wall along the west side of said property, and sawed in two the store-house next west of the store leased by the plaintiff, and tore away the entire west half thereof, and left no protection for the plaintiff’s property from rains or storms, except the flimsy beaver-board wall.”

9. Plaintiff immediately notified defendants of the unsafe condition of said premises, and asked that his stock of goods be protected from damage, but “defendants failed and refused to make such alterations and repairs in the said premises as to protect the plaintiff’s stock of goods.”

10. “In consequence of the said exposed condition, rains and storms came and greatly damaged your petitioner’s stock of goods as followsmen’s clothing in the sum of $5,600.63; ladies’ dresses, in the sum of $412; and ladies’ hats in the sum of $28; and plaintiff was otherwise damaged, inconvenienced and annoyed to the extent of $3,959.47, — “all of which damage was caused by the rains and storms aforesaid by reason of the fact that the defendants failed and refused to erect a substantial wall and roof for the protection of plaintiff’s property.”

11. “It was the duty of the defendants, as the plaintiff’s landlords, to protect his stock of goods by erecting and providing such walls and roof, or other devices, as would have kept out the rains and storms which damaged the plaintiff’s stock of goods as aforesaid.”

The defendants demurred to the petition: (1) because it set forth no cause of action against them or either of them; (2) “because the lease referred to in paragraph 3 of said petition is not set forth in said petition and no copy thereof is attached thereto.” After a copy of said lease had been attached to the petition,' to meet the special demurrer, the court, on April 6, 1928, “adjudged that the demurrer be sustained and plaintiff’s petition dismissed.” On April 24, 1928, the court passed the following order: “Wherefore the order of April 6, 1928, dismissing plaintiff’s petition is revoked and plaintiff’s case is reinstated in said court; and the attached amendment is allowed and ordered filed subject to objection and demurrer on the part of the defendants.”

The substance of said amendment follows: 1. “The damage to plaintiff’s goods was caused by water entering the store-room by reason of the roof being out of repair.” It was the duty of the defendants, under the lease contract, to repair the roof,- and the damage complained of “was the direct' result of defendants’ failure to repair the roof so as to make it serve the purpose of a roof.” 2. “Defendants knew that M. L. Thrower was razing the adjoining building, and that a beaver-board wall would remain as an outside wall, and would be wholly inadequate to protect plaintiff’s goods from the elements; defendants knew that a wide gap would result between the roof and the wall of their building, due to M. L. Thrower tearing away his adjoining building; and defendants made no effort to protect plaintiff’s goods, though they knew that plaintiff’s stock was being endangered by reason of the adjoining building being torn away.” 3. “That defendants knew, or had reason to believe, that the roof of their building would subside and sink by reason of its support being taken away; that said roof did subside and cause water to pour into the store and on plaintiff’s goods, and this damage was entirely due to defendants’ failure to repair and support its roof.” 4. “Plaintiff notified the defendants of the activities of Thrower and that damage would result to plaintiff, and the defendants refused to do anything to protect plaintiff’s goods,” said notice having been given in ample time. 5. “Even if the original defective condition of defendants’ building was caused by the acts of M. L. Thrower and by defendants’ failure and refusal to repair the roof and make structural replacements after due notice, the act was thereby adopted by the defendants as their own, and through their failure and refusal to perform their covenant to repair the roof.”

The defendants admitted paragraphs 1, 5, 6, and 7 of the petition, and denied paragraphs 2, 9,10, and 11; denied the allegations of paragraph 3, but admitted the execution of the lease referred to therein and averred that it was executed on April 28, 1924, and that plaintiff entered into possession of said property on or about the beginning of his term, which was January 1, 1925; admitted paragraph 4 of the petition, except that, for want of information, they could neither admit nor deny that plaintiff was conducting a profitable business in said leased premises; and admitted the allegations of paragraph 8, except that they averred that the demolition referred to therein occurred in or about the latter part of April, 1926. The defendants further pleaded in substance as follows: that plaintiff entered into the possession of said rented premises on or about January 1, 1925, and ever since remained in possession thereof; that the express terms of said lease contract relieved the lessors from all damage to person and property; that said contract expressly provided that the lessors should not make repairs of any nature during the term of the lease, except repairs to the roof; that the roof of the leased premises was in good repair, and that if any water entered the premises, it did not enter through the roof or by reason of any defect therein; that defendants were not notified to make any repairs to the roof; and that, by reason of the facts set out, defendants were not liable even if plaintiff’s goods were injured by water entering said premises. Defendants further pleaded that they were not liable, for the following reasons: that the entire property from Forsyth street east to a point some twenty feet east of the wall of the store leased to plaintiff was inherited by defendants and M. L. Thrower from their father several years before said lease contract was made; that said property was covered by a two-story brick building which was divided into store-rooms fronting on Mitchell Street, and was held by defendants and said Thrower as tenants in common; that prior to the execution of said lease, the entire property was partitioned, the eastern portion of said property occupied by the store-room known as “No. 20 West Mitchell Street,” and the eastern half of the store-room known as “No. 22 West Mitchell Street,” being awarded to defendants as tenants in common, and the western portion of’said property, including the western half of the store-room known as “No. 22 West Mitchell Street” being awarded to M. L. Thrower; that all of said property was covered by one roof; that after said division a beaver-board partition was run down tbe middle of store-room “No. 22” at the common expense of defendants and said Thrower, dividing it into two rooms, the eastern one being the property of defendants, and the western one the property of said Thrower; that during the latter part of April, 1926, said Thrower, without notice to the defendants, and without their knowledge, and without a permit from the City of Atlanta, demolished the building on his portion of said partitioned property, cutting in half said store-room “No. 22,” and leaving defendants’ property unprotected, except by the beaver-board partition which was on the dividing line; that at said time Mrs. Brannen was residing in Cuba; that soon after said demolition Mrs. Buchanan was notified of it, and, though she was under no legal obligation so to do, she repaired said beaver-board partition; that as soon as she could, she made arrangements to build, and did build, a brick wall where the beaver-board wall had stood; that until said Thrower demolished his portion of said building, the premises occupied by plaintiff were in good condition and fully protected from rain and leakage; that after said demolition, and before defendants could complete the new wall, excessive rainstorms, accompanied by high winds, came, and defendants are informed that a very small amount of rain blew through said beaver-board wall and onto the floor of the upper story of store-room “No. 22 West Mitchell Street,” and ran down the wall of “No. 20 West Mitchell Street,” damaging plaintiff’s goods in an amount not exceeding $15, defendants averring that said damage could have been prevented by plaintiff at practically no expense, by removing his clothes-racks from against the west wall of his store; that the sole cause of any damage sustained by plaintiff was the demolition by said Thrower of his portion of said building; that defendants were powerless to prevent it; that being without notice of said demolition, defendants were unable to provide against the creation of the condition produced by the same, and that the unprotected condition of defendant’s property was brought about by a vis major; that the rains and storms, occurring before they could be provided against, were acts of God, for the consequences of which defendants are not legally liable; “that from the partition' of said property, the respective owners owed a servitude to the other adjoining owners for the protection of each portion of the building to the other portion, and that neither owner had a right to demolish his portion of said building without affording protection to the portion of said building owned by the others, and if any body is liable to plaintiff, it is M. L. Thrower, who caused said damage; that defendants are not liable to the plaintiff in any sense whatever; that M. L. Thrower has been duly vouched into this case,” and defendants pray, “if any recovery be had in said case, that said M. L. Thrower be held liable therefor.” On motion the court struck the paragraph of the answer which prayed that M. L. Thrower be held liable for any damages that might be recovered against the defendants.

J. A. Tesler testified that he went into possession of the leased premises in January, 1925, and was conducting therein a ladies’ and men’s ready-to-wear business; that he occupied the first floor, but did not rent the second story; that up to the time M. L. Thrower removed the building west of him, his store was protected from the weather; that about Februarjr, 1926, Thrower began tearing down the part of the building to the west of the store occupied by witness; that each of his lessors was present several times during the demolition of said building; that Thrower began tearing down the building in February, “and it took about a week or two when he started over on my side;” that he immediately notified his lessors to give him some kind of protection; that about nine feet of the store immediately west of the one occupied by plaintiff (i. e. the half of that store that belonged to defendants) was not torn down, and his wall was not “right open to the elements then;” that his lessors put the brick wall up probably four weeks after witness’s second damage; “that the first damage came on Saturday, June 19, and the second damage came on Tuesday of the following week;” that he could not tell whether the roof was fixed or not, because he had never been on the second floor to find out, but that he supposed it was fixed after the water came in; that after the wall was fixed he did not have any more trouble; that he notified Mrs. Buchanan on June 19, and she reached his store at about six or seven o’clock p. m. the same day; that the rains that caused the damage were ordinary rains unaccompanied by violent winds; that “the water came through the ceiling, straight out at one time, in one lump, and sprinkled over the hats in the middle of the store, and sprinkled over the dresses eighteen feet further out from the wall;” that it was from the ceiling, not from the wall; that there Was spine paper off the ceiling; and that his goods were damaged, C. W. McClure, sworn for plaintiff, testified: that he did not know whether he was in plaintiffs store Tuesday or Saturday; that he thought there was a summer shower falling, and was inclined to think that there was wind just before the rain; that water came dripping down, but that he did not know where it came from; and that plaintiff got busy getting his goods out of the west side and from under the rain. Ben Levine sworn for plaintiff, testified that he was in plaintiff’s store on a Saturday in 1926, and saw some water on the floor; that the 'ceiling was wet, but he could not tell how much of it; and that perhaps two or three yards of the ceiling had loose paper on it. John W. Hardwick, sworn for defendants, testified: that he was with the Federal Loan Company in 1926, and that he was in plaintiff’s store on a Thursday; that the only evidence he saw of water coming in the store was that some had trickled down the wall, and that he saw “no broken place in the ceiling.” This witness thought that if the damaged goods had been dried out and pressed, they might have sold at a discount of twenty-five per cent.

Mrs. T. T. Buchanan testified: that she was one of the defendants; that the other defendant, her sister, Mrs. Brannen, was in Havana, Cuba, at the time of the rain; that in response to a telegram from Mr. Tesler (the telephone being out of order because of the windstorm and rain that day) she went immediately to the store; that the wind was blowing very hard, this way and that way, coming in gusts, and that it was still raining when she reached the store; that Mr. Tesler told her “that the rain had come down the side of the wall there and wet some of the suits on the shelves;” that she looked at both the wall and the ceiling, and that the rain had come down the side of the wall next to the little shoe store that was between him and the place where Mr. Thrower tore the building down, and “not over in the middle of the store;” that she had nothing to do with tearing down the wall, and knew nothing about it until Mr. Thrower called her up to go down and build a wall; that when she went down next day she found that he had torn down his half of the store they owned together; that on Monday she sent a carpenter to see about the roof; “that there was no leak in the roof at all,” and that it never had leaked; that she built the wall as soon as possible, but that it took several weeks to do it; §he knew that Mr.. Thrower was. tearing down buildings on, hi§ property but she did not know that he was going to tear away his half of the store that he and defendants owned together — that this was the last thing he did; and that the damage was small. Mrs. T. L. Thrower, sworn for the defendants, testified that she was the mother of defendants, and went to tho store of Mr. Tesler with Mrs. Buchanan on the night of the rain; that there was a hard storm and the wind was blowing in every direction; that the streets were flooded; that the water “seemed to blow in from the side; that the water did not come through the ceiling, but trickled down the side; and that the goods were only wrinkled.” J. A. Tesler, recalled, testified that he did not think it was raining at all when the ladies came to his store in answer to his call; that there was no water coming in the store at that time; and that his goods were positively wet. This witness further swore: “I notified these people to come there and fix that house; I asked them to fix the wall. I asked Mrs. Buchanan to make the repairs; I asked Mrs. Buchanan to fix the wall; I didn’t ask for the roof itself.” The defendants then offered in evidence the declaration filed by J. A. Tesler against M. L. Thrower, seeking damages for the same injuries set out in this case. Three photographs were then introduced in evidence, one showing the appearance of the building after Thrower had cut in half the store immediately west of the one occupied by plaintiff, and the other two giving views of the interior of the store occupied by Tesler.

The jury found a verdict for the plaintiff for $730, and the court overruled defendants’ motion for a new trial.

It will be observed that by his amendment to meet defendants’ general demurrer the plaintiff planted his case upon the proposition that the alleged damage “was the direct result of defendants’ failure to repair the roof so as to make it serve the purpose of a roof;” and that the roof “subsided” because its support was taken away. So far as we have been able to ascertain from a careful study of the record, it does not appear either that the roof subsided, or that it leaked. Paragraph 3 of the lease contract reads: “Lessee hereby releases lessor from any and all damage to both person and property and will hold the lessor harmless from all such damages during the term of this lease.” Paragraph 13 of said contract is: “It is agreed that lessor is to be called on to make no repairs of any nature whatsoever during the term of this lease, except repairs to roof.”

We think that the plain provisions of the lease-contract, applied to the evidence in this case, preclude a recovery. Therefore the court erred in overruling the general grounds of the motion for a new trial. The special grounds of the motion for a new trial raise no questions that are of special interest, or that will likely recur, and it is not necessary to pass upon them at this time.

Judgment reversed.

Broyles, G. J. and Bloodworth, J., concur.


text:
    19614.
    FEDERAL LIFE INSURANCE CO. v. HURST.
    Decided June 11, 1929.

      Bryan & Middlebroolcs, Dillon, Qalhoun & Dillon, Sidney G. Gilbreath Jr., for plaintiff in error. W. II. Terrell, contra.
   Luke, J.

In an action on an insurance policy in the municipal court of Atlanta, Edward Springer Hurst obtained a verdict and judgment against Federal Life Insurance Company for damages for alleged accidental injuries, and the defendant sued out certiorari. The judge of the superior court dismissed the certiorari, his judgment being in the following language: “This case coming on to be heard and the defendant in certiorari having moved to dismiss the certiorari, on the ground that the defendant had not been served with notice of the sanction and time and place of hearing, after hearing argument, and plaintiff in certiorari had submitted an affidavit on the subject of service, which was rejected by the court, ordered that the certiorari be and the same is hereby dismissed.”

The affidavit referred to in the above judgment properly sworn to and subscribed by Clifford E. Thomas, was as follows: “Clifford E. Thomas, having first been duly sworn on oath, deposes and says that he is agent and attorney for the plaintiff in certiorari; that on or about November 15, 1928, he served written notice of the sanction of the certiorari in this case to be served by delivering a copy of the petition, along with a copy of the order of court sanctioning the same on W. H. Terrell, attorney for defendant in certiorari, that said W. H. Terrell accepted the same, and affiant and said Terrell discussed the case. Affiant said that he would write out formal service, and said Terrell said, ‘All right;’ and, on account of this, affiant says he served the notice on the defendant more than ten days before January 1929 term of this court, the term to which the writ was returnable.”

The Civil Code (1910), § 5190, provides that “The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent, or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed.” Under the express provisions of this section, and the strict construction thereof by our courts, we are satisfied that the judge did not err in rejecting the affidavit or in dismissing the certiorari. See Frank v. May, 86 Ga. 659 (13 S. E. 19); McGee v. Lowry National Bank, 9 Ga. App. 668 (72 S. E. 67); Alley v. Flliott-Madison Co., 22 Ga. App. 497 (96 S. E. 342); McConnell v. Folsom, 4 Ga. App. 535 (61 S. E. 1051).

Judgment affirmed.

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


author: Bkoyles, O. J.

text:
    19676.
    Jones v. The State.
    Decided June 11, 1929.

      Claude Brackett, for plaintiff in error.

      John 8. McClelland, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
   Bkoyles, O. J.

The eonvietion of the accused was amply authorized by the evidence, and the overruling of the certiorari was not error for any reason assigned.


author: Broyles, C. J.

text:
    19678.
    THOMPSON v. SAVANNAH BANK AND TRUST CO.
    Decided June 11, 1929.

      George C. Heyward Jr., for plaintiff in error.

      William L. Olay, contra.
   Broyles, C. J.

1. “Assignments of error must be specific, whether contained in a bill of exceptions or in a petition for certiorari, and, when based upon a decision of the trial court, must specifically point out the reason why the decision is error. Civil Code (1910), §§ 5183, 6139.” Wall v. Hawker Pottery Co., 27 Ga. App. 255 (2 a) (108 S. E. 134). An assignment of error that a judgment (not the overruling or the granting of a motion for a new trial, or a judgment on demurrer, or similar pleadings) “is contrary to law” is not a specific assignment of error and can not be considered by the court. Callaway v. City of Atlanta, 6 Ga. App. 354, 355 (64 S. E. 1105), and cit.

2. This case was submitted to the trial judge to pass on all questions, both of law and fact. Evidence was introduced by both parties, arguments were made by counsel, and the court rendered a judgment in favor of the plaintiff against all the defendants. To ■that judgment Richard C. Thompson, one of the defendants in the trial court and the plaintiff in error in this court, excepted. The only assignment of error in his bill of exceptions is as follows: “To said judgment in favor of the plaintiff the'Savannah Bank & Trust Company, the defendant, Richard C. Thompson, plaintiff in error, then and there excepted, and now excepts and assigns the same- as error, as being contrary to law as to him.” Under the above-stated ruling, the assignment of error is not a specific assignment of error, and this court is without jurisdiction to entertain this case.

Writ of error dismissed.

Lulce and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    19682.
    Smith v. The State.
    Decided June 11, 1929.
    P. M. Anderson, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Bloodworth, J.

1. So far as the alleged newly discovered evidence is material, it is cumulative and is impeaching in its' nature. Moreover, the State made a counter-showing; and when this is done, a reviewing court will not control the discretion of the trial judge, unless it is manifestly abused. It was not abused in this ease. Caswell v. State, 31 Ga. App. 178, 180 (120 S. E. 2d), and cit.

2. The evidence is sufficient to support the verdict.

Judgment affirmed.

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


text:
    19683.
    ROBERTS, administrator, v. ROBERTS.
    Decided June 11, 1929.

      J. II. Dorsey, for plaintiff. Ilal Lawson, for defendant.
   Bloodworth, J.

By agreement this case was submitted to Judge Eve for determination on all questions of law and fact. His judgment, which was reduced to writing, contains enough of the facts to make it understood without any further statement of facts. We are convinced that it fully and accurately covers the issues to be determined, and we are making it our opinion in the case. Judge Eve said: “A rather careful study of the record in the case . . has convinced me that the defendant should prevail in this suit, for the reason that, having made a clear purchase and received a deed upon the delivery of notes for the purchase-price, he became the holder of the title and entitled to the possession of the premises. The vendor, having refused to surrender possession and remaining in charge of the property, became the tenant at will of the vendee. Having failed to evict her and having allowed her to remain in possession for years, he has legally assented to and acquiesced in the relationship, and can not now set aside the sale for a failure to make delivery, or plead failure of consideration. As owner of the premises he has not waived his right to collect reasonable rental value of the premises by permitting Mrs. Catherine Eoberts to remain in possession. On the other hand, there is no reason why he should not be held liable for principal and interest due on his notes executed in 1907 to cover purchase-price. There is no legal reason why he should not set off against this suit by the administrator on the pnrchase-money notes the reasonable rental value of the premises for the 21 years during which the vendor and her legal representative have occupied the same, the decisions of the Georgia courts, according to my understanding of them, holding against the theory of the plaintiff that such right of recoupment or set-off is barred by the statute of limitations. statute of limitations, see Morrow v. Hanson, 9 Ga. 398 (54 Am. D. 346); Collins v. Loyd, 31 Ga. 128.

“Amount apparently due on the notes :
“Principal .............................$ 400.00
“Interest (straight) ..................... 632.00 1032.00
“Eental for 21-1/4 years................. 1320.00
“Due defendant ........................ 288.00
“Whereupon judgment is rendered in favor of the defendant, W. F. Eoberts, for the sum of $288.00, to bear interest after this date at the rate of 7% per annum, and all costs of the suit to be fixed by the clerk of this court, the judgment' being against the plaintiff Joe Eoberts, as administrator of Catherine Eoberts, to be levied of the goods and chattels, lands and tenement's of the said Catherine Eoberts in the hands of said administrator or that may hereafter come into his hands.” As to landlord and tenant, see Civil Code (1910), § 3692; Mercer v. Mercer, 12 Ga. 421; Jackson v. Mowry, 30 Ga. 143; Clark v. Green, 35 Ga. 92; Richardson v. Harvey, 37 Ga. 224; Dollar v. Roddenberry, 97 Ga. 148 (25 S. E. 410); Lathrop v. Standard Oil Co., 83 Ga. 307, 310 (9 S. E. 1041); Prichard v. Tabor, 104 Ga. 64 (2) (30 S. E. 415). As to the

Judgment affirmed.

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


text:
    19684.
    WADE v. THE STATE.
    Decided June 11, 1929.

      C. S. Baldwin Jr., for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new-trial must be complete and understandable within itself; and when so incomplete as to require the reviewing court to refer to the brief of the evidence or to some other part of the record in order to ascertain whether the. ruling complained of was error, the ground will not be considered. In the instant case the two special grounds of the motion for a new trial complain of the admission of certain evidence, but the evidence is not set forth in the grounds nor attached thereto as exhibits. It follows that the grounds are too defective to raise any question for the determination of this court.

2. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    19685.
    Phillips v. The State.
   Luke, J.

1. Where a conviction depended upon evidence of a confession and certain circumstances pointing towards the guilt of the accused, and the court charged the jury that “to warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused,” the failure of the court, in tlie . absence of a proper written request, to instruct the jury that the State depended solely upon circumstantial evidence to convict, or to charge section 1009 of the Penal Code of 1910 relative to the kinds of evidence, was not reversible error.

Decided June 11, 1929.

Sajfold, Sharpe & Saffold, for plaintiff in error.

M. H. Boyer, solicitor-general, contra.

2. The venue was sufficiently proved.

3. The evidence for the State, if credible, was sufficient to convict, and it is the province of the jury, and not of this court, to pass upon the credibility of witnesses. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloockoorbh, J., coneur.


text:
    19688.
    NOLAND et al. v. BOWEN, building inspector.
    Decided June 11, 1929.

      G. S. Pede, Paul S. Mheridge & Son, for plaintiffs in error.

      J. L. Mayson, G. S. Winn, J. G. Savage, contra.
   Bloodworth, J.

The inspector of buildings of the city of Atlanta, upon an application made by B. H. Kitchens, granted to him a permit to erect an apartment house in a district which, under the ordinances of the city, had been zoned for residential purposes. C. S. Noland and other citizens who resided in the locality of the proposed apartment house appealed to the Board of Zoning Appeals of the city. That board declined to grant the appeal. Thereupon Noland et al. petitioned the superior court of Fulton county for the writ of certiorari to review the judgment of the Board of Zoning Appeals. The judge of the superior' court to whom the petition was presented declined to sanction the writ. Noland et al. then sued out the present writ of error to review the order of the judge of the superior court.

Hnder the rulings in Smith v. Atlanta, 161 Ga. 769 (132 S. E. 66), Morrow v. Atlanta, 162 Ga. 228 (133 S. E. 345), and City of Atlanta v. Smith, 165 Ga. 146 (140 S. E. 369), the judge of the superior court did not err when he refused to sanction the petition for certiorari.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.