text:
    14923.
    Perdue et al. v. Griffin.
   Jenkins, P. J.

Plaintiff delivered Ms Buick car to the defendant dealers, with the understanding that it was to be exchanged or bartered for one of similar type. He contended that the defendants made constructive delivery of the new car in exchange for the old, and he sued in trover for the new car thus claimed to have been delivered. Whether or not, under the evidence submitted, such a delivery was made is one of the two questions in the case. The testimony on this question is set forth in the statement following this decision. The other question is whether the defendants had title to the car at the time of the alleged delivery, or whether title was in a certain bank, under an instrument held by the bank. Held:

1. “The plaintiff in trover must recover on the strength of his own title. An outstanding title in a third person may be shown by the defendant, and will defeat a recovery.” Central Bank v. Ga. Grocery Co., 120 Ga. 883, 885 (48 S. E. 325). “‘The criterion by which a deed (or bill of sale) to secure debt is distinguished from a statutory mortgage — or, as we ordinarily say, from a mortgage — is that the one passes title and the other does not; and this is determined by the apparent intention of the parties as evidenced by the writings connected with the transaction. Though the instrument purports to convey the property to the grantee, yet if it describes a debt, and there is in it a defeasance clause, i. e., a provision declaring that it shall be void or of no further effect upon the payment of the debt, it is a mortgage and not a deed’ ” or bill of sale. Dewit v. Bozeman, 17 Ga. App. 666 (2) (87 S. E. 1100). Although an instrument be entitled a “bill of sale” and contain a clause purporting to “grant, sell, and convey” certain personalty, if it provides merely that the grantee is “to have and to hold” the property as additional security “until” the debt therein described “is paid and fully satisfied,” the instrument will be construed to be a mortgage, and not a bill of sale to secure a debt, since, under the provisions of such a defeasance clause, the mere payment of the debt operates to extinguish the lien without any act of cancellation or conveyance on the part of the holder thereof. The instrument offered by the defendants for the purpose of defeating the plaintiff’s action of trover by showing title in a third person, being under the rules stated a mortgage conveying no title, was properly excluded by the court as irrelevant. Denton v. Shields, 120 Ga. 1076, 1078 (48 S. E. 423); Pitts v. Maier, 115 Ga. 281 (41 S. E. 570); Lane v. Smart, 21 Ga. App. 292 (1), 293 (94 S. E. 325); Massillon Engine Co. v. Burnet, 19 Ga. App. 487 (1) (91 S. E. 786).

2. Delivery may be actual or constructive. In the latter case, while actual possession may remain in tlie vendor, he thereafter holds not for himself, lmt as the agent or bailee of the purchaser. The question is not whether the vendor retains actual possession, but whether he has parted with his dominion over the property, so as thereafter to hold under the authority of the vendee. In the instant case the promise to the plaintiff by one of the defendants to make future delivery was not the equivalent of present constructive delivery; nor was delivery made by the statement to the plaintiff’s attorney'in which such promise was renewed and reference was made to the property as belonging to the plaintiff; since, in the absence of a writing passing title, delivery is necessary, and the defendant in refusing actual delivery did not assume to hold possession for the plaintiff, but, while promising future delivery, plainly and distinctly indicated that dominion over the property could not then be parted with, but was conditional upon a future agreement with his partner. The plaintiff having failed to prove his title in the property sued for, in that he failed to show a delivery of the property to himself, a verdict in his favor was unauthorized.

Decided April 19, 1924.

Trover; from Glynn superior court — Judge Highsmith. July 14, 1923.

With reference to tbe alleged constructive delivery George L. Griffin, the plaintiff, testified: “The cars had come in, and Mr. Perdue (defendant) had said, “’Out of two cars I am going to give you that one (pointing), because it runs a little nicer.’ At that time there were two cars in the place of business. I went over there, I don’t know how many times, but there was some reason other than the real reason developed later.” On cross-examination he said: “In our first conversation I could not understand his hesitancy about turning it over. He simply said to me, ‘Here are two cars, one runs better than the other, and I am going to give you the better car.’ He did not say to me, CI am in trouble with Mr. Morgan’ (his partner). That developed some time later when he came over to explain to me that there was some trouble that had to be thrashed out. He said it would be necessary to be a little patient, and he wanted to reassure me about the matter. At the first interview he said nothing as to the reason why he did not turn the car over to me right then. Nothing then. I went there to get my car. I did not get it.” Judge D. W. Krauss, attorney for the plaintiff, testified: “About the time stated by Mr. George Griffin he came to our office and wanted us to help him get a car from Brunswick Buiek Company, and explained the matter to me about as he has explained it here today, and I immediately went down to the place of the Brunswick Buick Company and saw Mr. Perdue, — probably I had to go a second time before I saw him, — and stated to Mr. Perdue just about in substance, ‘What about Mr. Griffin’s car, he wants his car.’ He said, ‘Judge (pointing to car), that is Mr. Griffin’s car that we brought down for him;’ and that car was just at the place where Mr. Griffin said he had it pointed out to him, on the right-hand side of the showroom as jfou go into Brunswick Buick Compaq’s place on Newcastle street. I said, ‘0. S., would you have any objection to giving us the numbers of the car, so it could be no question of identification,’ and he said, ‘None in the world.’ He looked under the hood and got the numbers and put them on this slip of paper, ‘Motor 912988, frame number 862878, model 23-35, Buick 5 passenger.’ That is all in Mr. Perdue’s handwriting. I said, ‘O. S., Mr. Griffin wants to get the car, what’s the trouble?’ He said, ‘No trouble, it is just a matter of finances between Mr. Morgan and myself, he can get the car to-morrow.’ I said, ‘We can wait until to-morrow, bfit Mr. Griffin ought to get the car.’ He said, ‘You need not be worried, Mr. Griffin will get his car.’ I went back and told Mr. Griffin to wait a day or two, I didn’t think there would be any trouble, and in a couple of days Mr. Griffin came back, and I went back and saw Mr. Perdue, and he says, ‘I am sorry, I cannot deliver you the car,’ and I says, ‘I will have to bring proceedings,’ and he said, ‘That is all right.’ The car was at the same place Mr. Griffin testified about. There was another car at the left-hand side as you go in. There were two cars in the show-room of the Brunswick Buick Company. That was the last request or demand on the Brunswick Buick Company for this car, for the delivery of this car, was on the day of the filing of the suit. I came back and told Mr. Griffin he would have to proceed. The proceedings were filed on the 20th of October, and that was the day of the last conversation I had with Mr. Perdue and request that he give Mr. Griffin the car.” On cross-examination the witness said: “I did go down there wanting to get delivery of the ear. I had to have some good reason for not getting it. I says, ‘Poll her out, I can drive it.’ I did not get it. The only reason Mr. Perdue ascribed for not delivering it was some difference between him and Mr. Morgan, — said there was some financial arrangement existing between him and Mr. Morgan. The next day I went back, and he says, ‘I will deliver it to you in a day or two/ I says, ‘What is the trouble, we are going to file proceedings to get the car/ and he says, ‘All right, go ahead/ And we went ahead.”

Judgment reversed.

Stephens and Bell, JJ., eoneur.

Bennet, Twitty & Reese, for plaintiffs in error.

Krauss & Strong, contra.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14936.
    Levy v. American Wholesale Corporation.
    Decided April 19, 1924.
   Jenkins, P. J.

1. While it is true that the confirmation of a composition, proposed by a bankrupt to his creditors, followed by a dismissal of the case, has the effect of discharging- him from all ordinary claims provable in bankruptcy (Glover Grocery Co. v. Dorne, 116 Ga. 216, 42 S. E. 347), neither such a proceeding by composition nor an actual discharge in bankruptcy has the effect of divesting a creditor’s title to property owned by him in the hands of the bankrupt. Smith v. Turner, 141 Ga. 313 (80 S. E. 993); Long v. McIntosh, 129 Ga. 660, 662 (59 S. E. 779, 16 L. R. A. (N. S.) 1043, 12 Ann. Cas. 263); Moon v. Wright, 12 Ga. App. 659 (78 S. E. 141); Birmingham Fertilizer Co. v. Cox, 10 Ga. App. 699 (73 S. E. 1090). Accordingly, the special plea, referred to in the statement of facts did not set up a valid ground of defense.

2. “In a trover suit for the recovery of property the title to which the plaintiff holds as security for a debt, the measure of damages, where plaintiff elects to take a money verdict, is either the highest proved value of the property between the date of conversion and the trial, or the value of the property at the date of conversion, with interest or hire thereon, subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security.” Benton v. Harley, 21 Ga. App. 168 (2) (94 S. E. 46). In case of a conversion of such collateral, the owner is prima facie entitled to recover its face value as the measure of his actual damages (Citizens Bank of Madison v. Shaw, 132 Ga. 771 (3), 65 S. E. 81), but the actual value of the converted property constitutes the true measure, where a different value other than the nominal value is shown. Fisher v. George S. Jones Co., 108 Ga. 490 (34 S. E. 172). In this case, the court might have seen proper to accept the opinion of the defendant as to value, but it was in no wise bound to do so.

3. The parties are not at isSue as to the fact that the defendant collected $185 from the collateral paper, and included this in certain payments made to plaintiff. If by the time the remittitur from this court is made the judgment of the court below the plaintiff will write off from its judgment the said sum of $185, the judgment of the court below will stand affirmed; otherwise the judgment is reversed. The costs of the writ of error are taxed against the defendant in error.

Judgment affirmed on condition.

Stephens and Bell, JJ., concur.

Trover; from Tift superior court — Judge Eve. July 14, 1923.

The American Wholesale Corporation brought trover for certain collateral notes of the value of $1,099.92, which the defendant had delivered to it to secure a much larger indebtedness, and which it turned over to him under a trust receipt, for collection. The amount remaining due the plaintiff at the time the suit was instituted amounted to more than the face value of the collateral sued for. The defendant pleaded, that, after he received back the notes for collection, he made payments to the plaintiff aggregating $1,050, with the expressed understanding that the payments be applied on the claim for which the plaintiff held the collateral notes sued for, and that he thus “paid to the plaintiff an amount far in excess of the value of the .notes.” The defendant alleged also that the value of the notes sued for did not exceed •$400. He set up also, as a separate and independent defense, that after the collateral notes had been received by him in trust for collection, and after the payments referred to had been made, he was adjudicated a bankrupt, and offered a composition, which was accepted in conformity with law, and that by reason of these facts the plaintiff was not entitled to recover.

The judge of the superior court (who, by consent, tried the case without a jury) found in favor of the plaintiff in the amount sued for, which represented the face value of the notes. The defendant gave his own testimony as to the value of each of the notes, and, according to the opinion of this witness, their total value when received back for collection did not exceed $365. He testified that the payments to the plaintiff, aggregating $1,050, were made in three installments of $500, $300, and $250 respectively. He did not show, however, that these sums were derived from collections made on the collateral notes sued for. • His testimony on that point was as follows: “I don’t remember and can’t swear which of the makers of the collateral notes had paid me $500 by October 4, 1921, and $300 by October 21, 1921. I don’t remember what they paid, but I think I had collected some by October, but I can’t swear that any particular one had paid. I can swear positively that before December 27, 1921, I had collected the Jody Hugheley note of $75 and the Elzie mule delivered to me for $100. I have not paid anything on the American Wholesale Corporation indebtedness since December 27, 1921.” He clid swear, however, that he had made collections on the collateral notes, as follows: S. H. Lipps, $10; Jody Hugheley, $75; and Elzie, $100; and that “I paid them every cent I collected on the notes and more.” On redirect examination he testified: “I collected the Sam Elzie and Joe Hugheley notes, and turned the money over to Mr. Hargrett,” attorney for the plaintiff; also, “I have heretofore refused to deliver them [the notes]; and now decline to do so.”

C. A. Christian, R. D. Smith, for plaintiff in error.

Fuhvood & Hargrett, contra.


text:
    14938.
    WILDER et al. v. HARDWICK, Governor.
    The provision in the rule absolute in this ease, that it is “subject to revocation, provided defendant appears and stands trial” at the next term of the court, did not render the judgment void; and even if it could be treated as an irregularity, it inured solely to the benefit of the defendant and the sureties on his bond, who stood by and accepted without objection the possible protection which it was intended to afford them. The court did not err in refusing at the next term to issue a rule nisi on the motion, made at that term, to set aside the judgment.
    Decided April 19, 1924.
    Motion to vacate judgment; from Glynn superior court — Judge Highsmith. July 3, 1923.

      A. H. Crovatt, Farr & Powell, for plaintiffs in error.

      Alvin V. Sellers, solicitor-general, contra.
   Jenkins, P. J.

Exception is taken to the refusal to issue a rule nisi on a motion to set aside a judgment. Plaintiffs in error were sureties on a criminal bond for the appearance of the defendant for trial. Upon his failure to answer to the charge on the call of the case at the May term, 1922, of Glynn superior court, the usual rule nisi was issued and the bondsmen were served. TJpon the call of the case at the following term, counsel for the defendant made a showing for continuance, based on the alleged inability of the defendant to attend the trial, on account of illness; to which a counter-showing was made by the State. Thereupon the judge entered a judgment granting the rule absolute, but providing in his order that it was “subject to revocation, provided defendant appears and stands trial” at the next succeeding term. No exception was taken to that judgment. At the next succeeding term, tbe defendant failing to appear, the judge passed an order reciting the terms of the previous rule absolute, and ordering that execution issue thereon; whereupon the sureties on the bond moved to set aside the judgment granting the rule absolute, and it is to the refusal of the judge to issue a rule nisi on this motion that exception is now taken.

1. A judgment cannot be vacated on account of grounds which could have been taken before judgment, or upon grounds which were taken and overruled. Barksdale v. Greene, 29 Ga. 418 (1); White v. Brown, 12 Ga. App. 275 (1) (77 S. E. 105).

2. The judgment upon the rule absolute is not rendered void because of the provision therein that it might be'subject to revocation at the instance of the party now complaining, provided the defendant should appear for trial at the next succeeding term of court; and while judgments are sometimes vacated upon prompt request being made, because of irregularities which are prejudicial to the objecting party (8 Michie’s Dig. 141 (s), 3 Stev. Dig. 2151-4, 2167-70, 2175), in this case, even if the proviso could be treated as an irregularity, it inured solely to the benefit of the parties now complaining, who stood by and accepted without protest the possible protection which it was intended to afford them.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15019, 15020.
    Woods v. Mercantile Bank & Trust Company; and vice versa.

   Jenkins, P. J.

Tlie testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal. Shepard v. Chappell, 29 Ga. App. 6 (2) (113 S. E. 23), and citations. If the plaintiff by his testimony proves the facts set forth by his petition, yet on cross-examination disproves his case as laid, a nonsuit will properly be granted. Evans v. Mills, 119 Ga. 448 (2), 450 (46 S. E. 674); Evans v. Schofield’s Sons Co., 120 Ga. 961 (48 S. E. 358). In the instant case the plaintiff by his own evidence has shown that the purpose of the transaction which is the basis of the action against the bank was an illegal lending of the credit of the bank as a mere accommodation to the plaintiff (First Nat. Bk. v. Monroe, 135 Ga. 614, 616, 69 S. E. 1123, 32 L. R. A. (N. S.) 550); and that the promise to answer for the debt or default of another, even if it had been otherwise valid, was not in writing. The court did not err in granting the nonsuit.

Decided April 19, 1924.

Complaint; from city court of Savannah — Judge Freeman. July 19, 1923.

Henry Wood brought suit against the Mercantile Bank & Trust Company and D. Silver. In response to a demurrer setting up misjoinder of parties, Silver was stricken from the suit. The petition in substance alleged: that the defendants were jointly and severally indebted to the plaintiff in the sum of $1,950, because the defendant bank, acting through its president, A. Bauzin, approached the plaintiff and suggested to Mm that the bank desired to make a loan to the said Silver, but that, owing to the stringency of the money market, it did not have on hand the funds with which to make the loan, and that if the plaintiff would advance the money to it, the bank would lend the money to Silver, taking his note therefor, and would turn over the note so taken to the plaintiff, the note to be for $2,000, while the plaintiff would advance only $1,950, the difference between these sums representing interest on the note; that the bank, acting by and through its president, assured the plaintiff that the said sum would be repaid on the due date of the note, and, upon such assurances, the plaintiff loaned the bank on September 24, 1920, the said sum of $1,950, and received from it a note for $2,000, signed by Silver and payable to the bank; that on maturity of the note he indorsed it for collection and deposited it with the bank for payment, but that Silver failed and refused to pay the note, and the bank also refused to pay it. By amendment a copy of the note was set forth. It was dated September 23, 1920, and signed by D. Silver, payable 60 days after date to the order of Mercantile Bank & Trust Company, for $2,000, and indorsed with the name of H. Wood.

Demurrers of the bank were overruled, and it filed exceptions pendente lite, upon which error was subsequently assigned in its cross-bill of exceptions. It filed an answer setting up, in substance, that Silver had applied to it for a loan of $2,000, which was to be evidenced by a note signed by Silver and indorsed by the plaintiff; that it declined to make the loan, but told Silver that it would see if it could get any one to buy the note for $1,950, to which Silver assented; that Silver turned over to it the note for $3,000 described in the amendment to the petition, which note was at that time indorsed by the plaintiff; that, knowing that the plaintiff had on deposit with it more than enough money to buy this note, it was suggested to the plaintiff that, since he had indorsed the note and would be liable on it in any event, he should himself purchase the note for $1,950, and he agreed to do so and gave the bank a check for $1,950, and took possession of the note for $3,000, which had already been indorsed by him, but that he asked that Silvér should not be told who had purchased the note; that the bank put to Silver’s credit the proceeds of the check, and Silver subsequently checked out of the bank the amount so credited. The answer further alleged that the bank did not borrow the money from the plaintiff, and in no way made itself liable or responsible for the payment of the note, but merely handled the matter gratuitously as an accommodation for the plaintiff and Silver.

Judgment affirmed on mam bill of exceptions; cross-bill dismissed.

Stephens and Bell, JJ., concur.

On the trial of the case the only witness was the plaintiff. His testimony was, in substance, that he turned over this money to Mr. Eauzin, the president of the bank, in order that a loan might be made to Mr. Silver; that he knew he was to get a note for $3,000, signed by Silver, and was to make $50 on the transaction; that Eauzin told him that there’ was a scarcity of money in the bank, and, as he (the plaintiff) had several thousand dollars on deposit, Eauzin said to him, “You lend the money, and I will be responsible for the money.” He further testified that Mr. Eauzin told him that if he (the plaintiff) would lend the money to Silver, he (Eauzin) would be responsible. He was asked the question, “And you knew that you were making the loan to Mr. Silver on Mr. Eauzin’s responsibility?” His answer was: “The bank and Mr. Eauzin’s responsibility. My statement is that I was to make the loan to Silver with the agreement by Mr. Eauzin that, if Silver did not pay it, the bank would be responsible for it. I understood it that way, — that he and the bank would be responsible.” In answer to a subsequent question he said that he was not to make the loan to Silver, that the bank was responsible for it entirely, and that he had nothing to do with Silver; but he further said that he was to take Silver’s note for it, and he knew that the money was to go to Silver, that the bank was to get the note and turn it over to him, and that Mr. Eauzin, in behalf of himself and the bank, guaranteed the payment of the note. On redirect examination he stated that he was in the bank talking with the president, and the president told him that Silver needed some money; that he (the plaintiff) had some money in the bank, and could let Silver have the money, and he (Rauzin) and the bank would be responsible. On recross examination he testified that the president told him that if he let the bank be responsible for the amount, he (Rauzin), as president, would see that he got the money; that the president was to get a note from Silver and hand it to him; and that the president would see that the bank paid him, if Silver did not pay it.

The court granted a nonsuit, and the plaintiff excepted.

George H. Richter, for plaintiff.

Mclntire, Walsh & Bernstein> for defendant.


text:
    15040.
    Lowery v. Rowland Company.
   Jenkins, P. J.

1. '“Where property is bought under the implied warranty that it is reasonably suited to the uses intended, an aeeeptanee by the purchaser of the property waives all defects which might have been discovered by the exercise of ordinary care and prudence before delivery. In ease of an express warranty that the property sold will be of a particular kind and quality, the purchaser has a right to rely on the warranty, and may plead partial failure of consideration growing out of defects discovered after acceptance, even though they would have become apparent upon an examination before delivery.” Moultrie Repair Co. v. Hill, 120 Ga. 730 (2) (48 S. E. 143); Pound v. Williams, 119 Ga. 904 (47 S. E. 218); Springer v. Indianapolis Brewing Co., 126 Ga. 321 (4) (55 S. E. 53); North Ga. Milling Co. v. Henderson Elevator Co., 130 Ga. 113 (60 S. E. 258, 24 L. R. A. (N. S.) 235); Mansor v. Zemurray, 22 Ga. App. 441 (96 S. E. 233); Snellgrove v. Dingelhoef, 25 Ga. App. 334 (103 S. E. 418).

2. In a suit for a balance due for specified articles sold and delivered, where the defendant sets up a plea of recoupment, by which he seeks to recover back a portion of the purchase price of other goods already paid for, on the theory that the particular items sued for and the particular previous items already paid for were furnished under an entire contract embracing an express warranty, and where it appears that, after the purchaser had acquired full knowledge of the defects complained of, he nevertheless proceeded specifically to pay off and discharge in full every item of the particular indebtedness now in dispute, despite the alleged previous promise of the vendor to adjust the price of such articles in proportion as any defects might exist therein, such acts and conduct on the part of the purchaser amount to a waiver of the alleged defects, such as would defeat his plea of recoupment. Tuttle v. Stovall, 134 Ga. 325 (67 S. E. 806); Madison Supply Co. v. Brown Carriage Co., 137 Ga. 195 (73 S. E. 344). The judge did not err in directing a verdict against the 'defendant on his plea of recoupment and in favor of the plaintiff for the amount of the particular subsequent items for which defendant admitted liability.

Decided April 19, 1924.

Complaint; from Murray superior court — Judge Tarver. August 18, 1923.

C. N. King, Maddox, McCamy & McFarland, for plaintiff in error. B. Noel Steed, W. K. & Gordon Mann, contra.

Judgment affirmed.

Stephen8 and Bell, JJ., concur.


text:
    15046.
    King v. Lewis.
   Jenkins, P. J.

Lewis sued King in a justice’s court, the cause of action as attached to the summons being, “For a reward of John Garling for $25.00.” A verdict and judgment in favor of the plaintiff for the amount claimed was complained of in the defendant’s petition for certiorari, upon the grounds (so far as now argued or insisted upon), that the verdict was contrary to law and the evidence, since the amount claimed as a reward for the return of an escaped convict was not a personal liability of the defendant, as he was the county warden of convicts and at the time of the alleged offer to the plaintiff only the agent of the county commissioners; that the plaintiff had made an election as to the party against whom he might proceed, by presenting his claim to the county commissioners; and that the plaintiff’s cause of action was not upon a contract, but in tort, of which the justice’s court did not have jurisdiction, for the reason that it was based partly upon the act of the defendant in going before the county commissioners and recommending that they should not pay the reward to the plaintiff. The certiorari was overruled. Held:

1. Looking to the summons, it appears that the plaintiff’s action did not sound in tort, but rested upon an alleged promise by the defendant to pay personally a specified amount to the plaintiff, if he should return to the defendant a certain convict. The evidence is such as to likewise sustain this theory. While there was evidence that the plaintiff knew that the defendant was county warden at the time he made the offer, there is nothing to indicate that the defendant assumed to act as the authorized agent of the county authorities, while the evidence for the plaintiff was that the defendant told him, “if you will return him to the convict camp, I will pay you $25.” Agents, even though duly authorized to act for their principals, may nevertheless “render themselves individually liable.” Civil Code (1910), § 3613; Willingham v. Glover, 28 Ga. App. 394 (3) (111 S. E. 206).

2. Even if the plaintiff had a right of action on account of the alleged conduct of the defendant before the county commissioners, he had a right to waive such a tort and to rely on tlie contract. Williams v. George, 104 Ga. 599 (3), 602 (30 S. E. 751). The fact that the superior-court judge, in affirming the judgment under the evidence and on this theory, may have also referred to the alleged tort as an additional reason why the defendant “had subjected himself to liability,” would not afford a ground of reversal.

Decided April 19, 1924.

Certiorari; from Grady superior court — Judge Custer. September 6, 1923.

M. L. Ledford, Jesse Gainey, for plaintiff in error.

O. F. Richter, contra.

3. The fact that the plaintiff, before filing suit against the defendant, may have gone before the county commissioners to “see about” the payment of the reward, for the reason that they “usually paid the rewards for returned convicts,” does not constitute such election as would thereafter bar a suit against the defendant on his alleged contract. Board of Education v. Day, 128 Ga. 156, 166 (57 S. E. 359); Garrard v. Moody, 48 Ga. 97 (2); note in 21 L. R. A. (N. S.) 786.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15056.
    LINGO v. BLAIR.
    The oral contract between the broker and the owner of the real estate sold, upon which this suit for commissions was based, was not within the statute of frauds; and the court did not err in overruling the demurrer.
    Decided April 19, 1924.
    Certiorari; from Fulton superior court — Judge Bell. September 20, 1923.

      Jackson & Moore, T. L. Lanford, for plaintiff in error.

      Frank Garter, contra.
   Jenkins, P. J.

Blair sued Lingo for a real-estate broker’s commission, which he alleged the defendant owner had orally agreed to pay in the event the plaintiff should procure a purchaser on certain terms for described property. The judge of the municipal court of Atlanta found in favor of the plaintiff, upon the disputed issue as to whether the defendant had agreed to pay the commission sued for. The plaintiff showed that he had procured a purchaser, who agreed in writing to buy the premises on the terms listed, and who was accepted by the owner, and that by consent of all parties the deed was made by the defendant to another named person.

1. “A contract for the performance of services such as are above set forth does not come within the provisions of the statute of frauds (Civil Code (1910), § 3222 (4)), as constituting a ‘contract for the sale of lands, or any interest in, or concerning them;’ but even if it did, the rule would not be applicable ‘where there has been performance on one side, accepted by the other in performance of the-contract.’ Civil Code (1910), § 3223 (2).” Garrett v. Wall, 29 Ga. App. 642 (1) (116 S. E. 331). The judge did not err in overruling the demurrer to the plaintiff’s petition.

2. The evidence, while in dispute upon the question whether the defendant had agreed to pay the commission, authorized the > judgment rendered in the municipal court, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15061.
    BYRD et al. v. FREEMAN.
    An agent may be sued in trovei- because of a conversion made by him for his principal; and they may be joined as defendants.
    A verdict for the plaintiff was authorized by the evidence, but, according to definite and specific testimony of the plaintiff’s witness as to value, the amount of the verdict is excessive, though a general estimate of value by the same witness was the amount of the verdict. Direction is given as to writing off the excess.
    Decided April 19, 1924.
    Trover; from city court of Statesboro — Judge Proctor. September 1, 1923.

      Hinton Booth, Francis B. Hunter, for plaintiffs in error.

      Beal & Benfroe, Charles Pigue, contra.
   Jenkins, P. J.

This was a suit in trover to recover seven bales of cotton, which the plaintiff claims were illegally converted, and which the defendants claim were purchased of the plaintiff through one of the defendants, acting as agent for the other, and applied on a debt to the latter owing by the plaintiff.

1. The testimony upon the question of sale or conversion was in conflict, but the evidence was sufficient to authorize a verdict in plaintiff’s favor upon that issue.

2. An agent may be sued in trover on account of an illegal conversion of property made in behalf of the principal. Miller v. Wilson, 98 Ga. 567 (1) (25 S. E. 578, 58 Am. St. Rep. 319). And while, in a suit on contract, the principal and his agent cannot be joined in the same action, the rule is different in an action sounding in tort. Commercial City Bank v. Mitchell, 25 Ga. App. 837 (105 S. E. 57). The evidence for the plaintiff was such as authorized a finding that both of the defendants were parties to the alleged conversion. The charge of the court upon the subject of agency was more favorable to the alleged agent than he was entitled to, under the above statement of the law.

3. While there was testimony by a witness for the plaintiff that the value of the cotton sued for was in the amount of the ver.dict now excepted to, the testimony referred to was in general terms only, and the evidence of this witness plainly indicated that the value of the number of pounds of cotton sued for could not amount to more than $610.42 at the price sworn to by-him. This definite and specific testimony should necessarily outweigh his mere general estimate of value; and direction is given that, should* the plaintiff write off from the judgment the amount of the recovery in excess of $610.42 by the time the remittitur from this court is made the judgment of the court below, the judgment of that court'shall stand affirmed; otherwise the judgment is reversed. The costs of the'writ of error are taxed against the defendant in error.

Judgment affirmed on condition.

Stephens and Bell, JJ., concur.


text:
    15069.
    Consolidated Company v. Citizens Bank.
   Jenkins, P. J.

1. “To create a pledge or pawn, it is necessary tliat the property pledged shall be delivered into the possession of the pledgee, but delivery may be either actual or constructive; and when warehouse receipts for cotton are delivered in pledge, the effect of such delivery is to deliver the cotton itself. Where a warehouse receipt, acknowledging the receipt from a designated person of so much .cotton ‘subject to the presentation of this receipt only,’ is delivered as collateral security, this is sufficient, though such receipt be not indorsed, to transfer the title and possession of the property represented. This is undoubtedly true if such be the intention of the parties. When such a receipt is delivered to another person as collateral security, upon such delivery the warehouseman, though he has no notice of the transfer, becomes the bailee of the person receiving such receipt as collateral security. . . The pledgee of a warehouse receipt given as collateral to secure the payment of a debt for money loaned to the pledgor has a special property in tlic cotton represented by such warehouse receipt, and can maintain an action of trover against the warehouseman to recover the cotton represented in the receipt, when on demand the latter fails or refuses to deliver the cotton for which such receipt was issued.” Citizens Banking Co. v. Peacock, 103 Ga. 171 (2-4, 6) (29 S. E. 752).

2. While delivery in pledge of such a warehouse receipt is constructive delivery of the cotton itself, and while in such a case the warehouseman will not be heard to say that the actual owner of the receipt is not the owner of the cotton which it represents, still, since the delivery of such a receipt amounts to no more than the delivery of the property which it represents, if a legal title to the receipt is not acquired by the pledgee, he acquires no better title to the property for which it stands, and stands in no better position, than if the pledgor had deposited another’s cotton instead of another’s warehouse receipt for cotton. Booze v. Neal, 6 Ga. App. 279 (64 S. E. 1104); Sparta v. Butts, 4 Ga. App. 308 (61 S. E. 298); Lightsey v. Lee, 8 Ga. App. 762, 764 (70 S. E. 179); Elder v. First Nat. Bank of Jefferson, 29 Ga. App. 455 (2) (115 S. E. 922).

3. In the instant case it was error to direct a verdict against the warehouse - company in favor of the plaintiff pledgee bank, there being undisputed evidence going to show that at the time the warehouse receipts were pledged to the plaintiff the cotton which they represented had already been sold by the pledgor and delivered by the defendant warehouse company to the purchaser, and there being additional evidence for the defendant to the effect that the receipts themselves had also been surrendered to the defendant warehouse at the time of said sale. This is true for the reason that the subsequent pledge of the receipts to the bank under such circumstances would not divest the title of the warehouse company as the true owner of the receipts or of the property which they represented, “since the general rule is that every man dealing with another in reference to property in his possession must take care,— ‘caveat emptor,’ — as ‘the property may be stolen, or borrowed, or pledged, or in the possession of a bailee for some specific purpose, and if so, the party in possession can convey no better or further right than he has himself.’ First Nat. Bank of Macon v. Nelson, 38 Ga. 391, 398 (1); Savannah Bank & Trust Co. v. McQueen, 149 Ga. 302 (1). The ease cannot be taken from under this general rule by applying the law governing the pledge of promissory notes (Civil Code of 1910, § 3529) ” (Farmers & Merchants Bank v. Hamilton, 30 Ga. App. 194 (2), 117 S. E. 287), since “a warehouse receipt is a mere symbol of property. It is the shadow of an absent substance; and when it has passed from one hand to another, it is only symbolic of the property it represents; and if it represents no property, its holder has nothing but a mere piece of paper. That is the general character and effect of a warehouse receipt, just as of a bill of lading.” Planters Rice-Mill Co. v. Merchants Nat. Bank of Savannah, 78 Ga. 574, 582 (3 S. E. 327). Nor does the act of 1887 (codified in section 3528 of the Code of 1910), which deals alike with the pledge of warehouse receipts and bills of lading, operate to change the rule, since, subsequently to the act of 1887, it was ruled in Commercial Bank v. Armsby Co., 120 Ga. 74, 76 (47 S. E. 589, 65 L. R. A. 443), that as a general rule, the transferee of a bill of lading can obtain no better title to the goods which it covers than that which was in the person by whom it was transferred. Indeed, it is a self-evident proposition that no man can convey that which he does not possess. See also Raleigh & Gaston R. Co. v. Lowe, 101 Ga. 320, which was a case dealing with a warehouse receipt. Thus, proof that the pledgor to the bank did not have title to the receipts or the property which they represented at the time the bank required them would be sufficient to defeat a recovery by the plaintiff against the true owner of the receipts, unle’ss it be that the defendant warehouse, by its negligence in failing to take up the receipts upon the pledgor’s previous sale and shipment of the cotton, had committed such a fraud upon the public and the plaintiff, by placing it in the power of the pledgor to defraud the bank, as would render it liable for that reason. Whether the defendant was guilty of negligence of such character as would constitute the proximate cause of the injury to the plaintiff would ordinarily constitute a question of fact for determination by the jury (see, in this connection, Commercial Bank v. Armsby Co., supra; Atlanta Nat. Bank v. Bateman, 21 Ga. App. 624 (4), 94 S. E. 853), and for this reason the court should have allowed the defendant to show, if it could, that the receipts, after being surrendered to it, were abstracted from its office flies.

Decided April 19, 1924.

Trover; from city court of Carrollton — Judge Hood. September 11, 1923.

8. J. Boylcin, Boylcin & Boylcin, for plaintiff in error.

Smith & Millican, contra.

Judgment reversed,.

Stephens and Bell, JJ., concur.


text:
    15088.
    HOLSTON BOX AND LUMBER COMPANY v. HOLCOMB.
    The amendment to the affidavit for foreclosure of a laborer’s lien, substituting a different name as the name of the person who acted as the defendant’s agent in making the contract under which the labor was alleged to have been performed, was properly allowed.
    The exclusion of testimony as to a third person’s indebtedness to the defendant was not error.
    The evidence authorized the verdict for the plaintiff.
    Decided April 19, 1924.
    Appeal; from Murray superior court — Judge Tarver. August 13, 1923.

      B. N. Steed, W. E. & W. G. Mann, for plaintiff in error.

      Maddox, McOamy & McFarland, contra.
   Jenkins, P. J.

This case arose upon the foreclosure of a laborer’s lien in a justice’s court, and was appealed to the superior court. No motion for a new trial was made, but exception was taken to allowing the plaintiff to amend his affidavit by striking the name of the person who in the original affidavit was stated to have been the agent acting for the defendant company in making the contract for the service, and substituting in lieu thereof the name of another person as such agent, acting for the defendant company. Exception is also taken to the refusal to award a non-suit, and to the exclusion of testimony, rejected as irrelevant, which was offered to show that a third person was still indebted to the defendant company.

1. Affidavits for the foreclosure of liens are amendable to the same extent as ordinary declarations. Civil Code (1910), § 5706. The amendment allowed in the instant case, which was offered merely to give correctly the name of the agent who acted for the same defendant in making the contract for services, did not have the effect of making a new and distinct party defendant, Benjamin v. Elliott, 22 Ga. App. 701 (97 S. E. 104).

2. The evidence for the affiant authorized a finding that the defendant was due him the amount claimed for work done in hauling lumber. The testimony excluded was irrelevant.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15096.
    BUGG, receiver, v. COOK.
    There being positive testimony, admitted without objection and uncontradicted, that the railroad-crossing on which the collision in_ question occurred was on a public highway, the verdict in favor of the plaintiff will not be set aside because of failure to prove the manner of the establishment of the highway as a public highway.
    T'hq court did not err in refusing to give the requested instructions to the jury as to what those in charge of a railroad-train approaching a crossing are not required to do on observing a vehicle approaching the railroad-track.
    The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Decided April 19, 1924.
    Action'for damages; from Glynn superior court — Judge High-smith. September 25, 1923.
    This was the suit of a minor by her next friend for personal injuries from a collision at a public-road crossing, where an electric-car of the Atlanta, Birmingham & Atlantic Railway Company, operated by the defendant as receiver, struck a motor-truck occupied by the plaintiff and driven by her father. The petition alleges negligence on the part of the defendant in failing to comply with the “blow-post law.” The evidence is in direct conflict as to whether the whistle of the railway-car was blown as required by law on approach to the crossing. The evidence is undisputed that, shortly before reaching the crossing, the driver of the truck, which was heavily loaded, slowed down its speed, the operator of the railway-car testifying that he supposed this was done in response to his signals, and supposed that the truck would stop before reaching the track. The driver of the truck testified that in approaching the crossing he was compelled to put the car in low gear, in order to pull through the sand near the track; that on approaching to within about fifteen feet of the crossing he looked both ways for the approach of trains, and, observing none, proceeded to cross; that while the truck was on the track two blasts of the whistle were sounded for the first time, and that, despite his efforts to get across the track, the truck was struck by the car, which on account of its high rate of speed traveled eighteen rail lengths down the track before it could be brought to a stop. The jury found for the plaintiff. In the defendant’s motion for a new trial error is assigned upon the refusal of the court to charge the jury as follows: “The servants, agents, or employees of a railway company, in charge of the operation of one of its trains, in approaching a road crossing, are not required by the law to stop the train merely upon observing a vehicle approaching the railroad-track, but such servants and employees may lawfully assume that such vehicle will stop before it reaches a place of danger, until the contrary appears; and such servants and employees are not required to stop the train unless the circumstances are such as to indicate to an ordinarily prudent person that such vehicle is in, or about to get into, a place of danger.” Error is assigned also upon the refusal to give requested instructions of similar import but which were more specific as to the particular facts involved.

      Conyers & Wilcox, for plaintiff in error.

      Isaac & Isaac, J. T. Colson, contra.
   Jenkins, P. J.

(After stating the facts.) 1.' The evidence, though in conflict, was sufficient to authorize the verdict. There was positive evidence that the crossing was on a public road. Defendant did not rebut this testimony' by- evidence to the contrary. While one of the burdens resting upon the plaintiff in a case of this sort is to prove that the crossing was on a public highway, yet there being positive evidence to this effect which was uncontroverted by other testimony, and to the introduction of which no objection was taken, the verdict will not be set aside because of failure to prove the manner and method of the establishment of the public highway as such. Hutchinson v. State, 8 Ga. App. 684 (1) (70 S. E. 352).

2. Under the present “blow-post law” (Ga. L. 1918, p. 212, 8 Park’s Code Supp. (1922), § 2677 et seq.) it is the duty of railway companies to establish blow-posts for public crossings as therein provided, and when the engineer in charge of a train reaches such a blow-post with his locomotive he is required (except in incorporated towns and cities) to blow “two long and two short blasts at intervals of five seconds between each blast; said blasts to be loud and distinct. In addition thereto, after reaching the blow-post furthest removed from said crossing, and while approaching said crossing, he shall keep and maintain a constant and vigilant lookout along the track ahead of said engine, and shall otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which may be on such crossing, or upon the line of said railway at any point within fifty feet of such crossing.” A failure to observe the specific duty imposed with reference to giving the signals indicated amounts to negligence per se (Louisville & N. R. Co. v. Faust, 30 Ga. App. 310, 117 S. E. 761 (2)); besides which the engineer is required to exercise “due care” in order to avoid accident in approaching the crossing. While the standard of diligence required of the railway company is thus invariable (Central R. Co. v. Ryles, 84 Ga. 420, 11 S. E. 499; Cen. of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110 (6), 103 S. E. 259), what constitutes due care or a lack of it in any particular case, except as relating to acts constituting negligence per se, lies peculiarly within the province of the jury, for them to determine in the light of all the surrounding facts and circumstances. Larkin v. Andrews, 27 Ga. App. 685 (1) (109 S. E. 518). It is even true that “language used by the Supreme Court in deciding a case before it, especially where used in discussing the facts of such case, is often inappropriate for use by the judge of a trial court in charging the jury.” Atlanta R. Co. v. Hudson, 123 Ga. 108 (2) (51 S. E. 29); Ga. Ry. & Power Co. v. Shaw, 25 Ga. App. 146 (1 a) (102 S. E. 904). Moreover, since in the instant case, the evidence for the plaintiff was to the effect that the defendant had failed to give the signals required by law, to have given the requested instructions without qualification would have had the effect of assuming, in the face of the plaintiff’s evidence to the contrary, that the engineer had not violated his own duty to sound the signals, since one who is “grossly negligent himself has no right to count on due diligence by others.” See Davis v. Whitcomb, 30 Ga. App. 499 (118 S. E. 488 (8, 9)).

Judgment affirmed.

Stephens, J., concurs. Bell, J., disqualified.


text:
    15097.
    COX v. BURT.
    The action was properly dismissed on demurrer, on the ground that there was a misjoinder of causes of action, in attempting to recover for both a breach of contract and a tort.
    Decided April 19, 1924.
    Action for damages; from city court of Carrollton — Judge Hood. September 29, 1923.
    The action was for $1,206.35 damages. The amended petition, in substance, alleged: that plaintiff contracted to work for defendant as a share-cropper on halves; that plaintiff “has a large family and was able to operate a two-horse farm without the labor” of himself, “which was known and discussed with said defendant, and said defendant further contracted and agreed that he would hire your petitioner during all of the time that he was not needed in his own crop, and pay him cash therefor;” that from March 26, 1923, “he was not needed in his own crop, . . had sufficient force to cultivate said lands rented, and did properly cultivate them, and said defendant failed and refused to allow your petitioner to work for him as he had contracted and agreed to do;” that on said date defendant placed an advertisement in a weekly newspaper of the county, warning all persons not to hire or harbor plaintiff “under penalty of the law;” that plaintiff was damaged by such wilful and malicious injury to his credit and reputation in the community in the sum of $1,000; that from March 26, 1923, to August 14, 1923, plaintiff’s “services were reasonably worth the sum of $206.35, and that by failure of said defendant to carry out his part of said contract and allow your petitioner to work, and his advertisement about your petitioner, preventing other people from employing him, has injured and damaged him in the sum of $206.35 as aforesaid, which he sues for as actual damage;” that plaintiff applied for work to two named persons “and other people, and they stated to him that they would give him work but for said advertisement, that they ■needed a hand, but [were] afraid to employ him by reason-thereof,” that plaintiff “did all in his power to obtain work and lessen said damage, and that he was unable to do so, and that the breach of all the contract aforesaid was done by the said defendant without fault upon his part;” that “defendant’s failure to carry out his part of said contract and furnish him money as he had contracted and agreed to do has greatly humiliated and embarrassed your petitioner, . . prevented your petitioner from earning a livelihood, and all of said acts of said defendant [were] done without cause and justification, and wilfully and maliciously, for the purpose of injuring and damaging your petitioner;” and that plaintiff “carried out his part-of said contract to the letter, and the breach of said contract upon the part of said defendant and all of his wilful acts and conduct [were] done without cause and justification.” Defendant demurred to the petition, on the grounds: that it set forth no cause of action; that there was a misjoinder of causes of action in attempting to recover both for a breach of contract and for a tort; and that the allegations with reference to a contract, under which defendant was to hire plaintiff, were too vague and indefinite, did not set up plaintiff’s wages per day or month, or what kind of work the defendant agreed to give. The court sustained this demurrer.

      Smith & Taylor, for plaintiff.

      Smith & Millican, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) The intention of the plaintiff, as manifested by the expressions quoted from the petition, in the statement of facts, seems clearly to indicate that as to the $206.35 item he based his right of recovery upon the defendant’s breach of the alleged contract set forth therein; and since no amendment was offered, striking or modifying either of the two items of damages sought to be recovered, the petition was properly dismissed as embracing a misjoinder of actions. Wolff v. So. Ry. Co., 130 Ga. 251 (60 S. E. 569); Hartley v. Folds, 24 Ga. App. 456 (101 S. E. 130).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15100.
    Godard v. Peavy.
    Decided April 19, 1924.
    Action for damages; from Eulton superior court — Judge E. D. Tbomas. October 9, 1923.
    The plaintiff, as a tenant, sued the defendant as landlord, on account of injuries received from being thrown from certain back steps, one of which, it is alleged, slipped, turned, and threw the plaintiff to the ground. The petition alleges that the defects causing the fall were latent, and that the plaintiff did not know of their existence and was under no duty to inspect the premises. The averments as to the defects are as follows: “that the stringer under said back-door steps was not of standard thickness, was only one and one eighth inches in thickness, when it-should have been two inches, and was too thin and too light to hold the nails driven through the tread, or doorstep proper, to hold it in place on this particular occasion, when petitioner stepped on the second step from the top;” and that, “in addition to being too thin and light, said stringer, which was covered with a tread and rise, was decayed to such an extent that it would not hold nails, which fact could have been discovered only by inspection.” The allegations as to the plaintiff’s express or implied knowledge of the defects are as follows: that plaintiff was “injured because of latent defects in said steps, which were unknown to petitioner, but were known to defendant or by the exercise of ordinary care could have been known to defendant;” that “when defendant rented said premises for a residence, she necessarily warranted that the back door steps and all other parts thereof were reasonably safe for that purpose, and was under the legal duty of inspecting the same to ascertain if there were latent defects therein.” The paragraph as to alleged notice to the landlord is as follows: “that petitioner and other tenants in said residence had requested the defendant to repair the roof of the back porch over said steps, which was leaking badly and was needing repair, or rather another roof.” In the petition there is nothing to indicate that the landlord built or authorized the building of the house or the steps. The defendant demurred, on the grounds: that the petition failed to set out a cause of action; that the allegations showed that “the alleged defects were known to the plaintiff and unknown to the defendant;” and that “the plaintiff by the use of ordinary care could have avoided the injury;” and demurred to particular paragraphs, as failing to allege that the plaintiff was a tenant of the defendant, as being argumentative and untrue as matter of law, and as being irrelevant and immaterial. The trial court overruled the demurrer.
   Jenkins, P. J.

1. There is no duty of inspection resting upon the landlord to discover defects arising subsequent to the time of the lease, and his duty to repair arises only on notice by the tenant of the existence of such defects, or by virtue of actual knowledge by the landlord of their existence. A landlord is not liable for injuries to his tenant arising from patent defects existing at the time of the lease, of which the tenant knew or had equal means of knowing. Nor is the landlord liable for injuries to the tenant on account of latent defects existing at the time of the lease, which he might have discovered by an inspection not required of him by law, unless he actually knew, or by the exercise of ordinary care might otherwise have known, of their existence. McGee v. Hardacre, 27 Ga. App. 106 (107 S. E. 563), and cit. The liability of the landlord for injuries occasioned by defects in construction “exists only in eases where the structure is built by him in person or under his supervision or direction.” Ross v. Jackson, 123 Ga. 657, 659 (51 S. E. 578); Adams v. Klasing, 20 Ga. App. 203 (3) (92 S. E. 960).

2. Although notice of a defect, given by the tenant to the landlord, charges the landlord with notice of any and all other defects such as might reasonably have been discovered by a compliance with such a request for repairs (Stack v. Harris, 111 Ga. 149, 36 S. E. 615), notice of a separate and independent patent defect, in no way connected with the latent defect which is alleged to have occasioned the injury, cannot be taken as constructive notice of the latter or as devolving upon the landlord any duty of inspection. McGee v. Hardacre, 27 Ga. App. 106 (3) (107 S. E. 563).

3. In the instant ease the defects complained of are alleged to have been latent; the petition fails to show any notice of their existence such as would charge the landlord with the duty to inspect or repair; and since the petition entirely fails to indicate that the structure or steps, from which the injury occurred, were built by the landlord or under his authority or control, the allegation relative to the alleged defective construction fails to charge the defendant with negligence. The petition as it stands, thus failing to set forth a cause of action, should have been dismissed on the defendant’s demurrer.

Judgment reversed.

Stephens and Bell, JJ., concur.

Joseph W. Humphries, Bell & Bilis, for plaintiff in error.

Hill & Adams, contra.


author: Stephens, J.

text:
    15132.
    COWART v. BRIGMAN MOTORS CO.
    A judgment rendered in a trover suit brought by a seller of personalty against the purchaser, to recover the property sold, upon the title retained by the seller in the contract of sale, is res judicata as to the right of the purchaser to an accounting from the seller for the payments made by the purchaser upon the purchase-money in excess of the rental value of the property.
    Decided April 19, 1924.
    Certiorari; from Fulton superior court — Judge Bell. September 35, 1933.

      Leon M. Shinoff, Noah J. Stone, for plaintiff.

      Neal G. Goss, A. B. Wilson,_ for defendant.
   Stephens, J.

A seller of personal property who has reserved title in himself by a conditional bill of sale can, upon a rescission of the contract of sale and accounting to the purchaser for any excess of the purchase-money received over the rental value of the property, recover the property in trover from the purchaser. Hays v. Jordan, 85 Ga. 741 (11 S. E. 833, 9 L. R. A. 373); Scott v. Glover, 7 Ga. App. 182 (66 S. E. 380). The right of the purchaser to have such an accounting is a condition precedent to the seller’s right to recover in trover, and the rendition of a judgment in the trover suit brought by the seller against the purchaser necessarily amounted to an adjudication of the purchaser’s right to such an accounting. Civil Code (1910), §§4335, 4484. It follows, therefore, that a suit afterwards brought by the purchaser against the seller, to recover such excess in payments made by the purchaser to the seller over the rental value of the property, was properly dismissed on demurrer, where it appeared from the petition that the seller had in a former suit against the purchaser asserted the title retained by him against the purchaser in a conditional bill of sale, and had recovered the property in trover.

The superior-court judge therefore properly overruled the petition for certiorari, brought by the plaintiff in the municipal court, excepting to the judgment of the judge of the municipal court sustaining the demurrer to the petition.

Judgment affirmed.

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


text:
    15105.
    AVERETT et al., executors, v. SEABOARD AIR-LINE RAILWAY CO.
    Since a bill of lading signed by each of the parties to the shipment is expressly made the basis of the action against the carrier, and since such an instrument is a simple contract in writing, within the meaning of the provision of the code that “all actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable” (Civil Code of 1910, § 4361), it was error to dismiss the petition on the theory that the suit was barred because not brought in four years after the right of action accrued.
    Decided April 19, 1924.
    Action for damages; from Stewart superior court — Judge Little-john. September 29, 1923.
    Certiorari was granted by the Supreme Court.

      Strozier & Beaver, for plaintiffs.

      W. W. Dykes, G. Y. Harrell, for defendant.
   Jenkins, P. J.

This is a suit against a railway company for damages on account of its alleged failure to properly handle a car of peaches. The action is expressly based upon the contract of shipment as evidenced by the bill of lading as signed by both the shipper and the carrier.. The suit was brought more than four years from the date of the alleged injury, but within six years from the date of the contract of shipment. The petition was dismissed on general demurrer, as showing on its face that it was barred by the statute. This presents the only question for determination.

“A bill of lading issued by a common carrier is a ‘contract in writing’ within the meaning of section 4361 of the Civil Code, which provides that ‘all actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable.’ ” Seaboard Air-Line Ry. v. Luke, 19 Ga. App. 100 (90 S. E. 1041). It is not considered that the ruling just quoted is in conflict with the ruling of this court in Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Malsby Co., 22 Ga. App. 595 (96 S. E. 710), although counsel for the plaintiffs in error so concede in their briefs. The ruling in the Malsby case was as follows: “While a bill of lading issued by a common carrier is a ‘contract in writing’ within the meaning of section 4361 of the Civil Code (1910), and as such is binding not only upon the carrier and the shipper, but upon the consignee as well, when the latter ratifies its provisions by taking possession of the goods shipped thereunder (Seaboard Air-Line Ry. v. Luke, 19 Ga. App. 100, 90 S. E. 1041), still, where an action by a carrier against a consignee for freight, storage, and demurrage is shown to have been commenced more than four years after the refusal of the shipment by the consignee, the suit is barred under the provisions of section 4363 of the Civil Code.” In the Malsby case, it thus appears, the suit was not against a party “to the bill of lading at all, but against the consignee, who had refused to accept the goods. The suit in that case, therefore, could not upon any theory have been predicated upon the bill of lading, and accordingly the period of limitation was necessarily limited to four years. The ruling in the instant case is in accord with the decisions of the Supreme Court in numerous cases where it has been expressly recognized that, where the contract forming the basis of the action is in writing, the provisions of code-section 4361, providing that “all actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable,” are applicable. Nor, under these decisions, does it matter whether the contract in writing fixed the amount of liability or not. See Roebling v. Southern Power Co., 145 Ga. 761, 763 (89 S. E. 1075); Atlanta, Knoxville &c. Ry. Co. v. McKinney, 124 Ga. 929, 930 (53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. Rep. 215); Raleigh R. Co. v. Pullman Co., 122 Ga. 700 (50 S. E. 1008); Hill v. Hackett, 80 Ga. 53, 54 (4 S. E. 856); In Southern Express Co. v. Sinclair, 135 Ga. 155 (68 S. E. 1113), while the suit sounds on contract, it could not have been predicated on the bill of lading or receipt, unsigned by the shipper, but was based only upon the contractual obligation of the defendant as a common carrier as implied by law, since the record in that case shows that the petition expressly repudiates the bill of lading as the contract of shipment in the following averment: that the shipper “when she received, as aforesaid, the express receipt marked Exhibit A/ took this receipt merely as a receipt from the Southern Express Company that the aforesaid trunk had been delivered to them; that she did not know, nor was she apprised of, the stipulations limiting the liability of the Southern Express Company contained in said receipt; nor was she ever advised of the limitations of liability in the express receipt until some time subsequent to the shipment; nor did she herself ever consent to the limitations of liability, either in writing or by parol contract.” The record in that case discloses also that the plaintiff caused a special plea of the defendant to be stricken on demurrer, on the theory thus maintained by him that the “action is a suit based on defendant’s liability as a common cárrier.”

In the instant case, since the bill of lading as signed by each of the parties to the shipment is expressly made'the basis of the action, and since such an instrument is a simple contract in writing within the meaning of section 4361 of the Civil Code (1910), it was error to dismiss the petition on the theory that the suit was barred by the statute.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15134.
    BRANCH v. FISHER, LOWREY & FISHER.
    Whore the holders of a purchase-money note retaining title to personal property sued out bail process in trover for the property, and it was seized thereunder, and, not being replevied, was sold by the sheriff under an order of court, as being perishable (Civil Code of 1910, § 5153), the trover proceeding and its result constituted a rescission of the contract so far as the purchase price of the property was concerned, and the plaintiffs were not entitled to recover more than the proceeds of the sale “together with hire or interest from the date of conversion to the date of seizure.” The court erred in directing a verdict for the amount of the note and interest, less the net amount received from the sheriff’s ' sale.
    Decided April 19, 1924.
    Trover; from city court of Soperton — Judge Moye presiding. October 2, 1923.

      G. B. Davis, D. B. Jaclcson, for plaintiffs in error.

      N. L. Gillis Jr., Safold & Stallings, contra.
   Jenkins, P. J.

This action iii trover for the recovery of a' mule under a retention-of-title note was tried on the following agreed statement of facts: “that said defendants signed and executed the note; that they were in possession of the property therein described at the time the same was seized and taken possession of by M. B. Ware, sheriff of Treutlen county, Georgia, under this bail-trover proceeding; that neither plaintiffs nor defendants gave bond or replevied said property; that the sheriff applied for and obtained an order to sell said property as perishable property as provided by law; that, after obtaining this order to sell, the property was advertised and sold by the sheriff at and for the sum of $80, at which sale said property was purchased by the plaintiffs, . . and the proceeds of such sale were applied to the indebtedness represented by said note, and that such sale was had prior to this trial, and such sale was had for the reason that neither the plaintiff nor defendants gave bond for or replevied said property.” Exception is taken to the court’s direction of a verdict for $156 principal and $10.IT interest, which was “the full amount of said note and interest thereon, less the net amount received by plaintiffs from the sale of said property, as shown by agreed statement of facts,” upon the ground that under the agreed facts plaintiffs were entitled only to a money verdict “for the amount of the proceeds of the sale of the property together with hire from the date of conversion to the date of seizure.” “The trover proceedings and their result constituted a rescission” of the retention-of-title contract “so far as the purchase price of the property was concerned.” Glisson v. Heggie, 105 Ga. 30, 33 (31 S. E. 118). “Where property has been seized by a sheriff under bail process, and, not having been replevied, has been sold by the officer under section 5153 of the Civil Code (1910) as being perishable or expensive to keep, . . the provisions of the . . statute are intended both to limit the plaintiff to a ‘money verdict for the amount of the proceeds of such sale, together with hire or interest from the date of conversion to the date of seizure,’ and to fix by such amount of proceeds the maximum recovery for the value of the property, which, under the general rule in trover actions, is ‘the highest proved value of the property at any time between the date of the conversion and the trial, or its value at the date of the conversion with interest from that date,’ ” with the further limitation that the recovery shall in no case exceed the unpaid principal and interest on the retention note. Smith v. Commercial Credit Co., 28 Ga. App. 403 (2) (111 S. E. 821). The proceeds of the sheriff’s sale, under the agreed facts, amounting to only $80, it was error, therefore, to direct a verdict for a sum in excess of that amount “together with hire or interest from the date of conversion to the date of seizure.”

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    15045.
    Kirkland v. Brewton.
   Bell, J.

1. Where land is sold by the tract, and in the bond for title evidencing, the sale it is recited, merely as a part of the description, that the land contains so many acres, “more or less,” the vendee, when sued for the purchase price or a balance thereof, cannot have an apportionment of the price on account of an alleged deficiency in the acreage, without alleging and proving actual fraud on the part of the vendor. Montgomery v. Robertson, 134 Ga. 66 (1) (67 S. E. 431).

2. In such a case the part of the Civil Code (1910), § 4622, which defines constructive fraud is inapplicable, and, standing alone, would not be proper to be given in charge to the jury, but the mere fact that the judge interjects into his charge some abstract principle of law inapplicable to the issues of the case does not always require a reversal. Where such an instruction has been given, the reviewing court looks to the whole record, to see if the complaining party in fact suffered prejudice. If so, a new trial will result; otherwise not. See, in this connection, Nation v. Jones, 3 Ga. App. 83 (3) (59 S. E. 330); Sparta Oil Mill v. Russell, 6 Ga. App. 293 (5) (65 S. E. 37); Lazenby v. Citizens Bank, 20 Ga. App. 53 (92 S. E. 391); Estes v. Thomas, 23 Ga. App. 301 (3) (98 S. E. 101); Commercial Bank of Jasper v. Dasher, 24 Ga. App. 736 (102 S. E. 177); Dixie Mfg. Co. v. Ricks, 30 Ga. App. 433 (3) (118 S. E. 452); Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405); Long v. Gilbert, 133 Ga. 691 (3) (66 S. E. 894); Martin v. Hale, 136 Ga. 228 (2) (71 S. E. 133); Louisville & Nashville R. Co. v. Culpepper, 142 Ga. 275 (82 S. E. 659). The court having in the instant case charged the entire code section mentioned, in which actual fraud and constructive fraud are distinguished, and having several times informed the jury that the defendants’ plea could not be sustained without proof of actual fraud, the plaintiff could not have been prejudiced by the inapplicable instruction defining constructive fraud. See, in this connection, Martin v. Hale, supra; Neel v. Powell, 130 Ga. 756 (2), 760 (61 S. E. 729); Netherton v. Netherton, 142 Ga. 51 (3) (82 S. E. 449); Reddick v. Strickland, 25 Ga. App. 275 (4) (103 S. E. 94).

3. The court charged the jury: “Before you can go into the question of actual fraud, you must determine from this comparison of the amount actually obtained in the sale and the amount alleged to have been sold, either in the representations or in the amounts named in the contract of sale, and if there is a suspicion of an intention to deceive upon the part of the plaintiff towards the defendants, or the deficiency is so gross as to amount to a fraud, then you would be authorized to look to the facts and circumstances of the case otherwise and determine whether or not there was actual fraud.” It is assigned that this charge is error for the reason that the preliminary question of the deficiency in the acreage must be ascertained solely from the contract and the quantity of the land obtained, in the sale, and not by a comparison of such actual acreage with any representations that may have been made by the vendor. The bond for title in this case described the land as containing 75 acres, “more or less.” “Under the rule of the code, where the qualifying words ‘more or less’ are used, no number of acres whatever, according to the writing, is sold other than the number- contained in the tract, and this number is subject to be ascertained by parol evidence, whatever number may be mentioned in the deed” or contract. Estes v. Odom, 91 Ga. 600 (2), 608 (18 S. E. 355). Under the decision in that case the charge here complained of was not error. Furthermore, there being no representations broader than the writing, the charge could not have been harmful to the plaintiff, even if incorrect.

4. Error is assigned upon the following charge: “The plea undertakes to set up fraud upon the part of the plaintiff in the negotiations of the sale of the land, and also fraud in the procuring of their signatures to a certain bond for title. Those are the two specific grounds of fraud that are set up, and they ask for an apportionment or damages for the fraud alleged.” It is contended that the excerpt, in stating that the defendants set up fraud in the procuring of their signatures to the bond for title, was unauthorized by the plea, which alleged fraud only in the misrepresentations of the vendor as to the quantity of land. In the first place, it does not appear that the defendants signed the bond for title, but only the notes sued on, and it is true that the sole ground of defense pleaded was a deficiency in the acreage, attended with alleged actual fraud, by reason of which the defendants claimed an apportionment of the purchase price, but it does not appear that the vendor plaintiff could have been prejudiced by the impertinent reference to another defense, for the reason that the entire charge, excepting this extract, clearly and fully submitted the issue as made by the defense actually pleaded, and the jury could not have been misled by the charge as a whole into giving the defendants the benefit of a defense not pleaded and about which no evidence was submitted nor any issue or contention made. See the authorities cited in paragraph 2 above.

5. The court, after giving in charge section 4122 of the Civil Code, did not err in telling the jury: “That is the law; that last that I have called your attention to is the law governing this case, — that where a tract of land is sold by the tract and specified as so many acres, more or less, then if the discrepancy or the deficiency in the number of acres is so gross as to justify the suspicion of fraud or a mistake amounting to fraud, a suspicion of wilful deception, or a mistake so gross as to amount to fraud, then it is such a contract as would be apportionable.” The court did not, in so charging, “unduly emphasize so much of the code section as permits the apportionment on account of a deficiency.” “One time would have been sufficient, but needless repetition in a charge of a correct principle of law, applicable to the pleadings and evidence, would not be error.” Wilson v. Barnard, 10 Ga. App. 98 (5) (72 S. E. 943); Dixie Mfg. Co. v. Ricks, 30 Ga. App. 433 (4) (118 S. E. 452 (4)).

6. The court charged: “You see, if the deficiency was not greater than that which in your opinion would be covered by the term ‘more or less/ then the defendants would not be entitled to recover for the deficiency, but if it was such, in your opinion, under all the facts and circumstances of the case, as to be greater than that which should be covered in the particular case by the term ‘more or less/ then the defendants would be entitled to offset, under the principles of law already given you in charge(Italics ours.) It is assigned that this charge was error in authorizing the jury to render a verdict in favor of the defendant in the event “the shortage justified it, regardless of whether or hot there was actual fraud perpetrated by the plaintiff.” The portion of the charge italicized was inapt, as tending to the conclusion that a deficiency greater than that which might be covered by “more or less” would, as a matter of law, make out the defense within the meaning of the instructions given upon the subject of actual fraud. Standing alone, such a charge might be error upon the ground that it expressed an opinion upon the facts. But the court repeatedly told the jury, both before and after giving this instruction, that the defendants would not be entitled to an apportionment of the price unless the jury should find actual fraud. This issue was most fairly and fully submitted, and, in view of the charge as a whole, the jury could not reasonably have understood, and probably did not understand, that the judge intended by this inapt expression to pass judgment, or that he had any opinion, upon the facts. Considering the entire charge, the excerpt complained of is not reversible error.

7. Under the facts of this case the court did not err in charging that “previous knowledge of the land or its boundaries would not preclude the vendee from recovering for fraudulent misrepresentations as to quantity, if without fault on his part he was actually deceived and defrauded by the misrepresentations, provided the deficiency was more than could be fairly covered . . by the phrase ‘more or less/55 See Estes v. Odom, 91 Ga. 600 (4) (18 S. E. 355).

8. There was no error in the admission of testimony as to the antecedent oral negotiations between the parties, or as to alleged misrepresentations of the vendor at the time of the execution of the writings in consummation of the sale, upon the ground that all such statements were merged in the written contract and that there was nothing in the pleadings to justify the admission of such testimony. Even if the defendants did not plead a misrepresentation by the vendor as to the meaning of the words “more or less,” and even if such a misrepresentation would not be one of fact, evidence thereof was properly admitted as a part of the res gestae and as corroborative of the ultimate fact of actual fraud sought by the defendants to be established. Neither did the court err in permitting one of the defendants to testfiy that he had never bought any land before and did not have any idea of the meaning of the words “more or less” in a deed, nor in allowing proof of the subsequent conduct and statements of the vendor, for the purpose of shedding light upon his intent or motive in the original transaction. See, in this connection, Summerour v. Pappa, 119 Ga. 1 (2) (45 S. E. 713); McCrary v. Pritchard, 119 Ga. 876 (4) (47 S. E. 341); Rosenthal v. Gordon, 142 Ga. 682, 686 (83 S. E. 511).

Decided April 23, 1924.

Complaint; from Tattnall superior court — Judge Sheppard. September 15, 1923.

C. L. Cowart, Hitch, JDenmarh & Lovett, for plaintiff.

A. 8. Way, J. T. Grice, for defendants.

9. The tract was sold as 75 acres, “more or less,” and it indisputably appears that it was thereafter found to contain but 56-1/2 acres. Whether the deficiency was in itself so gross as not only to justify the suspicion of wilful deception or mistake amounting to fraud, but also to authorize an inference of the fact of actual fraud (see Bryan v. Yates, 7 Ga. App. 712 (67 S. E. 1048); Milner v. Tyler, 9 Ga. App. 659 (2) (71 S. E. 1123), this, with other facts and circumstances disclosed by the evidence, was sufficient to authorize the verdict for the apportionment in favor of the defendants upon the ground of actual fraud. This case is to be distinguished from King Lumber Co. v. Cowart, 136 Ga. 739 (72 S. E. 37). The court in that case was passing upon the sufficiency of the pleadings, while here the question relates to the sufficiency of the evidence. In such pleadings the intent to defraud must be positively alleged, though upon a consideration of the evidence it may be inferred from the circumstances. “The difference between a necessary allegation in a declaration and the evidence which may be sufficient to sustain such allegation is clear.” Kendall v. Wells, 126 Ga. 343, 352 (55 S. E. 41); Emlen v. Roper, 133 Ga. 726, 729 (66 S. E. 934).

10. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    15060.
    THOMPSON v. NEELY & WILCOX.
    In this action on notes, where the defendant pleaded damage because of the wrongful sale by the plaintiff factors of certain cotton pledged as security for the debt, the proceeds of which were credited, the evidence showed conclusively that the defendant ratified the sale, even if made in violation of instructions; and a verdict being demanded for the plaintiffs, the court did not err in giving direction accordingly.
    Decided April 23, 1924.
    Complaint; from city court of Waynesboro — Judge W. H. Davis. September 4, 1923.

      F. V. Heath, for plaintiff in error.

      Hull & Barrett, F. 8. Burney, contra.
   Bell, J.

Neely & Wilcox, cotton factors, after a sale of cotton stored by their customer, S. A. Thompson, and crediting the proceeds upon his notes which had been given for advances, sued him on the notes for the balance, — $4,743.88. He pleaded that as to certain lots the sale was in violation of a special agreement by the terms of which the factors would not sell without instructions, so long as he kept the cotton properly margined, which he did; and that, the price having advanced, he was damaged in a sum in excess of the balance sued for, which damage he would recoup'. At the close of the evidence upon the trial a verdict was directed for the plaintiffs for the full amount sued for, and, a motion for a new trial being made and refused, the defendant excepted.

Assuming that the evidence made an issue in regard to the factors’ authority to sell, we think that a finding of ratification was demanded, and hence that the verdict was properly directed. The cotton was placed with the factors in the fall of 1930; it was sold about March 31, 1931. The defendant was furnished promptly with an account of the sales. Within a few days thereafter, early in April, 1931, he called at the plaintiffs’ office, and, with full knowledge of all the facts, only complained that “it looked like.a h — 1 of a note to keep it right here until it got to the bottom and then sell it out and to sell it at this low price.” At the same time he said to them further: “Well, if this thing is paid, I will have to work it out by degrees; you see the conditions;” to which it was replied: “All right, we are willing to help you out all we can.” One of the notes sued on was secured by a deed to certain town property in Vidette, on which was situated a ginnery, while the other note was secured by a deed to 103 acres of land in Emanuel county. This suit was not filed until October 3, 1933, more than 18 months after the sale of the cotton. In the meantime the plaintiffs’ claim had been mentioned between the parties on several occasions. The defendant testified that at one time before the suit, when the plaintiffs wanted a payment, he agreed to convey to them absolutely the land in Emanuel county at a valuation of $1,500, to be applied as a credit, and would then pay them the net proceeds of the ginnery after all expenses. On June 7, 1931, he complied with the plaintiffs’ demand for insurance upon the ginnery. He had a policy already upon this property, which he caused to be delivered to the plaintiffs on this date, with a clause providing that the loss, if there should be any, should be payable to the plaintiffs as their interest might appear. The defendant further testified: the plaintiffs “asked me in the, office why I didn’t borrow some money and help them out. I told them that I had an application with the land bank; or he suggested I might do it, and I told him I already had an application with the land bank. . . As to how I expected to pay this balance, will say I didn’t know.” He testified also: “No, I didn’t deny their right to sell it. . . Although I commented upon the cotton being sold at that low price, I didn’t dispute the authority of Neely & Wilcox to sell it. I didn’t then and have not since protested the right of Neely & Wilcox to sell it.” It appears that the cotton was sold on a basis of a certain grade at H-14 cents per pound. The price thereafter declined further, but advanced before the suit to 23 cents per pound. The defendant had requested that no suit be instituted, but that he be given time to work out the plaintiffs’ claim. Apparently they granted a considerable indulgence. The above is a statement only of so much of the facts as appear without dispute. There is no testimony inconsistent therewith, and whether the defendant ratified the plaintiffs’ act will depend solely upon the inferences to be drawn from the facts stated.

While it is true that “Where reasonable men might differ as to the inferences to be drawn from certain evidence, the matter should be left to the jury although there may be no conflict in the evidence” (Dixon v. Bristol Savings Bank, 102 Ga. 461 (2), 469, 31 S. E. 96, 66 Am. St. Rep. 193), and that whether or not a ratification has resulted is usually a question of fact to be determined by the jury (Coursey v. Consolidated Naval Stores Co., 22 Ga. App. 538 (3), 96 S. E. 397), we think that the only inference that can reasonably be drawn from the facts given above is one of ratification. “A ratification by the principal relates back to the act ratified, and takes effect as if originally authorized. A ratification may be express, or implied from the acts or silence of the principal. A ratification once made can not be revoked.” Civil Code (1910), § 3591. “Where a principal is informed by his agent of what he has done, the principal must express his dissatisfaction within a reasonable time, otherwise his assent to his agent’s acts will be presumed. Carnes v. Bleecker, 12 Johns. (N. Y.) 300; Foster v. Rockwell, 104 Mass. 170. Ratification will be inferred where the agent has notified the principal by letter of his act and the principal has not repudiated it. Hnless the principal repudiates the act promptly or within a reasonable time, a ratification will be presumed. Bray v. Gunn, 53 Ga. 144; Owsley v. Woolhopter, 14 Ga. 124; Mapp v. Phillips, 32 Ga 72; Smith v. Holbrook, 99 Ga. 256 (25 S. E. 627); Whitley v. James, 121 Ga. 521 (49 S. E. 600).” Brooke v. Cunningham, 19 Ga. App. 21 (5) (90 S. E. 1037); Pilcher v. Smith, 31 Ga. App. 606 (121 S. E. 701). “To bind the principal, there is no necessity for a positive or direct confirmation on his part, of the act of the agent, bnt it may arise by implication, from the acts or proceedings of the principal in pais. 3 Chitty on Com. and Manuf. 197, 198. 1 Livermore on Agency, 45; Story on Agency, § 253. And for this purpose the acts and conduct of the principal are construed liberally in favor of the agent. Slight circumstances and small matters will sometimes suffice to raise the presumption of ratification.” Byrne v. Doughty, 13 Ga. 46 (3) (4), 52; Strong v. West, 110 Ga. 382 (1), 387 (35 S. E. 693). “If an agent, acting in good faith, disobey the instructions of his principal, and promptly informs the principal of what he has done, it is the duty of the principal, at the earliest opportunity, to repudiate the act if he disapprove. Silence in such a case is a ratification. See the case of McLendon v. Wilson & Calloway, 52 Ga. 41.” Bray v. Gunn, supra.

It is unnecessary to rule whether the failure on the part of the defendant to deny the plaintiffs’ authority, for a period of 18 months after knowledge, was, as a matter of law, a delay for an unreasonable time. This is not a case of mere silence, but of acts and conversations, implying approval, with never a protestation until suit. Assuming without deciding that.the period of time involved was not unreasonable as a matter of law and should be considered only as a circumstance, the circumstances as a whole certainly raised a presumption of ratification; and there being no effort to explain them away, there was nothing for the jury to decide. See Patterson v. Whaley, 7 Ga. App. 306 (66 S. E. 804). Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto. Civil Code (1910), § 5936..

Judgment affirmed.

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