text:
    1043.
    ROBERTS v. THE STATE.
    1. In construing statutes, the cardinal canon of construction is the legislative intent. When the intention is ascertained, it governs, and the mere letter of a'statute must yield to the spirit.
    2. The intention of the legislature in enacting the prohibition statute (Acts 1907, p. 81) was to prevent the evils of intemperance caused by the use of intoxicating liquors as a beverage. The law should be interpreted so as to accomplish this beneficent purpose. There should be a reasonable construction, equally removed on the one hand from that extreme strictness which would make it unpopular or ridiculous and difficult of enforcement, and, on the other, from that latitude which would render it ineffective.
    ■3. The true scope and meaning of the prohibition statute is to stop the use, as beverages, of all intoxicating liquors, by whatever name called, or under whatever guise made. As the means to this end, it is made unlawful to manufacture, sell, or barter, directly or indirectly, “any aleo-' holie, spirituous, malt or intoxicating liquors or? intoxicating bitters or other drinks which, if drunk to excess, will produce intoxication;” and to more effectually accomplish the end in view, and to prevent evasions of ' the law, it is made unlawful “to give away to induce trade at any place of business, or keep or furnish at any other public places, . . or keep on hand at their place of business,” any liquors of this description.
    4. The phrase “place of business,” as used in the act, construed by the context and giving to the words their ordinary, usual, and proper significance, means a public place of business, in contradistinction to a place of private business, — a place where the public, having business with the owner, are impliedly or expressly invited for its transaction. The word “business” is used in the sense of trade, commerce, or traffic, and not as synonymous with occupation, vocation, or employment.
    5. A room used solely for the purpose of storage, which is kept locked, to which the public are not invited, and from which the public are excluded, and in which no business is transacted, is not a “place of business,” in the sense of the prohibition statute. It is not unlawful to keep alcoholic liquors stored in such a room, where it appears that the liquor is never drunk therein, or taken therefrom to be drunk elsewhere, but that it is used by the owner only for the purpose of making a nonalcoholic syrup or drink in a private laboratory, from which the public are also excluded,
    6. The words “alcoholic, spirituous and malt liquors,” in the prohibition statute, mean intoxicating liquors which can be used as a beverage, and which, when drunk to excess, will produce intoxication. If the liquid manufactured or sold, or kept on hand at a public place, or at a place of business as defined in the fourth headnote, can not be used as an intoxicating drink, because of other ingredients, or is not intoxicating because it does not contain a sufficient amount of alcohol to cause intoxication -when drunk to excess, it is not within the prohibition of the statute, although it does contain as one of its ingredients an appreciable quantity of alcohol or spirituous liquor,
    7. It was error to instruct the jury that it would be a violation of the statute to keep on hand “any spirituous or alcoholic liquors at his place of business;” and tliat “it could make no difference whether the liquors-were in proper form to be used as a beverage or not; the statute condemns the keeping on hand of liquors which fit this description, and it refers to any liquid which has such an appreciable quantity of alcohol in it as to come under the term ‘ alcoholic liquors.’ ”

      (а) A liquid not in “proper Jorm to be used as a beverage,” and having in it only an appreciable quantity of alcohol, is not within the fair meaning of the language of the statute, which aims at the use of intoxicating liquors as a beverage.
    (б) The mere presence of alcohol does not bring the liquid or liquor within the prohibition. There must be a sufficient quantity to produce intoxication when drunk to excess.
    (c) Medicinal, toilet, and culinary preparations, recognized as such by standard authority (such as the United States Dispensatory), not intended to, be used as intoxicating beverages, and not reasonably capable of being so used, such as paregoric, essence of lemon, essence of ginger, bay-rum, cologne, wood alcohol, and the like, are not embraced within the terms “alcoholic” and “spirituous liquors,” although such articles are liquid, contain alcohol, and may produce intoxication.

      (d) “Intoxicating liquors,” or mixtures thereof, reasonably construed, mean liquors which will intoxicate, and which are commonly used as beverages of such purpose, and also such mixtures of the same as, retaining their alcoholic qualities, may be used as a beverage and become a substitute for the ordinary intoxicating drinks.
    8. Can it be legal to manufacture and sell medicines, culinary and toilet articles, non-alcoholic syrups, and what are generally known as “soft drinks,” and illegal to keep on hand at the place of manufacture alcoholic or spirituous liquor which constitutes a necessary ingredient of such articles, and which is intended to be used only in their manufacture? , Quaere. •

    9. Prohibition is not a crusade against medicine, culinary or toilet articles, or those beverages which can not intoxicate. These tilings are necessary to life, health, and comfort. Prohibition is a crusade against intoxicating -liquors as a beverage, and the resultant evils of intemperance.
    Certiorari, from Fulton, superior court — Judge Ellis, February 22, 1908.
    Argued March 31,
    Decided April 9, 1908.

      Rosser & Brandon, A. M. Brand, for plaintiff in error.

      O. D. Hill, solicitor-general, Lowry Arnold, solicitor, John' A. Hynds, contra. ...
   Hill, C. J.

E. Mayson Boberts was convicted in the criminal court of Atlanta, on an accusation charging him with the violation of what is known as the prohibition statute, in that he “did keep on hand at his place of business alcoholic and spirituous liquors, contrary to law.” His petition for a writ of certiorari was refused by the superior court of Eulton count}', and he brings the case to this court for review. The material facts, which are -practically undisputed, make the following case: Eoberts was a manufacturer of a non-alcoholic syrup used for making what is known as a “soft drink.” This beverage was not made on the defendant’s premises, but the non-alcoholic syrup was sold to dealers who used it in making beverages at their various places of business throughout the country. The syrup was made in the defendant’s laboratory, he being a licensed druggist, and this laboratory was located in the rear of his dwelling-house, on Courtland street in the city of Atlanta. The -front room of his residence was used by him as an office; and whenever persons visited him on business, they were received in this office, and nowhere else. Most of his business was conducted by correspondence, and the public was excluded from every portion of the premises except this office. In the rear of his residence, separated from it by a fence and near to the laboratory, he had a storeroom, in which he kept a liquid or liquor, which he is charged with keeping on hand at his “place of business.” in violation of the statute. This storeroom was kept locked, and no one was admitted therein except one particular clerk, who kept the key, and the defendant. When it became necessary to use the liquid or liquor in question in the manufacture of the syrup, this clerk carried to the laboratory, from the storeroom, the quantity that was necessary for the purpose; and when it reached the laboratory it* was immediately mixed with other ingredients composing the syrup. This storeroom and the laboratory were not connected with the residence, but were reached by an alley leading from Courtland street, being under different roofs from, that of the residence. There was only one door leading from the storeroom, and no one was permitted in the back yard except employees; and no one at any time was permitted to go into the storeroom, except the one employee of the defendant, for the purpose above mentioned. The formula of the non-alcoholic syrup manufactured by .the defendant was a secret, and for this reason he excluded the public from his place of manufacture. In the storeroom whose location is above described some seventy kegs of beer were found. Two samples taken from this beer were analyzed, and one was found to contain four and two tenths per cent, of alcohol, and the other, three and eight tenths per cent, of alcohol. This “green” or “pale” beer, as it was called by the witnesses, was used by the defendant only as one of the ingredients in the manufacture of his non-alcoholic syrup. No evidence was introduced to show that this beer was an alcoholic or spirituous liquor, and there was no evidence that it was intoxicating.

From the foregoing evidence the State drew the conclusion that the defendant “did keep on hand at his place of business alcoholic and spirituous liquors;” the defendant denied that such conclusion followed from this evidence; and • this constitutes the issue for determination by this court. In other words, we are called upon to 'declare the meaning, in the prohibition act, of the terms, “place of business,” and “alcoholic” and “spirituous liquors.” (Acts 1907, p. 81). What did the legislature mean when it made it a penal offense to keep on hand at a “place of business” “alcoholic” and “spirituous liquors”?

The cardinal canon of construction of' a legislative act is that the intention, when ascertained, governs; and all other rules of interpretation are subordinate.' And it is also well settled that the mere letter does not always express the intent. “A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.” This thought has been quaintly expressed by Plowden in his Commentaries: “It is not the words of the law, but the internal sense of it, that makes the law.; and our law consists of two parts, viz., of body and soul; the letter of the law is the body of the law, and the sense and reason of the law are the soul of the law, quia ratio legis est anima legis. And the law may be resembled to a nut, which has a shell and a kernel within: the letter of the law represents the shell, and the sense of it the kernel; and as you will he no better for the nut if you make use only of the shell, so you will receive no benefit from the law if you rely upon the letter; and as the fruit and profit of the nut lie in the kernel and not in the shell, so the fruit and profit of the law consist in the sense more than in the letter. And it often happens, that when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive.” Of course, in construing all statutes, in order to arrive at the intention of the legislature, the letter of the act must be first considered, giving to the words therein contained their usual, ordinary, and popular significance; and if the intention of the legislature can be gathered from the mere letter of the law, construction is excluded. But if the letter leaves us in doubt, the intention interprets the act; and this intention is also to be found in the evils sought to be remedied by the statute. The rule, approved by the wisdom of centuries, is, to consider the old law, the mischief, and the remedy. The old law authorized the manufacture and sale of intoxicating liquors. The mischief was the use of 'intoxicating liquors as a beverage. The remedy was prohibition by law of the manufacture and sale of intoxicating liquors, of all kinds and of every description, when used as a beverage. We now take up for decision the particular questions presented by this record, and endeavor to construe the statute in the light of these well recognized rules.

(1) What did the legislature mean by the phrase “place of business,” in the prohibition act? In' determining this question, let us consider the context, as showing the evil the law was designed to prevent. As before stated, the great underlying'purpose of the statute was to prevent the evils of intemperance, and, in order to prevent these evils, to prohibit their cause, to wit, the manufacture and sale of intoxicating liquors. The first part of the act makes it unlawful to “sell or barter for valuable consideration, either directly or indirectly, . . any alcoholic, spirituous, malt or intoxicating liquors or intoxicating bitters or other drinks which, if drunk to excess, will produce intoxication.” The second part of the act makes it unlawful to “give away to induce trade at any place of business” such liquors. And the third part of the act makes it unlawful to “keep or furnish at any other public places” ,such liquors. The fourth part makes it unlawful to “manufacture” such liquors; and the fifth part, which is now under consideration, makes it unlawful to “keep on hand at their place of business” any such liquors. Any doubt as to this fifth part must be solved in the clear and explicit light of the other acts which the law makes unlawful. The purpose of the legislation is to prevent the evils of intemperance; and, to accomplish this, it prohibits everywhere within the limits of this. State the sale or barter or manufacture of any intoxicating liquors. This prohibition, though very broad, was deemed not sufficiently so to entirely remedy the evil; for intoxicating liquors might easily be imported into the State and kept at places to which the public had access, and furnished at such places to the public, and thereby the beneficent purpose of the act would be utterly destroyed; and, therefore, it was made unlawful to “give away to induce trade at any place of business, or keep or furnish at any other public places,” “or keep on hand at their place of business” any “alcoholic, spirituous, malt or intoxicating liquors or intoxicating bitters or other drinks which, if drunk to excess, will produce intoxication.” Now, the use of the word “trade,” as descriptive of the “place of business,” certainly indicates a public place of business, where people congregate or go for the purpose of trading; and therefore, the temptation to, intemperance shall not be held out at such places to people who go there. The use of the word “other,” as descriptive of a “public place,” clearly denotes that the place of business must he a public place. Bearing in mind, therefore, the clear meaning of a “place of business,” as indicated by the use of the words “trade” and “any other public places,” it is clear that the legislature meant that a place of business where it was unlawful to keep on hand intoxicating liquors was a public place of business. It certainly would be illogical to hold that the legislature meant to say that a place of business where intoxicating liquors could not be given away to induce trade must be a public place, and such place must be public because in no other character of place is trade carried on, and in the same act intended that the place of business where intoxicating liquors should not be kept on hand should be a different kind of place. It might be reasonably inferred by the legislature that although intoxicating liquor might not be given away to induce trade at- a place of business, it nevertheless might be kept at such place of business for the purpose of drawing the public, thus affording an opportunity for evading the law, in that it would be difficult or impossible to prove the purpose for which it was kept. We think, therefore, the words “place of. business,” twice used in the act, hear,, in each connection, the same’ significance, and mean a place where people generally congregate for the purpose of carrying on some sort of traffic, or where people are invited or expected to come to engage in some sort of mercantile transaction; and, therefore, the legislature, designing to prevent the pse of intoxicants, declared not only that such intoxicants could not be manufactured or sold in the State, but also that they could not be kept on hand at any public place in the State where people have either the right to go as to a public place, or where they are expected to go as to a place of business; and by these means it sought to prevent the public from in any manner having the opportunity to indulge in the use of intoxicating liquors as á beverage. We can not believe that the legislature intended to use the word “business” in its broadest sense, of occupation, vocation, or employment. If these words in the statute, “place of business,” mean the place..where a man works, they embrace the private office of the professional man, where the public is never admitted, and no physician or dentist or druggist could keep any alcohol in a private room connected with his place of business, for any purpose; and the artist in his studio, and the writer in his library, and the astrologer who reads the meaning of the stars at night, and the farmer who plows his land, could not keep on hand for any purpose any intoxicating liquor. It would be absurd to say that the legislature intended that the phrase “place of business,” as used in this connection, should embrace workshops to which the public have no access, studios, laboratories, and farms. The reasonable, common-sense constructioii, giving to the words their usual and popular significance, is that a “place of business,” as used in the prohibition statute, means a place where the public generally are expressly or impliedly invited for the purpose of transacting business with the owner, and that a mere storeroom to which the public are not invited, and from which the public are excluded, is in no sense a place of business within the meaning of the phrase “place of business” as used in the prohibition statute, and the refusal of the court to give an instruction to the jury as requested in the present case, embracing the above definition of the words “place of business,” was error.

In interpreting the words “place of business,” in the prohibition statute, we have had the benefit of no judicial precedent exactly in point. These words seem to have their origin in the Georgia statute, and do not occur in other statutes regulating or prohibiting the sale of intoxicating liquors. The language nearest in analogy, so far as we have been able to find, in other statutes, is “to keep on hand for the purpose of sale in public places.” The judicial construction by the courts of those States that have somewhat cognate legislation to that now under consideration, on the subject of playing cards or gambling in public places or places of business, would seem to support the view that we have taken of this language in the statute sub judice. The term “public place,” used in these statutes, as a general rule includes any place which for the time being is made public by the assemblage of people who go there with or without invitation and without restraint. The evil aimed at by these laws was the bad example to people by the public playing of cards; and in several cases “places of business” have been defined to be places to which the public are impliedly invited for the transaction of business during business hours, such places being deemed'public places. Campbell v. State, 17 Ala. 369; Metzer v. State, 31 Tex. Cr. Rep. 11 (19 S. W. 254).

In every case, whether a place of business is a public place within the meaning of the statute is a question of fact, or a mixed question of law and fact, and should be submitted to the jury, under proper instructions from the court. Parker v. State, 26 Tex. 204. In instructing the jury, therefore, in this case that the facts proved constituted a place of business, we think the learned judge of the trial court invaded the province of the jury.

(2) Keeping in mind the maxims of construction referred to in the first part of this opinion, we now come to the second question presented by the record. The defendant was charged with “keeping on hand at his place of business alcoholic and spirituous liquors.” The court was requested to instruct the jury that these words in the accusation meant “alcoholic and spirituous liquors that will produce intoxication when drunk to excess.” The court refused to charge as requested on this subject, and charged as follows: “If the defendant kept on hand any spirituous or alcoholic liquors at his place of business, it could make no difference whether the liquors were in proper form to be used as a beverage or not; the statute condemns the keeping on hand of liquors which fit this description, and it refers to anjr liquid which has such an appreeiable quantity of alcohol in it as to come under the term alcoholic liquors/” This charge of the court was assigned as error because the statute refers only to such alcoholic and spirituous liquors as, when drunk to excess, will produce intoxication. It seems manifest that the law, which has for its purpose the suppression of the evils of intemperance, can not be violated by selling or .keeping on hand at a place of business liquids which can not be used as a beverage; for that which can not be drunk can not produce drunkenness, and liquors which can not be used as beverages do not fall either within the letter or the spirit of the act. In the use of the phrase “alcoholic or spirituous liquors,” only those liquors are included which contain a sufficient quantity of alcohol (the intoxicating element of all liquors) to produce intoxication when drunk to excess. The words “alcoholic or spirituous liquors,” as used in the statute, necessarily import intoxicating liquors. This is a definition which the Supreme Court has given similar words in cognate statutes. In the case of McDuffie v. State, 87 Ga. 687 (13 S. E. 596), the court held that “all spirituous liquors are intoxicating;” and in Bell v. State, 91 Ga. 227 (18 S. E. 288), it was held that all alcoholic liquors are intoxicating. According to these decisions, which are in consonance with reason and the intention of the act, liquors are neither alcoholic nor spirituous unless they are also intoxicating. It seems to us absurd and utterly unreasonable to say that a trace of alcohol in a liquid, not enough to intoxicate, or a liquid not in proper form to be used as a beverage, fits the description, given in this statute, of “spirituous and alcoholic liquors.” Such interpretation of the law is so extreme as to recall the illustration of the common-law writers, of the ridiculous construction of a statute, that the language, “Whoever draws blood in the streets shall be punished with the utmost severity,” included a surgeon who opened the vein of a person who had a fit in the street, in order to save his life. This view of the law is satisfied with the “shell of the nut,” losing sight entirely of the “kernel.” Qui hseret in litera hseret in eortice. This construction of the law would call a liquid that contained an ounce of whisky in a barrel of water and a teaspoonful of sugar a whisky toddy; or an ounce of brandy in a barrel of milk, a milk punch. This construction would prohibit the sale of what are commonly known as “soft drinks,” that contain only an appreciable amount of alcohol, not enough to produce intoxication, however much is drunk, as a beverage; and would banish from the drug stores all drugs and medicines and all culinary and toilet articles which contain any alcohol, even when it is well known that such things are not only not in proper form to be used as beverages, but, if so used, would cause death.

It has been held by the Supreme Court in Bradley v. State, 121 Ga. 206 (48 S. E. 981), and by this court in Mason v. State, 1 Ga. App. 534 (58 S. E. 139), that the words “intoxicating liquors,” or “alcoholic and spirituous liquors,” as used in prohibition statutes, include liquors intended for use as a beverage or capable of being so used, containing alcohol, obtained either by fermentation or distillation, or both, in such a proportion as would produce intoxication when drunk to excess. And it was further held in these decisions that medicinal, toilet, and culinary preparations, recognized as such by standard authorities, and generally used as medicines, and not reasonably capable of use as intoxicating beverages, are not to be regarded as within the meaning of the expression “intoxicating liquors,” although such articles are liquid, contain alcohol, and may produce intoxication. The courts will take judicial notice of the uses and character of these articles, and, even though they contain alcohol in sufficient quantity to produce intoxication if drunk to excess, that they were not intended to be drunk at all; and the people are not to be deprived of their salutary uses because they might be reached by the letter of a law whose sole and vital purpose is the prevention of intemperance in the rase of intoxicating liquors as a beverage. Of course, any evasion of the statute, in the form of medicine (whether “cordial,” “bitters,” or “tonic”) which is really in fact and in substance^an intoxicating liquor, not only capable of being used as a beverage, but ,so intended, would be readily detected by an intelligent jury, and promptly and severely punished by a discriminating court. But we think that the whole purpose and intention of the prohibition statute is summed up and tersely expressed in the act as follows: “Nor shall it be lawful in the limits of said State for intoxicating liquors to’ be sold in dispensaries, and the sale of intoxicating liquors in said State shall be prohibited to private persons and to the State, its officers and agents.” Prohibition is not a crusade against the use of medicines, household remedies, culinary and toilet articíes, and all “soft drinks.” It is a crusade against the multiform evils and intemperance caused by the use of intoxicating liquors as a beverage, and, therefore, a crusade against vice and crime greater in extent and enormity than the combined evils of war, pestilence, and famine. If the first interpretation is correct,' then prohibition is the impracticable and unreasoning crusade of fanaticism. If the second, it is a crusade as unselfish and as holy in its purpose as that which inspired the tongue of Peter the Hermit or nerved the arm of Richard the Lion-hearted.

That the construction here placed upon the prohibition statute is the rational one, and is the one in harmony with the great purpose of the legislature in passing the act, we think, can not be doubted. Any other construction would be a perversion of the purpose of the act, and would be in contravention of the constitutional right of the citizen. The right to regulate or prohibit the manufacture and sale of intoxicating liquors for use as a beverage is well established as being within the exercise of the police powers of the State to protect the public against the evils which result from the excessive use of ardent spirits. But to say that the legislature has a right to forbid the manufacture or sale of every liquid; regardless of the amount of alcohol it contains, or regardless of the presence of other ingredients, which prevent any use of the liquid as a beverage, is to give an elastic construction to the right of legislation, not warranted by the constitution or laws, or supported by any respectable authority. The writer of this opinion, speaking for himself alone, does not hesitate to say that such a construction, if imperatively demanded by the language of the statute or the intention of the lawmakers, would carry the statute beyond the power of the legislature. In the language of Mr. Justice Brewer, in construing the Kansas statute prohibiting the sale of intoxicating liquors, “I do not think the legislature can prohibit the sale or use of any article whose sale or use involves no danger to the general public. The habits, the occupation, the food, the drink, the life of the individual, are matters of his owm choice and determination, and can be abridged or changed by the majority speaking through the legislature only when the public safety, the public health, or the public protection requires it.” Intoxicating Liquor Cases, 25 Kan. 765 (37 Am. R. 284). But, as we have attempted to show in this opinion, we are perfectly clear that the legislature, in enacting the prohibition statute, was aiming to prevent the evil of intemperance caused by the use.of intoxicating liquors as a beverage. To accomplish this beneficent purpose, the law should receive a reasonable construction, equally removed on the one hand from a harsh, liberal interpretation which would render it unpopular and difficult of enforcement, and, on the other hand, from a latitude that would tend to fritter away its beneficial purpose and cause it to become a mere brutum fulmen.

Judgment reversed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    1063.
    MADISON v. THE STATE.
    Where all the assignments of error depend upon a consideration of the evidence, and what purports to be the brief of the evidence is not approved by the trial judge, the judgment refusing a new trial must of necessity be affirmed.
    Indictment for arson, from Clarke superior court — Judge Brand. January 31, 1908.
    Argued March 31,
    Decided April 9, 1908.

      W. M. Smith, II. O. Tuch, for plaintiff in error.

      £¡. J. Tribble, solicitor-general, John B. Gamble, contra.
   Powell, J.

' The attention of the court is formally called to the fact that the brief of the evidence does not bear the approval of the trial judge. This, of necessity, prevents our consideration of the assignments of error, all of which depend on the evidence. By a certificate made subsequently to the transmission of the record, the trial judge states that the brief is in fact correct, and was left unapproved by inadvertence. However, this act of fairness on the part of the trial judge can not help the matter; we have no jurisdiction to consider facts of a case not presented to us in the manner prescribed by statute; and this is not the manner prescribed. We have not created these technicalities; the law itself has established them, and we have no power to destroy them. Therefore, any opinion we may express on the evidence is purely personal; but since both sides of the case seem to wish our views, we may say that we personally thin’k that, while the evidence does not make a strong case, it is probably legally sufficient to support the verdict. Judgment affirmed.


author: Russell, J.

text:
    1066.
    Lewis v. The State.
    ' Indictment for murder — conviction of manslaughter, from Terrell superior court — Judge Worrill. February 7, 1908.
    Argued March 31,
    Decided April 9, 1908.
    Carrie Lewis was convicted of voluntary manslaughter, under an indictment charging her with, having killed John Lewis by cutting him with a knife. She moved for a new trial, on the grounds that the verdict was contrary to law and the evidence and without evidence to support it; the motion was overruled, and she excepted.
    At the trial J. L. Murray testified: “Carrie Lewis was John Lewis’s wife. John Lewis died on Mrs. McCarthy’s place. . . All I know about the killing is what Carrie Lewis told me. She came up to the house that night about nine o’clock, and said that John Lewis was fighting her. . . She said she couldn’t live with John any more, and Mrs. McCarthy told her to go on back and behave herself, and she said ‘No,’ that she would not go back, but finally said she would go back if I would go with her to John. . . I said to Carrie, ‘What did you do to John?’ She said ‘I cut him. I cut him twice.’ I went on down there and found him lying right side of the road. As to what he was doing at the time she cut him, she said that she wanted to go to church and he objected, that she started to church and got a part of the way, and he overtook her and another negro woman down there near a negro house, and told her that she could not go. She said he caught her by the hand and pulled her along back up near another negro house, and right there she and another negro woman sat down, and that he left them, but came back in a little while and started to fussing again. She said he hit her with a -switch, and then she snatched away and got away from him. She said that John then run across the road and pulled off a paling and ran and overtook her, and started to hit her with it, and that she wheeled and clinched with him and cut him. She said he then kept on after her, that she then cut him again and wheeled and ran up to the house. ., . John Lewis was dead when I got to him. It was about ten or fifteen minutes after she came to the house before I got to him. I found him about 150 or 200 yards from our house, . . a short distance from his house and yard.” “The only wound I saw on John Lewis was on his left shoulder; he was lying on his face. . . "When I first saw him he was lying on his face and I did not see but one wound, but afterwards I went back and he was turned over/ when I saw a wound on his left breast. It was a stab, and I suppose it went tó his heart. They had Dr. Lewis at the coroner’s inquest to see him. I would say that the stab in John Lewis’s breast was the cause of his death. I asked Carrie Lewis what she cut him with, and she said a knife, and she took it out of her jjocket and handed it to me. It was a two-bladed knife. It was a good big knife and it was closed when she handed" it to me. That was all she said at the first conversation when she came up to the house. In regard to what she said about cutting him the second time, she said that he had run after her and caught up with her with the paling, that she clinched with him and stabbed him, then got loose and ran up to the house. I didn’t see any bruises on her; in fact she did not say anything about any bruises being on her at that time. . . John Lewis was found south of Mrs. McCarthy’s house about 150 yards; it is about 175 or 200 yards further south where Carrie said John caught hold of her hand. Carrie said she was sitting down with this woman between Joe Alston’s and Tom Leonard’s houses. Joe Alston lived nearest to Mrs. McCarthy’s, and about 350 or 400 yards south of the house. It is 75 or 100 yards from Joe Alston’s house to Tom Leonard’s house; it is 150 or 200 yards from Tom Leonard’s house to where the killing occurred. There is no other house this side except John Lewis’s. The paling was taken off Joe Alston’s fence. I after-wards noticed Joe Alston’s fence and saw where a paling had been taken off. . . A paling was found near the body of John Lewis. That looks like the paling; I think it is the paling [referring to a paling afterwards introduced in evidence]. As to whether that would be a dangerous weapon in the hands of a strong man, I would say that it would hurt a person pretty bad. It is according to how you would use it as to whether death would likely be produced with it. I suppose death could be produced with it. It was about 175 yards from where the paling was pulled off the fence to where John Lewis was found dead, directly up the road. .
   Russell, J.

The evidence in its entirety showing that the defendant was 'justifiable, the verdict finding her guilty was, for want of evidence, contrary to law, and a new trial should have been granted.

Judgment reversed.

I suppose that paling is about five and a half feet long; it is about four inches wide at the bottom and three inches wide at the top, . . about half an inch thick at the narrow end, and about three eighths of an inch thick at the wide end. It looks to me.like a light sap-pine paling.” “It has two nails,in it and the lower end is split. . . The split end is the one the nail is in, and it is just as I found it. . . It had rained that day. .If the paling-was wet it would be heavier. John Lewis weighed about 160 pounds and was about five feet and nine inches high. He was a strong man!' Carrie Lewis weighed about 120 pounds.”

Emanuel Patterson testified, that on the night John Lewis was. killed he saw Carrie Lewis and Fannie Reddick going along the-road in front of Tom Leonard’s yard, southward, in the direction of a church, and that they stopped in the road; that he went up the road and met John Lewis coming down the road, and John asked if he had seen any women going down the road; that he told John that they were down the road; that John went on and soon came back with Carrie Lewis and Fannie Reddick, and they stopped near Leonard’s house. “John was standing talking to his wife; she walked on up the road, and after a while he took out behind them. They were not running when I saw them. She was running and he was walking fast. She went towards Mrs. McCarthy’s house and was running. I do not know what he had in his hand; I didn’t see anything. I wasn’t looking for anything; do not know what Carrie had in her hand, and do not know what occurred down the road between them. . . I saw John Lewis after he was killed. Mr. Murray, Tom Leonard, and myself got there about the same time. . . He lived a minute, I reckon, after I got there. It was about fifteen or twenty minutes after I saw him going up the road with Carrie Lewis and Fannie Reddick before I saw him dead.” J. W. Shepard testified as to .a fence paling found, in the road near where one had been taken from Joe Alston’s fence, and’ as to a peach-tree switch and broken pieces of switches found near the same place. His testimony -as to the paling was in substance the same as that of the first witness. No other witness-than those mentioned was introduced by the State.

Joe Alston testified, that .on the night John Lewis was killed, John Lewis caught up with Carrie Lewis, when she was on her way to church with Fannie Reddick, and caught hold of Carrie’s hand, and told her that she could not go to church, and said, “If you go-to church to-night you will go over my damn body;” that John held her by the hand and talked to her about ten minutes, and then turned her loose, and they went up the road towards home; that he heard them fighting and heard a noise like the lick of a paling; that they got a paling off his garden, but he did not know which one had it; it was about 40 yards from the house of the witness, where he heard the sounds of the paling. — Fannie Reddick testified, that John Lewis overtook Carrie Lewis and herself in the road, when they were on their way to church, and told Carrie to go back home, threatened to beat her if she went to church, said that if she went to church she would go over his dead body, and hit her with a switch; that Carrie got loose from him and ran towards the house, and he jerked off a garden paling and ran after her; it was dark and the witness did not see what occurred between them afterwards. The accused made the following statement to the jury: “I cut my husband with a knife. I asked him to let me go to church, and he didn’t say that I could go or that I couldn’t go. . . When I got ready to go to church I asked him if he was willing for me to go, and he said, ‘I reckon so.’ We went on down the road and sat down, side the road beside Tom Leonard’s house, and I heard him in the cane patch, coming across the patch, and he was talking scandalous. He come on up to where we were, and he said, ‘You are not going to that church to-night; if you do, you will go over my dead body.’ And he got hold of a stick and run at me and hit me on this arm and knocked the skin off, and I jerked loose from him and run up the road toward the house, and he run across the road and jerked off a paling off the garden, and I run to get to the house, to Mrs. McCarthy’s and them. He overtook me and struck at me that way. Then I run under him and struck at him with the knife. I was scared of him and was scared lie was going to kill me. I knew that he would hit me with anything that he could get in his hand.”

Cited by counsel for plaintiff in error: 89 Ga. 140; 92 Ga. d02 (5).

E. A. Wilkinson, for plaintiff in error.

J. A. Laing, solicitor-general, by Reuben R. Arnold and J. B. Ridley, contra.


author: Hill, C. J.

text:
    1081.
    NELSON v. THE STATE.
    1. The lethal character of the weapon used in making an assault may be inferred from the effect and nature of the wound inflicted.
    2. The intent to kill may be shown by the use of a deadly weapon in a manner likely to produce death.
    3. There is some evidence to warrant the verdict, and this court can not interfere.
    Indictment for assault with intent to murder, from Eulton superior court — Judge Eoan. February 15, 1908.
    Argued March 31,
    Decided April 9, 1908.

      Frarüe L. Haralson, for plaintiff in error.

      C. D. Hill, solicitor-general, contra.
   Hill, C. J.

Hoifier Nelson was convicted of an assault with intent to murder. He made a motion for a new trial on the usual general grounds, and on the following special grounds: (1) that the evidence does not show that the weapon used in the assault was a weapon likely to produce death; (2) that the evidence does not show that he intended to kill, at the time he made the assault.The motion was overruled.

The material evidence is substantially as follows: The person assaulted was a white boy, 16 years of age. At the time of the assault he was running an elevator in the building of the Atlanta Constitution. The defendant was employed in the same building, and, according to the testimony of the prosecutor, was drunk and disorderly and quarreling with another boy, and the jirosecutor admonished him to quit his disorderly conduct, or he would have to get off the floor; and the defendant■ said he would get off when he got “good and ready,” and demanded that the prosecutor would take him down in the elevator, and threatened that if this was not done, he would kill him. The prosecutor testified: “I said H don’t hurry for nobody.’ He said, You take me down in a hurry, or I will kill you;’ and while I had my left hand on the lever and my right hand on the door, and I went to open the door of the shaft, he hit me in the temple with the butt end of his knife. I hit back at him with my left hand, and he dodged, and turned the knife over and struck me back of the ear.” There was no other witness to the difficulty. The defendant, in his statement, said, that he got on the elevator, and the prosecutor opened the door for him to get in, and said, “You look like you didn’t like what I said to you a while ago.’ I said, ‘What did you say?’ He says, ‘I told you a while ago Tom could whip you.’ I said, ‘He .couldn’t do no such thing.’ He said, ‘You are a God damn liar; don’t dispute my word.’ He struck me back of the head with a stick. Then he struck me again, and I threw up my arm and said, ‘That’s all right; I didn’t mean no harm;’ and he struck me again. About that time I had a piece of zinc which I had been using to raise the glasses out of the lye. I was glass washer. I had it in my hand, and, in trying to keep him from hitting me, I struck him with it. A straw hat I had on he split all to pieces. He stopped hitting me when I struck him. I did not want to hurt the man at all. I just wanted to stop him from hitting me. That was all. I wasn’t drunk. I do take a dram sometimes, but I don’t drink it around my work.” It was the duty of the prosecutor to keep order in the halls of the building. The defendant was several years older than the prosecutor. Immediately after he was cut, the prosecutor ran out of the elevator, and the blood was “spurting out of his ear, and he appeared to be very seriously hurt.” A witness who then saw him testified that he did not know whether the boy would live until he could get a doctor, from the way the blood was gushing out of his face.

The physician testified, that the wound was in the prosecutor’s ear, and that there had been a hemorrhage from it. “It was a. dangerous wound. I should consider the ear a very dangerous place to stick a man with a knife. The instrument that made that wound was a weapon likely to produce death. The knife that made that wound was a weapon likely to produce death, in the place where it was stuck.” On cross-examination, the physician testified: “I don’t know what kind of weapon produced that wound. I don’t know whether it was a pocket-knife or not. I didn’t examine the wound, and couldn’t tell whether it was a smooth cut or a jagged one.”

Is the evidence sufficient to prove that the weapon used was one likely to produce death? The indictment charges that the weapon was a knife, and that this knife was a weapon likely to produce death. It is well established that an allegation as to' the character of the weapon used must be proved either by direct testimony or by an exhibition of the weapon to the jury (who can then determine the question for themselves), or by evidence as to the nature of the wound inflicted by the weapon, or other evidence sufficient to warrant the jury in finding that the instrument used was calculated to produce death, when used in the manner in which it was used. Paschal v. State, 125 Ga. 279 (54 S. E. 172); Mathews v. State, 104 Ga. 499 (30 S. E. 727). The testimony of the prosecutor is positive that the weapon used was of the kind alleged in the indictment. Was this knife a weapon likely to produce death, when used in the manner in which it was used by the defendant in making the assault? Of course it can not be said that every knife is a weapon likely to produce death; but it would be a knife of a very unusual kind that would not be likely to produce death, when used to stab a person in the ear. The physician, an expert witness, testified that he considered the ear a very dangerous place to stab a man with' a knife. He further said, that the wound inflicted at this dangerous place was “a dangerous wound,” that the instrument that made it was an instrument likely to produce death, and that the knife that made the wound was a weapon likely to produce death when stuck in the place where it was stuck. It is true, on the cross-examination he testified that he did not know what kind of weapon produced the wound, that he did not know whether it was a pocket-knife or not; but this language must be taken in connection with his testimony on direct examination; and, so construed, it means that in his opinion as an expert, whatever instrument was used, whether a knife or some othe^ instrument, it was a weapon likely to produce death; and he bases his opinion upon the dangerous character of the wound and the place where it was inflicted. We do not think his statement that he did not examine the wound -and could not tell whether it was “a smooth cut or a jagged one” changes materially the effect of his testimony; for a surgeon who cleanses and dresses a wound can form an opinion as to the character of the weapon that inflicted it, and the dangerous character of the wound, even though he does not make á sufficient examination to tell whether the cut was a smooth or a jagged one. We can not say that the jury was not authorized to find, from the evidence, that the knife used was a weapon likely to produce death.

It was next insisted, that the evidence was not sufficient to show an intent to kill, and that this was necessary, to justify a verdict for assault with intent to murder. This statement of the law is unquestionably sound; but the intent witb which an offense is committed is to be determined by the jury. The testimony of the prosecuting witness is that the defendant stated that he would kill him unless the witness took him down on the elevator. The fact that the defendant first struck the prosecutor with the butt end of the knife, and then turned it around in his hand, and stabbed him with the blade in the ear, it seems, would authorize the inference that his intent was felonious.

It is insisted by counsel for plaintiff in error that the evidence showed a mutual combat, in which neither party was more at fault than the other; but the undisputed evidence is that the party assaulted had no weapon, and the testimony for the State is that the defendant was the aggressor.

We confess that the verdict in this case does not altogether meet our approval. We would have been better satisfied if the verdict had been for stabbing, instead of a felony; but the jury and the learned trial judge occupied a much better position to weigh the evidence and determine the degree of guilt than this court. If there is any injustice in this verdict, it can be and doubtless will be corrected by the able and just judge who will make a final disposition of. the case in the sentence.

Judgment affirmed.

Bussell, J., concurs dubitante.


text:
    668.
    GUDE & WALKER v. BAILEY COMPANY.
    1. In contracts for tlie sale of personal property, wherein a time is named, for delivery, it is a question of construction, in each particular case, as to whether or not the time named is a material part of the contract, a breach of which will give the other party a right of action therefor. In the present case time was of the essence of the contract.
    2. Where a contract contains a term prescribing a time for performance, the term as to time may be enlarged by an agreement based on a consideration.
    (а) An offer by the promisee to waive damages resulting from the breach of the term of a contract as to the time of performance, on condition that the other party thereafter make prompt delivery, becomes a valid agreement only upon compliance with the condition.
    (б) After the plaintiff had broken the term of the contract, as to the time for the delivery of lumber, the defendants wrote, “If you will get us this material promptly, however, there will be no question of damages of any kind, and we trust you will do so.” The lumber was thereafter delivered at intervals extending through several months. Held, that it is a question for the jury, to be determined in the light of all. the circumstances, and the exigencies of the contracting parties, as to whether or not the delivery of the lumber was within the time limited by the offer.
    (e) The mere acceptance of property after the time for delivery named in the contract is not necessarily in every case a waiver of the right to claim damages for non-delivery at the time prescribed.
    Complaint, from city court of Atlanta — Judge Eeid. May 31, 1907.
    Argued March 31,
    Decided April 9, 1908.
    The plaintiff in the court below, the EL J. Bailey Company, contracted to deliver to the defendants, (Jude & Walker, certain lumber. The contract was largely made by correspondence, the material portion of which is as follows: On June 7, 1905, the defendants wrote to the plaintiff a letter of inquiry, saying, “We would like your price on the enclosed approximate bill of yellow pine lumber f. o. b. Atlanta. Please advise us how promptly you could deliver same. A prompt reply will oblige.” »On June 10 the plaintiff acknowledged receipt of the letter and quoted prices, concluding as follows:- “We could commence shipment in two to three weeks and complete same in seven to eight weeks, and it is possible we might do a little better than this. Please let us hear from you if we can interest you.” The defendants wrote on June 16, “We hereby accept your proposal of the 10th instant to furnish us a bill of yellow pine lumber at the prices named f. o. b. Atlanta; the shipments to begin in two or three weeks and to be completed, except flooring and partition, in seven to eight weeks. We enclose a corrected bill of material; the former one being an approximate one. Kindly acknowledge receipt of this and oblige.” Qn June 19 the plaintiff replied: “Your order for yellow pine lumber for G-uthman Laundry at hand. Same will receive our careful and best attention.” No part of the lumber was shipped for six or eight weeks. On August 10 the defendants telegraphed to the plaintiff, “When will you begin shipping large timber ? Answer;” and a few clays later they wrote as follows: “On June 16 we sent you an order for lumber for the Guthman Laundry building in this city, which was to be shipped complete, excepting ceiling and flooring, in seven to eight weeks. This time has now elapsed, and we are suffering for want of lumber. Unless we get it promptly we will be damaged and must hold you responsible. We have written and wired asking you about it repeatedly, but have had no answer recently.” On the 17th of August the plaintiff wrote, “your favor of the 16th inst. to hand, regarding your order for timber for the Guthman Laundry building. We beg to advise that we will not be responsible for any damages of any kind, and this is to put you on notice to that effect.” In response to this letter the defendants wrote on the 19th, “We have tried to be patient about this lumber; but there is a considerable difference between the two or three weeks to which shipments were to be started and the eight or nine weeks that have elapsed since the order was placed. If you will get us this material promptly, however, there will be no question about damages of any kind, and we trust you will do so.”' So far as the record shows, the plaintiff never replied to this letter; but the lumber was shipped from time to time thereafter and accepted by the defendants, the deliveries being finally completed in November or December. The plaintiff sued on account for the contract price of the lumber; the defendant sought to recoup various items of damages which they claimed to have suffered by reason of the plaintiff’s failure to ship the lumber within the time limited by the original contract. Whether an allowance of all these items of damage would be proper, as being within the contemplation of the parties, is not now before the court. The trial judge directed a verdict for the plaintiff, for the full contract price of the lumber, with interest; and the defendants excepted. The further facts necessary to an understanding of the points involved appear in the course of the opinion.

      Ellis, Wimbish & Ellis, for plaintiffs in error.

      John A. Boylcin, contra.
   Hill, C. J.

When parties enter into a contract for the sale of personal property and name therein a time at which delivery is to take place, the question as to whether or not the time named is a material.part of the contract is a question to be decided in each case by a construction of the language used, in the light of the other relevant circumstances. Sneed v. Wiggins, 3 Ga. 94, 102; Civil Code, §3675 (8). As to the respective functions of the judge and the jury in such eases, see Civil Code, §§3672 et seq. The cardinal rule of interpretation is whether or not the parties intended that time should he oE the essence. “In contracts of merchants, time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of providing funds to pay for the goods, or of fulfilling contracts with third persons. A statement descriptive of the subject-matter, or some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, in the sense in which that term is used in insurance and maritime law, that is to say, a condition precedent, on the failure or non-performance of which the party aggrieved may repudiate the whole contract.” Norrington v. Wright, 115 U. S. 188, 203 (6 Sup. Ct. 12, 29 L. ed. 336); Cleveland Rolling Mills v. Rhodes, 121 U. S. 255, 261 (7 Sup. Ct. 882, 30 L. ed. 920), and cit.; McGrath v. Gegner, 77 Md. 331, 336 (26 Atl. 502, 39 Am. St. R. 415); 9 Cyc. 604. In the case at bar it is plain that the parties understood that time was a material term of the contract. This is shown by the letters; and even if they are not conclusive, the undisputed evidence removes all doubt on the question. In the véry first letter written, the plaintiff was specifically asked as to how promptly delivery of the lumber could be made; and the reply was that delivery would commence in two to three weeks. The defendant Walker testified at the trial that he told the plaintiff’s Atlanta manager, with whom most of the negotiations were carried on, that time was as much of an object as money, and was assured by him that his principal would keep the stipulation as to time, without fail. See Savannah Ice Co. v. Amer. Refrigerator Transit Co., 110 Ga. 142, 145 (35 S. E. 280). It therefore follows that the plaintiff was guilty of a breach of the contract, by not delivering the lumber within the time limited. According to the contract, delivery was to commence in two to three weeks; and the evidence shows that no part of the lumber was delivered within seven to eight weeks. For a breach of this term of the contract, the defendants could have treated the contract as at an end, and have instituted suit for damages caused by non-performance on the part of the sellers. This they did not do; but wrote to the plaintiff complaining of the breach and. stating that they would be damaged thereby in various ways, for all of which they would hold the plaintiff responsible. The plaintiff replied, expressly repudiating liability under the contract, for the items of damage claimed. After the receipt of this letter, the defendants wrote, on August 19, “If you will get us this material promptly, however, there will be no question about damages of any kind, apd we trust you will do so.” In view of the previous negotiations, this letter could mean but one thing, namely, the defendants were willing to waive all claim for damages growing out of the plaintiff’s non-performance within the time limited, if thereafter the lumber should be delivered promptly. That this was the purpose of the letter is further brought out by the testimony of Walker at the trial. He says: “On August 19th, I wrote this letter stating that there would be no question about damages if the material was promptly coming; if it came promptly I would not hold them for damages. That was a further inducement to get it here. Now that was after the time for delivery. That was after I found that I could not get it promptly anywhere else.” It is equally plain from the letter, as well as from the undisputed evidence, that the offer to waive was not absolute or unconditional; it was expressly conditioned upon the plaintiff’s thereafter delivering the lumber promptly. See McCroskey v. Hamilton 108 Ga. 646 (34 S. E. 111, 75 Am. St. R. 79). The defendants, in effect, said, “We offer to waive or renounce our claim for damages growing out of your breach, in consideration of your hereafter promptly delivering to us the lumber.” It will thus be seen that the letter, in and of itself, was nothing more than an offer; and that it needed a consideration, to make it binding. The consideration contemplated was the subsequent prompt delivery of the lumber by the plaintiff. The plaintiff was not legally bound to deliver the lumber at any other time than that mentioned in the original contract; and his delivery of the same at a subsequent time would be a good consideration for the defendants’ offer to renounce the claim for damages, and would have the effect of enlarging the time within _ which the lumber could be -delivered. Stryker v. Vanderbilt, 25 N. J. L. (1 Dutcher) 482 (2); Teal v. Bilby, 123 U. S. 572 (8 Sup. Ct. 239, 31 L. ed. 263); Thornhill v. Neats, 8 C. B. N. S. 831 (98 Eng. C. L. 539); Pinckney v. Dambmann, 72 Md. 173 (19 Atl. 450); Mfg. Co. v. U. S., 17 Wall. 592 (21 U. S. (L. ed.) 715); Cornish v. Suydam, 99 Ala. 620 (13 So. 118). The learned trial judge, however, held that the letter itself was a complete waiver. In doing so he overlooked the fact that it was expressly conditioned as above indicated, and that until tbe condition had been complied with, it was a nudum pactum. Bennett v. Hyde, 92 Cal. 134 (28 Pac. 104); McCarter v. Turner, 49 Ga. 311; Fowler v. Coker, 107 Ga. 820 (35 S. E. 661). The defendants contend that the plaintiff did not comply with its offer and did not deliver the lumber promptly thereafter. This letter was written on August 19; the final instalment of the lumber was not shipped until some time in November or December. Whether or not this was a compliance with the condition upon which the defendants made their offer to waive is, under the evidence in the ease, a question for the jury, to be determined by them in the light of all the surrounding circumstances and the exigencies of the contracting parties. Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 (2), (59 S. E. 713); 9 Cyc. 611. Under some circumstances it might be called a prompt delivery, and under others it would not. In view of the evidence in the record, reasonable men might draw different inferences as to whether the deliveries made after the letter of August 19 were prompt or not. It was therefore a question for the jury, and not for the judge; and he erred in directing a verdict for 'the plaintiff.

But counsel for the plaintiff argues that the mere acceptance of the property, under the circumstances, was a waiver, whether the deliveries were promptly made or not; and he cites cases wherein it was held that the forfeiture of an insurance policy was waived by an acceptance of the overdue premium, and eases where, by accepting overdue rent, a landlord was held to have waived the clause in the lease as to forfeiture. That such a principle is not applicable to an ordinary contract for the sale of personal property is not now an open question in this State. Van Winkle v. Wilkins, 81 Ga. 94 (7), 104 (7 S. E. 644, 12 Am. St. R. 299). In that case Judge Bleckley says: “It was urged in argument that receiving the machinery was a waiver both of its defects and of damages resulting from its non-delivery in due time. Why' so? After expensive preparation to have and use a mill, it was probably much better to have one of inferior quality than none at all. . . As to the damages resulting from delay, these had already been sustained when the mill was received; its reception, in so far as it affected them at all, could only hinder more from accruing; it certainly could not increase them. There was no inconsistency between reception of tlie machinery and retention of the claim Tor damages on account of delay to furnish it by the time stipulated. To hold that there was a waiver by implication would be very unreasonable.” See also Poland Paper Co. v. Foote & Davies Co., 118 Ga. 458; Sneed v. Wiggins, 3 Ga. 94, 103; Underwood v. Wolf, 131 Ill. 425 (9), 442 (23 N. E. 598, 19 Am. St. R. 40); 2 Mechem on Sales, §1389; Dermott v. Jones, 23 How. 220 (16 U. S. (L. ed.) 442). In Perry Tie Co. v. Reynolds, 100 Va. 264 (40 S. E. 919), the vendees of lumber, as in this ease, accepted it after the time for delivery had gone by, and the vendors claimed that such acceptance was a waiver of damages for non-delivery within the time limited. The court, however, held: “The acceptance by a vendee of a late delivery will not be deemed a waiver of the consequent damages sustained by him, where it appears that there was no intention to waive such damages.” The only intention to waive damages, appearing in the case at bar, is the letter of August 19; and the intention there expressed was limited by a condition to be performed by the vendors. The waiver should be carried no further than the intention. See Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 651 (23 L. ed. 341). It would do violence to the plain and unequivocal intention of the defendants, as expressed in their letters and as shown by their prior and subsequent conduct, to hold that they had made an absolute waiver of damages, merely by accepting the lumber, unless the acceptance was within a reasonable time after the letter of August 19 was written. Judgment reversed.


text:
    757.
    GRINER et al. v. BAGGS & PERRY.
    1. Where a purchaser of fertilizers defends against the payment of the price on the ground that the fertilizers were not tagged or branded as required by law, before they were offered for sale, the burden is on him to establish the defense.
    2. The act of December 18, 1901, respecting the manufacture and sale of fertilizers is by its terms exhaustive, and supersedes former regulations (excepting those expressly preserved) on the subject covered by its provisions.
    3. Under the statute mentioned above, where cottonseed meal is offered for sale as a fertilizer, it is not necessary that the sacks containing it should be branded, but the manufacturer’s guarantee may legally be stamped or printed on the reverse side of the tag furnished by the agricultural department to indicate payment of the inspection fee, and attached to the sacks.

      (a) This is in consonance with the practice sanctioned by the agricultural department, of which we take judicial cognizance.
    Complaint, from city court of Moultrie — Judge Shipp. September 5, 1907.
    Argued December 16, 1907.
    Decided April 20, 1908.

      T. II. Parker, for plaintiffs in error. W. A. Govingion, contra.
   Powell, J.

This action arose over the purchase-price of 98 sacks of cottonseed meal sold by the plaintiffs to the defendants as fertilizing material. The defendants pleaded that the cottonseed meal was neither branded nor tagged as required by law. Their contention was that in sales of fertilizers the law requires that the guaranteed analysis shall be branded on the sacks, and also that a tag indicating payment of the inspection fee shall be attached. There was evidence from which (though it was disputed) the jury might have found that, while the sacks were not branded, they were tagged, and that the tags bore the guaranteed analysis as to the quantity of ammonia or nitrogen, which, as to fertilizers, are regarded as the same thing. The verdict was for the plaintiffs. The defendants except to the refusal of a new trial. Their assignments of error upon the admission and rejection of testimony are not sufficiently specific to present any question for review by this court. Those exceptions which are in proper form are disposed of by the following rulings.

The burden of proving that the fertilizers were not tagged or branded as required by law was upon the defendant. Young v. Murray, 3 Ga. App. 204 (59 S. E. 717).

The act approved December 18, 1901 (Georgia Laws 1901, p. 65), entitled “An act to regulate the registration, sale, inspection and analysis of commercial fertilizers, acid phosphates, fertilizer materials and chemicals, in the State of Georgia, and to consolidate all laws relating to said sales, inspection and analysis, and to repeal all other laws or parts of laws in conflict therewith,” manifests the intention of being exhaustive and of superseding former regulations on the subject, except so far as they are preserved in terms by the act itself. See Fincher v. Collum, 2 Ga. App. 741 (2), 745, and cit. (59 S. E. 22). The present transaction, which occurred in 1903, will therefore be measured by that statute.

Under the act of December 18, 1901, supra, manufacturers and dealers are required, before offering for sale in this State any commercial fertilizer or fertilizer material, to brand upon or attach to each bag, barrel, or package the brand name, the weight, the manufacturer’s address, and a guaranteed analysis of the fertilizer, “giving the valuable constituents of the fertilizer in minimum percentages only.” The commissioner of agriculture is given the power of general supervision over the subject, and the authority to make further consistent rules and regulations. The valuable constituent of cottonseed meal, so far as its use as a fertilizer is concerned, is ammonia or nitrogen. For a long number of years it has been the custom not to brand the guaranteed amount of ammonia or nitrogen on the sacks, but to print it on the inspection tag, attached to the sacks; and this practice still continues, with the approval of the commissioner of agriculture. While cottonseed meal does contain some phosphoric acid and some potash, the amount thereof is so small as to be negligible; and the nitrogen alone is regarded as the “valuable constituent.” By an examination of any of the bulletins of the department of agriculture it may be seen that in publishing the result of inspections made of fertilizers sold at the different factories, as to cottonseed meal the percentage of nitrogen alone is noted. The statute itself seems to leave it optional whether the analysis shall be printed on the sack or on the tag, but by a ruling of the commissioner of agriculture (Ruling No. 15), the branding of all fertilizers and fertilizer material shall be upon the sacks or packages themselves, except in the case of cottonseed meal, as to which the analysis, etc., is permitted to be printed on the tag. We are all familiar with these tags. On one side is the certificate of the commissioner of agriculture in these words, “Georgia. Cottonseed Meal. Registered. Season of [1906-1907]. T. G. Hudson, Com. Agl.” On the other side, usually printed with rubber stamp, is the manufacturer’s guarantee as follows: “100 lbs. Cottonseed Meal. Guaranteed analysis: 6:18 Nitrogen. Manufactured by.................. at.......................” This method of complying with the statutory requirement has received the long and unbroken sanction of the agricultural department, which has the administration of these things in charge; and only in a very plain case would we feel authorized to pronounce a practice of that so ably and intelligently officered department illegal. We take cognizance of the practice of the departments of government and give them weight in the construction of statutes. Temple Church v. Terminal Co., 128 Ga. 680 (58 S. E. 157). The jury was authorized to find that the law had not been violated by the sellers; and the judgment of the court below is therefore Affirmed.


text:
    876.
    SONS AND DAUGHTERS OF JOB v. WILSON.
    1. An admission contained in an answer of the defendant, filed by him in another case, is admissible in evidence against him when pertinent to an issue involved in the ease on trial.
    2. The finding of the court without the intervention of a jury was demanded by the evidence.
    Certiorari, from Twiggs superior court — Judge Martin. October 17, 1907.
    Argued February 4,
    Decided April 20, 1908.

      M. J. Carsiuell, for plaintiff in error. L. D. Moore, contra.
   Hill, C. J.

Annie Bell Wilson brought suit in the city court of Jeffersonville against the Sons and Daughters of Job. Her suit was based on the following facts, which were not controverted: The defendant was a benevolent assessment company incorporated under the laws of Georgia. The plaintiff’s husband, Jake Wilson, was, at the time of his death, a member of the Sons and Daughters of Job, in good and regular standing. He left no will designating to whom his benefit in the association should be paid, and the plaintiff claimed that she was entitled to the benefit, as the sole surviving member of the family of the deceased member. Buie No. 34 of the by-laws of the corporation was introduced in evidence, and is as follows: “After the deth of inny member be Longing to this society in 30 day after the deth each grone member shall pay 50 cents to hoosoever the Ded member made his or her will too. Children shall pay 25 cts. assessment.” No by-law or rule of the society was introduced designating to whom payment should be made in the event that the member died without making a will designating & beneficiary; but testimony was introduced by the plaintiff as to the custom of the association in such event, the custom being, whenever a member died without making a will, to pay the assessment over to the members of his family then living. There was also introduced, over the objection of the defendant’s counsel that it was irrelevant, an admission of the defendant, made in another case against it, the admission being contained in its answer to that suit, and being as follows: “That under its charter and by-laws, a member reserves the right to nominate the beneficiary, and in event no beneficiary is named, the same is paid to the widow or nearest member of his family, as the by-laws direct.” It was admitted that the plaintiff was the widow of Jake Wilson, the member, and was the only member of his immediate family living with him at the time of his death; that he had only one child living, a son by a former wife, who was thirty-five years old and had a family of his own. This married son was not a member of his household and received no benefit from his father’s labors, contributed nothing to the support of his father, and was in no way dependent upon him, but had and maintained an independent household. The amount of the benefit assessment at the death of the member was admitted to be $63.50, of which $o had been paid to the widow by the association after his death.

The case was submitted to the judge of the city court, without the intervention of a jury, and he found in favor of the plaintiff the sum of $58.50, this being the amount of the admitted assessment less the $5 paid. To this judgment a petition for certiorari was brought to the superior court, and the writ was sanctioned. On the hearing of the certiorari, the superior court dismissed the same and entered judgment against the plaintiff in certiorari and its surety on the certiorari bond. This judgment is excepted to. The grounds of error insisted on in this court are: (1) That the judge of the city court erred in admitting in evidence the admission of the defendant in the other case. (2) That the finding of the judge of the city court was without evidence to support it, and contrary to law, first, because the plaintiff in the original suit was not the only member of the deceased member’s family, there being a surviving son who was a member of the family besides the widow; and second, because the member not having by will designated any beneficiary, the amount of the benefit assessment at his death became a part of his estate.

.The ruling of the judge of the city court, admitting in evidenee an extract taken from the answer of the defendant, made and filed by it in another case, was proper, certainly as against the objection that such evidence was irrelevant. One of the issues in the case on trial was as to who should receive the benefit assessment, as the deceased member left no will designating a beneficiary; and the defendant’s admission in another suit, that in such event the benefit is paid by the corporation under its by-laws to the widow or nearest member of his. family, was certainly pertinent and material evidence. Printup v. Patton, 91 Ga. 422 (18 S. E. 311). Of course, the best evidence ivas the by-laws; but no objection to the testimony was made on that ground. But even if the admission of the testimony had been erroneous, the error would be immaterial, as the undisputed evidence is that the custom of the society, in the absence of a will or other designation by a deceased member of a beneficiary, was to pay the benefit to the members of his family living at the time of his death. The existence of this custom was conceded by the attorney for the plaintiff in error, in his brief filed in this court.

We can not see how, under the evidence, any other finding than the one made by the court could have been rendered. It was conceded, that the deceased member was in good standing at the time of his death; that he left no will designating any beneficiary, to receive the assessment; and it was undisputed that his widow, the plaintiff, was the only member of his immediate family. Tt was also conceded that where no beneficiary was designated by a member, it had been the custom of the association to pay the benefit to the surviving member or members of his family; and the defendant admitted in another suit that this custom was in accordance with the by-laws of the association. Even if the evidence had not demanded this finding, we think that where a member of a benevolent association, such as this, dies without having designated a beneficiary, by will or otherwise, his benefit assessment should be paid to 'his family, and is not a part of his estate. The primary purpose of associations of this character is to take care of the members during sickness, to pay expenses of last sickness, and to contribute to the assistance of their dependent and helpless families after their death. Under the facts of this case, according to the decision of this court in Starnes v. Atlanta Police Relief Association, 2 Ga. App. 245 (58 S. E. 481), the widow alone constituted the surviving family of the deceased member. We therefore conclude, that the finding of the judge of the city court was properly sustained by the judge of the superior court on certiorari, and that the judgment of the latter court, dismissing the certiorari and entering up judgment on the certiorari bond,'was demanded by the evidence. Judgment affirmed.


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    974.
    CARTER & FORD v. BROWN.
    The evidence demanded the verdict, and there was no error in refusing a new trial.
    Claim, from city court of Nashville — Judge Peeples. January 14, 1908.
    Submitted February 25,
    Decided April 20, 1908.

      Hendricks & Christian, for plaintiffs. Buie & Knight, contra.
   Russell, J.

A fi. fa. against J. T. Brown and in favor of Carter & Ford was levied on certain personal property, which was claimed by Mrs. Belinda Brown. The jury rendered a verdict in favor of the claimant, finding the property not subject to the plaintiffs’ judgment. Thereupon the plaintiffs moved for a new trial, which was refused, and they now except to the judgment refusing a new trial.

Besides the general grounds, error is assigned, in the motion for new trial, on various excerpts from the charge of the court. Regardless of the fact that it was not asked or ordered that the charge of the court in full be transmitted to this court (by reason 'of which this court is unable to judge whether the language excepted to was qualified by other language used in the charge), the ’ errors assigned upon these excerpts are immaterial, for the reason that under the undisputed evidence in the case the jury could not properly have returned another verdict than that rendered. There was no evidence that the buggy and the two-horse wagon which were levied upon had ever been the property of the defendant in fi. fa. The heat of the battle, as far as it went, arose over the question whether the iron-gray mule, “Pet,” belonged to the claimant, Mrs. Belinda Brown, or to her husband, the defendant in fi. fa. This mule was the only article levied upon as to which there was any evidence tending to show that the title to the property had ever been in the defendant in fi. fa.; and as to this the salesman from whom the mule was purchased testified that the defendant in fi. fa. told him, at the time he was purchasing the mule, that he was buying it for his wife. All that was testified to by the next two witnesses for the plaintiffs in fi. fa. was, that they had never heard that the mule was the property of the claimant, and that, according to their recollection, certain notes, given for the payment of the mule, were signed by the defendant in fi. fa. individually. No matter what result the jury might have reached, if no other testimony had been offered by the plaintiffs in error, the verdict was fully authorized by the evidence given by the claimant herself; and she was introduced by them as a witness. The testimony introduced by them which tended to show that the property should be subject to the levy of the fi. fa. was circumstantial, but perhaps would have sustained a verdict finding the property subject; but when they introduced Mrs. Brown, she explained; to the satisfaction of the jury, every circumstance previously presented which was damaging to her claim. According to her testimony, her husband, the defendant in fi. fa., had no property and paid no taxes except his poll tax, and, being her general agent, had bought the property levied upon, merely as her agent. If the plaintiffs in fi. fa., had proved anything by the interrogatories of their prior witnesses, they explained the circumstances referred to by them, by direct evidence which demanded a finding in favor of the claimant. A new trial will not be granted for errors in the charge, when the evidence demands the verdict rendered.

The plaintiffs in fi. fa. complained of the court’s charge that ■“the issue in the case, gentlemen, is, was this property; at the date of the rendition of the judgment upon which this fi. fa. is based, to wit, in February, 1905, the property of J. T. Brown, or was it the property of Belinda Brown? That is the issue that you are to try.” The error assigned is, that it limited the title to the property to the month of February, 1905; and it is contended that the court should have charged the jury that if they believed that the defendant owned the property levied upon, at any time between the date of the judgment and the levy, the property would be subject. After a review of the evidence, we find n'o error in this instruction; because there is no evidence that the defendant owned tile property subsequent to tlie date of the judgment or at the time of the levy. The testimony of the plaintiffs’ witnesses as to the sale of the property and its purchase by J. T. Brown related to the 3'ears 1901 and 1902; and the judgment was not obtained until 1905. The only witness who testified anything as to the possession of the property after the notes were paid and after the judgment was rendered was the claimant herself, who testified that the mule was hers and in her possession and control, as well as that it was originally purchased by herself through the defendant in fi. fa. as her agent. While the principle upon which the plaintiffs in error insist is sound, there was no evidence which would have authorized any other instruction upon the subject than that delivered by the trial judge.

There is no reason why the plaintiffs in error should complain of the instruction which is made the basis of the next assignment of error, though the defendant in error would have had good cause for complaint had the judgment been against her, instead of in her favor. According to this exception, the court charged that if the defendant in fi. fa. was in possession of the property on February 13, 1905, when the judgment was rendered, and Mrs. Belinda Brown was not in possession of it, the jury would be authorized to find for the plaintiffs. The court followed this instruction with this statement: “You look to the evidence and see if the title was in J. T. Brown at the date of the rendition of the judgment, on February 13, 1905; and if the title was in J. T. Brown then, you would be authorized to find the property subject,— you look to the evidence and see what the facts disclose.” The last instruction was correct, and, as we have said before, was in accord with the evidence; because it was undisputed that if Brown ever bought the property at all, either for himself or his wife, it was prior to the date of the judgment; and as there was no evidence whatsoever that he ever sold the property, it necessarily follows, that if he bought the property originally for himself, he owned it at the time of the rendition of the judgment, and had continued to own it up to the trial. For that reason it was- necessary for the judge (if, indeed, he did omit the statement) to state to the jury that if they found that the title was in J. T. Brown at any time srtbsequent to the rendition of the judgment and up to the time of the levy, the property would be subject. One of the complaints of the plaintiffs in error is that the instruction quoted restrained the jury from investigating and finding, if they could, from the evidence, that the defendant in fi. fa. was in possession of the property between the date of the judgment and the date of the levy; and it is complained.that for this reason the charge is in opposition to the law of the case, and a gross error. There was no error in this instruction; because there was no evidence that the mule was ever in the possession of the defendant in fi. fa. subsequent to the judgment. None of the witnesses testified that they knew anything as to the possession of the property after February 13, 1905, except Mrs. Brown, and she testified that not only ever since that time, but also for several years prior thereto, the mule had been in her possession; and this testimony was not contradicted.

If the court should not have charged upon the necessity.of a close scrutiny of all transactions between husband and wife in order to prevent fraud, it is nevertheless very apparent, from the excerpt to which exception is taken, that the charge of the court upon that subject, while perhaps subject to the objection that it was not authorized by the evidence, was highly favorable to the plaintiffs in error. For that reason they will not be heard to urge the only objection that might be offered to this charge, to wit, that there was no evidence of any purchase or sale between the husband and the wife. We are not prepared to hold, however, .that the charge is erroneous upon this ground. It certainly would have been proper if there had been no evidence that the defendant was in possession of the property after the date of the judgment; because the claimant had testified that her husband was her agent, and that the property had been bought for her by him as such agent; and the jury might properly have been put upon notice that they should consider the relationship of the parties in determining whether Mrs. Brown really had constituted her husband her general agent, or whether the alleged agency was a mere subterfuge intended to defeat the rights of her husband’s creditors.

The court did not err in refusing the request presented by counsellor plaintiffs in error; because the court is not required to give an instruction which is requested, unless it be perfect, nor to perfect it in order to present the principle relied upon. The fact that the defendant in fi. fa. gave his note for an unpaid balance of the purchase-money of the mule would not put the title to the mule in him, if, as a matter of fact, all of the purchase-price, both before the note was given and thereafter in settlement of the note, was paid by the wife or by her agent with her money. And there is no evidence disputing that this was the case in the present instance. See Tuttle v. Exchange Bank, 90 Ga. 653 (16 S. E. 955).

The plaintiffs in fi. fa. seem to have been placed in this dilemma: they could not make out a prima facie case by their witnesses, and were reduced to the necessity of introducing the claimant herself, whose evidence was not such as to authorize a verdict in their favor. Upon the facts, a verdict in favor of the claimant was demanded by the law and evidence; and it is well settled that a reversal of the judgment refusing a new trial, under such circumstances, will not be granted for errors in a charge. Danielly v. Colbert, 71 Ga. 218; Pascal v. State, 77 Ga. 596 (3 S. E. 2); Prather v. Railroad Co., 80 Ga. 428 (2), (9 S. E. 530, 12 Am. St. R. 263). Judgment affirmed.


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    994.
    Ingram v. Savannah Electric Company.
    Action for damages, from city court of Savannah — Judge Freeman. December 31, 1907.
    Submitted March 12,
    Decided April 20, 1908.
    The plaintiff sued for $1,000. There was a verdict in his favor for $1. He made a motion for a new trial, on the grounds that the verdict was contrary to law and to the evidence, and without evidence to support it. The motion was overruled, and he excepted.

      George W. Owens, for plaintiff.

      Osborne & Lawrence, for defendant.
   Hill, C. J.

In a suit to recover damages resulting from an assault and battery, the extent of the injury, and the existence and character of mitigating circumstances, are to be determined exclusively by the jury; and a verdict for nominal damages, approved by the trial judge, will not be disturbed by this court. Judgment affirmed.


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    995.
    TEASLEY, guardian, v. BRENAU ASSOCIATION.
    1. In a suit upon a note signed by a' guardian, 'containing á provision that the amount therein promised is to be paid out of the ward’s estate in the hands of the guardian, when available, the plaintiff must allege and prove, that the time fixed for the payment of the note, has arrived, and that the condition can be complied with. While the note will be construed as an individual undertaking of the maker (regardless of his representative capacity), still the contract is only a conditional promise to pay.
    Complaint, from city court of Hartwell — Judge Hodges. December 17, 1907.
    Submitted March 12,
    Decided April 20, 1908.

      A. A. McOurry, for plaintiff in error. A. G. & Julian McGwrry, contra.
   Russell, J.

The defendant in error brought suit against T. W. Teasley, as guardian of Myrtice Vickery, upon a promissory note which contained a condition that the amount acknowledged to be due was to be paid out of the ward’s estate in his hands as guardian, when available. The note was signed 'by him as guardian. The third paragraph of the petition alleges that “said T. W. Teaslejr, as guardian aforesaid, has a considerable estate in his' hands as guardian of said Myrtice Vickery, more than sufficient to pay this debt, which is available for that purpose.” The defendant, in his answer, admitted the execution of the note, but denied that the amount was clue, alleging that no part of the estate mentioned in the third paragraph of the petition is available, for the reason that “he, as guardian, has paid out four or five hundred dollars more than the'interest amounts to in said estate, and that said note states it is to be paid out of her estate in his hands as her guardian when available.” In the fourth paragraph of the answer the defendant denies that the mote is due, “as there are no funds available to pay the same, and will not be until April, 1909, when said ward will become of age.”' ■ Upon the trial of the case the plaintiff introduced the note in evidence, and closed. The defendant offered no evidence, and the court directed a verdict for the plaintiff. Exception' is taken to the order overruling the defendant’s motion for new trial, which was based upon the general grounds and-an additional ground assigning error on the court’s directing the verdict.

We think the court erred in directing the verdict. 'The court would, however, have been authorized to award a nonsuit. The plaintiff failfed to make out its case. Having alleged that the guardian had more available funds than were sufficient to pay the debt, this allegation should have been proved, in view of the fact that the note is not an unconditional contract in writing. It appears from the note itself that it was given for a balance on the board and tuition of the ward; and the sum promised, it is stipulated, will “be paid out of her estate in my hands as her guardian when available.” It is true, as contended by counsel for the defendant in error, that, inasmuch as the guardian can not borrow money and bind his ward or his ward’s property therefor, or create a lien on the ward’s property by any contract other than those especially allowed by law, the contract must be considered as the individual undertaking of Teasley. Civil Code, §2555; Fidelity & Deposit Co. v. Rich, 122 Ga. 508 (50 S. E. 338); Howard v. Cassels, 105 Ga. 415, (31 S. E. 562, 70 Am. St. R. 44). But this note, instead of being an absolute, unconditional promise to pay, must be considered either as an ineffectual effort to make a contract, or an undertaking of Teasley, individually, conditioned upon his having in his hands funds of the ward sufficient for that purpose. It is a conditional, instead of an unconditional promise; and this being true, it devolved upon the plaintiff to show that the conditions contemplated by the parties when the agreement was entered into were fulfilled, — that the contingency upon which payment depended had arisen. It is plainly specified in the note that the consideration is for the balance of board and tuition of a ward. While the guardian, as such, could not make an executory contract (Mauldin v. Southern Business University, 3 Ga. App. 800 (60 S. E. 358)), and as, in the absence of a contract, he was not, presumably, liable individually, he had the right to make, and the creditor had the right to accept, just such a note as might be agreed to between the parties, and as appears to have been agreed to in the present instance. A condition having been inserted in the note, compliance with the contract, and payment, can only be exacted in accordance with this condition.

Judgment reversed.