text:
    16889, 16890.
    Hickman v. Toole et al.; and vice versa.

   Bell, J.

1. Where there have been two current verdicts in favor of the same party on substantially the same facts, and where no error of law has been committed, and where under all the evidence the verdict is not manifestly wrong, the trial judge should not grant a second new trial. Gregory v. Ga. Granite R. Co., 132 Ga. 587 (4) (64 S. E. 686) ; Dethrage v. City of Rome, 125 Ga. 802 (54 S. E. 654) ; Taylor v. Central R. Co., 79 Ga. 330 (5 S. E. 114) ; Vassie v. Central of Ga. R. Co., 135 Ga. 8 (68 S. E. 782); Buford v. So. Cotton Oil Co., 23 Ga. App. 740 (99 S. E. 315) ; Merchants & Miners Trans. Co. v. Corcoran, 4 Ga. App. 654 (2) (62 S. E. 130).

(a) The rule is otherwise where the verdict is not supported by or is contrary to the evidence or to the weight of the evidence or is based upon evidence that is at best weak and unsatisfactory. Hartis v. Central of Ga. Ry. Co., 30 Ga. App. 720 (7) (119 S. E. 349).

2. Where an independent contractor has been engaged by the owner to move, intact, a dwelling house, and where the work so undertaken has been completed and accepted by the owner in discharge of the contract, the owner will be responsible to an invitee who is injured by defects which the contractor may have caused to the building in moving it, where the owner could have discovered the same by ordinary care. Hickman v. Toole, 31 Ga. App. 230 (2) (120 S. E. 438); Young v. Smith & Kelly Co., 124 Ga. 475 (52 S. E. 765, 110 Am. St. R. 186, 4 Ann. Cas. 226) ; Civil Code, § 4420.

3. The owner would not necessarily be relieved because the defect was hidden. “One may be liable for the result of a hidden defect, as well as for injurious consequences of a patent defect, unless he did not know • or, in the exercise of due care, ought not to have known of such latent defect. A landlord [or owner] is liable for a defect of construction of which he knew or ought to have known.” Monahan v. National Realty Co., 4 Ga. App. 680 (62 S. E. 127) ; Bonita Theatre v. Bridges, 31 Ga. App. 798 (122 S. E. 255); Civil Code (1910), § 3694.

4. Where it appeared that such defect was the disjunction of sills, and that, although the sills were covered by the floor, the house stood several feet (“four feet or higher”) above the ground, and could have been inspected without difficulty from beneath, and that such inspection would probably have disclosed the defect, it could not be said as a matter of law that the owner was in the exercise of all ordinary care, where he failed to discover the defect and then to remedy it or to give warning to an invitee of its existence; nor under such facts is a verdict finding the owner negligent contrary to the evidence or to the weight of the evidence, or based upon evidence that is “at best weak and unsatisfactory.” Fulton Ice Co. v. Pece, 29 Ga. App. 507 (1), 514 (116 S. E. 57) ; Martin v. McAfee, 31 Ga. App. 690 (2 a) (122 S. E. 71).

5. The verdict in favor of the plaintiff was amply supported by the evidence. A careful examination of the several special grounds of the motion for new trial, all of which the court overruled, fails to disclose error. The court, having granted to the defendant a first new trial upon the ground that the verdict in favor of the plaintiff was contrary to the evidence, erred in granting to the defendant a second new trial upon the same ground, after the jury had returned a second verdict in the plaintiff’s favor upon substantially the same facts. This ruling is not altered by the circumstance that the second verdict was for a larger sum that the first, since the court expressly overruled a ground of the motion attacking the verdict as excessive and granted the new trial solely upon the ground that liability was not shown. Compare Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (2) (71 S. E. 887).

Decided September 17, 1926.

Action for damages; from Bibb superior court—Judge Malcolm D. Jones. October 2, 1925.

Application for certiorari was made to the Supreme Court.

R. D. Feagin, J. F. Urquhart, Hallie B. Bell, for plaintiff.

Robert G. Plunkett, for defendants.

Judgment on the main bill of exceptions reversed; on the cross-bill affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16965.
    COLONIAL HILL COMPANY v. GREENOE.
    1. Two parties entered into a contract the terms of which were substantially as follows: The party of the first part agrees to sell to the party of the second part a described parcel of land. “The party of the second part is to pay” for said lot a sum of money specified, $10 cash, and the balance in monthly installments of $10 each. The party of the second part has executed promissory notes representing “said deferred payments.” Each of the notes is unconditional and recites that it is given as “part of the purchase-money” for the property. Default for 30 days in the payment of any note will mature the entire series. The party of the first part is to execute to the party of the second part a bond for title to the property on the payment of one third of the purchase-price with interest “on the deferred payments.” In the meantime the party of the second part shall hold and control the property merely as a tenant. If the party of the second part shall, “during said term of tenancy, fail to meet within 30 days after maturity either of the notes hereinabove referred to, he agrees voluntarily to surrender possession of said land to the party of the first part, and in the event of his failure to so surrender said land, said party of the first part shall have the right, without previous demand or notice, to eject the said party of the second part from said land summarily as a tenant holding over.” Until the party of the first part has become bound to make bond for title, the party of the second part “shall have no right, title, or interest in said land, but merely the right to use the same as tenant, and . . the amount of rent for said land shall be all of the moneys to be paid under this agreement during said time, together with accrued interest on the whole.” Unless one third of the purchase-price is promptly paid as provided-in the contract, “the party of the first part shall be under no. obligation to execute such bond for title.” If the party of the second part shall hinder, delay, or obstruct 'the party of the first part in taking possession of the land for nonpayment of any “installment of money provided for by this contract,” he shall be liable to the party of the first part for all costs and damages sustained by him. The party of the second part shall “pay at maturity all taxes properly assessed against said property.” Held: The written agreement and the notes, when considered together, show an unconditional promise by the party of the second part to purchase and pay for the property.
    2-. The holder’s delay in bringing suit upon the notes for approximately eleven years after maturity of the first installment and approximately five years after maturity of the last installment, and the fact that in the meantime the holder had paid all taxes upon the property from the date of the contract, would not show an election by the holder to rescind the contract because of the other party's default or otherwise.
    3. Under the above rulings, the ma,ker’s plea to a suit upon such notes failed to set forth any valid defense. The municipal court properly sustained the plaintiff’s general demurrer to such plea, and the judgment thereupon rendered by that court in favor of the plaintiff was without error. The superior court erred in sustaining the certiorari.
    Decided September 17, 1926.
    Certiorari; from Fulton superior court—Judge Bell. October 26, 1925.
    Application for certiorari was denied by the Supreme Court.
    Colonial Hill Company, as transferee or indorsee, brought suit in the municipal court of Atlanta against Mrs. George P. Greenoe upon 68 notes for $10 each, made by her to the Cobbs Land Company. The instruments sued on were the unpaid notes of a series, 84 in number, each of which was unconditional and recited that it was given as “a part of the purchase-money” of a described lot of land. They were dated October 14, 1911, and were payable monthly. The suit was filed in April, 1924, after each of the notes had become due by its own terms. The defendant filed an answer in which she pleaded that the notes were executed simultaneously with, and should be construed in the light of, a contract between- her and the Cobbs Land Company, a copy of which was set forth as an exhibit to the answer. This contract con' tained, among others, the following stipulations: The land company, as party of the first part, agrees to sell to Mrs. Greenoe, as party of the second part, a described lot of land, and Mrs. Greenoe is “to pay for said lot the sum of eight hundred dollars, ten dollars cash (the receipt of which is hereby acknowledged), and the balance in monthly installments of ten dollars each, bearing interest from date at the rate of 6% per annum, the first of said monthly installments falling due on the 4th day of November, 1911, and of each month-thereafter. The said party of the second part has this day executed in favor of the said party of the first part 84 promissory notes representing said deferred payments. Each of, said notes, among other things, provides therein that at the option of the Cobbs Land Company each and all of said purchase-money notes shall fall due and become payable, without notice, if said note shall become due and remain unpaid as long as 30 days.” “Upon the payment by the said party of the second part of one third of the purchase-price of said lot in addition to interest on deferred payments, the party of the first part is to execute to said party of the second part, or his assigns, a bond for title to the land above referred to, which bond for title shall be in the usual form and shall fairly set forth the terms of the purchase. Upon execution of such bond for title this contract is to be can-celled and to be null and void.
    “It is expressly understood and agreed between the parties hereto that until one third of the purchase-price of said land, in addition to interest on the deferred payments, has been paid by the party of the second part, the. said party of the second part shall hold, use, and control said land merely as a tenant of the party of the first part. In the event the said party of the second part shall, during said term of tenancy, fail to meet within 30 days after maturity either of the notes hereinabove referred to, he agrees voluntarily to surrender possession of said land to the party of the first part, and in the event of his failure to so surrender said land, said party of the first part shall have the right, without previous demand or notice, to eject the said party of the second part from said land summarily as a tenant holding over. It is distinctly stipulated and agreed between the parties hereto, that until the time for making bond for title herein named, the relation of landlord and tenant shall exist between the party of the first part and the party of the second part; and until under the terms of this agreement, the party of the first part is bound to make bond for title, the party of the second part shall have no right, title, interest, or equity in said land, but merely the right to use the same as tenant, and that the amount of rent for said land shall be all of the moneys to be paid under this agreement during said time, together with accrued interest on the whole.” “It is further stipulated and agreed between the parties hereto that from the date of this contract the party of the second part shall pay at maturity all taxes properly assessed against said property.
    “It is distinctly agreed that time is of the essence of this contract and that unless each installment herein provided for be paid by the party of the second part to the party of the first part prior to the time for making bond for title is promptly paid at maturity, the party of the first part shall be under no obligation to execute such bond for title. It is also agreed, that should the party of the second part hinder, delay, or obstruct the party of the first part in taking possession of said land for nonpayment of an installment of money provided for by this contract, he shall be liable to the party of the first part for all costs and damages sustained by said party of the first part in obtaining possession of said premises by law.” The agreement was signed both by the land company and Mrs. Greenoe.
    The defendant alleged that under this contract she was not bound to pay for the land if she elected not to do so; that she failed to pay any of the notes maturing on or after March 4, 1913, and also failed to pay any of the taxes thereon “for any year from 1911 to date,” and that having paid only $160, less than one third of the agreed purchase-price, there was never any obligation on her part “to take and pay for the real estate mentioned, and no obligation on the part of the plaintiff to sell or carry out its part of the said written agreement, and that said notes and contract are therefore void and unenforceable.” The plea further alleged: The Cobbs Land Company and the plaintiff acquiesced in the defendant’s “breach and accepted the same by paying” all taxes due on the property from the date of the notes and contract. “Defendant shows that under the terms of said contract defendant agreed to surrender possession of the land in question in the event she failed to pay an installment 30 days after maturity; that since April 14, 1913, defendant has failed to pay any installment, and that she has never exercised any dominion over said land, and that it would now be inequitable and unjust to allow plaintiff to enforce the provisions of said contract as to paying rent, plaintiff having been guilty of. laches in failing to act during a period of eleven years to enforce his rights, and the plaintiff in the meantime having apparently accepted a constructive surrender of said land to it, and since said date assumed a dominion over the same by paying taxes, and during all of said period failed to call upon defendant for performance under said contract; and defendant shows that there has been a mutual abandonment of the rights and duties by all parties under said contract for a period of ten years.” The Colonial Hill Company took the notes with notice of the facts relied on in defense.
    The judge of the municipal court sustained a general demurrer to the defendant’s answer, and entered judgment in favor of the plaintiff. The defendant carried the case to the superior court by certiorari. The certiorari was sustained and the plaintiff excepted.

      George B. Bush, for plaintiff.

      William J. Davis Jr., for defendant.
   Bell, J.

(After stating the foregoing facts.)

The notes sued on and the written agreement simultaneously executed are, of course, to be construed as one contract. But when so construed and when examined as a whole, they show an unconditional promise on the part of Mrs. Greenoe to purchase and pay for the land. The stipulations upon which she relies to sustain her contention that she could terminate her obligation at will by default were evidently included for the purpose of affording remedies to the land company in case of her failure to pay. Whether the law would have allowed the land company or its transferee to measure its rights absolutely by the letter of the agreement, we do not have to decide in this case. The remedy which the transferee has seen fit to adopt is a suit upon the notes, and we think it is clear that the defendant’s mere default could not be advanced as a bar against liability. The contract was not a mere option to buy. It was a promise to buy, and this is true irrespective of the entangled relations which some of its phraseology might have sought to create. Further discussion seems to be unnecessary in view of tbe following authorities, which we think are controlling: Enterprise Distributing Corp. v. Zalkin, 154 Ga. 97 (113 S. E. 409); Edwards v. Capps, 122 Ga. 827 (50 S. E. 943); Lytle v. Scottish American Mortgage Co., 122 Ga. 458 (50 S. E. 402); Griffith v. Collins, 116 Ga. 420 (2) (42 S. E. 743); Finlay v. Ludden, 105 Ga. 265 (2) (31 S. E. 180); Blitch v. Edwards, 96 Ga. 606 (24 S. E. 147); Hays v. Jordan, 85 Ga. 741 (2) (11 S. E. 833, 9 L. R. A. 373); Oaks v. Singer Sewing Machine Co., 17 Ga. App. 517 (2) (87 S. E. 719); Haag v. Rogers, 9 Ga. App. 650 (72 S. E. 46). The conclusion announced above is not in conflict with the decisions of the Supreme Court in any of the following cases, cited by the defendant in error: Allison v. Dunwody, 100 Ga. 51 (2) (28 S. E. 651); Reddick v. Hutchinson, 94 Ga. 675 (21 S. E. 712); Melson v. Dickson, 63 Ga. 682 (36 Am. R. 128). In each of these cases the contract was materially different from the one here involved. Counsel for the defendant in error cite also the following cases decided by this court: Manley v. Underwood, 27 Ga. App. 822 (2) (110 S. E. 49); Hodnett v. Mann, 10 Ga. App. 666 (73 S. E. 1082); Wilkins v. Fulcher, 9 Ga. App. 68 (70 S. E. 691). It may or may not be that these cases are distinguishable from the present case. Suffice it to say that the decisions of the Supreme Court, where applicable, have priority as precedents. See especially Finlay v. Ludden, supra.

The plea failed to show a rescission by the plaintiff. The plaintiff's delay in suing and its payment of the taxes are the only bases for rescission set forth in the pleadings, and these are insufficient as a matter of law. There was no mutual abandonment of the contract merely in the defendant's failure to pay and the plaintiff's failure to sue. The plaintiff's interest in the security was sufficient explanation of its payment of the taxes, and no rescission would result from this act. Nor would it result from both of the facts pleaded. 27 E. C. L. 659, §§ 421, 429; 39 Cyc. 1381-92.

The defendant's answer set forth no valid defense. The municipal court was right in striking it and entering judgment for the plaintiff, and the superior court erred in sustaining the certiorari.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    16971.
    BUGG, receiver, v. LANG.
    1. Except as set forth in sections 2788, 2789 of the Civil Code (1910), which fix the liability of domestic receivers operating railroads within, or partially within, this State, for injury and damage to persons in their employ, caused by the negligence of coemployees, and for injury and damage to personal property, and provide for suits for such injuries, it is the general rule that before a suit can be maintained against a receiver appointed by the courts of this State it is necessary that the consent of the court appointing him be first obtained. Hancock v. Miller, 28 G-a. App. 387 (111 S. E. 80). With reference to suits against receivers appointed under Federal authority, however, the statutes of the United States are paramount and govern the extent and scope of the liability to suit of a receiver appointed by the Federal courts, and are not governed or circumscribed by State legislation. Lamb v. Whitman, 17 Qa. App. 687 (87 S. B. 1095); Consolidated. Grocery Go. v. Bugg, 28 Ga. App. 809 (113 S. E. 60) ; Atkinson v. Kreis, 140- Ga. 52 (78 S. E. 465) ; Bugg v. Consolidated Grocery Co., 155 Ga. 550 (118 S. E. 56). The Judicial Code of the United States, section 66 (U. S. Comp. Stat. 1916, § 1048), provides that “every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or .manager was appointed.” By this section of the act of Congress it was intended to place suits against railroad receivers appointed by Federal courts on the same plane with suits against railroad companies both in respect of any act or transaction of such a receiver in carrying on the business connected with the property in his hands and in respect of the mode of service of process. Eddy v. Lafayette, 49 Federal, 807 (1 C. C. A. 441); Lamb v. Whitman, supra. While the application of the ruling announced by this court in Lamb v. Whitman, supra, and Consolidated Grocery Co. v. Bugg, supra, was limited by the Supreme Court in Bugg v. Consolidated Grocery Co., supra, the principle stated in the Whitman and Bugg eases remains unaffected, and, under the doctrine announced by all of the cases referred to, the authority extended under the Federal statute for suits in the State courts against Federal receivers is paramount, and is in no wise affected by section 2788 of the Georgia Code, and in any particular case the question of jurisdiction under the Federal statute is determined by an answer to the question as to whether the act or transaction complained of was brought about in carrying on the business connected with the property held by such Federal receiver. Accordingly, the court did not err in refusing, on motion of the defendant, to exclude the testimony complained of on the ground that it sought to set up damages to real estate, occasioned by the operation of the defendant’s locomotives and trains.
    2. While the evidence did not demand the verdict in favor of the plaintiff, it authorized the finding of the jury that fire was set to the property of the plaintiff by the operation of the defendant’s locomotive, and that the defendant was negligent as alleged. This court is, therefore, without authority to set the verdict aside as being without evidence to support it.
    3. It can not be said, as a matter of law, that the amount of the verdict was so grossly excessive as to show bias and prejudice on the part of the jury. Realty Bond So. Co. v. Earley, 19 Qa. App. 186 (2) (91 S. E. 254). The evidence of the plaintiff tended to establish the amount of his damage at an amount much greater than the verdict returned in his favor.
    4. The court charged the jury as follows: “The first issue of fact is, was the fire communicated to the alleged property of the plaintiff by the running of 'the locomotive or switch engine number 40 of the defendant 1 The plaintiff contends that it was, and the defendant denies that it was. This denial by the defendant places the burden of proving this fact or issue upon the plaintiff, because, as to this issue, there is no presumption against the defendant, and, under our law, the plaintiff must prove this fact to your satisfaction by a preponderance of the evidence. So your first duty will be to look to the evidence, and, applying the rules of law heretofore given you in charge, ascertain and decide whether or not the plaintiff has carried this burden. If he has failed in this particular, then that would end your consideration of the case, and it would be your duty to return a verdict for the defendant. If you decide this first issue in favor of the plaintiff, however, it will be necessary for you to go further and determine the other issues of fact in the case, and the following principles of law will only be considered by you in the event you determine the first issue against the defendant.” Following this excerpt the court gave in charge to the jury the provisions of section 2780 of the Civil Code (1910) relating to the presumption of negligence arising against the defendant thereunder upon proof' of injury to the plaintiff’s property by the running of the locomotive of the defendant, and correctly charged the jury as to the burden resting upon the defendant under that section and the proof necessary to overcome such presumption, giving the jury the legal definition of reasonable care and diligence, and then stated to the ;jury the particular grounds of negligence alleged by the plaintiff, concluding' his charge upon that subject as follows: “These are, in substance, the grounds of negligence alleged and charged against the defendant in the plaintiff’s petition, and, in your consideration of the ease, you are limited to these particular grounds, the presumption in each instance being against the defendant, and this presumption is rebutted and overcome when it is shown to your satisfaction, by evidence of the plaintiff or defendant, or by the circumstances in the case, that the defendant in each instance was in the exercise of ordinary and reasonable care and diligence.” To the latter excerpt exception is taken on the ground that it tended to confuse the jury and amounted to an expression of opinion on the part of the court that the plaintiff had proved that the fire was set out by the defendant’s engine and the presumption of negligence had arisen in the plaintiff’s favor, and was prejudicial to the defendant, in that it tended to cause the jury to find a verdict for the plaintiff without legal proof that the defendant had set out the fire. Eeld: Construing in connection with its context the excerpt complained of, the judge must necessarily have intended for the jury to understand that the defendant could not be presumed to be guilty of the negligence charged, unless it should first be adjudicated that the defendant caused the injury complained of.
    5. While the charge of the court with reference to ascertaining the amount of damages might have been more helpful to the jury had it been more specific in outlining the facts and circumstances which could properly be taken into consideration, yet since the general rule upon the measure of damages was properly stated, and since such special instructions as were actually given were not erroneous, if a more specific detailed charge upon that subject had been desired by the defendant, it should have been requested. Seaboard Air-Line Ry. v. Bishop, 132 Ga. 37 (G3 S. E. 785) : High Shoals Mfg. Go. v. Price, 13G Ga. 22 '(4) (70 R. E. 641).
    Decided September 17, 1926.
    Damages; from city court of Brunswick—Judge Butts. October 26, 1925.

    Application for certiorari was made to the Supreme Court.

      Conyers & Gowen, for plaintiff in error.

      F. M. Scarlett, contra.
   Jenkins, P. J.

W. L. Lang brought suit against Bugg, receiver of the Atlanta, Birmingham & Atlantic Bailway Company, for damages alleged to have been sustained by reason of the burning of his planing mill, lumber yard, and various machinery located on his property in the City of Brunswick, and about 50 feet from the line of the defendant’s railroad, it being alleged that fire was communicated to the property from a switch-engine of the defendant, and by reason of the negligent equipping and operation of the engine.

It appears from the record that the property of the plaintiff-adjoined the tract of, and’ was near the railroad-yard of, the defendant; there was evidence for the defendant tending to show that the switch-engine had not been within several hundred yards of the property destroyed for two hours or longer previous to the fire. There was also evidence for the defendant from witnesses who examined the engine prior to and on the day after the fire, tending to show that it was properly equipped with spark-arrester and other approved equipment to prevent the escape of fire, and that it was impossible for the engine to emit sparks larger than a grain of rice. There was, however, evidence for the plaintiff that the switch-engine of the defendant was running within a very short distance of the plaintiff’s property some twenty or twenty-five minutes prior to the time of the discovery of the fire, and that sparks, and particles of fire as large as a man’s finger were coming from the smoke-stack and falling in the mill-yard of the plaintiff and upon his property. There was also evidence that it wonlcl have been impossible for sparks and particles of burning coal, as large as those which the plaintiff’s witnesses swore were escaping from the engine, to go through a standard spark-arrester.

According to the testimony of the plaintiff, the market value of the property destroyed amounted to more than $30,000. The jury returned a verdict in favor of the plaintiff for $17,500; a motion for a new trial filed by the defendant was overruled, and to this ruling exception is taken.

Judgment affirmed.

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


text:
    16980.
    MASSELL REALTY CO. v. WASHBURN.
    1. Irrespective of whether the petition prior to its amendment was or was not defective, as urged by the general demurrer, the plaintiff having submitted to the adverse ruling on the demurrer by seeking to amend his petition so as to conform to that ruling, he can not thereafter be heard to complain that the ruling was erroneous, and that the amendment which he chose to offer was in fact unnecessary; and this is true although he may have excepted to the ruling. Smith v. Bugg, 35 Qa. App. 317 (133 S. E. 49). The effect of the original order sustaining the demurrer, as thus acquiesced in by the plaintiff, was to adjudicate that the petition as it then stood was defective for the reason stated in the demurrer, and that it must be amended within the time stated in the order.
    2. The original petition, as first informally amended, the rented premises being described as under process of construction in accordance with existing plans and specifications prepared by a named person, with the allegation that a copy of the “plans” as attached to the contract was made a part of the petition, might reasonably have indicated the existence of separate specifications forming a part of the contract, which, not being attached, rendered the petition subject to demurrer; but since, in the written amendment filed in response to the. defendant’s renewed demurrer, it was specifically shown that the plans referred to as attached to the contract, and by the amendment made a part of the petition, embraced all the terms of the agreement entered into with reference to the rented storeroom then in process of construction, the petition as thus amended was no longer subject to objection on the ground that the contract sued on was not fully set forth, nor could it then be subject to the alleged objection that the petition indicated that a part of the contract sued on was not in writing.
    3. The petition as finally amended was not subject to demurrer on the ground that the contract sued on was so vague and indefinite with reference to the subject-matter of the agreement as to render it incapable. of enforcement. This being true, and it not appearing from the petition that the contract was violative of the statute' of frauds, it was error to dismiss the petition as finally amended.
    Decided September 17, 1926.
    Certiorari; from Fulton superior court—Judge Bell. October 27, 1925.
    Jones, Evins, Moore & Powers, for plaintiff.
    Alston, Alston, Poster & Moise, for defendant.
   Jenkins, P. J.

This was a suit in the municipal court of Atlanta to recover the first three months’ rental for a store-building under an alleged lease for a term of five years. The original petition alleged that “on the 8th day of April, 1924, the said Clyde Washburn did enter into a lease contract with your petitioner for a term of five years, beginning the first day of May, 1924, or as soon thereafter as the building herein described was completed, a certain storeroom 25 feet by approximately 175 feet, in a building located on the northeast corner of West Peachtree and Pine streets in the City of Atlanta, Fulton county, Georgia, said building being then in the process of construction, at an agreed rental of $300.00 per month during the first two years and $350.00 per month during the last three years.” The case being in default, it was agreed at the trial term that it should be brought to trial upon its merits, at which term the defendant filed a general and special demurrer, the special demurrer complaining that the contract referred to' in the petition was not set forth. It is alleged in the petition for certiorari that counsel for the defendant then stated that the only purpose of the special demurrer was to obtain a copy of the contract sued on. It appears that thereupon the plaintiff produced the contract in court and informally tendered it as an amendment to the petition. The 13th paragraph of the contract stipulates as follows: “It is understood and agreed that the premises which are the subject-matter, of this written lease have not been completed at the time of the actual execution and delivery of this document, but that said building is under course of construction, and it is of the essence of this agreement that the premises shall be constructed in accord with the plans and specifications existing and prepared by E. C. Seiz. A true and correct copy of plans for the improvement shown on three sheets have been examined by the parties hereto and identified by their initials as exhibits ‘A,’ CB,’ and ‘G’ to this lease -contract, and are now made a part hereto as fully as if incorporated herein.” Thereupon the defendant renewed and amended his general demurrer, setting up that the contract sued upon was invalid in that it failed to conform to the requirements of the statute of frauds. Plaintiff protested against the consideration of the amended demurrer on' the ground that the default was waived under the stipulation that the case would be tried on its merits, and that under such agreement the contention raised by the demurrer with reference to the statute of frauds could not be considered, and moved the court to permit him to withdraw his waiver of the default, strike the demurrers and answer filed by the defendant, and enter judgment-in favor of the plaintiff. This motion was overruled, and, upon considering the grounds of the amended demurrer, the court passed the following order: “The foregoing demurrer sustained on each and every ground thereof. The petition shall stand dismissed unless amended within fifteen days from the date of this order.” Within the time specified by this order the plaintiff amended his petition in part as follows: “Plaintiff amends paragraph 3 of its original petition by attaching hereto as an exhibit to said paragraph a copy of the lease contract therein referred to, together with three certain sheets of blue-prints therein referred to as the plans and specifications existing and prepared by B. 0. 8eiz. At the time of the execution of said lease and the examination and identification of said sheets they were bradded together, and they were the only plans and specifications for scdd building prepared by the said B. G. Beiz.” The three blue-prints referred to by the amendment pictured the floor plans, front and side elevations of the building, drawn to scale, and indicated upon the drawing certain specifications with reference to the construction and materials of construction, such as red brick on the sides, T. C. coping on the top, plastered walls, tile floors, cement floors, plate-glass front, and painted ceilings. After the amendment had been offered and allowed, the defendant filed a demurrer to the petition as amended, setting forth that the petition as amended set forth no cause of action, and that the writing sued upon was in violation of the statute of frauds, and upon its hearing the petition as amended was dismissed. The plaintiff sued out certiorari, assigning as error the order overruling the motion to strike the original demurrer and the amendment thereto, and to the judgment sustaining the original demurrer as amended, and ordering that the suit stand dismissed unless plaintiff amended within fifteen days, and the judgment of May 14, 1925, sustaining the demurrer to the petition as amended and dismissing the petition. The defendant contends that the last amendment in no wise cured the defect adjudicated by the original order to exist, and that the order, having been acquiesced in by the plaintiff, became the law of the case. The plaintiff now excepts to the overruling of the certiorari.

Judgment reversed.

Bell, J., concurs. Stephens, J., concurs in the judgment.


text:
    16983.
    WILLIAMSON v. MARCHMAN, executor, et al.

    1. Where in a suit by one as the administrator of one person and as the executor of another, the parties by agreement submitted the issues therein and a kindred issue to arbitration, and the submission embraced no other, matter than the question of the liability of the defendant, and where the arbitrators made an award merely finding a certain sum “for the estate” of which the plaintiff was executor, the award should be construed as a finding against the defendant and in favor of the plaintiff in his capacity as executor, and' in. favor of the defendant and against the plaintiff in his capacity as administrator.

      (a) The award was not void for indefiniteness and uncertainty.
    2. General allegations, to the effect that the award was the result of mistake and accident because the party excepting thereto was informed, and believed that the. arbitrators intended to find differently, were not sufficient -to raise an issue as to whether the award should be set aside because oí mistake or accident.
    Decided September 17, 1926.
    Exceptions to award; from Greene superior court—Judge Perryman. October 28, 1925.

      J. G. Faust, for plaintiff in error. Miles IF. Lewis, contra.
   Bell, J.

H. L. Marchman, “as administrator of the estate of W. P. Williamson and as executor of the estate of Mrs. H. C. Williamson,” brought a suit in trover against Sampson M. Williamson for the recovery of certain lumber of a stated value, as property belonging to the plaintiff as representative of the two estates. The defendant’s answer was a general denial. Before the trial the parties to the case, by written agreement, referred the issues therein and a kindred issue to arbitration. As to the matter submitted to the arbitrators the agreement was as follows: “that there exists between the parties certain differences and disputes in reference to the ownership of certain lumber manufactured from timber on the lands of the said estates and with reference to the purchase-money received therefor, a portion [italics ours] of which lumber is involved in a suit now pending in Greene superior court and transferred thereto from the city court of Greensboro, being No. 2156; the said party of the first part contending that the party of the second part is indebted to said estates for such lumber or the proceeds thereof, and the party of the second part contending that he is not indebted in any amount to the said estates.” The arbitrators made and signed the following award: “We, the arbitrators, find for the estate of Mrs. H. 0. Williamson $412.67 and interest from Feb. 1, 1924, to date,'this Aug. 10, 1925.”

Before the award was made the judgment of the court, the defendant filed exceptions thereto on several grounds. The plaintiff demurred to these exceptions generally. The court sustained the demurrer and entered judgment on the award in the plaintiff’s favor, and the defendant excepted. Only two of the grounds of the exceptions are referred to in the brief of the counsel for the plaintiff in error and these only will be noticed.

The first ground of exception relied on by the plaintiff in error is that the award is void for indefiniteness and uncertainty. It is contended that the award can not be construed as being either for or against the plaintiff in the capacity of administrator of the estate of W. P. Williamson; that it fails to dispose of a claim of the defendant against the estate of W. P. Williamson or “to settle the status” as between the defendant and that estate; that it names no person as the one liable, and generally is incapable of intelligent construction and enforcement.

The plaintiff was suing in a double capacity. The award is reasonably construed as finding against the defendant and in favor of the plaintiff as the representative of the estate of Mrs. Williamson, and as finding in favor of the defendant and against the plaintiff as representative of the estate of W. P. Williamson. Maynard v. Ponder, 75 Ga. 664 (1 c). As to any counterclaim by the defendant against the estate of W. P. Williamson, it may be said that none such was pleaded, nor was there any reference to such claim in the submission to the arbitrators. The award, therefore, could not have dealt with such claim. Richardson v. Payne, 55 Ga. 167.

In a suit where there are proper parties, a finding “for the estate” of a person is not void under the principle applied in Knox v. Greenfield Estate, 7 Ga. App. 305 (66 S. E. 805), and in Johnson v. Estate of Sam Farkas, 22 Ga. App. 539 (96 S. E. 392). Those cases dealt with the question of parties; here the question is one of construction. The award was not void for indefiniteness and uncertainty.

The other ground of exception insisted upon in this court is, that “said award is the result of accident and mistake, because, as S. M. Williamson alleges on information and belief, it was the object and intention of the arbitrators, and especially the arbitrators H. I. Moore and Arch Humphrey, to find that the judgment and award was against the estate of W. P. Williamson, and not against this objector, S. M. Williamson [on the counterclaim?].” This allegation was insufficient to raise any issue as to mistake or accident. The courts will not grant relief against mistake or accident, without distinct and particular allegations. The pleadings should state such facts as would indicate prima facie that the mistake or accident did occur. The statement in general terms that the defendant was informed and believed that the award was “the result of accident and mistake” was not sufficient. Shaifer v. Baker, 38 Ga. 136; Cox v. Mercer, 74 Ga. 399; Stricker v. Tinkham, 35 Ga. 176 (4) (89 Am. D. 280); Gamble v. Knott, 40 Ga. 199; Carr v. Dickson, 58 Ga. 144 (2); Lowery v. Davidson, 44 Ga. 38 (3). Furthermore, arbitrators can not impeach their finding. Evans v. Edenfield, 7 Ga. App. 175 (66 S. E. 491). The court did not err in sustaining the demurrer or in rendering the final judgment complained of.

Judgment affirmed.

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


author: Stephens, J.

text:
    17021, 17022.
    Georgia Railway & Power Company v. Bryans (two cases).
    Decided September 17, 1926.
    Damages; from city court of Decatur—Judge Daley. October 20, 1925..

      Colquitt & Conyers, Hugh Burgess, for plaintiff in error.

      Key, McClelland & McClelland, contra.
   Stephens, J.

1. Where the sole proximate cause of an injury to the plaintiff is the negligence of some one other than the defendant, there can be no recovery against the defendant, although the defendant may have been guilty of negligence. In a suit for personal injuries, therefore, where the evidence presents an issue of fact as to whether the' injuries were caused by the negligence of the defendant or the negligence of a third person, it is error to instruct the jury to the effect that there can be no recovery against the defendant if the injuries were proximately caused solely by the conduct of a third person and the defendant was not negligent. The vice in such a charge is that the jury is in effect instructed that absence of negligence on the part of the defendant is necessary to absolve the defendant from liability, although the injuries may have been proximately caused by the negligence of another. In this ease the court erred in charging as follows: “ If you find that the injury was caused, actually caused, that the proximate and immediate cause of the injury was the conduct of the driver of the car, and that the street-car company is not guilty of any negligence in the matter at all, and that the immediate and proximate cause of the injury was the fault of the driver of the car, then I charge you that the plaintiff could not recover against the defendant in this case.”

2. In a suit for personal injuries based upon negligence alone, it is inapt to give in'charge section 4422 of the Civil Code (1910), as follows: “A physical injury done to another gives a right of action, whatever may be the intention of the actor, unless he is justified under some rule of law. The intention should be considered in the assessment of damages.”

3. The remaining grounds insisted upon show no error.

Judgments reversed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    17046.
    BARNES v. HOLCOMB.
    Under the provisions of the Civil Code (1910), § 819, where a road has been used as a private way for as long as a year, the owner of the land over which it passes can not close it up, without first giving to common users 30 days notice in writing, in order that they may take steps to have it made permanent. Where the owner of the land obstructs or closes the road without giving such statutory notice, and one who has theretofore been a user of it applies to the ordinary for an order requiring the removal of the obstructions and preventing the closing of the road merely until the applicant has been given the 30 days written notice, as required by law, the application will be sufficient to show the jurisdiction of the ordinary and will be good as against a general demurrer, if it describes the road with .reasonable certainty, and, following the provisions above referred to, alleges that the road has been used by the applicant as a private way for as much as a year, and that the owner of the land over which it passes lias obstructed or closed it without giving the applicant 30 days notice in writing. The petition filed with the ordinary in this case was not subject to the demurrer interposed thereto. It was error to dismiss it, and the superior court properly sustained the certiorari.
    Decided September 17, 1926.
    Certiorari; from Cobb superior court—Judge Blair. November 23, 1925.

      Morris, Hawkins & Wallace, for plaintiff in error.

      Anderson & Roberts, contra.
   Bell, J.

M. L. Holcomb filed a petition with the ordinary of Cobb county against Mrs. E. K. Barnes, seeking the removal of obstructions from a road passing over land belonging to the defendant. The petition described the location of the road and alleged that it was not over 15 feet in width. The petition also set forth that the road had been used as a private way by the plaintiff or applicant and others for more than a year next preceding the act of the defendant closing it, and that the defendant had closed it without first giving the plaintiff 30-days notice in writing. The defendant demurred to the petition, upon the ground that it failed to show “that the private way claimed to have been obstructed by the defendant is such a private way that the ordinary . . has jurisdiction over in a proceeding of this character,” and should be dismissed. At the hearing of the demurrer and after the ordinary had announced his intention to sustain it, the plaintiff offered an amendment, alleging that the plaintiff “has kept said private way open and in repair for more than 12 months before the closing thereof, and has used and traveled the •same route continually.” The ordinary refused to allow the amendment, and rendered judgment sustaining the demurrer. The plaintiff carried the case by certiorari to the superior court, where the certiorari was “sustained upon the ground that the ordinary erred in sustaining the demurrer to the petition.” • The defendant in certiorari excepted.

It appears that no ruling was made in the superior court as to whether the ordinary erred in refusing the amendment, the judgment on the certiorari going no further than to adjudicate that the petition was good without the amendment, and that the ordinary erred in sustaining the demurrer thereto, irrespective of whether the amendment should have been allowed. In such state of the record, there being no cross-bill of exceptions by the plaintiff in certiorari, it would seem that this court can r.eview the case only for the purpose of deciding whether the original petition was subject to the demurrer, without determining that there was or was not error in refusing the amendment. Whether the scope of the inquiry, under the rules of procedure, should be necessarily so limited, the correctness of the order refusing the amendment need not be decided, in the view which we take of the other questions involved. Was the petition, as originally drawn, subject to the demurrer interposed? Counsel for the plaintiff in error advance the argument, “that where an applicant bases his right to this summary remedy provided for in § 825 upon § 819, it is incumbent upon him to show the same essential facts as would be required had he based his right upon the seven years prescriptive use described in § 824;” in other words, “that it makes no difference upon which of these code sections, either 819 or 824, the applicant bases his right to the summary remedy provided for in § 825, it is essential that he show all of the things which the law requires to constitute a private way, namely: that he, the applicant, has been in the uninterrupted use thereof for the period prescribed by the statute (seven years in the case of § 824, and more than one year in the case of § 819, and the closing without notice), that it does not exceed 15 feet in width, and that it is the same 15 feet originally appropriated, and that he, the applicant, had kept it open and in repair during such period.” The specific contention is, that the petition is fatally defective because it fails to allege “that this 15 feet is the same 15 feet originally appropriated,” and “that the applicant himself kept the. road open and in repair during the time he claims to have used it.” While we are unable to concur in the position so taken, the question made is not free from difficulty, and we have reached our conclusion only after painstaking thought and investigation.

Under the provisions of the Civil Code, § 819, where a road has been used as a private way as long as one year, the owner of the land over which it passes can not close it np without first giving the common users thereof 30-days notice in writing, in order that they may take steps to have it made permanent. Where the owner of the land obstructs or closes such road, without giving such statutory notice, and one who has theretofore been a user of it applies to the ordinary for an order requiring the removal of the obstructions and preventing the closing of the road merely until the applicant has been given the 30-days written notice, as required by the law, the application will be sufficient- to show the jurisdiction of the ordinary and good as against a general demurrer, where it describes the road with reasonable certainty, and, following the provisions above referred to, alleges that the road has been used by the applicant as a private way for as much as a year, and that the owner of the land over which it passes has obstructed or closed it without first giving the 30-days notice in writing. In such a case it is not necessary to make the allegations required in an application for the removal of obstructions from a private way claimed by prescription under the provisions of § 824 of the Civil Code. The right which a party may claim under § 819 being restricted and temporary (Nugent v. Watkins, 129 Ga. 382 (3) (58 S. E. 888); Johnson v. Williams, 138 Ga. 853 (2) (76 S. E. 380)), it seems but logical that he need not show so much to sustain it as where he bases his claim on the other section and seeks an adjudication that he is entitled to have the road kept open and unobstructed permanently and absolutely. Certain things are required to constitute a prescriptive private way under sections 808 and 824 (see, in this connection, Collier v. Farr, 81 Ga. 749 (7 S. E. 860)) which may not necessarily exist in the mere use of the road as a private way within the contemplation of § 819. This section, properly construed, means that notwithstanding a road may not be a private way within the meaning of the law, yet if persons have used it—traveled it—for as long as a year as though it were such in fact, the owner can not obstruct or close it without first giving the prescribed notice. It is not the purpose of this section to enable the user of the road to hold the owner at bay until the road may become a private way by prescription, but its clear intent is that if the owner sits by and for a year or more permits another to travel a road over his land as though it were a private way, such conduct on his part speaks of a necessity for the way to the extent that the law will preserve the status for 30 days in order that the parties using the road may take steps to have it made permanent by condemnation. Neal v. Neal, 122 Ga. 804 (50 S. E. 379). The use of a road over the land of another for as long as a year in such manner as to entitle the user to the notice of the owner’s intention to close it, as prescribed in § 819, might be of such character as to establish a prescriptive right to the way, .if constant and uninterrupted for a period of seven years or more; but we do not think that the use in the former case must necessarily be of such character. Otherwise it might well be contended that the facts essential to prescription should be shown to have existed for as long as a year in order to establish the right recognized in that section. There may be some intimations apparently militating against this view, both in Kirkland v. Pitman, 122 Ga. 256 (50 S. E. 117), and in Johnson v. Williams, 138 Ga. 853 (2) (76 S. E. 380); but the question now before us was not presented in either of those cases, and they are not authority for the proposition that the use for as much as a year, within the purview of § 819, must be attended by such other acts and circumstances as would be necessary to the assertion of a prescriptive right after seven years.

The question seems to be controlled by the earlier decision of the Supreme Court in Powell v. Amoss, 85 Ga. 273 (11 S. E. 598). In that ease the applicant based her right to have the obstruction removed not only upon prescription and upon an alleged purchase, but also upon the ground that under the facts the defendant could not lawfully close the road without giving the plaintiff the statutory notice. In that case the court, speaking through Mr. Chief Justice Bleckley, said: “We see in the record no trace whatever of title by purchase, to the private way in dispute, and no very distinct indication of title by prescription. If the case rested on these elements alone, we should be disposed to think that the ordinary’s decision was correct, and- that the superior court erred in overruling that decision. But the Code, § 732, declares that, ‘When a road has been used as a private way for as much as one year, an owner of land over which it passes can not close it up without first giving the common users of the way 30 days’ notice in writing, that they may take steps .to have it made permanent.’ The evidence is clear that this private way was used by the petitioner, Mrs. Amoss, for a long period—much more than one year before it was obstructed by Mr. Powell. There is no hint that he gave her airy notice of his intention to close or obstruct the way before placing the obstruction complained of. If the notice required by the statute ought to have been given, the duty of giving it was upon him, and the burden, also, of proving that it was given. Under these circumstances, we can not hold that the superior court erred in sustaining the certiorari and remanding the controversy to.the ordinary for a new hearing.” In the statement of the facts accompanying the decision there appears to have been no proof that the applicant had kept the road .in repair, and the conclusion which the court reached seems to have been based solely upon the fact that the way had been used by the plaintiff for more than a year before it was obstructed and that the defendant had given no notice of his intention to close it. The court “predicated its decision upon the proposition that under the evidence it was clear that the private way under dispute had been used by Mrs. Amoss for more than a year before it was obstructed by Powell, and therefore he had no right to close it without giving her due notice of his intention to do so.” Gardner v. Swann, 114 Ga. 304 (40 S. E. 271). See also Everedge v. Alexander, 75 Ga. 858 (3); Green v. Reeves, 80 Ga. 805 (6 S. E. 865); Ford v. Waters, 27 Ga. App. 83 (107 S. E. 351); Grizzard v. Broom, 136 Ga. 297 (71 S. E. 430).

In Collier v. Farr, supra, the Supreme Court held: “Before an applicant can have obstructions removed from a private way, he must show not only that there has been an uninterrupted use. for more than seven years, but that it is not more than 15 feet wide, that he has kept it open and in repair, and that it is the same 15 feet originally appropriated.” There are numerous cases by the courts of this State to the same effect; but in each of them the action was founded upon an alleged right by prescription, accruing from the constant and uninterrupted use of the way for seven years or more. No case has been cited in which it has been held necessary to make proof of such facts, where the right to removal of the obstructions is claimed by virtue of the provisions of § 819 of the Civil Code. To go further' into the matter, examination discloses that none of the codes prior to the act of 1872 (Ga. L. 1872, p. 60) made any reference to the acquisition of private ways by prescription, except in the provisions now contained in § 3641 of the Civil Code of 1910. The law as now embodied in § 824 was codified from that act (Nugent v. Watkins, 129 Ga. 382 (3) (58 S. E. 888); Johnson v. Williams, 138 Ga. 853 (2) (76 S. E. 380)), and hence has been carried only in the subsequent codes. On the other hand, the provisions of the present § 819 were also in the earlier codes, and, what is more, the article in which they appeared in each of such earlier codes was devoted exclusively to the acquisition of private ways by express grant and by condemnation. Compare Watkins v. Country Club, 120 Ga. 45 (47 S. E. 538); Nugent v. Watkins, 124 Ga. 150 (52 S. E. 158). It is thus seen that the right defined in § 819 was not dependent upon such use as could ultimately have resulted in prescription. What we have just said as to the history of § 819 applies equally to the history of § 808, in which it is provided that private ways “must not exceed 15 feet in width and must be kept open and in repair by the persons on whose application they are established.” With reference to these provisions, we think that, aside from the matter of prescription (Short v. Walton, 61 Ga. 29), they can have no other application than to limit the width of a way which may be granted by the proper tribunal or of one which may, by the prescribed “agreement of all parties concerned,” have “the same effect as though established by the forms of law” (Civil Code (1910), § 813), and to exempt the owner of land from responsibility for keeping the way open and in repair after it is once established. In our opinion these provisions never were definitive of the use contemplated by § 819. Green v. Reeves, 80 Ga. 805 (6 S. E. 865).

Although the right claimed by the applicant, in this case and the right which may be claimed under sections 808 and 824, when once they have accrued, differ in extent only (see Johnson v. Williams, supra), it being permissible to enforce either by the procedure outlined in § 825, yet, as we have endeavored to show, it does not necessarily follow that the two rights must -rest upon facts which are of the same character except as to duration.

We conclude that the petition, as against the demurrer filed, sufficiently complied with the requirements of sections 819 and 825. The jurisdiction of the ordinary was shown, and it was not necessary to allege in specific terms that the road had occupied the same space, nor to aver at all that it had been kept open and in repair by the applicant. If it was necessary to show use of the identical space, it was so only because of the terms of § 819, which would seem to contemplate not mere variant passage over the land, but continuous passage by a particular road for as much as a year. In any view as to the necessity of alleging the identity of the space used, the petition in tins respect, having followed the language of the law, was sufficient as against an objection in the nature of a general demurrer. What we hold is that the petition made a prima facie case, within the jurisdiction of the ordinary, for the removal of the obstructions, and that the ordinary erred in sustaining the demurrer interposed thereto. It follows that the superior court did not err in sustaining the certiorari. ’

Consistently with what has been said, it would seem that the petition need not have alleged that the road was not more than 15 feet in width. But the allegation having been made, it is unnecessary to decide whether the absence of it would have rendered the petition defective.

Judgment affirmed.

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


text:
    17163.
    INSURANCE COMPANY OF NORTH AMERICA et al. v. FOLDS.
    1. Where the trial judge, upon the hearing of a motion for new trial, passes an order providing that the “same be sustained unless the plaintiff writes off of the verdict and judgment the sum of $200.00 recovered as attorney’s fees by February 25, 1926, in which event said motion for a new trial is overruled and a new trial denied,” the order is conditional and does not become a final judgment until the expiration of the period within which such sum may be written off by the plaintiff, or until, in the meantime, such sum is written off; and a bill of exceptions presented by the defendant within thirty days from the time of the writing off of such sum by the plaintiff is not subject to be dismissed upon the ground that it was not presented within thirty days from the date of the original decision or judgment complained of. Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 (78 S. E. 902) ; Clark v. Ganson, 144 Ga. 544 (87 S. E. 670) ; Ga. Ry. & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300).
    2. While it has been held 'by the Supreme Court, in dealing with the identical provision of the policy now under consideration providing for an appraisement of the amount of loss sustained, that an award under such provision does not constitute a condition precedent to recovery on the part of the insured, where the insurer takes no steps to require an appraisal and does not appoint an appraiser, but on the contrary fixes for himself and declares the only amount which will be allowed the insured as the amount of the loss sustained by him (Atlas Assurance Oo. v. Williams, 158 Ga. 421, 123 S. E. 697), still, where, as in the instant case, an agreement for the appraisal of the loss sustained is entered into by the parties to the contract of insurance, the legal completion of the appraisal and a valid award thereunder become a condition precedent to a recovery by the insured.
    3. Where a policy of insurance provides that no action thereon shall be . maintainable unless commenced within twelve months next after the happening of the loss, and the parties enter into such an agreement for the appraisal of the loss, the agreement to thus adjust their differences tolls the limitation provided in the contract, and the period of limitation does not run during the pendency of the appraisement proceeding.
    4. Where a suit was brought against an insurance company for loss occasioned by the destruction of an automobile, based as to the amount sued for on an alleged award made by appraisers as provided for by the terms of the policy, and it appeared from the petition that the proceeding for appraisal had been jointly entered upon by agreement of the parties, but that, owing to the illegal appointment of an umpire, the award made thereunder was invalid (Philadelphia Underwriters v. Folds, 156 Ga. 773, 120 S. B. 102), and a demurrer was properly sustained to the allegations of the petition claiming liability by virtue of such illegal award, in the absence of any allegation that the defendant had refused to permit the appraisement to be legally completed and a valid award made thereunder, it was error to allow the suit to be maintained as an action based on the policy, prior to and independently of a valid award. The award sued on having been adjudged by the Supreme Court to be invalid, it can not fix the amount due under the policy as a basis for an action. The proper procedure would have been to complete the pending appraisement proceeding, which had been jointly entered upon, after having obtained a properly appointed umpire, and base the amount sued for under the policy upon the award thus obtained. A suit based upon the policy itself, independently of an award fixing the amount due thereunder, which was the status in which the ease was left under the ruling of the trial judge, in the absence of any allegation that the company refused to proceed further with the appraisement, could not be maintained. The court erred, after properly sustaining the demurrer to the petition, in not dismissing it.
    Decided September 17, 1926.
    Rehearing denied September 29, 1926.
    Complaint on fire policy; from city court of Carrollton—Judge Hood. December 19, 1925.

      Smith, Hammond & Smith, Boykin & Boykin, for plaintiffs in error.

      Smith & Taylor, Smith & Millican, contra.
   Jenkins, P. J.

This was a suit on a contract of insurance for the loss by fire of an automobile. The plaintiff, under the terms of the contract, undertook to fix and determine the amount of the loss by an appraisement proceeding provided for by the terms of the policy. The plaintiff having selected an appraiser, and the defendant having selected an appraiser, and these appraisers being unable to agree upon an umpire, the plaintiff procured the appointment'of an umpire by the judge of the superior court of Carroll county, and, after an award had been made, signed by the appraiser selected by the plaintiff and by the umpire, the defendant brought its exceptions to this court upon the ground that the umpire was illegally appointed, in that the loss occurred in the county of DcKalb and that the superior court of Carroll county, where the insured lived and where the policy was issued, was unauthorized to appointed such umpire. Upon the question being certified by this court to the Supreme Court, it was held by the Supreme Court that the appointment of the umpire was illegal and unauthorized, but it was further adjudged by that court that the illegal appointment did not constitute such a judgment as could be reviewed by bill of exceptions. In conformity with this ruling, the writ of error was dismissed by this court; after which a suit specifically based upon the award was brought in Carroll county, setting forth the history of the prior appraisement proceeding, and apparently grounded also upon a liability under the contract itself. The defendant demurred to the allegations setting forth the appraisement proceeding, upon the ground that it had been adjudicated that this proceeding was invalid. The court sustained this demurrer and struck all such allegations, except in so far as they might be relevant to show that the contractual limitation in the insurance contract providing that suit thereon must be brought within twelve months from the date of the loss had not barred the action on the policy, but refused to dismiss the petition and allowed the suit to continue as an action based on the policy, independently of any award, except in so far as the proceeding might have kept the suit from becoming barred. The defendant excepted pendente lite to this judgment refusing to dismiss the petition, and the case proceeded to trial, resulting in a verdict for the plaintiff. The defendant moved for a new trial, and, upon its motion being overruled, brought the case here for review.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17172.
    Seminole Securities Company v. State of Georgia.
    Decided September 17, 1926.
    Confiscation; claim; from McIntosh superior court—Judge Sheppard. December 21, 1925.

      Tyson & Tyson, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Jenkins, P. J.

1. In a proceeding under section 20 of the act of March 28, 1917 (Park’s Code Supp. 1922, § 448(oooo)), to condemn a vehicle or conveyance used in transporting liquor, the sale or possession of which is prohibited by law, the burden is upon the State, the condemner, to show that the vehicle or conveyance was used in conveying the prohibited liquors or beverages with the knowledge of the owner or lessee. Lang v. Hitt, 149 Ga. 667 (101 S. E. 795) ; Citizens Trust Co. v. State, 26 Ga. App. 750 (107 S. E. 274). Accordingly, where, as in the instant case, it appears from the evidence that title to the automobile sought to be condemned was not in the person in whose possession it was at the time of its illegal use, but was in the intervener under a conditional bill of sale reserving title in the vendor thereof, and transferred to the intervener, and there being no evidence attacking the validity of the instrument, and none in anywise indicating that such owner of the automobile had any knowledge that it was being used in conveying the prohibited liquors, the judgment of condemnation was without evidence to support it. Armington v. State, 24 Ga. App. 75 (100 S. E. 15).

2. The transfer of the conditional bill of sale from the original vendor to the intervener, while not showing on its face the authority of the agent executing it for the vendor to do so, was admitted in evidence apparently without objection, and can not now be attacked for that reason as insufficient to show title in the intervener as holder. Sheffield v. Johnson County Bank, 2 Ga. App. 221 (58 S. E. 386) ; Edwards v. Camp, 29 Ga. App. 556 (116 S. E. 210), and eases there1 cited.

Judgment reversed.

Stephens and Bell, JJ., coneur.


text:
    16730.
    INTERSTATE LIFE & ACCIDENT COMPANY v. BESS.
    1. Where an application for a policy of insurance is not attached thereto or referred to therein, it is not to be regarded as a part of the contract, and in such a case material statements or representations made by way of application will not void the policy, unless they bo not only false but also fraudulent. Civil Code (1910), § 2471; Torbert v. Cherokee Ins. Co., 141 Ga. 773 (1) (82 S. E. 134) ; Johnson v. American £c. Ins. Co., 134 Ga. S00 (68 S. E. 731) ; Supreme Lodge Knights of Pythias v. Feio, 138 Ga. 778, 786 (76 S. E. 91) ; Fraternal Life £ Accident Association v. Evans, 140 Ga. 284 (2) (78 S. E. 915) ; Southern Life Ins. Go. v. Logan, 9 Ga. App. 503 (3) (71 ¡3. E. 742); Bankers Health £c. Ins. Co.
      v. Murray, 22 Ga. App. 495 (1) (96 S. E. 347) ; Wilkins v. National Life & Accident Ins. Co., 23 Ga. App. 191 (2) (97 S. E. 879); Life Ins'. Co. of Virginia v. Pate, 23 Ga. App. 232 (1) (97 S. E. 874) ; Metropolitan Life Ins. Go. v. Shaw, 30 Ga. App. 97 (117 S. E. 106). It follows that the court did not err in this ease in charging the jury that a false statement made by the insured with respect to his age would not of itself void the contract.
    2. Where limitations upon the authority of the agent who solicited the insured to enter into the contract were contained only in the policy itself, they are to be deemed as referring to matters occurring subsequently to the issuance of the policy, and do not apply to facts or conditions which were existing at the inception of the contract. In such a ■ case the knowledge of the agent is the knowledge of the insurer, and if a policy is issued with knowledge by the agent of a fact or condition which by the terms of the contract would render it void, the insurer will be held to have waived the existence of such fact or condition, and the policy will not be voided thereby. Johnson v. /Etna Ins. Go., 123 Ga. 404 (2) (51 S. E. 339, 107 Am. St. R. 92) ; Athens Mutual Ins. Go. v. Evans, 132 Ga. 703 (5) (64 S. E. 993); Athens Mutual Ins. Go. v. Led-ford, 134 Ga. 500 (1) (68 S. E. 91) ; Supreme Lodge Knights of Pythias v. Few, 138 Ga. 778, 781 (76 S. E. 91) ; Springfield Fire So. Ins. Go. v. Price, 132 Ga. 687 (2) (64 S. E. 1074) ; Liverpool Sc. Ins. Go. v. Georgia Auto Sc. Go., 29 Ga. App. 334, 354 (115 S. E. 138).
    3. But such waiver will not result unless either the company or some authoi'ized agent had actual notice of the fact or condition in question. Constructive notice would not be sufficient for such purpose. The court therefore erred in charging the jury in effect that even though the statement by the insured with respect to his age was wilfully false, yet if his physical appearance suggested, or indicated that the statement was not correct, it was the duty of the agent to make inquiry for the purpose of determining the truth and if he failed to do so and the insurance company accepted premiums until the death of the insured, the misstatement as to age would be waived and the contract would be binding. The evidence did not demand a finding that the agent actually knew of the falsity of the statement, and if he did not have such knowledge the insurer can not be held to a waiver merely because he could or should have known. German Sc. Life Association v. Farley, 102 Ga. 720 (1) (29 S. E. 615) ; Wiley v. Rome Ins. Go., 12 Ga. App. 186 (1) (76 S. E. 1067); PVumer v. Continental Oasualty Go., 12 Ga. App. 594 (2) (77 • S. E. 917); Liverpool Sc. Ins. Go. v. Hughes, 145 Ga. 716 (2) (89 S. É. 817) ; Lee v. Metropolitan Life Ins. Go., 158 Ga. 517 (4) (123 S. E. 737). The error in the charge just referred to requires a new trial.
    4. The court gave in charge § 2480 of the Civil Code (1910), as follows: “Any verbal or written representations of- facts by the assured to induce the acceptance of the risk, if material, must be true, or the policy is void. If, however, the party has no knowledge, but states on the representation of others, bona fide, and so informs the insurer, the falsity of the information does not void the policy.” The insurer has complained that charging the second sentence of this section was error because there was no evidence to warrant it. Even if the insured may have made the statement as to his age on the representations of others, there being no evidence that he so informed the insurer, the exception is well taken. But in view of the ruling made in the preceding paragraph, it is unnecessary to determine whether a new trial should result merely because this charge was inapplicable. See, in this connection, Poland v. Osborne Limber Oo., 34 Oa. App. 105 ( 2) (128 S. E. 198) ; Culberson v. Alabama Construetion Co., 127 Oa. 599 (1) (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507) ; Bird v. Benlon, 127 6a. 371 (4) (56 S. E. 450); Dolvin v. American Barrow Co., 131 Oa. 300 (10) (62 S. E. 198) ; Kirkland v. Brewion, 32 Oa. App. 128 (2) (122 S. E. 814). It would seem, however, that it would not be harmful to the insurer to give in charge a part or all of the above code section where the sole defense is actual fraud.
    5. Because of the error pointed out in paragraph 3 above, the court erred in refusing a new trial.
    Decided September 18, 1926.
    Appeal; from Decatur superior court—Judge Custer. July 28, 1925.

      Ha/rrell & Custer, for plaintiff in error.

      Erie M. Donalson, contra.
   Bell, J.

This was an action by the beneficiary of an insurance policy in which it was stipulated that “In ease of misstatement of age of the insured the company will only be liable for the amount payable according to its table at the proper age, and in the event the proper age exceeds the maximum age at which the company will grant policies, the policy shall be void.” The insurer pleaded that it would not issue a policy of insurance upon the life of a person over 55 years of age; that the insured had declared his age to be 54 years, and that the contract was entered into on that basis, whereas he was over 70 years of age at the time; that the policy was procured by fraud and that there was no liability there! under. If there was a written application, it was not attached to the policy or referred to therein. Limitations on the authority of the agent who represented the insurer in the negotiations which culminated in the contract appeared only in the policy, and were as follows: “No person except the president or secretary has the power on behalf of the company to make or modify this or any other contract of insurance, or, in the event of lapse, to reinstate this policy, or to extend the time of payment of any premium, and the company will not be bound by any promise, representation or action of other than the above.” There was evidence which would have authorized the inference that the allegations of the defendant’s plea were true. The jury found in favor of the plaintiff. The defendant filed a motion for a new trial, which was overruled, and it excepted. Such of the special grounds of the motion for a new trial as would seem to require discussion are referred to in the headnotes. Since the application was not in writing and attached to the policy, the insurer could not defend upon the ground of material misrepresentations not amounting to actual fraud. The failure to make .the application a part of the contract differentiates the case from such eases as Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (1) (47 S. E. 940), where it was held that a material misrepresentation will avoid the policy, whether -the statement was made in good faith or wilfully or fraudulently. Another fact which it is necessary to bear in mind in the instant case is in reference to the limitations upon the authority of the agent. Since they were contained only in the policy, they are not deemed to have reference to conditions which were existing at the inception of the contract. The case, therefore, falls within one of the classes which were excluded by the question which was before the Supreme Court in New York Life Ins. Co. v. Palten, 151 Ga. 185 (106 S. E. 183). See also Reliance Life Ins. Co. v. Hightower, 148 Ga. 843 (98 S. E. 469); Puckett v. Metropolitan Life Ins. Co., 32 Ga. App. 263 (122 S. E. 791). In a case like the present, if the agent had actual knowledge of the facts which by a stipulation in the contract would render it void, the insurer could not set up such facts as a defense. But before the knowledge of the agent could work a waiver on the part of his prin- ■ cipal, the knowledge must have been actual. Constructive 'knowledge would not be sufficient for that purpose. The court charged the jury in effect that if the agent, by proper inquiry, could have ascertained the truth, his principal would be held to have waived any fraud on the part of the insured. Since the evidence did not demand a finding that the agent had actual knowledge, the charge was error. If the agent did not actually know of the fraud, the defendant would not be bound merely because the agent ought to have known thereof. As to the materiality of a misstatement as to age, see Johnson v. American &c. Ins. Co., 134 Ga. 800 (6) (68 S. E. 731); Maddox v. Southern Mutual Life Ins. Asso., 6 Ga. App. 681, 684 (65 S. E. 789). It is unnecessary to add 'anything further to what is said in the headnotes. The court erred in refusing a new trial.

Judgment reversed.

Stephens, J., concurs. Jenkins, P. J., concurs in the judgment.


text:
    16876.
    STANDARD MOTORS FINANCE COMPANY INCORPORATED v. O’NEAL.
    1. Where the transferee of the vendor in a conditional sale, on the vendee’s default in paying installments of the purchase-money, brought against him an action of bail-trover to recover the property sold, and where the property, having been seized under the bail process and not replevied by either party, was sold under the provisions of the Civil Code, §§ 5153 and 6068, the plaintiff’s recovery could not exceed either the remainder of the debt, or the proceeds of the sale with hire or interest from the date of conversion to the date of the seizure.
    2. In such a case the plaintiff is in the position of having elected to take a verdict for the property, and may be required to account for payments made on the purchase price. And this is true notwithstanding a stipulation in the contract of conditional sale that, “In case of default in the payment of any installment, the vendor may at its option, either with or without legal proceedings, retake the possession of said property, in which case the amounts 'which have been paid up to that time may be retained as rental of said property.” This stipulation -could not be enforced for the purpose of retaining as rent the amounts paid on the purchase price, since the value of the property for rent was capable of computation and not uncertain in character, and it does not appear that the parties by this clause undertook in good faith to arrive at the damages which might be sustained as a result of the vendee’s breach. Civil Code (1910), §§ 4390, 4391; Blllch v. Hd wards, 96 Ga. 606 (24 S. E. 14) ; Heard v. Dooly County, 101 Ga. 619 (28 S. E. 986) ; Lytle v. Scottish American Mortgage Go., 122 Ga. 458 (9) (50 S. E. 402).
    3. But where on the question of accounting the defendant takes the affirmative and seeks a judgment against the plaintiff for the amounts paid, a plea filed by him for that purpose should allege a readiness on his part to account for hire and to do equity. He would bo liable not only for reasonable hire, but also for any depreciation in the value of the property by damage or injury, over and above ordinary wear and tear, which it may have sustained while in his hands. The plea filed in this case was fatally defective in failing to offer equity. This conclusion is not altered by the fact that the plaintiff originally sued for hire and later struck this claim.
    4. The statement as to his financial condition, made and delivered by the defendant to the vendor in the negotiations for the purchase of the property, was in this case irrelevant as evidence, and the court did not err in excluding it.

      (a) The court erred in not sustaining the general demurrer to the defendant’s plea. Ho other error ws committed.
    Decided September 18, 1926.

      Trover; from city court of Bainbridge—Judge Spooner. October 12, 1925.

      R. G. Ha/rtsfield, H. G. Rawls, for plaintiff.

      G. G. Bower, for defendant.
   Bell, J.

Bainbridge Motor-Car Company sold to M. E. O’Neal two automobiles, accepting other property as the equivalent of a payment of $390 and taking his notes for the aggregate of $1156.08 as the balance of the purchase price. Separate notes and contracts were made for each automobile, and the title to each was reserved in the seller until full payment of the purchase price. The notes of each series were payable in monthly installments,' and stipulated, as did also the contracts of conditional sale, that on the failure of the purchaser to pay any note within 3 days after its maturity, the entire amount of the series would become due and payable forthwith at the election of the holder. Each contract of conditional sale contained the following clause: “In case of default in the payment of any installment, the vendor may at its option either with or without legal proceedings retake possession of said property, in which case the amounts which have been paid up to that time may be retained as rental of said property for the time which I have had it.” Bainbridge Motor-Car Company sold the notes and contracts, together with the reserved titles, to the Standard Motors Finance Company. Default having been made in the payment of several notes of each series, the transferee sued O’Neal in bail-trover for the automobiles. The vehicles were seized, and not being replevied by either party, were sold under the provisions of the Civil Codej §§ 5153, 6068. This sale was on the application of the plaintiff. The proceeds amounted to $500.- Thereafter the defendant filed a plea, to which the court later allowed two amendments. The plea as amended alleged that at the time of his purchase the defendant paid on the purchase price the sum of $390, and set forth the facts touching on the “short-order sale.” Upon the basis of these allegations, without more, the defendant prayed that he have judgment against the plaintiff for the sum of $390 “for refund of” the amount paid. The court overruled general and special demurrers to the defendant’s plea as amended. In the original petition the plaintiff sued for hire, but by amendment it struck this claim. In the trial of the case the court, on tender by the plaintiff, refused to admit in evidence a written statement as to the defendant’s financial condition, made by him to the Bainbridge Motor-Car Company, in the negotiations for the purchase. The above facts being developed at the trial without dispute, the court directed a verdict in favor of the plaintiff for $500, “the amount which the automobiles sold for,” and in favor of the defendant for $390 “on the plea of recoupment,” “leaving a difference in favor of the plaintiff of only one hundred and ten dollars,” to be paid out of the proceeds of the short-order sale. Judgment was entered accordingly. Thereupon the plaintiff brought the case to this court for review. The bill of exceptions assigns as error the overruling of the demurrer to the plea, the rejection from evidence of the financial statement, and the verdict and judgment. The parties will be referred to in the opinion according to their position in the trial court.

Counsel for the plaintiff contend that the court erred in not allowing the plaintiff to recover the balance due on the purchase price. The property not having been replevied 'by either party and having been sold under short order, the plaintiff’s recovery could not exceed either the remainder of the debt, or the proceeds of the sale with hire or interest from the date of the conversion to the date of the seizure. In such a case there is a double limitation. The plaintiff did not claim hire or interest. The proceeds of the sale being less than the debt, the plaintiff was entitled to a verdict for the full amount of the proceeds, but no more. Civil Code, § 5153; Smith v. Commercial Credit Co., 28 Ga. App. 403 (2), (3) (111 S. E. 821); Ellis v. Hopps, 30 Ga. App. 453 (2) (118 S. E. 583); Branch v. Fisher, 32 Ga. App. 126 (122 S. E. 720).

The plaintiff’s act in bringing the property to a pendente lite sale was the equivalent of an election to take the property itself. It is true that in such circumstances a money verdict is the only proper one, yet it is not a money verdict in the ordinary sense. The proceeds of the sale “stand in lieu of the property.” For the purpose of ascertaining the rights of the defendant, the plaintiff is in the same situation as if, without the impediment of the short-order sale, he had elected to take the property. Glisson v. Heggie, 105 Ga. 30 (31 S. E. 118). The plaintiff’s election to proceed in trover was a rescission of the defendant’s promise to pay. Ayash v. Ga. Show-Case Co., 17 Ga. App. 467 (2) (80 S. E. 689); Good Roads Machinery Co. v. Neal, 21 Ga. App. 160 (4) (93 S. E. 1018); Scott v. Glover, 7 Ga. App. 182 (66 S. E. 380); Spiers v. Hubbard, 12 Ga. App. 676 (78 S. E. 136). This is in accordance with the general rule. An exception was recognized in Pannell v. McGarrity, 27 Ga. App. 71 (107 S. E. 352), and in Fulghum v. General Motors Acceptance Corp., 30 Ga. App. 609 (118 S. E. 600). In the present ease nothing was shown to take it without the general rule. So far as appears, the action was to assert general title, and not to repossess the property for the purpose of enforcing the special terms-of the agreement, under the principle of the Pannell and Fulghum cases. Even if the plaintiff had sought to recover the property merely for the purpose of holding it or disposing of it for the benefit of the defendant, it would be estopped to make such contention, where, pending the suit, it procured a judicial sale of the property, thus making it impossible for the defendant to redeem it by paying the debt. The Pannell and Fulghum cases do not support the contention that the plaintiff can yet rely upon the contract for a money judgment for the balance of the debt. The rule as applied in those cases can have no application in a case like the one now under consideration.

Where the plaintiff sues in trover and elects to take the property, or is in the position of having so elected, he may be required to account for payments- made on the purchase price. Hays v. Jordan, 85 Ga. 741 (2) (11 S. E. 833, 9 L. R. A. 373); McDaniel v. Gray, 69 Ga. 433; Cowart v. Brigman Motors Co., 32 Ga. App. 123 (122 S. E. 645); Scott v. Glover, 7 Ga. App. 182 (66 S. E. 380) ; Brice v. Whitehurst, 8 Ga. App. 291 (2) (68 S. E. 1075). In such a case the payments can not be held by the plaintiff and credited on the debt as in those cases where the vendor or his transferee is suing the vendee and is at liberty to elect and does elect to take a money verdict, in the ordinary sense, not in excess of the balance of the unpaid purchase price. Kalas v. Fay, 31 Ga. App. 109 (4) (120 S. E. 28); Elder v. Woodruff Co., 9 Ga. App. 484 (2) (71 S. E. 806); Jordan v. Jenkins, 17 Ga. App. 58 (1 b) (86 S. E. 278); Harrison v. Central Ga. Automotive Co., 31 Ga. App. 603 (121 S. E. 689). In the latter class of cases the contract becomes relevant for the purpose not only of showing title and the right of asserting it, but also as evidence of value and of the rate of interest allowable in the recovery. Elder v. Woodruff Co., supra; Securities Trust Co. v. Marshall, 30 Ga. App. 379 (6) (118 S. E. 478); Williams v. Baggs Auto Co., 32 Ga. App. 253 (5, 6) (122 S. E. 805); Fussell v. Heard, 119 Ga. 527 (46 S. E. 621) ; Moultrie Repair Co. v. Hill, 120 Ga. 730 (6) (48 S. E. 143); Thomason v. Moore, 139 Ga. 341 (3) (77 S. E. 155).

To require this plaintiff to account for amounts paid might at first blush seem to be a hard doctrine when it is remembered that the Bainbridge Motor-Car Company and not -the plaintiff was the person receiving the payments. The reply to this thought is twofold: 1. When the plaintiff accepted the transfers it took the place of the original vendor, and must stand or fall in it. Having taken the vendor’s rights, it can enforce them only upon the' term that would have bound the vendor. Bights which the defendant may have had against the latter could not be cut off by the transfer. 2. While the plaintiff did not receive the payments directly, the money went into the property. It’ represented the interest which the defendant had in the automobiles. If the plaintiff takes the property (here the proceeds of the sale), it will get the value or benefit of the amount paid, and hence it should account for the same as the defendant’s interest. Hays v. Jordan, supra. (A somewhat similar question was noticed but not decided in Finance Co. v. Jones, 33 Ga. App. 94 (5) (125 S. E. 510). We may not yet decide the identical question left open in that case.) It may or may not be true that the plaintiff’s election to sue in trover rescinded and nullified the stipulation that if the plaintiff should repossess the property, the amounts paid up to that time should be retained as rental. See, in this connection, City of Jeffersonville v. Cotton States Belting &c. Co., 30 Ga. App. 470 (118 S. E. 442); Thomason v. Moore, Ayash v. Ga. Show-Case Co., Good Roads Machinery Co. v. Neal, Scott v. Glover, Spiers v. Hubbard, supra; such cases as these being, for reasons already pointed out, distinguishable in principle from the Pannell and Fulghum cases, supra. Whether rescinded or not, the stipulation just referred to could not be enforced for the purpose of retaining as rent the amounts paid on the purchase price, since the value of the property for rent was capable of computation and was not uncertain in character, and it does not appear that the parties by this clause undertook in good faith to arrive at the damages which might be sustained as a result of the vendee’s breach. Civil Code (1910), §§ 4390, 4391; Hays v. Jordan, Blitch v. Edwards, Heard v. Dooly County, Lytle v. Scottish American Mortgage Co., supra.

It follows, from what we have just said, that we can not concur in the contention that the plaintiff could not be required, under any circumstances, to account for the payments which the defendant had made on the purchase price. We agree, however, that the defendant’s plea failed to set forth such facts as entitled him to the affirmative relief prayed for. Whether it be true that, when it appeared that such payments had been made and that by reason of the short-order sale the plaintiff was precluded from any other election except to take the property or its equivalent, the defendant, in the absence of a special plea, might properly have moved for a nonsuit or otherwise have made objection to the plaintiff’s taking judgment agamst him until it accounted for the amount paid (Mallary v. Moon, 130 Ga. 591, 61 S. E. 401; Cowart v. Brigman Motors Co., supra), yet he adopted no such procedure. Instead he came forward with an affirmative plea on which he prayed judgment against the plaintiff. He did not attempt merely to .defend himself from the attack of the plaintiff, but led the combat by a positive attack of his own. In this situation the plea “lacked one essential element,” namely, it did not allege a readiness on the defendant’s part to account for hire and to do equity. He would be liable not only for reasonable hire, but also for any depreciation in the value of the property by damage or injury, over and above, ordinary wear and tear, which it may have sustained while in his hands. Although this case involves a rescission of a sale of personalty, there is no reason why the rights of the parties should not be determined by the same general principles which govern in cases of rescission of sales of real estate after part payment of the purchase-money, in which cases a court of equity will seek to restore the original status as nearly as may be done under all the circumstances. See, in this connection, Enterprise Distributing Corp. v. Zalkin, 154 Ga. 97 (113 S. E. 409); Stringfellow v. Stringfellow, 143 Ga. 339 (85 S. E. 108); Couch v. Crane, 142 Ga. 22 (82 S. E. 459); Lytle v. Scottish American Mortg. Co., supra; Blitch v. Edwards, supra; Snook v. Raglan, 89 Ga. 251 (15 S. E. 364); Gray v. McDaniel, 73 Ga. 118; McDaniel v. Gray, 69 Ga. 433.

The defendant was relying upon rescission and seeking equity. It was therefore incumbent upon him to do equity. The silence of the plea upon this subject was fatal, and the court erred in not sustaining the general demurrer thereto.

This is true notwithstanding the plaintiff, by amendment, struck his claim for hire. Commercial Publishing Co. v. Campbell Printing Co., 111 Ga. 388 (2) (36 S. E. 756).

Under the other facts appearing, the financial statement was irrelevant, and the court did not err in excluding it from evidence. There was no merit in the special demurrers. The only error committed was in not sustaining the general demurrer to the defendant’s plea.

Judgment reversed.

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