author: ELLINGTON, Presiding Judge.

text:
    A14A0971.
    BOSTON et al. v. ATHEARN et al.
    (764 SE2d 582)
   ELLINGTON, Presiding Judge.

Alexandria Boston (“Alex”), a minor, through her parents Amy and Christopher Boston, brought this action in the Superior Court of Cobb County against Dustin Athearn, a minor, his parents, Sandra and Michael Athearn, and other defendants. The Bostons allege that Dustin defamed Alex when, posing as her, he created a Facebook account and profile and posted statements and photographs in that forum that constituted libel under Georgia law. In addition, they allege that Dustin’s actions constituted intentional infliction of emotional distress. Sandra and Michael Athearn (“the Athearns”) moved for summary judgment. After a hearing, the trial court granted the Athearns’ motion, and the Bostons appeal. The Bostons contend that questions of material fact remain regarding whether the Athearns breached a duty to supervise their child’s use of a computer and an Internet account. In addition, they contend that questions of material fact remain regarding whether the Athearns, as landowners, breached a duty to remove defamatory content existing on their property. For the reasons explained below, we affirm in part and reverse in part.

Under OCGA § 9-11-56 (c),

[sjummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475, 475-476 (759 SE2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 SE2d 288) (2013) (accord).

Viewed in the light most favorable to the Bostons as the nonmovants, the record shows the following undisputed facts. In early May 2011, Dustin, who was 13 years old, and his friend, Melissa Snodgrass, agreed to have some fun at a classmate’s expense by creating a fake Facebook page for that person. Dustin selected Alex, a fellow seventh-grader, as their target, and Melissa agreed. Melissa, posing as Alex, created a Yahoo e-mail account to use to create a new Facebook account, and gave that information to Dustin. On May 4, using a computer supplied by his parents for his use and the family Internet account, Dustin posed as Alex to create a new Facebook account, using the Yahoo e-mail address and the password Melissa supplied. For the profile photo, Dustin used a photo that he had taken of Alex at school, after altering it with a “Fat Face” application.

After Dustin created the account, both Dustin and Melissa added information to the unauthorized profile, which indicated, inter alia, racist viewpoints and a homosexual orientation. Dustin and Melissa also caused the persona to issue invitations to become Facebook “Friends” to many of Alex’s classmates, teachers, and extended family members. Within a day or two, the account was connected as Facebook “Friends” to over 70 other Facebook users. Dustin and Melissa continued to add information to the persona’s profile and caused the account to post status updates and comments on other users’ pages. Some of these postings were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on a medication regimen for mental health disorders and that she took illegal drugs.

Alex soon suspected that Dustin was involved, because she recognized the profile photo as one he had taken at school. Alex’s parents, Amy and Christopher Boston, approached the school’s principal, Cathy Wentworth, for help. On May 10,2011, Wentworth called Dustin and Melissa to her office; they admitted their involvement, and each signed a written statement. Wentworth assigned them to in-school suspension for two days for their harassment of Alex. She called their parents and also sent home a “Middle School Administrative Referral Form” to explain the disciplinary action. The Referral Form included the following “Description of Infraction: [Dustin] created a false Facebook page in another student’s name, pretended to be that person, and electronically distributed false, profane, and ethnically offensive information.”

Dustin’s mother, Sandra Athearn, reviewed and signed the Referral Form the same day, May 10,2011, and discussed the incident with her husband, Michael. The Athearns disciplined Dustin by forbidding him for one week from seeing his friends after school.

The unauthorized profile and page remained accessible to Face-book users until Facebook officials deactivated the account on April 21, 2012, not long after the Bostons filed their lawsuit on April 3, 2012. During the 11 months the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing. They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. Furthermore, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.

1. The Bostons contend that there are questions of material fact regarding whether the Athearns were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and, therefore, that the trial court erred in granting the Athearns’ motion for summary judgment on Alex’s claims.

Under Georgia law, liability for the tort of a minor child is not imputed to the child’s parents merely on the basis of the parent-child relationship. Parents may be held directly liable, however, for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others.

Where liability is based on parents’ alleged failure to supervise or control their child, a key question is the foreseeability of the harm suffered by the plaintiff, that is, whether the parents had knowledge of facts from which they should have reasonably anticipated that harm to another would result unless they controlled their child’s conduct. Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467) (1981) (“[T]he true test of parental negligence vel non is whether in the exercise of ordinary care he should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, he exercised the proper degree of care to guard against this result.”) (citation omitted). The level of care that is due necessarily depends on the circumstances, which may involve an inherently dangerous instrumentality, a commonly-available object that only becomes dangerous if it is intentionally used to cause harm or is handled in an improper and dangerous manner, or no instrumentality at all. Whether parents failed to use ordinary care in supervising or controlling their child is generally a question for the jury when the circumstances support an inference that the parents were on notice that, absent their intervention, injury was likely to result from the child’s conduct.

In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Athearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Athearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.

Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction. With regard to the instant action, we conclude that a reasonable jury could find that, after learning on May 10,2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Athearns failed to exercise due care in supervising and controlling such activity going forward. Given that the false and offensive statements remained on display, and continued to reach readers, for an additional 11 months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions). Accordingly, the trial court erred in granting the Athearns’ motion for summary judgment in part.

2. The Bostons contend that, “[i]n addition to their legal duty as parents, the [Athearns] had a duty as landowners to remove the defamatory content that existed on their propertyf,]” citing the dissenting opinion of Presiding Judge Quillian in Southern Bell Telephone & Telegraph Co. v. Coastal Transmission Svc., 167 Ga. App. 611, 621 (307 SE2d 83) (1983). In that case, Presiding Judge Quillian cited with approval Restatement (Second) of Torts § 577 (2) (1977, updated June 2014), which provides that “[o]ne who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.” Further, “when, by measures not unduly difficult or onerous, he may easily remove the defamation, he may be found liable if he intentionally fails to remove it.” Id., Comment p. See Southern Bell Telephone & Telegraph Co. v. Coastal Transmission Sue., 167 Ga. App. at 621 (Quillian, P. J., dissenting).

The gist of this provision of the Restatement is that

passing on defamatory matter, i.e., republication, is publication for purposes of liability. Thus, except as to those who only deliver or transmit defamation published by a third person, one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.

(Punctuation and footnotes omitted.) Malla Pollack, “Litigating Defamation Claims,” 128 Am. Jur. Trials 1 (2013, updated May 2014). Georgia defamation law embraces this principle regarding republication. See Smith v. Vencare, Inc., 238 Ga. App. 621, 626-627 (2) (d) (519 SE2d 735) (1999); Baskin v. Rogers, 229 Ga. App. 250, 252 (493 SE2d 728) (1997).

Setting aside the novel and abstract questions the Bostons’ argument raises regarding where Internet content is “exhibited,” the Bostons failed to identify any evidence that, apart from exercising their parental power to control Dustin’s conduct, they had the ability to remove the defamation. The only evidence on the subject in the record is that, when the Bostons contacted Facebook, company officials responded that only the user who signed up for the password-protected account had the authority to remove the page from the forum. There is no evidence that the Athearns unilaterally had the ability to take down the unauthorized Facebook page by virtue of the fact that it was created on a computer in their home, because it was created using an Internet service they paid for, or otherwise. See Mullinax v. Miller, 242 Ga. App. 811, 814 (2) (531 SE2d 390) (2000) (In the context of our libel laws, “publication entails the ability to control the libel.”) (citations and punctuation omitted; emphasis in original). Because there is no evidence supporting this theory of recovery, the trial court did not err in granting the Athearns’ motion for summary judgment in part.

Decided October 10, 2014

Reconsideration denied November 21, 2014

Woodward & Stern, Natalie S. Woodward, Corey M. Stern, for appellants.

J. Thomas Morgan III, Ragsdale, Beals, Seigler, Patterson & Gray, Edgar S. Mangiafico, Jr., for appellees.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and McMillian, J., concur.

       See OCGA § 51-5-1 (a) (“Alibel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing [the person] to public hatred, contempt, or ridicule.”).

       In his written statement, Dustin stated:
      In homeroom, Melissa and I decided to make a Facebook [page] under someone’s name and she said, “Who do we hate in this room?” I said “I don’t know, Alex Boston?” So we made up a username and a password for it. We went home and made the Facebook [page]. I chose Alex Boston because she followed me around and my friends did not like her and told her to leave me alone. I went home and made Alex Boston’s Facebook [page], Melissa went home to her house and pretended to be Alex.... I went home and posted onAlex’s [fake] Facebook [page for] about 4 or 5 days. Melissa went and posted on it the same time.

       Indeed, Facebook’s records showed that, months after Dustin’s principal notified the Athearns that Dustin had been disciplined for creating the unauthorized account, the fake persona continued to extend or accept requests to become Facebook Friends with additional users and that other users viewed and posted on the unauthorized page until the day before Facebook deactivated the account.

        Corley v. Lewless, 227 Ga. 745, 748 (1) (182 SE2d 766) (1971) (Other than as provided by statute, “causes of action against the parents of minor tortfeasors are rooted in the common law [of Georgia] and are predicated on something more than the mere parent-child relationship.”); Kitchens v. Harris, 305 Ga. App. 799, 800 (701 SE2d 207) (2010) (“Parents are not liable for the torts of their minor children merely on the basis of the parent-child relationship.”) (citation omitted); Saenz v. Andrus, 195 Ga. App. 431, 432 (2) (393 SE2d 724) (1990) (“In Georgia, unless the common law is changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship].]”) (citation omitted); Dent v. Smith, 172 Ga. App. 90 (322 SE2d 100) (1984) (accord); Assurance Co. of America v. Bell, 108 Ga. App. 766, 773 (4) (134 SE2d 540) (1963) (“Broadly stated, parents at common law are not liable for torts of their minor children”) (citation and punctuation omitted). See generally Charles R. Adams, Ga. Law of Torts § 14:1 (updated April 2014); Stephen A. Brunette, 18 Causes of Action 113, “Cause of Action Against Parent at Common Law for Injury Caused by Child,” (1989, updated July 2014).

       See also Assurance Co. of America v. Bell, 108 Ga. App. at 766-767, hn. 4 (“A parent may be guilty of primary negligence in failing to exercise reasonable care to prevent a child under his control from creating an unreasonable risk of harm to third persons, where he has knowledge of facts from which he should reasonably anticipate that harm will otherwise result.”).

        Assurance Co. of America v. Bell, 108 Ga. App. at 773-775 (4) (“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control],]” citing Restatement of the Law, Torts, § 316. “The true test” of whether a parent is liable for a child’s tort “is whether (a) a duty was raised against the parent by the facts of the case of anticipating that in the absence of [parental] supervision a particular type of injury to another will result, and (b) whether [the parent] then exercised reasonable care to control and supervise the infant to prevent such result.”) (punctuation omitted).

        Kitchens v. Harris, 305 Ga. App. at 800 (Where an injured person claims that a child’s parents negligently allowed their child to gain access to a dangerous instrumentality, “the standard for imposing liability upon a parent for failing to prevent the child’s action is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity” that resulted in another’s injury.) (citations and punctuation omitted); Garcia v. Grepling, 254 Ga. App. 219, 220 (561 SE2d 868) (2002) (In a case in which a child injured another, not through the use of any instrumentality, but through an unprovoked assault, the plaintiff would be required to show that the child’s parent was on notice of a dangerous proclivity or propensity for the specific dangerous activity that resulted in the plaintiff’s injuries.); McNamee v. A. J. W., 238 Ga. App. 534, 535-536 (1) (519 SE2d 298) (1999) (In a case in which a child injured another, not through the use of any instrumentality, but through having sex with another child, the plaintiff would be required to show that the child’s parents should have anticipated that harm would result from the unsupervised activities of the child and failed to exercise the proper degree of care to guard against that result.); Saenz v. Andrus, 195 Ga. App. at 432 (2) (An instrumentality is not inherently dangerous if such object is not likely to cause serious injury when used in a proper manner and with due care but only becomes dangerous if it is intentionally used to cause injury or is handled in a reckless and dangerous manner.); Jackson v. Moore, 190 Ga. App. 329, 330 (378 SE2d 726) (1989) (In a case in which a child injures another, but not through the use of a dangerous instrumentality, “the standard for imposing liability upon a parent for failing to prevent the child’s action is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity” that resulted in the other person’s injuries.) (citations omitted); Hill v. Morrison, 160 Ga. App. at 151-152 (Where a person “entrusts another with a dangerous instrument under circumstances that he has reason to know are likely to produce injury, [that person] is liable for the ensuing consequences.” Recovery against a parent for the tort of a child “is permitted where through parental negligence a child is permitted access to an instrumentality which, if not properly used, is foreseeably likely to cause injury to a third person, [but] this does not make the parent liable for an injury negligently inflicted by a child where there is no dangerous proclivity known to the former and no reason to anticipate the injury which in fact occurred.”) (citations omitted); Muse v. Ozment, 152 Ga. App. 896, 898 (264 SE2d 328) (1980) (Recovery is not permitted against a parent for a child’s tort “[w]here [the] parent has no special reason to anticipate” that the child may harm another, either because of the child’s “known dangerous proclivities” to engage in the conduct that caused the injury or because of the child’s “possession of [inherently] dangerous instrumentalities [.]”); Assurance Co. of America v. Bell, 108 Ga. App. at 773 (4) (Parents may be liable where they “have entrusted a dangerous instrumentality to their children or have failed to restrain their children who they know possess dangerous tendencies.”) (citations and punctuation omitted).

       See Jacobs v. Tyson, 200 Ga. App. 123 (407 SE2d 62) (1991) (A jury could find that a child’s parents were on notice of the risk of injury where they kept a pistol in their house loaded and in a location where it was accessible to their 12-year-old while he was present in the home with another child without adult supervision, since, “[u]nlike a butcher knife or a golf club, a loaded firearm may be considered an inherently dangerous instrumentality, in that,... it can inflict serious bodily injury by ‘going off’ accidentally.”) (citations omitted); Mayer v. Self, 178 Ga. App. 94, 95 (1) (341 SE2d 924) (1986) (A jury could find that a child’s parents were on notice of the risk of injury from a golf club swung by a 5-year-old child while playing with other children, in the back yard, without supervision, where there was evidence that the child’s parents knew about a previous incident in which their child had hurt someone with a golf club.); McBerry v. Ivie, 116 Ga. App. 808, 811 (159 SE2d 108) (1967) (A jury could find that a child’s parents were on notice of the risk of injury from a shotgun “which was a dangerous instrument” furnished to a 13-year-old child by his parents without reasonable instruction and supervision as to its use.).
      Cf. Kitchens v. Harris, 305 Ga. App. at 800-801 (A child’s parents were not liable for injuries resulting from the child allowing another child to use the family’s allterrain vehicle where there was no evidence that the child had ever used the ATV, or allowed another child to do so, without the permission and presence of the parents and therefore the parents were not on notice of their child’s proclivity or propensity for the specific dangerous activity that resulted in the other child’s injury.); Garcia v. Grepling, 254 Ga. App. at 220 (A child’s parents were not liable for serious injuries the child inflicted on another student in an unprovoked assault, despite evidence that the child had been suspended from school twice, once for accepting another student’s challenge to a fight, knocking the other student to the ground and then walking away, and once for “pushing one student, spitting on another, and using foul language and inappropriate gestures during the taping of a video for a student project,” since the previous incidents “consisted of rather typical schoolyard altercations in which no one complained of any injuries” and therefore did not constitute notice of any propensity of the child to engage in the specific dangerous activity resulting in the plaintiff’s claim.); McNamee v. A. J. W., 238 Ga. App. at 536 (1) (Generally, Georgia law does not place a duty on parents to arrange for supervision of their teenaged children while they are away from home. In the absence of evidence that a child’s parents had any reason to suspect that while they were at work he was having sex with an underaged girl in their home, the parents could not be held liable for any resulting injuries based solely upon his engaging in that activity, which he did without their knowledge.); Saenz v. Andrus, 195 Ga. App. at 432 (2) (A child’s parents were not liable for the injury inflicted by the child throwing a butcher knife toward another, despite evidence that the child had previously thrown a pocket knife at the wall, because that previous conduct did not demonstrate any propensity to handle a butcher knife in a reckless and dangerous manner.); Jackson v. Moore, 190 Ga. App. at 330 (A child’s mother was not liable for injuries resulting when the child surreptitiously took car keys from the mother’s purse and drove the car, where she had expressly forbidden the child from driving and the child had never disobeyed that instruction before and therefore she was not on notice of the child’s proclivity or propensity for the specific dangerous activity that resulted in the plaintiff’s injury.); Muse v. Ozment, 152 Ga. App. at 898 (A child’s parents were not liable for injuries resulting from the child’s use of a golf club that was stored in an unlocked building, where there was no evidence the child had ever before taken a golf club out and swung it in another’s presence and therefore the parents were not on notice of their child’s proclivity or propensity for the specific dangerous activity that resulted in the plaintiff’s injury.).

       OCGA §§ 51-5-1 (b) (“The publication of the libelous matter is essential to recovery.”); 51-5-3 (“A libel is published as soon as it is communicated to any person other than the party libeled.”); McCandliss v. Cox Enterprises, 265 Ga. App. 377, 379 (1) (593 SE2d 856) (2004) (Because communications posted on Internet sites may be viewed by a large number of persons, over an expansive geographic area, and for an indefinite period of time, application of the single publication rule is required, and, therefore, a plaintiff must collect all of his or her damages in one action, and the statute of limitation runs from the date of initial publication.), overruled on other grounds by Infinite Energy, Inc. v. Pardue, 310 Ga. App. 355 (713 SE2d 456) (2011); Sigmon v. Womack, 158 Ga. App. 47, 50 (279 SE2d 254) (1981) (In order for a libel to be published, there must be a reading of it by a third person who understands it in a defamatory sense.).

       See Mathis v. Cannon, 276 Ga. 16, 25-29 (4) (573 SE2d 376) (2002); Melton v. Bow, 241 Ga. 629, 630 (247 SE2d 100) (1978); Barnes v. O’Connell, 300 Ga. App. 399, 400 (685 SE2d 344) (2009). See generally Charles R. Adams, Ga. Law of Torts §§ 28:1, 28:4, 28:8 (updated April 2014); Monique C. M. Leahy, 32 Causes of Action 2d 281, Section III (C), “Cause of Action for Internet Defamation” (2006, updated July 2014).

       The sole illustration given by the drafters of the Restatement concerns a communication exhibited in the physical realm:
      A writes on the wall of the men’s washroom in B’s tavern a statement that C is an unchaste woman. B fails to discover the writing for an hour. After he discovers it, he fails to remove it for another hour, although he has ample opportunity to do so. During the second hour the writing is read by several men. B is subject to liability for the continued publication of the libel during the second hour, although not for the original publication.
      Restatement (Second) of Torts § 577, Comment on subsection (2), Illustration. See David Elder, “Defamation: A Lawyer’s Guide,” § 1:24 (updated July 2014) (discussing Restatement (Second) of Torts § 577 and related cases).


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15647.
    GILFORD v. GREEN.
    1. A contract providing that on default as to payment of one or more of a series of installment notes, the remaining' notes of the series shall become due and payable operates to mature the entire debt upon the default, and not merely to give the creditor an option to treat the whole debt as due or not.

      (а) Where a vendor of land executes to the purchaser a bond for title, and the purchaser executes to the vendor notes for the purchase-money according to the stipulations and recitals of the bond, the bond and the notes constitute but one contract.
    (б) Where in such entire contract there is a clause accelerating the maturity of the notes, the notes may become matured thereunder, as between the immediate parties, although the clause may be contained only in the bond for title.
    2. A plea in abatement to a suit upon notes, upon the ground that the suit was filed before their maturity, is properly stricken, on demurrer, where it appears from the plea that it is based solely upon the facts alleged in the petition, and where it further appears that under such facts the suit was not prematurely brought.

      (a) Where a plea in abatement, based on such ground, to a suit for money upon a written obligation, alleges no facts for the abatement, and the conclusions of the pleader are contradicted by the stipulations of the contract sued on, it is subject to general demurrer.
    3. It plainly appears that if the defendant has any right upon the facts alleged in the answer, it arises from the plaintiff’s breach of a contract subsequent to that upon which the suit was based; and, assuming that such contract and breach appear, a demurrer to the answer was nevertheless, properly sustained because of the failure of the answer to allege any amount of damage as a result of the breach.
    Decided October 16, 1924.

      Complaint; from city court of Thomasville—Judge Hammond. March 31, 1924.

      II' E. Merry, L. 8. Moore, for plaintiffs in error.
    IF. I. MacIntyre, J. E. Graigmiles, contra.
   Bell, J.

Dollie F. Green brought suit against D. C. and Annie Gilford upon notes. The petition alleged, that on March 24, 1919, petitioner entered into a written contract whereby she agreed to sell", and the défendants agreed to buy, a certain tract of land for the consideration of $1100. The contract was attached to the petition, and recited the payment of $50 in cash and the execution by the defendants of 110 promissory notes for $10 each, the first note to become due on May 22, 1919, and one note to mature on the 22d day of each month thereafter until the entire series should be paid. It was stipulated in the contract that “upon the failure to pay three notes, the whole debt becomes due.” The .vendor was bound by the instrument to execute titles on payment of all the notes. The petition, further alleged, that upon the lot at the time of the sale there was a - residence which the plaintiff insured to protect her own interest, her security being otherwise insufficient, and that the residence was subsequently destroyed by fire. Petitioner, on May 1, 1922, collected $600, the amount of the insurance, from-which, after deducting $18 paid for the premium, there remained the sum of $582, which the petition alleged “should be credited as a payment as of the date of May 1, 1922.” It was further alleged that immediately after the contract of sale the defendants went into possession of the property, and that they paid 23 of the 11Ó notes as they became due; “since which time defendants fail and refuse to pay any of the unpaid 87 notes, all of which are now in default and are payable in full, because defendants defaulted in the payment of as many as three notes, this maturing all of them as provided in the contract.” The prayer was, to recover the amount of the 87 unpaid notes, less a credit of $582, as of the date of May 1, 1922. There was no accelerating clause in any of the notes; this appeared, only in the sales contract or bond for title.

The defendant filed a plea- in abatement as follows: “1st. That according tó the terms of the petition filed in this case, the amount of $600 collected by the plaintiff should be applied, and was applied, to the payment of-the promissory.notes-sued upon, and therefore it appears that all notes that would have matured up to-'the date of the filing of the petition have been paid, and that none of the notes sued upon were, at the time of the filing of the petition, due and payable. 2d. The notes sued upon are not due, and the action brought is premature. 3d. The notes sued upon, if they be a valid and binding obligation at all, will not become due. and payable until July 22, 1926.”

The effect of the answer was to admit that none of the 87 notes had been paid, but it was denied that there had been any default. Construing the answer as a whole, it appears, however, that the insistence on the part of the defendant that there had been no default was based solely upon the facts that the plaintifE had collected the insurance, amounting to more than the sum represented by the notes mature by their face at the time of its collection, and the further facts alleged in the answer, as follows: 5th. That the building on the said premises and which was insured was the main consideration of the trade, the lot being of very slight value. 6th. That when the said insurance was collected as mentioned in plaintiff’s petition it became necessary for defendants to indorse the check given in payment of the said insurance, and defendants so indorsed said check and delivered the same to plaintiff, and thus permitted her to collect the insurance, upon the understanding and agreement with plaintiff that she would within a reasonable time replace the said building on said premises, and this she has totally failed and refused to do, so that defendants have been forced to procure and provide for themselves continuously, since the burning of the said building, another home. 7th. By reason of the foregoing the plaintifE rescinded the contract of purchase and sale, but nevertheless wrongfully retains all of the benefits of the contract, including all payments made by the defendants, their notes, the insurance-money collected, and the titl^ to the property. 8th. Defendants have paid to plaintiff $50 cash at the time of the trade, $230 in notes as they matured, besides the interest on said notes, and have paid the taxes accruing on the property. The total amount of principal and interest paid by the defendants to the plaintifE (including revenue stamps of $2.20) is $297.50. The defendants prayed judgment against the plaintiffs for this amount.-

-The court, on demurrer, struck the plea in abatement and also the answer, and rendered judgment for the plaintifE. The defend■ants excepted.

A contract providing that on default as to payment of one or more of a series of installment notes the remaining notes of the series shall become due and payable operates to mature the entire debt upon the default, and not merely to give the creditor an option whether to treat the whole debt as due or not. The debtor owes the creditor the duty of paying the entire amount at once, and the partial performance of this obligation by the immediate payment of a part of the aggregate debt thus due would not in any wise affect the existing maturity of the whole, although such payment amounted to more than would have been due but for the default. The mere acceptance of such part payment would in no sense amount to a waiver of the prior default or undo the maturity of the remainder of the indebtedness and set it forward to the dates originally fixed therefor respectively in the remaining unpaid notes. Sneed v. Wiggins, 3 Ga. 94; Kilcrease v. Johnson, 85 Ga. 600 (3) (11 S. E. 870); Cooper v. Ricketson, 14 Ga. App. 63 (1) (80 S. E. 217); Mayor &c. of Griffin v. City Bank, 58 Ga. 584 (1); Alexander v. Chipstead, 152 Ga. 851 (4), 861 (111 S. E. 552).

The installment notes and the sales contract, or bond for title, in this case constitute but one contract. Horne v. Evans, 31 Ga. App. 370 (2) (120 S. E. 787). The accelerating clause was contained only in the bond for title. According to the weight of authority, the stipulation in. that writing alone had the effect of fixing a contingency the happening of which matured the notes. Smith v. Champion, 102 Ga. 92 (3) (29 S. E. 160); San Antonio Association v. Stewart, 94 Texas 441 (1) (2) (61 S. E. 386); Voris v. Ferrell, 57 Ind. App. 1 (3) (103 N. E. 122); Miles v. Hamilton, 106 Kan. 804 (1) (189 Pac. 926, 19 A. L. R. 276); Parker v. Olliver, 106 Ala. 549 (1) (18 So. 40); Spesard v. Spesard, 75 Kan. 87 (3, 4) (88 Pac. 576); Snyder v. Miller, 71 Kan. 410 (69 L. R. A. 250, 114 Am. St. Rep. 489); 17 R. C. L. 771, § 139. There is some authority to the contrary, however, upon the idea that, in such a case, the provisions as to maturity contained in the notes being in conflict with the stipulation in the other writing, all should be construed together as parts of a single contract, and effect given to each. Thus, in those jurisdictions where, in such circumstances, the accelerating clause is considered not effective to mature the notes themselves, it is generally held that the creditor, upon the happening of the contingency, may proceed to enforce the other writing; as, íot instance, by foreclosure, if it be a mortgage, or by proceeding against the security in such way as may be permissible according to the nature of the contract and the laws appertaining thereto, even though he is not permitted at that time to sue upon the notes. Some of the cases applying this rule are: Owings v. McKenzie, 133 Mo. 323 (5) (33 S. E. 802, 40 L. R. A. 154); McClelland v. Bishop, 42 Ohio St. 113 (4); and see 2 Randolph on Commercial Paper, 1581, § 1050 (a).

It is a well-recognized rule that the construction that will uphold a contract in whole and in every part should be preferred, and the whole contract should be looked to in the construction of any part. Civil Code (1910), § 4268 (3). But we think that the class of cases just referred to present clear instances of a misapplication of this principle. The notes and the bond for title being parts of the same contract, a stipulation in the bond for title should have the same effect as if contained in the notes; the only difference is one of position. There is indeed no conflict between the provisions of the note and the accelerating clause in the bond for title. If the notes had provided that under no circumstances should the maker be called upon to pay until a certain date specified, a conflict would exist. Construing all the documents together, the dates of maturity as fixed in the notes are necessarily subject to the accelerating clause in the bond for title. In such a case the maker promises to pay on a certain day, and earlier on condition. In Smith v. Champion, 102 Ga. 92 (3) (29 S. E. 160), cited above, the accelerating clause was held to be operative upon the notes themselves, although contained only in a contemporaneous writing. The exact point here under discussion does not appear to have been made in that case, but the court’s ruling seems broad enough to cover it.

We are not concerned in this case with the question as to what should be the rules applicable to a situation where the notes were transferred but the security was retained by the original creditor, or where a third person acqixired notes past due in fact because of the happening of the contingency provided in the accelerating clause, but not so appearing by the face of the papers themselves. See Voris v. Ferrell, supra; Sweet v. Stark, 31 Fed. 858 (2). Here the questions are between the original parties.'

It appears by the petition that there had been a default in more than three of the notes at the time the plaintiff collected the insurance money. Upon such default the entire amount then unpaid .became. due instanter, and the receipt and credit of the insurance money on May 1, 1922, was nothing more than a partial payment upon a past-due indebtedness. •

The plaintiff might perhaps have been entitled to hold the insurance money as security for the debt, just as she held title to the building for that purpose before its destruction, without applying •or crediting it as a payment; but it is also unnecessary to pass upon this question, since we construe the petition as alleging that the fund was credited. She alleges it should be credited as of the date it was received, and the law presumes that done which ought to have been done. See cases cited in note, 11 A. L. R. 1301; Civil Code (1910), § 4523.

The plea in abatement, construed as a whole, shows no facts in denial of the maturity of the debt sued on except those appearing from the petition itself, and they in themselves are such as to disprove the plea; but even if we considered each paragraph of the plea as setting up distinct matter in abatement, it still was subject to demurrer as a whole, for the reason that paragraphs 2 and 3 contained conclusions only, and under the parol-evidence rule the court properly disregarded mere conclusions of the pleader which were contradicted by the stipulations of the contract covering the maturity of the debt. Finleyson v. Liverpool &c. Ins. Co., 16 Ga. App. 51 (84 S. E. 311); Civil Code (1910), § 5788; Kilcrease v. Johnson, 85 Ga. 600 (3), 602 (11 S. E. 870).

The answer failed to set up sufficient facts to show a rescission by reason of which the defendant might be enabled to recover the amounts paid. If it shows any right in the defendants at all for the failure of the plaintiff to rebuild the house, assuming a valid contract to that effect based upon a_ consideration, such right arose from the plaintiff’s breach of a contract subsequent to that upon which the suit was based, and no defense was set forth, for the reason, independently of any others that may exist, that the defendant failed altogether to allege any amount of damage resulting from such breach, Copeland v. White, 17 Ga. App. 565 (2) (87 S. E. 846); Fulghum v. Beck Duplicator Co., 121 Ga. 273, 274 (48 S. E. 901); Chambers v. Walker, 80 Ga. 642 (7) (6 S. E. 165); Foote & Davies Co. v. Malony, 115 Ga. 985 (4) (42 S. E. 413); Civil Code (1910), § 4397.

Judgment affirmed.

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


text:
    15612.
    Bullock v. Butts et al.

   Bell, J.

1. Under the Civil Code, § 5282, a third person, as claimant, may become a party to garnishment proceedings, by filing a bond to dissolve the garnishment, as therein prescribed, which bond operates as a claim. Gordon v. Wilson, 99 Ga. 354 (2) (27 S. E. 762).

2. Whether or not it be permissible, under the law, for a third person to become a party claimant to a garnishment proceeding by filing a claim under section 5157 of the Civil Code (1910), providing for claims by third persons where property is levied upon under process (Drought v. Poage, 3 Ga. App. 178 (3), 59 S. E. 728), it would be essential to the validity of such claim that a damage bond be given (Civil Code, § 5158), or an affidavit in forma pauperis filed (Civil Code, § 5164) when the claim is interposed. Hand v. Hall Merchandise Co., 91 Ga. 130 (2) (3) (16 S. E. 644).

3. Where, in connection with a purported claim to property impounded by garnishment, no bond of any sort was ever given, either under § 5158 or under § 5282 of the Civil Code, nor an affidavit in forma pauperis filed under § 5164, and where no reason for equitable intervention appeared (assuming that under some circumstances a proper case for such an intervention might be made,—National Bank of Augusta v. Printup, 63 Ga. 570 (2); First National Bank of LaFayette v. Case Threshing Machine Co., 140 Ga. 737, 79 S. E. 781), such “claim” or “intervention” was a nullity, and the court erred in refusing to dismiss it on timely and proper motion by the plaintiff in garnishment. Gordon v. Wilson, supra; Hand v. Hall Merchandise Co., supra.

4. The claimant in such ease never became a party to the garnishment proceedings and could not move the dismissal thereof for any reason. Compare Civil Code (1910), §§ 5283, 5289; Florida Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 417 (71 S. E. 734); Leake v. Tyner, 112 Ga. 919 (38 S. E. 343); Rossiter MacGovern & Co. v. Carrollton Electric Light Co., 5 Ga. App. 393 (1) (63 S. E. 233); Wright v. Brown, 7 Ga. App. 389 (1) (66 S. E. 1034); Wingo v. Johnson, 119 Ga. 486 (46 S. E. 669); Roney v. McCall, 128 Ga. 249 (1) (57 S. E. 503). Otherwise if the claimant had by appropriate proceedings become a party. Callaway v. Maxwell, 123 Ga. 208 (1) (51 S. E. 320).

.5. Under the ruling of the preceding paragraph the court erred in dismissing the garnishment proceedings on the ground that the plaintiff therein would not accept the burden of proof,—irrespective of where such burden would have lain if the claim had been valid and one or both of the parties had traversed the garnishee’s answer. See Mixon v. Lacey, 26 Ga. App. 542 (1) (107 S. E. 259); Jackson v. Campbell, 23 Ga. App. 642 (1) (99 S. E. 155).

Decided October 16, 1924.

Garnishment and claim; from Fulton superior court—Judge Humphries. April 12, 1924.

G. N. Anderson, Boyd G. Moss, for plaintiff.

6. Furthermore, the garnishee’s answer as to certain property in his possession not showing to whom it belonged, and not being traversed by either the plaintiff or the claimant, there was na issue or case for trial between them, and therefore no burden to be assumed by either. Small v. Mendel, 96 Ga. 532 (23 S. E. 834); Booth v. Brooke, 6 Ga. App. 299 (1) (64 S. E. 1103); Darlington v. Belt, 12 Ga. App. 522 (2) (77 S. E. 653); Harris v. Exchange Bank, 17 Ga. App. 700 (2) (88 S. E. 40); Davis v. Pringle, 108 Ga. 93, 95 (33 S. E. 815); General Motors Acceptance Corp. v. Bank of Valdosta, 31 Ga. App. 475 (2) (120 S. E. 794); Canlon Fertilizer Co. v. Hunt, 21 Ga. App. 424 (2) (94 S. E. 596); Holmes v. Venable, 27 Ga. App. 431 (1) (109 S. E. 175). Ordinarily, the party filing a traverse in sueli a ease would have the burden of sustaining it. Civil Code (1910), §§ 5283, 5746.

Judgment reversed.

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


text:
    15719.
    Rooks v. Stanaland.
   Bell, J.

1. Where two persons entered into a contract with a third, who was the owner of certain realty, by the terms of which the first two were authorized to sell the property at any price in excess of a named sum, and were to receive one half of the difference between the price at which the property was listed and the price at which they might 'succeed in selling it, and where, after they had sold the property in pursuance of the agreement, the owner executed a deed to other realty to one of them in satisfaction of the claim of both for commissions, such attempted accord and satisfaction was not binding upon the other, unless he authorized or ratified it.

2. Assuming that the debt for commissions was owing to the salesmen as partners, and assuming further that one of them, merely as a member of the partnership, would have been authorized to accept a conveyance of real property to the partners in satisfaction of the debt (see Civil Code of 1910, § 4311), such a satisfaction would not result as to the other ’ partner where, in the transaction between the party owing the commissions and the partner undertaking the collection, the deed of conveyance was made to the latter individually. Civil Code (1910), §§ 3180, 3182, 3183.

3. In this action by one of such salesmen for the recovery of his part of the commissions from -the party who had listed the property for sale a verdict was not demanded in favor of a plea of accord and satisfaction by the defendant, based upon the transaction referred to in the preceding paragraph,—namely, the conveyance to the other salesman individually,—where the evidence failed to show without dispute that the plaintiff either consented to the transaction or subsequently ratified it.

Decided October 16, 1924.

Complaint; from city court of Thomasville—Judge Hammond. May 8, 1924.

II. J. MacIntyre, for plaintiff in error.

8. P. Gain, P. G. Andrews, contra.

4. The evidence being conflicting both as to the plaintiff’s consent and as to his ratification, the trial court, after verdict found for the defendant, did not err in the first grant of a new trial. Carr v. Carr, 157 Ga. 208 (121 S. E. 227).

5. “The first grant of a new trial will not be disturbed by the Supreme Court [or the Court of Appeals], unless the plaintiff in error shows that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” Civil Code (1910), § 6204.

Judgment affirmed.

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


text:
    15726.
    United Provisions Corporation v. Board of Missions, etc.
   Bell, J.

1. Where, in an attachment case, “there has not been actual notice to the defendant, and constructive notice by seizure is relied upon, there must be a legal seizure.” McCrory v. Hall, 104 Ga. 666, 668 (30 S. E. 881). “The seizure must be such as to affect the owner with notice of the levy. Without it the court has no jurisdiction, and can not proceed to judgment against either the defendant or his property” Baker v. Aultman, 107 Ga. 339 (1), 341 (33 S. E. 423, 73 Am. St. Rep. 132). “Some overt act of constructive seizure by the levying officer is essential to the validity of the levy of an attachment upon real estate” (Groover v. Melton, 2 Ga. App. 269, 58 S. E. 488) —“some act that is sufficient to put the owner or his tenant upon notice that the officer has seized the land and is in possession of it.” Baker v. Aultman, supra.

2. Accordingly, where an attachment was issued against a nonresident defendant who owned in a county of this State two parcels of land acquired by different deeds from different grjmtors and separated from each other by a public road, one of them described 'in the deed as containing four acres bounded by the public road on the north; and the other described in like manner as containing thirty acres bounded by the public road on the south, and where there was no levy upon the four-acre tract, and the only effort at service of the attachment was an attempted seizure of the thirty-acre tract, but where there was no actual entering upon the land by the levying officer, and the only seizure relied upon was the posting by the officer of a notice upon a building situated on the four-acre tract, declaring a levy to have been made on the thirty-acre tract, and a request by the. levying officer to “some boys” at work upon the four-acre tract that they notify the defendant’s temporarily-absent agent of what the officer had done, and that they not molest the notice, and there was never any actual notice to the defendant or its agent, and the defendant did not appear and plead, or otherwise waive notice of the proceeding, judgment and execution in the plaintiff’s favor upon such attachment were null and void.

Decided October 16, 1924.

Illegality of execution; from city court of Waynesboro—Judge W. H. Davis. April 30, 1924.

11. 0. Hatcher, for plaintiff.

E. V. Heath, for defendant.

3. The above facts appearing- without dispute,' the court did not err in directing- a verdict in favor of the affidavit of illegality.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., conow.


text:
    15736, 15743.
    EVERETT v. SHY; and vice versa.

    1. In the trial of a suit upon a debt evidenced by promissory notes, the defendant, upon sufficient pleadings, will be entitled as of course to the benefit of entries of credit appearing on the notes unexplained.
    2. Where payments were proved by extraneous evidence and were different in dates and amounts from entries of credit on the notes, this, without more, did not conclusively establish that the credits so entered and the payments proved by the other evidence were the same, though the dates of such payments were anterior respectively to the dates of 'the entries of credit.
    3. Where, in such a case, there is nothing aside from the transactions themselves to deny or explain the entries, or to reconcile or identify them with the payments affirmatively proved, it can not be said as a matter of law that a jury, on the trial of the issue duly made, should not allow the defendant credit for the payments so proved, in addition to the entries themselves.
    4. Applying these rulings to the facts of this case, the evidence did not demand a finding for the plaintiff in a larger amount than that awarded. No error of law is complained of. The court did not err in" overruling- the motion for a new trial.
    Decided October 16, 1924.
    Distraint; from Twiggs superior court—Judge Kent. April 28, 1924.

      L. D. Moore, for plaintiff.

      Martin, Martin & Baldwin, for defendant.
   Bell, J.

This is a case where a distress warrant for rent was converted into mesne process by the tenant’s counter-affidavit denying indebtedness. It was unquestionably established on the trial that on February 5,1919, the defendant tenant executed three notes for the aggregate amount of $1350, due October 1, 1919, for the rent of certain lands of the plaintiff landlord. Upon the back of the notes appeared the following credits: October 30, 1919, $363.50; November 10, 1919, $163.43. The other evidence showed that the defendant made partial payments on the rent as follows: Account sales, for two hales of cotton, dated October 7, 1919, issued by a cotton broker in favor of the landlord, for $363.50; check dated October 10,1919, for $165.61; check dated November 7, 1919, for $300. The making of these payments was established without dispute. The jury returned a verdict in favor of the plaintiff, for the sum of $96.97 only, apparently allowing as credits to the tenant the amounts not only of the account sales and checks, but also of the entries of payment endorsed on the back of the notes. The plaintiff filed a’motion for new trial, based on general grounds, and the case is here upon exceptions to the overruling of that motion.

It is contended by the plaintiff that the verdict was insufficient in amount; that the aggregate credit entry of $363.50, dated October 30,1919, was for the account sales of October 7, for $363.50; and that the entry of payment of $163.43, made on November 10, 1919, is identical with the check of October 10, 1919, for $165.61. It is insisted, in other words, that the jury in their verdict allowed the tenant credit not only for the entries of payment, but also for the actual payments which the entries represented; and that the verdict therefore was for less than the plaintiff, as a matter of law, under the evidence, was entitled to recover.

There was evidence offered by the defendant sufficient to authorize the inference that the landlord’s husband, acting as her agent, accepted as part payment of the rent a note executed by a third person to the defendant for the subrental of a portion of the lands rented to the defendant. The plaintiff offered positive evidence to show that her agent did not receive the note as payment, including a letter written by the tenant, stating that he was “sending” the note to the agent not as a payment on the rent, but only that he might help the tenant collect it. A son of the agent testified that he saw his father open the letter, which was received by mail, and that the note was enclosed. The defendant, not denying that the letter was written and received, offered evidence which authorized the jury to find that the note was not-enclosed in the letter, but was “sent” to the agent by the tenant’s son, and, despite the letter, that -the agent received it with the express' understanding that it would be credited on the rent notes. The notes were introduced in evidence by the plaintiff, with the entries oi payment thereon. Prima facie the tenant was entitled to the credits appearing, and was not obliged to prove these credits or refer to them in his- evidence. Where payments were proved by extraneous evidence and were different in dates and amounts from the entries on the notes, this, without more, did not conclusively establish that the credits on the notes and the payments otherwise proved were the same, although the dates of such payments were anterior respectively to the dates of the credit entries. Aside from the transactions themselves, as indicated above, there is nothing in the evidence to deny or explain the entries, or to reconcile or identify them with the payments which the defendant affirmatively proved. It is probably true that the inherent circumstances would have authorized an inference that the first entry of credit was merely for the payment previously made, as shown by the defendant’s evidence. There were three of the notes, all dated February 5 and due October 1, 1919, for $50, $200, and $1000, respectively. The account sales from the cotton broker for $263.50, was issued to the plaintiff on October 7, 1919, for two bales of cotton which the tenant had shipped to the broker with the understanding that the proceeds of the sale thereof were to be paid to the landlord on the rent. On October 20 an aggregate credit entry of $262.50 was made, as follows: The $50 and $200 notes were marked paid, and a pajonent of $12.50 was entered on the $1000 note. At the time the entry was made, interest of approximately but not exactly $1, whether at 7 or 8 per cent, per annum, had accumulated on the two small notes marked paid in full. From these facts the jury would probably have been authorized, although not required, to find that the combined credits of $262.50 made October 20 were but entries of the payment evidenced by the account sales. However, the check of $165.61 of October 10 is in no way connected with the credit of $162.42, made on the $1000 note on November 10. There seems to have been no reason why the plaintiff should have been deducting interest at that time, for only a partial payment was made and credit was entered on the remaining unpaid note. This note carried its own interest; besides, the payment was by check and the credit was not made until a month later.

There is no way of determining which of the credits claimed were allowed by the jury. Under the evidence it would appear that a general verdict for the defendant would have been authorized. A calculation will demonstrate that the verdict as returned would have been warranted even though the jury had eliminated the note of the subtenant for $272.50. They might have found less than they did for the plaintiff, had they considered this note as a credit but believed that the credit entry of $262.50 represented the proceeds of the account sales-in the amount of $263.50.

When the case was here before (30 Ga. App. 383, 118 S. E. 577), upon exceptions to the grant of a new trial to the tenant, we held that the verdict was not demanded in favor bf the plaintiff for $520.89, as then rendered. It is now held that a verdict was not demanded for the plaintiff in a sum greater than $96.97, the amount awarded in the second trial.

No errors of law are complained of. The court did not err in overruling the motion for a new trial.

Judgment on main HU of exceptions affirmed j cross-Hll dismissed.

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


text:
    15566.
    Hill Brothers v. Render.
   Bell, J.

1. The controlling issue in this case was whether the defendant authorized his overseer to purchase on his credit the goods and merchandise for the purchase price of which the action was brought. If the evidence whose exclusion is assigned as error in special grounds 1, 2, 3, and 4 of the plaintiff’s motion for a new trial had been admitted, it could not have changed the result, as it related only to certain duties performed by the alleged agent as overseer and as foreman of a sawmill, and could in no way have illustrated his authority as a purchasing agent. See Render v. Hill, 30 Ga. App. 239 (117 S. E. 258). In each instance the testimony was objectionable as being a mere conclusion of the witness.

2. Whether certain evidence offered by the plaintiff for the purpose of showing the inaccessibility of the overseer, as the foundation for admitting the testimony which he had given upon a former trial of the same case, was erroneously excluded, the plaintiff was not harmed by the ruling, since the court admitted proof of such former testimony as though the witness’s inaccessibility had been satisfactorily established.

3. It is assigned that the court erred in allowing the plaintiff to prove such former testimony only by one who heard it and who professed to remember it (Civil Code of 1910, § 5773), and in rejecting proof of the same by a brief of the evidence taken upon the former trial. This assignment is without merit, -since nothing' is shown as to the contents of the brief of the evidence. “A ground of a motion for a new trial should be complete in itself, or rendered so by an exhibit to the motion. Accordingly, it has been repeatedly ruled that a ground based on the' admission or rejection of evidence presents nothing for adjudication, when such evidence is not set forth therein either literally or in substance, nor attached as an exhibit to the motion.” Shaw v. Jones, 133 Ga. 446 (9) (66 S. E. 640).

4. Where an attorney for the plaintiff met with a member of the plaintiff’s firm and the defendant for the purpose of discussing an account in issue between them, and said to the defendant that the parties had known each other for a long time, and “that it was a matter they could agree ’ (in the facts about without any dispute or controversy, ” and that he, the attorney, “hoped they would be able to settle it without any resort to the courts,” admissions by the defendant which were induced by such suggestions were inadmissible as evidence in behalf of the plaintiff in a subsequent suit upon the account. “Admissions or propositions made with a view to a compromise are not -proper .-evidence.” Civil Code (1910), § 5781.

5. The fact that the seller, more than, a year after the account had been incurred and become due, mailed to the defendant statements thereof and demands for payment, and that the defendant made no. reply, was insufficient, without more, to establish a ratification by the defendant of the purchases made by the overseer on his credit. There being no other evidence of ratification, the court did not err in failing- to instruct the jury upon that subject.

6. The court did not err as against the plaintiff in instructing the jury as follows: “In considering whether or not the agency existed, I charge you to consider all the. circumstances and the apparent relations, and the conduct of the parties, in order to determine whether or not [the , overseer] was acting as agent for” the defendant. Bender v. Hill, supra.

7. The charge, “If you believe .from the evidence he did make any purchases in this .case, look to the evidence from the plaintiff in this case, look to the evidence to determine whether or not he was acting .in the scope of his. authority in so doing,” is assigned as error on the ground that it was. confusing- and misleading, and required the jury to look only to the evidence of the.plaintiff, whereas “agency could have been proved.by the evidence of the defendant as well as the evidence of the plaintiff.” An .assignment merely that a charge is confusing and misleading is. too general to be considered. Wade v. Eason, 31 Ga. App. 256 (1) (120 S. E. 440). When this charge is fairly construed, it is apparent that, the phrase, “from the plaintiff in this case,” was intendéd by tire court .to refer to the purchases, and not to the evidence,—that- is, “purchases fpom the plaintiff,” and not “evidence from the plaintiff."

8. In view of the context, there is no merit in the assignment of error on : the charge excepted to in ground 15 of the motion for a new trial.-- -

.9. It is insisted by the plaintiff that the evidence showed without dispute • -that the defendant had admitted his liability for certain items! of: the account, and tlierefoi e that the general verdict in his favor was' unauthorized. The record shows, however, that the plaintiff’s evidence upon, this point was not uncontradicted. This contention, therefore, can not be sustained. The verdict found for the defendant was not without evidence to support it. The court did not err in overruling the plaintiffs motion for a new trial.

Decided October 18, 1924.

Complaint; from city court of LaGrange—Judge Duke Davis. April 2, 1924.

N. F. Gulpepper, F. T. Moon, for plaintiffs.

L. B. Wyatt, for defendant.

Judgment affirmed.

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


text:
    15598.
    PADRICK v. KISER COMPANY.
    A private business corporation created under the laws of this State, with its principal office in a given county, can not be sued in another county for a breach of contract, unless it has an office and transacts business there. The fact that it may have an agent in the county, without more, is insufficient to confer jurisdiction. It indisputably appearing in this case that the defendant, a corporation of that character, ivas sued in a county other than that in which its principal office was located, and that, although it had previously maintained an office or place of business in the county of the suit, such office or place of business had been discontinued when the suit was filed, it follows that the court did not err in directing a verdict in favor of the defendant’s traverse of the entry of service and its plea to the jurisdiction.
    Decided October 18, 1924.
    Complaint; traverse of service entry; from city court of Hines-ville—Judge Sheppard presiding. January 29, 1924.

      Parsey & Mills, Oliver & Oliver, John Z. Ryan, for plaintiff.-

      B. A. Way, Little, Powell, Smith & Goldstein, for defendant.
   Bell, J.

W. O. Padrick sued M. C. Kiser Company for. an alleged breach of contract. This court affirmed the judgment - of the trial court in overruling demurrers to the complaint in Kiser Co. v. Padrick, 30 Ga. App. 642 (118 S. E. 791). The cáse is here now upon exceptions by Padrick to the direction of a verdict in favor of a traverse to the entry of service and a plea to the jurisdiction, hied by the defendant.

The petition alleged: ‘‘That the M. C. Kiser Company is a corporation, incorporated under the laws of Georgia, having an office, place of business and agency in Liberty county, Georgia, and transacts business there; said offices, places of business and agencies being located in the towns of Hinesville and Willie in said county;” and that the contract alleged to have been breached was made and was to be performed in Liberty county, in which the suit was filed. The sheriffs entry of service, dated April 10, 1922, was: “I have this day served E. C. Elmore and E. Henderson as agents of defendant co. who are in charge of the offices and places of business in Hinesville, Ga., and Willie, Ga., personally with a true copy of the within petition and process.” The traverse and plea to the jurisdiction denied that either Elmore or Henderson was the defendant’s agent, and averred that it did not at the filing of the suit have any agency, office, or place of business in Liberty county, but that its principal office, as fixed by its charter, was in Fulton county, Georgia, and that the courts of that county, and not the city court of Hinesville, had jurisdiction of the cause of action alleged against it.

“Any corporation, mining, or joint-stock company, chartered by authority of this State, may be sued on contracts in that county in which the contract sought to be enforced was made or is to be performed, if it has an office and transacts business there. Suits for damages, because of torts, wrong or injury done, may be brought in the county where the cause of action originated. Service of such suits may be effected by leaving a copy of the writ with the agent of the defendant, or if there be no agent in the county, then at the agency or place of business.” Civil Code (1910), § 2259. The defendant’s charter was introduced, and disclosed that its principal office was in Fulton county. The evidence showed that prior to April 8, 1922, Elmore was the defendant’s agent to sell out a stock of goods bought by it at a bankrupt sale, of which a part was situated at Hinesville and a part at Willie, both in Liberty county. It appears that prior to this date the defendant had an office and transacted business at one, if not at both, of these places, within the purview of the above code section. If Henderson had ever been more than a mere subordinate employee of the defendant, it is conclusively established that all relation between him and the company had been dissolved prior to the service of the suit.

It was shown without dispute that on April 8 Elmore called up the defendant’s office in Atlanta by telephone and consummated a purchase of the entire lot of.goods upon terms definitely agreed upon, by which he was to pay a part of the purchase-money in cash and was to give his note for the remainder, which he executed and delivered on April 12. From the time of this agreement he regarded the property as his own, and made no -further sales and transacted no other business with reference thereto in behalf of the company. Thereafter the company had no office or place of business in Liberty county, and no agent therein, unless contrary inferences may be drawn from a letter written by the defendant from Atlanta to W. I. McLamb, of Lambert, Georgia, on April 11. This letter was as follows: “We have yours of the 8th instant, received today, advising us that [if] we have for sale the stock of merchandise and notices [notes] and accounts of the llinesville Furniture Company, you would be pleased to hear from us in detail, as you would like to figure with us on the stock. We are referring your letter to our attorney Mr. E. L. Elmore, Claxton, Georgia, who has this matter in charge for us, and you can communicate with Mr. Elmore, or he will no doubt communicate with you, provided he has not already made some disposition of the stock of goods and notes and accounts.”

Even though regarding this letter as tending to show that Elmore was still the agent of the defendant on April 11, he having been served on April 10, we do not think that it was sufficient to raise an issue as to whether the defendant had an office or place for the transaction of any business in Liberty county after April 8. McLamb’s inquiry evidently had reference to a probable purchase of the entire stock in bulk, and the reply was to the same point. Such a sale would not be transacting business within the terms of the code-section cited above. The phrase “transacting business” implies continuity or custom; more than a single transaction without any purpose of engaging generally in carrying on business. 8 Words & Phrases, 7059, and citations; 4 Words & Phrases (second series), 967. To have been perfectly frank, the letter should have stated that the properties had already been sold. It may be that the writer was desirous of bringing McLamb and Elmore together as a favor to the latter, and considered that such purpose might be best accomplished by the form of the letter as written. Or the defendant may have supposed that it continued to have a claim or right in the goods until Elmore had paid for them or delivered his note...; It might even bo true that Elmore’s remittance in cash had not been received, and the defendant was not sure of the exact status from Elmore’s standpoint,—that is, whether the sale should be considered executed. Whatever may have been in the mind of the author of the letter, and regardless of any other inference that may be drawn therefrom, it could not amount to an admission that the defendant was continuing to maintain an office or place for the transaction of business, in the sense employed by the statute. This being true, it is immaterial that the letter might have been construed as an admission of Elmore’s continuing relation as agent.

.Notwithstanding the contract in question may have been made, and was to be performed, in the county of Liberty, the defendant being a domestic corporation with its principal office fixed by its charter in Eulton -county, could not be sued in Liberty, unless it had an office and transacted business there. Tuggle v. Enterprise Lumber Co., 123 Ga. 480 (51 S. E. 433). It was not enough that the defendant may have had an agent in the county. It was a prerequisite to the jurisdiction of the court that at the filing of the suit the defendant should have had in that county a place at which it transacted business. Compare Atlanta Accident Asso. v. Bragg, 102 Ga. 748 (2 S. E. 706); Orebaugh v. Equity Life Asso., 115 Ga. 842 (42 S. E. 208). The word “office” as used in the code section mentioned is synonymous with “place of business.” General Reduction Co. v. Tharpe, 11 Ga. App. 334 (75 S. E. 339).

It indisputably appearing that the defendant, however shortly before, had ceased to maintain.any office or place where it transacted business in the county, it was not suable therein, although it might be bound by admissions than it yet retained Elmore as its agent, and even though, as we have seen above, such agent might have had authority to sell for the defendant a stock of goods, with the notes and accounts, in bulk, provideddhe purchase of the same by himself was not to be treated as a closed deal. '

Section 2563 of the Civil Code (Code of 1895, § 2145), prior, to the act of 1902 (Ga. L. 1902, p. 53), by which the word “agent” was substituted for the word “agency,” provided among other things, as to the venue of suits against insurance companies “having agencies or more than one place of doing business,” that such an insurance company might be sued in any county where it had an agency or place of doing business. The word “agency,” as there used, meant tlie same as “place of doing business.” See the Bragg case, supra. Thus, the part of this section to which we have just referred is the same in effect as'the portion of section 2259 under which the present case must be determined; and the Bragg and Orebaugh cases, while dealing with the venue of suits against insurance companies under section 2563, become authority in this ease. See also Equity Life Asso. v. Gammon, 118 Ga. 236; Ætna Ins. Co. v. Brigham, 120 Ga. 925 (44 S. E. 978). It was said in the Bragg case that it was “a prime requisite to the jurisdiction of the court that the company should have established in that county a place at which its business was transacted by its agent. . . It might have had a mere traveling solicitor of insurance who had no fixed place of doing business in the county of [the suit]; and under such circumstances,- the averment in the declaration [that it had an agent and transacted business in that county] could be true and yet the court not have jurisdiction of the company.” It was held that the petition was bad for failing to show that the company had an agency,—that is, a place of doing business,—-in the county.

It does not conclusively appear that Elmore remitted his cash payment prior to April 10, the date of the entry of service upon him. Whether his agreement with the company on April 8 constituted an executed sale, or merely an executory contract between the parties by which the one agreed to buy and the other to sell, the relation between them was changed from that of principal and agent for the purpose of carrying on any business of the defendant within the meaning of the Civil Code (1910), § 2259, and Elmore was thereafter a purchaser or one having contracted to purchase, although the company may have intended, as' might be inferred from the letter in question, to treat him as their agent for the purpose of selling the property in bulk .(not to carry on business for it), in case the agreement between them of April 8 did not prove effective. Thus, to give the fullest effect to any admissions contained in the letter, it fails to show that the company had an office in Liberty county at which it transacted business .at the filing of the suit. • • '

If the defendant had owned a lot' of land in that county and had offered it for sale through a local agent even empowered to .sell and- convey; .-would this; without more, -have made it Suable in that county upon a contract made or to be performed there? We do not think so. . ■

Elmore did not reside in Liberty county, but in Claxton in the county of Evans. This fact, however, would be immaterial (Great Eastern Casualty Co. v. Haynie, 16 Ga. App. 643 (2 b), 85 S. E. 938), if he had had a place of business in Liberty county even of his own (which he did not have) where the business of the defendant was conducted by him as agent (Orebaugh case, supra), if the defendant had no office or place of business of its own in that county. Ætna Insurance Co. v. Brigham, 120 Ga. 925 (48 S. E. 348).

It follows from what we have said above that the court did not err in directing a verdict in favor of the traverse and plea to the jurisdiction.

The views herein expressed are entirely consistent with the decisions in Ellis v. Southern Express Co., 27 Ga. App. 738 (110 S. E. 43), and Reeves v. Southern Ry. Co., 121 Ga. 561 (1) (49 S. E. 674, 70 L. R. A. 513, 2 Ann. Cas. 207).

Whether the traverse and plea to the jurisdiction should have been disposed of in advance of the hearing of the general demurrer, and whether the rights of the defendant under such dilatory proceedings were waived when it prosecuted the general demurrer first in order (Padrick v. Kiser Co., 30 Ga. App. 642, 118 S. E. 791), the plaintiff has not insisted, either in.the court below or in.this court, that any such waiver was made, but the sole reason urged for reversing the judgment is that the evidence as adduced upon the trial of the special pleas would have authorized a contrary verdict from that directed. We can not concur in this contention, but entertain the opinion that the evidence demanded the verdict as directed.

Judgment affirmed.

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


text:
    15706.
    McCommons-Thompson-Boswell Co. v. White et al.

   Bell, J.

A landlord claiming that his tenant had sold a part of the crops without paying the rent procured the issuance of a distress warrant, and sited out garnishment in which a summons was served upon the purchaser. The purchaser answered not indebted and no property subject to the summons; and to this answer a traverse was filed. “It was agreed between counsel in open court that no point at all was made on- the garnishment proceeding—that the case was being tried on ;ts merits, and no point was made that garnishment was not the proper remedy if the plaintiff was entitled to -recover.” In arguing the legal questions involved both parties have treated the case here as if it had been tried in the court below as a claim case, the landlord occupying the position of plaintiff in fi. fa., and the garnishee that of claimant. No obstacle appearing, this court -will deal with the case accordingly, referring to the parties respectively as plaintiff in fi. fa. and claimant. A verdict was found for the plaintiff in fi. fa., and the claimant excepts to the overruling of its motion for a new trial. Held:

1. “A bona fide purchaser, without notice, of a crop grown on rented premises will be protected against the lien, general or. special, of the landlord for rent.” Thornton v. Carver, 80 Ga. 397 (6 S. E. 915).

2. At the outset of the court’s charge the jury were instructed as follows: “Now this makes the issue for you to try: whether McCommonsThompson-Boswell Company were in possession, or afterwards came into possession, of money or other things of value belonging to G. W. Moon. Unless E. L. White has proven . . that McCommons-Thompson-Boswell Company did have money or other thing of value belonging to G. W. Moon, it would be your duty to find in favor of McCommonsThompson-Boswell Company.” This charge is assigned as error upon the ground that the claimant admitted that it had come into possession of property belonging to the defendant in fi. fa., but claimed to have received the same as a bona fide purchaser, without notice of the landlord’s lien. The giving of this excerpt was not cause for a new trial, since the court elsewhere in the charge fully and correctly instructed the jury that if the claimant was such a purchaser, a verdict should be returned in its favor.

(a) “Even though a particular instruction takent alone may be open to the criticism that it required a given qualification, yet where it plainly appears that elsewhere in the charge this very qualification of the doctrine laid down in such instruction was so distinctly and clearly, stated as that the jury were not misled as to the true law, the giving of the instruction will not require the granting of a new trial.” Wilson v. Small, 28 Ga. App. 587, 592 (113 S. E. 238).

3. The court charged the jury as follows: “The law is very kind to landlords, and in that connection I will read you section 3340 of the code: ‘Landlords shall have a special lien for rent on crops made on land rented from them, superior to all liens except liens for taxes, to which they shall be inferior.’ I charge you in that connection that such liens arise by operation of law, and do not have to be recorded as do judgments, liens, mortgages and other like liens. On the other hand, the law is equally kind to bona fide purchasers for value. I charge you in that connection, that if you believe from the evidence that McCommons-Thompson-Boswell Company bought from G. W. Moon the two bales of cotton in good faith, before a levy, your verdict should be in favor of McCommons-Thompson-Boswell Company. I charge you also in that connection, that if you believe from the evidence, or from the circumstances developed in the case, that McCommons-Thompson-Boswell Company, at the time they took the cotton, had actual or constructive notice tliat the landlord had a lien on the cotton, then it would be your duty to find for E. L. White. In this connection, I will read section 4530 of the code: ‘Notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact due to negligence is equivalent to knowledge in fixing the rights of parties.’ So you will take all of the evidence which tends to illustrate to you the sole issue in this case, namely, the question of good faith in McOommons-Thompson-Boswell Company in purchasing this cotton.” It is not reversible error that the court, in this excerpt, after charging that “the law is very kind to landlords,” immediately instructed them that, “on the other hand, the law is equally kind to bona fide purchasers for value,” upon the ground assigned, namely, “that the rights . . of a bona fide purchaser are superior to, and not equal to, the rights of a landlord.” It was probably inapt to instruct the jury with respect to the “kindness” of the law to either party, but since the jury were specifically informed that if the claimant was a purchaser bona fide, and without notice of the plaintiff’s lien, it would be entitled to a verdict, the claimant was not prejudiced by the implication that the law was not “more kind” to the claimant than to the plaintiff landlord, as contained, in the statement that it was “equally kind.”

(a) It appears from the context that the court, in using the phrase “constructive notice,” had reference to the notice with which a party may be charged under section 4530 of the Civil Code (1910). Whether the characterization was in a legal sense entirely accurate, there was no error in the excerpt quoted above, or in the part in reference to “constructive notice,” upon the ground that the lien claimed by the plaintiff in fi. fa. was not one of record nor one required to be recorded, and that the claimant could not be bound by any except actual notice. See Wiley v. Rome Insurance Co., 12 Ga. App. 186 (2) (76 S. E. 1067); Liverpool &c. Insurance Co. v. Hughes, 145 Ga. 716 (2) (89 S. E. 817); 9 Michie Ency. Dig. Ga. R. 724; Greene v. Matthews, 31 Ga. App. 265 (7) (120 S. E. 434).

4. The plaintiff in fi. fa. sought to impeach a witness introduced by the claimant by proof of contradictory statements previously made by the witness, relevant to his testimony and to the case. The claimant did not seek to sustain the witness by proof of general good character. The court instructed the jury that a witness may be impeached “by proof of contradictory statements previously made,” and added that “he may be restored to credit by proof of good character.” Even assuming that this additional charge was inapplicable as being unauthorized by the evidence and therefore erroneous, under the facts of this case the error was harmless. Mills v. Pope, 20 Ga. App. 820 (2) (93 S. E. 559); Helms v. State, 136 Ga. 799 (3) (72 S. E. 246); Kelly v. Stale, 118 Ga. 329 (1) (45 S. E. 413). This case is distinguishable from Hart v. State, 93 Ga. 160 (20 S. E. 39); Jenkins v. State, 2 Ga. App. 626 (2) (58 S. E. 1063); Joyner v. State, 12 Ga. App. 217 (2) (77 S. E. 9); Sandersville Oil Mill Co. v. Globe & Rutgers Fire Ins. Co., 32 Ga. App. 722 (10) (124 S. E. 728). See Alexander v. State, 32 Ga. App. 488 (3) (123 S. E. 923).

5. The burden was upon the claimant to prove that in pui-chasing the property in question it acted in good faith and without notice. Eason v. Vandiver, 108 Ga. 109 (1) (33 S. E. 873); Ray v. Atlanta Trust & Banking Co., 147 Ga. 265 (6) (93 S. E. 418). Tlie evidence did not demand a finding in the claimant’s favor, but the verdict found for. the plaintiff in fi. fa. was authorized.

Decided October 18, 1924.

Garnishment; from city court of Greensboro—F. B. Shipp, judge pro liac vice. May 7, 1924.

J. G. Faust, for plaintiff in error.

Noel P. Parle, contra.

Judgment affirmed.

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


author: Bei.l, J.

text:
    15729.
    Kreisle v. Prudential Insurance Co. et al.

    Decided October 18, 1924.
    Complaint; from Fulton superior court—Judge Bell. May 31, 1924.

      Neufville & Neufville, for plaintiff.

      Daley, Daley & Peeples, for defendants.
   Bei.l, J.

1. The court’s charge to the jury is not a material-part of the record to be transmitted to this court where, as in this case, there is no exception to any portion of the charge, or to any failure or refusal to charge. The request that the charge of the court be ordered sent up—it not having been specified in the bill of exceptions—is denied.

2. The alleged newly discovered evidence, consisting of letters written by the defendants to the plaintiff prior to the trial and in the meantime lost or mislaid, even if of any probative value whatever, was merely cumulative. .Furthermore, it does not conclusively appear that the plaintiff could not by ordinary diligence have produced the letters at Ihe trial; neither is it shown why, if the letters were then lost, their contents were not proved by secondary evidence. There was no error in overruling the ground of the motion for a new trial based upon alleged newly discovered evidence. Civil Code (1910), §§ 6085, 6086.

3. This court is without authority to order a new trial where, as in this case, there is some evidence to support the verdict, and no error of law is shown.

Judgment affirmed.

Jenlcins, P. J., concurs. Stephens, J., disqualified.


author: Broyles, C. J.

text:
    14352.
    Shehane v. Eberhart et al.

   Broyles, C. J.

1. “Where the only ground of a proceeding by a landlord to dispossess a tenant is that the tenant is holding over beyond his term, the tenant can not set up, by way of recoupment or counter-claim, damages which he alleges he has sustained by reason of the failure of tlie landlord to repair the premises. If the tenant is in fact holding over and beyond his term, the state of accounts between the landlord and the tenant, growing out of the tenancy at the time the warrant is issued, is entirely foreign to the issue raised by the dispossessory proceeding, which alleges that the landlord is entitled to retake possession of the property because the tenant’s right to possession has terminated by the expiration of the time to which the contract (and the possession of the tenants) was limited.”

Decided November 12, 1924.

Eviction; from Clarke superior court—Judge Eortson. January 29, 1923.

Erwin, Erwin & Nix, for plaintiff.

Wolver M. Smith, John J. Striclcland, for defendants.

2. “Since the lower court erred in overruling the demurrer interposed by the plaintiff to the defendants’ plea, all further proceedings during the trial were nugatory, and it is unnecessary to consider any further assignments of error presented by the bill of exceptions.”

3. The preceding rulings are those of the Supreme Court, handed down in this case when it reversed this court’s judgment of affirmance. See Shehane v. Eberhart, 158 Ga. 743 (124 S. E. 527). Therefore the judgment of affirmance (30 Ga. App. 265) is vacated, and this court now holds that the trial judge erred in overruling the demurrer to the defendants’ plea.

Judgment reversed.

Luke mid Bloodworih, JJ., concur.


text:
    15392.
    Ford v. Southern Railway Company.
   Broyles, C. J.

1. The courts of Georgia have no extraterritorial jurisdiction, and can not make a citizen of another State amenable to their process, or conclude him by a judgment in personam, without his consent; and where such a judgment was rendered in this State against a citizen of the State of Tennessee, upon whom no personal service of process was made within this State, and who did not appear, but who was served by a publication of summons, the judgment was void. Pennoyer v. Neff, 95 U. S. 714 (2) (24 L. ed. 565); Dearing v. Bank of Charleston, 5 Ga. 497 (5); Bank of Floral City v. Warnock, 144 Ga. 117 (2) (86 S. E. 249).

2. Garnishment proceedings are not valid unless the judgment upon which they are based is in personam, and not in rem. 20 Cyc. 980, and citations; Weston v. Beverly, 10 Ga. App. 261 (3) (73 S. E. 404).

3. Under the above-stated rulings and the facts of the instant ease, the judgment upon which the garnishment proceedings were based, and the garnishment proceedings, were invalid, and the judge (who, by consent of the parties, passed upon the issue without the intervention of a jury) did not err in overruling the traverse to the answer of the garnishee. This is true although the garnishee, the Southern Railway Company, when the summons of garnishment was served upon it in this State, owed the defendant in the original suit a certain amount of money; it appearing from the agreed statement of facts submitted to the trial judge that this money was earned by the defendant as an employee of the railway cbmpany, wholly within the State of Tennessee, and that it was payable to the defendant within that State. Under this state of facts the defendant in the original suit had no property, tangible or intangible, within the State of Georgia, which was subject to garnishment proceedings.

Decided November 12, 1924.

Certiorari; from Fulton superior court—Judge Ellis. January 30, 1924.

B. B. Jackson, T. L. Lanford, for plaintiff.

TF. 0. Wilson, for defendant.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    15401.
    Johnston-Crews Co. v. Smith.
    Decided November 12, 1924.
    Rehearing denied December 9, 1924.
    Complaint; from Lanier superior court—W. D. Buie, judge pro hae vice. January 21, 1924.
    Application for certiorari was made to tbe Supreme Court.

      W. B. Smith, Ben Smith, Parker & Parker, for plaintiff.

      li. D. Bivers, for defendant.
   Luke, J.

1. Where a new trial is sought on the ground that a member of the jury trying the case was related within the prohibited degree to the prevailing party, and, upon the hearing, affidavits are introduced tending to establish the sufficiency of that ground, and counter-affidavits are introduced to the effect that no such relationship existed, the judge passing upon the motion is the trior of the fact in controversy, and this court will not interfere with his decision thereon. Buchanan v. State, 118 Ga. 751 (9) (45 S. E. 607).

2. The excerpt from the charge complained of is not subject to any of the criticisms urged against it. The evidence was in sharp conflict, one part thereof tending to establish the truth of the plaintiff’s petition, the other to establish the truth of the defendant’s plea; and the verdict thereon, having the approval of the trial judge, can not be disturbed by this court.

Judgment affirmed.

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


text:
    15488.
    Waynesboro Planing Mill v. Barrow.
    Decided November 12, 1924.
    Complaint; from city court of Waynesboro—Judge W. Ii. Davis. February 25, 1924.

      F. S. Burney, Grover G. Anderson, B. F. Wallcer, for plaintiff in error.

      B. G. Price, F. M. Price, contra.
   Luke, J.

1. Where the operator of a sawmill contracted to manufacture into lumber all the timber on a designated tract of land, and to sell the lumber at a stipulated price per thousand feet, the sum to be paid became fixed and certain when the lumber was so manufactured and measured; and, in the absence of stipulations to the contrary, the purchaser simultaneously became bound and liable to pay that sum. In a suit by the operator against the purchaser, to recover the purchase price or a part thereof, the plaintiff is entitled to recover interest at the rate of seven per centum per annum from the date on which his demand was so liquidated. Civil Code (1910), § 3434; Council v. Hixon, 11 Ga. App. 813 (4) (76 S. E. 603), and cases cited.

2. The charge of the court was sufficiently full and fair, and was not subject to any of the criticisms urged against it.

3. The verdict was in favor of the plaintiff for the principal sum sued for, with interest thereon at the rate of seven per centum per annum from September 22, 1922. Under the plaintiff’s own testimony, his demand did not become liquidated until “about the first or middle of December,” 1922. Consequently he was not entitled to recover interest for any period prior to December 15, 1922. -The record here discloses no other error.

{a) If the plaintiff below (defendant in error here) will voluntarily write off the excessive interest by the time the remittitur is made the judgment of the lower court, the judgment overruling the motion for a new trial shall stand affirmed; otherwise the judgment is reversed.

Judgment affirmed on condition.

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


text:
    15494.
    Jeffcoat v. Deas.
   Luke, J.

1. In an action against an administrator on an alleged implied contract for the reasonable value of services alleged to have been rendered to the decedent during her lifetime and covering a period commencing six years prior to the suit, where the defendant denies the material allegations of the petition and specially pleads the statute of limitations, the burden is upon the plaintiff to prove not only that the services were rendered as alleged in his petition, but that they were so rendered, or that the alleged debt became due, within the period prescribed by statute for the limitation of such actions.

Decided November 12, 1924.

Complaint; from city court of Richmond county—Judge Black. February 25, 1924.

IF. I. Gurry, for plaintiJI in error.

IF. E. Fleming, contra.

(a) Applying these principles to the facts of the instant ease, the evidence did not authorize the verdict for the plaintiff.

2. The suit was in part to recover the alleged value of certain articles of personalty alleg'ed to have been in the decedent’s “possession at the time of her death, belonging to” the plaintiff; but there was neither allegation nor proof that the decedent’s possession was wrongful, or that she was under any implied obligation to pay for such articles, or that the administrator ever in fact came into possession of any of them. The plaintiff, therefore, was not entitled to a recovery on that account.

3. The judgment overruling defendant’s motion for a new trial was erroneous, because the evidence did not authorize the verdict.

Judgment reversed.

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


author: Bloodworth, J.

text:
    15599.
    ARMSTRONG v. REYNOLDS.
    1. “Where a tenant sublets land without the landlord’s permission, the landlord is entitled to make his rent out of the crop grown on the land by the subtenant, on a distress warrant issued against the principal tenant.” Horton v. Union Store, 19 6a. App. 184 (1) (91 S. E. 214), and cases cited.
    2. “While by statute landlords have a special lien for rent on the crops made upon land rented from them, which can not be defeated by a subletting of the premises, yet, as a landlord can not maintáin an action for rent against one who is not his tenant, and as the relation of landlord and tenant docs not arise between the owner of realty and one to whom his tenant has sublet the same until the landlord elects to make the subtenant his tenant, such subtenant is not, until the owner of the premises exercises his right to make such election, liable to him for the rent of the property.” Hudson v. Stewart, 110 6a. 37 (35 S. E. 178).
    3. “In order for the relation of landlord and tenant to exist between the owner of the property and a subtenant, some affirmative action must be had by the landlord showing that he elected to treat the subtenant as his tenant. It is not sufficient that the landlord has knowledge and makes no objection.” Hudson v. Stewart, supra.
    4. “Title to the crop raised on rented land is not in the landlord so as to empower him to sue for and to recover it in trover, or, waiving the tort, to sue for its value in assumpsit. He has a special lien upon it, attaching from its maturity, but to be enforced by distress warrant.” Worrill v. Barnes, 57 6a. 404 (1). See Carr t. Morris, Í7 6a. App. 45 (3) (86 ' S. E. 94).
    5. “It seems io be settled that when the landlord elects to make the subtenant his tenant lie releases his claim on the original tenant.” Hudson v. Siowwrt, supra.
    0. “A promise to answer for the debt, default, or miscarriage of another” is not binding on the promisor, “unless it is in writing, signed by the party to be charged therewith, or some person by him fully authorized.” Civil Code (1910), §§ 3222, 3222 (2).
    Decided November 12, 1924.
    Complaint; from city court of Sparta—Judge Lewis. April 3, 1924.

      T. M. Hunt, for plaintiff in error. M. L. Felts, contra.
   Bloodworth, J.

The evidence in this case not showing that the landlord consented that the original tenant sublet any portion of the rented premises, or that the landlord took any affirmative action to make the subtenant his tenant, or that he released his claim on the original tenant, it is clear, under the principles announced in the first five headnotes, that the relation of landlord and tenant did not exist between the landlord and the subtenant, and that the latter, as such, owed the landlord nothing, although the landlord’s lien attached to the crops grown on the premises rented by the subtenant, and this lien could be enforced by a distress warrant against the original tenant. But admitting that the subtenant, without the consent of the landlord, removed from the rented premises cotton which was grown thereon, and conceding, but not holding, that he was a tenant of the landlord, under the ruling in the 4th headnote, this did not empower the landlord to sue in trover for the cotton grown by the subtenant, or, “waiving counsel for plaintiff that he is entitled to the verdict in his favor because in the fall, and before the subtenant had paid any rent to the tort, to sue for its value in assumpsit.” But it is urged by the original tenant, the subtenant made a “distinct and definite contract” with the landlord that he would pay to the landlord the rent which he had contracted to pay to the original tenant. This contention is denied by the defendant; but granting that he did make such a promise, it was a mere oral promise to answer for the debt of another, and, under the law set out in the 6th headnote, is not binding on him. Counsel for the plaintiff in error cites and relies on the case of Saulsbury v. McKellar, 59 Ga. 302, to support his contention, but the facts of that case clearly differentiate it from this one. This case is more analagous to the case of Worrill v. Barnes, 51 Ga. 404.

We are therefore constrained to hold that the verdict is without evidence to support it; and the judgment is

Reversed.

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