text:
    16543.
    MITCHELL & CO. v. ATLANTIC COAST LINE RAILROAD CO.
    It not appearing that the evidence, with all reasonable deductions and, inferences therefrom, demanded a verdict, it was error to direct a verdict for the defendant.
    Decided October 6, 1925.
    Trover; from city court of Tifton—Judge Bennet. May 14, 1925.

      Bilis, Mitchell & Bilis, for plaintiffs.

      Bennet & Branch, B. D. Smith, for defendant.
   Luke, J.

On November 11, 1922,. J. B. Harris delivered to the Atlantic Coast Line Eailroad Company at Kirkland, Georgia, a bale of cotton consigned to J. N. Mitchell & Company at Tifton, Georgia. The draft attached to the bill of lading was paid by the consignee, and upon presentation of said bill of lading to the defendant’s agent at Tifton, and the payment of the freight due on the shipment, the agent gave to the consignee an order for the cotton on the Tifton Compress, which was the agent of the railroad company for compressing cotton. The compress company gave to J. N. Mitchell & Company a “due bill for railroad orders only, and not for cotton.” In December, 1922, plaintiff’s agent took this “due bill” to the compress company and demanded the cotton. The agent of that company said the cotton had never been delivered to it, and that it did not have the cotton. Plaintiff’s agent then went to the agent of the railroad company and called for the cotton, stating that the compress company had never had it. Mr. Windham, plaintiff’s agent, testified as follows: “Mr. Al-friend (defendant’s agent) advised me to wait until he could make a search for the cotton, and he would see if he could not find the same and make delivery. I went with him to the local warehouses and the warehouse of the Tifton Cotton Mills. This search covered a period of several months, and he did not find the cotton. Mr. Alfriend stated to me, when I made this first demand, not to take any steps, but to allow him time to find the cotton, if possible; and, relying upon that, hoping that he would find the same, I did not file the claim; but after numerous demands I did file the claim at the instance of Mr. Alfriend. I would call occasionally perhaps once a month, and each time Mr. Alfriend would request me not to be uneasy, or to file a suit; that he thought he could get a settlement with the railroad, company for the loss of this cotton and failing to have it delivered, or to have the same paid for. We instructed our attorneys in Februarjr, 1935, to bring suit. Claim for the cotton was filed in January, 1934. We never did receive the cotton, nor did we direct any one else to receive the same for us.” Mr. Alfriend, defendant’s only witness, testified substantially as follows: “I am L. S. Alfriend, agent at Tifton, Georgia, of the Atlantic Coast Line Kailroad Company. . . This cotton arrived at Tifton on November 14. In December Mr. Windham advised me that the compress did not have the cotton, and requested its delivery. I stated to him that perhaps we could find the same, and to wait and we would make a search. We did go to the compress, searching their stock records, to the various cotton warehouses at Tifton, and to the Tifton Cotton Mills, and we did not find the cotton. It took sometime to make this search. I do not know what became of the cotton, unless some one stole it. I do not know that any one did steal it. I do know that the railroad company does not have the bale of cotton, nor did they have it at the time of demand. However, they might have had it, and 1 not have known it. We did not deliver the same to J. N. Mitchell & Company, nor have I any record of its delivery to anyone. I do not know what became of it after its arrival at Tifton. I asked Mr. Windham to wait before taking any steps for the recovery of this bale of cotton by filing of claim, until we could make a search of the compress, the Tifton Cotton Mills, and the local warehouses, and a claim was not filed until January, 1934. I then tried to get our claim agent to settle the same, and asked Mr. Windham not to bring any suit, that I thought we could get it settled.” All the necessary documentary evidence having been introduced, both sides closed, and the court directed a verdict for defendant.

The foregoing statement of the evidence sufficiently indicates the nature of the petition, with the exception that we deem it proper to set out the allegations as to conversion. They are substantially as follows: Demand was made for the cotton, and the. defendant company “has failed and refused to make delivery of the same, and has, on or about the 8th day of December, 1932, not only not delivered the said cotton to . . petitioners, but has the same and refuses to make delivery, or does not have the same and has converted the said bale of cotton to its own use and benefit in the county of Tift.”

The defendant’s answer denied the material allegations of the petition, except the reception of the cotton by it, and the delivery of the cotton to its Tifton office, and set up that it was not liable, (1) for the reason that the plaintiff had made no claim in writing within six months after the delivery of the cotton, or within six months after a reasonable time for delivery had elapsed; and (2) because no suit was filed for the loss of the cotton within two years and one day after the delivery of the same, or within two years and one day after a reasonable time for delivery. The defendant further pleaded that the contract of carriage provided that it should be liable as at common law for any loss of said property or damage thereto, except as provided in said contract. The clause in the contract of carriage relied on by defendant is as follows: “Claims for loss, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property, . . or, in case of failure to make delivery, then within six months . . after a reasonable time for delivery has elapsed; provided that if such loss, damage, or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. Suits for loss, damage, injury, or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed: provided, that in case the claim on which suit is based was made in writing within six months, . . suit shall be instituted not later than two years and one day after notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.”

Both title and right of possession were in the plaintiff, and, as we view the case, the controlling question is: Did the evidence demand a finding that there was no proof of a conversion? A demand by plaintiff and possession and refusal to deliver by defendant are alleged. If proved, this makes a prima facie case, which stands unless overcome by other evidence. Defendant’s possession is admitted, and the presumption of law is that it continued. Allen v. Brown, 83 Ga. 161 (2) (9 S. E. 674); Robson v. Rawlings, 79 Ga. 354 (2) (7 S. E. 212). “The evidence of possession in defendant when the action was brought may be inferential,.and need not be strong to prevent a nonsuit, the action being complaint in the nature of trover.” Securities Trust Co. v. Marshall, 30 Ga. App. 398 (4) (118 S. E. 478), quoting Robson v. Rawlings, supra. A search failed to disclose the cotton, and there was no record of its having been delivered to any one. Defendant’s agent surmised that the cotton had been stolen, but did not know this to be true. He was of the opinion that defendant was not in possession of the cotton, but also testified that defendant might have had it without his knowing it. He knew the cotton was not delivered to plaintiff. Hnder the evidence we think it was a jury question whether or not the defendant was in possession of the cotton when demand was made for it and when suit was filed. If the jury should find that a prima facie case was made by demand and refusal to deliver, it was still for the jury to say whether such case was overcome by the evidence. Again, the evidence being that defendant had the cotton, and there being no 'evidence to show what actually became of it, we think the jury had the right to say whether or not there had been an actual conversion of the cotton. “In a trover case, demand and refusal are necessary only as evidence of conversion, and need not be proved where conversion is otherwise shown.” Securities Trust Co. v. Marshall, supra; Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (2) (52 S. E. 802).

The case of Southern Express Co. v. Sinclair, 130 Ga. 372 (60 S. E. 849), which is strongly relied upon by defendant in error, is quite different in its facts from the case at bar. In that case the evidence “showed without conflict that the express company was not in possession of the property at the time the suit was •brought or the demand made for its delivery.” The consignee could not be found, though search was made for him, and the trunk was destroyed by fire while in a proper place of deposit awaiting delivery to the consignee. There was positive proof that there was no conversion. Undoubtedly the case of Shore v. Brown, 19 Ga. App. 477 (5) (91 S. E. 909), cited by counsel for the defendant in error, states the law correctly as follows: “In trover conversion is the gist of the action. There must be some act of malfeasance, not mere nonfeasance, some positive wrong, and not the mere omission of what is right. Mere neglect of duty will not support an action of trover.” We do not say that there was “mere neglect of duty,” or that there was “some positive wrong.” We do think, however, that the evidence was not such as to demand a finding that there was not a conversion,—in short, this was a jury question. Our opinion that the conclusion we have reached is correct is very much strengthened by the ease of Southern Railway Co. v. Morrison, 8 Ga. App. 647 (3) (70 S. E. 91), the third headnote of which reads as follows: “If a person delivers a commodity to a railroad company for shipment from one county in this State to another, and the commodity is never shipped, and the evidence is such as to authorize the inference that the company or some of its agents made way with the commodity without shipping it from the point where it was delivered to the carrier, an action of trover and conversion may be maintained against the carrier in the county where the delivery to the carrier and the conversion took place.”

2. It appears that the feature of the defense based upon failure to give timely written notice and failure to sue within the time specified in the bill of lading depends upon the question of conversion. In Ayash v. Georgia Show-Case Co., 17 Ga. App. 467 (2 a) (87 S. E. 689), it was said: “Any special terms or stipulations in the contract that might affect the rights of the parties if the suit had been brought to' enforce the contract can not be considered in a trover suit.” Again, in Merchants & Miners Transportation Co. v. Moore, it was said: “A suit in trover is not an action for loss or damage to property, but an action for conversion of‘property. The conversion on the part of the carrier is an abandonment by it of its contract of shipment. It can not repudiate this contract and then hold the shipper to its terms.” We think also that under the facts of this case the jury should be allowed to say whether or not the stipulations in the bill of lading as to notice and time of filing suit were waived by defendant’s conduct. The court erred in directing a verdict for defendant.

Judgment reversed.

Broyles, C. J., and Bloodwortii, J., concur.


source: Caselaw Access Project

author: Bloodwobth, J.

license: Public Domain

text:
    16544.
    Elder v. Galloway.
    Decided October 8, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. May 4, 1925.

      W. H. Terrell, for plaintiff.

      Hendrix & Buchanan, for defendant.
   Bloodwobth, J.

The judge of the municipal court of Atlanta did not err in any of the rulings of which complaint is made in the petition for certiorari; nor did the judge of the superior court err in overruling the certiorari. This case is controlled by the ruling in Strickland v. Brown, 19 Ga. App. 73 (90 S. E. 1039). We are asked to review and overrule that case. This request is refused, as the cases cited in the decision in that case support the principle announced therein. See Morris v. Perkins, 148 Ga. 554 (97 S. E. 526).

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Luke, J.

text:
    16546.
    GAZAWAY v. THE STATE.
    1. While it is a misdemeanor for any person to shoot at, toward, or into any occupied dwelling house in this State, with any gun, pistol, rifle, or other deadly firearm, except in defense of person, property, or habitation, or under other circumstances of justification, yet if, in addition to the essentials of that offense, the elements of unlawfully shooting at another or of assault with intent to murder are made to appear, the offender may be punished for the felony so shown. *

      (а) If, in addition to the misdemeanor of shooting into an occupied dwelling house, the offender’s intention is to shoot, but not to kill, any person therein, and no person is thereby killed, then the offense is that of unlawfully shooting at another.
    (б) If, in addition to such misdemeanor, the offender’s intention is both to shoot and to kill some person in the house shot at, but he fails in that purpose, and if the firearm used is a weapon likely to produce death when so used, then the offense is that of assault with intent to murder.
    (c) Generally, the character of the weapon used, and the intention of the person using it, are questions of fact for determination by the jury under all the evidence.
    2. The record discloses no reversible error.
    Decided October 6, 1925.
    Assault with intent to murder; from Forsyth superior court— Judge Blair. May 11, 1925.

      Anderson & Roberts, for plaintiff in error.

      John 8. Wood,, solicitor-general, contra.
   Luke, J.

Gazaway was indicted with others for assault with intent to murder D. J. Bennett and others, by shooting at' all, and actually shooting one of them, with guns and. pistols- Being tried separately and found guilty, Gazaway made a motion for a new trial, based on the usual general grounds only, and he excepts to the overruling of the motion.

The evidence tends to make the following case: D. J. Bennett was a county policeman. On October 27, 1924, he stopped an automobile in which Gazaway and another were riding and searched it for whisky, but found none. That search, however, enraged Gaza-way and some of his friends. On the following day, in company with others jointly indicted with him, Gazaway threatened to kill Bennett, saying: “We will get old Delmar [meaning D. J. Bennett] to-night.” That threat was made in Gainesville, Georgia. Returning to their homes in Forsyth county that night, Gazaway and his party did not go the usual or the shortest route, but went a route that took them along the road on which Bennett lived. Bennett and his family had retired for the night before Gazaway and his party, who were traveling by automobile, arrived at or passed the Bennett dwelling. Bennett, who was still awake, heard the car pass and stop in the road some thirty or forty yards from his house. A moment later a shot was fired from the car. Going into his yard, but being unable to recognize the occupants of the car in the darkness, Bennett fired one shot up, not at any object. Another shot was immediately fired from the automobile, which sent a 45-caliber ball through the walls of Bennett’s dwelling, hitting about fifteen feet from the ground and passing over the heads of the occupants. Bennett thereupon fired directly at the car and its occupants until they fled. Later, during the same night, after replenishing their supply of arms and ammunition from a country store and a farm house a few miles away, the automobile party returned to the Bennett home. Whether they returned with or without Gazaway, the evidence does not clearly show. But on their return, without stopping the automobile, members of the attacking party discharged at and into Bennett’s dwelling house both a shotgun and a pistol, some of the missiles from these firearms penetrating the walls of the house, hitting and tearing through beds occupied by members of Bennett’s family, and wounding his daughter.

Discussing that evidence, Gazaway’s counsel, in their briefs here, contend that it is insufficient to authorize his conviction of any offense, “unless it be that .of shooting into the occupied dwelling of another.” Under the principles announced in the headnotes, that concession is virtually an admission that the complaint here is without substantial merit. Smallwood v. State, 9 Ga. App. 300 (2) (70 S. E. 1124). It is true that the act of 1910 (Ga. L. 1910, p. 137; Park’s Penal Code, § 115 (a)) makes it a misdemeanor “for any person to shoot at, toward, or into any occupied dwelling house in this State with any gun, pistol, rifle, or other deadly firearm, except in defense of person, property, or habitation, or under other circumstances of justification.” But that statute does not in any sense modify or repeal section 115 of the Penal Code, defining the offense of unlawfully shooting at another, or section 97, which defines the offense of assault with intent to murder. The misdemeanor of unlawfully shooting into an occupied dwelling house may be committed without an intention to maim or wound any person therein; but the intent to wound is an essential element of the felony of unlawfully shooting at another, while the intent to murder, as the name of the offense itself implies, is an essential element of the greater felony of assault with intent to murder. Fallon v. State, 5 Ga. App. 659 (1) (63 S. E. 806). The intent with which the shot was fired is in both cases of felony a question for the jury. Park’s Penal Code, § 97, and notes on “Intent.” Also, in a case of assault with intent to murder, the deadly character and use of the weapon must be made to appear; and this, too, is usually a question for the jury. Park’s Penal Code, § 97, and notes on “Weapon.” But whether the accused is being tried for assault with intent to murder or for unlawfully shooting at another, it is, in so far as the essentials of these two felonies are concerned, wholly immaterial whether the person shot or shot at was within or without his own or any other person’s dwelling house.

We can not say that the verdict is without evidence to support it; and, the verdict having the approval of the trial judge, this court is without authority to disturb it.

Judgment affirmed.

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


text:
    16549.
    Dozier et al. v. Thomas.
    Decided October 6, 1925.
    Application for certiorari was denied by the Supreme Court.
    Complaint; from Stephens superior court—Judge J. B. Jones. April 28, 1925.

      Bond & McClure, Erwin, Erwin & Nix, for plaintiffs.

      A. 8. Shelton, T. G. Dorough, for defendant.
   Luke, J.

The evidence amply authorized the verdict.

Upon the authority of Sanders v. Ayers, 155 Ga. 630 (117 S. E. 651), and under the particular facts of this case, the assignments of error upon the admission of parol evidence to explain the indorsement by Thomas, who was sued as indorser of the notes, show no reversible error. For none of the reasons pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    16550.
    FOLDS v. HARRIS.
    The first grant of a new trial on certiorari, where the verdict was not demanded by the evidence, will be affirmed without making any adjudication as to the reason that the judge assigned for granting it.
    Title to the crop grown by a cropper remains in the landlord until a division and settlement by which the landlord receives his share in full.
    Decided October 6, 1925.
    Certiorari; from Carroll superior court—Judge Roop. April 21, 1925.

      Smith & Taylor, for plaintiff.

      Emmett Smith, for defendant.
   Bloodworth, J.

1. The motion to dismiss the bill of exceptions is overruled.

2. “The action of the judge of the superior court sustaining the certiorari has the effect of granting a new trial, and, this being the first grant of a new trial and the evidence not having demanded the verdict, under the repeated rulings of the Supreme Court and of this court the grant of the certiorari will not be set aside. Murray v. Stribling, 28 Ga. App. 211 (110 S. E. 761); McCall v. Stubbs, 28 Ga. App. 308 (111 S. E. 63); Darley v. Williams, 28 Ga. App. 323 (111 S. E. 83). See also Maynard v. American Ry. Express Co., 29 Ga. App. 329 (115 S. E. 35).” Daniell v. McRee, 31 Ga. App. 210 (2) (120 S. E. 448). “This being the first grant of a new trial, and the verdict not haying been demanded absolutely by the evidence, this court, without undertaking to make any adjudication with respect to the reason assigned by the trial judge as the basis of his action, will affirm the judgment. Civil Code, § 5585; Cox v. Grady, ante, 368 (64 S. E. 262); McCain v. College Park, 112 Ga. 701 (37 S. E. 971); Brantley Co. v. Bank of Waycross, Id. 532 (37 S. E. 737); Harvey v. Bowles, Id. 363 (37 S. E. 363); Weinkle v. Brunswick R. Co., 107 Ga. 367 (33 S. E. 471); Macon Street R. Co. v. Jones, 116 Ga. 351 (42 S. E. 468); Allen v. Lumpkin, Id. 777 (43 S. E. 54).” Van Giesen v. Queen Ins. Co., 132 Ga. 515 (1).

3. Where the relation of landlord and cropper exists, “the title to all crops grown on the land remains in the landlord until there has been an actual division and settlement wherebjr he receives in full his share of the products.” De Loach v. Delk, 119 Ga. 884 (47 S. E. 204); Civil Code (1910), §§ 3705, 3707.

4. Under the principles announced above and the particular facts of this case, the court did not err either in sustaining the certiorari or in directing that if the evidence is substantially the same on another trial, the property should be found not subject to the mortgage execution. See, in this connection, Moore v. Southern Express Co., 9 Ga. App. 487 (71 S. E. 762).

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    16555.
    Carr v. Hendrix.
   Bloodwortii, J.

1. The court did not err in overruling the demurrers.

2. The charge given the jury was authorized by the facts, covered substantially the issues raised in the case, and there was no error therein either of commission or omission which would require the grant of a new trial. If fuller instructions on any particular branch of the case were desired, request therefor should have been made as is provided by section 6084 of the Civil Code of 1910.

Decided October 6, 1925.

Complaint; from Pulaski superior court—Judge Camp presiding. April 25, 1925.

PL. E. Coates, Latvson & Ware, for plaintiff in error.

Marion Turner, contra.

3. There is evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16561.
    Mayor and Aldermen of Savannah, for use, etc., v. Conaway et al.
    Decided October 6, 1925.
    Action upon bond; from city court of Savannah—Judge Freeman. May 18, 1925.

      H. P. Cobb, for plaintiff.

      Charles Q. Edwards, John F. Brannen Jr., for defendants.
   Bloodworth, J.

1. When the excerpt from the charge of the court complained of is considered in connection with the pleadings, the evidence, and the remainder of the charge, there is no error therein.

2. The evidence fully justified, if it did not demand, the verdict returned.

Judgment affirmed.

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


text:
    16565.
    KISER COMPANY v. BARBRE, trustee, et al.

    1. “Even if testimony as to a certain fact be inadmissible under the application of the strict rules of evidence, its admission is not ordinarily a ground for setting aside the final judgment, if such fact be shown by other legal evidence to which no objection was made.”
    2. “The opinion of a witness may be given in evidence as to the insolvency of a party, provided it is accompanied by the facts upon which the opinion is founded.”
    (a) “Where testimony a part of which is admissible is objected to as a whole, it is not error to overrule the objection.”
    3. Where judgments on unsecured claims are rendered against an insolvent person within four months prior to an adjudication in bankruptcy, and property is levied on and sold under the executions, and the proceeds are not paid over to the judgment creditor, but remain in the hands of the sheriff, the proceeds pass to the trustee of the bankrupt as general assets.
    Decided October 6, 1925.

      Money rule; from Calhoun superior court—Judge Custer. May 2, 1935.

      E. L. Smith, Little, Powell, Smith & Goldstein, for plaintiff in error..

      Lippitt & Burt, contra.
   Bloodworth, J.

On January 34, 1935, M. C. Kiser Company obtained in a justice’s court six judgments against Mrs. Nannie Belle Wilkinson. Executions were issued and levied by the sheriff on certain of her property, which he afterwards sold. On February 13, 1935, Mrs. Wilkinson was adjudged a bankrupt. In April, Barbre, as trustee in bankruptcy of Mrs. Wilkinson, brought a petition for a money rule, in which he alleged that as such trustee he was entitled to the funds in the hands of the sheriff. The sheriff answered the rule, and M. C. Kiser Company filed an intervention, asking that it be awarded a sufficient amount of the funds in the hands of the sheriff to pay off the judgments in its favor. After hearing the evidence the judge dismissed’the intervention and awarded the funds, less certain costs, to the trustee in bankruptcy. Kiser Company excepted to this ruling, and also to certain rulings of the court in admitting evidence.

It is alleged that the court erred in admitting certain testimony of C. S. Barbre. Even should we concede that the admission of this evidence is error, under the repeated rulings of this court and of the Supreme Court this error is not of such materiality as to require the grant of a new trial, because substantially the same evidence from the same witness ‘was later admitted without objection. Terry v. State, 15 Ga. App. 108 (3) (82 S. E. 635); L. & N. Railroad Co. v. Lovelace, 26 Ga. App. 286 (3) (106 S. E. 6), and citations.

Citing Crawford v. Andrews, 6 Ga. 244 (2), as authority, the Supreme Court in Moore v. Dozier, 128 Ga. 96 (57 S. E. 112), said: “Where a witness knows and states facts in regard to the financial condition of a person, he may, in connection therewith and founded thereon or derived therefrom, state his opinion as to the insolvency of the person under consideration.” See Cabaniss v. State, 8 Ga. App. 129 (17), 145 (68 S. E. 849). Moreover, the evidence objected to in the instant case was objected to as a whole, and at least a part of it was admissible, and “admitting all of such evidence affords no legal cause of complaint to the objecting party.” Eckman v. State, 23 Ga. App. 392 (98 S. E. 187); Armour Fertilizer Works v. Dasher, 23 Ga. App. 189 (4) (98 S. E. 105), and cases cited.

Where judgments on unsecured claims are rendered against an insolvent person within four months prior to an adjudication in bankruptcy, and property is levied on and sold under the executions, but the proceeds are not paid over to the judgment creditor, but remain in the hands of the sheriff, the proceeds pass to the trustee of the bankrupt as general assets. Section 67 (f) of the bankrupt act of 1898; 30 Stat. 565; U. S. Comp. Stat. 1901, p. 3450; Clark v. Larramore, 188 U. S. 486; Ricks v. Smith, 20 Ga. App. 491 (2) (126 S. E. 863 (2)). Under this ruling and the principle announced in the foregoing cases, this court will not say that the presiding judge erred in awarding the funds, less the costs, to the trustee in bankruptcy. Even though we should concede that the judge should not have stricken the intervention of Kiser Company, such error, under all the facts of the case and in view of the judgment rendered, does not require the grant of a new trial.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16585.
    BLACK v. THE STATE.
    1. An indictment for involuntary manslaughter in the commission of an unlawful act, containing three counts which differ only as to the nature of the specific unlawful act set out as the cause of the same homicide, charges but one offense; and sufficient proof of any one or more of such counts authorizes a general verdict of guilty.
    2. Where one operates an automobile upon a public street or highway of this State at a rate of speed penalized by statute, or while he is under the influence of intoxicating liquors, and, in consequence thereof, he kills a human being without any intention to do so, he is, under that view of the case most favorable to him, guilty of involuntary manslaughter.
    3. “If an involuntary killing happens in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, the offense is murder.” Gadsden v. State, 134 Ga. 785 (2) (68 S. E. 497).
    Decided October 6, 1925.
    Rehearing denied November 10, 1925.
    Involuntary manslaughter; from Cobb superior court—Judge Blair. April 25, 1925.

      W. 0. Munday, H. B. Moss, for plaintiff in error.

      John S. Wood, solicitor-general, contra.
   Luke, J.

Black was convicted of involuntary manslaughter in the commission of an unlawful act. He excepts to the judgment overruling his motion for a new trial, which was based on the-usual general grounds.

The first count of the indictment alleged “that the said 0. L. Black, on the 25th day of January, 1925, in the county aforesaid, with force and arms, did unlawfully then and there, without any intent to do so, but while in the commission of an unlawful act of driving and operating a certain Buick touring automobile, the same being then and there a motor-vehicle, over and upon the public highway of said county known as the Marietta and Atlanta public road, at a greater rate of speed than thirty miles per hour, he, the said accused, did then and there run said automobile against a certain pole, a certain tree, a certain embankment, and into and over a certain ditch, the same being located on a certain curve near Locust Grove sehoolhouse, thereby wrecking said motor-vehicle, and, in so doing, he, the said accused, did hurl and throw one Mary Lee King, a human being, violently from said automobile, and did then and there turn said automobile over on her, the said Mary Lee King, thereby inflicting upon her, the said Mary Lee King, a certain mortal wound and certain mortal wounds, upon her head,, body, and members thereof, from which she, the said Mary Lee King, then and there died.”

The second count was identical with the first except as to the unlawful act therein set out, which consisted in the 'operation of ■the automobile at a rate of speed in excess of ten miles per hour while approaching and traversing a designated sharp curve upon the same highway. The third count, which was otherwise identical with the other two, charged.the unlawful act of operating an automobile upon a public highway while under the influence of intoxicating liquors.

There was evidence tending to show that on the 25th of January, 1925, the accused and one Edward Eox, the owner of the machine, accompanied by the deceased and her sister, went from Atlanta to Marietta. Eox drove the car to Marietta, Black undertook to drive it back to Atlanta. Both were, if not intoxicated, at least under the influence of intoxicating liquors. The witnesses vary as to the speed at which the ear was running on the return trip, the lowest estimate being from thirty to forty miles an hour, the highest being from fifty-five to sixty miles an hour. All are agreed that the speed was unnecessarily, if not unusually, fast. Tn attempting to round a sharp curve on the highway at that rate of speed the car was wrecked, substantially as set out in the indictment, the occupants thereof were thrown out and maimed, and one of them, Mary Lee King, sustained an injury from which she died on the following day. The jury returned a verdict finding the accused guilty on all three counts, and fixing his penalty at from one to two years in the penitentiary.

The evidence abundantly authorized the verdict. Although the indictment contains three counts, it charges but one offense, one homicide, and is, in substance, the same as if all three unlawful acts resulting in the one homicide had been charged in one count. The form of the indictment is a matter for the pleader. The law looks to its substance. Under either form of indictment a general verdict of guilty would be authorized by proof of any one or more of the alleged unlawful acts, together with proof of the other essentials of the offense charged. Tooke v. State, 4 Ga. App. 495 (3) (61 S. E. 917).

In defining the particular grade of involuntary manslaughter here in question, the code provides: “Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, . .: provided, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, . . the offense shall be deemed and adjudged to be murder.” Penal Code (1910), § 67.' The act of 1921 (Ga. L. 1921, p. 255), regulating the use of motor-vehicles in Georgia, makes it an indictable offense to operate any motor-vehicle upon any public street or highway of this State at any rate of speed in excess of thirty miles per hour. While approaching or traversing a sharp curve on a highway, it is an indictable offense to operate the machine at a greater speed than ten miles per hour. By section 6 of that act it is made an indictable offense for any person, “while under the influence of intoxicating liquors or drugs,” to operate any motor-vehicle upon any highway of this State, regardless of the rate of speed. The purpose of these several regulations of motor-vehicles is the protection of the lives and limbs of all persons upon or using such streets and highways, not only those who may be met, overtaken, or passed by the driver, but as well for the protection of those who may accompany him. The view of the law and evidence in point most favorable to the accused would, therefore, seem to demand the verdict returned against him.'

In the instant case the accused might well have been tried for the offense of murder, leaving it to the jury to say whether the unlawful acts, with all .their attendant facts and circumstances, rendered the transaction one which, in its consequences, naturally tended to destroy human life. But the State having adopted the view of the evidence most favorable to the accused, and having put him upon his trial for the minor offense of involuntary manslaughter, instead of giving the trial jury an opportunity to say if the offense was murder, the accused will not be heard to complain that he might have fared worse.

Judgment affirmed.

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


text:
    16593.
    Brown v. The State.
    Decided October 6, 1925.
    Making liquor; from Fayette superior court—Judge Searcy. May 6, 1935.

      Culpepper & Murphey, for plaintiff in error.

      E. M, Owen, solicitor-general, contra.
   Luke, J.

1. Where one is on trial for manufacturing intoxicating liquors, and the evidence tends to show that he was seen at a whisky still, pouring beer or mash into it, and the still was shortly thereafter found to be warm and to have had fire under it, but no quantity of whisky was found or shown to have been distilled, and no evidence was adduced to show who made the beer, a verdict finding the accused guilty of an attempt to make whisky is not contrary to law or without evidence to support it. Leverett v. State, 20 Ga. App. 748 (93 S. E. 232).

2. In such a ease there is no error of which the accused will be heard to complain in the charge: “Presence at the place where such liquors are made is not unlawful. There must be, in addition, some act which is necessary and essential to the making, manufacturing, or distilling of such liquors before you would be authorized to find the defendant guilty.”

3. The record discloses no reversible error.

Judgment affirmed.

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


text:
    16600.
    Reese v. The State.
    Decided October 6, 1925.
    Making liquor; from Heard superior court—Judge Roop. May 12, 1925.

      M. U. Mooti/j for plaintiff in error.

      W. Y. Atkinson, solicitor-general, W. L. Stallings, contra.
   Luke, J.

The accused being on trial for manufacturing intoxicating liquors, and the evidence tending to show that he and others were found by county policemen at a whisky still in a swamp, with fire under the still and beer from which whisky might be distilled in it, and withythe accused stirring the beer in the still and other members of his party doing other acts essential to the operation of the still, but further showing that, before any whisky was actually distilled or the worm or condenser had been attached to the body of the still, the ofiicers rushed upon and arrested some members of the distilling party and the others escaped arrest by flight, the verdict finding the accused guilty of an attempt to manufacture whisky was not without evidence to support it. See Groves v. State, 116 Ga. 516 (42 S. E. 755, 59 L. R. A. 598), and citations in opinion.

Judgment affirmed.

Broyles, O. J., and, Bloodworth, J., concwr.


text:
    16630.
    Bullard v. The State.
    Decided October 6, 1925.
    Conviction of pointing gun; from city court of Baxley—Judge Speer. April 29, 1925.

      J. B. Moore, for plaintiff in error.

      TVade H. Watson, solicitor, contra.
   Luke, J.

The charge of the court, in the absence of an appropriate re-

quest for fuller instructions, was sufficiently full and fair. The evidence, though conflicting, authorized the verdict; and the verdict, having the approval of the trial judge, can not be disturbed by this court.

Judgment affirmed.

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


text:
    16634.
    LACY v. CITY OF ATLANTA.
    The evidence authorized a finding that a Confederate soldier’s license granted to another person was used by the defendant to avoid payment of a license tax; and the judge of the superior court did not err in overruling the certiorari from the judgment of the recorder finding the defendant guilty.
    Decided October 6, 1925.

      Petition for certiorari; from Pulton superior court—Judge Thomas. June 10, 1925.

      W. G. Kemp, B. B. Jackson, for plaintiff in error.

      J. L. Mayson, J. M. Wood, contra.
   Bloodworth, J.

In the brief of counsel for the defendant in error is the following: “ Section 1888 of the Civil Code of Georgia (1910), which authorizes the issuance of disabled soldiers’ licenses, distinctly provides that such license, when granted, shall not be transferred to or used by any other person. The contention of the city is, that Lacy (the defendant) was running this business himself, deriving the profit from it, and was merely attempting to use a soldier’s license, granted to Glenn, as a shield to protect him from paying a license tax to the City of Atlanta and the State of Georgia. The fact that Lacy had been running the business prior to the time that he alleges an interest was sold to Glenn, the fact that Lacy continued to operate the business after it was sold to Glenn, the fact that Lacy gets the largest share of the profits in the form of a salary, connected with the further fact that Glenn, himself, is an inmate of the Pulton county alms-house, was sufficient to authorize the recorder of the City of Atlanta to conclude that the business was owned by Lacy and not by Glenn, and that Lacy was using Glenn’s Confederate soldier’s license in an effort to procure exemption from payment of the tax. These were all questions of fact. The recorder found Lacy guilty, the judge of the superior court refused to sanction the certiorari, and we respectfully contend that the recorder of the City of Atlanta and the judge of the superior court were right, and that the action of the judge of the superior court in refusing to sanction the certiorari should be sustained.”

The foregoing fully, clearly, and accurately expresses our views, and is adopted as the opinion of this court.

Judgment affirmed.

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


text:
    16192.
    BAILEY et al. v. THE FIRST NATIONAL BANK OF JEFFERSON.
    “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto. But "where there is conflicting evidence as to material issues, it is error for the court to direct a verdict.” Fielder v. Davison, 139 Ga. 509 (6) (77 S. E. 618) ; Civil Code (1910), § 5926.
    Decided October 7, 1925.
    Complaint; from city court of Jefferson—Judge Bryson. December 23, 1924.

      G. W. Westmoreland, Shackelford, Shackelford & Davis, for plaintiffs in error. Jere S. Ayers, contra.
   Luke, J.

The First National Bank of Jefferson sued George W. Bailey as maker, and J. L. Bailey and C. F. Porter as securities, on a promissory note. Defendants admitted the execution of the note, but alleged payment thereof. For the purposes of this decision, it is not necessary to set out their plea in full. The gist of it sufficiently appears from the summary of the evidence given below. As the- case will be for trial again, we shall, not attempt to state the evidence fully, but will give only so much of it as is necessary in passing upon the question presented; that is to say, whether or not the court erred in directing a verdict for plaintiff.

J. C. Turner was president of both the bank and Turner Incorporated, a mercantile concern. George W.. Bailey was not an employee of the bank, but was working for Turner Incorporated, on a salary. George W, Bailey swore that he had an agreement with Turner as president of the bank, whereby Turner should-collect money due Bailey by Turner Incorporated, and pay off the note sued on, and that Turner “did collect the money . . and applied it to a note” of his (Bailey’s) son. Bailey further testified: “All the trade I had with him (Turner) was as president of the bank. . . I was dealing with the bank through its president.” J. C. Turner swore in part: “I am president of the First National Bank of Jefferson. I have charge of looking after the collection and things of that sort. .- . My trade was that he (Bailey) was to let me have fifty dollars per month of his salary with Turner Incorporated, and that I was to apply that anywhere I wanted to apply it.” Turner admitted that he took the money in question' and applied it to debts due Turner Incorporated. Turner further testified that he was not acting for the bank in the transaction, and that the directors of the bank never authorized him to act for it.

Judgment reversed.

Bloodworth, J., concurs. Broyles, G. J., dissents.


author: Luke, J. Bloodworth, J.,

text:
    16401.
    JENNINGS v. THE STATE.
    The alleged forgery was sufficiently charged, and the indictment was not subject to the demurrer. Bloodworth, J., dissents.
    Decided October 7, 1925.
    Forgery; from Walker superior court—Judge Wright. March 7, 1925.
    The material parts of the indictment are set out in the following opinion. The demurrer was on the grounds: (1) The indictment is insufficient because it is not alleged that there was an intent to defraud. It charges no crime. (2) It is not alleged that the check was genuine. (3) The alleged copy of the. check does not show that the check was indorsed; and it is not alleged that any person was defrauded thereby. (4) It is not alleged that the check was offered to any bank or person with intent to defraud; it is not alleged to whom the check was offered. (5) The indictment contains three separate counts, and there is no attempt to comply with section 954 of the Code in regard to separate counts.

      Norman Shattuclc, for plaintiff in error,
    cited, as to the demurrer: Penal Code (1910), §§ 239-41, 231; 11 Ga. App. 239 (2); 79 Ga. 344 (2); 33 Ga. 225.

      J. F. Kelly, solicitor-general, M. Neil Andrews, Rosser & Shaw, contra.
   Luke, J.

W. J. Jennings was indicted for forgery. The indictment charged him with “the offense of felony, for that the said W. J. Jennings on the 24th day of August, in the year of our Lord 1923, in the county [named] . . , unlawfully, feloniously, and with force and arms, did falsely and fraudulently make, sign, and print, and was then and there concerned in the false and fraudulent making, signing, and printing, and did then and there procure the false and fraudulent making, signing, and printing, of a certain check and draft upon a certain bank of this State, which said check is in words and figures as follows: LaFayette,' Ga., Dee. 18th, 1920. Walker County Bank. Pay to the order of Mrs. A. M. Street two hundred dollars . . $200.00. One [on?] note due Oct. 1, 1920, and did falsely and fraudulently make and sign, and was then and there concerned in the false and fraudulent making and signing, and did then and there procure the false and fraudulent making and signing of the name of Mrs. A. M. Street on the back of said check and draft as indorser thereof, and the said W. J. Jennings did then and there falsely and fraudulently utter and publish as true the aforesaid false, forged, counterfeited, and altered check and draft, knowing the same to have been falsely and fraudulently forged, counterfeited and altered as aforesaid, contrary to the laws of said State, the good order, peace and dignity thereof.”

1. The indictment was not subject to the demurrer urged against it.

2. The rulings of the court complained of upon the admissibility of evidence were not erroneous; the charge of the court was full and fair, and the evidence was amply sufficient to authorize the defendant’s conviction. For no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., dissents.

Bloodworth, J.,

dissenting. I think the court erred in overruling the demurrer to the indictment, and that this error rendered the further proceedings nugatory.


text:
    16446.
    American Trust & Banking Company, adm’r, v. Shaw et al.

    Decided October 7, 1925.
    Complaint; from Walker superior court—Judge Wright. Marcli 7, 1925.

      Norman Shattuck, Henry & Jackson, for plaintiff.

      Rosser & Shaw, for defendants.
   Bloodworth, J.

Twice lias this case been before the Supreme Court. See Shaw v. Probasco, 139 Ga. 481 (77 S. E. 577), and Probasco v. Shaw, 144 Ga. 416 (87 S. E. 466). Under the principles announced in those decisions, when applied to the facts on the last trial, no ground of the motion for a new trial shows error that requires a reversal of the judgment. The principles of law involved have been definitely-settled by the foregoing decisions; and as the evidence on the last trial is sufficient to support the verdict then rendered, the judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke, J., concurs. Broyles, O. J., dissents.


author: Per Curiam. Bloodworth, J.,

text:
    16452.
    GEORGIA RAILWAY AND POWER COMPANY v. JOHNSON.
    Tbe evidence did not authorize a finding that the railway and power company, in placing usual and necessary articles for the building of a power line—such as poles, wires, cross-arms, etc.—on or near an old road on land condemned by it, was guilty of negligence such as would render it liable for injury caused by the running away of a mule attached to a buggy, when the mule became frightened at these articles.
    Decided October 7, 1925.
    Action for damages; from Cobb superior court—Judge Blair. March 21, 1925.

      Colquitt & Conyers, Jerome Jones Jr., John T, Dorsey, for plaintiff in error.

      Mozley & Gann, H. B'. Moss, contra.
   Per Curiam.

The Georgia Railway & Power Company placed in or near an old road, and on land which the company had condemned, certain material for the building of a power line; the material consisting of poles, wire, cross-arms and insulators. Plaintiff’s mule, attached to a buggy, shied at these articles, ran away, and threw him and his wife out of the buggy, causing the'alleged injury for which this suit was brought. These articles consisted of the usual and necessary materials for building a power line, and the evidence failed to show that there was anything unusual about them. No evidence authorized a finding that the company was guilty of negligence in the premises, and the verdict for the plaintiff was contrary to law and evidence. See 1 R. C. L., 1203; Davis v. Penn. R. Co., 218 Pa. 463 (167 Atlantic, 777, 12 L. R. A. (N. S.) 1152); Southern Ry. Co. v. Flynt, 2 Ga. App. 168 (58 S. E. 374); Southern Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172); Barton v. Southern Ry. Co., 132 Ga. 841 (64 S. E. 1079, 22 L. R. A. (N. S.) 915, 16 Ann. Cas. 1232); Coleman v. Wrightsville & Tennille R. Co., 114 Ga. 386 (40 S. E. 247).

Judgment reversed.

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

Bloodworth, J.,

concurring specially. I concur in the judgment of reversal, but not on the ground stated in the majority opinion. The court charged the jury as follows: “If the placing of these alleged obstructions were such as would naturally or reasonably cause a reasonably safe road animal to take fright thereat, and the defendant should have so known, or expected, or anticipated in placing the same, if he did so do, then the plaintiffs would be entitled to a recovery in the case.” The effect of this excerpt from the charge was to instruct the jury that if the alleged obstructions were placed in the road by the defendant, this would be negligence. The acts complained of did not constitute negligence per se, and this charge, in the writer’s opinion, was erroneous. “In a suit to recover damages alleged to have been sustained in consequence of the negligence of the defendant, a charge which in effect instructs the jury that if they believe from the evidence that, at the time the injury was received, a given state of facts existed, such facts would constitute negligence on the part of the defendant, is erroneous, when the facts are not such as would, under the operation of a statute or valid ordinance, constitute negligence per se.” Mayor &c. of Milledgeville v. Wood, 114 Ga. 370 (1), 371 (40 S. E. 239); Civil Code (1910), § 4863.


author: Peb Cubiam.

text:
    16451.
    Georgia Railway & Power Co. v. Johnson.
    Decided October 7, 1925.
    For description of this case and names of counsel, see the case cited in the decision.
   Peb Cubiam.

The facts in this case are the same as those in the ease of Ga. Ry. & Power Co. v. Johnson, ante, 458. The two cases were tried together, and the ruling in that case is controlling in this.

Judgment reversed.

Broyles, G. J., and Luhe, J., eoneur. Bloodworth, J., concurs specially.


text:
    16537.
    DICKENS v. BREEDLOVE et al., executors.
    Under the facts in this ease the lien of the general judgment on the homestead-waiver note attached when the stock of merchandise in question was set apart as a homestead by the bankruptcy court.
    The bankrupt, or his assignee, the claimant, could not benefit by section 67f of the bankruptcy act (U. S. Comp. St. § 9651). Only the trustee and those claiming under him can avail themselves of its provisions.
    The claimant could not plead the discharge in bankruptcy as a stay of execution.

      The trial court correctly held that the property was subject to the levy.
    Decided October 7, 1925.
    Levy and claim; from Oconee superior court—Judge Fortson. March 31, 1925.

      James W. Arnold, for plaintiff in error.

      Orrin Roberts, contra.
   Luke, J.

Being entirely satisfied with the correctness of the able and lucid opinion of the trial court holding the property subject to the levy, 'we feel that we can do no better than adopt that opinion as the opinion of this court. It is as follows:

“This case was submitted upon an agreed statement of facts, hereto attached, wherein it ivas stipulated as follows: A general judgment was obtained by the executors of Breedlove against J. K. Dicken on July 23, 1923, upon a homestead-waiver note, and levied on February 16, 1924, upon a stock of merchandise which had been set apart to Dicken as a homestead by a referee in bankruptcy on November 22, 1923, Dicken having been adjudged a bankrupt a little less than four months after the judgment was obtained. Dicken received his discharge as a bankrupt on November 29, 1924. He-had theretofore, on December 27, 1923, assigned the stock of merchandise to Mrs. Ophelia Dicken, who now claims it under that assignment. Dicken was insolvent at the time the judgment was rendered against him in favor of the executors. It is contended by the claimant: (1) that the exemption of J. K. Dicken was merely a chose in action and therefore not subject to the levy; (2) that, the judgment having been obtained when J. K. Dicken was insolvent and within four months of his adjudication as a bankrupt, is void; and (3) that no stay was sought in the bankruptcy court, and his discharge there relieved him' of the general judgment. I can not accept any of these theories.

“ (1) Granting that the right to the homestead was in the nature of a chose in action prior to the date of its being set apart, when it was set apart in tangible physical property it ceased to be so, and the lien of the judgment immediately attached. See Coker v. Utter, 152 Ga. 157 [108 S. E. 538]; McBride v. Gibbs, 148 Ga. 380 [96 S. E. 1004]; McKenney v. Cheney, 118 Ga. 387 [45 S. E. 433]. The ruling relied upon by claimant, in the case of Norris v. Aikens, 155 Ga. 488 [117 S. E. 248], is not in point, the property set apart to the bankrupt in that case being itself a chose in action.

“ (2) Nor can the bankrupt, nor his assignee, the claimant here, benefit by the provisions of 67 of the bankruptcy act, since it has been repeatedly held by the Supreme Court of Georgia that only the trustee and those claiming under him can avail themselves of its provisions. See Coker v. Utter, and the other cases cited supra.

“(3) Neither can the claimant here plead the discharge in bankruptcy as a stay, the judgment having been based on a note waiving the homestead. See McKenney v. Cheney and other cases cited above. It does appear under the ruling in the case of White, trustee, v. Stump, decided by the Supreme Court of the United States, November 24,1924 [266 U. S. 310, 45 Sup. Ct. 103], and to which my attention has been called, that where no homestead has been applied for and set apart in the State court, the action of the referee in setting it apart is a mere nullity; but since both parties are treating the property as a homestead regularly awarded, that decision can have no bearing on this case.

“I therefore hold that the lien of the judgment fastened upon the stock of merchandise in question, and that the property is subject to the levy; and judgment has been entered accordingly. This March 31, 1925.”

Judgment affirmed.

Broyles, C. J., and Bloodworlh, J., concur.


text:
    16552.
    Wier v. Armour Fertilizer Works.
    Decided October 7, 1925.
    Complaint; from city court of Jefferson—Judge Ayers. May 16, 1925.
   Luke, J.

1. The amendment to the plea being a plea of non est factum, and not having been verified, the court properly disallowed it. Civil Code (1910), § 5650.

2. The first ground of the amendment to the motion for a new trial complains of the admission of certain documentary evidence, but the evidence is not set forth in the ground nor attached as an exhibit thereto. It follows, under repeated rulings of the Supreme Court and of this court, that the ground can not be considered by the reviewing court.

3. Under the evidence submitted, the direction of the verdict in favor of the plaintiff was not error, and the court properly refused to grant a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworkh, J., concur.

Cr. W. Westmoreland, C. L. Bryson, for plaintiff in error.

S. J. Nix, contra.


text:
    16557. 16558.
    SECURITY LOAN & TRUST COMPANY v. BLACKWELL. ARNOLD, for use, etc., v. BLACKWELL.
    The evidence authorized the verdict, and there is no merit in any of the assignments of error.
    Decided October 7, 1925.
    Complaint; from city court of Decatur—Judge Daley.' May 1, 1925.

      McBlreath & Scott, for plaintiff.

      J. Caleli Clarice, for defendant.
   Luke, J.

These two cases were suits to recover real-estate agents’ commissions, and were tried together, but are here on separate writs or error (which will be considered jointly), complaining of the judgment overruling and denying the respective motions for new trial.

The evidence authorized the verdict of the jury in favor of the defendant in each of- the cases in the court below. The special assignments of error upon excerpts from the charge of the court, when the charge is read in its entirety and applied to the issue in the two cases, are without merit. The cases have been legally tried, and for no reason pointed out in the records did the court err in overruling the motions for new trial.

Judgments affirmed.

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


author: Bloobwoeth, J.

text:
    16389.
    GOODRICH RUBBER CO. v. CAPITAL CITY TIRE & SUPPLY CO.
    1. No ruling on -the pleadings, to which exceptions pendente lite were filed, was erroneous.
    2. In the grounds of the motion for a new trial based on alleged errors in the charge there is no error that -requires a rehearing.
    3. In the light of the entire charge and in the absence of a written request, tlie court did not err in refusing to instruct the jury as set out in the 19th ground of the motion for a new trial.

      4. A new trial is not required because of the admission of the evidence of witnesses Gillooley and Phillips.
    5. The verdict is contrary to law and not supported by the facts.
    Decided October 8, 1925.
    Complaint; from Fulton superior court—Judge Ellis. March 2, 1925.

      W. S. Dillon, Jones, Evins, Moore & Powers, for plaintiff.

      Troutman & Troutman, Fuller & Bell, for defendant.
   Bloobwoeth, J.

Only the 4th and 5th headnotes will be elaborated.

The ground of the motion for a new trial to which reference is made in the 4th headnote related to certain evidence of witnesses Gillooley and Phillips. - For no reason alleged was the admission of the evidence of Gillooley, of which complaint was made, erroneous. The evidence of Phillips embodied in special ground 23 of the motion was not inadmissible for any reason urged against it. Moreover, it was objected to “in mass.” Part of it was clearly admissible. “Where a ground of a motion for a new trial complains of the admission of a lengthy excerpt from the testimony of a witness, over the objection that all of the excerpt was inadmissible, and it appears that at least a portion thereof was admissible, the ground is too defective to be considered by this court. Luke v. State, 26 Ga. App. 175 (1), 176 (106 S. E. 199), and citations.” Reeves v. State, 32 Ga. App. 29 (1) (123 S. E. 28). See Knight v. State, 143 Ga. 678 (6) (85 S. E. 915). The rulings in these cases disposes of this ground of the motion adversely to movant. Ground 24 of the motion contains other evidence of the witness Phillips, and one of the grounds of objection thereto was that “the testimony failed to show that the tires testified about were related in any way with the tires in question.” This conclusion is erroneous. Moreover, the court charged the jury as follows: “The court instructs you not to consider evidence with reference to defects of other tires unless there is evidence to show you that the tires now on hand were manufactured by the same process and in the same manner and of the same material and under the same or similar conditions as the other tires which are claimed to have been defective.” TTnder these instructions the jury could not have been misled by this evidence even should we concede that it was erroneously admitted, which we do not.

The court charged the jury that “The defendant alleges that the tires are worthless, and that they are not subject to the provision for adjustment as set out in said contract, and therefore there is a breach of the contract on the part of the plaintiff. The court instructs you that in order for the defendant to recover in this case, it is necessary that it show that said tires are wholly worthless. . . If you believe from the evidence in the case that the tires which the defendant now has on hand and as described in its answer and cross-petition are not entirely worthless and have any value in them, defendant can not recover, and you should find for the plaintiff:” That the principle here announced is correct is shown by the following cases: Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (73 S. E. 412); Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (4) (118 S. E. 446); Horne v. Evans, 31 Ga. App. 372 (7 b) (120 S. E. 787); Colt Co. v. Wheeler, 31 Ga. App. 427 (4) (120 S. E. 792); Harmon v. Block, 32 Ga. App. 700 (124 S. E. 548); Hornsby v. Butts, 85 Ga. 694 (11 S. E. 846). In the face of the instructions quoted above, and notwithstanding the evidence did not show that the tires were “wholly worthless,” but on the contrary, there being direct evidence to show them to be of some value and other evidence from which the jury would have been authorized so to find, the verdict returned was as follows: “We, the jury, find for the defendant in the sum of the difference between, first, the claim of the defendant $5704.00 and interest at 7%, and, second, $3782.09 with interest at 7%; interest in both instances to be figured from October 23, 1920, to date; the 108 solid Goodrich Truck Tires to be returned to plaintiff by defendant.” This was a finding for the defendant for the amount asked for in its cross-petition, and, under the pleadings and the evidence, the verdict is contrary to the law and the facts, and the judge erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Stephens, J.

text:
    15042.
    Owen v. Moseley, for use, etc.
   Stephens, J.

Under the ruling of the Supreme Court in answer to a certified question propounded in this ease (161 Ga. , 129 S. E. 787), the superior court erred in striking the answer óf the garnishee, which was filed on the first day of the third term of the court after it was returnable, before the case was called and before there was a motion by the plaintiff to enter judgment against the garnishee for the amount of a judgment rendered against the principal debtor at the second term.

Decided October 17, 1925.

Garnishment; from Henry superior court—Judge Searcy. July 2, 1923.

B. M. Smith, for plaintiff in error. _ Reagan & Reagan, contra.

Judgment reversed.

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


text:
    16278.
    TUTEN v. TOWLES.
    1. Where a contract of rental has been terminated by mutual agreement between the parties before the expiration of the term, the tenant is not liable thereunder for rent accruing from the occupancy of the premises after, the termination of the contract.
    2. Where, upon the abrogation of a contract of rental, the owner moves upon the premises and continues to live in the house with the tenant, and the tenant agrees to “stay on” and remains on the premises for a number of days, during which time he looks after the owner’s cows and feeds them, such circumstances alone are insufficient to establish a contract of rental.
    Decided October 17, 1925.
    Certiorari; from Chatham superior court—Judge Meldrim. Jan • uary 7, 1925.

      Frederick A. Tuten, for plaintiff in error.

      N. J. Norman, I. G. Farthing, contra.
   Stephens, J.

Mrs. Towles instituted a suit against Tuten, to recover two months rent at $20 per month, and the price of an automobile tire at $9, less a credit of $10 paid upon the rent. There was introduced in evidence a written contract, by the terms of which Mrs. Towles leased certain premises to Mrs. Tuten for the sum of $20 per month for a period of sixteen months, and also sold to her certain cows and other property at an agreed price. It is inferable from the evidence that Mrs. Tuten executed this contract, which was not under seal, as agent for her husband. The evidence is conclusive that, before the expiration of one month after the execution of the contract and after the defendant had taken possession of the premises and the property, the plaintiff moved into the house with the defendant and his family, and, under an agreement with the defendant, in the language of the .plaintiff in her testimony, “relieved him of the contract;” that the defendant, after remaining on the premises with the plaintiff, gave up the premises and moved away; and that the defendant occupied the premises 'not exceeding a month and two days. It thus appears that, before the defendant had occupied the premises for one month, the contract of rental was terminated, and he was not liable under the contract for rent for occupancy of the premises afterwards.

While there is evidence to the effect that when the plaintiff, Mrs. Towles, moved into the house with the Tutens, “the Tutens were to stay right on and she was to stay with them,” this evidence is insufficient to establish the relationship of landlord and tenant between the parties, in view of the undisputed testimony to the effect that, after the abrogation of the original contract of rental and for the sale of the cows and other property, the defendant, while remaining on the premises with the plaintiff, at times, looked after the plaintiff’s cows and fed them for her. Under no view of the evidence is the plaintiff entitled to recover rental beyond the period of time during which the defendant and his family occupied the premises. The verdict finding for the full amount sued for was therefore without evidence to support it. It is not necessary to decide whether, as contended by the defendant, the agreement by which he was “relieved” of the contract by the plaintiff relieved him of the unpaid rental up to that time. The judge of the superior court erred in overruling the certiorari.

Judgment reversed.

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


text:
    16602.
    Hardin v. Mutual Clothing Company.
   Stephens, J.

1. The giving of “five days notice of the time and place of hearing,” required by section 5154 of the Civil Code (1910), of a petition for discharge filed by a defendant in a suit in trover, who is held in imprisonment in default of bail, is not complied with by serving the plaintiff, on the first day of May, with notice that the time of hearing the petition will be on the fifth day of May following. From the first day of May to the fifth day of May is only four days. Civil Code (1910), § 4 (8); Baxley v. Bennett, 33 Ga. 146.

2. On the hearing of such petition on the day set in the notice, to wit, upon the fifth day of May, The court did not err in overruling a motion of the petitioner to defer the hearing, until after the lapse of five days after the service of the notice, and in dismissing the petition because of lack of the required notice.

Decided October 17, 1925.

Certiorari; from Fulton superior court—Judge E. D. Thomas. June 4, 1925.

F. E. Radenslehen, for plaintiff in error.

Noah J. Stone, contra.

3. Where the defendant brought a second petition for discharge, after having given the required five days’ notice, the act of the trial judge in adjourning the hearing over for one day for the purpose of allowing the defendant to cause search to be made for the property, and in continuing the defendant in custody in the meantime, was not error.

4. The judge of the superior court, therefore, did not err in refusing to sanction the certiorari.

Judgment affirmed.

Jenlcms, P. J., and Bell, J., concur.


author: Bell, J.

text:
    14161.
    Seaboard Air-Line Railway Co. v. Wright, comptroller-general.
    Decided October 19, 1925.
    Affidavit of- illegality; from Melntosb superior court—Judge Sheppard. December 5, 1922.

      Conyers & Wilcox, for plaintiff in error.

      Tyson & Tyson, contra.
   Bell, J.

1. The Supreme Court, on certiorari (129 S. E. 646), having reversed the judgment of this court affirming the judgment of the trial court dismissing the affidavit of illegality and ordering that the •fi. fa. proceed (32 Ga. App. 256, 122 S. E. 900), the former judgment of this court is hereby vacated, and headnote 1 and division 1 of the opinion rendered in connection therewith are withdrawn.

2. This court further withdraws its former ruling as made in headnote 2 and the corresponding division of the opinion, to the effect that the error committed in the admission of certain testimony was harmless.

3. Applying the Supreme Court’s rulings, the trial court erred in not sustaining the affidavit of illegality and in entering judgment in favor of the plaintiff in fi. fa.

Judgment reversed.

Jenldns, P. J., and Stephens, J., concur.


author: Jenkins, P. J.

text:
    16252, 16253.
    EVANS v. CANNON; HALL v. CANNON.
    1. Where the owner of personal property deposits it in a warehouse and takes a warehouse receipt in which it is recited that the property has been received “to be delivered on presentation of this receipt, on payment of customary charges,” the delivery of the receipt, without, indorsement, to a bona fide purchaser, is a sufficient delivery of the property described therein, of which the receipt is symbolic, to vest in the purchaser title to the property; and it was not error for the' trial court to admit such a receipt as proof of the plaintiff’s title to the property, in his action for trespass upon the same while in the possession of the warehouseman.
    2. Where a levying officer, at tjie procurement of and under the direction of the plaintiff in a general execution, through his agent, levies it upon the personal property of the holder of ' a warehouse receipt for the property, as the property of the defendant in fi. fa., who previously delivered the receipt to the suing holder, and the property is sold under that process, the sheriff anff all those aiding, abetting, and assisting him in so doing, are liable in trespass to the holder of the receipt as the owner of the property, even though it appears that the warehouseman voluntarily delivered the property over to the levying officer; and where the evidence in the trial of such a case conclusively demands a finding to this effect, it is not error for the trial court to direct a verdict in favor of the plaintiff and against each of such defendants, leaving open for the jury only the question of the extent or amount of plaintiff’s damages.
    3. While the voluntary delivery of personal property by a warehouseman to an officer seeking to levy general process upon it as the property of one who is no longer the holder of the warehouse receipt might amount to a consent to a trespass so far as affects the special property rights of the warehouseman, the bailee, such conduct would not affect the general property rights of the holder of the receipt, in the absence of special authority therefor.
    Decided October 19, 1925.
    Trespass; from city court of Macon—Judge Jordan. December 12, 1924.
    L. H. Cannon sued American Trading Company, D. L. Evans, M. A. Norman, and W. D. Hall for trespass, alleging that Evans was sheriff of Jeff Davis county, and.that defendants had jointly injured and damaged the plaintiff in a named sum by their joint trespasses and wrongs committed while acting in concert and in co-operation as set forth in the petition. He alleged that at the •time of said tortious conduct he' was the owner of thirty-four bales of cotton linters, 'which had' previously been stored with said Norman as a warehouseman; that the warehouse receipts were issued in the name of Macon Oil & Produce Company; that Evans, the sheriff, acting by direction and procurement of said trading company, and said Hall, levied a described execution against Macon Oil & Produce Company, on said cotton linters; that the warehouseman, Norman, confederating with the other defendants, surrendered said property to the sheriff; that said sheriff made sale of the property, under said process, and that said trading company and said Hall bought in the property; that said sheriff thereafter delivered it to them, and that they sold it to a person beyond the limits of the State, and it was shipped out of the State to the purchaser; that said seizure and sale were a trespass and wrong and constituted a conversion of the property of the plaintiff; that the value of the property was $2000, and reasonable hire was $500. It appears that Norman, the warehouseman, died and no personal representative of his was made a defendant.
    Evans and Hall filed an answer in which they denied the substantial allegations of the petition, denied that plaintiff owned the property, admitted that the sheriff levied the fi. fa., and that the property was sold to Hall; they denied that they acted in cooperation or concert with each other. It appears that defendants filed a demurrer in the nature of a general demurrer, which was overruled, but it is not specified or sent up, so that the effect of that ruling can not be passed upon. On the trial the court directed a verdict for plaintiff, leaving open only the question as to the amount of damages. Defendants filed a motion for new trial, which was overruled, and they excepted.

      J. G. Bennett, Hall, Grice & Bloch, for plaintiff in error.
    <7. LeGonte Smith, John B. L. Smith, Grady G. Harris, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) The first ground of the amendment to the motion for a new trial was that court erred in admitting warehouse receipts, offered by the plaintiff, the ground of objection being that they were irrelevant and immaterial, and that there was no evidence of assignment of the same to plaintiff; that they could not be basis of title in the plaintiff, that they were not negotiable, and could not be symbolic of delivery of property to the plaintiff. The Civil Code (1910), § 3528, referring to pawns and pledges, provides: “Delivery of the property is essential to this bailment, but . . warehouse receipts . . or other commercial paper symbolic of property may be delivered in pledge.” In Lightsey v. Lee, 8 Ga. App. 762 (70 S. E. 179), it was held that a warehouse receipt very similar to those involved here was a symbol of the property ■ itself,- was negotiable, and that delivery of the same was equivalent to constructive delivery of the cotton described therein, and required warehouseman, upon presentation and payment of charges and advances, if there were any, to make actual delivery to whomsoever might hold them. And see Planters Rice Mill Co. v. Merchants Nat. Bank, 78 Ga. 574 (3 S. E. 327); Citizens Banking Co. v. Peacock, 103 Ga. 180 (29 S. E. 752). “A warehouse receipt is not in a technical sense like a bill of exchange or negotiable instrument; it merely stands in the place of the property it represents, and a delivery of the receipt has the same effect in transferring the title to the property as the delivery of the property.” Zellner v. Mobley, 84 Ga. 746, 747 (11 S. E. 402, 20 Am. St. Rep. 390). See Bank of Sparta v. Butts, 4 Ga. App. 308 (1, 2, 5, 6), 310, 311 (61 S. E. 298); Livingston v. Anderson, 2 Ga. App. 274 (1), 278, 281 (58 S. E. 505). From what is said it follows that the receipts were properly admitted in evidence as proof of plaintiff’s title.

The second, third, and fourth special grounds raised, in various forms, the proposition that the court erred in instructing the jury to find for the plaintiff, leaving open only the question of amount of his damages. It was admitted that Evans was sheriff, that as such he levied upon and sold the property to Hall, under general fi. fa. against Macon Oil & Produce Company, and that at time of levy the property was in possession of warehouseman. The real gravamen of tide defendants’ defenses was that the plaintiff was not the owner at the time of levy and sale, and that, if ever he did own them, the warehouseman was his agent and bailee, and, as such, voluntarily surrendered possession to the sheriff, thereby absolving the defendants from any liability as trespassers. While we are impressed with the fact that the defendants do not seem to have committed any intentional wrong, and that the case appears to be one where any disposition must necessarily impose a hardship upon one side or the other of the opposing litigants, we think, under the authorities, none of the contentions made by the defendants are legally tenable; and that in view of the undisputed title of the plaintiff, of the admissions by defendants as to their conduct in the premises, and in view of the fact that the process levied was not special but general, the court did not err in the instructions complained of. “The word ‘trespass’ generally involves the idea of force, but, as used in the code sections above cited, it is employed in a broader sense, and comprehends any misfeasance, transgression, or offense whiqh damages another person’s health, reputation, or property.” Williams v. Inman, 1 Ga. App. 321 (57 S. E. 1009), citing Cox v. Strickland, 120 Ga. 104 (47 S. E. 912, 1 Ann. Cas. 870). “When a fi. fa. issues upon a general judgment, . . the officer is simply commanded to levy and seize generally property of the defendant, and when he acts he does so at his peril; and if he seizes property of a person other than the defendant, and thereby causes injury to an innocent party, he and all parties acting with him in procuring such a seizure are liable as joint'trespassers.” Haslett v. Rogers, 107 Ga. 239, 244 (2) (33 S. E. 44); McDougald v. Dougherty, 12 Ga. 613, 615; Wallace v. Holly, 13 Ga. 389, 392. In the case of Farmers & Traders Nat. Bank Y. Allen-Holmes Co., 122 Ga. 67 (49 S. E. 816), there is a full discussion of the principles involved in the instant ease. The court there held that “One is liable, in an action of trespass, for causing an attachment against a debtor to be levied on a consignment of goods in the custody of a common carrier, the title to which was in a third person to whom a bill of lading . . had previously been duly assigned by such debtor; and that if the property . . was brought to sale under the attachment proceedings, such third person would be entitled to recover damages, for such unlawful seizure and sale.” Further, “The refined niceties of technical pleading do not obtain in Georgia. . . Nor is the petition drafted on the theory that there had been a wrongful conversion of the plaintiff’s property. The suit sounds in trespass, and is for an unlawful invasion of the property rights of the plaintiff. The facts alleged in the petition amounted to an actionable trespass. . . The attachment was authority to the levying officer to seize the property of the defendant in attachment, but none whatever to seize the property of a third person, though the defendant in attachment had lately sold it to him” (citing Wilson v. Paulsen, 57 Ga. 596). “After the assignment of this bill of lading, the bank had constructive possession of the carload of corn which had been delivered to the carrier for transportation. Under the very terms of the contract of shipment, the carrier obligated itself to transport the car and hold it subject to the orders of the holder of the bill of lading, whether such holder was the party to whom the bill of lading was.originally issued, or his assignee. So, at the time the car arrived at its destination, the railroad company’s possession of the corn was that of the plaintiff bank, and as bailee the company would have been liable to the bank if it had delivered the goods to the consignee without a due surrender of the bill of lading held by the bank” (citing Hobbs v. Chicago Packing Co., 98 Ga. 576, 25 S. E. 584, 58 Am. St. Rep. 320). And see Holton v. Taylor, 80 Ga. 508 (1) (6 S. E. 15).

In the instant case, if this property had been in the actual possession of the defendant in fi. fa., the sheriff might have been protected by an application of the decision in Hoyt v. Smith, 20 Ga. App. 595 (93 S. E. 224). On the question of the liability of the defendants who aided the sheriff, it was held in Williams v. Inman, supra, that “'One who aids, abets, or incites, or encourages or directs by conduct or words, in the perpetration of a trespass, is liable equally with the actual trespassers/ ” quoting from 28 Am. & Eng. Enc. L. (2d ed.) 566. “One who procures or assists in the commission of a trespass or does any act which ordinarily induces its commission is liable therefor as the actual perpetrator.” Burns v. Horkan, 126 Ga. 161 (54 S. E. 946). That decision holds also that “One who commits a trespass for and in behalf of a corporation is himself liable therefor.” And such is true although, being ignorant of the true owner’s title, the agent may have acted in perfect good faith. “Whoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so -he acts in good faith.” Miller v. Wilson, 98 Ga. 567 (1) (25 S. E. 578, 58 Am. St. Rep. 319).

As to the effect of the warehouseman’s voluntary surrender of the property, the Civil Code (1910), § 4486, provides that “In all cases of bailments, where the possession is in the bailee, a trespass committed during the existence of the bailment will give a right of action to the bailee for the interference with his special property, and a concurrent right of action to the bailor for the interference with his general property.” Thus, while it may be true that the voluntary surrender of the property by the warehouseman might have amounted to a waiver or consent to the trespass as against his own special property right, such would not seem to affect the right of property of the bailor, since the relationship does not impute any such power or authority. “Authority from a third person having no right to give it does not justify acts which without authority would amount to a trespass to personalty.” ' 38 Cyc. 1065.

An application of the above-stated principles to the facts of this case compels us to hold that the action of the judge complained of was not erroneous; and the judgment is therefore

Affirmed.

Stephens and Bell, JJ., concur.


text:
    16264.
    Courier-Herald Publishing Co. v. American Type Founders Co.
   Jenkins, P. J.

1. Where there has been a sale of an entire outfit of printer’s type and type materials for a gross sum, to be paid for partly in cash, the remainder in notes maturing monthly, and the sale contract is liquidated by payment of the cash and the giving of the notes by the purchaser, without knowledge, actual or legal, of a shortage in delivery, and where thereafter the buyer complains of such shortage to the seller, who suggests that still another arrangement be made, by which another set of notes in lieu of the prior ones be given, which is done, coupled with a promise of rectification of the shortage, such condition of rectification operates so as to require the seller to make complete delivery of the outfit. National Computing Scale Co. v. Eaves, 116 Ga. 511 (2) (42 S. E. 783); Jesse French &c. Co. v. Barber, 5 Ga. App. 344 (1) (63 S. E. 233) ; McDaniel v. Mallary Brothers Machine Co., 6 Ga. App. 848, 849 (2) (66 S. E. 146).

2. Where, in such a case, suit is entered upon the notes for the full balance of the contract price of the articles contracted to be delivered, and the defendant admits a prima facie case, by acknowledging the execution of the notes, and assumes the burden of proving his defenses, it is his privilege.to plead and to show that the plaintiff did not comply with the promise to supply the missing articles, and, therefore, is not entitled to recover at all on the contract sued on, but is restricted to an action in quantum meruit (Muller v. Ludlow-Saylor Wire Co., 141 Ga. 376, 377 (2) (81 S. E. 127)) for the value of the goods actually furnished and retained. Civil Code (1910), § 5513; Freeman v. Campbell, 22 Ga. 184; Ford v. Smith, 25 Ga. 675 (3) ; Dolan v. Lifsey, 19 Ga. App. 518, 519 (4) (91 S. E. 913). But where, in such a case, the defendant does not undertake to abate plaintiff’s cause of action on express contract on account of its partial failure to perform, but, instead, pleads total failure of consideration, he is entitled to relief under the contract sued on, to the extent of the difference between the contract price and the value of the articles actually delivered and retained. Thus, where such a ease was tried under such a petition and plea, the defendant was entitled to a credit represented by the difference between the contract price and the value of the delivered articles at the time and place of delivery. Accordingly, there being evidence going to show such damage to the extent that the goods actually delivered and retained were worth only one third as much as the entire shipment contracted for, it was error for the court to direct a verdict for the full amount of the notes, less the proved value of the undelivered articles. The evidence as to the intrinsic value of the undelivered articles does not necessarily represent the difference between the contract price of the entire purchase and the value of the portion actually delivered, the missing articles constituting, as they did, a part of an entire particular outfit. While the record is silent as to whether the missing portions could have been obtained elsewhere (see 35 Cyc. 640, vii), it can not be held, as matter of law, that the undisputed, though meager, testimony for the defendant as to his damage was necessarily excessive.

Decided October 19, 1925.

Complaint; from city court of Dublin—Judge Sturgis. December 27, 1924.

William Brunson, for plaintiff in error.

G. G. Grochett, contra.

3. The court did not err in striking paragraphs 6 and 8 of the plea, in which defendant sought to recoup additional damages by alleging that, relying on plaintiff’s contract to deliver material as agreed, it had junked, discarded, and put out of use a large portion of the type and material which it previously had on hand, and that upon the failure 'of the plaintiff to furnish certain portions of the new material contracted for, it was unable to do certain printing and was forced to refuse advertising matter which resulted in a loss of profits amounting to one hundred dollars per month for a period of twelve months. The Civil Code (1910), § 4394, provides: “Remote or consequential damages are not allowed whenever they can not be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are the immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” In the instant case the, alleged special damages could not be traced solely to plaintiff’s breach of the contract; and, furthermore, were not such damages as were in the minds of the contracting parties, capable of exact computation, independently of any. collateral enterprise. And see Wapoo Mills v. Commercial Guano Co., 91 Ga. 396 (1) (48 S. E. 933) ; Huggins v. Southeastern Lime &c. Co., 121 Ga. 311 (5) (48 S. E. 933) ; Sanders v. Allen, 124 Ga. 684 (52 S. E. 884) ; Piedmont Wagon Co. v. Hudgens, 4 Ga. App. 393, 395 (61 S. E. 835).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16270.
    HULL & COWAN COMPANY v. DORMINEY.
    Construing the entire contract together, the guarantor’s liability was conditioned on failure of the manufacturer to ship brick according to his agreement.
    The court did not err in sustaining the general demurrer to the petition.
    Decided October 19, 1925.

      Complaint; from Ben Hill superior court—Judge Crum. January 16, 1925.
    Hull & Cowan Company sued A. B. C. Dorminey upon a contract which was as follows: “This'agreement, made and executed in triplicate this 11th day of January, A. D. 1922, by and between H. W. Kennedy, trading as Ludowici Brick and Tile Company, of Ludowici, Georgia, and A. B. C. Dorminey, of Fitzgerald, Georgia, hereinafter called the first parties, and Henry H. Hull and W. M. Mason Jr., copartners trading as Hull & Cowan Company, of Jacksonville, Florida, hereinafter called the second parties, witnesses that, for and in consideration of the sum of ten dollars ($10.00) and other valuable considerations mutually interchanged between the parties hereto, and in further consideration of the mutual agreements of said parties hereinafter contained, the said parties mutually contract and agree as follows:
    “1. That the said A. B. C. Dorminey is the owner of the brick plant and property connected therewith now operated by said Kennedy, at Ludowici, Georgia, and it is to the mutual interest of all parties to this instrument that said brick plant shall continue in operation.
    “2. That all brick manufactured at plant of first parties at Ludowici, Georgia, aforesaid, shall be shipped on Hull & Cowan Company’s orders, except a small quantity which may be sold locally at Ludowici, Georgia, not to exceed one carload a week for such local sales.
    “3. That the second parties shall pay, for all brick so shipped on.their orders, the prevailing wholesale market price at Ludowici, Georgia, at time of such shipments respectively; and that such market prices per thousand brick so ordered and shipped one dollar ($1.00) shall be credited by second parties on indebtedness of said H. W. Kennedy, trading as Ludowici Brick and Tile Company, owing to said second parties, now amounting to $2600.00, and the remainder of such market price per thousand brick shall be paid to said H. W. Kennedy, trading as Ludowici Brick and Tile Company, in cash. Second parties shall continue to so credit said H. W. Kennedy, trading as Ludowici Brick and Tile Company, with such one dollar ($1.00) per thousand of such brick so ordered and shipped, until said indebtedness of $2600.00 aforesaid shall have been paid in full with interest. If said indebtedness is not paid in full in the above manner within seven months from the date of this agreement, said H. W. Kennedy. shall pay thereupon any balance then due to second parties, in cash.
    “4. That said A. B. C. Dorminey hereby guarantees to second parties that said H. W. Kennedy will ship all brick manufactured as aforesaid; and that in the event said H. W. Kennedy fails to do so, said A. B. C. Dorminey agrees to be responsible to second parties for said $2600.00 and interest, and at the expiration o£ seven months from the date of this instrument said A. B. C. Dorminey agrees to pay second parties any balance of said $2600.00 indebtedness then due, if such there be, with interest.
    “5. Second parties agree to pay’two acceptances given by the late firm of Hull & Rivas to said Ludowici Brick and Tile Company in the sum of $500.00 each, and to renew two other acceptances so given in the sum of $500.00 each for sixty days from the maturity thereof, said four acceptances being all of the acceptances of said Hull & Rivas given to said Ludowici Brick and Tile Company now outstanding.
    “6. This contract shall inure to the benefit of and be binding upon the heirs, legal representatives, and assigns of all parties hereto, and may be assigned and transferred by second parties to Hull & Cowan Company, a corporation under the laws of Florida, when such corporation shall have been formed.”
    It was alleged that Kennedy had been credited on said $2600 indebtedness with one dollar per thousand on 257,000 brick, which had been shipped under the terms of said agreement, and judgment was asked against Dorminey for the balance, with interest. The defendant filed a written motion to dismiss the petition, upon the ground that it failed to set forth a cause of action. The court sustained this motion and dismissed the petition. The defendant’s contention is that the only liability imposed upon Dorminey by the contract was conditioned'upon the failure of Kennedy to ship all brick manufactured by him according to his agreement, and that upon such breach he was to become liable for any unpaid part of said indebtedness at the expiration of seven months. The plaintiff contends that after the seven months expired, all conditions of the contract were eliminated, and that Dorminey then became bound for whatever amount remained due by Kennedy. Nowhere in the petition is it alleged that Kennedy failed or refused to ship all brick manufactured as agreed by the contract.

      Wall & Grantham, Samuel Kassewitz, for plaintiff.

      A. J. & J. G. McDonald, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) We agree with the contention of the plaintiff in error that, in arriving at the intention of the contracting parties, the entire agreement must be construed together. This is true although it is only the fourth paragraph of the contract which imposes any sort of liability upon the defendant, Dorminey. It is our opinion, however, that, construing this paragraph in connection with and in the light of the other portions of the agreement, the proper interpretation is that arrived at by the trial judge. At the time the contract was entered upon the plaintiff was concerned in collecting his debt against Kennedy; Kennedy was in need of indulgence; Dorminey was interested, as lessor, in the continued operation of the brick plant. The scheme was that if Kennedy was granted indulgence so that he could continue the operation of the plant, and in good faith turned over to the plaintiff its entire output, letting $1 per thousand of the selling price of the brick thus delivered go on the old debt, the old indebtedness could thus be liquidated. The language of the fourth paragraph is that under this arrangement “Dorminey hereby guarantees to second parties [plaintiffs] that said H. W. Kennedy will ship all brick manufactured as aforesaid; and that in the event said H. W. Kennedy fails to do so, said A. B. C. Dorminey agrees to be responsible to said second parties for said $2600 and interest, and at the expiration of seven months from the date of this instrument agrees to pay said second parties any balance of said $2600 indebtedness then due, if such there be, with interes't.” The fact that in the same sentence in which the good faith of Kennedy is guaranteed, and upon the breach of which the conditional responsibility for the old debt is assumed, the agreement goes on and specifically provides how and when it shall be discharged, does not impose any new and independent obligation; nor does it rid the guarantee of the condition which, in accordance with the entire scheme of the agreement, was expressly stipulated.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16319.
    Dixon, sheriff, for use, etc., v. Cassels Company et al.

    Decided October 19, 1925.
   Bell, J.

1. Where the plaintiff in an action of bail-trover replevied . the property and thereafter dismissed the action, without a restitution, and the defendant thereupon brought a separate and independent suit against the former plaintiff for the breach of the bond, laying his damage in an amount equal to the value of the property as recited in the bond and as alleged in the trover suit, it was permissible for the defendant in the second action to show, as a defense, that the plaintiff therein had not been damaged, because the property was worthless. Lackey v. Mize, 75 Ga. 692; Grace v. Finleyson, 10 Ga. App. 480 (1) (73 S. E. 689); Williams v. Herrington, 12 Ga. App. 76 (1) (76 S. E. 757); Brown Guano Co. v. Coker, 13 Ga. App. 614 (1) (79 S. E. 582).

2. Neither the recital in the bond nor the allegation in the trover suit, that the property was of a certain value stated, would estop the party making it from asserting such defense when subsequently sued upon the bond. A party is not concluded' in the trial of one action by an admission made in his pleadings in some other action between the same parties, but such admission may be explained or contradicted. Phœnix Insurance Co. v. Gray, 113 Ga. 424 ( 2, 3) (38 S. E. 992) ; Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (5) (93 S. E. 511) ; 22 Corpus Juris, 423. As to what would have been the effect of such admission as to value if the obligee in the bond had moved in the trover action for a verdict or judgment for the value of the property when the action was dismissed no ruling is necessary in the present case; but see Trammell v. Georgia Engineering & Construction Co., 8 Ga. App. 501 (2) (69 S. E. 921), and citations.

3. Questions of value are peculiarly for the determination of the jury, where there is any data in the evidence upon which the jury may legitimately exercise their “own knowledge and ideas.” Baker v. Richmond City Mill Works, 105 Ga. 225 (2) (31 S. E. 426) ; Sweat v. Sweat, 123 Ga. 801 (51 S. E. 716); Georgia Ry. & Electric Co. v. Tompkins, 138 Ga. 596 (8) (75 S. E. 664); Maynard v. American Ry. Express Co., 29 Ga. App. 329 (2) (115 S. E. 35) ; Kraft v. Rowland, 33 Ga. App. 806 (5) (128 S. E. 812). The jury were authorized to find in the instant case that the property was worthless when delivered under the replevy bond.

'4. The judgment overruling the plaintiff’s motion for a new trial in an action ex contractu will not be reversed merely because the jury failed to award nominal damages. Jeter v. Davis, 33 Ga. App. 733 (3) (127 S. E. 898), and cases cited.

5. There is no merit in any of the special grounds of the motion for a new trial.

6. The verdict in favor of one defense being supported, and no error in the trial being, by proper exception, made to appear, it is unnecessary to determine whether a further defense relied on was valid and sustained by the evidence.

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

Judgment affirmed.

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

Complaint on bond; from city court of Savannah—Judge Freeman. January 31, 1925.

Ulmer & Bright, for plaintiff.

Oliver & Oliver, John Z. Ryan, for defendants.