text:
    15327.
    PETERMAN v. DUNAWAY.
    1. Where a tenant, without his landlord’s consent, seeks to remove from the rented premises any part of the commercial crops before the rent is due, he is subject to immediate distraint, no matter what may be the purpose of the removal.
    2-4. The evidence authorized a finding that there was no novation of the contract between the landlord and the tenant by changing the terms of payment, and that there was no waiver of the condition of the contract as to properly working the crops; and, there being evidence to support the verdict in favor of the landlord, this court cannot interfere with it.
    Decided April 23, 1924.

      Distraint; from city court of Lexington — Judge Joel Cloud. November 30, 1933.

      Clarence H. Adams, for plaintiff in error.

      Hamilton McWhorter, Tutt & Brown, contra.
   Bell, J.

Where a tenant, without his landlord’s consent, seeks to remove from the premises any portion of the commercial crops before the rent is due, he is subject to distraint immediately, no matter what may be the purpose or intent of such removal. Daniel v. Harris, 84 Ga. 479 (10 S. E. 1013); International Agricultural Corp. v. Powell, 31 Ga. App. 348 (1) (120 S. E. 668); Little v. Lary, 12 Ga. App. 754 (3) (78 S. E. 470). In this case the evidence established, without dispute, that the tenant, without his landlord’s consent, had carried away from the rented premises two bales of cotton grown thereon, and had stored them in a warehouse in another county. Under the principle stated, this evidence was sufficient to support a distress warrant issuing before the rent was due, on the ground that the tenant was “seeking to remove his goods and crops from the premises.”

This being a distress proceeding converted into mesne process by counter-affidavit and bond, the plaintiff sought to recover a balance from the defendant as rent for farm lands, claiming that they were rented for the year at 6,000 pounds of lint cotton. The evidence for the tenant would have authorized a finding that notwithstanding such original terms of the rent contract, the parties thereto subsequently entered into a novation thereof by agreeing that the tenant could pay as rent one fourth of the crops produced. The landlord, however, denied such modification of the contract, testifying as follows: “Mr. Peterman came to me and spoke to me about wanting to change the contract to the fourth, and I told Peterman if he would cultivate the place properly I would consider it. No, I did not agree to rent the place to him for the fourth, I told him I would consider it.” But even assuming that this testimony of the landlord conclusively established as against him a valid agreement to alter the terms of payment, conditioned upon the proper cultivation of the crops, there was evidence, submitted directly upon the point, sufficient to authorize the inference that the tenant did not comply with such essential condition, and therefore that the novation was never effectuated.

The evidence disclosed that during the term the tenant delivered to the landlord one fourth of the oat crop, the tenant contending that it was accepted by the landlord with knowledge that it was tendered as a part performance of the rent agreement under the tenant’s version of the agreement. It is insisted on behalf of the tenant, by brief, that an acceptance of the oats by the landlord, under the circumstances, was “a waiver of his exceptions as claimed, and he is precluded from claiming that there was a condition to the contract as to properly working the crops.” Conceding that the landlord would be estopped by such an acceptance, this contention of the defendant was also disputed. The landlord testified : “As to my accepting one fourth of the oat crop, he brought some oats down there. No, I did not send him word to bring me the oats. I admit he brought some oats down there. As to the oats being one fourth of the crop of oats made on the place that Peterman rented from me, and my accepting the oats as one fourth of the rent for the oats, he brought some oats down here, and I do not know how many, or what he brought them for. I did not know the oats were brought there by Peterman until some time later, and did not accept the oats as one fourth of rent.” Upon the conflicting testimony the jury were authorized to find against such contention of the tenant. No question is raised as to whether the value of the oats was not, if it should have been, credited on the original amount of the rent as claimed by the landlord.

There was some evidence to support the verdict, and the motion for a new trial, containing only the general grounds, having been overruled by the trial judge, this court is without power to interfere.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15337.
    DICKENSON et al. v. HAWES.
    1. As a general rule, where suit is brought upon a joint contract, all of the joint contractors ought to be made parties defendant.
    2. If a suit is brought against certain persons as joint contractors, and if the petition shows upon its face that there were other joint contractors in addition to those sued, without alleging a sufficient reason why the others were not joined, it is subject to demurrer for nonjoinder of parties. If it be true that others ought to be joined, but this does not appear upon the face of the petition, a special plea of nonjoinder will lie.

      3. While the plea showed that others were joint obligors with the defendants upon the contract alleged in the plea, it did not show that such others were parties to the oontraet set out in the plaintiff’s declaration. A plea of nonjoinder of defendants which fails to show that the other persons who they allege ought to be joined were obligors with them upon the cause upon whieh the plaintiff sues is bad and ought to be stricken on motion. The plea in this case was fatally defective also for other reasons, set forth in division 3 of the opinion.
    Decided April 23, 1924.
    Complaint; from Seminole superior court — Judge Yeomans. December 6, 1923.

      W. L. Bryan, House & Goree, for plaintiffs in error.

      T. S. Hawes, contra.
   Bell, J.

T. S. Hawes brought his action against J. L. Dickenson, J. E. Johnson, and A. B. Benton, in which he alleged that on July 1, 1919, the defendants employed him “to assist them in building up sentiment in Decatur county favorable to the creation of Seminole county, and to advise with the defendants herein named as to the proper method of proceeding locally in Decatur county for the purpose of securing the creation of Seminole county, at an agreed price and contract for $250 for said services;” that he complied with all the terms and conditions of his employment, but that the defendants had failed to pay for his services according to the agreement. The following plea, duly verified, was interposed at the first term: “Now come [the defendants] in the above-mentioned matter and, before pleading to the merits, for plea in abatement say that the action now pending should not be directed against them in their individual capacities; that they were acting solely as a committee appointed by a band or association of people interested in creation of Seminole county, and that it was so understood that they were not acting in their individual capacity, but were acting solely in the official capacity as committeemen, in the employment of plaintiff to influence legislation favorable to the creation of Seminole county. The defendants were acting as committeemen for the following parties, and ask that the court do order a delay in the proceedings until.the parties hereinafter set out are joined with defendants as parties defendant,” naming them. The court sustained an oral motion to strike the plea, and exceptions pendente lite to this judgment were preserved. Defendants had also filed a plea to the merits, upon which the case went to trial. A verdict was directed in favor of the plaintiff. In the bill of exceptions brought to this court by the defendants the sole insistence is that the court erred in striking the dilatory plea, and it is alleged that this error entered into and affected the final verdict and judgment, rendering them illegal.

It appears by the averments of the plea that the defendants 'were members of a voluntary association of citizens, which, through the defendants as members and representatives, became liable to the plaintiff as joint promisors or partners. Wilkins v. Warden, 52 Ga. 352; Thurmond v. Cedar Spring Baptist Church, 110 Ga. 816 (36 S. E. 221). “As a general rule, where suit is brought upon a joint contract, all of the joint contractors should be made parties defendant. The fact that the joint contractors have formed themselves into a voluntary, unincorporated association for purposes beneficial to themselves does not alter this rule.” Gate City Cotton Mills v. Alexander, 143 Ga. 42 (1), 43 (84 S. E. 118); Thornton v. Bussey, 27 Ga. 302, 305; Mott v. Hall, 41 Ga. 117.

If a declaration shows on its face that other persons were liable as joint contractors with the parties sued, without showing any reason why the other persons were not joined, the petition will be subject to a special demurrer for nonjoinder of parties. If such be the fact, but it does not appear in the petition, the remedy of the defendants who are sued is a plea in abatement. Gate City Cotton Mills v. Alexander, supra. “In a suit against an individual it was not erroneous for the judge to refuse to entertain a plea offered by a firm of which the individual was a member, where neither the firm nor the other member thereof was declared against or otherwise appropriately made a party to the suit.” “If it appears on the face of the petition that the suit is brought against an individual for the debt of a partnership of which he is a member, objection may be raised by demurrer. If it does not so appear, but the defendant claims that the suit against him as an individual is based upon a partnership liability, and that the other partner is a necessary party, the point should be raised by a plea in abatement.” Bray v. Peace, 131 Ga. 637 (1) (2) (62 S. E. 1025); Shiflett v. Kelly, 16 Ga. App. 91 (6) (84 S. E. 606); Van Harlengen v. Bearse, 26 Ga. App. 473 (1) (106 S. E. 306).

But we think that the plea in this case was faulty because it disputed the plaintiff’s averments in regard to the nature of the contract and the services to be performed. It is true that the plea does not in specific terms deny the execution of the contract upon which the plaintiff sues, but this is its effect. ' It is noticed that according to the petition the plaintiff was employed “to assist them in building up sentiment in Decatur county favorable to the creation of Seminole county, and to advise with the defendants herein named as to the proper method of proceeding locally in Decatur county for the purpose of securing the creation of Seminole county.” The plea, however, asserts that the defendants were acting solely as a committee and members of an association “in the employment of plaintiff to influence legislation favorable to the creation of Seminole county.” It therefore fails to allege that the other members of the association were bound to the contract set up in the plaintiff’s declaration. The plea thus takes issue with the petition, and sets up not that the defendants with others as joint contractors entered into the contract sued on, but that they all made with the plaintiff a different contract.

A plea in abatement is one which, without disputing the justice of the plaintiff’s claim, objects to the place, mode, or time of asserting it. It is interposed to stop the plaintiff’s action, leaving it open to the plaintiff, however, to renew the suit in another place or form, or at another time. It should not assume to answer the action upon its merits, or deny the existence of the particular cause of action upon which the plaintiff relies. Brooks v. Water Lot Co., 7 Ga. 101; Palmour v. Palmour, 53 Ga. 382; Parker v. Brady, 56 Ga. 372; Banks v. Hunt, 70 Ga. 741; Colquitt v. Mercer, 44 Ga. 432. If it denies the existence of the contract as the plaintiff alleges it, then it is extended to the merits, and cannot be classed as dilatory. A plea in abatement must give to 'the plaintiff a better form of action, but not upon a different cause of action. Dougherty v. Bethune, 7 Ga. 90. Taking the averments of the plea as true, the plaintiff could not have recovered upon the case which he laid, even against the defendants sued. If by his evidence he had shown, not the contract alleged in the petition, but that which is averred in the plea, he should undoubtedly have been nonsuited for a variance, irrespective of the question of parties.

Assuming, then, that the plea sufficiently alleges that the plaintiff knew that the defendants were acting as committeemen and as members of an association, and contracted with them in that capacity and not as individuals, it is bad as a plea in abatement, for setting up matter not confined alone to the form of the action.

Again, if the parties who are sued had authority from the other members of the association only to employ the plaintiff to. perform the services alleged in the plea, they materially exceeded or varied from their authority in making the contract set out in the declaration, and the other members of the association would not be liable for their acts. We have seen that a plea of nonjoinder must show that the other parties were bound under the contract as alleged in the petition, and this the plea here under consideration fails to do, since it appears therefrom that if those who were sued made for themselves and the others the contract set out in the complaint, they made a different one from that which they were authorized by the others to make; and that such others therefore were not obligated thereby.

Begardless of whether it would have been error to strike the pleá as an answer to the merits, the defendants treated it in the trial court only as a plea in abatement, and sought thereupon only to delay, the proceedings until others could be made parties; and they having again asked in this court that it be considered solely as a plea of that character, the judgment striking it will be affirmed.

Judgment affirmed.

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


text:
    15344.
    GRESHAM v. LOGANVILLE BANKING COMPANY.
    A mortgage upon crops, executed, and delivered to a bank as security for a loan of money intended by both parties to be used by the borrower for the purchase of supplies necessary in making the crops, and actually used by him for that purpose, is inferior to the right of the widow of the deceased mortgagor to a year’s support out of the crops, although the mortgage contains a stipulation that it was “given for the purchase-money for supplies.”
    Decided April 23, 1924.
    Appeal; from Walton superior court — Judge Eortson. December 13, 1923. .

      Orrin Roberts, for plaintiff.

      J. H. Fellcer, for defendant.
   Bell, J.

On May 26, 1922, J. R. Gresham executed a mortgage to Loganville Banking Company upon described crops then in existence, in which was a stipulation that it was “given for purchase-money for supplies.” Gresham died in the same year; and in September, upon the application of the widow for a year’s support for herself and minor children, the appraisers appointed made a return setting aside, among other things, a part of the crops included in the mortgage. The banking company filed objections which the ordinary overruled, and the case was then appealed to the superior court, where it was tried by the presiding judge without a jury, upon an agreed statement of facts, containing those set out above and the additional fact that the mortgage was given by Gresham “for money furnished him by the bank to get supplies to make the crop set apart, [which] was used by him for that purpose.” The question presented was whether, under these facts, the mortgage was superior to the year’s support as to the crops. The trial judge held that it was, and the widow excepted.

In the case of Cobb v. Hall, 136 Ga. 254 (2) (71 S. E. 145), it was held by the Supreme. Court that where one furnished money to another to buy personalty, and took from the purchaser a mortgage thereon containing a stipulation that it was given for the purchase-money of such personalty, such mortgage was superior to the claim of the widow and children of the deceased mortgagor to a year’s support under the Civil Code, § 4049, which provides that the right to a year’s support is inferior to a purchase-money mort7 gage which expressly states that it was executed and delivered for the purpose of securing the debt for such purchase-money. The Supreme Court in several earlier decisions held that where a factor sold to the head of a family fertilizers or supplies which entered into the making of his crops, the claim was in the nature of a purchase-money debt, and the crops were subject thereto as against a homestead. Tift v. Newsom, 44 Ga. 600; Stephens v. Smith, 62 Ga. 177-78; Cook v. Roberts, 69 Ga. 742.

The learned trial judge based his decision in this case upon the authorities referred to above, and upon them the defendant in error relies in this court for an affirmance of the' judgment. We are constrained, however, to believe that the court erred in holding that the mortgage was superior to the year’s support. The three cases just cited were referred to in Martin v. Davis, 104 Ga. 633, 635 (30 S. E. 753), as follows: “In all of those cases it appears that the exemption was allowed subsequently to the creation of the debt and the giving of the lien or the rendition of the judgment. The two cases first mentioned were adjudicated under the laws in force prior to the adoption of the constitution of 1877. The decision in the last case fails to disclose the date of the creation of the lien. It is fair to infer, however, that the transaction arose subsequently to the adoption of the constitution of 1877. However this may be, it must be admitted that those cases clearly rule that supplies and provisions furnished to make a crop, when secured by a lien, or reduced to judgment, are in the nature of ‘purchase-money’ or ‘material furnished’ for the crops so raised. It is not necessary in adjudicating the case now under review, for us to go into the question as to whether, under existing law, such crops are so subject.” The Supreme Court in Watson v. Williams, 110 Ga. 321 (3) (35 S. E. 344), said that the rulings made in Tift v. Newsom, supra, and other cases to the like effect, “that crops set apart as exempt under the laws passed in pursuance of the provisions of the constitution of 1868 will be subject to the payment of debts due for the rent of premises on which the crops were made, and for supplies furnished during the year that the crops were made, because such claims were in the nature of purehase-monej', will not be extended.”

This court held in Jones v. Spillers, 9 Ga. App. 473 (1) (71 S. E. 777), that “a mortgage lien given to a merchant for supplies, fertilizer, etc., to enable the mortgagor to make a crop, is not superior to the statutory exemption allowed under the Civil Code (1910), § 3416, and the personal property so set apart as exempt is not subject to be seized and sold under an execution issued on a foreclosure of the mortgage.” It was shown in this decision that a different conclusion would have been reached in the case of Tift v. Newsom, supra, if the law had been then as it is at this time, although, of course, if such supplies were in the nature of purchase-money then, they would be so now. We quote from the decision of this court just cited, as follows: “The code section referred to . . [in Tift v. Newsom, 44 Ga. 600, viz. ^Revised Code of 1873, § 1977 [1978]] was taken from the act of 1873 (Acts 1873, p. 43), which provides that ‘landlords . .. and all other persons furnishing supplies, money, farming utensils, or other articles of necessity to make crops, and also all persons furnishing clothing and medicines, supplies, or provisions for the support of families/ etc., ‘shall have the right to secure themselves from the crops of the year in which such things are done or furnished, upon such terms as may be agreed upon by the parties/ etc. By the act of 1874 (Acts 1874, p. 18) the act of 1873, except in so far as it referred to landlords, was repealed, and section 1978 of the Code of 1873, as thus changed, appears in the Code of 1895 as section 2800 [Civil Code of 1910, § 3348], and section 2800 by its terms restricts the right of a lien for supplies furnished by landlord to tenant; and this is the law as it now stands. Civil Code (1910), § 3348. In Watson v. Williams, 110 Ga. 321, it is held that ‘personalty set apart as exempt under section 2866 of the Civil Code of 1895 [Civil Code of 1910, § 3416] is not subject to levy and sale except for the purchase-money and taxes/ and in that case it was also held that ‘farm products so set apart are not subject to be seized under an execution issued on the foreclosure of a laborer’s lien, notwithstanding it be shown that the amount due the laborer was for work done in making the products which were set apart as exempt.”

We do not think that the decisions relied upon by counsel for the defendant in error can be followed as authority for the proposition, certainly not under the law as it now exists, that the widow’s claim to a year’s support for herself and minor children was inferior to the bank’s mortgage. It would not have been inferior prior to the passage of the act of 1903, which is now embodied in the Civil Code (1910), §4049. Puffer v. Caldwell, 111 Ga. 798 (2) (36 S. E. 927); Corbitt v. Newbern, 132 Ga. 457 (64 S. E. 479). This code section is as follows: “Whenever the vendor of personal property shall, at the time of selling and delivering such personal property, take a mortgage thereon to secure the purchase-money thereof, neither the widow and minor child or children, nor the minor child or children of the vendee, shall be entitled to a year’s support in said personal property so mortgaged, as against said vendor, his heirs, executors, administrators, and assigns, until the purchase-money of said personal property is fully paid: Provided, that said purchase-money mortgage shall expressly state that the same is executed and delivered for the purpose of securing the debt for such purchase-money.” This is an exception to the law as it existed prior thereto, “affects property rights, and must be strictly construed.” Warfield v. Young, 20 Ga. App. 328, 329 (93 S. E. 28). It does not provide that a mortgage given for something “in the nature of purchase-money” may be superior to a year’s support, but that it shall be superior only when it is given for purchase-money itself, and then only when the vendor shall procure a stipulation therein stating “that the same is executed and delivered for the purpose of securing the debt for such purchase-money.” The mortgage in this case does not stipulate that the mortgage was given for the purchase-money of the crops, but of supplies, and the mortgage upon its face does not disclose the connection of the supplies with the crops. In view of the express refusal of the Supreme Court to extend the ruling of Tift v. Newsom and similar cases, we believe that the mortgage in this case could not truthfully have recited that it was given for the purchase-money of the crops, as the term “purchase-money” is used in the Civil Code, § 4049. The bank’s mortgage in this ease was inferior to the right of the year’s support, for two reasons: first, because, as to the crops, it was not a purchase-money mortgage within the purview of this code section, and, second, even if it were, it did not sufficiently comply with the terms of this section as to stipulating that it was given for the purpose of securing the purchase-money of the actual property upon which the claim of the year’s support was asserted. The case could not fall within the ruling of the Supreme Court in Cobb v. Hall, unless the widow had claimed a year’s support in the “supplies,” for it was as to these only that the mortgage recited that it was given for purchase-money.

The Civil Code (1910), §3349, codified from the act of 1899 (Ga. L. 1899, p. 78), provides that “the lien of mortgages on crops, which mortgages are given to secure the payment of debts for money, supplies, and other articles of necessity, including live stock, to aid in making and gathering such crops, shall be superior to judgments of older date than such mortgages.” But this section has no reference to the rank of such mortgages as compared with the right of year’s support. Compare Warfield v. Young, supra.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    15352.
    IRVIN v. NEW BRUNSWICK FIRE INSURANCE COMPANY.
    Where an automobile was insured against theft, and the insurer, upon its being stolen, paid to the owner his entire loss and took from him a receipt and assignment stipulating that in consideration of the payment all claims and demands of the assured against any person or property arising from or connected with the loss were thereby transferred and assigned to the insurer, who should be subrogated thereto in place of the assured, and where it did not appear at the time of the assignment that the assured had a right of action against any one, except one in tort for the conversion, and that the assured thereafter claimed no further title or interest in the automobile, but that the insurer did, and where such extraneous facts appeared without objection or dispute upon the trial of a subsequent action of trover for the automobile, instituted by the insurer against a third person, a finding was demanded that at the term of filing the suit the insurer had title to the automobile and a cause of action for its conversion, and no error was committed in directing a verdict in favor of the insurer.
    Decided April, 23, 1924.
    Trover; from Muscogee superior court — Judge Muuro. January 12, 1924.

      A. W. Oozart, Davis & Davis, for plaintiff in error.

      Love & Fort, contra.
   Bell, J.

New Brunswick Eire Insurance Company issued to EL J. West a policy of insurance against loss by theft or fire upon a certain automobile. The policy stipulated, among other things, that the company might require from the assured an assignment of all right of recovery against any .person for loss or damage, to the extent of any payment made therefor by the company. Thereafter, on January 4, 1921, the automobile was stolen. The assured submitted -a proof of loss on March 18, 1921, reciting that the actual amount of loss sustained under the terms of the insurance was $1,480. This sum was thereupon paid to the insured by the company, under the terms of the policy, for which the following receipt and agreement was issued: “Received of the-New Brunswick Insurance Company the sum of $1,480, being in full of all claims and demands for loss and damage by fire, theft, on the 4th day of January, 1921, to the property insured by policy number 100542, issued at Atlanta, Ga., agency of said company, and, in consideration of such payment, the undersigned hereby assigns and transfers to the said company each and all claims and demands against any person or persons, corporations or property, arising from or connected with, loss or damage (and the said company is subrogated in the place of and to the claims and demands of the undersigned against said person, persons, corporation or property in the premises) to the extent of the amount above named. 3EL J. West.” Thereafter the automobile was found in the possession of C. G-. Irvin, of whom a demand for the car was made on behalf of the insurance company and refused. The company subsequently, on May 16, 1921, filed a trover suit in which the value of the property was alleged at $1,500. Upon the trial West testified: “The value of that ear was about $1,600 or $1,700.” It does not appear whether he was referring to the value of the car at the date of the policy, at the happening of the loss, or when. He further testified: “That subrogation receipt is the only bill of sale or writing that I have ever signed to the insurance company. I suppose that is what they took from me for the purpose of conveying my interest in the car. That’s all I gave them or executed to them.” “Since I was paid by the insurance company •for the loss of my Buick touring car, model K-45, . . I have had no right, title, or interest in the car, nor do I claim any right, title, or interest in the car now.” C. A. Rauschenberg testified that as agent for the company he made the settlement with West, at which time he took the receipt which is set out above, “conveying any further interest he might have in the automobile.” This witness said further, however, “I cannot tell you who owned the car on May 16, 1921, except that I took the subrogation receipt at the time of the settlement of the loss.” No evidence was offered in behalf of the defendant, and at the close of the evidence a verdict was directed in favor of the plaintiff. The defendant thereafter filed a motion for a new trial, assigning error upon such direction. His motion was overruled and he excepted.

If the company had exercised the forethought of taking a receipt and assignment more specific in terms as to what was or was not conveyed to it thereunder, this court would have been very much obliged. It is a pity it did not do so, in order that a decision of the ease either for or against it could have been made with less difficulty and more certainty. In undertaking to interpret the receipt, however, we will not examine it in its naked form, but will seek needed light from “all the attendant and surrounding circumstances.” Civil Code (1910), §4268 (1). >

The ease is not one where the plaintiff is relying solely upon the right of subrogation because of having paid the loss, independently of a legal assignment. If it were, it seems that under the law of this State the action should have been brought in the name of the insured, even though the company had paid the loss in full. Atlanta Cadillac Co. v. Manley, 29 Ga. App. 522 (2) (116 S. E. 35). A different rule seems to prevail, however, in some jurisdictions. See note in 36 A. L. E. 433.

Although the plaintiff alleged in the suit that the automobile was of the value of'$1,500, this does not show that as to the assured it did not pay the entire loss, and no other persons were interested. Indeed it appears from the evidence that as between the parties to the settlement the entire loss was satisfied. The assured, in the proof of the loss, represented that the actual amount thereof was $1,480. This the company paid. Every interest or claim which the assured had in the automobile was thereby terminated, excepting perhaps the fact that he would have retained the naked title in the absence of the assignment. The sum received was the value which he placed upon the automobile in adjusting the loss with the insurer, and this amount being paid, it does not seem that the defendant is concerned with whether or not the insurer thereafter placed a higher value on the automobile, as it did in its suit. See Louisville & Nashville R. Co. v. Morse, 143 Ga. 110 (2) (84 S. E. 428). The parties were free, as in any case, to agree upon the price of the subject-matter.

In the light of the undisputed circumstances, what did the parties mean in stipulating that all claims and demands against any person, or property, arising from or connected with the loss, were assigned and transferred to the company, and that as to such claims and demands the company was subrogated in place of the assured? The only right which the assured could have had against any one was his claim of title to the automobile, and for the conversion thereof, as against some one wrongfully in possession of it. In so far as the record shows, it did not appear at the time of the settlement (nor does it so appear even now) that the person wrongfully taking the automobile, or any one else, had converted it into money or its equivalent, so that the assured might, waiving the tort, have sued upon an implied contract for its value, or for the proceeds of its sale as for money had and received. So far as is disclosed by tlie facts in evidence, lie would have been confined to an action of trover for an unlawful detention of his property. Woodruff v. Zaban, 133 Ga. 24 (65 S. E. 123, 134 Am. St. R. 186, 17 Ann. Cas. 974); Southern Ry. Co. v. Roberson, 136 Ga. 146 (71 S. E. 129); Kirkpatrick Hardware Co. v. Hamlett, 20 Ga. App. 719 (1) (93 S. E. 226). The property had not been destroyed or injured. The loss was by theft.

It is suggested by counsel for plaintiff in error that the receipt does not contain any conveyance or transfer of title to the automobile itself. Unless it does, we cannot see that there was a conveyance or transfer of anything. Unless the parties meant that the writing should transfer the title and the right to sue for the property, such being the only interest the assured had, they could not have intended anything. They will be presumed to have intended something, and not to have been purposely trifling. The receipt transferred to the insurer the claim and demand of the assured only “to the extent of the amount above named,” being the amount of the loss which the company paid and the assured received. This, as to the assured, was the entire value of the automobile, and no one else had a value or interest in it.

It was held by the Supreme Court in Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 A. L. R. 124), that a chose in action arising from a tort is assignable, where it involves, directly or indirectly, a right of property; and where there has been a complete legal assignment of such a chose in action the assignee may institute and maintain an action against the defendant tort-feasor for the entire damage sustained, the assignor not being a proper party plaintiff to the suit. While it is true that the term chose in action is applied rather to intangible property (see same case, page 100), we nevertheless think that under the rulings made in that decision, the writing now before us, when construed in the light of the surrounding circumstances, must be taken as a transfer of the title to the automobile. This conclusion is fortified by intimations of the Supreme Court in Ford v. Atlantic Compress Co., 138 Ga. 496 (75 S. E. 609, Ann. Cas. 1913D, 226). See also Norwich Union Fire Ins. Society v. Wellhouse, 113 Ga. 970 (1) (39 S. E. 397); Trust Company of Ga. v. Scottish &c. Ins. Co., 119 Ga. 672 (1) (46 S. E. 855). It was held in Willis v. Burch, 116 Ga. 374, 375, that an action of trover should be brought by the person having the legal right or title to the property at the time of its conversion. But the Supreme Court criticises that case in Sullivan v. Curling, supra, observing that it was a decision by five judges, “and is not binding, especially in view of the fact that it is not in harmony with the new legislation introduced into the Code of 1895.”

Moreover, a writing is not essential to the transfer of title to personalty. The evidence discloses, without dispute, that it was the intention of both parties that the title to the automobile should, from and after the execution of the receipt and assignment, be vested in the insurance company. Compare Civil Code (1910), §4267. The assured could have agreed orally with the company’s agent to a surrender of his title. The law recognizes implied contracts. A fact may be established as well by circumstantial as by direct evidence. Even if the scope of the assignment was insufficient actually to convey title, it at least appears that the assured abandoned the property to the insurer upon the payment of the loss, and that this was accepted. There is some similarity to cases of marine insurance, as to which the rule is laid down that where the insured vessel'becomes a total loss, the assured may abandon it to the insurer, even when the insurer does not consent. Such an abandonment, when properly made, amounts to a transfer of the property to the underwriter, and gives him a title to it or what remains of it as far as it was covered by the policy. Patapsco Ins. Co. v. Southgate, 5 Peters (U. S.), 604, 622 (8 L. ed. 243); Bradlie v. Maryland Ins. Co., 12 Peters (U. S.), 378, 399 (9 L. ed. 1123). While the property was not forced upon the insurer in this case, it appears that the assured, in receiving full payment of the loss, considered that he had no further interest or title in it. It is not supposable, under the facts, however, that he abandoned it or relinquished his right without reference to any particular person or purpose, but that he did so with the intention that it would be received by the plaintiff. The plaintiff appears to have responded by acceptance. O’Connor v. Maryland Motor Car Ins. Co., 287 Ill. 204 (122 N. E. 489, 3 A. L. R. 787).

We have deemed it unnecessary to confine our decision to a construction of the bare writing, and we base our conclusions upon all of the facts appearing in the record, in view of which we think that the trial court was right in directing the verdict in favor of the plaintiff.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    15384.
    Marbut v. Hamilton.
    Decided April 23, 1924.
    Complaint; from Cobb superior court — Judge Blair. January 12, 1924.

      A. W. White, J. Glenn Giles, for plaintiff in error.
   Bell, J.

1. As the notes sued on reeited merely that they were given “under the hand of” the maker, and had no actual seal attached, they were not sealed instruments, although the signature upon each was followed by the letters “(L. S'.)”. Echols v. Phillips, 112 Ga. 700 (1) (37 S. E. 977); Jackson v. Augusta Southern R. Co., 125 Ga. 801 (54 S. E. 697); Waterman v. Barclay, 10 Ga. App. 108 (72 S. E. 716).

2. It appears from the allegations of the petition that both notes became due more than six years before the filing of the suit, and, therefore, that the cause of action inhering in each was barred by the statute of limitations before the suit was filed. Civil Code (1910), § 4361.

3. The statute of limitations may be set up as a defense at the trial term by a motion to dismiss the complaint, when from the allegations thereof the cause of action appears to be barred by the statute. Davis v. Boyett, 120 Ga. 649 (1) (48 S. E. 185, 66 L. R. A. 258, 102 Am. St. Rep. 118, 1 Ann. Cas. 368). The motion so made in this ease was meritorious, and was not met by the mere fact, certified by the trial judge, that “the original note was presented to the court, which showed that it had not been correctly copied in the petition.” In view of this motion it was not proper to require the defendant to go to trial, where it appeared by the petition itself that the notes sued on were barred. This is especially true since the notes introduced in evidence differed in other material respects from the copies attached to the petition, irrespective of whether the objection made at the trial to their introduction was sufficient to require their exclusion from the evidence. No amendment whatsoever being offered to the petition, it was error to overrule the motion, and the subsequent trial was thereby rendered illegal.

Judgment reversed.

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


author: Jenkins, E. J.

text:
    14869.
    Bullard et al. v. Asa G. Candler Incorporated.
   Jenkins, E. J.

This was a suit by the tenants of a hotel against their landlord, to recover the amount of a judgment obtained against them on account of injuries to a guest in the operation by the tenants of an elevator which had been proved to be out of repair. See Bullard v. Rolader, 26 Ga. App. 742; s. c. 152 Ga. 369. In the previous litigation, instituted by the guest, the landlord had been joined as a joint tortfeasor, but as to it the former action had been nonsuited. The instant suit was dismissed on demurrer. Held:

Decided April 24, 1924.

Complaint; from Fulton superior court — Judge Humphries. June 7, 1923.

Boy Lewis, for plaintiffs.

Candler, Thomson & Hirsch, for defendant.

“As. between lessor and lessee, in the absence of contract, the lessor'is required to make repairs to the leased property, rendered necessary by natural wear and tear” (Bullard v. Rolader, supra); but, there ordinarily being “no duty of inspection on the part of the landlord for the purpose of discovering defects arising subsequent to the time of the lease, the landlord is not liable for injuries to his tenant resulting from patent or latent defects arising subsequent to the time of the lease, unless he had actual knowledge of them, or had been notified by the tenant of such defects, and had failed to make repairs in a reasonable time, and the tenant could not have avoided the injuries resulting therefrom, by the exercise of ordinary care on his own part. Veal v. Hanlon, 123 Ga. 642 (2, 3) (51 S. E. 579); Johnson v. Collins, 98 Ga. 271, 273 (26 S. E. 744); Donehoe v. Crane, 141 Ga. 224 (80 S. E. 712); Ball v. Walsh, 137 Ga. 350 (73 S. E. 585); Ledbetter v. Gibbs, 19 Ga. App. 485 (2) (91 S. E. 875).” McGee v. Hardacre, 27 Ga. App. 106 (2) (107 S. E. 563). Not only does it fail to appear that the landlord had not made any repairs demanded, but in the lease “it is agreed' that the premises are now in good condition and repair, and for the purposes of this lease are accepted by the lessee as being in good condition and repair-, and the lessor is not to make or be called on to make any repairs or improvements of any sort whatever on said premises during the term of this contract, and that- during the term of this lease the lessee will keep the premises in good order and repair.” Whether or . not, in the absence of a contract whereby the tenant assumes the duty and burden of making repairs, the additional stipulation contained in the lease, that “it is further agreed by all parties to this contract that the said second party agrees to release the said first party from any and all damages of every sort and from whatever cause to both person and property during the term of this lease,” would be enforceable as a matter of public policy, nevertheless, in a case such as this, where the tenant has in fact assumed the burden of making all repairs, and as an incident to such obligation has expressly relieved the landlord from all damages accruing from any lack of proper upkeep, the landlord cannot be held liable to the tenant for his failure to do that which he had not been requested to do, and which under the lease agreement he was relieved from any obligation to perform.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jenkins, P. J.

text:
    14897.
    Wood v. City of Atlanta.
    Decided April 24, 1924.
    Action for damages; from Fulton superior court — Judge Bell. June 21, 1923.

      B. Lotv Reynolds, Ralph II. Pharr, for plaintiff.

      J. L. May son, J. M. Wood, for defendant.
   Jenkins, P. J.

This case is controlled by the ruling of this court in Smith v. City of Atlanta, 21 Ga. App. 172, 173 (93 S. E. 1022), where the allegations of negligence were almost, if not quite, identical. The amendment to the petition, setting up negligence on the part of the city, in that it failed to observe and enforce the provisions of the ordinance made by itself for the guidance and control of its citizens, relative to the kind and character of materials with which it would permit certain sidewalks to be constructed, fails to indicate that the defendant was thus guilty of negligence per se by exposing the plaintiff to unnecessary peril or danger, and fails to show how or why the wood-block material actually used in the construction was of such character as to render the sidewalk inherently hazardous or unsafe to pedestrians, so as to constitute the proximate cause of the injury. The court did not err in sustaining defendant’s motion in the nature of a general demurrer and dismissing the petition.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bele, J.

text:
    14928.
    Worsham v. Penn.
   Bele, J.

1. An action of trover by the payee against the maker for the recovery of the property therein described was founded upon the following instrument: “Summerville, Chattooga county, Ga., Oct. 4th, 1920. On or before the first day of November next I promise to pay [to] the order of Miss Mary Penn, or bearer, sixty-eight & 03/100 dollars, with interest from date at the rate of 8 per cent.; interest on the whole amount to be paid annually, and 10 per cent, attorney’s fees if collected by law, it being purchase-money for 3 black hogs, 2 sows and one male, weight about 150 pounds each, known as the W. H. Penn hogs; also 1 light Jersey cow with horns, named Minnie, about 8 years old, one red heifer calf about 6 months old. Mary Penn guaranteeing title only, and if this stock dies, gets killed or burned up, it does not affect the payment of this note. Title to said property is vested in said Mary Penn, and I agree not to trade or remove said property out of Chattooga county until said note is paid, waiving the right of homestead and exemption laws. [Signed] R. L. Worsham (L. S.). Signed, sealed and delivered in the presence of [signed] D. C. Greeson, Clerk superior court, Chattooga county, Ga.” Held: The instrument was not a mortgage, but under it the title to the property was vested in the payee. Tremere v. Barfield, 12 Ga. App. 774 (1) (78 S. E. 729); Owens v. Bridges, 13 Ga. App. 419 (1) (79 S. E. 225); Hill v. Marshall, 18 Ga. App. 652 (1) (90 S. E. 175); Watts v. Wight Investment Co., 25 Ga. App. 291 (1) (103 S. E. 184); Wynn v. Tyner, 139 Ga. 765 (1) (78 S. E. 185). This ruling is not in conflict with anything decided in Felton v. Grier, 109 Ga. 320 (35 S. E. 175), or in Lane v. Smart, 21 Ga. App. 292 (1) (94 S. E. 325). The contract was properly admitted in evidence in proof of the plaintiff’s claim of title.

2. The defendant in the trover action, who executed the above-quoted contract, could not defeat the plaintiff’s claim of title by proof of an alleged fraudulent representation, made by the plaintiff’s agent at the time of its execution, that the instrument was only a mortgage, where the defendant maker had ample capacity and opportunity to read and understand the contract before he signed it, and negligently failed to do so, no trick or artifice being perpetrated by which he was prevented from reading it. Jossey v. Georgia Southern & Florida Ry. Co., 109 Ga. 439 (34 S. E. 664); Walton Guano Co. v. Copelan, 112 Ga. 319 (1) (37 S. E. 411, 52 L. R. A. 268); Branan v. Warfield, 3 Ga. App. 586 (3) (60 S. E. 325); Rounsaville v. Leonard, 127 Ga. 735 (2) (56 S. E. 1030); Case Threshing Machine Co. v. Broach, 137 Ga. 602 (73 S. E. 1063); Equitable Mfg. Co. v. Biggers, 121 Ga. 381 (49 S. E. 271).

3. The fact that the note was executed to renew and secure an indebtedness upon a prior note payable to the plaintiff and two others, as heirs of a certain estate, and to secure also an account payable to a corporation in which she was a stockholder, rather than for an indebtedness owing solely to the plaintiff herself, did not render the instrument lacking in consideration. “If there be a valid consideration for the promise, it matters not from whom it is moved; the promisee may sustain his action, though a stranger to the consideration.” Civil Code (1910), § 4249.

4. In an action of trover the issue is one of title, and not of debt. Consequently, the defendant in such an action cannot set up as a defense his discharge in bankruptcy. This is true although the plaintiff elects to take a money verdict for the damages alleged to have been sustained. Birmingham Fertilizer Co. v. Cox, 10 Ga. App. 699 (2) (73 S. E. 1090); Berry v. Jackson, 115 Ga. 196 (41 S. E. 698, 90 Am. St. 102); Smith v. Turner, 141 Ga. 313 (1) (80 S. E. 993); Moon v. Wright, 12 Ga. App. 659 (3) (78 S. E. 141); Watts v. Wight Investment Co., 25 Ga. App. 291 (1) (2) (103 S. E. 184).

5. It was no defense that within less than four months after the date of the contract the defendant was adjudicated a bankrupt, and that the property sued for was set apart to him as an exemption. If a bankrupt has transferred the title to property which would otherwise be subject to an exemption, he, by his act, has placed the exemption beyond his own reach. See 1 Collier on Bankruptcy (ed. 1923), 307, 313; McDowell v. McMurria, 107 Ga. 812 (2) (33 S. E. 709, 73 Am. St. Rep. 155); Bell v. Dawson Grocery Co., 120 Ga. 628 (48 S. E. 150); Bowen v. Keller, 130 Ga. 31 (60 S. E. 174, 124 Am. St. Rep. 164); Chicago, Burlington & Quincy R. Co. v. Hall, 229 U. S. 511, 516 (33 Sup. Ct. 885, 57 L. ed. 1306, 1310). Cf. Coker v. Utter, 152 Ga. 157 (4) (108 S. E. 538); Norris v. Aikens, 155 Ga. 488 (117 S. E. 248); Saul v. Powers, 155 Ga. 450 (117 S. E. 86); McKenney v. Cheney, 118 Ga. 387 (4) (45 S. E. 433).

6. Applying what is said in the preceding paragraphs, there is no merit in any of the special assignments in the defendant’s motion for a new trial, and, the verdict found for the plaintiff being, supported by the evidence, the trial judge did not err in overruling the motion.

Decided April 24, 1924.

Appeal; from Chattooga superior court — Judge Wright. June 16, 1923.

Lee J. Langley, for plaintiff in error.

J. M. Bellah, contra.

Judgment affirmed.

JenJcins, P. J., and Stephens, J., concur.


author: Beli, J.

text:
    15027.
    JACKSON v. BLITCH-EVERETT COMPANY.
    That the judge erred in expressing or intimating an opinion to the jury as to what had been proved is not shown by the ground of the motion for a new trial in which it is alleged that such error was committed in propounding to a witness the question, “Were you present when the original contract was made?” No issue as to the making of the contract had been made in the evidence before the question was propounded. Moreover, the assignment of error was defective.
    Decided April 24, 1924.
    Complaint; from Chatham superior court — Judge Meldrim. August 18, 1923.

      G. E. Johnson, G. E. Alexander, for plaintiff in error.

      II. P. Gobb, contra.
   Beli, J.

This was an action upon account by a partnership for goods alleged to have been sold to the defendant, and delivered at her instance to her tenant. The defendant filed a general denial. One of the plaintiff partners testified upon the trial to the making of a contract for the sale of the goods upon the credit of the defendant but to be delivered to the tenant, stating the time and place, and that, according to his best recollection, the tenant, as well as the defendant, was present. Thereafter, when another of the partners was testifying, the court propounded to the witness the following question: “Were you present when the original contract was made?” It had not been disclosed at this time whether the defendant in her evidence would deny the making of the contract, or the delivery of the goods, or both, — the plea being sufficient, however, for either purpose, — although it subsequently developed in the evidence introduced by her that she denied merely the making of the contract. The sole assignment of error insisted upon in this court is that “during the progress of the trial and in the presence of the jury the trial judge erred in that he did intimate or express an opinion to the jury as to what had been proved,” in propounding the above question.

Under the settled and fundamental policy of our law as embodied in § 4863 of the Civil Code of 1910, it is reversible error for the judge of a superior court to express or intimate his opinion as to what has or has not been proved, and such an error may be committed by the judge in the interrogation of a witness; but at the time the question here complained of was propounded no issue had been made in the evidence as to the existence of the alleged contract. Up to this point the evidence of its existence was undisputed. The question did not amount to an expression of opinion on the part of the court upon an issue then presented by the testimony of the parties. See Daniel v. Charping, 151 Ga. 34 (3) (105 S. E. 465). Furthermore, a ground of a motion for a new trial must be complete within itself, and the assignment of error is defective in failing to allege what fact the court intimated had been proved, or that the intimation was unfavorable to the movant. Bowling v. Mims, 142 Ga. 397 (5) (83 S. E. 112); Kay v. Benson, 152 Ga. 185 (1) (108 S. E. 779). The court did not err in overruling the motion for new trial.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    15055.
    DUNBAR v. DAVIS, agent.
    The court erred in charging to the effect that the plaintiff could not recover if the negligence in question was not the “direct and immediate” cause of the injuries. The law authorizes a recovery for such negligence if it is the proximate cause of the injuries; and it may be the proximate cause without being the “direct and immediate cause.”
    Decided April 14, 1924.
    Action for damages; from city court of Macon — Judge Gunn. August 18, 1923.

      B. W. Maynard., for plaintiff.

      Harris, Harris & Witman, for defendant.'
   Bell, J.

This ease has previously been both in this court and the Supreme Court, when the questions presented related to the sufficiency of the plaintiff’s petition. See Dunbar v. Hines, 25 Ga. App. 675 (104 S. E. 574); s. c. 152 Ga. 865 (111 S. E. 396); s. c. 28 Ga. App. 479 (111 S. E. 744). Upon the trial the plaintiff elected to proceed upon the second count, after an amendment which removed the defects pointed out in the decision of the Supreme Court. The case is now here on exceptions by the plaintiff to the overruling of his motion for a new trial, after verdict for the defendant. Error is assigned upon instructions to the jury that the plaintiff could recover “if the company’s negligence was the direct and immediate cause of his injuries rather than the storm,” but that the plaintiff could not recover if the jury should believe “that the storm was the direct and immediate cause of the plaintiff’s injuries and that the company’s negligence was not the direct and immediate cause of the injuries.” While the definitions of “proximate” and “immediate,” as contained in the dictionaries, are similar, the meanings of proximate cause and immediate cause as commonly accepted in the law are quite different. The immediate cause is generally referred to in the law as the nearest cause in point of time and space, while an act or omission may be the proximate cause of an injury without being the immediate cause. “The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces that event, and without which that event would not have occurred. Proximity in point of time or space, however, is no part of the definition. That is of no importance, except as it may afford evidence for or against proximity of causation, that is, the proximate cause which is nearest in the order of responsible causation.” 1 Shearman & Redfield on Negligence, 48, § 26. “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may- be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.” Insurance Co. v. Boon, 95 U. S. 117, 130, quoted in Savannah Electric Co. v. Wheeler, 128 Ga. 550 (2), 562 (58 S. E. 38, 10 L. R. A. (N. S.) 1176). Where several causes combine to produce an injury, the last intervening cause is commonly referred to as the immediate cause, although some other agency more remote in time or space may, in causal relation, be the nearer to the result, and thus be the proximate responsible cause. In the instant case, the wind unquestionably was the immediate cause of the plaintiff’s injuries, and the real issue for the jury was whether the defendant’s negligence, if found to exist, was nevertheless the proximate cause. The respective concepts of the expressions “immediate cause” and “proximate cause” are illustrated in the following cases: Terry Shipbuilding Corporation v. Griffian, 153 Ga. 390 (112 S. E. 374); Gillespie v. Andrews, 27 Ga. App. 509 (1) (108 S. E. 906); Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Western & Atlantic R. Co. v. Bryant, 123 Ga. 77 (51 S. E. 20); Bowen v. Smith-Hall Grocery Co., 141 Ga. 721 (2) (82 S. E. 23, L. R. A. 1915D, 617); Mayor & Council of Unadilla v. Felder, 145 Ga. 440 (2), 444 (89 S. E. 423); Southern Ry. Co. v. Webb, 116 Ga. 152 (1) (42 S. E. 395, 59 L. R. A. 109); Seaboard Air-Line Railway v. Smith, 3 Ga. App. 1 (3), 5 (59 S. E. 199); Southern Railway Co. v. Tankersley, 3 Ga. App. 548 (3) (60 S. E. 2); Trigg v. Western Union Telegraph Co., 4 Ga. App. 416 (61 S. E. 855); Valdosta Street-Railway Co. v. Fenn, 11 Ga. App. 586 (3) (75 S. E. 984); Spires v. Goldberg, 26 Ga. App. 530 (2) (106 S. E. 585). See also Words & Phrases (1st series), vol. 4, p. 3395; vol. 6, pp. 5768, 5961; Words & Phrases (2d series), vol. 2, p. 941; vol. 3, pp. 1324, 1333, 1349. For the error in the instructions here considered a new trial must result. After a most careful examination and analysis of the evidence, this court is unable to hold that the verdict as found for the defendant was demanded, and therefore that the error in the charge was harmless. There is no merit in. any of the remaining assignments of error.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    15078.
    KISER COMPANY v. MENDEL DEPARTMENT STORE.
    There being no evidence by which the extent of the alleged failure of consideration may be determined, the verdict for the defendant must be set aside.
    Decided April 24, 1924.
    Appeal; from-Polk superior court — Judge Irwin. September 21, 1923.

      W. K. Fielder, for plaintiff.

      Mundy & Watkins, for defendant.
   Jenkins, P. J.

The Kiser Company made a shipment of shoes to the defendant at the invoice price of $461.50. The goods were sold under an implied warranty. Defendant kept and used all of the shipment except a remnant, the invoice price of which amounted to $51. This remnant of shoes he undertook to return to the vendor. The suit is for the unpaid balance of the original invoice, amounting to the said sum of $51. The defendant pleaded failure of consideration, and on the trial of the case testified that he had returned the unsold remnant in order to “balance the account.” He testified that the returned goods, together with other portions of the shipment comprising the same brand as those returned, were grossly inferior in quality to the bind and character of goods which he had the right to expect under his implied warranty.

The ease in all its material elements is almost identical in its facts and is controlled by the recent ruling of this court in Kiser Co. v. Branan, 31 Ga. App. 241 (120 S. E. 427). Here, as in that case, the defendant could not and does not rely upon a rescission of the contract. Here, as in that case, the evidence fails to show that the goods returned were absolutely worthless, but was ample to sustain a finding that they, together with a portion of the same brand of shoes which had been used by the defendant,.did not come up to the implied warranty. The record fails in this case, as in that case, to show, without reference to the return of the remnant of goods sued for, in what amount the defendant had been damaged by way of failure of consideration. Accordingly, on account of the lack of any testimony by which it is possible to determine the extent to which the consideration has failed, the verdict for the defendant must be set aside and a new trial granted.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15089.
    LaGRANGE ICE & FUEL CO. v. McMANAMY.
    The trial judge committed material error when in charging the jury upon the contentions of the parties he stated that the defendant admitted the making of the oral contract sued on, the making of which was one of the vital issues in dispute. The error was not cured by correctly submitting the disputed issue elsewhere in the charge, the erroneous instruction not being expressly corrected. The jury in such circumstances should not be left to decide between conflicts in the charge, without having their attention directed thereto by the court and being instructed as to which of the antagonistic statements is correct. The verdict being for the plaintiff, the defendant, on its motion, was entitled to a new trial.
    Decided April 24, 1924.
    Complaint; from city court of LaGrange — Judge Duke Davis. September 15, 1923.

      M. U. Mooty, for plaintiff in error.

      Wyatt & Branan, contra.
   Bell, J.

A verdict was found for the plaintiff for a balance of salary alleged to be due him on an oral contract of employment for the period of twelve months. The defendant’s motion for a new trial having been overruled, it excepted. The motion complains of the following charge of the court: “The defendant admits that on the 15th day of September, 1920, he made a contract with said plaintiff to work at the plant of said defendant at a salary of $200 a month or $2,400 a year, to be paid weekly for a period of one year beginning [ending] on September 15, 1921; that this contract was made by George T. Dix, treasurer and general manager of said defendant corporation; that the defendant admits.” It is assigned that the defendant’s answer denied the alleged contract, and that the charge misstated the defendant’s contentions to its injury; that the duration of the employment should have been submitted to the jury as an issue of fact. The court elsewhere charged that the defendant denied the making of the contract.

Parts of the petition ¿nd answer respectively are as follows:

PETITION.
The petition of H. A. McManamy respectfully shows to the court the following facts, to wit:
(1) That LaGrange' Ice & Fuel Company, hereinafter referred to as the defendant, is a corporation of Troup county, Ga., with its office and principal place of business located in said county.
(2) That said defendant is indebted to petitioner in the sum of $375.00' by reason of the facts hereinafter set out.
(3) Petitioner shows that on the 15th day of September, 1920, he made a contract with said defendant to work at the plant of said defendant at a salary of $200 per month, or $2,400 per year, to be paid weekly, for a period of one year beginning on September 15, 1920, and ending on September 15, 1921; this contract was made witli petitioner by Geo. T. Dix, treasurer and general manager of said defendant corporation.
(3) Petitioner shows that he went to work for defendant under the terms of said contract on September 15, 1920, and was paid weekly for his work in accordance with the terms of said contract until the 20th day of November, 1920.
(4) Petitioner shows that on the 20th day of November, 1920, 0. H. Berry,, who is president of said defendant corporation and who lives at New Orleans, La., came to La Grange and represented to this petitioner that business was bad and requested this defendant to allow his wages cut during the winter months; this petitioner on the said date of November 20, 1920, agreed with said O. H. Berry representing defendant that he would work for defendant for the sum of $125 per month from November 20, 1920, until March 1, 1921, provided that his salary would be placed back at the sum of $200 per month March 1, 1921, and continue at this figure until the 15th day of September, 1921, the date the original contract made with defendant would end; and on said date of November 20, 1920, the petitioner and said C. H. Berry representing defendant contracted as above set out in this paragraph.
ANSWER.
(1) Defendant admits the allegations contained in paragraph I of said petition.
(2) Defendant denies the allegations contained in paragraph 2 of said petition.
(3) Defendant admits that on or about the 15th day of September, 1920, this defendant, acting through its secretary, George T. Dix, entered into a contract with the said plaintiff whereby the said plaintiff was to work for the said defendant for a monthly salary of $200 a month to be paid weekly, but defendant denies that said contract was for a period of one year, or for any other definite time, and avers that said contract was not for a specified length of time.
(.4) In answer to the allegations contained in paragraph numbered 3 of said petition, defendant admits the allegations contained in said paragraph.
(5) Defendant denies the allegations as contained in paragraph 5 of said petition and avers that on November 20, 1920, the said plaintiff entered into an agreement with the said defendant to then work for said defendant for the sum of $125 per month, and that said agreement to work for $125 per month was for each and every month that the said plaintiff should work for said defendant, and was not only to be during the winter months, but for all of the months and for all of the time that said plaintiff was to continue to work for said defendant.

It will be seen that two paragraphs in the petition are.numbered “3.” Paragraph number 3 of the answer, though not referring by number to any particular paragraph in the petition, would appear by the' subject-matter to refer to the first paragraph in the petition designated by that number. It cannot be ascertained whether paragraph 4 of the answer, when considered by itself, refers to the first or the second paragraph number 3 of the petition, but paragraph 5 of the answer shows by its contents that it refers to the fifth paragraph of the petition (numbered “4”). Under a fair construction of the answer as a whole, it is obvious that the several paragraphs of the petition were answered seriatim by the corresponding paragraphs of the plea, according to their actual order, and not according to the figures by which the pleader undertook to designate them in the petition, and thus that paragraph 4 of the answer was intended to reply to the second paragraph 3 of the petition. It is thus clear that in the instruction complained of the court misstated the defendant’s contention. The controversy between the parties as to whether the plaintiff was employed for a year or merely by the month was the chief if not the controlling issue as made by the evidence. Where the court, in charging the jury as to the respective contentions of the parties, not only fails to present correctly those of the losing party, but instructs the jury that he admits the contention of the opposite party concerning one of the vital issues in the case, a new trial is demanded. Hightower v. Ansley, 126 Ga. 8 (6) (54 S. E. 939, 7 Ann. Cas. 927); Fruit Dispatch Co. v. Roughton-Halliburton Co., 9 Ga. App. 108 (2 b) (70 S. E. 356). “A charge embodying an erroneous principle and one which has a tendency to injure the losing party is nof cured by a subsequent instruction embodying a correct statement of the law, when attention is not called to the previous charge. A charge containing two distinct propositions directly conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they cannot render an intelligent verdict.” Morris v. Warlick, 118 Ga. 421 (2) (45 S. E. 407); Pelham Mfg. Co. v. Powell, 6 Ga. App. 308 (4) (64 S. E. 1116); Savannah Electric Co. v. McClelland, 128 Ga. 87 (2) (57 S. E. 91). The same rule should be applicable where in like manner the court gives a conflicting charge in reference to the losing party’s contentions.

The court fell into the error quite naturally by reason of the confusion (for which the plaintiff was partly responsible) appearing in the pleadings. The error was probably prejudicial to the defendant and demanded a new trial.

Judgment reversed.

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


author: Jenkins, R. J.

text:
    15131.
    Chambers v. Harlan Fuel Company.
    Decided April 24, 1924.
    Complaint; from city court of Atlanta — Judge .Keid. October 20, 1923.

      Chambers, Dickey & Chambers, for plaintiff in error.

      Walter A. Sims, contra.
   Jenkins, R. J.

While “the statute requires that demurrers, pleas, and answers shall be disposed of in the order named” (Anderson v. Fulton County Home Builders, 147 Ga. 104, 105 (92 S. E. 934); Civil Code of 1910, § 5630), and “a demurrer should be determined before the case is submitted, even though the demurrant and his counsel be absent without leave” (Vaughn v. Farmers & Merchants Bank, 20 Ga. App. 725 (1) (93 S. E. 228) ), still where counsel for both parties are present, announce ready, and enter into a trial before a jury, without counsel for the defendant ever requesting that his general demurrer, previously filed, to the petition be determined, the defendant thereby waives any rights that he might have to a hearing on the demurrer. Where in such a case, after a verdict had been rendered for the plaintiff, the defendant moved in arrest of judgment, not because the petition was fatally defective in failing to set forth a cause of action (see Kelley v. Strouse, 116 Ga. 872 (5 a, 7) 43 S. E. 280), but solely because the “demurrer was not passed on by the court in said case before the same was submitted to the jury,” the court did not err in overruling the motion in arrest. See also Anderson v. Fulton County Home Builders, supra; Waldrop v. Wolff, 114 Ga. 610, 613 (3) (40 S. E. 830).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15133.
    West v. Miller et al.

   Bell, J.

1. In case of a sale of a chattel, where the parties have reduced to writing what appears to be a complete and valid contract of sale, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire agreement, and parol evidence of prior or contemporaneous representations, statements or agreements in regard to the subject-matter is inadmissible to add to, take from, or vary the written instrument. Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711); Bond v. Perrin, 145 Ga. 200 (1) (88 S. E. 954); s. c. 18 Ga. App. 179; Pryor v. Ludden & Bates, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Reeves Tractor Co. v. Barrow, 30 Ga. App. 420 (118 S. E. 456).

Decided April 24, 1924.

Attachment; from city court of Greensboro — -Judge Fisher. October 15, 1923.

Ute West sued A. E. Miller and William McClure for the balanee of the purchase-money of two mules, upon the following instrument:

2. The instrument sued on in this case purports to show upon its face all of the terms of a valid contract of sale of personalty, and it was not permissible, in the absence of fraud, accident, or mistake, for the defendant vendees to plead or prove the breach of a contemporaneous express warranty not in writing. The court erred in overruling the motion to strike that portion of the plea set out in the statement of facts, and in allowing evidence in support thereof.

3. The defendants did not plead the breach of an implied warranty, and the court committed error against the jjlaintiff in submitting that defense, as was done in the following charge: “If you decide the mule was not reasonably suited for the purpose for which it was intended, it would be your duty to find for the defendant. If you decide that the mule was reasonably suited for the purpose for which it was intended, it would be your duty to find for the plaintiff.” Even assuming that the plea was good, and that this charge was intended to submit only the defense pleaded, — that is, the breach of an express warranty, which, if not in violation of the parol evidence rule, might, of course, be in the same terms as the implied warranty of the law, — the charge still would be error, for the reason that it assumed the existence of the express agreement, and also that any failure of consideration, regardless of extent, would defeat the remainder of the note.

4. Even if the plea had been proper and no error had been committed in the trial, a new trial should have been granted because there was no evidence of the extent to which the consideration had failed. The fixed purchase price of the two mules was $250. Erom the defendants’ evidence the jury would have been authorized to infer that the mule complained about was not worth at the time of the sale more than $40 or $50. There was no proof, however, of what should have been its value if it had not been possessed of the defects alleged. There would be no presumption that the two mules were of equal value, and proof of the purchase price of both together would be no sufficiently definite evidence of the cost or value of one of them. Thus the jury were not furnished with any data by which they could properly determine the extent of the failure of consideration. It follows that in no view of the case was there any evidence to support a finding in favor of the defendants. Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (5) (118 S. E. 446 (5)); Coffee v. Worsham, 31 Ga. App. 62 (119 S. E. 665); Kiser Co. v. Branan, 31 Ga. App. 241 (1) (120 S. E. 427); Brenard Mfg. Co. v. Winn-Wilkes Drug Co., 31 Ga. App. 200 (1) (120 S. E. 446).

Judgment reversed.

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

“Georgia, Green Co.,

“Buckheacl, Ga., April 11, 1922. “$250.00. On the 12th day of April, 1922, I promise to pay to TJte West, or order, two hundred and fifty & no/100 dollars, value received, with interest from date at rate of 8 per cent, per annum, and all cost of collection, including 10 per cent, attorney’s fees, if collected by suit. This note is given for the purchase-money of following property, to wit: One light bay mare mule

about 9 years old name Beck, one dark bay mare mule about 11 years old name Bell. The above note is to be paid $50 per month, beginning May 1, 1922, and [on] failure to meet any one payment the full amount becomes due and collectible. The title to which remains in the payee hereof until this note with interest and attorney’s fees are paid in full. This note is absolute and binding on me, whether above-described property dies or is otherwise destroyed, I agreeing and covenanting to pay to said payee the full amount expressed in this note, in any and all events. Against this note, all homestead and exemption rights allowed me and my family under the laws of this State, or the United States, are hereby waived.

“Witness my hand and seal this 11 day of April, 1922.

(Signed) “A. R. Miller (L. S.).

“Wm. McClure (L. S.).

“Signed, sealed, and delivered in presencé of:

“C. M. Davis, Com. N. P. of Morgan Co., Ga.”

The defendants pleaded that they did not owe the plaintiff “any sum, for the reason that the mule Bell, referred to in the note, was affected with the rheumatism or some other trouble which causes lameness, and was lame in the feet and shoulders, and at times could not walk, and was wholly unfitted for the purpose of hauling and general sawmilling, for which the mule was bought, as was well known to petitioner at the time the mule was sold. When the mule was delivered by petitioner to defendants the mule showed a peculiar gait in its walk, and defendants called attention of petitioner to the same. Petitioner then and there assured the defendants that, the mule had a ‘proud walk,’ and this alone accounted for the peculiar gait. Defendants then said that they bought the mule -wholly upon the word of petitioner that the mule was sound, and petitioner stated that the mule was sound and he guaranteed it to be sound, and sold it on such representations and warranty. The mule was not sound as stated, and has been from time to time lame and worthless to defendants. Defendants endeavored to get the mule in good condition, and have failed. They paid the money already paid because one mule was sound and all right. When the last payment was made, defendant McClure stated that the Bell mule was unsound and he desired a settlement or reduction for her, and paid the money with such understanding, and not as a confirmation of her condition. Defendants say that the money paid is the full worth of the mules, and they are due nothing further.”

The plaintiff made a motion to .strike the plea, upon the ground that it sought to set up a parol agreement at variance with the terms of the written contract. This motion was overruled, and exceptions were preserved. On the trial a verdict was found for the defendants. The plaintiff assigns error upon the refusal of his motion for a new trial. In the motion it is alleged that the court erred in admitting certain evidence in support of the plea, in charging the jury as shown in paragraph 3 of the syllabus, and in failing, without request, to instruct the jury that “the note sued on . . is a valid, subsisting, plain unambiguous written contract, and it is your duty to find for the plaintiff.”

M. Q. Few, for plaintiff. J. 0. Faust, for defendants.


text:
    15150.
    Dunn v. Goodrich Rubber Company.
   Bell, J.

This was a suit upon an account. The defendant filed a plea, but withdrew it. The ease does not appear to have been marked in default. When it was called for trial the court, in the absence of the defendant, directed a verdict in favor of the plaintiff, without requiring the introduction of evidence. The defendant filed a motion for a new trial, but was unable, of course, to furnish a brief of evidence. The motion was overruled, and the defendant excepted. Held: 1. “Where one who is dissatisfied with a verdict seeks to set it aside by a motion for a new trial, a brief of the evidence is an indispensable requisite to the validity of the motion. In other words, if there is no brief of evidence, the so-called motion for a new trial goes for naught, and the action of the trial judge either in overruling it or dismissing it, will be affirmed. . . Civil Code (1910), §§ 6093, 6306; Whitaker v. State, 138 Ga. 139 (1), 140 (75 S. E. 254); Baker v. Johnson, 99 Ga. 374 (32 S. E. 22); Mize v. Americus Mfg. Co., 106 Ga. 140 (32 S. E. 22); Holloman v. Small, 111 Ga. 812 (1) (35 S. E. 665); Douglas County v. Sayer, 119 Ga. 551 (46 S. E. 654); Price v. Price, 122 Ga. 321 (50 S. E. 91). The so-called motion for a new trial in this case was [necessarily] possessed of the defect mentioned, and therefore no error was committed in overruling it.” Turner v. Spell Live Stock Co., 31 Ga. App. 343 (120 S. E. 786).

Decided April 24, 1924.

Complaint; from city court of Barnesville — Judge Bedding. October 18, 1923.

O. J. Lester, for plaintiff in error.

Hobbs & Barrett, contra.

2. It follows from the above that where an answer to a suit upon an account is withdrawn, and a verdict and judgment are thereupon rendered for the plaintiff, without evidence, as in cases of default, though no entry of default is made, a motion for a new trial is not the proper proceeding for avoiding the verdict and judgment. Turner v. Spell Live Stock Co., supra.

Judgment affirmed.

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


text:
    15151.
    KENIMER v. HENDERSON.
    In the instructions of the court as to the law applicable where a married woman, who is sued upon a promissory note signed by her husband and herself apparently as joint principals, sets up the defense that the contract on her part was one of suretyship for her husband, there was no error prejudicial to the defendant.
    Under the provision in the note for the annual compounding of interest in case of nonpayment (which clause is not attacked), the verdict for the plaintiff was less than he was entitled to.
    Decided April 24, 1924.
    Certiorari; from White superior. court — Judge J. B. Jones. October 11, 1923.

      B. P. Gaillard Jr., for plaintiff in error.

      A. J. Henderson, C. H. Edwards, E. L). Kenyon, contra.
   Jenkins, P. J.

1. “Where two persons sign a note, apparently as joint principals, and there is nothing in the note to show that one is surety for the other, the presumption of law is that both are liable as joint principals. This is not, however, a conclusive presumption, and may be rebutted by parol evidence, or by circumstances.” Williams v. Peoples Bank, 9 Ga. App. 714 (1) (72 S. E. 177). This rule applies when one of the signers is a married woman. Gunn v. Wilson Co., 20 Ga. App. 14 (1) (92 S. E. 721).

2. “Where the creditor, at the time a debt is created, really intends in good faith to extend the credit to the wife, and not to the husband, and the consideration of the loan passes legally and morally from the creditor to the wife, and where the writings then executed are such as purport to bind her for the debt as her own, then, whatever may be the private understanding between the wife and the husband, in which the creditor is not concerned and in which he has no interest, as to the disposition by the wife of the proceeds of the loan so received by her, the writings are to be treated as embracing the true substance of the contract. Nor does it matter in such case that the negotiations relating to the loan are in fact all had through the husband, where the- transaction appears to be the bona -fide and voluntary contract of the wife.” Longley v. Bank of Parrott, 19 Ga. App. 701 (1 b) (92 S. E. 232).

3. In the instant case the note was signed by the husband and by the wife apparently as joint principals. Under the contentions and evidence of the defendant wife, the husband alone made the contract as principal with the plaintiff payee of the note, and received all of the consideration money, she herself signing the note afterwards as surety at the request of her husband, and the husband afterwards using the money or a part thereof for the purchase of an automobile, for which he alone contracted, but which thereafter became their property as owners in common. Under the evidence of the plaintiff, the note was signed by both husband and wife at the same time in his presence, the consideration money was loaned to the wife and on her credit, and she alone received the proceeds of the loan, with which she purchased the car in question, which ear she claimed as her property, and which in a subsequent settlement on the separation of the husband and wife was treated as hers. Under this testimony, a verdict for the plaintiff against the wife was authorized; and the court did not err in charging in substance that before a contract of suretyship or the assumption of a husband’s debt by a wife would be unenforceable, the plaintiff creditor should have knowledge or notice thereof. See also Jones v. Fourth National Bank, 20 Ga. App. 219 (2) (92 S. E. 964).

4. The court charged as follows: “If you believe from the evidence that” the defendant “at the time of the execution of the note sued on was a married woman, and that she merely signed the note as surety and did not receive the consideration, and was only surety, then the contract would be void as to her, and the plaintiff could not recover against her;” to which exception was taken: “because a woman who signs a note as surety may receive the benefit of the property bought with money realized on a note, and not be bound on her contract of suretyship; because this instruction limited the jury to the sole question as to whether the wife got any benefit from the consideration of the note, the contention of” the wife “being that she did not get the money, and that her husband contracted for and paid for the automobile which it is claimed the money went to buy; because this charge assumes that” the wife “signed the note at the date of the execution of the same by her husband, it being one of the earnest contentions of” the wife “that she did not sign said note until days after its execution by her husband, and said charge amounts to an expression of opinion that” the wife “signed said note at the time her husband signed it.” The court both immediately preceding and immediately following the excerpt in question correctly charged the jury the law relating to a wife’s suretyship and assumption of her husband’s debts, and that if the jury believed from the evidence that the defendant wife “was surety in this case, or that the signing of the contract sued on was an effort on her part to assume the debt of her husband, and that was known to the plaintiff at the time of the execution of the note sued on, then in that event plaintiff could not recover against the defendant” wife, and “in that event your finding would be against” the husband “only;” and that “this would be true even though the husband allowed the wife to take the consideration of the note later.” The excerpt from the charge is thus free from error prejudicial to the defendant, especially so in view of her particular contention and evidence that the husband alone received the consideration, and she received no part thereof, and that her contract was only one of surety. Nor does the expression, “if you believe from the evidence that” the defendant “at the time of the execution of the note sued on was a married woman,” amount to an expression of an opinion that the instrument was signed by her at the same time that it was signed by the husband.

5. The jury on December 5, 1922, found a verdict for the plaintiff against both husband and wife for $1,000 principal, $377.21 interest to date of verdict, and $137.21 attorney’s fees.. The note in question was due twelve months after date, and bore “interest from date at 8 per cent, per annum, payable annually, and if not so paid, then to become a part of the principal and draw the contract rate of interest.” There was a credit of $50, paid December 1, 1920. The defendant wife excepts to-the amounts of interest and attorney’s fees so far as they exceed $316.22 interest and $131.60 attorney’s fees. The superior-court judge, in overruling the certiorari and entering judgment on the certiorari bond, reduced the amounts to $364.12 interest and $136.91 attorney’s fees. The calculation of the plaintiff in error apparently fails to take into account the provision in the note for the annual compounding of interest in case of nonpayment, which clause is in no wise attacked. Under this provision, the amounts found by the superior court appear less by a few dollars than the amounts to which plaintiff was entitled.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15157.
    BOWDON OIL AND FERTILIZER COMPANY v. BANK OF BOWDON.
    Payment of a part of a past-due indebtedness furnishes no consideration for a promise of forbearance.
    The evidence authorized the verdict for the plaintiff.
    Decided April 24, 1924.
    Complaint; from city court of Carrollton — Judge Hood. October 15, 1923.

      S. J. Boykin, Boykin & Boykin, for plaintiffs in error.

      S. Holderness, contra.
   Jenkins, P. J.

A default judgment was opened in this case, after which the defendant filed a plea setting up that, on account of certain payments made on the claim after its maturity, the plaintiff orally agreed to extend the due date for twelve months. The case was tried before the judge of the city court without a jury, and he found in favor of the plaintiff.

Payment of a part of a past-due indebtedness furnishes no consideration for a promise of forbearance. Crawford v. Gaulden, 33 Ga. 173 (5), 184; Tatum v. Morgan, 108 Ga. 336 (33 S. E. 940); Holmes v. First Nat. Bank, 19 Ga. App. 810 (2) (92 S. E. 298). Moreover, according to the defendant’s own evidence, the indulgence was to be granted only on condition that he pay as much as $5,000, whereas the entire payment he attempted to prove amounted to much less. The verdict in the amount rendered was authorized, if not demanded, by the evidence, since according to the plaintiff’s evidence the bank stock was turned over, not as. a payment, but to be sold by the plaintiff and the proceeds applied on the debt, if it should effect a sale thereof at a price not less than the book value of the stock. The bank’s receipt for the stock, which was introduced in evidence, plainly bears out its contention.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15160.
    GILES v. CITIZENS INSURANCE COMPANY OF MISSOURI.
    The possessor of personal property is presumed to be its owner, until the contrary appears. In an action against an insurance company upon a policy insuring property as belonging to the policyholder, where the company sets up the defense that he is not the owner of the property, the burden is upon it to disprove his ownership.
    The policy sued upon was not rendered void by its description of the insured automobile by the number of á different automobile, which number, without the knowledge of the policyholder, had been placed on the insured automobile in lieu of its original number.
    Although it appeared that the automobile in question had been stolen from a former owner, and although a sale of stolen property by another to a bona fide purchaser would not divest the owner’s title, yet it appeared that after the theft the owner himself transferred his title to an insurance company which had indemnified him for the loss, and, so far as appeared from the evidence, title from this source may have been obtained by the person from whom the plaintiff, in good faith, purchased the automobile, and who, it appeared from the evidence, had also acquired it in good faith. The defendant, upon whom rested the burden of disproving the plaintiff’s title, having failed to disprove, such title, the direction of a verdict in favor of the defendant was error.
    Decided April 24, 1924.
    Certiorari; from Eulton superior court — Judge Bell. October 1, 1923.

      Blliott Cheatham, for plaintiff.

      Estes Dor emus, Spalding, MacDougald & Sibley, for defendant.
   Jenkins, P. J.

This was a suit on a policy of insurance, to recover the value of an automobile alleged to have been stolen. The policy described the car insured by it as follows: “Year 1919 —Trade Fame Chandler — Type of body Roadster- — -Motor No. 87688.” It provided that the policy should be void if the interest of the insured in the subject of the insurance was other than “unconditional and sole ownership.” On the trial the defendant sought to absolve itself from liability under the policy on three grounds: (1) that the assured had no insurable interest in Chandler automobile, motor No. 87688; (3) that he was not the sole and unconditional owner; and (3) that no loss or damage had been sustained to Chandler automobile No. 87688. From the evidence it appears that the stolen car had been purchased .by the assured in good faith from a person who had also acquired it in good faith, but that it had originally belonged to a person in Chattanooga, from whom it had been stolen about two years previously, and that the Chattanooga owner had assigned all his rights and interest therein to another insurance company, which had indemnified him for his loss. The record entirely fails to show whether the last-mentioned insurance company ever recovered the ear, or had sold its interest therein to any of plaintiff’s predecessors in title. It appears that the car had its motor number stamped in two places, one exposed to view, the other concealed, that the original exposed number had been changed from 67639 to 87688, and that a Chandler car bearing the original factory number 87688 was the property of a person in the State of New York. The judge of the municipal court directed a verdict in favor of the defendant, which judgment was sustained by the superior court on certiorari, and the plaintiff excepted.

1. “A person in possession of personal property is presumed to be the owner, until the contrary appears. Where a fire-insurance company insures certain property as belonging to the insured, the burden is on the insurance company, in an action on the policy, to prove that the insured did not own the property.” Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585 (2) (63 S. E. 638).

3. While it is true that a plaintiff cannot recover in such a suit except by showing that the property in his possession at the time the policy was issued was the same as that described in the policy (Hessen v. Iowa Automotive Ins. Co., 195 Iowa 141, 190 N. W. 150), still where the insured is the actual owner of the property which is the subject-matter of the contract of insurance, and has an insurable interest therein, the mere fact that the original factory number of the motor may have been changed without his knowledge would not of itself render the contract of insurance null and void with reference to the insurance on the car actually dealt with by the contracting parties.

3. A sale of stolen goods, though to a bona fide purchaser for value, does not divest the title of the person from whom they were stolen, and conveys no sort of title to the purchaser. Raleigh R. Co. v. Lowe, 101 Ga. 320, 329 (2, 3) (28 S. E. 867). While the courts have been justly liberal to the insured in construing what constitutes an “insurable interest,” and in construing the meaning' of language used in the policies as to what constitutes “sole and unconditional ownership,” many courts of other States and textbook writers laying down in effect the rule that any title or interest in the property, legal or equitable, will supply an “insurable interest” such as will support a contract of insurance (19 Cyc. 584-585; 26 C. J. 24-25; 14 E. C. L. 910-911; 2 Joyce on Ins., §§ 987, 990; Harrison v. Fortlege, 161 U. S. 57, 16 Sup. Ct. 488; Home Ins. Co. v. Gilman, 112 Ind. 7, 13 N. E. 118; Berry v. American Central Ins. Co., 132 N. Y. 49, 30 N. E. 254, 28 Am. S. R. 548; see also Civil Code of 1910, § 2472), and that the insured will be deemed to have “sole and unconditional” ownership within the meaning of the policy whenever, under a claim of right, he has the exclusive and undisputed use, possession, and enjoyment of the property (26 0. J. 172-173; Eicliards’ Insurance Law (3d ed.-), 331; Joyce on Insurance (2d ed.), 3977), still the bona fide possession of stolen property does not give the holder any sort of title whatever, such as would come up to the rule governing an insurable interest; nor does his bona fide possession of stolen property constitute such an exclusive and undisputed claim as would entitle him to be called the “sole and exclusive” owner. Not only has the real owner a contrary claim, but an uncontestable claim, and the fact that he is unable to assert it until the whereabouts of his property has been located does not render the claim of the bona fide holder in possession either undisputed or uneontested.

4. In the instant case it indisputably appears that the plaintiff was in bona fide possession of property previously stolen from the original owner by parties unknown, about two years previously, and that the original owner had transferred all his title and intcrest in the car to the other insurance company, which had indemnified him against his loss by the original theft; but the record discloses that the defendant, upon whom the burden rests of disproving the title of the plaintiff in possession at the time of the second theft, has failed to show that the other insurance company had not conveyed its title and interest to a party through whom-the plaintiff claimed; and for this reason the direction of a verdict in favor of the defendant was error.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15199.
    THURMOND v. STATE OF GEORGIA.
    The verdict against tlie claimant of the motor-truck seized because of being loaded with whisky was authorized by the evidence, from which it appeared that at the time of the seizure he was riding in a Ford ear about 100 yards in front of the truck which was so loaded.
    The question as to the propriety of the testimony relative to the general reputation of the claimant and his bondsman — his alleged accomplice —in regard to previous dealings with liquors is not properly presented.
    Decided April 24, 1924.
    Confiscation under liquor law; from Eorsyth superior court-judge Blair. November 3, 1923.

      B. Smyth Qambrell, Underwood, Pomeroy & Haas, for plaintiff in error.

      John S. Wood, solicitor-general, contra.
   Jenkins, P. J.

This was a proceeding to condemn an automobile truck which had been seized by the public authorities on a public highway, and which was being used to convey 163 gallons of whisky. Plaintiff in error filed a claim, and sought to show that his car was being thus used without his knowledge or consent, testifying that it had been stolen the night previously from a garage in another county, and submitting the testimony of certain other persons that he had promptly reported the loss to the sheriff of the county of the alleged theft and to other persons. His own testimony and the testimony of these witnesses sworn in his behalf, if accepted by the jury, would have also established or strongly tended to establish an alibi as to the claimant’s actual presence at the time and place of the seizure. There was plain and direct testimony, however, on behalf of the State, to the effect that the claimant, in company with his bondsman in the present litigation, was at the time of the seizure riding in a Ford car about 100 yards in front of the truck loaded with whisky. The jury found against the claimant, who excepts on the general grounds, and because the State was allowed to introduce certain evidence relating mainly to the general reputation of the claimant as to his hauling and selling whisky, as well as to the reputation of his bondsman in that respect, with whom, according to the State’s evidence, he was riding in front of the whisky truck at the time the seizure was made.

1. A verdict was not demanded against the claimant, but the facts and circumstances shown by the evidence for the State were such as authorized the jury to reject the theory of his defense and to find the verdict as rendered.

2. The several exceptions made to the admission of evidence are without merit, since in considering each of them it appears either that the testimony complained of was actually excluded by the court, or that no objection was made at the time the witness was being interrogated, or that the witness himself failed and refused to give the testimony sought, or that the exception fails to disclose the name of the witness whose testimony it is contended should have been excluded on claimant’s motion. See Sims v. Sims, 131 Ga. 282 (62 S. E. 192); City of LaGrange v. Cotter, 29 Ga. App. 577 (1) (116 S. E. 204); Royal v. Montfort, 30 Ga. App. 780 (3) (119 S. E. 427). Consequently, the question as to the propriety of the testimony relative to the general reputation of the claimant and his bondsman, his alleged accomplice, as to previous dealings with liquor is not presented for determination.

Judgment affirmed.

Stephens and Bell, JJ., concur.