text:
    15077.
    Knights of the Ku Klux Klan v. Terrell.
    Decided July 14, 1924.
    Complaint; from Fulton superior court — Judge Bell. September 12, 1923.

      Etheridge, Sams & Etheridge, for plaintiff in error.

      W. E. Terrell, contra.
   Stephens, J.

This being a suit to recover attorney’s fees for services alleged to have been performed by the plaintiff for the defendant, and the petition as amended alleging a contract made by the plaintiff' with the defendant’s authorized agent, and that in the performance by the plaintiff of his alleged obligations under the contract certain particularly described services of a certain alleged value were rendered by him to the defendant and accepted by the defendant, a cause of action was set out, and the trial judge therefore did not err in overruling the demurrers to the petition.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    15149.
    Cain v. Robinson.
   Stephens, J.

1. The evidence authorized a finding that the property levied upon, viz. several bales of cotton, was produced upon land occupied by the defendant in fi. fa. as tenant of another, and that, although the claimant, who was the defendant’s minor son and who lived with him, may have helped produce the cotton, the title was nevertheless in the defendant in fi. fa. Although the burden of proof in this case was upon the plaintiff in fi. fa., the verdict found for the plaintiff in fi. fa. against the claimant was authorized.

2. The alleged newly discovered evidence to the effect that the claimant had executed certain rent notes, thereby constituting him tenant of the land upon which the property in controversy was produced, which evidence it was contended by the movant was relevant as establishing the fact that the claimant and not the defendant in fi. fa. occupied the land and produced the cotton, was, if true, a fact clearly within the knowledge of the claimant, and the trial judge, in passing upon the motion for a new trial upon this ground, was authorized to find that such evidence could easily have been discovered by the exercise of ordinary diligence upon the part of the claimant.

Decided July 14, 1924.

Levy and claim; from city court of Wrightsville — Judge Moye. October 6, 1923.

W. C. Brinson, for plaintiff in error.

B. L. Stephens, contra.

3. The trial judge did not err in overruling the claimant’s motion for a new trial.

Judgment affirmed.

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


text:
    15152.
    McDonald v. Jenkins.
    Decided July 14, 1924.
    Complaint; from Lumpkin superior court — Judge J. B. Jones. October 27, 1923.

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

      Charters, Wheeler & Lilly, contra.
   Stephens, J.

This being a suit against the maker upon a promissory note, the sole defense to which was that the instrument had been intentionally altered in a material manner by a person claiming a benefit under it, with the intention to defraud the defendant, and there being evidence in behalf of the plaintiff to the. effect that the instrument had not been altered, a verdict finding for the plaintiff was authorized. Since the only grounds for reversal appearing of record are the general grounds, the trial judge did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    15161.
    Martin v. Southern Wheel Company.
   Stephens, J.

1. The failure of a discharged employee to obtain employment during a period of nine or ten months after various applications for work had been made by him to the former employer and others, although taken in connection with the fact that at the time of the discharge the employer’s representative who actually discharged him stated that he could never again work for the employer or elsewhere as long as he (the representative) could prevent it, is not sufficient to authorize the inference that the discharged employee had been “blacklisted” by his former employer, or that the employee’s failure to obtain employment had been caused by any act of the former employer.

2. In a suit by one against a former employer who had discharged him, wherein the plaintiff alleged that he had suffered damage by reason of having been blacklisted by the defendant, and prevented by him from receiving other employment, where the evidence introduced in behalf of the plaintiff was as above indicated, the trial court did not err in awarding a nonsuit.

Decided July 14, 1924.

Action for damages; from Fnlton superior court — Judge E. D. Thomas. October 24, 1923.

Hill & Adams, for plaintiff.

Spalding, MacDougald & Sibley, for defendant.

Judgment affirmed.

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


text:
    15203.
    Union Investment Co. v. Southern Railway Co.
    Decided July 14, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. November 30, 1923.
    Application for certiorari was denied by the Supreme Court.

      T. L. Lanford, R. R. Jaclcson, for plaintiff.

      W. 0. Wilson, for defendant.
   Stephens, J.

1. The judgment which under the Civil Code (1910), § ' 5265, may be the basis of the issuance of garnishment proceedings is necessarily a domestic judgment. A summons of garnishment cannot legally issue upon a judgment rendered in a foreign jurisdiction.

2. A judgment against the garnishee in such a case is therefore void, and the levy thereon may be successfully resisted by an affidavit of illegality, alleging such invalidity in the judgment.

3. The above rulings do not deprive the plaintiff in garnishment of any right which he may have under the full faith and credit clause of the Federal constitution, since whatever rights he may have thereunder are fully secured to him under the laws of the State of Georgia which permit a recovery on a foreign judgment by proof of the same in a common-law suit.

4. The judge of the superior court therefore properly overruled the certiorari sued out by the plaintiff in garnishment, who excepted to a judgment of the judge of the municipal court sustaining the affidavit of illegality filed by .the garnishee.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    15208.
    Bolton v. Kelly & Sons.
    Decided July 14, 1924.
    Complaint; from Walton superior court — Judge Fortson. October 20, 1923.

      John W. Bolton, E. G. Bentley, for plaintiff in error.

      Morris Kelly, contra.
   Stephens, J.

The inference is authorized that a landlord obligated himself to pay for supplies furnished to a tenant on his farm and charged to the landlord, where the landlord told the merchant furnishing the supplies that the tenant, who had bought a bill of goods of the merchant, had been sent to the merchant by the landlord, and that “it would be all right to let him have goods, but not let him have too much,” and where statements of the goods so furnished had from time to time been sent to the landlord and he had paid no attention to the statements, and where the landlord had. previously paid a bill for supplies furnished to the same tenant by the same merchant on a previous occasion, and which was charged to the landlord.

Judgmbnt affirmed.

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


author: Bell, J.

text:
    15245.
    STONE et al. v. EDWARDS et al.

    1. This case having first gone to the Supreme Court, its transfer by that court to this court is equivalent to a holding that the suit is one at law. 'Whatley v. Cohen, 24 Ga. App. 514 (101 S. E. 310).
    2. If the individual defendants were only guarantors upon the bonds, the principal debtor could not be sued with them in the same action (Mus-grove v. Luther Pub. Co., 5 Ga. App. 279, 63 S. E. 52) ; but when the plaintiff, by amendment allowed, struck the principal debtor as a party, defendant, the demurrer upon the ground of a misjoinder of parties was satisfied. Civil Code (1910), § 5688; DeLay v. Latimer, 151 Ga. 367 (106 S. E. 901) ; Whatley v. Cohen, supra.
    3. Assuming that the defendants were sued upon one obligation as sureties and upon others as guarantors, this did not make the petition bad for a misjoinder of causes of action. The liability in each instance which the plaintiffs sought to enforce was ex contractu, and all claims arising ex contractu between the same parties may be joined in the same action. Civil Code (1910), § 5521; Warthen v. Brantley, 5 Ga. 571 (2), 573; Tygart v. Albritton, 5 Ga. App. 412 (2) (63 8. E. 521) ; Cason v. Tye, 9 Ga. App. 325 (71 S. E. 593); Chappell v. Western Railway, 8 Ga. App. 787 (70 S. E. 208) ; Mill Wood Co. v. Flint River Cypress Co., 16 Ga. App. 636 (6) (85 S. E. 943). The demurrer does not raise the question whether in a single count separate and distinct causes of action were set forth, irrespective of whether the petition would have been subject to special demurrer upon that ground.
    4. The petition as amended did not fail to set forth a cause of action because the plaintiffs had not previously sued the principal debtor. Ranee
      v. Winship Machvne Co., 94 Ga. 649 (21 S. E. 901); Fouohé v. Cherolcee National Barile, 18 Ga. App. 569 (90 S. E. 102).
    5. Irrespective of what may have been the rule at common law, it is not now the law of this State that debts due to a corporation are extinguished upon its dissolution. Wheatley v. Glover, 125 Ga. 710 (15) (54 S. E. 626) ; White v. Davis, 134 Ga. 274, 282 (67 S. E. 716) ; Civil Code (1910), § 2245 (Ga. L. 1855-6, p. 226).
    6. Upon the dissolution of a corporation' its assets, including dioses in action, belong to the stockholders as tenants or owners in common, and are subject to their control, if all debts have been paid and no receiver has been appointed. In such a case, whore all the stockholders are in unison as to the disposition of such assets, there is no necessity for the appointment of a receiver. They succeed to the legal title thereto, and an action by all of them upon choses in action which belonged to the corporation at the time Of its dissolution is maintainable at law in their own names. Where the facts appear as indicated in this paragraph, the appointment of a receiver will not be. presumed.
    7. Applying the foregoing rulings, the petition was not subject to any ground of the demurrer, and the court erred in dismissing it.
    Decided July 14, 1924.
    Complaint; from Stephens superior court — Judge J. B. Jones. October 22, 1923.

      J. H. Davis & Son, B. F. Davis, Thad. L. Bynum, for plaintiffs.

      George L. Goode, Charters, Wheeler & Lilly, Fermor Barrett, for defendants.
   Bell, J.

Tbe plaintiffs in this action alleged, that they were the only stockholders of a private corporation previously dissolved by the superior court according to law; that all debts of the corporation had been paid prior to its dissolution; that it was the owner, in possession at that time, of a note payable to it by another company as maker, upon which the two individuals sued had indorsed a guaranty of payment, and of two “gold bonds” payable to a banking company as trustee or to bearer, issued by the same principal debtor, payment of which was guaranteed by the same individual defendants. The principal debtor or the maker of the note and the bonds was made a party defendant in the original suit, but later was struck on motion of the plaintiffs, who alleged that that defendant was insolvent, and proposed to proceed against the two individual defendants only, for the purpose of recovering the amount alleged to be owing and past due upon the note and the bonds, of which it is alleged that, the plaintiffs are now the owners of both the legal and equitable title.

Prior to the amendment to the petition one of the defendants demurred to the suit, upon the grounds: (1) no cause of action set forth by plaintiffs, and plaintiffs are not entitled to maintain the suit; (2) misjoinder of causes of action, for that the individual defendants are sued on the note as sureties and on the bonds as guarantors; (3) misjoinder of parties defendant, in that the individual defendants, being guarantors, cannot be sued jointly with the principal debtor. The court sustained the demurrer, which was renewed after amendment to the petition, and the plaintiffs excepted. None of the rulings stated in the headnotes require elaboration, except that contained in headnote 6.

The estate of' a dissolved corporation is in its legal aspects somewhat similar to that of a decedent who dies intestate. It is provided by the Civil Code, § 3929, that upon the death of the owner of any estate in realty the title vests immediately in his heirs at law, but the title to all other property owned by him vests in the administrator of his estate for the benefit of the heirs and the creditors. Under this section it has been many times held that the heirs at law may sue for the recovery of realty where there is no administrator, or if the administrator appointed consents thereto. Civil Code (1910), § 3933. This is so because the title vests in the heirs at law. Even where am administrator is appointed, he does not take the title, but only has a qualified right, to be exercised under the law, for the purpose of paying debts and distribution. Redfearn on Wills & Administration of Estates, 476; Flint River &c. R. Co. v. Maples, 10 Ga. App. 573 (3) (73 S. E. 957); Bacon v. Howard, 19 Ga. App. 660 (7) (91 S. E. 1066); Johnson v. Hall, 101 Ga. 687 (29 S. E. 37); Collins v. Henry, 155 Ga. 886, 889 (118 S. E. 729); Weldon v. Weldon, 152 Ga. 550 (110 S. E. 273); Hoyt v. Ware, 156 Ga. 98 (6) (118 S. E. 734). By reason of the provision of the Civil Code that the title to all other property than realty owned by the decedent vests in the administrator for the benefit of heirs and creditors, it has been held, on the other hand, that no suit can be maintained by heirs at law of an estate for the recovery of personalty, or upon choses in action owned by the decedent at the time of his death. Hill v. Maffett, 3 Ga. App. 89 (59 S. E. 325); Denny v. Gardner, 149 Ga. 42 (99 S. E. 27); Wilson v. Brice, 23 Ga. App. 734 (99 S. E. 385); Buchholz v. Sapp, 148 Ga. 352 (96 S. E. 858). And this is true even though it be alleged that the decedent owed no debts (Brown v. Mutual Life Ins. Co., 146 Ga. 123, 90 S. E. 856; but see Jackson v. Green, 123 Ga. 254, 51 S. E. 284), for the reason that the title to personalty vests in the administrator. The statutes in regard to the status of the assets of a dissolved corporation do not make the distinction indicated above between the vesting of the title to realty and the vesting of the title to personalty. It is provided in the Civil Code, § 2245, as follows: “Upon the dissolution of a corporation, for any cause, all of the property and assets of every description belonging to' the corporation shall constitute a fund — first, for the payment of its debts, and then for equal distribution among its members. To this end the superior court of the county where such corporation was located shall have power to appoint a receiver, under proper restrictions, properly to administer such assets under its direction.” Section 4 of the act of 1910 (Ga. L. 1910, p. 106; Park’s Annotated Code of Georgia (1914), § 2823 (e)) provides that on the dissolution of any corporation under the. provisions of this law, the assets of such dissolved corporation may be administered under the provisions of section 2245, for the purpose of winding up the affairs of the corporation as therein provided, if found to be necessary.

It would seem that the title both to realty and to personalty which belonged to the corporation at its dissolution “descends” to the stockholders subject only to the claims of creditors. The status of the title is like that of realty which belonged to the estate of an intestate. It vests in the stockholders “as heirs at law.” If a receiver should be appointed he would not hold the title to the property, but would be only the custodian of the court for the purpose of paying the debts and of distribution, his right being similar to that of an administrator in realty. “An ordinary chancery receiver is not, as a rule, vested with the legal title to the property.” 23 R. C. L. 53, 57; Fountain v. Mills, 111 Ga. 122 (36 S. E. 428); Penton v. Hall, 140 Ga. 576 (79 S. E. 465). The petition in this case did not in terms allege that no receiver had been appointed. It did show, however, that the petitioners were the only stockholders, or the owners of all the capital stock, of the corporation, and that the company owed no debts. Was it necessary that the plaintiffs should allege the non-appointment of a receiver? It has been many times held by the courts of this State that heirs at law suing for realty must allege that no administrator has been appointed, or, if one has been appointed, that he consents to the action. Doris v. Story, 122 Ga. 611 (2) (50 S. E. 348); Wilson v. Wood, 127 Ga. 316 (56 S. E. 457); Crummey v. Bentley, 114 Ga. 746 (3) (40 S. E. 765); Purvis v. Askew, 148 Ga. 79 (95 S. E. 964); Smith v. Turner, 112 Ga. 533 (37 S. E. 705); Greenfield v. McIntyre, 112 Ga. 691 (38 S. E. 44); Isom v. Nutting, 153 Ga. 682 (3), 687 (113 S. E. 197); Lawrence v. Boswell, 155 Ga. 690 (118 S. E. 45). Since an administrator. does not take the title to the realty and is entitled to the possession and control of the same only for the purpose of paying debts and for distribution, the necessity for such allegations, in a suit for the recovery of realty in which all the heirs, they being sui juris, duly join, would seem to arise only because there is a presumption, in the absence of anything to the contrary, that there were debts against the decedent’s estate (Morgan v. Woods, 69 Ga. 599 (1), 601) and personalty to be administered. Averments in such an action that the decedent neither owed debts to be paid nor owned personalty to be administered would negative the necessity for an administration and show prima facie, without direct allegation to that effect, that none had been appointed.

Under analogous principles, it affirmatively appears from the petition in this case that an administration of the assets of the corporation through a receiver was unnecessary. Section 4 of the act of 1910 provides for the appointment of a receiver only in case of necessity. It is the general law that the power of appointing receivers should be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to. Civil Code (1910), §§ 4538, 5477; Fountain v. Mills, supra; Cooleewahee Co. v. Sparks, 148 Ga. 211 (96 S. E. 131); Georgia Portland Cement Co. v. Jackson, 139 Ga. 668 (77 S. E. 1055); Planters Oil Mill v. Carter, 140 Ga. 808 (79 S. E. 1120). We should not presume, therefore, in view of the facts alleged, that a receiver had been appointed, but rather the contrary. Where heirs at law sought to maintain actions for the recovery of personal assets of an estate or upon choses in action due thereto, the Supreme Court has said that the rule that the right to maintain -such an action was solely in the administrator was not obviated by averments that the decedent owed no debts, because if the heirs of a decedent should bring suit against one who was his debtor, alleging that there were no debts of the estate and no need for administration, the defendant would frequently have no means of knowing whether there were such debts or not, or of combating. such allegations. If the heirs should recover against him, and subsequently it should appear that there were in fact creditors, and an administrator should be appointed and bring suit against the same defendant, the former judgment would be no protection to him, so far as the rights of creditors were concerned; while a judgment for or against him in a suit by the legal representative of the estate would be conclusive upon heirs and creditors. Moughon v. Masterson, 140 Ga. 699 (5), 705 (79 S. E. 561); Brown v. Mutual Life Ins. Co., supra. This reasoning, however, appears to be pertinent only when the suit is by heirs for the recovery of personalty, as to which the title, as we have seen, vests in the administrator. We have found no case in which the same argument has been lodged against the effect of an averment that the decedent owed no debts, in a suit by heirs for realty the title to which is in the heirs and not in the administrator. The averments by the stockholders in this case that the corporation owed no debts at the time of its dissolution would be the legal equivalent of allegations by heirs in a suit for land that the decedent owed no debts and had no personalty, because, as we have stated, the title to both the realty and the personalty of the corporation pass alike to the stockholders; and if there is no necessity for a receiver to administer or distribute the real assets of the corporation, there is none as to its personal assets.

We have noted the general similarity, in its legal aspects, of the estate of a dissolved corporation to that of a deceased intestate, and more especially to the realty of such intestate. Oddly enough, but more specifically, the relation of the stockholders to the assets of the dissolved' corporation is still more similar to the relation of a surviving husband or wife to the real estate of a spouse who died intestate, leaving no lineal descendants. Civil Code (1910), §§ 3930, 3931 (1). In Jackson v. Butts, 148 Ga. 312 (96 S. E. 630), which was a suit in ejectment by a husband as sole heir at law of his deceased wife, the Supreme Court said that it was unnecessary for the trial court to “instruct the jury that they must believe that there was no administration on the estate of Mrs. Butts unless the estate owed debts.” It was further said in that case: “The law favors directness rather than the doing of an unnecessary thing. It would be a needless 'circuity of action to require the husband to go into the court of ordinary and have himself appointed administrator in order to recover land owned by his deceased wife, where he is sole heir at law, when the statute authorizes him to possess and control her whole estate under such circumstances without administration.” See also Owens v. Oliver, 148 Ga. 675 (97 S. E. 856); Towns v. Mathews, 91 Ga. 546 (2) (17 S. E. 955). Upon dissolution of a corporation its property, both real and personal, belongs to the stockholders as tenants or owners in common, and is subject to their control if all debts have been paid and no receiver has been appointed. Cummington Realty Associates v. Whitten, 239 Mass. 313 (4) (132 N. E. 53, 17 A. L. R. 527); Nelson v. Hubbard, 96 Ala. 238 (10) (11 So. 428, 17 L. R. A. 375); Huber v. Martin, 112 Wis. 412 (13) (105 N. W. 1031, 3 L. R. A. (N. S.) 653, 663); Havemeyer v. Superior Court, 84 Cal. 327 (24 Pac. 121, 10 L. R. A. 627, 636, 18 Am. St. R. 192); Lawman v. Lebanon V. R. Co., 30 Pa. St. 42, 72 Am. D. 685; 7 R. C. L. 735, § 745; 14-A Corpus Juris, 1153, § 3808. It appearing from the petition that the stockholders are in unison as to the disposition of the assets of the dissolved corporation, all of them having joined as plaintiffs in the action (see Overby v. Phelps, 150 Ga. 293, 103 S. E. 431), and it being alleged that the corporation did not owe any debts at the time of its dissolution, the nonexistence of the necessity for a receiver thus affirmatively appears.

We conclude that in such a case the appointment of a receiver should not be presumed, but that prima facie the right to sue upon the obligations was in the plaintiff stockholders, and that the suit could be brought in their own names. What is said by the Supreme Court in White v. Davis, 134 Ga. 274 (67 S. E. 716), with regard to the lack of power of the superior court to dissolve a corporation appears to have been met by the subsequent act of the General Assembly approved on August 13, 1910 (Ga. L. 1910, p. 106).

The conclusions which we have reached, we believe, are thoroughly consistent with the decisions in Venable v. Southern Granite Co., 135 Ga. 508 (69 S. E. 822, 32 L. R. A. (N. S.) 446), and Thurman v. Walraven, 16 Ga. App. 521 (2) (85 S. E. 685), to the effect respectively that the dissolution of a corporation by the expiration of its charter pending a suit against it abates the action, and that where a corporation surrenders its charter, a pending suit in which it is plaintiff dies with the charter. It was held in Houston v. Redwine, 85 Ga. 130 (11 S. E. 662), that where, pending an action in behalf of a corporation, the corporation expired by the limitation of its charter, a receiver appointed might be made a party plaintiff, so that the action could proceed. This is not to say that no other could be made a new party plaintiff except a receiver. See Towns v. Mathews, supra; Frost v. Smith, 148 Ga. 840 (4) (98 S. E. 471). There is also a difference between that case and one such as this, where there is no question as to the abatement of a suit and the propriety of making new parties, but where the only question is whether the suit could be originally brought by the stockholders, where no necessity for a receiver exists.

The court erred in dismissing the petition.

Judgment reversed.

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


text:
    15351.
    Joiner v. Bennett, superintendent, etc.
    Decided July 14, 1924.
    Complaint; from city court of Millen — Judge Woodrum. December 31, 1933.

      A. S. Anderson, for plaintiff in error.

      G. G. Delete, Hull & Barrett, contra.
   Stephens, J.

This ease is controlled by the decision of this court in Brinson v. Tennessee Chemical Co., 32 Ga. App. 456 (123 S. E. 731).

Judgment affirmed.

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


text:
    15653.
    Marshall, adm'r, v. Royal Insurance Company.
   Stephens, J.

1. There being no brief of the evidence in the record in this case, it is impossible ■¡for this court to consider the general grounds of the motion for a new trial and an exception to the direction of a verdict, which are the only grounds relied upon by the plaintiff in error.

2. Since it appears from the certificate of the clerk of the trial court that no brief of the evidence is on file in his office, and that therefore it is impossible for a brief of the evidence to be transmitted to this court, it would be futile for this court to pass an order directing the clerk of the trial court to supplement the record by transmitting to this court a copy of the brief of the evidence.

Decided July 14, 1924.

Complaint; from Taylor superior court — Judge Munro. July 7, 1923.

G. B. Marshall, Jere M. Moore, for plaintiff in error.

Homer Beeland, contra.

Writ of error dismissed.

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


author: Luke, J.

text:
    14668.
    Caldwell v. Central of Georgia Railway Company.
    Decided July 15, 1924.
    Garnishment; from Bibb superior court — Judge Malcolm D. Jones. April 28, 1923.

      Walter DeFore, James 0. Fsies, for plaintiff.

      Turpin & Lane, for defendant.
   Luke, J.

1. “Under the ruling . . in Bates v. Bates, 74 Ga. 105, the exemption from garnishment provided by the act of 1914 (Acts 1914, p. 62) is ineffective as against a decree for alimony.” 158 Ga. 392 (123 S. E. 708).

2. Under the foregoing ruling by the Supreme Court in answer to a question certified by this court in this case, the trial judge erred in holding that the statutory exemption of $1.25 per day plus fifty per cent, of the overplus was allowable in the garnishment proceedings based upon a judgment for temporary alimony and attorney’s fees for the wife and child of the defendant, and in not rendering judgment for the entire amount admitted by the garnishee to be due the defendant as unpaid wages.

Judgment reversed.

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


author: Broyles, C. J.

text:
    14670.
    Johnson v. Morris.
   Broyles, C. J.

1. “In an action to recover damages for an aggravated assault and battery it is error for the trial judge to instruct the jury that, if they should find the assault unprovoked and aggravated, they may give to the plaintiff such damages as their enlightened consciences may dictate, to punish the defendant and deter him from similar acts in the future. In a tort accompanied with aggravating circumstances the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff, but not to punish the defendant, nor for both of the above-named purposes.” Johnson v. Morris, 158 Ga. 403 (123 S. E. 707).

Decided July 15, 1924.

Action for damages; from Floyd superior court — Judge Wright. May 8, 1923.

Nathan Harris, for plaintiff in error.

G. H. Porter, contra.

2. Under tlie above ruling tlie charge of the court upon the subject of punitive damages was reversible error.

3. The other grounds of the amendment to the motion for a new trial are without substantial merit.

4. The former judgment of affirmance in this case (30 Ga. App. 673, 118 S. E. 766), is hereby vacated, and the judgment of the trial judge, overruling the motion for a new trial, is reversed.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bloodwokth, J.

text:
    15490.
    Alexander v. The State.
   Bloodwokth, J.

1. The charge of the court on alibi, when considered in connection with the remainder of the charge and in the light of all the evidence, contains no error that requires a reversal of the judgment.

2. The charge on reasonable doubt is complained of in the 4th and 5th special grounds of the motion for a new trial, the movant separating a paragraph of the charge and complaining of the disconnected portions thereof. The charge in its connected form as given on this subject is as follows: “A reasonable doubt is such a doubt as an honest juror would entertain or does entertain in his search after the truth, from the evidence produced to you in connection with the defendant’s statement. A reasonable doubt may arise from the evidence, a want of evidence, a conflict in the evidence, or it may be engendered by the defendant’s statement.’! Under this charge a reasonable doubt could arise from the evidence and the defendant’s statement considered together, or from either considered alone. The judge in another portion of his charge instructed the jury that “the witness’s credibility is left entirely for you to determine.” There is no merit in these grounds of the motion.

3. The instruction that an impeached witness “may be sustained by proof of general good character, the effect of the evidence to be determined by the jury,” was alleged to be reversible error, for the reason that there was no evidence as to the general good character of any witness sought to be impeached. This contention is answered adversely to the movant by the decision in the case of Mills v. Pope, 20 Ga. App. 820 (2) (93 S. E. 559). See also Scarboro v. State, 24 Ga. App. 27 (2), 28 (99 S. E. 637), and cases cited. The opinion in Hart v. State, 93 Ga. 160 (20 S. E. 39), is based on the particular facts of that ease, and does not conflict with the ruling here made.

4. It is insisted that in the charge on impeachment the court should have instructed the jury “that the testimony of an impeached witness should be entirely disregarded by the jury unless the same is corroborated by other credible testimony or by the facts and circumstances of the case.” The court did charge: “If you believe a witness has been impeached, it would be your duty to disregard the testimony of the witness so impeached, . . and the witness’s credibility is. left entirely for you to determine.” This meets the requirements of the law in this respect.

Decided July 15, 1924.

Rehearing denied August 8, 1924.

Accusation of assault and batteryfrom city court of Macon— Judge Johnson presiding. February 23, 1924.

W. A. McClellan, John P. Ross, for plaintiff in error.

Roy W. Moore, solicitor, contra.

5. The charge complained of in the 8th special ground does not require a reversal on the ground that it intimates an opinion as to the guilt of the accused.

6. An instruction not volunteered but given in response to a request of the jury was as follows: “Now your further inquiry is as to whether or not the jury would be permitted to recommend mercy. The court charges you that you would have a right to put that in your verdict, and it would not void the verdict, but it isn’t binding on the court, and the court may disregard it if it wishes.” Such charge does not vitiate the verdict, and is not ground for a reversal. See Wall v. State, 69 Ga. 766 (3).

7. Complaint is made that one of the jurors who tried the case was disqualified because of prejudice against the accused. The juror had qualified on the voir dire. On the hearing of the motion for a new trial the State made a counter-showing, and on this showing the juror swore that the statement attributed to him in the affidavit of one of the witnesses for the defendant was “literally and absolutely false,” and that the affidavit of the other witness for the defendant was not “true as stated.” The juror further swore: “that when the case of the State v. J. E. Alex- ' ander was called, he did not know J. E. Alexander and knew nothing about his case; . . that he went into said trial as a juror with no opinion formed or expressed as to the guilt or innocence of the defendant from having heard any of the evidence, or having seen any of the occurrences connected with the assault and battery, and that he had absolutely no prejudice or bias resting on his mind either for or against the defendant, and that his mind was perfectly impartial between the State and the accused, and that he was determined to reach a verdict in the case from the evidence in the case, and that the verdict he reached and assented to was based absolutely upon the evidence, the prisoner’s statement, and the charge of the court.” The integrity of the juror was amply sustained by accompanying affidavits. The judge did not err in overruling these grounds of the motion. “The judge on the hearing of such motion is the trior of the competency of the jurors; and where the jurors attacked deny making the statements attributed to them on oath, and under the conflicting evidence the judge finds that the jurors were competent, his discretion will not be controlled unless abused.” Williamson v. State, 143 Ga. 267 (84 S. E. 584), and cases cited. Sec also Mitchum v. State, 11 Ga. 615 (9).

8. There rvas evidence to authorize the verdict.

Judgment affirmed.

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


text:
    15573.
    Hubbard v. Walker, Governor.
    Decided July 15, 1924.
    Forfeiture of recognizance; from Forsyth superior court — Judge Blair. March 27, 1924.

      John T. Dorsey, for plaintiff in error.

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

1. Where the principal in a criminal recognizance conditioned for his appearance to answer a specific criminal charge therein designated is subsequently arrested for an. entirely different and distinct offense, and, being found guilty of the latter offense, is delivered into the custody of the State, to serve a term upon the chain-gang in accordance with the sentence of a court of competent jurisdiction of this State, and where, after entering upon the service of his sentence, he is paroled and the bond is not forfeited until after the term of his sentence has expired, the sureties on the bond are not ipso facto discharged. S'ee, in this connection, Benson v. Harris, 19 Ga. App. 328 (2) (91 S. E. 491), and the criticism there made of the decision in Cooper v. Brown, 10 Ga. App. 730 (73 S. E. 1101).

2. Under the foregoing ruling and the facts alleged in the answer of the defendant to the nule nisi and scire facias issued in the instant case, the court did not err in striking, on motion of the solicitor-general, the defendant’s answer and in thereafter rendering judgment against him.

Judgment affirmed.

Broyles, C. J., amd Bloodworth, J., concur.


author: Bloodworth, J.

text:
    15574.
    Tyson v. North America Fibre Products Co.
    Decided July 15, 1924.
    Complaint; from Calhoun superior court — Judge Shurley presiding. February 2, 1924.

      A. L. Miller, for plaintiff in error. E. L. Smith, contra.
   Bloodworth, J.

The motion for a new trial in this case is based upon the general grounds only. There is evidence to support the verdict; no error of law appears, and' the judgment is

Affirmed.

Broyles, C. J., and Luhe, J., concur.


text:
    15575.
    Central of Georgia Railway Co. v. Martin.
   Broyles, C. J.

1. The petition set forth a cause of action and the general demurrer was properly overruled.

2. When the two excerpts from the charge, as complained of in the motion for a new trial, are considered in connection with the entire charge and the facts of the case, no material error appeal’s.

Decided July 15, 1924.

Damages; from Baldwin superior court — Judge Park. April 5. 1924.

Allen & Pottle, T. M. Cunningham, for plaintiff in error.

A. L. Henson, Sibley & Sibley, contra.

3. Under all the facts of the ease it ivas a question for the jury whether the alleged acts of the defendant’s negligence were the proximate cause of the plaintiff’s injuries. See, in this connection, Georgia Ry. &c. Co. v. McAllister, 126 Ga. 447 (54 S. E. 957, 7 L. R. A. (N. S.) 1177); Georgia Ry. &c. Co. v. Norris, 135 Ga. 838, 845 (70 S. E. 793).

4. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


author: Bkoyles, C. J.

text:
    15576.
    Brice v. The State.
    Decided July 15, 1924.
    Accusation of possession of liquor, etc.; from city court of Macon —Judge Gunn. April 11, 1924.

      Harl W. Butler, for plaintiff in error.

      Roy W. Moore, solicitor, contra.
   Bkoyles, C. J.

The only assignment of error is upon the overruling of the motion for a new trial, and the motion contained the usual general grounds only. The evidence authorized the verdict and this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15577.
    Dunn v. The State.
   Luke, J.

1. “In the absence of evidence to the contrary, it may be inferred that a liquor called for and delivered and paid for as whisky is whisky, and therefore intoxicating liquor.” Tompkins v. State, 2 Ga. App. 639 (58 S. E. 1111). See also Lewis v. State, 6 Ga. App. 779 (65 S. E. 842); Howard v. State, 7 Ga. App. 61 (2) (65 S. E. 1076). Under this ruling the admission of evidence as to which complaint is made in the motion for a new trial was not error.

2. Failure to instruct the jury on the law of impeachment of witnesses is complained of, but it is not shown that such a charge was requested. It is well settled that it is not reversible error for the court to fail to instruct the jury upon that subject, in the absence of a timely written request to do so. Tobin v. State, 29 Ga. App. 305 (3) (115 S. E. 36), and cit.

3. The refusal to declare a mistrial because of the remarks of the prosecuting attorney does not, under the facts of this case, require a reversal of the judgment below.

Decided July 15, 1924.

Accusation of possession and sale of liquor; from city court of Macon — Judge Gunn. April 11, 1924.

The evidence referred to in paragraph 1 of the decision is described in the motion for a new trial as “a bottle and its contents, the bottle and its contents alleged to have contained whisky, and having thereon a label, identified by the witness Iiagan as a label claimed to have been placed on a bottle that he purchased from the defendant on December 24, 1923.” Hagan testified (among other things) as follows: “I told Mr. Dunn (the defendant) I wanted a half pint of whisky. He went back in the rear of the store and brought back the half pint with him. I gave him seventy-five cents for it. I put the bottle in my pocket. This is the bottle that I got from his store. I put the label on this bottle myself. . . I bought it on the 24th. . . I carried the bottle home with me. I placed the bottle in my room on the mantelpiece with other bottles. . . The bottles staid in my room at my house from the 24th to the 26th. I turned the bottles over to Mr. Yallette at the City Hall. . . I did not open the bottle. . . I did not smell the contents. . . This looks like the same bottle; this is the label that I put on the bottle. I cannot say whether anybody changed the contents or tampered with it, or not. They could have; I can’t say.” Yallette testified that this bottle was brought to his office by Hagan and that he (the witness) locked it in a safe and remained-in possession of it ever since, and (upon examination of its contents at the trial) that it contained whisky. The admission of the bottle as evidence was objected to by counsel for the defendant, on the ground that the evidence failed to show that its contents were the same when received by Yallette from Hagan as when received from the defendant by the witness; that it appeared that other persons might have tampered with it and changed its contents.

The prosecuting attorney’s remarks referred to in paragraph 3 of the decision were as follows: “A short time ago some people were crying for the enforcement of the prohibition law, criticising the officers of your courts and the jurors for not enforcing the law and punishing those charged with violating the prohibition law. Now those people are asking you to acquit those who are guilty of violating the prohibition law, and you have heard the witnesses in this case condemned for bringing the evidence here to you.” The motion for a mistrial was based on the grounds that this statement Avas unfair and prejudicial to the defendant, and “Avas outside the record, and not based on any evidence in the case, and Avas tantamount to an expression by the prosecuting officer that the movant was guilty.” The court “refused to reprimand the solicitor or instruct the jury not to be influenced by this statement of the solicitor, and stated that the solicitor was within his rights.”

4. The evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

Hallie Bell, J. F. Urquhart, T. A. Jacobs Jr., for plaintiff in error.

Roy W. Moore, solicitor, contra.


author: Bloodwortit, J.

text:
    15578.
    WILSON v. THE STATE.
    In reopening the ease and allowing the introduction of additional evidence the trial judge did not abuse his discretion.
    The conviction was authorized by the evidence, and the court did not err in denying a new trial.
    Decided July 15, 1924.
    Accusation of violating liquor law; from city court of Macon— Judge Gunn. April 11, 1924. •

      Barí W. Butler, for plaintiff in error.

      Roy W. Moore, solicitor, contra.
   Bloodwortit, J.

1. The judge did not abuse his discretion in • reopening the case and allowing the evidence introduced of which complaint is made in the first special ground of the motion for a new trial. In Atlantic Coast Line R. Co. v. Blalock, 8 Ga. App. 44, 48 (68 S. E. 743), Judge Bussell said: “As, in the broader light of out advancing intelligence, we more plainly see that the object of the trial is to reach the truth, the less is a progressive profession inclined to tolerate the observance of any technical rule which will tend only to test the skill and vigilance of the counsel, when it is at the expense of the real justice of the case.” In Ellenberg v. Sou. Ry. Co., 5 Ga. App. 389, 392 (63 S. E. 240); Judge Powell, citing the code section which is now § 5728 of the Civil Code (1910), said: “The trial of a case is not a mere game for testing the skill and vigilance of contesting lawyers, but is an investigation instituted for the purpose of ascertaining the truth.” See, in this connection, Cone v. American Surety Co., 29 Ga. App. 676 (6), 680 (116 S. E. 648), and cases cited.

2. There is no merit in the second special ground of the motion for a new trial.

3. The evidence is ample to support the verdict.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


author: Broyles, O. J.

text:
    15581.
    Culverhouse et al. v. Watkins Company.
    Decided July 15, 1924.
    Complaint; from Crawford superior court — Judge Malcolm D. Jones. March 31, 1924.
    The contract in question is similar to the one set out in the case cited in the foregoing decision.

      B. D. Feagin, for plaintiffs in error.

      Jones, Parle & Johnston, G. W. Garrett, contra.
   Broyles, O. J.

The contract sued upon in the instant case was one of suretyship, and not one of guaranty (Watkins Medical Co. v. Marbach, 20 Ga. App. 691, 93 S. E. 270), and the court did not err in any of its rulings upon the demurrers and other pleadings, or upon the admissibility of evidence, or in directing a verdict in favor of the plaintiff and against all the defendants for the full amount sued for.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    15583.
    Sellers v. Tippins et al.

   Bloodworth, J.

1. “ Tt must affirmatively appear from the bill of exceptions or the entries thereon, or the record, that the bill of exceptions was presented within the time prescribed by law.’ Evans v. State, 112 Ga. 763 (38 S. E. 78); Harris v. State, 117 Ga. 13 (43 S. E. 419); Crawford v. Goodwin, 128 Ga. 134 (57 S. E. 240); Glawson v. State, 140 Ga. 14 (78 S. E. 188).” Jones v. State, 146 Ga. 8 (1) (90 S. E. 280).

2. “ ‘Where it does not affirmatively appear from the record that the bill of exceptions was tendered upon a- date prior to the date of the judge’s certificate, it will be presumed that the certificate bears the date upon which the bill of exceptions was tendered, and the writ of error will be dismissed if a tender on that date was not within the time prescribed bylaw.’ Crawford v. Goodwin, 128 Ga. 134 (57 S. E. 240).” Jones v. State, 146 Ga. 8 (2) (90 S. E. 280).

Decided July 15, 1924.

Complaint; from city court of Baxley — Judge Speer. March 8, 1924.

V. P. Padgett, for plaintiff.

O. H. Parlcer, for defendants.

3. It appearing from tlie recitals in the bill of exceptions that it was not tendered to the judge until April 9, 1924, thirty-two days after March 8, 1924, at which time the motion for a new trial was overruled, this court has no jurisdiction to entertain the writ of error.

Writ of error dismissed.

Broyles, G. J., and Luke, J., eoneur.


author: Bboyles, C. J.

text:
    15584.
    Arbuckle Brothers v. Jaques & Tinsley Company.
    Decided July 15, 1924.
    Certiorari; from Bibb superior court — Judge Malcolm D. Jones. March 13, 1924.

      Powers'& Powers, P. W. Maynard, for plaintiffs.

      Jones, Parle & Johnston, for defendant.
   Bboyles, C. J.

Under the facts of the case as disclosed by the record, and especially by the answer of the trial magistrate to the petition for certiorari, it does nót appear that the judge of the superior court erred in overruling the certiorari.

Judgment affirmed.

Luke and Bloockoortli, JJ., eoneur.


text:
    15587.
    Garrett v. Rackley.
    Decided July 15, 1924.
   Bboyles, C. J.

1.' “The writ of certiorari will not lie to correct errors committed by a justice of the peace in proceedings under the Penal Code, §§ 1331 et seq., against the putative father of a bastard child, where judgment is rendered requiring the defendant to give security for the support of the child, and binding him over to the superior court upon his failure to give such security. Such is the ruling in the ease of Hyden v. State, 40 Ga. 476; and upon formal review of that decision” the Supreme Court declined to overrule it. Strickland v. Hamilton, 148 Ga. 820.

(a) In the instant case the plaintiff in error contends that while, under the above ruling, he cannot except by certiorari to the judgment of the justice of the peace binding him over to the superior court, he can so except to the interlocutory rulings and findings of the justice of the peace. This contention is obviously without merit.

Judgment ajfh'med.

Luke and Bloockoortli, JJ., concur.

Certiorari; from Forsyth superior court — Judge Blair. March 28, 1924.

E. D. Kenyon, for plaintiff in error.

J. P. Fowler, contra.


author: Bloodworti-i, J.

text:
    15589.
    BAUGH v. THE STATE.
    The conviction of vagrancy was not authorized by the evidence.
    Decided July 15, 1924.
    Accusation of vagrancy; from city court of Floyd county — Judge Bale. April 7, 1924.
    Policemen and others testified that they had seen the defendant very often on the streets of Rome during “the last two months,” sometimes walking, sometimes standing in crowds, and had never seen him at work, and knew of no property or income that he had, and did not know that he had any means of a fair, honest, and reputable livelihood, and that they knew of no physical defect or ailment that would prevent him from performing manual labor. The chief of police testified: “I know he has no property or income of any sort. He is sound physically and able to do manual labor. Most of the time I would see him around Davis’ livery stable.” A witness for the defendant testified: “I am a lock and gun smith and a mechanic by trade. . . Bob Baugh’ (the defendant) has been working in my shop for the last two months, that is ever since January 1st of this year. For the first three weeks that he worked for me I paid him $10 per week, but since my business has increased and the season opened for putting up awnings I have made a trade with him whereby he can make more. I give him one-third of the profits on all the awning work, and pay him extra for any work he will do for me in the shop or other jobs that I may have. I owe him for extra work about $6. . . Bob Baugh ought to make from $15 to $25 per week at this business as his part.” The witness testified that he had several orders for awning's to be put up as soon as the covers would arrive, and had ordered awnings for seven or eight jobs. Substantially the main facts stated by the last witness were repeated by the defendant in his statement at the trial, and he said: “I work when I can find it.”

      W. J. Nunnally, for plaintiff in error.

      James Maddox, solicitor, contra.
   Bloodworti-i, J.

“The circumstantial evidence introduced by the prosecution was purely negative in its character, and the inference of the defendant’s guilt, which might have arisen from this negative testimony, was so rebutted by positive proof, not inconsistent therewith, that he had earned and had received a sufficient amount of money to maintain himself, that the verdict finding him guilty of vagrancy was not authorized by law, and a new trial should have been granted.” Leonard v. State, 5 Ga. App. 494 (63 S. E. 530). See Jacobs v. State, 1 Ga. App. 519 (57 S. E. 1063); Mooney v. State, 32 Ga. App. 448 (123 S. E. 734), and cases cited. Under the rulings in the foregoing cases, the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    15590.
    Crider v. Matthews.
    Decided July 15, 1924.
    Lien foreclosure; from Eulton superior court — Judge E. D. Thomas. February 19, 1924.

      J. V. Poole, B. H. Sullivan, for plaintiff in error.

      Etheridge, Sams & Etheridge, contra.
   Broyles, C. J.

Under all the particular facts of the case as disclosed by the record, the verdict was authorized by the evidence; and there is no substantial merit in the special grounds of the motion for a new trial. The overruling of the motion was not error.

Judgment affirmed.

Luke and Bloodworth, J.J., concur.


text:
    15593.
    Fuller v. Fuller.
    Decided July 15, 1924.
   Bloodworth, J.

1. There is nothing in the alleged newly discovered evidence that takes it out of the general rule that such evidence, when merely cumulative and impeaching -in its character, will not require the grant of a new trial.

2. There was some evidence to support the verdict.

Judgment affirmed.

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

Trover; from Gordon superior court — Judge Tarver. March 22, 1924.

J. II. Paschall, for plaintiff in error.

A. L. Henson, contra.


text:
    15594.
    Green & Son v. Kell Company.
    Decided July 15, 1924.
    Complaint; from Spalding superior court — Judge Searcy. March 28, 1924.

      Byars & Wood, W. II. Connor, for plaintiffs in error.

      A. K. Maddox, Cleveland & Goodrich, contra.
   Broyles, C. J.

The defendant admitted the account sued upon but denied that he owed the entire amount, since he had been specially damaged on account of a breach of contract by the plaintiff. The defendant’s cross-petition, however, contained no allegation of general damages and no prayer for nominal damages, and, the evidence failing to show that the alleged special damages were recoverable, the court did not err in directing a verdict in favor of the plaintiff for the full amount of principal and interest sued for. See, in this connection, George B. Curd Co. v. Meigs Lumber &c. Co., 25 Ga. App. 504 (103 S. E. 740), and citations.

Judgment affirmed.

Luke and Bloochoorth, JJ., concur.


text:
    15595.
    Evans v. City of Dalton.
    Decided July 15, 1924.
    Petition for certiorari; from Whitfield superior court — Judge Tarver. April 15, 1924.

      William B. & W. Gordon Mann, for plaintiff in error.

      John C. Mitchell, contra.
   Broyles, C. J.

The refusal of the court to sanction the certiorari was not error. Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15596.
    COOK v. BOWDEN et al.

    The affidavit for the foreclosure of a mechanic’s lien in this ease does not allege facts sufficient to show that the work was done in the manufacture or repair of personal property; and the demurrer attacking the affidavit on this ground was properly sustained.
    Decided July 15, 1924.

      Lien foreclosure; from McDuffie superior court — Judge Franklin. April 4, 1924.

      L. D. McGregor, for plaintiff.

      J. B. Boivden, J. B. & T. B. Burnside, for defendants.
   Luke, J.

This was a suit to foreclose a mechanic’s lien. The ■plaintiff’s affidavit of foreclosure alleged the following facts: “Deponent is a mechanic, and that P. A. and J. R. Bowden, of Mc-Duffie county, Georgia, is indebted to this deponent in the sum of one hundred and fifty-one 15/100 ($151.15) dollars. Said sum is due this deponent for the taking up and removing one 35 horse boiler, one 35 horse-power engine, one No. 2 Ladelle sawmill a distance of four miles and a half and setting the same up ready for operation with the exception of finishing walling up the boiler. That the said amount is due and unpaid, the same having become due upon the completion of the work, and this deponent did have recorded upon the books in the clerk’s office of the superior court of McDuffie county within ten days after the completion of his work his mechanic’s lien. That this deponent has made a personal demand upon the said P. A. and J. R. Bowden for the payment of the above-stated amount after the completion of his contract, and which amount was refused by the said P. A. and J. R. Bowden,” etc. The defendant filed a special demurrer upon several grounds, one of which was: “Because it does not appear from said affidavit that plaintiff either constructed or repaired or furnished any material for the construction or repairing the personal property upon which plaintiff is seeking to foreclose, but the said affidavit alleges that the amount therein claimed to be due became due ‘for the taking up and removing one thirty-five horse-power boiler; one thirty-five horse-power engine; one No. 2 Ladelle sawmill a distance of four and a half miles, and setting the same up ready for operation with the exception of finishing walling up the boiler.’ Said foreclosure is being sought as the foreclosure of a mechanic’s special lien, but said affidavit does not allege facts sufficient to entitle plaintiff to a mechanic’s lien.” The trial judge sustained the demurrer and dismissed the foreclosure proceedings, and the plaintiff excepted. The lien laws are in derogation of common law and are to be strictly construed. One who claims a lien must bring himself clearly within the law. The affidavit which- was the basis of the instant' suit does not allege facts sufficient to show that the work done ivas done in tlie manufacture or repair of personal property. This omission was fatal, since section 3354 of the Civil Code (1910) provides that “all mechanics of every sort, for work done and material furnished in manufacturing and repairing personal properly, shall have a special lien on the same,” etc. (Italics ours.) The facts alleged in the affidavit not being sufficient to be the basis of a proceeding to foreclose a mechanic’s lien, the court did not' err in sustaining the defendant’s demurrer attacking the affidavit upon this ground.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


author: Luke[ J.

text:
    15597.
    Cook v. Bowden et al.

    Decided July 15, 1924.
    Lien foreclosure; from McDuffie superior court — Judge Franklin. April 4, 1924.

      L. D. McGregor, for plaintiff.

      J. B. & T. B. Burnside, J. B. Bowden, for defendants.
   Luke[ J.

1. “One who merely cuts and hauls logs to a sawmill, and claims no title to such timber, cannot enforce a lien for furnishing supplies to a sawmill. ‘Lien laws, being in derogation of the common law, are to be strictly construed, and he who claims a lien must show that there was a contract, by the terms of which he is entitled to the lien he claims.’ The contract in this ease may have entitled the plaintiff to a laborer’s lien, but does not establish a lien for furnishing supplies to a sawmill.” Trapp v. Watters, 6 Ga. App. 480 (65 S. E. 306).

2. Under the foregoing ruling the trial court did not err in sustaining the defendant’s demurrer to the plaintiff’s affidavit and dismissing the foreclosure proceedings, it clearly appearing from the petition that the plaintiff was proceeding under section 3358 of the Civil Code of 1910.

Judgment, affirmed.

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


text:
    15600.
    Shippey et al. v. Walters.
   Broyles, C. J.

1. In the light of the entire charge and the facts of the ease, the alleged errors of omission and commission in the charge of the court, and the rejection of the testimony, as complained of in the motion for a new trial, do not require a reversal of the judgment below.

2. Under the pleadings and the evidence the jury were authorized to find that the parties had entered into a valid, binding contract, and that the contract had been breached by the defendants. The jury were also authorized, from the evidence and the reasonable inferences and deductions arising therefrom, to include in their verdict for the plaintiff' the $150 profit item, and the other items of expense, sued for. However, the total amount of all the items sued for amount to $2 less than the amount of the verdict returned. If the plaintiff, when the remittitur from this court is made the judgment of the lower court, will write off from the judgment $2 as principal and 24 cents as interest, the judgment will be affirmed; otherwise it will be -reversed.

Decided July 15, 1924.

Action for breach of contract; from Fulton superior court— Judge E. D. Thomas. March 22, 1924.

Dorsey, Brewster, Ilowell & Heyman, Hugh Howell, W. P. Bloodworth, for plaintiffs in error.

J. K. Jordan, contra.

Judgment affirmed, on condition.

Luke and Bloodivorth, JJ., concur.


text:
    15602.
    Wyatt v. The State.
    Decided July 15, 1924.
    Indictment for assault with intent to murder; from Fulton superior court — Judge W. E. Thomas presiding. March 24, 1924.

      O. Q. Battle, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, R. II. Pharr, contra.
   Luke, J.

1. The alleged errors of omission and commission in the charge of the court, complained of in the motion for a new trial, do not, when considered in the light of the entire charge and the facts of the case, require a reversal of the judgment below.

2. The evidence authorized the verdict, and for no reason assigned was it error for the court to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodivorth, J., concur.


author: Bloodwoetii, J.

text:
    15606.
    Morgan et al. v. Hutcheson.
   Bloodwoetii, J.

1. Exceptions to the refusal of the judge to allow an amendment to the pleadings must be preserved by exceptions pendente lite, unless the bill of exceptions is certified within thirty days from : the date, of the judgment of which complaint is made. In this ease . the amendment was refused on February 5, 1924, no exceptions pendente lite were filed, and the bill of exceptions was tendered to the judge on April 12, 1924, and certified on April 25, 1924. There being no appropriate exceptions to the refusal of the judge to allow the amendment to the plea, the question of the correctness of the court’s ruling in this particular is not before this court for determination. Haley v. Block, 20 Ga. App. 528 (2) (93 S. E. 148).

Decided July 15, 1924.

Action for damages; from Montgomery superior court — Judge Graham. March 28, 1924.

W. B. Kent, for plaintiffs. L. C. Underwood, for defendant.

2. “Where a suit has been dismissed by the plaintiff, in order to bring a second suit for the same cause of action the plaintiff must pay the costs or file a pauper affidavit showing his inability to do so. A failure in this regard furnishes ground for a plea in abatement. White v. Bryant, 136 Ga. 423 (71 S. E. 677),” Collins v. Bulkhalter, 144 Ga. 695 (87 S. E. 888). See Wright v. Jett, 120 Ga. 995 (2) (48 S. E. 345); Williams v. Holland, 9 Ga. App. 494 (71 S. E. 760); Civil Code (1910), §§ 5625, 5626. Under the sections of the code just cited, the rulings in the foregoing cases, and the qualifying note of the trial judge to the amendment to the motion for a new trial, there is no merit in said amendment, and the judge properly directed a verdict in favor of the plea in abatement.

Judgment affirmed.

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


text:
    15607.
    Central of Georgia Railway Co. v. Houser.
    Decided July 15, 1924.
    Action for damages; from city court of Houston county — Judge Riley. February 11, 1924.

      Brown & Brown, for plaintiff in error.

      G. L. Shepard, contra.
   Broyles, C. J.

Upon the trial of the case the court, by agreement of the parties, presided, without the intervention of a jury, and the judgment rendered in favor of the plaintiff was authorized by the law and the evidence. Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodwortii, J.

text:
    15609.
    Dixon v. The State.
    Decided July 15, 1924.
    Indictment• for assault with intent to murder; from Houston superior court — Judge Mathews. January 26, 1924.

      Marx Eum, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Bloodwortii, J.

There is no merit in any of the special grounds of the motion for a new trial; the evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Luhe, J., concur.


text:
    15618.
    Cleveland v. The State.
    Decided July 15, 1924.
    Indictment for possession of liquor; from Hart superior court— Judge W. L. Hodges. April 17, 1924.

      J. A. McDuf, for plaintiff in error.

      A. 8. Shelton, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence and the overruling of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodmorth, JJ., eoneur.


text:
    15626.
    Clore v. The State.
    Decided July 15, 1924.
    Conviction of fornication; from Whitfield superior court — Judge Tarver. April 26, 1924.

      George G. Glenn, John G. Mitchell, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Bloodwoetii, J.

The motion for a new trial contained no special grounds. Under the ruling in Avery v. State, 12 Ga. App. 562 (77 S. E. 892), the evidence is sufficient to support the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., eoneur.


author: Beoyles, C. J.

text:
    15627.
    Painter v. The State.
    Decided July 15, 1924.
    Conviction of fornication; from Whitfield superior court — Judge Tarver. April 26, 1924.

      George G. Glenn, John G. Mitchell, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Beoyles, C. J.

The motion for a new trial contained the usual general grounds only and the evidence authorized the verdict.

Judgment affirmed.

T^uke and Bloodworth, JJ., eoneur.


text:
    15641.
    Sorrow v. The State.
    Decided July 15, 1924.
    Indictment for carrying pistol; from Madison superior court— Judge W. L. Hodges. April 19, 1924.

      Comers Q. Moore, for plaintiff in error.

      A. 8. Slcelion, solicilor-general, contra.
   Luke, J.

' 1. That the court while charging the jury entered, into a colloquy with the solicitor-general and counsel for the defendant and made statements which amounted to an expression of opinion as to the facts of the case does not require a reversal of the judgment below, since the court, immediately after making the statements complained of, explicitly instructed the jury not to consider them. Furthermore, counsel for the plaintiff in error, having failed to make a motion for a mistrial, cannot, after the conviction of his client, raise in a motion for a new trial the question as to the prejudicial nature of the remarks complained of. Perdue v. State, 135 Ga. 277 (69 S. E. 184).

2. The genei’al grounds of the motion for a new trial, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment ■affirmed.

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


author: Blood wokth, J.

text:
    15642.
    Parsons v. The State.
   Blood wokth, J.

1. For no reason assigned did the court err in charging the jury: “If there are»material conflicts in the evidence, you ought to endeavor to reconcile all of such conflicts, if you can do so, so as to make each and every witness speak the truth, and without imputing perjury to anybody, the law presuming they are all honest and tell the truth, until the contrary is made to appear by proof.”

2. When the court concluded the charge to the jury the indictment was handed to them. Attached to it was an affidavit made before the presiding judge by Richard Caldwell, a witness for the State, upon which was issued the original warrant under which the accused was arrested, and in which Caldwell swore that “in the early fall of 1923 in said [Whitfield] county, he bought a pint of whisky from Elmer Parsons for $1.25.” Soon after the jury retired counsel for the accused discovered that the indictment, then in the hands of the jury, had attached to it this affidavit, and asked the court to “send for the indictment and have detached from it the affidavit.” This was done. Counsel then requested the court to instruct the jury that if they had examined the paper they would disregard it, as it had not been introduced in evidence. This request was refused, the court stating that the affidavit found its way into the hands of the jury by the oversight of both the solicitor-general and counsel for the. defendant, and that it would have been detached at the request of either of them. The court said also, “Just take the indictment back to them [the jury] with the affidavit detached. I don’t think that could have influenced them one way or the other. It is a mere repetition of what he has testified here.” The record shows that the witness Caldwell swore on the trial that he had bought a pint of whisky from the defendant in Whitfield county “along last October, a little before October,” and paid him $1.25 for it. Held: Under the particular facts of the case it was not error requiring the grant of a new trial for the judge to fail to give to the jury the instructions requested.

Decided July 15, 1924.

Indictment for sale of whisky; from Whitfield superior court— Judge Tarver, May 3, 1924.

M. B. Eubanks, for plaintiff in error.

J. M. Lang, solicitor-general, contra.

3. There is evidence to support the verdict.

Judgment affirmed.

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


text:
    15649.
    Nowell v. The State.
    In recharging the jury on the law of riot the court (under the facts of the case) erred in merely charging the definition of riot as given in section 360 of the Penal Code, thereby omitting the essential elements of the offense, to wit, a common intent and a concert of action in the furtherance of such intent.
    Decided July 15, 1924.
    Accusation of riot; from city court of Miller county — Judge Geer. April 19, 1924.

      House & Goree, H. G. Rawls, for plaintiff in error.

      P. D. Rich, solicitor, Jesse A. Brake, P. Z. Geer, contra.
   Broyles, C. J.

The defendant was on trial for the offense of riot. The jury, after deliberating on the case for several hours, requested the court to recharge them on the definition (law?) of riot, and the court recharged them as.follows: “This accusation alleges that J. M. Spooner and W. S. Nowell did on the 11th of January, 1924, in Miller county, then and there unlawfully and with force and arms did then and there commit an unlawful act of violence in a violent and tumultuous manner, to wit, did then and there, acting with a common intent, make an unlawful assault on one B. E. Houston, and did then and there attempt to commit a personal injury upon said B. E. Houston. I charge you that assault is an attempt to commit violent injury upon the person of another. I charge you that riot as defined by the code says that cif two or .more persons do an unlawful act of violence, or any other act in a violent and tumultuous manner, they shall be guilty of a riot, and be punished as for a misdemeanor/ I charge you that riot as defined by the code says that if two or more persons do an unlawful act of violence, they shall be guilty of riot and they shall be punished as for misdemeanor. I charge you further that if two or more persons do any other act in a violent and tumultuous manner, they shall be guilty of riot and shall be punished as for misdemeanor.”

In his motion for a pew trial the defendant excepted to the last sentence in the recharge, to wit, “I charge you further that if two or more persons do any other act in a violent and tumultuous manner, they shall be guilty of riot and shall be punished as for a misdemeanor,” on the ground that it eliminated the essential elements in the offense of riot, to wit, a common intent and a concert of action in furtherance of such intent. We think the exception was well taken. “To constitute the offense of riot, there must be not only a common intent on the part of two or more persons to do an unlawful act of violence or some other act in a violent and tumultuous manner, but also concert of action in furtherance of such intent.” Coney v. State, 113 Ga. 1060 (39 S. E. 425), and citations. This error requires another hearing of the case.

The other special grounds of the motion for a new trial are without substantial merit.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    15652.
    Lester v. The State.
    Decided July 15, 1924.
    Sale, etc., of liquor; from city court of Macon — Judge Gunn. May 9, 1924.
    A general verdict of guilty was rendered against Lester upon the charge of possessing and of selling whisky. From the evidence it appeared that a pint bottle containing a small quantity of “illicit' whisky” was found on planks laid across the rafters of a small shed-room attached to the defendant’s grocery store; that a gallon jug containing the same kind of whisky was found partly buried in the backyard, about 20 steps from the backdoor of the house; that back of the house were a barn and outhouses and a field, and at a distance of from 100 to 150 yards a swamp,. and on the way to the swamp were holes “where whisky had apparently been buried,” and on the edge of the swamp another jug of whisky was found. This was testified by a deputy sheriff, who stated that when searching for liquor on the premises he met the defendant as the defendant came from the backyard into the store; that the defendant denied knowing anything about the whisky in the bottle shown to him; and that “he did not deny knowing anything about the whisky found in the yard.” Oats and hay, a small stove, a bed and a shirt were in the shed-room. The defendant’s witness Davidson testified that he (the witness) kept cows on the place mentioned and used the field back of the store as a pasture for his stock, and that he used the shed-room to store hay and cow feed in, but did not put any whisky in the shed-room. The defendant, in his statement at the trial, denied knowledge of the whisky, and said that he had nothing to do with the outhouses or with the whisky, and did not use the shed-room; that everything in the room belonged to Davidson.
   Broyles, O. J.

Under the particular facts of the ease it was reversible error for the court to fail to instruct the jury upon tlie law of circumstantial evidence. The other grounds of the amendment to the motion for a new trial were without substantial merit.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Powers & Powers, for plaintiff in error.

Roy W. Moore, solicitor, contra.


text:
    14948.
    14967.
    STEWART-MOREHEAD CO. v. BIBB MFG. CO. BIBB MFG. CO. v. STEWART-MOREHEAD CO.
    Under the facts of the case, the court erred in setting the verdict aside on its own motion, and in refusing to render the judgment asked for by the plaintiff.
    Decided July 16, 1924.
    Reiieaiiing denied August 8, 1924.
    Action for breach of contract; from Bibb superior court — Judge Malcolm D. Jones. June 26, 1923.
    Application for certiorari was denied by the Supreme Court.

      John R. L. Smith, Grady G. Harris, Joseph LeQonte Smith, for plaintiff.

      J ones, Pari: & J ohnston, for defendant.
   Luke, J.

These two cases turn on the construction to be given the same verdict and the report of an auditor, the verdict having-been rendered on exceptions of fact, filed by both plaintiff and defendant, to the report of an auditor in an action at law.

Stewart-Morehead Company sued the Bibb Manufacturing'Company for the alleged difference between the contract price and the lower market price of 704 bales of cotton, “fully low middling,” at the time and place of delivery, under two contracts, each for the sale of 500 bales, the plaintiff alleging that the defendant refused to accept or pay for a part'of the cotton in accordance with the terms of the contract, or to pay the difference between the contract price and the lower market price prevailing at the time for delivery. The contract declared upon was in writing, but was silent as to the classification to be used in determining the grades of the cotton therein contemplated. The plaintiff’s petition was also silent upon this point.

The Bibb Manufacturing Company answered, admitting the contract as alleged, but denying its breach by the defendant, averring its breach by the plaintiff in several particulars, and seeking to recoup damages from the plaintiff for such alleged breaches on the plaintiff’s part. The defendant further pleaded that the Liverpool classification was contemplated by both contracting parties, and that the contract should be construed accordingly, setting up in detail facts tending to establish defendant’s counterclaim under the Liverpool classification.

The case was referred to an auditor; and exceptions of fact to his report, filed by both plaintiff -and defendant, were tried together by the same jury, the verdict being seriatim for or against each exception. There were also certain exceptions to the auditor’s findings of law, which do not appear to have been ruled upon by the lower court. That part of the auditor’s findings left of force by the verdict was as follows:

Findings of fact.

1. I find that in making the contract sued upon both parties communicated by telegram.

2. I find that acceptance on each contract was sent from Savannah, hence both contracts were made in Savannah, to be performed in Macon, the time limit of performance being the 15th of February, 1914.

3. I find that a general custom existed in the cotton trade, that the seller would ship cotton, sending bill of lading with draft attached, so that it was necessary for the purchaser to pay for the cotton before it could be inspected, and that inferior grades, short weights, and other items not in conformity with the contract, were understood to be open to adjustment afterwards.

5. I find that a local custom existed in Savannah for grading cotton shipped to American mills by the American classification.

6. I find that a local custom existed in Macon, Georgia, for grading cotton shipped to American mills by the Liverpool classification.

7. I find that the officers of the plaintiff corporation contemplated, in the contract sued upon, grading cotton by the American classification.

8. I find that the officers of the defendant corporation contemplated grading cotton, upon the contract sued on, by the Liverpool classification.

9. I find that neither knew that the other contemplated a different classification.

10. I find that there was a substantial difference in the grade and price of cotton when classified by the American classification and the Liverpool classification.

11. I find there was no general custom prevailing in the cotton trade in the Southeastern states, including the State of Georgia, for grading and classifying cotton.

13. I find that if the place at which the contract was made should determine the classification, American classification would apply; but if the place of performance of the contract should determine the classification, the Liverpool classification would apply.

14. I find that the defendant committed a breach of the contract by refusing to pay the draft and accepting fifty bales of cotton shipped from Dublin on February 11, 1914.

15. I find that under contract Nov. 26, 1913, the plaintiff delivered 271 bales, leaving undelivered 229 bales.

16. I find that under contract Nov. 29, 1913, plaintiff delivered, 25 bales, leaving undelivered 475 bales.

17. I find that, at the expiration of the time limit for performance of the contract, the average price of cotton embraced in the two contracts had declined % of one cent per pound.

18. I find that 50 bales from Dublin were rejected before it developed that each party claimed a different classification.

19. I find that plaintiff is entitled to recover % of one cent per pound for the 50 bales rejected from Dublin, of 500 pounds each, $187.50.

21. I find that, if the plaintiff should be entitled to recover for the balance of the cotton not delivered, the additional amount would be $2,452.50 with interest at 7% since February 15, 1914, less $691.87 allowed defendant in finding No. 20. This finding is made so as to enable the court to render final judgment without referring the case to the auditor, in the event the court sljould not agree with the auditor’s conclusions of law as hereinafter set forth.

Conclusions of law.

1. I find that the defendant was not authorized to reject cotton furnished under the contracts, for the reason that some cotton in each shipment was inferior to the quality specified in the contract.

2. I find that the defendant -is not bound by the local customs in Savannah, G-a., to grade cotton by the American classification, it not appearing that defendant had notice thereof.

3. I find that two conflicting local customs cannot be implied in the same contract.

4. I find that a custom will not be implied as a part of a contract unless it is general, certain, definite and of universal practice.

6. I find judgment in favor of the defendant against the plaintiff for $691.87, with interest from February 15, 1914.

The 4th, 12th, and 20th findings of fact and the 5th conclusion of law, which were eliminated by the verdict of the jury (the 5th conclusion of law being excepted to and otherwise treated in the lower court as a finding of fact), were as follows:

4. I find that the defendant departed from this custom in this particular instance, when the defendant, through E. T. Comer, demanded of the plaintiff strict performance of the contract on January 12, 1914, and from this day on, contract was not subject to the usual custom of adjusting differences after the cotton was paid for and received, but was to be determined by the terms of the contract, by which grade was changed at that time.

12. I find that before the time expired for the performance of the contract sued upon, it developed that the plaintiff offered to deliver the cotton under the contract upon the’ American classification and that the defendant refused to accept the cotton under the contract except under Liverpool classification; and that there are no facts appearing in the case which would determine the classification which should control.

20. I find that the defendant is entitled to recover of plaintiff a rebate for undér grade of cotton delivered, $740.80, and for loss in weights, $138.57, total.$879.37, less $187.50, net $691.87, with interest at 7% from February' 15, 1914.

5. I find that as each of the parties contemplated grading 'the cotton by a different local custom, and both Avere ignorant of the custom contemplated by the other, there was no agreement between the parties as to how the cotton was to be graded, hence no contract was made which could be enforced.

"Upon the face of the record as it then stood, after the verdict had been received and the jury discharged, the plaintiff moved for a judgment against the defendant'in the sum of $1,760.63, besides interest, the figures being derived from thé auditor’s 21st finding of fact. TJpon the same record the defendant moved for a judgment against the plaintiff in the sum of $691.87, besides interest, these figures being derived from the auditor’s 6th conclusión of law! The court denied both motions, disallowing any final judgment as the record then stood, and passed an order reciting that ’ in his opinion “said verdict is inconsistent, contradictory; and meaningless,” and ordered that “said verdict be disregarded, held for naught, a mistrial of said case declared, and said case be tried again.” To that ruling each party excepts; and each further assigns as error the refusal of the court to' grant its motion for a judgment.

The litigants are agreed as to one thing only, namely, that the trial judge erred in setting aside the verdict on his own motion. We agree with the litigants as to this point, and, under all the particular facts of the case, Ave further think that the court should have rendered the judgment asked for by the plaintiff, to wit, the sum of $1,760.63 with interest at 7% per annum from February 15, 1914, and the costs of the suit.

The defendant’s contention, made for the first time after the trial of the ease, that no valid, enforcible contract had been made by the parties, is without merit, since, under the pleadings in the case and the admissions of counsel for the defendant during the trial, the defendant is estopped from now setting up such a defense, and a finding that the contract was valid and binding was demanded.

Under the auditor’s finding of fact, which was sustained by the jury, the defendant breached the contract by refusing to pay the draft and to accept the fifty bales of cotton which were shipped from Dublin on February 11, 1914.

The defendant’s contention that it was excused for its breach of the contract by reason of the fact that some of the cotton shipped to it was below the grade at which it was billed, and that, “as a matter of law, a party has a right to refuse to accept further deliveries under an entire contract when the partial deliveries thereunder fail to measure up to the standard stipulated for in the contract,” was denied by the auditor, as he found that there is a general custom in the cotton trade, where the seller ships cotton c. o. d., that differences as to weights, grades, etc. are “understood to be open for adjustment afterwards.” The auditor’s further finding that that custom had been departed from in this case was found against by the jury. So it stands as an established fact in this case that throughout the transactions between the parties “the contract was subject to the usual custom of adjusting differences after the cotton was paid for and received.” The auditor’s conclusion of law as to this point was correct. See, in this connection, Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 (55 S. E. 50); Miller v. Moore, 83 Ga. 684 (4) (10 S. E. 360, 6 L. R. A. 374, 20 Am. St. R. 329); Acme Brewing Co. v. Rahr Sons Co., 10 Ga. App. 564 (73 S. E. 955).

When the defendant breached the contract it became liable for the entire damages caused by its failure to live up to the contract. The defendant having wrongfully refused to accept the fifty bales of cotton from Dublin, it was not incumbent upon the plaintiff to ship any more. Civil Code (1910), § 4131; Branch v. Palmer, 65 Ga. 210 (3); Standard Coal Co. v. Eclipse Coal Co., 24 Ga. App. 717 (102 S. E. 137).

As to the question of classification, Liverpool or American, the auditor’s finding of fact, that “before the time expired for the performance of the contract sued upon, it developed that the plaintiff offered to deliver the cotton under the contract upon the American classification, and tliat the defendant refused to accept the cotton under the contract except upon Liverpool classification; and that there are no facts appearing in the case which would determine the classification which should control,” was reversed by the finding of the jury. This verdict virtually eliminated the classification question from the case.

As said before, we think the plaintiff was entitled to the judgment asked for.

The judgment is reversed, with direction that the court render a judgment in favor of the plaintiff for $1,760.63, with interest at 7% annually from February 15, 1914, and the costs of suit.

Judgment reversed, with direction.

Broyles, G. J., and Blood-worth, J., concur.


author: Pee Cueiam.

text:
    14982.
    Atlantic Coast Line Railroad Co. et al. v. Baker.
    Decided July 16, 1924.
    Rehearing denied August 8, 1924.
    Damages; from Fulton superior court — Judge E. D. Thomas. August 6, 1923.
    Application for certiorari was denied by the Supreme Court.

      McDaniel & Neely, for plaintiff in error.

      Thomas J. Lewis, Paul Btheridge, contra.
   Pee Cueiam.

1. There were several specific allegations of negligence set forth in the petition, but upon the trial the evidence did not support all of them. The court by its charge virtually and in effect submitted to the jury all the allegations of negligence contained in the petition. This error, under the particular facts of the case, was extremely prejudicial to the defendant, and requires another hearing of the case.

2. The other alleged errors of which complaint is made in the amendment to the motion for a new trial are not such as are likely to recur on another trial of the ease.

Judgment reversed.

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


text:
    15651.
    RAY v. THE STATE.
    Lack of mental capacity to understand the nature of an oath was sufficiently shown by the evidence as to the woman who testified that the defendant was the father of her bastard child; and the court erred in refusing to exclude her testimony. (Broyles, C. J., dissents.)
    Decided July 16, 1924.

      Indictment for bastardy; from Jeff Davis superior court — Judge Highsmith. April 8, 1924.
    Bryant (or Brye) Ray was convicted under an indictment which charged him with being the father of the bastard child of Shug Collins. In the. motion for a new trial it is alleged that the court erred in not excluding the testimony of Shug Collins, on the motion of the defendant’s counsel, on the ground that she was not a competent witness; that she did not know the nature of an oath and had not sufficient mental capacity to comprehend its meaning. The questions put to this witness, and her answers, are set out in the motion for a ■ new trial as follows: Q. What is your name ? A. Shug Collins. Q. Do you-know this man here, Brye Ray? A. Yes, sir. Q. Where do you live ? A. Mother and father. Q. Is that in this county? A. Yes, sir. Q. You say you knew Brye Ray. Does he live out there where you live ? A. Close by. Q. Did he do anything to you a year or two ago? A. Yes, sir. Q. Have you got a baby? A. Yes, sir. Q. Who is the father of that baby ? A. Brye Ray. (Cross-examination.) Q. How old are you? A. - Twenty-one. Q. What county do' you' live in ? A. Back that way (indicating). Q. What is the name of the county you live in? A. Mama knows. .Q. What is the name of the-State you live in? A. Mama knows. Q. You do not? A. Ho. Q. Do you know what an oath is ? A. Mama knows. Q. Do you know what an oath is? A. Yes. Q. What is it? A. - He tell me to lie down on bed. Q. I am not asking you what Brye Ray told you. What did you mean when you held up your hand, when the solicitor told you to hold up your hand, what did that mean? A. I don’t know what you say. Q. You held up jmur hand a while ago? A. Yes. Q. What did you do that for ? A. Because. Q. Because of what? A. Because I wanted to. Q. What did you mean by doing that? You just done it because Mr. Sellers told you to ? A. Yes. Q. You don’t know what an oath means ? A. No. Q. You ever been to school any? A. No. Q. You ever been to preaching any ? A. Yes. Q. What did the preacher preach about ? A. I don’t know. Q. Do you know what you are doing here now? A. No. Q. Do you know what a story is? A. No. Q. Did you ever hear anybody tell a lie ? A. Brye Ray, I know him too. Q. Did you ever hear anybody tell a lie ? A. He will tell a lie. Q. What is a lie ? A. He tell a lie. Q. Did you ever tell a story? A. No. Q. Do you know the nature of an oatb? A. No. Q. "What becomes of people that tell stories? A. I don’t know what you say. Q. What did they do with folks that tell a story ? A. He push me down on bed. Q. I am asking you what becomes of people that tell' stories ? A. I don’t understand your talk. Q. You know anything about heaven? Where do you go when you die? A. Don’t go any way. Q. Do you know anything about hell, — ever hear about hell? A. I want him to go to hell and burn in hot fire. Q. Who goes to hell? A. Bryé Ray. Q.. Anybody else go to hell? A. Him goes. Q. That all that goes to hell ? A. Yes.. Q. What kind of people go to' heaven? A. Me, I go to heaven. Q. You the only kind-that goes there? A. Yes, me and my sister. Q. Do you know what the law means to swear a person? A. No. Q. Do you know how the law punishes people? A. Yes. Q. What does the law do with people that violate the law? A. I don’t know what you say. Q. What would the law do with you, or the courts do with you, if you swore a story ? A. I am not telling a story. Q. Suppose you was to, what would they do about it ? Do you know what they would do with you if you were to tell, a story? A. No. Q. Do you-know Gempsey Quinn? A. No. Q. Have you ever seen him ? A.. No.
    Before the trial judge ruled upon the motion to exclude the. testimony of this witness her mother testified: “I am the mother of Shug Collins. . . She has always been a cripple. She is weak minded. The girl lives in the house with me and her father . . and has lived there for fourteen years. She is the mother of one baby. . . I know Bryant Ray. . . He lived out there in the community . . at the time the baby was born, right side of my fence, 50 or 75 yards, and had been living there two or three years. He is a married man. Shug went over there sometimes before the baby was born, visited his family. . . Shug did not go to school, because she was not able to walk to the schoolhouse. '. . She couldn’t talk sufficiently for the teacher to understand her. She is not what we usually term an idiot. An idiot is a fool, and I don’t suppose an idiot would know its mother from anybody else, and I don’t suppose an idiot can be bright. . . Q. Is her mind as old a mind as a four-year-old.child? A. I suppose so. She can tell me anything I have forgotten three or four years ago. A four-year-old child is sufficient to commence to learn its A B C’s. She has never learned her A B C’s. She was never taught anything at all, — no books at all. I commenced with my children when they were three or four years old. She could never talk until she was four years old. We have tried to learn her right from wrong. She went with me sometimes to Sunday school. I never did try to learn her to repeat any conversation. Her mind is not sufficient or capable of grasping such things. . . She cannot count more than three or four. I suppose slie could take eight out of a bunch of ten. I have never tried her. She is weak minded. She could not be responsible for her wrong doings. I suppose it is true that we have never tried to hold her responsible for her misconduct like the other children because we knew that, due to her mental capacity, she could not be held accountable. . . She knows right and wrong in a heap of things. She has been taught to do right. It don’t look like she could be held responsible for anything she might do. She is kind of weak minded. She knows enough to behave herself, I think she ought to know whether a thing is right or not before we tell her. I don’t know her .mind. I have taught her to tell the truth. She would leave home once in a while, but I would be right in straight in behind her. I told her not to leave home, but sometimes she would go over to Thomas Quinn’s, 'which is about a mile. . . Heap of the times she would go with her brothers.”
    The court charged the jury: “In view of the contentions made by the parties in this case, I charge you this rule of evidence: that persons who have not the use of reason, — as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, —are incompetent witnesses. This rule of law may be taken into consideration by the jury, along with the other facts and circumstances in the case, and the law given you in charge, in passing upon and considering all of the testimony that may have been submitted to you and in determining whether the guilt of the defendant has or has not been established beyond a reasonable doubt.”In the motion for a new trial it is alleged that the court erred in charging as above, because it was the duty of the court to pass upon the competency of witnesses, and the court should have instructed the jury that they could not consider the testimony of the witness referred to.

      V. E. Padgett, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial shows that the court was asked to exclude from the jury the evidence of Shug Collins, the chief witness for the State, because “it is shown that she was not a competent witness,” and “it developed from her examination that she was so feeble-minded that she did not know the nature of an oath.” The witness was at least 21 years old, had lived in the county since she was six years old, but, when asked the name of the county, replied, “Mama knows.” She said that she did not know the name of the State in which she lived; that she had never been to school, and did not know what she was doing in court; and when asked, “You don’t know what an oath means?” answered, “No;” and in answer to the question, “Do you know what the law means to swear a person?” again answered, “No.” Her mother testified that she was weak-minded; that she had never learned her A B C’s; that she had never learned to count, and could not count more than 3 or 4; and that her mental condition was such that she could not be held responsible for her conduct.

Section 1038 of the Penal Code of 1910 is as follows: “Persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses.” "In section 2 of the Penal Code we find that “Lunatic, insane, or non compos mentis, each includes all persons of unsound mind.” According to Black’s Law Dictionary, a person of unsouncl mind is “an adult who from infirmity of mind is incapable of managing himself or his affairs. The term therefore includes insane persons, idiots, and imbeciles.” In Cuesta v. Goldsmith, 1 Ga. App. 48, 53 (57 S. E. 983), this court quoted with approval the following from an opinion of Judge Lurton in the case of Pittsburg & W. Ry. Co. v. Thompson (C. C. A.), 82 Fed. 726: “The general statement that at the common law a person non compos mentis is incompetent to testify is doubtless true. Hartford v. Palmer, 16 Johns. 153; Cannady v. Lynch, 27 Minn. 435, 8 N. W. 164. In the case of Reg. v. Hill, 5 Cox. Cr. Cas. 259, the proper meaning of this general statement of the rule was under consideration, and the Chief Justice said: ‘Various authorities have been referred to which lay down the law that a person non compos mentis is not an admissible witness. But in what sense is the expression non compos mentis employed ? If a person be so to such an extent as not to understand the nature of an oath, he is not admissible. But a person subject to a considerable amount of insane delusion may yet be under the sanction of an oath, and capable of giving very material evidence upon the subject matter under consideration. The proper test must always be, does the lunatic understand what he is saying, and does he understand the obligation of an oath?’ . . In the case of District of Columbia v. Armes, cited above, the Supreme Court, referring to Reg. v. Hill, said: ‘The doctrine of this decision has never been overruled that we are aware of,’ and added: ‘The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters he has seen or heard in reference to the questions at issue.’ ’’ The examination of the chief witness in this case did not show that she, “either from a moral or legal standpoint, understood the nature or obligation of an oath, or had the slightest degree of knowledge with reference to the legal consequences of committing perjury.” Gaines v. State, 99 Ga. 704 (26 S. E. 760).

In the light of the evidence quoted above and other evidence shown in the record, we are convinced that the witness Shug Collins has not sufficient mental capacity to understand the nature of an oath; that she has not the “use of reason;” and, under the law stated above, her evidence should have been excluded. Without her evidence there is nothing to support the verdict, and the judgment is

Reversed.

Lulce, J., concurs. Broyles, G. J., dissents.