author: Bell, J.

text:
    14373.
    SHEPPARD v. GEORGIA RAILWAY & POWER CO.
    1. This action, properly construed, was one wherein the plaintiffs sought to recover for damage to their property, resulting from the act of the street-railway company in changing the grade of the street while laying its tracks thereon in the proper exercise of the conferred right of eminent domain. In such a case the right to recovery accrues under that provision of the constitution which declares that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid (Mayor cGe. of Albany v. Sikes, 94 Ga. 30, 20 S. E. 257, 26 L. R. A. 653, 47 Am. St. R. 132); and the measure of damages is the difference in the mai’ket value of the property before and after the change in the grade. City of Atlanta v. Green, 67 Ga. 386 (3) ; Smith v. Floyd County, 85 Ga. 420 (3) (77 S. E. 850). When this work was done and damage resulted therefrom to the plaintiffs, they had a right of action for damages, not only for that which might have-accrued prior to the bringing of the action, but for such as might accrue in the future. However, “the whole damage could have been assessed in one action; such action taking the place of the statutory provision in cases where property is condemned, that the whole damage shall be assessed . . The authorities are numerous that such an action must be .brought within the statutory period, for all the damages, both past and future; and the [plaintiffs] having failed to bring suit within that time, [their] right of action was barred. . . As there was no original nuisance, there' could be no continuing nuisance.” Atkinson v. City of Atlanta, 81 Ga. 625 (7 S. E. 692).

      2. Tlie only damages recoverable in this case accrued more than four years before tlie filing of tlie action, and therefore were barred by the statute of limitations, which the defendant pleaded. The case is here upon exceptions by the plaintiff to the action of the trial court in dismissing- the suit, at the close of the evidence, by an order in the nature of a nonsuit. The statute of limitations is properly invoked by a demurrer or special plea, and not by a motion for a nonsuit; though where a nonsuit is granted upon that ground and the proper result is attained, the nonsuit will not be reversed merely because of the adoption of the improper practice, where the judgment is not assigned as erroneous for that reason. Small v. Oohen, 102 Ga. 248 (3) (29 S. E. 430) ; Poole v.. Trimble, 102 Ga. 773, 775 (29 S. E. 871).
    Decided February 25, 1924.
    Action for damages; from city court of Decatur—Judge Daley. January 18, 1923.

      Etheridge, Sams & Etheridge, for plaintiffs.

      Colquitt & Conyers, for defendant.
   Bell, J.

This was an action by the owners of realty abutting upon Boland Avenue in the City of Clarkston in the county of DeKalb, against the street-railway company, for damage alleged to have been sustained by reason of the increase of the elevation of the street by the company in the construction of its railway-track. Plaintiffs alleged that the change in the grade of the street interfered with and stopped the natural drainage and flow of surface-water over the plaintiffs’ land, causing the water to back over a large area to a depth of twelve inches “after each large rain,” that “the. backing and standing of said surface-water has rendered petitioners’ land unfit for cultivation,” and that the land was previously dry and tillable, producing annual crops of a stated value. The prayer was for recovery of the net value of the annual crops alleged to have been lost because of the above-described condition during four years next prior to the filing of the suit, and also a stated sum as the resulting diminution in the market value of the land. The petition contained the allegation “that in constructing said track said defendant changed the level or grade on said street by filling in parts of said street several feet to facilitate the construction and operation of its car line.” (Italics ours.) There is no averment that the change in the grade of the street was executed in a negligent, unskilful, or improper manner, or that the defendant was not acting by authority of law. The defendant filed a general denial, and specially pleaded the statute of limitations. The bill of exceptions brought by the plaintiffs recites that at the close of the plaintiffs’ evidence “counsel representing the defendant moved that the case be dismissed, in the nature of a nonsuit, on the ground that the statute of limitations controlled the case and that the case was barred, it not having been brought within four years after the alleged nuisance was committed,” and that thereupon the court passed the order of dismissal, which is assigned as error.

This court will take judicial cognizance of the fact that the charter of the defendant, Georgia Railway and Power Company, as granted by the secretary of State on June 16, 1911, conferred authority to lay its tracks longitudinally upon Roland Avenue in the municipality of Clarkston. Robertson v. Tallulah Falls Railway Co., 29 Ga. App. 530 (3) (116 S. E. 65). This right, however, under the constitution of this State could not be exercised without the consent of the municipality. Civil Code (1910), § 6444; Almand v. Atlanta Consol. Street Railway Co., 108 Ga. 417 (1), 425 (34 S. E. 6). The track was laid in 1913. The present action was filed in 1921. There was no evidence to show that the consent of the municipality had not been granted. Neither was there evidence that it had ever objected to the laying of the track. Indeed, one of the witnesses introduced by the plaintiff, who was a member of the town council at the time the tracks were laid and the street-grade changed, testified, without objection and without dispute, that the town council “had the railroad to grade that street.” The charter of the municipality as it then existed (Ga. L. 1898, pp. 165, 168) gave power to the municipal authorities “to keep in good order and repair all streets . . and to extend and lay out streets and regulate the width and length of the same.” Incident to this power was that of grading and otherwise improving the streets. Mayor &c. of Brunswick v. King, 91 Ga. 522, 524 (17 S. E. 940). See also Atlanta Railway & Power Co. v. Atlanta Rapid Transit Co., 113 Ga. 481, 484 (39 S. E. 12); Atlanta & West Point R. Co. v. Atlanta, Birmingham & Atlantic R. Co., 125 Ga. 529, 545 (54 S. E. 736). In view of the testimony just quoted and the plaintiffs’ averment that the defendant “changed the level or grade . . to facilitate the construction and operation of its car line,” considered in connection with the charter power both of the defendant street-railway company and of the municipality, it must be presumed, nothing appearing to the contrary, that such change in grade was necessary to a proper and reasonable exercise of the defendant’s franchise, and was made by the authority of the municipality and in a proper manner. “It is to be presumed, in the absence of any allegation or evidence to the contrary, that the defendant railway company is proceeding to avail itself of the rights conferred by [its] franchise in a legal manner and in compliance with the requirements of the law.” Burrus v. City of Columbus, 105 Ga. 42, 45 (31 S. E. 124). See also Mauldin v. Southern &c. University, 126 Ga. 681, 683 (55 S. E. 922, 8 Ann. Cas. 130); Nicholson v. Spencer, 11 Ga. 607, 611; 10 R. C. L. 880, 881. With respect to the effect of the allegation quoted, as an admission against the plaintiffs, see New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6) (7) (116 S. E. 922).

“'That which the law authorizes to be done, if done as the law authorizes it to be done, cannot be a nuisance.” Burrus v. City of Columbus, supra; Bacon v. Walker, 77 Ga. 336. While it is true as provided in the Civil Code, § 4457, that “a nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance,” the expression “may otherwise be lawful” shows that the act complained of in so far as it causes “hurt, inconvenience, or damage to another” must be unlawful, that is, a violation of some right of the plaintiffs, in order to constitute a nuisance. Simpson v. DuPont Powder Co., 143 Ga. 465 (85 S. E. 344, L. R. A. 1915E, 430). Where the act “itself is legal, it only becomes a nuisance when conducted in an illegal manner, to the hurt, inconvenience, or damage of another.” (Italics ours.) City of Quitman v. Underwood, 148 Ga. 152 (96 S. E. 178). The plaintiffs, having failed to show, either in their petition or by evidence, that the act of the defendant by which they claimed to have been damaged was either in itself unlawful or that it was executed in a negligent, unskilful, or improper manner, did not establish the fact of a nuisance. Atkinson v. City of Atlanta, 81 Ga. 625 (7 S. E. 692). See Bacon v. Walker, supra; Burrus v. City of Columbus, supra; Almand v. Atlanta Street Ry. Co., supra; Brown v. Atlanta Railway & Power Co., 113 Ga. 462 (2) (39 S. E. 71); Mayor &c. of Waycross v. Houk, 113 Ga. 963 (39 S. E. 577); Georgia R. &c. Co. v. Maddox, 116 Ga. 64 (4) (42 S. E. 315); Atlantic & Birmingham Ry. Co. v. McKnight, 125 Ga. 328 (1), (5) (54 S. E. 148); Atlanta & West Point R. Co. v. Atlanta, Birmingham & Atlantic R. Co., supra; Athens Terminal Co. v. Athens Foundry & Machine Works, 129 Ga. 393 (3), (4) (58 S. E. 891); Central Georgia Power Co. v. Ham, 139 Ga. 569 (77 S. E. 396); Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749 (3), (4), 754 (65 S. E. 844); Smith v. Dallas Utility Co., 27 Ga. App. 22, 25 (107 S. E. 381).

Where a nuisance exists and is of a continuing character, and is one that could and should be abated, it may give rise to a cause of action both for its creation and its maintenance, and in an action for its maintenance damages resulting therefrom which accrued at any time within the period of the statute of limitations may be recovered, notwithstanding the damages resulting from its creation may be barred by the statute of limitations. Gabbett v. City of Atlanta, 137 Ga. 180 (73 S. E. 372); and cases cited. See also Atlantic Coast Line R. Co. v. Knapp, 139 Ga. 422 (3) (77 S. E. 568); Reid v. City of Atlanta, 73 Ga. 523; Maguire v. Mayor &c. of Cartersville, 76 Ga. 84; Athens Mfg. Co. v. Rucker, 80 Ga. 291 (3) (4 S. E. 885); Mayor &c. of Gainesville v. Robertson, 25 Ga. App. 632 (4) (103 S. E. 853). This rule is-inapplicable, however, where the act complained of does not constitute a nuisance or where the nuisance, if existing, is nonabatable. In an action to recover damages arising from the maintenance of a continuous nuisance affecting lands devoted to any specific purpose, depreciation in the market value of the property may not be the only item of damage recoverable. Jones v. Royster Guano Co., 6 Ga. App. 506 (65 S. E. 361); City Council of Augusta v. Marks, 124 Ga. 365 (2) (52 S. E. 539); Towaliga Falls Power Co. v. Sims, supra.

But “in the case of permanent injury to the freehold, resulting from the proper construction and proper maintenance of any work of public improvement, the measure of damages is the difference in market value before and after the work was constructed and maintained. Moore v. Atlanta, 70 Ga. 611; Smith v. Floyd, County, 85 Ga. 420; City Council v. Schrameck, 96 Ga. 426.” (Italics ours.) Langley v. Augusta, 118 Ga. 590, 598 (45 S. E. 486, 98 Am. St. R. 483); Hurt v. City of Atlanta, 100 Ga. 274 (3), 281 (28 S. E. 65). Such was the measure of the damages in this case.

“The law of assessment for property taken or damaged for public purposes was applicable, . . and not the 'law of nuisance” (Farkas v. Towns, 103 Ga. 150, 156 (29 S. E. 700, 68 Am. St. R. 88); Civil Code of 1910, § 6388); and when the work was done and damage resulted therefrom the plaintiff had a right of action not only for the damage which might have accrued prior to the bringing of the action for such as might accrue in the future. “The whole damage could have been assessed in one action; such action taking the place of the statutory provision in cases where property is condemned, that the whole damage shall be assessed.” Atkinson v. City of Atlanta, supra. Hence, there was no reason why the present action should not have been brought within four years after this work was done. Such an action must be brought within the statutory period for all damages, both past and future. Atkinson v. City of Atlanta, supra; Smith v. Dallas Utility Co., 27 Ga. App. 22 (107 S. E. 381); Smith v. Central of Georgia Railway Co., 22 Ga. App. 572 (2), (3) (96 S. E. 570).

The attorneys for the plaintiffs in error correctly contend that under the instant petition, the cause of action is like that in Albany v. Sikes, supra. That, however, was not a case of nuisance, but one wherein the plaintiff was entitled to recover for the diminution of the market value of land, under “that provision of the constitution which declares that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” In the case of Danielly v. Cheeves, 94 Ga. 264 (21 S. E. 524), a private individual, “for the purpose of improving his own land and in disregard of the plaintiff’s rights” (italics ours), diverted the natural flow of water from one stream into another stream and upon the plaintiff’s land. The complaint made a case of a continuing abatable nuisance. Farkas v. Towns, supra, was also a case where the defendant was not acting by sanction of law but was a wrong-doer, and was likewise different from that now under consideration, although in that case the statute of limitations was not involved. Again, the present case is distinguishable from Holmes v. City of Atlanta, 113 Ga. 961 (39 S. E. 458), in the respects indicated therein on page 963, being controlled in principle by the Atkinson case referred to and distinguished in the Holmes case. “Public or quasi-public corporations are, so far as they exercise legitimately and in a proper manner the powers expressly or by reasonable and necessary implication conferred on them, liable in damages only for taking or damaging property. The properly doing oJE that which the law authorizes is not a nuisance.” Towaliga Falls Power Co. v. Sims, supra.

The only damage recoverable in this case (see City of Albany v. Green, 67 Ga. 386 (3)) accrued more than four years before the filing of the action, and was therefore barred by the statute of limitations, which the defendant pleaded. “The trial judge did not err in granting a nonsuit upon that ground, no question being raised as to the propriety of this method of taking advantage of the plea of the statute of limitations.” Poole v. Trimble, supra; Small v. Cohen, supra; Maxwell v. Liverpool &c. Ins. Co., 12 Ga. App. 127 (5) (76 S. E. 1036). Though this fact was not alleged in the petition (see Ternest v. Georgia &c. R. Co., 19 Ga. App. 94, 90 S. E. 1040), the evidence showed that a prior suit upon the same cause of action, which accrued in December, 1913, had been filed on February 13, 1917, and dismissed on or before May 20, 1920. The present action, however, was not filed until the lapse of more than six months thereafter, namely, on January 18, 192Í. It, therefore, was not saved by the pendency of the former suit, and would not have been if the former suit had been pleaded. Civil Code (1910), § 4381; Bagley v. Stephens, 80 Ga. 736 (6 S. E. 695). If, in view of a further allegation, not mentioned in the above statement, that the “banking and ponding of the surface water caused, after each large rain, an . . unhealthful condition,” it should be true that this court has incorrectly construed the petition as laying a case for damages against one who has proceeded lawfully under the conferred right of eminent domain, rather than as claiming damage for a nuisance, still there was no evidence whatever in support of this averment, and the case as made by the evidence, even if not as made by the petition, is determined by the rulings made above. The allegation that an “undesirable condition” was created is too general to add anything to the petition.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    14662.
    ROBERTS v. ALLEN.
    1. The contract disclosed by the plaintiff’s evidence and upon which he relied for a recovery was not invalid for any reason alleged .in the defendant’s motion for a new trial. There was no fatal variance between the allegata and the probata. The evidence authorized the verdict.
    2. There was no error in overruling the ground of the motion for new trial by which it was contended that the contract was unenforceable under the statute of frauds.
    3. The court did not commit any material error in the admission or rejection of evidence.
    4. There was no cause for a new trial in the refusal of any of the requests to charge, nor was there error in overruling the motion upon all grounds.
    Decided February 25, 1924.
    Complaint; from Eulton superior court—Judge E. D. Thomas. March 24, 1923.
    Application for certiorari was denied by the Supreme Court.
    . A. S. Allen, in an action against J. E. Roberts, obtained a verdict for $6,250. The defendant excepts to the overruling of his motion for a new trial.
    The plaintiff alleged: that on January 2, 1920, he was- appointed a special tax investigator by the State tax-commissioner, under the authority “contained in the act of 1919” (see Ga. L. 1919, pp. 55, 5'6); that under his appointment he was to receive a commission on such back ad valorem taxes due to the State of Georgia as should be collected through his efforts; that he was given authority to contract with certain counties, including the county of Camden, for the purpose of securing the proper return and collection of back taxes due to the counties, the commission to be paid 'to him by the State to be the same as that fixed respectively in his agreements with the counties; that in the latter part of the year 1920, in pursuance of his contract with the State tax-commissioner, he began an investigation in Camden county with a view of collecting back taxes due to the State of Georgia and the countjr of Camden by certain heirs of Mrs. Carnegie, and at the same time entered upon negotiations with a view of making a contract with the authorities of that county, for the purposes indicated above; that after he had devoted considerable work “to said investigation and negotiations,” “the defendant herein, who was also employed by the State for making tax investigations and collections, on commissions, went to Camden county and took up the investigation of this same matter” (that is, the collection of taxes supposed to be due by the parties above mentioned); that the plaintiff, upon learning of the conduct of Eoberts, complained to the State tax-commissioner, calling his attention to the fact that “petitioner had commenced said investigation under the authority conferred upon him by his appointment, and that Camden county was in the territory assigned to him,” and the tax-commissioner suggested that the plaintiff and the defendant “make some arrangement by which they would agree to divide the commissions accruing from the collection of said tax in the event a collection was made, and co-operate in said matter.” The remaining allegations of the complaint were as follows: “9. Acting upon this suggestion of the State tax-commissioner, petitioner, on February 3, 1921, took the matter up with the defendant, informing him of the facts hereinbefore related,—that is, that petitioner had commenced said investigation before the defendant had done anything on it, and was really handling the matter, and that Camden county was within the territory assigned to petitioner, and also informing him of the suggestion to divide, the commissions, and petitioner and said defendant did agree that they would co-operate in the matter of the collection of the taxes due by said parties, and would divide the commission accruing in said matter equally between petitioner and said defendant. 10. Thereafter the investigation which had been begun and conducted as hereinbefore stated resulted in the collection of taxes from said Carnegie heirs in the amount of $37,500, from which said defendant collected and received commissions amounting to $12,500. This was some time the latter part of February, 1921, and petitioner then asked said defendant for his portion of said commission, or one half of said commission, that is $6250, according to their agreement and contract, and said defendant put petitioner, off from time to time on various excuses, and finally, upon- petitioner’s insisting upon his portion of said commission, the said defendant refused to pay him the same, and has neglected and failed to pay petitioner the amount due him as aforesaid.” The record does not show that the sufficiency of the petition was tested by demurrer.
    The contract of January 2, 1920, between the plaintiff and the tax-commissioner, which was introduced in evidence, contained, among others, the following stipulations: “He [the defendant] is also authorized and empowered, to collect . . any back ad valorem taxes not on the tax digest for the year 1919 and preceding 3rears. For the collection of any such back ad valorem taxes he shall receive a commission upon the part accruing to the State of 15 per cent.;” “said special tax investigator is also authorized to contract with the county authorities of any- county which may be assigned to him by the State tax-commissioner, for compensation for services rendered in securing proper returns for ad valorem taxes, on the basis of a per cent, of the taxes accruing to such county from his efforts, and shall receive the same percentage of the amount accruing to the State.” A certificate signed by the State tax-commissioner was attached to the contract assigning to the plaintiff several counties, including the county of Camden. The defendant, however, introduced a second contract between Allen and the State tax-commmissioner, dated December 31, 1920, which did not purport to assign any particular counties to him, and in which the only clause having reference to the collection of ad valorem taxes accruing to the State was as follows: “For his [plaintiff’s] services in the investigation of unreturned property for ad valorem taxes he shall receive the same commission for the State’s part of such taxes as shall be allowed him by the county authorities on the amount of taxes accruing to the county as the result of his investigations.”
    The defendant Eoberts also had been appointed as a special tax investigator under a contract of March 29, 1920. It does not appear that any particular counties were assigned to him, but he was authorized generally to make contracts with counties for the purpose of securing the return of property which had been previously omitted from the returns, and it was agreed that for his services in procuring the collection of back ad valorem taxes to the State he should receive for his commission “the same percentage as he may be paid by the county authorities on the amount which accrues to the county as a result of his investigations and efforts.” A further clause of the contract was as follows: “This contract of employment, being personal on account of the confidence imposed in the said J. F. Eoberts and his special fitness for this line of work, is not transferable, and it is understood that the work is to be carried on by him in person.” This clause was amended on May 20, 1920, by the addition of the following: “He [Roberts] may, however, employ such clerical assistance as may be necessary to enable him to carry out his work under this contract.” An extract from the minutes of the county commissioners of Camden county discloses the making of a contract between the county and Roberts on January 14, 1921, by the terms of which Roberts was employed “to collect all back taxes found due the county by any individual, or corporation, or partnership, for 7 years back, . . he to bear all expenses in the collection of same,” for an agreed commission of 33-1/3 per cent.
    It is undisputed that Allen had never procured any contract with the county, although it appeared from the evidence that he had entered the county and performed some service with a view of procuring the return of property which should have been returned by the Carnegie heirs, and of collecting the taxes due thereon to the State and the county. This was in the latter part .of 1920. He had deferred any effort at making a contract with the county until after certain changes in the personnel of the board should be made at the beginning of the succeeding year. It further appears that on January 11, 1921, when he learned that Roberts had begun working in the same county, he complained of the conflict to Mr. Fullbright, the tax-commissioner, who soon thereafter suggested a combination of their efforts, with a division of fees. The commissioner was a witness upon the trial, and testified that he had received a letter from some person indicating the propriety or necessity of the services of a special investigator in this county, and that, overlooking for the moment his assignment of the county to Allen, he showed this letter to Roberts, with the suggestion that Roberts might undertake the work. He seems to have assumed the principal responsibility for the conflict, and had desired, for the sake of harmony among those working in his department, that the parties here at issue should cooperate with reference to the particular undertaking and share with each other the commissions to be earned. Allen testified that in pursuance of the suggestion of the tax-commissioner he went to Macon on February 3, 1921, where he had learned that Roberts could be found, and approached him upon the subject. His version of what occurred at this meeting is contained in his testimony as follows: “I said, ‘Well, Mr. Fullbright suggested that we get together and furnish each other with any information we have, and divide the commissions and work together; if we start anything like this, it will probably result in the State and county and any of us not getting anything.’ And he said he would be glad to do so; he didn’t know I had been down there and the county had been assigned to me, and it was perfectly all right and agreeable to do that. We then exchanged some information. I showed him some information that I had drawn off down there, and he showed me a letter from Mr. Page, superintendent, denying the liability of the Carnegie heirs, and I told him at the time that I knew there were some taxes coming from the heirs of that trust fund, as some of them were residents of Camden county; that much I was certain of. Then we discussed matters in a general way, as we do in checking up matters of that kind. Well, when I got to the point with Mr. Roberts about dividing the commissions he said he would be glad to do it. I said we would divide the commissions equally, we would pay our own different expenses, and such as that, and divide the commissions equally. I agreed to that in the Hotel Lanier. ■ I had made a contract with him in good faith to work and cooperate together with him in the collection of these taxes. Under my contract I was to help him do that work.”
    The testimony of Roberts in regard to the conference at Macon was in part as follows: “I certainly did not make any agreement with Mr. Allen in Macon, at the time he stated, with reference to the division of my commissions. On February 3, 1921, I had completed the work in connection with these taxes. I had a check at that time, and showed it to Mr. Allen. It was a cashier’s check for $37,500. That was the amount that we had agreed on as covering the taxes of the Carnegie estate. I showed Mr. Allen the check on February 3, 1921, at the Hotel Lanier. There was no further work to be done in the collection of these taxes after that time. That was the first conversation I had ever had with Mr. Allen on any subject, except to acknowledge an introduction in Greensboro. These $35,500 [$37,500 ?] of taxes were for the years 1918, 1919, and 1920—three years. That amount—$37,500 —was for both county and State taxes. It came to me with a cashier’s check from Judge Conyers, and through me to the Copeland National Bank of Greensboro, Ga., through which it was cleared; after which I settled with the State and county. I collected them, and paid the part, after deducting my commissions, to the county of Camden, and the State its part. That money came through me. On February 3, 1921, Mr. Allen came to me in the Hotel Lanier, and said, ‘Mr. Roberts, I want to speak to you/ He said that he had talked with the tax-commissioner about my going into the counties where he had been assigned, and that Mr. Fullbright suggested that we get together and co-operate in the collection of the taxes. It was at that time that I said to Mr; Allen, ‘I can’t conceive of the necessity of cooperation.' I already have my check for it;’ and I showed Mr. Allen the check. That was about the sum and substance of our conversation; and I told him that I didn’t think Mr. Fullbright had a right to make that suggestion, and that I wasn’t going to pay him anything. That is approximately all that was said; there may have been some other little indirect statements. Mr. Allen said that Mr. Fullbright had given him the territory, and had not any business to send me there. He said he would take the matter up with Mr. Fullbright.”
    Allen, in rebuttal, denied that the check had been shown to him. The .check was not in evidence and its date was not shown; but a ledger sheet from a bank at Greensboro, Georgia, was introduced by the defendant and showed that the check was deposited for collection on- February 16, 1921. Allen testified to numerous efforts on his part after February 3 to cooperate with Roberts, suggesting that they go to Camden county together for the purpose of continuing and concluding tlie matter undertaken, but that Roberts had repeatedly put him off and would decline any discussion of the matter, usually assigning as a reason that a member of his family was ill at a hospital and needed his attention. The evidence of Allen authorized the conclusion that at no time did Roberts repudiate the agreement or decline to be bound by its terms until Allen learned that the collection had been made and demanded of Roberts his share of the commissions which Roberts had retained, and that Allen had been ready and willing at all times to perform his part of the agreement which he claimed had been made. These things were -denied by Roberts, except his refusal to pay.

      Dorsey, Brewster, Howell & Heyman, Marie Bolding, for plaintiff in error.

      Branch & Howard, contra.
   Bell, J.

(Alter stating the foregoing facts.) Numerous grounds of the amended motion for a new trial being but amplifications of the general grounds will be considered in connection therewith. One of the contentions is, that the evidence shows that the agreement of February 3 was without consideration because it appeared that the contract between Allen and the State tax-commissioner of January 2, 1920, was superseded by the subsequent contract of December 29th, and that Allen could have had no claim or interest in commissions to be earned in the county of Camden unless he had procured a contract with the county; and that Boberts who had the only contract with the county was thus the only .person having a right in the subject-matter of the agreement of February 3. It is therefore insisted that Allen gave nothing, having nothing to give, as a consideration for this agreement.

Irrespective of the contracts between Allen and the State, the averments in paragraph 9 of the petition, indicative of an intention on the part of the plaintiff to lay as a consideration the fact of his contract of January 2, together with some service performed thereunder, do not exclude the further consideration arising in his alleged promise to cooperate with Boberts in carrying on the work which the latter had begun' under contracts by which Allen was barred from an independent project. “All pleadings must receive a construction in accordance with the natural intendment of the words and language used, and, as a general rule, must be construed most strongly against the pleader (Athens Mfg. Co. v. Rucher, 80 Ga. 291, 4 S. E. 885); but if a petition be subject to two constructions and there be no demurrer thereto, and the case has proceeded to trial and resulted in a verdict, then, in determining whether the case has been proved as laid, that construction will be adopted which is most favorable to the assertion of a cause of action in the plaintiiFs favor. Payton v. Gulf Line Ry. Co., 4 Ga. App. 762 (62 S. E. 469).” Bell v. State Life Ins. Co., 24 Ga. App. 497 (5) (101 S. E. 541).

Nor do we think that the fact that all of the services which contributed to the collection may have been done by Boberts would preclude a recovery by Allen, if the agreement between them was made as alleged. If-the defendant agreed to accept the services of the plain tifi;, he could not thereafter defeat the agreement and deny liability merely because lie elected to proceed alone, if the plaintiff was ready and willing to perform, as might have been inferred from the evidence. The conclusion is not demanded that the taxes were collected before February 3, when the conference at Macon resulted as claimed by the plaintiff in the agreement upon which he relies. Where one is working upon a project and, without knowing that it is near consummation, agrees with another that they will cooperate in concluding it, thus taking the risk of allowing to the other a share of the earnings out of proportion to the service that may be rendered, he cannot escape liability merely because it turns out that the services of the other were not needed.

The plaintiff in error contends that there was no reason impelling him to make the agreement. While the fact that the State tax-commissioner may have suggested cooperation between the parties would not alone afford a consideration, it might offer a motive for entering the agreement upon a slight consideration. Roberts’ appointment was made by this officer, and the contract embodying the appointment provided that it was terminable at any time by either party giving the other party five days’ written, notice. Assuming that the commissioner could not have terminated the contract so as to deprive Roberts of the privilege of proceeding in the county of Camden or in any particular county with which he may have contracted, the refusal of Roberts to concur in the suggestion of the officer appointing him, that the parties hereto for the sake of harmony should cooperate in the particular matter, might have been regarded by Roberts as imperiling his right to proceed in other instances, and he might thus have been induced to enter the agreement with Allen upon terms which he did not regard as advantageous, but not lacking altogether in consideration. Mere inadequacy of consideration alone will not void a contract. Civil Code (1910), §4244. The promise of Allen to help or cooperate in doing the work was a sufficient consideration for the agreement of Roberts to accept and pay for the service. Civil Code (1910), §§4242, 4246; Bing v. Bank of Kingston, 5 Ga. App. 578 (2) (63 S. E. 652).

With reference to a further contention, we think that the agreement as shorn by the evidence of the plaintiff was not void for uncertainty. That is certain which may be made certain. Refer-enee was had to the defendant’s appointment and his contract with the county of Camden. In these were to be found the thing to be done which the plaintiff agreed to cooperate in doing. Whatever was reasonably necessary to be done in execution of the projected undertaking by Eoberts Allen agreed to help in accomplishing. Nor does the agreement appear unilateral.

Was there any material variance between the allegations and the proof? If the plaintiff’s right to a recovery had depended upon his contract of January 2 with the State tax-commissioner, his case would necessarily fail because the contract of December 29, not referred to in the petition but shown by the evidence, superseded the former one. It is distinctly disclosed, however, by the petition, that the plaintiff had never made any contract with the county in pursuance of his contract of January 2 with the State, and that his cause of action is laid in the contract with the defendant of February 3. We think that his testimony tended to support the petition in respect to this agreement, and thus we cannot concur in the contention of the learned counsel for the plaintiff in error, that upon this point there is a material and fatal variance. It is, of coarse, true that a plaintiff must recover upon the cause of action as laid in his petition, and a verdict in his favor is illegal when the evidence fails to support the cause declared on, even though another and different cause of action appear from testimony admitted without objection. “No plaintiff can recover upon a cause of action, however just or well, sustained by proof, which is totally distinct and different from that alleged in his declaration, and this is so. although palpably irrelevant evidence may have been received without objection.” Central Railroad & Banking Co. v. Cooper, 95 Ga. 406, 407 (22 S. E. 549); Burdette v. Crawford, 125 Ga. 577 (2) (54 S. E. 677). But “a different rule would apply when evidence admitted without objection could have been rejected as not conforming to the allegations as laid, but in fact related to the cause of action declared on. In such a case our courts have repeatedly held that a party waives his objections to the pleadings by allowing such evidence to go to the jury without objection; the reason for this just rule in such a case evidently being that had objection been made, the party tendering such evidence might have amended his pleadings so as to conform thereto. One of the principal functions of amendments is to conserve this right. Haiman v. Moses, 39 Ga. 798 (3); Savannah, F. & W. Ry. v. Barber, 71 Ga. 644 (2a); Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702 (4) (87 S. E. 1093).” Napier v. Strong, 19 Ga. App. 401 (2), 406 (91 S. E. 579).

We think that any variance appearing between the allegata and probata was not so wide that it could not have been cured by amendment, that is, that an amendment if offered for that purpose would not have been objectionable as adding a new and distinct cause of action. See Napier Y. Strong, supra, and cases therein cited. This being true, the variance is not cause for a new trial where the evidence was admitted without objection. We have not overlooked the fact that the plaintiff alleged an agreement by which the parties would cooperate in doing certain work, while the evidence would tend to show that there was no cooperation. There is some similarity to a case where one, after contracting to buy goods, countermands the order; in which an action on account for the goods will not lie, but the seller must sue as for a breach of the contract (Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (2), 42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112); but we have reached the conclusion that the doctrine of the case last cited and the many others to the same effect is not applicable to the case now under consideration. The principle governing a case like the present one would appear more analagous to that found in the Civil Code (1910), § 3588, in which it is provided: “When the contract is for a year, and the employer discharges the agent before the end of the year, the agent may either sue immediately for any special injury from the breach of the contract, or, treating the contract as rescinded, may sue for the value of the services rendered, or he may wait till the expiration of the year and sue for and recover his entire wages.” If the evidence of the plaintiff be true, he appears to be entitled to the third of the remedies provided by this section. This is the remedy he elected in his suit. He waited until the termination of the period of the engagement, and then sued upon the contract as was his right. See Rogers v. Parham, 8 Ga. 190; Perdue v. Gason, 22 Ga. App. 284 (96 S. E. 16). Certainly he was not, as a matter of law, required to sue as for a breach of the contract because of a failure on the part of the defendant to cooperate or to allow him to help in the execution of the projected undertaking, when the defendant did not notify the plaintiff that he would repudiate the agreement or refuse to be bound by its terms until after the time for performance had passed, and the only breach of which the plaintiff was actually put upon notice, according to his evidence, was the defendant’s refusal to pay.

It is further insisted that, because of the stipulation in the contract between Roberts and the State that it was made on account of the confidence reposed in Roberts, and was not transferable, but was executed with the understanding that the work was to be carried on by Roberts in person, the agreement which Allen would enforce is invalid, unenforceable, “contrary to public policy, and void.” We do not see anything in the agreement which would violate the law. The question is merely whether Roberts, in agreeing with Allen, violated the express and personal stipulations contained in the agreement he had made with the State. “Whatever one may do himself may be done by an agent, except such personal trusts in which special confidence is placed on the skill, discretion, or judgment of the person called in to act; so an agent may not delegate his authority to another, unless specially empowered to do so.”. Civil Code (1910), § 3571. See also Tifton &c. Ry. Co. v. Bedgood, 116 Ga. 945 (43 S. E. 257); Adair v. Smith, 23 Ga. App. 290 (5) (98 S. E. 224). The agreement between Roberts and the State could not have been assigned, but Allen is not relying upon a transfer, and is not proceeding against the State. If he were seeking to do either, of course he should fail. The fact that Roberts himself might have violated his civil agreement with the State, and thus have imperilled his right to be paid, would not necessarily preclude his personal liability to another whom he engaged to cooperate with him in executing the work he had undertaken.

“A contract will be construed as made for a legal, rather than for an illegal purpose; and the more especially when such contract is attacked by a party thereto who has been benefited thereby.” Virginia Bridge Co. v. Crafts, 2 Ga. App. 126 (3) (58 S. E. 322). “‘Courts hold themselves bound to the observance of rules of extreme caution, when invoked to declare a transaction void on grounds of public policy; and prejudice to the public interest must clearly appear before a court will be warranted in pronouncing the transaction void on this account. It is not to be lightly inferred from facts and circumstances of doubtful import and meaning, or which may admit of different construction, one consistent with and the other opposed to unquestioned policy.’ Smith v. DuBose, 78 Ga. 415 (3 S. E. 314, 6 Am. St. Rep. 260).” Virginia Bridge Co. v. Crafts, supra. But another and important consideration here is the fact that that tax-commissioner appears to have consented to what was done, and thus to have waived his requirement that the work he expected of Eoberts should be done by him personally. If the State tax-commissioner had denied the right of Eoberts to compensation, because of the agreement with Allen, would it not have been a sufficient reply that the commissioner had given his consent to what had been done, and that Eoberts had acted thereon?

We do not know of any requirement that the contracts (not referring to the act itself of appointing) between the commissioner and the special tax-investigators should be in writing, and his subsequent agreement upon which both the parties acted, if the plaintiff’s testimony is true, would appear to have had the effect of a modification to that extent of his original requirement that the services of Roberts should be personal. Both the plaintiff and the defendant had been appointed as special tax-investigators. The failure of Allen to procure a contract with Camden county did not deprive him of his general official character, but merely affected his right to commissions from the State for work in that county. The tax-commissioner had before him two officers of like authority, and, without affecting the interests of the State, could very well agree to waive the stipulation referred to, in order that one might assist in the work of the other, he allowing them to settle among themselves the mere detail of a division of fees. See Bynum v. Knighton, 137 Ga. 250 (73 S. E. 400, Ann. Cas. 1913A, 903).

This will conclude a consideration of the general grounds of the motion for new trial and of those special grounds which logically fall within the same class. We cannot agree that the verdict should be set aside on the ground that the contract sought to be enforced was illegal or contrary to public policy, as contended, nor can we hold that the verdict was wholly without evidence to support it.

In one of the grounds of the motion for new trial the “movant contends that the alleged contract of February 3, 1931, which forms the basis of this suit, is void and unenforceable because it is a contract for the sale of goods, wares, and merchandise to the amount of $50 or more, and is not in writing, signed by the party to be charged therewith, and is within the statute of frauds, and there are no facts or circumstances shown to take it out of the operation of the statute of frauds.” This question is raised for the first time in the motion for a new trial. “Where the statute of frauds was not pleaded, and there was no demurrer, motion for nonsuit, or objection to testimony, so as to invoke a ruling in the court below on that subject, this court will not grant a new trial on the ground that the verdictds contrary to law because it appears that the contract sought to be enforced should have been in writing. Johnson v. Latimer, 71 Ga. 470 (3).” Bridges v. Williams, 148 Ga. 376 (96 S. E. 499). But irrespective of whether this rule of practice would be applicable where the point is made in a special ground of the motion, the contract relied on does not appear to fall within the particular provision of the statute which the movant would invoke. There is no insistence that any other provision of the statute is applicable.

Two of the grounds of the motion complain respectively of the admission and rejection of evidence. It is insisted that the court erred in allowing in evidence on behalf of the plaintiff a written memorandum drawn from the “tax-books” of Camden county by the chairman of the board of equalizers and furnished to the plaintiff, purporting to show the tax returns of the persons referred to in the petition. The objection was urged that the evidence was hearsay, and that a certified copy of the return would have been the best evidence. The purpose of the evidence apparently was not to establish the correctness of the particular return, but rather to illustrate that the plaintiff had undertaken the investigation. While this fact could not amount to a consideration for the contract sued on, it was not improper to admit the evidence as a part of the history of events leading up to the making of the alleged contract of February 3. “When, in a legal investigation, information, conversations, letters, and replies, and similar evidence are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, but as original evidence.” Civil Code (1910), § 5763. But even if we have misconceived the purpose and relevancy,of this evidence, it certainly could have done no harm on the grounds urged in the objection. Whether the returns were correct or incorrect was in no way involved. Irrelevant evidence is not necessarily good ground for a new trial. Moreover, it is not assigned that the evidence was not relevant.

The following testimony of the defendant was excluded: “I wired to Pittsburg and got the number or the total value of the stocks and bonds held by the Fidelity Trust & Banking Co., of Pittsburg, Pennsylvania, as agents for the trustees of the Carr negie estate,” the objection thereto being that the telegram was in writing and that the writing was the best evidence. The defendant testified: “I don’t really know where the telegram is now.” This would not seem to be a sufficient foundation for the admission of secondary evidence, but, assuming it to be sufficient, there was no injury in excluding the evidence. It could only have shown the services of Eoberts, about the rendition of which no issue was made.

Three of the grounds of the motion for a new trial except to the refusal of requests to charge. One request was for a charge that “In this suit plaintiff contends that defendant made a verbal agreement to divide the fees earned by defendant from the collection of certain taxes paid by the trustees of the Carnegie estate. Defendant denies having made any such agreement, and further claims that there was no reason impelling hiifi to such agreement, and that there was no consideration for any agreement to divide his fees with plaintiff. If you should believe from the evidence in the case that defendant did not agree to divide his fees with plaintiff, you should find a verdict for the defendant in the case. If you should believe the contention of the plaintiff that defendant did agree to divide his fees with plaintff, but that such agreement was made after defendant had completed the work for which he had been employed, and that defendant had already earned the fees, paid or to be paid him, and that there was no legal consideration for the alleged agreement, then I charge you that such alleged agreement would be in law a mere nudum pactum, revocable at the will of the defendant, and not legally enforceable against him, and I charge you that in such event you should find a verdict for the defendant.” It is assigned that the court declined to give the charge as requested “except in so far as it related to a denial by the defendant that he made the alleged contract.” Assuming that the defendant’s answer raised an issue as to the consideration of the contract relied upon (Doggett v. Simms, 79 Ga. 253 (3), 4 S. E. 909; Martin v. Nichols, 127 Ga. 705, 56 S. E. 995; Citizens Bank of Roswell v. Reese, 145 Ga. 110 (2), 88 S. E. 570; Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369, 83 S. E. 445), that the assignment of error is sufficient, and that the request was in proper form and abstractly correct, we do not think that so much of the request as was refused was pertinent to the issues as made by the evidence. The jury could not have applied it, unless they believed the testimony of Allen with reference to the making of the agreement of February 3 and at the same time should have accepted the testimony of Eoberts that he then and there told Allen that the work had been entirely completed and that there was no occasion or possibility for cooperation.

The respective versions of the parties with respect to what occurred in their conference on February 3 which resulted, as the plaintiff contends, in the making of the contract sued on, as contained in the testimony of each respectively, were so directly opposed that the jury could not reasonably have accepted the one in part and the other in part. The opportunity was not presented, under the issues, for an application of the rule laid down in Sappington v. Bell, 115 Ga. 856 (42 S. E. 233), that “a jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.” The testimony of each of the parties was necessarily to be considered as a whole. They were at variance at every material point. The conflict was direct and acute. If they believed that the contract was made as contended by the plaintiff, they could not have believed, as contended on the other hand by the defendant, that the plaintiff was informed that the work had been completed and that there was no reason or consideration for the agreement. We do not think that the proposition as stated in the request would be applicable if the agreement was made in fact, unless it could also be true that the plaintiff was informed of the completion of the work as the defendant contended. If he had performed it but kept it a secret at the time of the alleged agreement, he could hardly take advantage of that fact to assert that the agreement was a nude pact.

A further request was that the court charge as follows: “The law places upon the plaintiff the burden of proving to the jury, by a preponderance of the evidence, his contention that such agreement was in fact made. If all of the evidence adduced upon this trial, taken together, should fail to produce upon your minds a balance of belief, based upon the preponderance of the evidence, that the alleged agreement was in fact made, then it would be you,r duty to find for the defendant, for an even balance of doubt or belief in your minds, based upon an even balance of'the evidence, in your judgment, would not overcome the burden of proof imposed by law upon the plaintiff, and would not authorize a verdict for the plaintiff.” If the weight of the evidence is equally balanced upon an issue as to which the plaintiff has the burden of proof, he would not be entitled to prevail. Assuming that a refusal of a request so to charge would be error, notwithstanding the fact that the court correctly charged section 5731 of the Civil Code, defining preponderance of evidence, we are not prepared to hold that the request would have imparted more light to the jury on the significance of the preponderance of the evidence, or the meaning of burden of proof, than was given by the court in charging the code section. The refusal of this request was not cause for a new trial.

The third request refused was that the court charge as follows: “The requirements of a legal contract in Georgia are not met by a mere understanding on the part of one of the parties that an agreement has been made. To constitute a legal, binding, enforceable contract, it must appear that there has been a mutual meeting of the minds of the contracting parties. In this case the plaintiff contends that he verbally proposed to defendant that defendant divide with plaintiff the fees paid or to be paid to defendant, and that defendant agreed to the proposition. This contention is denied by the defendant. If you should believe from the evidence that plaintiff had a conference with defendant on the subject, and undertook to express to defendant the above-stated proposition, but that the defendant either did not hear or did not understand the proposition and did not agree to the proposition, then I charge you that the defendant would not be liable in this case, even though the plaintiff may have intended and attempted to convey the proposition to defendant, and even though plaintiff in good faith may believe his proposition to have been understood and agreed to by the defendant. In that event, it would be your duty to find for the defendant.” This request was not pertinent. The defendant did not contend that he failed to hear and comprehend everything said to him by Allen in Macon. No such issue was presented by the evidence.

We have most carefully considered every ground of the motion for a new trial. The case is a close one, both upon the law and the facts, but we do not find any sufficient cause in the record for setting aside the verdict.

The validity of the underlying contracts between the parties respectively and the State tax-commissioner is not drawn in question by either party. ' This decision therefore assumes them valid, without any holding in reference thereto. The issue which we conceive to be presented by the record arises upon the claim of the contract of February 3 between the plaintiff and the defendant. We have rendered our decision accordingly.

Judgment affirmed.

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


author: Bell, J. Bell, J.

text:
    14723.
    UNION MARINE FIRE INSURANCE COMPANY v. McDERMOTT, for use, etc.
    “Wliere a petition setting out a cause of action lias been filed and followed up by the issuance of process and service, the time of the commencement of the suit is the date of its filing. But wliere, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending. The filing of the petition without more does not operate to commence a suit; nor has the judge in such a case authority, at or after the return term, to order a new process to issue.” While there was a so-called process in the in-' stant ease, it was void; and, applying this ruling, the court erred in not sustaining the general demurrer and dismissing the petition.
    Decided February 25, 1924.
    Rehearing denied March 1, 1924.
    Action on insurance policy; from Floyd superior court—Judge Wright. May 18, 1923.
    McDermott, for the use of Watkins, filed a suit in the superior court of Floyd county against the Union Marine Fire Insurance Company upon a policy of fire insurance. The policy was issued on October 25, 1920, on which date, it is alleged, the defendant had an office and agent in Floyd county, -where the policy was written, but it is further alleged that “before the filing of this petition said office of said defendant has been discontinued, and now said defendant has no agent or place of doing business in said county,” and that the defendant is a nonresident insurance company. The policy contained the following clause: “No suit or action upon this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity . . unless commenced within twelve months next after the happening of the loss.” It is further alleged that the property covered by the policy was destroyed by fire on February 18, 1921, in Floyd county. The suit was filed on November 17,1921, returnable to the January term, 1922, and on the same date process was attached and issued by the clerk, directed to the sheriff of Floyd county. On the same date an entry was made upon the petition by a deputy sheriff of Floyd county, reciting that service had been made by leaving a copy “at the place [specifically designated in the entry] where was located the agency or place of doing business of said Union Marine Fire Insurance Company, Ltd., on the 25th day of October, 1920,” this being the date on which the policy was written. On February 25, 1922, the defendant made a special appearance for the purpose of attacking this entry, which was done by a motion to which the sheriff and his deputy were made parties. It was alleged in the motion that the return of service was void and of no effect, for the reason that it does not recite or show that the petition and process were served or attempted to be served upon the defendant, and because that part of section 2564 of the Civil Code of Georgia of 1910, under which the service was attempted to be made, is void and unconstitutional, as was held by the Supreme Court in Jefferson Fire Insitrance Oo. v. Bracicin, 140 Qa. 637. It does not appear that any action was ever taken by the court upon this motion, but on March 4, 1922, the plaintiff amended his petition by alleging that “the defendant company, a foreign insurance company, has a duly appointed and authorized named person, to wit: C. D. Martin, of Atlanta, Georgia, a resident of Fulton, county, Georgia, to acknowledge or receive service of process and upon whom process may be served in suits against said defendant company.” In this amendment the plaintiff prayed for the issuance of a second original, with process thereon directed to the sheriff of Fulton county, and that the same should be served upon C. D. Martin, the defendant’s agent for that purpose. On March 4, 1922, the amendment was allowed and an order was passed making the following April term the appearance term and directing that service be made as prayed. This order was complied with and service was perfected upon the defendant thereunder for the April term, 1922.
    The defendant appeared at this term and demurred to the petition upon the following grounds, among others: “(1) That plaintiff’s petition does not set forth any cause of action against this defendant. (2) That plaintiff’s petition shows that suit on said policy was not commenced within twelve months next after the happening of the loss, as provided by said policy, and is therefore barred. (3) That plaintiff’s petition shows that there was no authority in this court to pass order making petition returnable to a subsequent term. (4) That plaintiff’s petition shows that said suit is void, not maintainable and of no effect.” Also: “That the original petition filed in this cause shows by its terms that there was no person residing within the county of Floyd upon whom process could be served, for which reason the process that was issued by the clerk, directed to the sheriff of Floyd county, was therefore of no effect and void, and there was no legal process attached to said original petition, for which reason no suit has been legally brought and none was pending on March 4, 1922, at the time plaintiff attempted to amend his petition and procured an order of the court thereon. For which reason defendant prays that said proceeding be held void and of no effect and be dismissed from the docket. At the time plaintiff filed his amendment, on which the court passed an order, to wit: on March 4, 1922, the original process issued on the. original petition was functus officio, service not having been perfected prior to the term of court to which the suit was returnable. The suit was therefore no longer pending, and there was no proceeding in court in which the court had the power to grant such an order as was attempted to be granted on March 4, 1922. Further, defendant says at the time of allowing said amendment and the granting of said order on March 4, 1922, the time in which plaintiff was authorized to bring suit under the terms of the policy had expired. For which reason defendant prays that said proceeding be held void and of no force and effect and be dismsised from the docket.” The demurrer was overruled, and to this judgment the defendant excepted.

      Tye, Peeples & Tye, L. A. Dean, Lamar Camp, for plaintiff in error.

      Porter & Mebane, contra.
   Bell, J.

(After stating the foregoing facts.) That part of section 2564 of the Civil Code’which provides that in an action of the character referred to service may be perfected upon the insurance company by leaving a copy of the petition or writ where the agency or place of doing business was located in the county at the time the cause of action accrued, or the contract made out of which the same arose, has been held by the Supreme Court to be unconstitutional, because violative of the due-process clauses of both the State and the Federal constitutions. Jefferson Fire Insurance Co. v. Brackin, 140 Ga. 637 (2) (79 S. E. 467). The return of service as made by the deputy sheriff upon November 17, 1921, therefore amounted to no service at all and was properly disregarded. The process attached on the date of the filing of the suit was directed to the sheriff of Floyd county, although the petition shows upon its face that service could not be perfected by this officer, because it appears therefrom that the defendant did not have in Floyd county any agency or place of business at which or any agent upon whom service might be made. If it had appeared in the original petition, as it did later by the amendment of March 4, 1922, that the defendant had a designated agent elsewhere in the State upon whom service might be perfected, then the clerk should have issued a process directed to the sheriff of the county of the residence of such agent (Jefferson Fire Insurance Co. v. Brackin, supra), but until this fact was alleged the petition did not disclose the possibility of service by any one, and the clerk therefore was powerless to issue a process directed to any officer whomsoever.

Whether it be true that where a clerk is authorized to issue a. process, the fact .that the process so issued is directed to the, wrong officer will not render the process absolutely void, but merely defective and amendable (see, in this connection, Beasley v. Smith, 144 Ga. 377 (2), 87 S. E. 293; Callaway v. Harrold, 61 Ga. 111; Mitchell v. Long, 74 Ga. 94 (3); Richmond & Danville R. Co. v. Benson, 86 Ga. 203, 12 S. E. 357, 22 Am. St. R. 446; Kelley v. Fudge, 2 Ga. App. 759, 59 S. E. 19; Pearson v. Jones, 18 Ga. App. 448, 89 S. E. 536), this could not be the case where the clerk was wholly without power to issue the process at all. Here the averments of the petition were insufficient to confer such authority. “Yoid process, or where there is no process or waiver thereof, cannot be amended.” Civil Code (1910), § 5693. “Where a petition^ setting out a cause of action has been filed and followed up by th^' issuance of process and service, the time of the commencement ,of the suit is the date of its filing. But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending. The filing of the petition without more does not operate to commence a suit; nor has the judge in such a case authority, at or after the return term, to order a new process to issue.” Nicholas v. British America Assurance Co., 109 Ga. 621 (34 S. E. 1004). See also Chapman v. Central of Georgia Railway Co., 20 Ga. App. 251 (92 S. E. 1025). In none of those .cases in which it has been held that when, without negligence of the plaintiff, there'has been a failure of service, the court might, at or after the appearance term, order a new process, and that a service then made would be valid (among these cases see Allen v. Mutual Loan & Banking Co., 86 Ga. 74, 12 S. E. 265; Sims v. Sims, 135 Ga. 439, 69 S. E. 545), had there been a previous total absence of process. In the Nicholas case the Supreme Court further said: “It is freely conceded that in cases where the process attached is irregular or defective, the same may be cured by amendment under the order of the judge; but the provisions of law which apply to the amendments of process do not obtain in a case where there is an entire absence of any original process.” In that case the clerk had issued a process, but not until after the appearance term had passed, and therefore not until his power to do so had been lost. It was held, the original process being void, the judge was without authority, at or after the return term to.order the issuance of a new process. That case differs from the case at bar only in the fact that here the power of the clerk to issue the process was never, conferred, because the petition was wholly insufficient 'for that purpose, in that it did not disclose that there was any officer to whom the process might be directed. In this respect the petition is unlike that in Jefferson Fire Insurance Co. v. Brackin, supra; for in that case “the petition alleged that the defendant company had duly appointed and authorized a named person resident in another county of the State to acknowledge or receive service of process and upon whom process might be served in suits against the company.” The clerk had before him this averment of the suit when issuing the process directed to the sheriff of that county. “In this State the filing of the petition in the clerk’s office will’ be considered as the commencement of the suit, if service is perfected as required by law. But if no service is made, the mere filing of a petition will not suffice to authorize the action to be treated as commenced and perpetually pending.” McFarland v. McFarland, 151 Ga. 9 (2) (105 S. E. 596).

It follows from the above that the petition cannot be treated as a suit pending from the date of its filing, but, on the other hand, whatever life, if any, it may have had originally had already become extinct when the judge allowed the amendment of March 4, and thereupon ordered the issuance of a new process and the perfection of service for the succeeding term. The mortality of the action being complete, mere judicial power could not revive it. Thus not only was there no action commenced until more than 12 months after the happening of the loss, but even if the so-called action, in view of the defects noted could by any possibility be said to have had a germ of life at its filing, yet the suit, having abated by reason of the want of process, is to be treated as a nullity. In this view the additional fact, shown in the record but not given in the statement above, that the plaintiff had filed a previous suit upon the same cause of action, which was followed by service and then dismissed, is immaterial. But even if we could hold that a valid suit was pending from and after March 4, 1922, yet it being stipulated in the policy that no action thereon should be sustainable unless commenced within twelve months next after a loss should occur, an action brought after the lapse of that period was barred, although it purported on its face to have been a renewal of a previous action which was instituted within the time limited, and to have been brought within six months after the dismissal of the first action. Melson v. Phenix Insurance Co., 97 Ga. 722 (25 S. E. 189).

This case is identical in principle with the Nicholas and Chapman cases. The court erred in overruling the demurrer.

Judgment reversed.

JenTcins, P. J., concurs. Stephens, J., dissents.

ON MOTION EOR REHEARING.

Bell, J.

The -defendant’s demurrer began as follows: “Now comes the defendant at the first term after service of process,” etc. A part of the demurrer is purely general in nature. The court did not overlook these facts in rendering its decision. Nor did we overlook section 5529 of the Civil Code, which provides that “Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof,” or the numerous decisions in which this section is applied. Neither were we unmindful that the filing of a general demurrer is appearance and pleading to the merits. But in view of the demurrer as a whole, it cannot possibly be taken that in using the expression, “Now comes the defendant at the first term after service of process,” the defendant intended to waive the invalidity either of the process or of the service made thereon, when in the selfsame pleading the validity of each is distinctly attacked. IJpon this question the case falls well within the principle of the decision of the Supreme Court in Stallings v. Stallings, 127 Ga. 464 (6) (56 S. E. 469, 9 L. R. A. (N. S.) 593), wherein it was said: “The rule that appearance and pleading waives irregularities in the process or its absence, and the service thereof, and the other rule which declares that if a defendant appear and plead to the merits, without pleading to the jurisdiction and without excepting thereto) he admits the jurisdiction of the court, have no application so as to effect a waiver where the defendant excepted to the service, moved to dismiss the case for want of service, and pleaded to the jurisdiction at the time of filing his defense.” See also Western & Atlantic R. Co. v. Pitts, 79 Ga. 532 (3) (4 S. E. 921); McFarland v. McFarland, 151 Ga. 9 (3) (supra); Medical College v. Rushing, 124 Ga. 239 (3) (52 S. E. 333); Cox v. Adams, 5 Ga. App. 296 (2) (63 S. E. 60); Carter v. Smith, 5 Ga. App. 804 (2) (63 S. E. 932); Conner v. Hodges, 7 Ga. App. 153 (2) (66 S. E. 546); Drake v. Lewis, 13 Ga. App. 276 (2) (79 S. E. 167).

Rehearing denied.

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


author: Stephens, J.

text:
    14242.
    Fields v. Queen Insurance Company.
    Decided February 27, 1924.
    Action upon fire-insurance policy; from city court of Oglethorpe —Judge Greer. September 27, 1922.

      B. F. Neal, John B. Guerry, for plaintiff.

      Spalding, MacDougald & Sibley, Jule Felton, for defendant.
   Stephens, J.

1. It is necessary to a recovery by an insured under a fire-insurance policy that he show a compliance with the terms and conditions of the policy, including the so-called “iron-safe clause.” Jefferson Fire Ins. Co. v. Brackin, 147 Ga. 47 (92 S. E. 930). Where the policy, which is upon a stock of merchandise and store furniture and fixtures, etc., provides that if the insured has not within 12 calendar months prior to the date of the policy, or “within 30 days of the issuance of this policy,”'taken a complete itemized inventory of the stock on hand, the policy shall be null and void, the insured, carrying the burden of showing a compliance with the terms of the policy, does not show a compliance therewith where the policy was issued on November 4, 1921, and one inventory was taken “some time in November, 1920,” and another inventory was taken on January 28, 1922, since “ some time in November, 1920,” may be more than 12 calendar months prior to the issuance of the policy, and January 28, 1922, is more than “30 days of the issuance of” the policy.

2. In a suit on the policy, where the evidence of the insured himself (which must be taken most strongly against him) shows that he operated his store “from about November 1, 1920, until the date of the fire,” and that he “bought the store some time in November, 1920,” and “took an inventory when [he] bought it,” there is no inference therefrom that the inventory was made after November 4, 1920, and therefore within 12 months prior to November 4, 1921, the date of the policy.

3. Such a provision being a promissory warranty, the policy sued on became void as to both the merchandise and the fixtures, upon the insured’s failure to comply therewith, and the court properly awarded a nonsuit. Southern Fire Insurance Co. v. Knight, 111 Ga. 622 (3) (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216); Scottish Union &c. Co. v. Stubbs, 98 Ga. 754 (4-6), 761 (27 S. E. 180); Finleyson v. Liverpool &c. Co., 16 Ga. App. 51 (84 S. E. 311).

4. The ease of Southern Fine Insurance Co. v. Knight, supra, in which it was held that “A policy of fire insurance the consideration for which is a premium payable in. a gross sum is entire and indivisible, though the contract insures different classes of property in separate amounts,” is, although the decision was by a divided court, a well-considered case, in which all of the authorities pro and con are weighed and analyzed, and the conclusion there reached seems to be in accordance with the weight of authority and, in our opinion, correct. We therefore do not deem it advisable to comply with the request of counsel for the plaintiff in error by certifying to the Supreme Court the question as to the soundness of that decision.

Judgment affirmed.

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


text:
    14283.
    Douglas v. Prescott.
    Decided February 27, 1924.
    Action for damages; from DeKalb superior court—Judge Hutcheson. January 13, 1933.

      Lee Douglas, for plaintiff.

      Spalding, MacDougald & Sibley, for defendant.
   Stephens, J.

1. Where personal property is damaged by the tortious act of another, the measure of damages is the difference between the value of the property before the damage and afterwards. In a suit by the owner of personal property to recover the amount of its damage as the result of an alleged tortious act of another, the plaintiff, who has recovered a verdict in a certain amount, cannot complain that the court erred in charging the above rule as the true measure of the damages, and in not charging that the value of the repairs necessitated by the damage was the true measure.

2. This being a suit to recover for damage to the plaintiff’s automobile, sustained as a result of a collision with an automobile of the defendant, and there being evidence as to the value of the plaintiff’s automobile before and after the collision, and as to the character and the amount of the damage, and as to the value of the repairs, and there also being evidence authorizing an inference of negligence on the part of the plaintiff, the verdict found for the plaintiff was necessarily more or less uncertain as

■ to the amount found, and was necessarily the result of opinion and estimate upon the part of the jury, both as to value and as to the degree of negligence, and the plaintiff cannot complain that the evidence demanded a larger verdict in his behalf.

3. There being no evidence of any wilful, wanton, or malicious conduct on the part of the defendant in causing the damage to the plaintiff, the evidence did not authorize the jury to assess any amount as punitive damages; and the court therefore did not err in failing to present this issue to tlxe jury. Southern Ry. Co. v. Davis, 132 Ga. 812 (3) (65 S. E. 131).

4. The evidence authorized the inference that both parties were negligent, and the court properly adjusted its charge thereto.

5. All of the issues in the case were fairly submitted to the jury, and no error of law appears. The evidence supports the verdict rendered for the plaintiff, and the court did not err in overruling the plaintiff’s motion for a new trial.

Judgment affirmed.

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


text:
    14311.
    Peoples & Planters Mutual Fire Association v. Wyatt.
   Stephens, J.

1. Where a fire-insurance policy appears, upon its face, to be issued to a husband in his individual capacity upon property purporting to belong to him, but which in fact belongs to the wife, the policy will, where the insurer, through the agent issuing-it, had actual notice from the husband, at the time, that the property insured belonged to the wife, be construed as a valid contract of insurance, covering the property of the wife, issued to the husband as trustee, and the husband can recover therefor for the benefit of the wife. See, in this connection, Civil Code (1910), § 2472; Atlas Assurance Co. v. Kettles, 144 Ga. 306 (87 S. E. 1); Fox v. Queen Ins. Co., 124 Ga. 948 (53 S. E. 271); Orient Ins. Co. v. Williamson, 98 Ga. 464 (25 S. E. 560); 14 R. C. L. 917; 45 L. R. A. (N. S.) 1131.

Decided February 27, 1924.

Action on fire-insurance policy; from city court of Statesboro— Judge Strange presiding. January 16, 1923.

John F. Brannen, for plaintiff in error.

Francis B. Hunter, contra.

2. Where the property insured consisted of two barns belonging to the wife, and in addition thereto the contents of the barns, consisting of “all farm products, farming utensils, and buggies,” the contents of the barns were insured within the terms of the policy, which provided that “in no case shall household goods, barns, and contents be insured except within building insured in this association,” and the husband could recover therefor in his individual capacity.

3. Where, in such a case, the policy provides that “this association shall not be released from any obligation in case of loss or damage because of liens, mortgages, or defective titles to the property, but when it shall appear that the insured is not the rightful or legal owner of the property, then shall the insurance, or such part of same as may not belong to the insured, be paid to the proper owner,” the contract of insurance is good as to the contents of the barns, whether or not it constituted a valid contract of insurance as respects the barns.

4. The passing of title by the death of the insured (as in this case the wife) is not such a change of title as will void a fire-insurance policy which contains a provision that “if at any time there shall be a change of title or ownership of the within-described property, the obligations of the insured and the association shall at once cease.”

5. The husband having maintained the suit in his individual capacity, the judgment finding for the plaintiff will not be reversed upon the ground that the suit is not maintained by him for the use of the wife as beneficiary. The- petition being subject to amendment in this respect, a failure to so amend was cured by verdict.

6. In a suit by the husband against the insurer to recover for the loss to the barns, as well as the contents, the verdict for the plaintiff was authorized, and the court did not err in overruling the defendant’s demurrer to the petition, or in overruling the defendant’s motion fop a new trial.

Judgment affirmed.

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


text:
    14317.
    Morgan v. City of LaGrange.
    Decided February 27, 1924.
    Action for damages; from city court of LaGrange—Judge Duke Davis. January 23, 1923.

      W. T-. Tuggle, for plaintiff.

      Lovejoy & Mayer, for defendant.
   Stephens, J.

1. Where real estate has been damaged by an abutting street improvement made by a city, the owner cannot recover any damage for an alleged decrease in the market value of the property where, by reason of the enhanced value of the property because of the improvement, the market value of the property has not been decreased. Moore v. City of Atlanta, 70 Ga. 611 (3); Guess v. Stone Mt. Granite Co., 72, Ga. 320 (5); City of Atlanta v. Word, 78 Ga. 276 (3); Hurt v. City of Atlanta, 100 Ga. 274 (3) (28 S. E. 65).

2. The petition in this case for the recovery of damages because of decrease of the market value of the freehold, the court did not err in charging the law in accordance with the rule announced above.

3. Where the plaintiff is in possession of real estate devised to her under a will whereof she is the sole executrix, the assent of the executrix to the devise. is presumed. Thursby v. Myers, 57 Ga. 155. The question as to the plaintiff’s title to the property alleged co have been damaged, therefore, not being issuable, it was error prejudicial to the plaintiff, who did not prevail in the suit, to submit such issue to the jury, and for this reason a new trial is ordered.

Judgment reversed.

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


text:
    14494.
    Rutledge v. Temple Banking Co.
   Stephens, J.

1. A promise by the maker to the holder of a promissory note after the maturity of the note, to pay a part of the accrued indebtedness, is not a good consideration for an agreement by the holder to extend the time of payment, and therefore does not operate to release a surety.

2. Where the holder of a note applies to other indebtedness due him by the maker a payment made by the maker on the note, it does not operate to increase the existing liability of the surety, and therefore does not release the surety.

3. This being a suit by the holder against the surety on a note, and it appearing from the facts pleaded by the surety that he is not indebted to the plaintiff in the full amount sued for, by reason of the principal debtor having reduced the amount of the indebtedness by a payment of a certain sum, the plea to this-extent set up a good defense, and the court erred in striking it on demurrer.

Decided February 27, 1924.

Complaint; from city court of Carrollton—Judge I-Iood. March 16, 1923.

Beo,ll & Smith, for plaintiff in error.

Smith & Millican, contra.

4. The striking of the plea was error affecting- the verdict and judgment for the plaintiff.

Judgment reversed.

Jenlovns, P. J,. and Bell, J., concur.


text:
    14525.
    Blount v. Fisher & Willis.
   Stephens, J.

1. An obligor in an agreement to pay a certain sum of money as representing me debt of another, due the obligee, will be discharged pro tanto upon the obligation in proportion to any reduction made by payment of the other upon the indebtedness.

2. In a suit by the obligee against the obligor upon the contract, for the full amount of the debt stipulated in the contract, where it appears that a part of the indebtedness has been paid, there can be no recovery for the full amount, nor can there be a recovery in any amount where it appears from the evidence that a portion of the indebtedness has been paid, and there are no data sufficiently definite to establish the actual balance due on the other person’s indebtedness to the obligee.

3. Where the obligor in such a contract agreed to pay to the obligee a debt of $400, owing by a third person to the obligee, for a mule bought from the obligee, and the obligee afterwards sold to the other person three other mules and took a purchase-money note in the sum of $1306.80, which, as was recited in the note, was the purchase price of the four mules, and where, after crediting the note with a payment of $750 paid thereon by the purchaser (such payment being an agreed valuation of the three mules which were returned to the seller), the seller instituted a purchase-money attachment against the mule for whose purchase-money the obligor had agreed to be bound, under which attachment the mule was levied on and sold and the proceeds of the sale applied on the balance due upon the indebtedness of $1306.80, less the credit of $750, it is clearly inferable that a part of the indebtedness which the obligor had contracted to pay had been discharged; and there being no sufficient data to indicate in what amount the indebtedness had been reduced, if not entirely discharged, the evidence did not authorize the verdict found for the plaintiff in the full amount sued for, and it was error to overrule the defendant’s motion for a new trial.

4. Since the undisputed evidence establishes the existence of the contract sued on, and the defendant has not pleaded any special defenses thereto, but has pleaded only a general denial of the plaintiff’s allegations, the plaintiff is entitled to recover, upon proof of the amount due upon the $400 as the purchase price of the mule, less the proceeds obtained upon the sale of the mule under the purchase-money attachment.

Decided February 27, 1924.

Complaint; from Pulaski superior court—Judge Graham. March 3, 1923.

H. H. Goales, for plaintiff in error. Lawson & Ware, contra.

Judgment reversed.

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


text:
    14538.
    Goldstein v. Georgia Railway & Power Co.
    Decided February 27, 1924.
    Action for damages; from Fulton superior court—Judge Ellis. March 8, 1923.

      Hewlett & Dennis, for plaintiff.

      Colquitt & Conyers, for defendant.
   Stephens, J.

1. By the special demurrer upon which the former suit between the parties was dismissed (there being no general demurrer) one paragraph of the former petition was attacked upon various grounds to the effect that the negligence alleged therein was not alleged with sufficient particularity, and that the paragraph contained conclusions of the pleader; and the order sustaining the special demurrer and dismissing the petition did not and could not, under the issues raised on the demurrer, adjudicate any question as to the plaintiff’s right to recover, but only adjudicated the question as to the sufficiency of the allegations in the particular paragraph demurred to.

2. Such former adjudication, therefore, did not operate as res judicata as to the plaintiff’s right to recover, and was not sufficient to support a plea in bar to a subsequent suit by the same plaintiff against the same defendant upon the same cause of action; and the judgment of the trial court sustaining the plea in bar, based upon such former adjudication as res judicata, was therefore error. Mutual Benefit Life Ins. Co. v. Driskal, 148 Ga. 699 (98 S. E. 265); Westbrook v. Griffin, 27 Ga. App. 290 (108 S. E. 123).

Judgment reversed.

Bell, J., contours. Jenldns, P. J., disqualified.


text:
    14616.
    Williams v. Georgia Southern & Florida Railway Co.
   Stephens, J.

1. Where a servant, while in the discharge of the duties of his employment, in descending from a lamp-post with a heavy lamp upon his arm, slips and falls upon an iron pipe and is injured, any insecurity in the place by reason of negligent maintenance of tne post with the lowest step at a height of from four to five feet from the ground, or of an iron pipe protruding above the ground at the base of the post, is as obvious to the servant as to the master. This is true despite any assumption of tne risk by the master in giving assurances of safety to the servant. Civil Code (1910), § 3131. Elliot v. Tiflon Mill & Gin Co., 12 Ga. App. 498 (77 S. E. 667).

Decided February 27, 1924.

Action for damages; from city court of Macon—Judge Gunn. April 2, 1923.

E. W. Maynard, Frank F. Herndon, James Eugene Horne, for plaintiff. ‘

J. E. Hall, O. J. Bloch, for defendant.

2. Erom the allegation of the petition in this case it appears that in view of such obvious danger, the servant, by the exercise of ordinary care, could have avoided the consequences of the master’s negligence. No cause of action was shown, and the demurrer to the petition was properly sustained.

Judgment affirmed.

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


text:
    14620.
    Red-Cross Laundry v. Tuten.
   Stephens, J.

1. Where a laundry company, on accepting articles of wearing apparel from a customer for the purpose of laundering them, leaves with the customer a printed memorandum that the articles are accepted by the bailee with the understanding that the bailee is not responsible for damages in case of fire, there arises no contract releasing the bailee from liability for damage to the articles on account of fire, since there is no special agreement between the parties by which the bailor agrees to release the bailee from liability on account of the latter’s negligence. American Laundry Co. v. Hall, 27 Ga. App. 717 (109 S. E. 676).

2. Where articles thus delivered to a laundry company were destroyed by a fire which destroyed the laundry plant of the bailee while the articles were in the bailee’s possession, the loss was presumably due to the negligence of the bailee. Civil Code (1910), § 3469. This presumption of negligence was sufficient to authorize a verdict for the bailor in a suit against the bailee to recover for the loss of the articles thus destroyed, where the evidence concerning the cause of the fire was insufficient to remove every inference of negligence by the bailee.

3. Evidence that the fire which destroyed the plant occurred in the nighttime, after the plant had been closed down for the night, and that there was no inflammable material in the plant when one of the officials of the plant left the plant that night before the fire, that there was no regular watchman at the place, but that there was a man that slept on the place, who had made a round of the place before this official left, and that there was no one else besides this watchman at the place between eleven o’clock and the time of the fire, which occurred at three o’clock, is insufficient to remove all inferences of negligence by the defendant, since it does not appear what transpired between the time the official left and the time of the fire, and since it does not appear that the so-called watchman remained at his post of duty, and since it does not appear that if he did remain, the fire was not caused by some negligent act of his which at law would be attributable, upon the theory of agency, to the defendant.

Decided February 27, 1924.

Certiorari; from Chatham superior court—Judge Meldrim. April 9, 1923.

Lawrence & Abrahams, for plaintiff in error.

F. A. Tuten, contra.

4. The evidence authorized the verdict for the plaintiff, and the judgment of the superior court, overruling the defendant’s certiorari, was not error.

Judgment affirmed.

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


text:
    14623.
    Waters v. Scott.
    Decided February 27, 1924.
    Affidavit of illegality of execution; from city court of Statesboro —Judge Proctor. April 10, 1923.

      Anderson & J ones, for plaintiff in error.

      Deal & Renfroe, contra.
   Stephens, J.

This being an affidavit of illegality to a judgment rendered against the affiant as surety upon a bond given by the defendant in a proceeding to foreclose a sawmill lien on lumber, and it appearing that the defense set up by the affiant was that the plaintiff had taken possession of the lumber levied on and had converted the same to his own use before judgment had been rendered upon the bond, and this defense being one that could have been made by the affiant before judgment, the court properly- dismissed'the affidavit of illegality. See Shapiro v. Bank of Graymont, 31 Ga. App. 576, and the authority there cited.

Judgment affirmed.

Jenkins, P. J., md Bell, J., concur.