text:
    16241.
    PASCHAL v. GODLEY et al

    1. Where, an officer of a corporation is in the possession of property not in his own right but solely as an agent of the company, he has not such title as will support an action of trover against a sub-agent to whom, as a representative of the company, he has entrusted it to be kept for their common principal, and in a trover suit against the sub-agent by the superior agent, or officer of the corporation, for the recovery of the property so entrusted, the defendant is not estopped from contending that the property was not that of the plaintiff but was the property of the company. Applying this ruling to the evidence, the verdict found for the defendants in the instant case was authorized.
    2. None of the special grounds of the motion for a new trial showed reversible error. The court did not err in overruling the motion.
    Decided September 9, 1925.
    Trover; from Camden superior court—Judge Highsmith. December 30, 1924.

      S. C. Townsend, for plaintiff.

      Cowart & Vocelle, for defendants.
   Bell, J.

J. R. Paschal brought a trover suit against W. B. Godley and D. M. Proctor for the recovery of 350 head of cattle. The jury returned a verdict in favor of the defendants, the plaintiff filed a motion for a new trial which was overruled, and he excepted.

We think there is sufficient evidence to support the verdict. The defendants purchased the property at a purported constable’s sale, on August 3, 1920. This sale was under a tax fi. fa. issued by the tax collector of Camden county against J. R. Paschal “agent for Camden Land & Cattle Company,” for taxes for the year 1919, in a sum upwards of $2000. The cattle had been levied upon and were sold as the property, not of Paschal, but of the company. To say nothing of the other irregularities in the fi. fa. and the levy, the sale was void because of the lack of authority in the constable to execute a tax fi. fa. for a sum in excess of $100. State v. Paschal, 27 Ga. App. 357 (108 S. E. 475). The defendants’ claim of title was founded in this sale which, of course, within itself amounted to nothing, and the court in effect so instructed the jury.

There was evidence that Paschal had been in possession of the property for several years prior to the sale, and that the care and custody of the same had been entrusted by him to the defendant Proctor, during whose keeping it was seized by the constable. But the jury were authorized to find from the evidence as a whole that Paschal was never in possession of the property in his own right, and that his control of the same was solely as an officer of Camden Land & Cattle Company, of which, it appears, he was president. The jury could have found under the evidence either that the title was in Paschal or that it was in the company. One or the other of these conclusions was demanded. The jury evidently found that the title to the property was in the company and that Paschal’s possession had been not in his own right, but merely as the company’s agent. While an agent can not dispute his principal’s title except in certain instances not present in this case (Civil Code of 1910, § 3584; Small v. Wilson, 20 Ga. App. 674 (3) (93 S. E. 518)), yet if Proctor was in possession of the cattle merely by virtue of an employment by Paschal as an officer of the corporation, as the jury were authorized to infer, he would not because of these facts be estopped from defending upon the ground that the title was not in Paschal but in the company. Mere possession of the property by Paschal as an officer or agent of that company would not have been such right or interest in the property as would have entitled him to maintain trover for its recovery. Mitchell v. Georgia & Alabama Ry., 111 Ga. 760 (1) (36 S. E. 971, 51 L. R. A. 622). To allow the verdict for the defendants to stand upon this theory does not impinge upon the rule that an agent ordinarily can not dispute his principal’s title, or encroach upon the doctrine that one holding property under another is es-topped in an action between themselves from asserting a want of title in the one from whom he received it. Hartz v. Hartz, 13 Ga. App. 401 (79 S. E. 230); Watters v. Hertz, 135 Ga. 804 (2) (70 S. E. 338); Yerby v. Gilham, 147 Ga. 342 (1) (94 S. E. 246). Nor does it involve a permission to Proctor to deny the authority of Paschal. Under such a theory of the ease Paschal was neither Proctor’s principal nor his grantor, but instead he was the company’s agent and Proctor was its sub-agent. We can think of no rule of law that will prevent a sub-agent, when in the possession of property as such and when sued therefor by a superior agent who had placed him in possession for their common principal, from claiming that the title was in the principal and not in the plaintiff. The possession of each of them had been in the right of the principal, and one could not recover from the other in trover.

3. In the first special ground of the motion for a new trial complaint is made that the judge erred in certain statements made in the presence of the jury in commenting upon a motion for a nonsuit. The judge refuses to approve this ground of the motion, and it can not be considered.

In another ground of the motion error is assigned upon the court’s refusal to permit one of the defendants on cross-examination to answer an interrogation as to whether, when purchasing the property at the constable’s sale, he knew “that there was great question as to whether the constable had the right to sell those cattle.” The effect of the judge’s charge to the jury was that this sale was absolutely void and that the defendants could have no advantage under it. It was therefore immaterial whether the defendants knew of the invalidity of the sale at the time. There was no error in the court’s ruling.

In another ground of the motion it is alleged that the court erred in permitting L. J. Cowart, a witness for the defendant, to testify that one Ben W. Calvin paid off the balance due upon the fi. fa. after the credit of the proceeds of the sale, the objection to this evidence being in substance that the fact that any one had been credited with the proceeds of the sale of the cattle and had paid the balance of the taxes called for by the fi. fa. was not admissible for the purpose of disproving the plaintiff’s title, and was irrelevant and immaterial. We do not deem it necessary to determine whether this testimony was admissible for the purpose of showing a ratification by Paschal of the void sale, under section 6077 of the Civil Code. While, technically speaking, the tax fi. fa. was against Paschal individually, yet it seems that all of the parties regarded it as being for taxes really due by the Camden Land & Cattle Company. The entry of the constable’s purported levy was introduced in evidence, and showed that the property was levied upon as that of the company. The defendant Proctor testified that he notified Paschal of the levy. There is some slight evidence to the effect that Calvin, in paying off. the balance of the taxes, did so at the instance of Paschal. Considering all of these circumstances together, we can not say that they did not tend to an admission on the part of Paschal that the cattle belonged to the company. But, as a matter of fact, it is practically impossible from the record to ascertain in what capacity Calvin acted. There is no evidence that he acted in behalf of the company unless at the behest of Paschal. If this could have been the proper explanation of his conduct, we think the testimony was admissible for the purpose just stated; and in our opinion the conclusion would hardly be different if the payment was for Paschal personally with the fi. fa. considered as being against him individually, since it appears that the property was levied upon as that of the company and that he was advised thereof.

Unless the appearance of Calvin in the transaction is to be accounted for in one of the ways mentioned, he came in, so far as the evidence shows, only as a stranger; and while it would seem that if he paid off the fi. fa. as a stranger or volunteer, the fact of his payment would be irrelevant to any issue in the case, yet the admission of such fact in evidence, though erroneous, would not be prejudicial, and therefore would not constitute cause for a new trial. We are induced to the conclusion that there was no prejudice, even if error, partly by a reference to the court’s charge wherein the jury were instructed that the constable’s sale, “or anything about it or in connection with it,” was immaterial. See, in this connection, Southern Railway Co. v. Harper, 32 Ga. App. 267 (4) (123 S. E. 154).

In the confused state of the proceedings in regard to the sale, and in view of the unsatisfactory delineation of Calvin’s connection with the transaction, neither he nor Paschal having testified, and the other evidence being so meager upon the point, it is almost impossible to reach any intelligent conclusion with reference to the ground of the motion now under consideration; but in no view thereof can we discern such error as would vitiate the verdict.

Under the rule that a ground of a motion for a new trial must be complete in itself, without reference to other grounds or to other parts of the record, special ground 4 can not be considered.

Under the rulings made in the first division of this opinion, and in view of the fact that the trial judge in his instructions clearly informed the jury that the defendants could derive no title or claim to the property by virtue of the constable’s sale, and in effect, though not expressly, confined them to a determination of the single question of whether the title to the property had previously thereto been in Paschal individually or in the company, none of the excerpts from the charge of the court, complained of in other grounds of the motion, were erroneous for any reason assigned.

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

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16332.
    LUFBURROW v. NEWTON et al.

    Where some, but not all, of the heirs of an estate made a security deed conveying their combined interests in certain lands belonging to the estate and containing a power of sale, and subsequently an administrator was appointed, who applied for and obtained a proper judgment of the court of ordinary granting leave to sell the lands for the purpose of paying the debts of the intestate and of distribution, a sale duly made by the administrator in pursuance of such judgment, followed by an administrator’s deed reciting that it was subject only to the deed to secure a debt, divested all rights to the equity of redemption of the makers of the security deed. Hence, where the debt was not paid at maturity and the grantee in the security deed sold the property thereby conveyed, in accordance with the power conferred, any remainder of the proceeds of the sale which remained in his hands after the satisfaction of his debt belonged not to the makers of the security deed, but to the purchaser at the administrator’s sale. In this action by certain of the makers of the security deed, against the grantee therein, for the recovery of their alleged pro rata share of the residue of the proceeds of the sale, the verdict found in favor of the plaintiffs was contrary to the evidence and to law, and the defendant’s motion for a new trial should have been granted.
    Decided September 9, 1925.
    Complaint; from Screven superior court—Judge Strange. May 6, 1934.

      M. B. Lufburrow, H. A. Boykin, for plaintiff in error.

      E. M. Dyal, Overstreet & Overstreet, Hinton Booth, contra.
   Bell, J.

N. A. Wimberly and his wife, Dora D. Wimberly, owned a lot of land in Bulloch county, Georgia, as tenants in common equally interested. He died intestate in 1918, leaving his widow and eight children and the children of a deceased child as his heirs at law. It seems that the widow claimed only a child’s part of the estate. On December 5, 1918, after her husband’s death, she and three of the children, namely, O. R. Wimberly, Mrs. Leslie L. Newton, and J. P. Wimberly, executed a deed to secure a debt, conveying their several undivided interests in the tract, amounting in the aggregate to fourteen twentieths, to S. B. Lufburrow, for a loan of $500. This deed contained a power of sale; and, default being made in the payment of the debt, the property so conveyed was sold by Lufburrow under the power on January 2, 1923, for $2,125. O. R. Wimberly and Mrs. Newton subsequently brought suit against Lufburrow for $303.56 (this sum being two twentieths of the amount realized at the sale), contending that, to the knowledge of Lufburrow, they were responsible for the debt only as sureties for their mother, and that since the price received from the sale of her interest in the land was more than sufficient to pay the debt, they should be made whole out of the overplus. The jury found a verdict in favor of the plaintiffs, for the amount sued for. The defendant made a motion for a new trial, which was overruled, and he excepted. The defendant interposed several distinct defenses, and in his motion for a new trial made numerous assignments of error, excepting to portions of the court’s charge, to certain omissions to charge, to the refusal of requests to charge, and to the admission of evidence. After a careful study of the rather voluminous record, we have reached the conclusion that the evidence sustained one of the defenses absolutely, and that the verdict in the plaintiffs’ favor was therefore unauthorized. In this view of the case it is unnecessary to set forth the evidence relating to the other defenses, or to go into a detailed discussion of the several grounds of the motion for a new trial. Assuming that a finding was demanded in the plaintiffs’ favor upon every other issue in the case, the verdict must be set aside because of the following facts, which were developed without dispute or avoidance, in support of one of the defenses pleaded.

No administrator had been appointed on the estate of N. A. Wimberly at the time of the making of the security deed, but Mrs. Wimberly, the widow, later applied for letters, and was duly appointed and qualified in October, 1920. She immediately applied for leave to sell the one half undivided interest of her deceased husband in the lot of land in question, alleging that a sale of the same was necessary for the purpose of paying the debts and for distribution. The usual citation was issued and published, and in November, 1920, an order was passed by the court of ordinary, granting the application. In pursuance of the authority thus granted, she exposed the lands for sale at public outcry in the following December, at which sale J. R. Wimberly was the purchaser. The administrator’s deed was duly executed and delivered to him, conveying the one half undivided interest in the lot, which had belonged to the intestate. The purchaser complied with his bid and the deed was accepted by him. This deed recited that it was made “subject to a certain deed to secure debt to S. B. Lufburrow for $500.00 and interest.” N. A. Wimberly owed no debts at the time of his death. Some of the heirs were minors and continued to be such at the time of the sale by the administrator.

In this State, as at common law, the title to realty vests immediately in the heirs at law, except that descent may be intercepted and title divested whenever it becomes necessary for an administration for the purpose of paying debts or for the purpose of distribution among the heirs. Lester v. Toole, 20 Ga. App. 381 (2) (93 S. E. 55). The plaintiffs in this case, whether personally notified of the application of the administrator for leave to sell or not, are concluded by the judgment granting the leave. In McDade v. Burch, 7 Ga. 559 (50 Am. D. 407), the Supreme Court held that an order of the court of ordinary directing the sale of lands belonging to an estate could not be collaterally attacked, and that, when property was about to be sold at an administrator’s sale in pursuance of such a judgment, it was not competent for an heir who had interposed a claim to the property to prove that the estate was settled and the land divided without an administration, and that there were no debts to be paid. Thus, the evidence in the present case that the decedent owed no debts is without any effect on the issue for determination. This is not a suit by an administrator against an heir for land. In the case of Park v. Mullins, 124 Ga. 1072 (1) (53 S. E. 568), it was held: “The heir, like all other persons interested in the estate, is bound by the judgment authorizing the sale of the land, except in the single instance where the order of sale is used as evidence in an action of ejectment against him to recover the land from his possession.” See also Brown v. Glover, 156 Ga. 640 (119 S. E. 607). The sale of the property by the administrator, by proper order from the court of ordinary, ordinarily will divest the heirs of all title to the property sold. Merritt v. Jones, 136 Ga. 618 (1) (71 S. E. 1092); Isom v. Nutting, 153 Ga. 682 (113 S. E. 197). But for the proviso in the administrator’s deed, that it was made subject to the security deed in favor of Lufburrow, he would even have been divested of that part of his security which had belonged to the estate. This proviso, however, preserved his security, and he was entitled to sell the land under the power of sale when the debt was not paid at maturity. The administrator’s vendee could have paid this debt, and, upon doing so, would have held title to the half undivided interest absolutely. The equity of redemption which would otherwise have belonged to the makers of the security deed vested in the purchaser at the administrator’s sale. He took the land burdened only with the debt and when the grantee in the security deed sold under the power of sale the property therein conveyed, the proceeds, after paying the debt (except as to the one-half undivided interest of Mrs. Wimberly, which was no part of the estate), belonged not to the makers of the deed, but to the person who had purchased the entire interest of the estate from the administrator subject- only to the payment of the debt to the grantee in the security deed. Daniel v. Wilson, 91 Ga. 238 (4) (18 S. E. 134); Burckhalter v. Planters Loan & Savings Bank, 100 Ga. 438 (1) (28 S. E. 236); Whatley v. Watters, 136 Ga. 701 (2) (71 S. E. 1103); Stevens v. Worrill, 137 Ga. 255 (1) (73 S. E. 366). Mrs. Wimberly’s act in signing the deed to Lufburrow in her personal capacity as an heir at law did not estop her from proceeding later to obtain leave to sell the land as administrator, or from actually selling it under the power so obtained. Gouldsmith v. Coleman, 57 Ga. 425. Nor, therefore, was J. E. Wimberly estopped from buying at such sale, although he too had signed the security deed. This contract was entered into by all of the parties with knowledge that the title which they claimed as heirs was subject to be divested by a possible sale by an administrator. In so far as the plaintiffs are concerned, it matters not what Lufburrow may have done with the remainder of the proceeds of the sale under the security deed after paying his debt. Such overplus represents the equity of redemption in the property conveyed in the security deed. If the plaintiffs at the time of their suit were no longer owners of any part of the equity of redemption, they were not entitled to recover any part of the money; and since we have seen that all interest which they ever had in the property of the intestate was divested by the administrator’s deed (excepting perhaps the right to have the debt paid), it appears that the verdict in their favor was contrary to the evidence and unauthorized by law. Of course we are not to be understood as deciding anything as to the present rights between the defendant, Lufburrow, the grantee in the security deed, and J. E. Wimberly, the grantee in the administrator’s deed. It may or may not be that because of subsequent facts, the status as it existed between them at the execution of the administrator’s deed has so changed that no recovery could be had even by J. R. Wimberly. He is not a party to the proceedings; and in saying that the proceeds of the equity of redemption belong to him and not to the plaintiffs, we mean merely to hold that such was the effect of the deed which he obtained from the administrator. Our ruling is that the undisputed evidence shows that there is no right of recovery in the plaintiffs.

Judgment reversed.

Jenjoins, P. J., and Stephens, J., concur.


text:
    16337.
    FLORENCE v. COMMERCIAL BANK et al.

    1. Knowledge of the consideration of a negotiable note, by a bona fide purchaser for value before maturity, does not carry with it any notice of failure of consideration, nor is the purchaser bound to make inquiry as to whether the consideration has failed or will fail.
    2. The verdict for the plaintiffs being demanded, the court did not err in directing it, nor in thereafter refusing a new trial.
    Decided September 9, 1925.
    Complaint; from city court of Athens—Judge Bradwell. February 28, 1925.
    Suit was brought in the city court of Athens by the Peoples Bank, as holder, against W. T. Florence, R. L. Moss III, and John D. Moss, on a note executed by W. T. Florence to R. L. Moss III and indorsed by him and his father, John D. Moss.
    After suit was filed the Peoples Bank became merged with the Commercial Bank under the name of Commercial Bank, and by proper amendment Commercial Bank was made plaintiff. The note was given by R. L. Moss III in connection with a purchase and sale of the assets of a certain business which he had owned and operated under the trade name of “Auto Supply Company,” and recited that it was “given for accounts according to contract.” The contract provided that R. L. Moss III guaranteed the correctness and collection of all the accounts upon his books. Before maturity and with notice, of course, of the above recital in the nóte, and also with notice of the provisions of the contract, the Peoples Bank purchased the note with the indorsements of R. L. Moss III and John D. Moss thereon. The defendants filed a plea of partial failure of consideration, upon the ground that many of the accounts were uncollectible, and that the plaintiffs acquired the note with notice of such defense. Upon the trial of the case the court directed a verdict for the plaintiff. W. T. Florence made a motion for a new trial, which was overruled, and he excepted.
    The defendants relied mainly upon the evidence of S. Bernstein, president of the Peoples Bank, who bought the note. He testified as follows: “The note sued on, I bought it for the Peoples Bank. I was president of the Peoples Bank at the time. When Mr. Moss offered to sell it to me I told him that I would have to have additional security; banks take all they can get. I saw this in the contract, where the accounts were guaranteed to be correct and collectible. As to whether that was the reason I wanted additional security, I don’t know, but I saw it in there. I knew it was given for the contract. I knew there was a contract. I knew the note was given for the accounts; I saw that in the contract. The reason I wanted additional security, I didn’t think that the young Moss was responsible for such a large amount, and I knew that Mr. Florence was good for any amount. I don’t remember that the reason that I couldn’t take it without additional security was because I saw it was for purchase-money of these accounts. I drew the note myself. I knew of the contract. I saw the guarantee of the collection of the accounts. I read it. That was one reason I wanted additional security, but I couldn’t see anything wrong with the contract. I may have told him that if he would remove the statement ‘this note is given for accounts according to contract’, that I would take it without indorsers. . . Mr. R. L. Moss asked me if I would discount it with Mr. Florence on it, and I told him ‘Yes;’ after I read the contract I said, ‘You must have your father on the note or I will not accept it.’ I knew R. L. Moss didn’t have much money. Mr. Moss had been doing business with my bank for several months; the Auto Supply Company had been for several months before that. I don’t know how long Mr. Moss was in business there.” Q. “What is the general collectibility of accounts of an auto supply company?” A. “Pretty bad; pretty weak. I knew nothing whatever of the character of the accounts of the Auto Supply Company.”
    In addition to the foregoing the defendants offered uncontradicted testimony that after the bank acquired the note, efforts were made to collect the accounts, and that approximately half of them proved to be uncollectible.

      Thomas & Thomas, Horace & Frank Holden, for plaintiff in error.

      Hrwin, Hrwin & Nix, T. 8. Mell, contra.
   Bell, J.

(After stating the foregoing facts.) The contention of the defendant (referring to Mr. Florence, the only one of the defendants who is complaining) is that under the foregoing facts it was for the jury to say whether or not the plaintiff took with “notice,” and therefore subject to the defense which the defendant would have had against the payee. He insists, that, in view of the testimony of Mr. Bernstein, the jury could have found that the bank, at the time it bought the note, had knowledge of sufficient circumstances to put it upon its guard as to whether the notes were uncollectible. This contention finds its strongest support in the fact that Mr. Bernstein, in reply to the question, “What is the general collectibility of accounts of an auto supply company?,” testified that they were “pretty bad, pretty weak.” But since it further appeared, without dispute, that he “knew nothing whatever of the character of the accounts of the Auto Supply Company” (italics ours in both instances), we think that the evidence was insufficient to show that the bank took with notice that the consideration would fail. The mere fact that the accounts of others in similar lines of business were “pretty bad” or “pretty weak” would not indicate that the accounts of Mr. Moss were of the same character. There is nothing to show that he dealt with párties who were not good for their obligations, or that he himself was a person who would pad his accounts or make unjust charges. The fact that Moss may have been insolvent, and that the bank knew it, can not affect the matter; for if the accounts were uncollectible for any reason, the defense to the note would have been the same whether the payee was financially strong or insolvent. The breach of the guaranty as to the correctness and collectibility of the accounts would have been a mere failure of consideration, regardless of the payee’s financial circumstances. Mere insolvency, of course, does not affect a man’s character, and there was no presumption against the accounts on that score. The presumption was that the contract of sale was made in good faith and that the accounts were as represented.

“Knowledge on the part of holder of a negotiable note that it was given in consideration of an executory contract or based upon an executory agreement with the payee, even though such consideration or agreement should be expressed in the instrument itself, will not deprive the indorsee of the character of a bona fide holder, unless he had notice of the breach of such agreement by the payee; and while-the rule is that ‘any circumstance which would place a prudent man upon his guard in purchasing negotiable paper shall be sufficient to constitute notice to a purchaser of such paper before it is due’ (Civil Code (1910), § 4391), and while in a particular ease the character and sufficiency of the circumstances which would place a prudent man on his guard are to be determined as questions of fact by the jury, and not by the judge as questions of law (Fidelity & Deposit Co. v. Mays, 142 Ga. 821, 83 S. E. 961; Park v. Buxton, 10 Ga. App. 356, 73 S. E. 557), still in the application of these rules, the question is . not whether the circumstances were such as might reasonably put the indorsee upon notice that the consideration could fail, but whether they were sufficient to put him on notice it must fail or actually had failed.” Reece v. Citizens Bank of Roswell, 22 Ga. App. 519 (1) (96 S. E. 452). “The fact that the consideration of a note is set forth on its face does not carry with it notice of the failure of consideration, if it has failed, to a person taking it bona fide; nor is he ipso facto put upon inquiry and bound to inquire whether the consideration has failed.” Bank of Commerce v. Barrett, 38 Ga. 126 (95 Am. Dec. 384). “The fact that the consideration of a note is set out in its face does not carry with it any notice of a failure of consideration, if in fact it has failed; and one who buys the note bona fide, for value before maturity, is not bound to make inquiry whether there is a failure of consideration.” Simmons v. Council, 5 Ga. App. 386 (63 S. E. 238). See also, in this connection, Bank of Commerce v. Knowles, 32 Ga. App. 800 (124 S. E. 910).

Under the evidence adduced, the indorsee was a holder without notice. The verdict for the plaintilf being demanded, the court did not err in directing it, nor in thereafter refusing a new trial.

Judgment affirmed.

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


text:
    16349.
    Lawrenceville Cotton Company v. Southern Railway Company.
    Decided September 9, 1925.
    Complaint; from Gwinnett superior court—Judge Stark. March 6, 1935.

      W. 0. Cooper Jr., John C. Houston, for plaintiff in error.

      Charters & Wheeler, Kelley & Kelley, contra.
   Bell, J.

This court is without jurisdiction to entertain a bill of exceptions which fails to assign error upon a final judgment. Civil Code (1910), § 6138. A judgment striking a plea is not a final judgment. The instant bill of exceptions, having complained only of the judgment striking, the defendant’s plea, must be dismissed; and this is true even though it appears in the record that the case was finally terminated by a judgment in favor of the plaintiff. Pierce v. Felts, 23 Ga. App. 665 (99 S. E. 139).

Writ of error dismissed.

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


author: Bell, J. Bell, J.

text:
    16356.
    MacDOUGALD CONSTRUCTION CO. v. MEWBORN.
    Where a contractor engaged by a municipality in the repair of one of its streets left a part of the street open to traffic, but placed thereon certain material which was used in the repair of the other part of the street, and where an infant riding along the traveled part of the street on a bicycle in the nighttime was injured by falling from his bicycle when it struck the material, the mere fact that the material “could have been seen” would not, as a matter of law, bar the child from recovering from the contractor for his injury, even though the contractor was negligent only in failing to have the pile of material duly marked by a light; nor would the child be precluded from recovering in such a case simply because of having previous knowledge of the condition of the street and of the presence and location of the material therein.
    Decided September 9, 1925.
    Rehearinq denied September 30, 1925.
    Action for damages; from Fulton superior court—Judge Bell. February 19, 1935.
    Application for certiorari was denied by the Supreme Court.

      King, Spalding, MacDougald & Sibley, Estes Doremus, for plaintiff in error.

      Hewlett & Dennis, contra.
   Bell, J.

Rono Mewborn, a minor, by next friend, brought suit against MacDougald Construction Company for $1,000 as damages for personal injuries alleged to have been caused by the defendant’s negligence. The petition alleged, that the defendant was engaged in doing certain paving on Central Avenue, a public thoroughfare in the City of Atlanta, and had torn up the east side of the street from the middle to the curb; that the west side had been left open to traffic, and that the defendant had placed thereon certain piles of paving material consisting of sand and gravel; that the plaintiff, who was thirteen years of age, was injured while riding a bicycle upon the west side of the street when he ran into a pile of the sand; that his injury occurred “in the nighttime and when it was dark,” and that the defendant had placed no light or warning on the obstruction; that the plaintiff had no warning or knowledge of the defendant's failure to place a light thereon, and did not know of the “dangerous location and situation aforesaid.” The only specification of negligence necessary to be stated is the defendant's failure to place any light or warning on the sand pile. The jury found a verdict in favor of the plaintiff, and the defendant has excepted to the overruling of its motion for a new trial. The general grounds of the motion are not insisted upon in this court. In the special grounds error is assigned upon the refusal of certain written requests to charge and upon certain excerpts from the charge as given. The requested instructions which the court refused to give were respectively as follows: (1) “I charge you as a matter of law that if the injury to the plaintiff occurred during the day or at a time when the sand pile could be seen, then you will find for the defendant,” and (2) “I charge you that if you believe from the evidence that the injury occurred at night, and there were no lights on or around the sand pile, that if you further find from the evidence that Eono Mewborn had knowledge of the condition of the street and the presence of the paving material, that the plaintiff can not recover.” One of the excerpts from the charge to which the defendant excepted was: “If you find from the evidence that the plaintiff knew of the existence of the sand pile, and, knowing its location, ran into the sand pile, and was injured by his failure to exercise due care in protecting himself, he would not be entitled to recover, even if you find that the defendant was guilty of the negligent act complained of.” The effect of the several assignments of error upon this excerpt was that it instructed the jury that the plaintiff could recover even if he knew of the existence of the sand pile and knew of its location, unless they further found that in running into it he failed to exercise due care in protecting himself. It is insisted that if the plaintiff knew of the existence and location of the sand pile and ran into it under these circumstances, his injury should be attributable to his own act, and that there could have been no issue for the jury as to whether he was in the exercise of due care in protecting himself; that such knowledge on his part would have rendered it immaterial whether the defendant had failed to warn him or not, so that any negligence by the defendant in this respect could not have been the proximate cause of the injury. Our rulings upon the exceptions to which we have just made specific reference will dispose of the main question presented for determination. Complaints were made of other portions of the court’s charge, but these do not, in our opinion, require discussion, and need not be set out. The background of issues, or the setting, as made by the evidence, in view of which the alleged errors are to be considered was: The evidence introduced by the plaintiff tended to support the allegations of the petition, although there was a conflict in the testimony as to whether his injury occurred in the early night, or in the late afternoon while the obstruction was plainly visible by daylight. Defendant, in repairing the street, was acting under authority of the mayor and council. The west side of the street was not closed to traffic. The public was allowed to continue to travel upon it as usual. There was a dispute in the evidence as to whether the sand pile had a light on it. An issue was also made as to whether the plaintiff had not in the afternoon of the day of his injury become fully aware of the presence and location of the sand pile. Referring again to the time of the accident, the jury could have found that it happened either during the last moments of twilight or just as all trace of daylight had vanished. It was in the month of March. The plaintiff fixed the time at 6:30 to 6:35 p. m. Mr. Yon Hermann, the officer in charge of the United States Weather Bureau in Atlanta, testified, “I should say that after 6:30 or 6 :35 it must have been dark. Up to that time you could see all right if your eyes were all right.”

1. It would seem that the defendant contractor, while engaged in repairing the street under a contract with the mayor and council, would be subject to no greater liability than that which would rest upon the municipality under like circumstances. 13 R. C. L. 223, § 188. The right of the city or the contractor to place a temporary obstruction in the street or to close the street wholly or partially when necessary in repairing it is undoubted. Simon v. Atlanta, 67 Ga. 618 (2). In such a case the mere presence of the obstruction would not be unlawful, and there would be no liability against the city or the contractor to a person injured thereby, unless it further appeared that there was a failure to exercise ordinary care and diligence in safeguarding it by those who set it up. The same rule is applicable where the street is closed under circumstances. making such action reasonably necessary in repairing it, and one injured in attempting to use the street would have no case against the city or the contractor provided ordinary care had been exercised to warn the public that the street was closed. City of Blakely v. Funderburk, 33 Ga. App. 119 (125 S. E. 602 (1)); Holliday v. Athens, 10 Ga. App. 709 (2) (74 S. E. 67). Our opinion is in accordance with the contentions of the counsel for the plaintiff in error as to each of the propositions just stated. Their correctness does not appear to be controverted by counsel for the defendants in error. Indeed, the petition was not drawn upon the theory that the existence of the sand pile which caused the plaintiff to fall was negligent in itself, but the absence of allegations to the contrary would concede, for the purposes of the present case, that the occupation by the defendant of a part of the street for repairs and the placing of the sand pile upon the other portion of the street was legitimate and proper. The only complaint was the failure of the defendant to place a light upon the material in order that passage might be safe upon the part of the street open to traffic notwithstanding the obstruction. It. is important to bear in mind that the street was not entirely closed, but that the west half of it appears to have been open to traffic as usual. This being true, the defendant could be held liable for any damages resulting from &ny negligence or omission which rendered the street unsafe for travel, but since the only default complained of was in the failure to' have the sand pile lighted in the nighttime, the question arises, was the fact that it could have been seen, or was the plaintiff’s previous knowledge of its existence and location, such a substitute for the want of a light on it as would make it immaterial whether the defendant had a light on it or not? In other words, could the defendant’s alleged omission be accounted to be the proximate cause of the plaintiff’s injury, where he already knew of the condition of the street, or could have become aware of it by sight as he traveled? Under these circumstances, was he at a disadvantage because of defendant’s omission? Of course, if in approaching the sand pile he was already aware, or, in the due exercise of his senses and faculties, could have been aware, of everything essential to his safety that the light could have given him notice of, the absence of the light would have made no difference. It is our opinion, however, that although the mere placing of the sand pile in the street may have been entirely proper, and any negligence in reference thereto was only in the failure to have it marked at night, the exceptions to the charge are controlled by the decision of this court in the case of Harrell v. Mayor &c. of Macon, 1 Ga. App. 413 (58 S. E. 124), in which it was held that the mere knowledge of a defect in the street or sidewalk would not prevent a recovery on the part of one who is injured thereby, if his conduct is attended with due care, and that the question of the existence of proper care on the part of the person injured should ordinarily be submitted to the jury, to be determined by them under all the facts and circumstances of the particular case. The question for solution does not involve a differentiation between different kinds of negligence by the party defendant, but relates only to the matter of care on the part of the plaintiff. One of the facts for consideration by the jury in the case at bar was that the plaintiff was a child. “Due care in a child of tender years, is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the, occasion and situation under investigation.” Civil Code (1910), § 3474. “The care and diligence required of an infant of tender years is not fixed by any invariable rule with reference to the age of the infant or otherwise. It depends upon the capacity of the particular infant, taking into consideration his age as well as other matters.” McLarty v. Southern Ry. Co. 127 Ga. 161 (56 S. E. 297). “Infants under'fourteen years of age are chargeable with contributory negligence resulting from a want of such care as their mental and physical capacity fits them for exercising, and assume the risk of those patent, obvious and known dangers which they are able to appreciate and avoid.” Evans v. Josephine Mills, 119 Ga. 448 (6) (46 S. E. 674).

The first request, properly construed, invoked an instruction that if the sand pile could be seen, whether in day or night, the plaintiff could not recover. It would have been error to charge the jury that if it could have been seen in the nighttime, the plaintiff would be precluded from recovering. According to the request, if it could have been seen by any one, however indistinctly, or at any distance, however slight, the absence of the light thereon could not have mattered. On the contrary, the plaintiff might have been able to see the sand pile without the aid of artificial light, and still have been unable to approach it or to pass safely around it, as he might have done in case there was a light thereon. Again, the plaintiff might have had a general knowledge of the condition of the street and of the presence and location of the paving material, acquired in the daytime, and yet need a warning or reminder when coming within the vicinity thereof in the nighttime. A light may have been necessary to guide him safely by an obstruction which he remembered to exist at a certain place, because otherwise he might not be able in the nighttime to locate the place. Each of the requests was defective in ignoring the question of whether the plaintiff was in the exercise of due care. The trial court properly declined both, and instead gave the correct rule in the excerpt complained of. See, in this connection, Evans v. Atlanta, 139 Ga. 443, 446 (77 S. E. 378); Idlett v. Atlanta, 123 Ga. 821 (4) (51 S. E. 709); Mitchell County v. Dixon, 20 Ga. App. 21 (5) (92 S. E. 405); City of Thomasville v. Crowell, 22 Ga. App. 383 (3) (96 S. E. 335). There was no merit in any of the special grounds of the motion for .a new trial.

Judgment affirmed.

Stephens, J., concurs. Jenhins, P. J., disqualified.

ON MOTION ROE REHEARING.

Bell, J.

The plaintiff in error (the defendant in the court below) alleges in its motion for a rehearing that in rendering our decision as above, we overlooked the fact that the “trial court in no part of the charge instructed the jury as to the legal effect of the defendant’s evidence,—that is, the court did not instruct the jury that if the accident occurred during the daytime the plaintiff could not recover,” and otherwise failed to submit the defendant’s contentions as made by the pleadings and the evidence, and as referred to in the motion for rehearing.

The defendant’s motion for a new trial complained only of certain portions of the charge as given, and of the refusal of certain requests to charge, and, therefore, invoked no ruling as to any failure or omission to charge.

We do not think that a failure or omission to charge would be material in the mere construction of a request to charge in determining whether it embodied a sound principle of law, applicable to the pleadings and the evidence.

It is claimed in the motion for rehearing that we have made a “tight and close” construction of the requests. The construction which we have placed upon the first request may not be the only construction of which it would be susceptible. If it was reasonably susceptible of that construction (as we think it was) and also of some other, that fact alone would have been a sufficient reason for refusing it, because a request to charge should be clear and unambiguous, and not such as would be calculated to confuse the jury or be misinterpreted by them. We are satisfied that we have not improperly construed either of the requests.

In our original opinion we stated that the public was allowed to travel upon the west side of the street and that this fact was important. This fact did not appear without dispute, but the jury were authorized to infer it from the evidence. The plaintiff testified: The “right-hand side [referring to the west side] was the only side that was open,” and that in the morning of the day that he “was hurt that night,” “the traffic was using that side of the street.”

We would make a similar observation as to the statement of the time of the accident as referred to in the headnote. The result is not changed because these facts were issuable, the jury being authorized to find them to be as claimed by the plaintiff.

Our former ruling is not to be understood as holding that a contractor, in a case of this sort, could not be found to be negligent in placing piles of sand or other like obstructions on one side of a public street while repairing or paving the other side, where the part of the street where such material is located is left open to traffic. Such question is'not up for decision'in the present ease, since the only negligence alleged (so far as material to this discussion) was in the defendant’s failure to have the alleged obstruction lighted.

Motion for rehearing denied.

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


text:
    16359.
    CENTRAL OF GEORGIA RAILWAY CO. v. SUMMERS.
    1. In this action by a telegraph operator against her employer, a railway company, for damages for an injury received by the plaintiff while she was attempting to deliver a train order to the fireman on a moving engine, which injury was alleged to have been caused by the fireman’s negligence in leaning and reaching so far out and down that he struck the plaintiff with his hand in passing, the petition, in view of all the allegations made, was not subject to-special demurrer because it failed to allege the precise distance the fireman should have leaned and reached, and how far he did lean and reach.
    2. The evidence authorized the verdict found in favor of the plaintiff. The court did not err in overruling defendant’s motion for a new trial.
    Decided September 9, 1925.
    Rehearing denied September 30, 1925.
    Damages; from Clayton superior court—Judge Hutcheson. February 18, 1925.
    The plaintiff, a telegraph operator, sued the railway company for injuries received by her in the discharge of her duties as an employee while attempting to deliver an order to a through freight-train, and made substantially the following case: The company furnished, for the purpose of delivering such order, a hoop with a handle on it, which device was thirty or forty inches in length. The customary way of using it was for the order, written on a piece of paper, to be attached to the hoop with a clip, and for the operator to stand beside the railroad-track and hold up the hoop at an angle of about forty-five degrees and endeavor to hook it over the arm of an employee on the engine while the latter at the same time was trying to run his arm through the hoop. After such transfer of the hoop the order would be taken off by the trainman and the hoop dropped. There was no prescribed distance that the plaintiff was required to stand from the track in delivering such order. On the night of January 9, 1924, the plaintiff took her stand by the railroad-track as usual, at a point about four feet and ten inches from the nearest rail, for the purpose of delivering the order in question. When she attempted to deliver the order the fireman, or other ‘employee, who was attempting to receive it struck her in the face with his hand and injured her. With reference to negligence the petition as first amended alleged: “The fireman or person on said train, whose name petitioner does not know, but who attempted to run his arm through said hoop and receive said order No. 46, did not run Ms arm through said hoop, but, on the contrary, failed to run his arm through the hoop, and reached out farther than was necessary, and reached down farther than was necessary to run his arm through said hoop, and reached around said hoop, and struck petitioner in the face with his hand, injuring petitioner, as set forth in the .original petition.” “Petitioner does not know the exact number of feet and inches that said employee reached out and down, but she alleges that it was farther than was necessary, because if he had not reached so far out and so far down, he would have run his arm through the hoop, as was his duty to do.” “Petitioner shows that the defendant was negligent in that the fireman or other employee of the defendant, who attempted to receive said order No. 46, did not run his hand and arm through the hoop, to which said order was attached, as was his duty to do, he reached down farther than was necessary and reached out farther than was necessary, and reached around said hoop, and struck petitioner in the face, as alleged; all of which actings and doings of said agent and employee of the defendant were negligent.”
    A second amendment to the petition was made as follows: “Plaintiff further amends . . her original petition, and shows that the person on said train who attempted to receive said order No. 46 by running his hand or arm through the hoop, as alleged in her original petition and amendment thereto, failed to run his hand or arm through said hoop, as was his duty to do, and as she had a right to expect that he would do, but reached around said hoop and on the outside of the same, and struck petitioner in the face with his hand, and injured her, as set forth in her original petition and amendment thereto.” “Plaintiff further amends her petition, and shows that defendant was negligent in that its 'agent and employee, whose name plaintiff does not know, did not run his hand or arm through the hoop when he went to receive said order No. 46, as was his duty to do and as she had a right to expect that he would do, but, on the contrary, reached around said hoop and on the outside of the same, and struck her, and injured her as alleged in the original petition and the amendment thereto.”
    The defendant filed general and special demurrers, both of which the court overruled, and the defendant excepted pendente lite. The trial resulted in a verdict in favor of the plaintiff. The defendant made a motion for a new trial on the general grounds only, which was refused, and it excepted.

      Mundy & Wright, Cleveland, Goodrich & Cleveland, for plaintiff in error.

      H. A. Allen, contra.
   Bell, J.

(After stating the foregoing facts.)

The defendant has not contended in this court that the trial judge erred in overruling the general demurrer, and the only grounds of the special demurrer insisted upon are summed up in the brief of counsel for the plaintiff in error by the following statement: “The plaintiff, when called on by special demurrer, should have stated how far down the fireman leaned out and how far out he leaned, and should have stated how far out and down he should have leaned, and how far out and down it was the rule or custom for him to lean.” The petition, fairly construed, shows where the plaintiff was standing and how she was holding the hoop whose dimensions were given, and avers that it was necessary for the person receiving the order to lean and reach only far enough to run his arm through the hoop, and that this was customary and usual. This, under the peculiar facts, was a sufficient allegation of how far the fireman ought to have leaned and reached, it not appearing that the plaintiff should have known the exact distance. Likewise, she could hardly have been expected, under the circumstances, to know how much farther he did lean and reach, and she alleged that she did not know. There was no error in overruling the special demurrer. Each of the cases cited by counsel for the plaintiff in error in support of the same is materially different in its facts from the ease under consideration.

The petition alleged that the plaintiff was standing about four feet and ten inches from the nearest rail of the track. Since a pleading is to be construed most strongly against the pleader, this allegation must be construed as alleging a distance of not exceeding four feet and ten inches. The plaintiff is bound by the averments of her declaration, and, although she testified that she stood a greater distance, she could have no advantage by this evidence beyond what she alleged. Her allegations were conclusive evidence against her. Peacock v. Terry, 9 Ga. 137 (6), 150; Hampton v. Thomas, 11 Ga. 317, 320; East Tennessee &c. Ry. Co. v. Kane, 92 Ga. 187 (5) (18 S. E. 18, 22 L. R. A. 315); Kelly y. Strouse, 116 Ga. 872 (5) (43 S. E. 280); New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6) (116 S. E. 922). It is contended by the plaintiff in error that since the petition established conclusively that the plaintiff was standing at a distance of not exceeding four feet and ten inches, or fifty-eight inches, from the nearest rail, and that since the evidence showed that the engine extended thirty-two inches beyond the rail, and that a person on the engine, while endeavoring to receive a train order, as was done in the instant case, would be required, in the usual and necessary way, to hold to a certain rod or grab-iron, and then to extend or lean his entire body beyond the spread of the engine a further distance of twenty-five inches, it appeared without question that the body of the fireman or the person attempting to receive the order would be obliged to pass within at least one inch of the plaintiff’s face, if not to strike it, and that the evidence thus established as a matter of law that the plaintiff voluntarily placed herself in a position of danger. Whether we should agree with this conclusion -if the evidence established without dispute that the facts were as stated, we differ with counsel as to the effect of the evidence. In the first place, only two witnesses testified as to the extent of the engine’s spread beyond the rails. Neither of these witnesses appeared to have examined the particular engine, but each testified from his general knowledge with respect to the width of engines. One or more witnesses testified as to the position an employee on the engine should take in receiving an order, and the testimony of the witness who was most certain upon this point was that “a fireman would ordinarily lean out of the engine twenty or twenty-five inches in taking an order; twenty-five inches would be a reasonable amount.” The testimony of the plaintiff, however, was different, and was sufficient to make an issue at least as to whether it was necessary for the body of the fireman to extend beyond the width of the engine for any distance. She testified: “He is not supposed to project his body out.” It appears that the plaintiff was a person of experience in delivering train orders and in observing positions taken by other employees in receiving them. Her testimony might not have been as worthy of belief as that of the other witnesses, but this court can not pass upon the credibility of witnesses, except in extraordinary cases where, for some exceptional reason, it appears as a matter of law that the witness should not be believed; as, for instance, where testimony is to the existence of facts that are impossible or inherently improbable. Patton v. State, 117 Ga. 230 (43 S. E. 533). The plaintiff further testified that she had stood in that same place and in the same position in delivering orders daily for several years, and had been safe in so doing; that the fireman was not in his usual position on the occasion in question, but his whole body was out of the engine. We find also the following in her testimony: “If he had had his body far enough back in the engine he could have run his arm through the hoop and yet it would have been impossible for him to have struck me. It would have been impossible for him to have reached beyond the hoop and struck me in the face if he had been in the right position.” Moreover, the engineer testified: “They never hang on the grab-irons with their hands and swing their bodies out; they put their arm through the grab-iron and reach their [other] arm out with the elbow bent to catch the order.”

It was inferable, under the evidence, that the hoop is thus caught up, not in the employee’s hand, but in the arm as the train continues onward. Even assuming that the evidence indisputably established that the spread of the engine was thirty-two inches beyond the rail, this still would have left approximately twenty-six inches between the engine and the plaintiff’s face; and, as we have seen, the jury could have found that it was proper for the fireman to extend only his arm, and not his body, into this space. In these circumstances, it can not be held as a matter of law that the plaintiff, as an operator experienced in such matters, assumed a position of evident danger in standing a distance of only twenty-six inches from the train. But it can hardly be said to have been established absolutely that the engine extended for thirty-two inches beyond the rails. As we have already indicated, the two witnesses who testified to this fact were apparently tes-, tifying only as to engines in general; and, besides, each of them was contradicted by the plaintiff (if not also by the engineer) on the material matter as to what would have been the customary position for the fireman to take in receiving the order. The contradiction of their testimony on this question would have been sufficient to make their credibility on the other matters a question for the jury. Under the evidence as a whole, we can not say that the verdict was unauthorized.

Judgment affirmed.

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


text:
    16362.
    Singer Company v. Gray & Son.
   Bell, J.

1. Where suit was brought in the name of “Y. S. B. Gray & Son,” it was prima facie by a partnership, and was not subject to a demurrer complaining that there was a failure to show the plaintiff’s identity, or the capacity in which the plaintiff sued, and that it did not appear whether the plaintiff was a corporation, a partnership, or individuals doing business under a trade name. Dublin & Southwestern Ry. Co. v. Akerman, 2 Ga. App. 746 (1) (59 S. E. 10); Buffington v. State, 124 Ga. 24 (3) (52 S. E. 19). Such demurrer did not raise any question as to whether the petition should have set forth the names of the members of the partnership. See, in this connection, Bremen Foundry & Machine Works v. Boswell, 22 Ga. App. 434 (96 S. E. 182); 15 Encyc. Pl. & Pr. 914.

2. Where a manufacturer entered into a contract agreeing to give the other contracting party “exclusive control of the jobbing sale” of the manufacturer’s products in a certain city and the surrounding territory, including a number of towns and cities specified, and the other party agreed to co-operate with the manufacturer and to use his best efforts in the sale of the products in that territory, and where subsequently the parties from time to time entered into other agreements, in which they dealt with each other as vendor and purchaser, and where suit was brought by the manufacturer against the other party to recover the purchase price of a certain quantity of goods furnished under one of such latter contracts, the fact of the making of the preliminary agreement as to the sale and distribution of the products in the territory designated did not show that as to the subsequent transactions the parties were acting as principal and agent, and not as vendor and purchaser.

3. Where goods were sold under an agreement in which it was provided that if they proved to be defective or inferior they might be returned to the seller, who, in such event, would refund the purchase price paid, or disclaim the same if it had not been paid, the buyer, in order to invoke such provision of the contract in defense to a suit for the purchase price of goods delivered, or for the purpose of recouping sums which had been paid, should show not only that the goods were not as warranted, but also that he returned the goods or that he tendered them in accordance with the terms of the agreement. Malsby v. Young, 104 Ga. 205 (3) (30 S. E. 854); McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445 (2) (42 S. E. 778) ; Dickey v. Winston Cigarette Machine Co., 117 Ga. 131 (2) (43 S. E. 493) ; Case Threshing Machine Co. v. Cook, 7 Ga. App. 631 (1) (67 S. E. 890); International Harvester Co. v. Bowen, 16 Ga. App. 457 (2) (85 S. E. 613); Brooks v. Hickman, 19 Ga. App. 512 (91 S. E. 1003); International Filter Co. v. LaGrange Ice & Fuel Co., 22 Ga. App. 167 (2) (95 S. E. 736) ; Charles v. Tyler, 25 Ga. App. 626 (3) (104 S. E. 93); Toung-Jones Hdw. Co. v. Dewey, 26 Ga. App. 521 (2) (106 S. E. 593) ; Smith v. Jeffrey Mfg. Co., 28 Ga. App. 537 (112 S. E. 161).

4. The failure of the buyer to return or tender the goods in such ease would not be excused merely because, after the delivery of the goods to him under the sales agreements, the seller promised the buyer that he would sell the goods to some one else and give him shipping instructions, and the buyer thereupon held the goods pending the receipt of such instructions, where such promise on the part of the seller was made in view of a controversy between the parties as to some matter not relating to the quality of the goods, and where at the time of the promise the buyer had raised no question as to the quality of the goods, and was in no wise seeking to avail himself of his right to return them because of a breach of the warranties. Nor would such promise by the seller, not in writing, to take back the goods which were in the buyer’s possession under complete and executed sales, constitute any other ground of defense, where the value of the goods amounted to more than fifty dollars, so that the promise was unenforceable under the statute of frauds.

5. Even assuming that the provision of the sales agreements referred to above was not such as to exclude the implied warranties of the law (Elgin Jewelry Co. v. Estes, 122 Ga. 807 (2) (50 S. E. 939) ), and assuming also that, notwithstanding such provision, the defendant might have availed himself of the defense of failure of consideration, because of the breach of express or implied warranties, the evidence failed to show either that the goods were worthless or to furnish any data by which the jury could have determined the extent of a partial failure of consideration; and because of such infirmities in the evidence the defendant was not entitled to an abatement of the purchase price, either in whole or in part, on account of the alleged failure of consideration. See, in this connection, Kiser Co. v. Branan, 31 Ga. App. 241 (120 S. E. 427); Kiser Co. v. Mendel Department Store, 32 Ga. App. 194 (122 S. E. 794).

6. Where parties have reduced to writing what appears to be a complete and valid contract for the sale of chattels, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire agreement, and it will not be permissible to vary the same by proof of a contemporaneous parol agreement to the effect that the goods referred to in the contract were not sold, but were merely delivered to replace other goods which the alleged buyer had returned to the alleged seller for substitution. West v. Miller, 32 Ga. App. 199 (1) (122 S. E. 809).

7. Applying the above rulings to the facts in the instant case, the verdict found in favor of the plaintiff was demanded. No errors were committed against the defendant in the admission of evidence, and it does not appear that any evidence was excluded which could have changed the result. The verdict as returned being required by the law and the facts, any errors in the charge of the court, and any alleged improper remarks by the judge in the presence of the jury, were harmless. The judge of the superior court did not err in dismissing the certiorari.

Decided September 9, 1925.

Certiorari; from Fulton superior court—Judge E. D. Thomas. February 13, 1925.

A. 8. Grove, for plaintiff in. error.

George B. Rush, contra.

Judgment affirmed.

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


text:
    16419.
    Nailor v. Bank of Menlo.
    Decided September 9, 1925.
    Complaint; from city court of Summerville—Judge Neal. April 11, 1925.

      John D. & E. 8. Taylor, Denny & Wright, for plaintiff in error.

      J. M. Bellah, Maddox, Matthews & Owens, contra.
   Bell, J.

1. The bank recovered a judgment against the defendant, who was a married woman, in a suit upon a note under seal purporting to have been signed by her per her husband as agent. The defendant had filed a plea of non est factum. The evidence established without dispute that the note in question had been given merely as a renewal of other notes payable to the bank. Assuming that the evidence tended to show that the defendant might have been held liable upon such other notes, there being no evidence that her husband had been authorized by her under seal to bind her to a sealed instrument, and none to the effect that she had ever ratified the execution of the sealed note sued upon by a writing itself under seal, and nothing appearing by which she could be estopped, the judgment in the plaintiff’s favor (by the court without a jury) was unauthorized, and it was error to refuse the defendant’s motion for a new trial. Lynch v. Poole, 138 Ga. 303 (75 S. E. 158); Neely v. Stevens, 138 Ga. 305 (75 S. E. 159); United Leather Co. v. Proudfit, 151 Ga. 403 (1, 2) (107 S. E. 327); Williams v. Atlanta National Bank, 31 Ga. App. 212 (6), 224 (120 S. E. 658); Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465 (1) (120 S. E. 800).

2. Since the ease must go back for another trial upon all issues, at which the evidence may not be the same as in the trial under review, no opinion is expressed as to whether the evidence appearing in the instant record demanded a finding in favor of the plea of recoupment.

Judgment reversed.

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


text:
    16425.
    BROWN v. MARBUT-WILLIAMS LUMBER CO.
    1. Where the owner of real estate has given to the holder of a properly-recorded materialman’s lien a demand note reciting on its face that its acceptance does not constitute a waiver of the lien, and that the lienholder has the right to foreclose the lien at any time, the agreement in the note that the lien shall continue in force would estop the maker from contending that a suit on the note had the effect of extinguishing the lien, and from denying the lienholder’s right to a personal judgment on the note and to a foreclosure of the lien in the same action.
    2. Where there has been no final judgment, a defendant can not, in' a bill of exceptions to a judgment overruling his general demurrer to the plaintiff’s petition, properly except also to an order striking his answer.
    Decided September 9, 1925.
    Lien foreclosure; from city court of Atlanta—Judge Reid. April 4, 1935.
    Marbut-Williams Lumber Company filed suit in the city court of Atlanta, seeking to foreclose its lien for material furnished L. L. Brown and used in the improvement of Brown’s real estate. In the same action the plaintiff sought judgment upon a certain promissory note payable on demand and containing the following provisions: “This note is given for materials furnished to the undersigned L. L. Brown, upon the real estate described in the lien filed by Marbut-Williams Lumber Company against the said L. L. Brown and recorded in Deed Book 578, page 367, in the office of the clerk of the superior court, Eulton county, Ga. It is understood and agreed that said Marbut-Williams Lumber Company by accepting this note does not waive its said lien, and the said Marbut-Williams Lumber Company has the right to foreclose its said lien at any time it may desire. This note is given as evidence of the correct amount due said Marbut-Williams Lumber Company for material furnished to improvement of said property.”
    The defendant interposed a demurrer on the grounds that the petition set forth no cause of action, was multifarious, contained an improper joinder of causes of action, sought the exercise of two inconsistent remedies, and showed that the lien was extinguished. The defendant filed also an answer of general denial, not sworn to. The plaintiff demurred to the answer, because it was not sworn to, and on the further ground that it set forth no defense to the note sued on. The court overruled the demurrer to the petition and sustained the demurrer to the answer, and the defendant excepted.

      Albert E. Mayer, for plaintiff in error.

      McElreath & Scott, contra.
   Bell, J.

(After stating the foregoing facts.)

It is a well-recognized rule of law that a party can not in the same action pursue two inconsistent remedies, but he can obtain judgment on an open account for materials furnished and in the same action establish his materialman’s lien. Parish v. Murphey, 51 Ga. 615. In the case of Belmont Farms v. Dobbs Hdwe. Co., 124 Ga. 827 (1) (53 S. E. 312), it was held: “The taking of a promissory note for an amount -due on an account, which is the basis of a mechanic’s, materialman’s, or contractor’s lien, in the absence of an express agreement, will not, until the note is paid, accomplish an extinguishment either of the account or the lien. But as a condition precedent to final judgment, either upon the account or the lien, the note must be surrendered to the maker, or accounted for by showing that it is not in any event enforceable against him.” Whether it would ordinarily be an improper joinder of causes of action to seek in the same suit a foreclosure of a materialman’s lien and also a judgment on a note given for the amount thereof, in the case under consideration the maker of the note, by a stipulation in the face thereof, not only recognized the existence of such a lien, but agreed that the lien was not waived by the payee’s acceptance of the note. This agreement on his part amounted to a waiver of whatever right, if any, he might otherwise have had to object to the joinder of .the two causes of action, and would estop him from denying the plaintiff’s right to pursue the two remedies in the same suit. Counsel for the 'pEintiff in error concedes that the mere taking of the note would not operate to extinguish the lien, but insists that suing on the note did extinguish it. If that were so, the note amounted to no more than an admission of the indebtedness, and the promise contained therein was altogether meaningless. It would be a vain agreement which provided that the acceptance of the note would not waive the lien, if a suit on the note would have such effect. If the rights reserved by the payee in accepting the note were lost by a suit on it, the reservation of them would have been wholly useless in the first place. The parties must have intended that the lienholder could sue on the note just as he might have done on the account and at the same time ask a foreclosure of the lien. The petition set forth a cause of action and was not subject to any of the demurrers. Whether the same would have been true except for the express stipulation of the note, it is unnecessary to decide, but if, as held in Belmont Farms v. Dobbs Hdwe. Co., supra, the taking of the note would not extinguish the lien, it would seem that neither would a suit on the note do so, since the parties would evidently contemplate that the note would be sued on, or that the plaintiff might elect to sue thereon in case of its nonpayment. See, in this connection, Gilcrest v. Gottschalk, 39 Iowa 311; Spence v. Etter, 8 Ark. 69; Germania Bldg. &c. Asso. v. Wagner, 61 Cal. 349; Marean v. Stanley, 5 Colo. App. 335 (38 Pac. 395); U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698 (21 S. E. 769).

There having been no final judgment, the defendant, while having the right to bring to this court a bill of exceptions to review the judgment overruling his general demurrer to the plaintiff’s petition, because the “judgment complained of, if it had been rendered as claimed by the plaintiff in error, would, have been a final disposition of the cause” (Civil Code, § 6138), could not in the same bill of exceptions properly except also to the. judgment striking his answer. “The latter judgment could not be reviewed by direct writ of error; and the exceptions thereon, being premature, can not be considered with the exceptions to the judgment on the demurrer to the petition.” Chatham Motor Co. v. Lincoln Motor Co., 31 Ga. App. 229 (2) (120 S. E. 444).

Judgment affirmed.

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


text:
    16474.
    MACON, DUBLIN & SAVANNAH RAILROAD CO. v. JORDAN, by next friend.
    A three-year-old child, injured while playing on a pile of cross-ties belonging to a railroad company and on its right of way, can not recover from the company on the theory that the cross-ties constituted such an attractive nuisance as to render the defendant liable under the doctrine of the “turntable eases.”
    The court erred in overruling the general demurrer to the petition.
    Decided September 9, 1925.

      Action for damages; from city court of Dublin—Judge Bidgood. April 20, 1925.
    This was an action for damages, brought by Alma Inez Jordan, a minor, by next friend,-for injuries sustained by reason of the following facts: The plaintiff, when a little more than three years or age, lived with her father, who was employed by the defendant company as a section foreman. In the contract of employment the company agreed to furnish a house to live in and to dig a well at the dwelling to supply water for him and his family. The defendant failed to dig the well, and it therefore became necessary for the family to get water from a well located about five hundred feet from the house, across the defendant’s right of way. The defendant had on its right of way, about one hundred feet from the well, by the side of the path leading therefrom to the house, several piles of cross-ties. These ties were bright and new and shiny, and were very attractive to children, and made an inviting but dangerous place for children to play. ’ They were piled “wood fashion,” or each parallel with the other, when they should have been piled one row one way, and the next crosswise. They were arranged in such a manner as to make them “door step fashion” from the bottom to the top, and the pile was about five feet high. The plaintiff’s mother, in going to the well, having no one to leave the plaintiff with except a very young child, carried the plaintiff with her, and, the plaintiff being attracted to the ties by their beauty, went upon them to play. One of the ties fell on the plaintiff and caused the injuries for which she sued. The negligence specified was “the piling of said cross-ties as alleged in this petition, particularly paragraphs 9 and 8, and petitioner alleges that the defendant was negligent in so piling said cross-ties, and failed to use ordinary care and diligence therein, and that petitioner used such care and diligence to avoid such injury as a child of her age would in law be charged with the duty of using.” To the plaintiff’s petition, alleging substantially the above, the defendant filed general and special demurrers, which the court overruled, and the defendant excepted.

      John 8. Adams, Charles Aherman, for plaintiff in error.

      Hightower & Hew, contra.
   Bell, J.

(After stating the foregoing facts.)

The plaintiff’s counsel invoke an application of the doctrine of the “turntable eases/ citing Ferguson v. Columbus & Rome Ry., 75 Ga. 637 (2). In the case of Savannah, Florida & Western Ry. Co. v. Beavers, 113 Ga. 398 (39 S. E. 82, 54 L. R. A. 314), this doctrine was exhaustively discussed, and the Supreme Court adopted “the policy of limiting the doctrine, not strictly to turntable cases alone, but of refusing to extend it to cases which upon their facts do not come ‘strictly and fully within the principle upon which those cases rest. Manos v. Myers-Miller Furniture Co., 32 Ga. App. 644 (124 S. E. 357). In the Manos case this court held that a tier of shelves was not such an “attractive nuisance55 as to come within.the principle of that class of cases.

Where a 'six-year-old child was injured while playing with a velocipede ear, which was left in an open and exposed place near the depot in the town of Manor, where the public were accustomed to travel and be, and where small children of the town were at liberty to go, and where they frequently went, it was held by the Supreme Court that this vehicle was not such an “attractive nuisance as to place it in the category of the “turntable cases Atlantic Coast Line R. Co. v. Corbett, 150 Ga. 747 (105 S. E. 358).

Counsel for the plaintiff take the further position that the relation of landlord and tenant existed between the plaintiff’s father and the defendant, and therefore the plaintiff was not a trespasser. If the pile of ties had been located on the premises which plaintiff’s father rented from the defendant, this contention might possibly have been well taken. But the plaintiff, while possibly a licensee in going upon the path from the house to the well, became a trespasser the moment she left the path and went upon the right of way. In the case of Manos v. Myers-Miller Furniture Co., supra, the shelves were on the defendant’s property, within two or three feet from the line of an alley, and there was no obstruction dividing the alley from the defendant’s premises. In the instance case the ties were “about 100 feet from said well, and by the side of the path leading from said house to said well.” Under these circumstances, the plaintiff had no right or license to go upon the cross-ties on the right of way, and it is not alleged that she had been in the habit, with or without the defendant’s knowledge or consent, of going about them, or that there was any other circumstance, except the common knowledge of child nature, which should have put the defendant on notice that she would at any time do so. The petition fails to disclose the defendant’s violation of any duty, and therefore fails to show negligence.

To use language quoted with approval by the Supreme Court in the Beavers case, supra, “When a child wakes up in the morning in his father’s house, the duty of providing a safe playground for him during the day rests upon his parents;” and, as was said by the court in Branan v. Wimsatt, 298 Fed. 833 (54 App. D. C. 374, 36 A. L. R. 14): “The duty devolves on natural guardians and lawful custodians to protect children from the consequences of their restless spirit of adventure, and that duty can not justly be wholly transferred to strangers who are under no obligation to keep watch and ward over the children of others.”

The injury in this ease was simply an unforeseen accident, and the defendant was not liable. See further, in this connection, Hardy v. Missouri Pacific R. Co., 26 Fed. 860 (36 A. L. R. 1); Tomlinson v. Vicksburg, S. & P. R. Co., 143 La. 641 (79 So. 174); Kramer v. Southern R. Co., 127 N. C. 330 (52 L. R. A. 359, 37 S. E. 468); United Zinc & Chemical Co. v. Britt, 258 U. S. 268 (42 Sup. Ct. Rep. 299, 66 L. ed. 615, 36 A. L. R. 28).

Judgment reversed.

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


author: Bell^ J.

text:
    16473.
    Macon, Dublin & Savannah Railroad Co. v. Jordan.
    Decided September 9, 1925.
    Action for damages; from city court of Dublin—Judge Bidgood. Apiil 20, 1925.

      John S. Adams, Charles Akerman, for plaintiff in error.

      Hightower & New, contra.
   Bell^ J.

This ease is controlled by the decision this day rendered in the companion ease of Macon, Dublin & Savannah R. Co. v. Jordan, ante, 350.

Judgment reversed.

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


author: Stephens, J.

text:
    15455.
    MARYLAND CASUALTY COMPANY et al. v. ENGLAND.
    Decided September 9, 1925.
    Appeal; from Murray superior court—Judge Tarver. February 11,1934.

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

      William E. & W. Gordon Mann, contra.
   Stephens, J.

1. Tlie last day numerically for presenting the bill of exceptions in this ease for certification having fallen on Sunday, the presentation of the bill of exceptions to the trial judge for certification upon the next day, Monday, was not too late. Civil Code (1910), § 4 (8).. The motion to dismiss the writ of error is thereforejlenied.

2. Where, in a claim for compensation under the workmen’s compensation act (Ga. L. 1920, p. 167) before the industrial commission, the claimant alleges that her husband died from the effects of inhaling poisonous gases caused by the explosion of dynamite in the mines in which the deceased was employed, and where there is evidence tb the effect that the deceased did not show symptoms of such poison until three or four days after he had been exposed to such gases in the mines, that the mines were well ventilated, that the effect upon a person inhaling poisonous gases is “usually pretty quick,” and that a person who has inhaled a quantity of such gases sufficient to cause death is affected thereby within twenty-four hours, the order or decree of the commission denying compensation upon the ground that the death of the deceased was not caused by an injury arising out of the course of his employment, is authorized.

3. Where, in addition to the ground set out in paragraph 2 above, the order or decree denying' compensation is based also upon the claimant’s having failed to give to the employer notice of the injury within thirty days of the death of the deceased, as is required under section 23 of the workmen’s compensation act, supra, and where it appears that the commission’s finding, as set out in paragraph 2 above, was not influenced by its finding that there was’ a lack of the required notice, the order or decree denying compensation will nevertheless be sustained on review, where the finding of the commission upon the first ground is not erroneous, irrespective of any error affecting the finding that there was a lack of notice.

4. The order of the commission denying compensation being authorized under the evidence, and it appearing that no error of law affecting it has been committed, and the rule with reference to affirming the first grant of a new trial where the verdict and judgment rendered were not, as a matter of law, demanded, not being applicable to a judgment of the superior court setting aside an award of the industrial commission, the judgment in this case setting aside the award and remanding the case to the commission for a new hearing and adjudication was error. See answer to certified question propounded to the Supreme Court in this ease. 160 Ga. 810 (129 S. E. 75).

Judgment reversed.

Jenkins, P. J., cmd Bell, J., concur.


author: Jenkins, P. J.

text:
    16127.
    PORTER v. DAVEY TREE-EXPERT COMPANY INCORPORATED.
    In this action in a city court, on a contract, brought by a “tree-expert company,” to recover the value of labor and materials furnished in working on the defendant’s trees, the court did not err in rejecting the amendment to the plea in recoupment, sounding in tort, praying for affirmative relief, or in excluding evidence in support of such plea; nor did the court err in overruling the defendant’s motion for a new trial.
    Decided September 10, 1925.
    Complaint; from city court of Eloyd county—Judge Bale. November 21, 1924.
    Application for certiorari was denied by the Supreme Court.
    The tree-expert company sued for the cost of labor and materials actually furnished in accordance with an itemized statement, under a contract made by its acceptance of the defendant’s written order, as follows: “Will you kindly send your experts to treat my trees? I understand that your charges are one dollar and eighty cents per hour for each man furnished (working time only) plus the cost of material and cartage. I understand that payment is to be made direct to your main office within ten days after receipt of invoice. I reserve the right to stop the work at my discretion.” The defendant filed a special plea and answer, which he designates and relies upon as a “recoupment in tort,” seeking to recover damages in excess of the amount of the plaintiff’s claim, and alleging that the plaintiff, in treating the trees and placing cement inside, used iron rods and metal wires to brace and connect four trees, without insulation, ground wire, or other protection from lightning, so that, several weeks after the completion of the work, when lightning struck one of the trees, it ran through the metal and seriously damaged two other trees. There was no demurrer to this plea, but an amendment amplifying its allegations was disallowed by the court “on various grounds,” as recited by the order; although the nature of the grounds does not appear from the order or the record. In support of the original plea the defendant offered to prove by electrical experts that certain described methods of grounding or insulating the wires and the use of lightning arresters would have rendered the other trees “reasonably safe” from the spreading of lightning which might strike one, but this evidence upon objection was excluded as immaterial; counsel for the defendant stating at the time that he expected to prove that metallic wires above ground are dangerous and ready conductors of electricity, and “to be safe against lightning, or reasonably safe against it,” would require grounding or erection by the method described, but that he did not expect to prove “that it was practiced generally in the tree-surgery business, or in the treatment of trees.” No other evidence was introduced or tendered to show that the work of the plaintiff had been done in other than the usual, ordinary, and customary manner, as described in the testimony. The court directed a verdict for the plaintiff, and overruled the defendant’s motion for a new trial, based on the general grounds and on the rejection of the electrical experts’ evidence. Error is assigned also on exceptions pendente lite to the rejection of the amendment to the plea of recoupment.

      L. A. Dean, Lamar Camp, Denny & Wright, for plaintiff in error.

      Maddox, Matthews & Owens, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. “If a plea is bad in substance, the defect may be taken advantage of by objecting to evidence in support of thé plea.” Rountree v. Craigmiles, 12 Ga. App. 237, 239 (77 S. E. 15, 16); Crew v. Hutcheson, 115 Ga. 515, 524 (42 S. E. 16).

2. The obligation which the law imposes upon persons performing medical, other professional, and • specially skilled services, is that they shall exercise a reasonable degree of care, skill, and ability; which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions. On a plea of recoupment, setting up a failure to exercise proper care and skill by such a plaintiff, suing to recover upon contract the value of his services, the burden of sustaining such a plea is on the defendant. Block v. Happ, 144 Ga. 145, 146 (1 a, 2) (86 S. E. 316); Fincher v. Davis, 27 Ga. App. 494 (1, 2, 5) (108 S. E. 905); Chapel v. Clark, 117 Mich. 638 (76 N. W. 62, 72 Am. St. Rep. 587, 42 L. R. A. (N. S.) 125, 126). This rule applies to the implied duties of such a plaintiff, whether the defense is based on a tort for the negligent performance of contractual duties, or on an alleged breach of the contract itself.

3. Section 5521 of the Civil Code (1910) provides that “all claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined,” and that “the defendant may also set up, as a defense, all claims against the plaintiff of a similar nature with the plaintiff’s demand.” Thus, it is the general rule that the defendant may. set off or recoup a contractual obligation against a-contractual obligation, or a liability arising out of a tort against an action sounding in tort, but he can not, as a general rule, set up as a defense a liability arising under a contract against an action sounding in tort, or a liability in tort against a suit maintained on a contract. The exception to this rule is where equitable principles are involved, such as insolvency or nonresidence of the plaintiff. In such cases, where the court has equitable jurisdiction, the general rule does not obtain, and it is permissible to set up a defense founded either in tort or on contract in response to a suit of either nature. But where the court has not equitable jurisdiction, and the suit is filed, for example, in a city court, such a court has jurisdiction of such a dissimilar and equitable plea only when it is purely defensive in its nature, and, if sustained, would result in a verdict finding generally in favor of the defendant. House v. Oliver, 123 Ga. 784 (1), 785 (51 S. E. 722); Hanesley v. Nat. Park Bank, 147 Ga. 96 (1), 99 (92 S. E. 879); Edenfield v. Rountree, 33 Ga. App. 444 (3) (126 S. E. 731, 734); Drake v. Lewis, 13 Ga. App. 276 (4), 280 (79 S. E. 167); McArthur v. Wilson, 13 Ga. App. 502 (79 S. E. 374); Janes v. Cedartown, 14 Ga. App. 72 (80 S. E. 339); Jones v. George S. Riley Jr. Co., 14 Ga. App. 84 (2) (80 S. E. 341). It is thus the rule, where a suit brought in a city court sounds in contract, that despite the fact that equitable principles may be involved, the defendant can not plead by way of set-off a tort in the nature of a cross-action, since the claim of set-off is not defensive in its nature. Hecht v. Snook & Austin Furniture Co., 114 Ga. 921, 924-928 (41 S. E. 74); Arnold v. Carter, 125 Ga. 319, 325 (54 S. E. 177); Fuller v. Coker, 24 Ga. App. 418 (1, 2 5) (101 S. E. 1). Where, however, in such a court a suit is maintained upon contract, and the defendant, invoking equitable principles, seeks to defend, not by a plea of set-off for obligations beyond the contract, but by a plea of recoupment alleging that the plaintiff is not entitled to recover because he has not complied with the implied cross-obligations arising under the same contract (Civil Code oí 1910, §§ 4350, 4351), such a defense may or may not be purely defensive in its nature. Originally a plea of recoupment was purely defensive (Civil Code, § 4350; Bouvier’s Law Diet. (3d ed.), 2848), but since the statute now embodied in section 4353 of the code provides that “if the damages of the defendant shall exceed, in amount, those of the plaintiff, the defendant shall in such cases recover of the plaintiff the amount of such excess,” such a plea need no longer be purely defensive in its nature, but permits a prayer for affirmative relief. Thus, in a suit maintained in -a city court on a contract, where the defendant, incidentally invoking equitable principles, seeks to recoup damages on account of a tort, it is permissible for him to do so, so long as he does not claim the benefit of any- peculiar and extraordinary power of a court of equity, but confines his plea to matters purely defensive in their nature, and seeks only to set up a defense which, if sustained, would result simply in a verdict finding generally in his favor, or in reducing the amount of plaintiff’s recovery. In the instant case, while the plaintiff is a nonresident, treating the amendment and original plea (as they are treated by the defendant) as a recoupment in tort, they were not purely defensive in nature, but prayed for affirmative relief by seeking the recovery of damages greatly in excess of the amount sued for in the petition. The amendment, being not purely defensive, was therefore properly disallowed, and the court did not err in rejecting evidence offered in its support or offered in support of the original plea of similar nature.

4. No contention is made that the plea might be treated as purely defensive to the extent of the amount sued for by the plaintiff. Under the rulings above cited, and the language used in Burnett v. Davis, 124 Ga. 541, 544 (52 S. E. 927), wherein it was held that “a city court has jurisdiction to entertain an equitable plea which is purely defensive in its nature, and which if sustained would result simply in a verdict finding generally in favor of the defendant, or reducing the amount of plaintiff’s recovery, when such reduction is not brought about by the exercise of any of the extraordinary powers of a court of equity, such as cancellation, reformation, equitable set-off, and the like,” it does not seem that any such construction would be sound. But however this might be, and even were it possible to treat the plea, praying though it does for affirmative relief, as being purely defensive to the extent of the amount sued for by the plaintiff, it is our opinion that, even under such a construction, the defendant failed to sustain his case on that theory. While it is the recognized rule that, under a contractual relationship, the injured party may, where the rules of pleading permit* waive his rights under the contract, and recoup in tort, except where the breach complained of is simply the neglect of a duty expressly provided for by the contract itself (Fain v. Wilkerson, 22 Ga. App. 193 (2), 194, 95 S. E. 752, 12 L. R. A. (N. S.) 925, 926, 929), still, in order for him to do so, there must have been a breach of such an implied duty arising under the contract, and no such defense will lie where the plaintiff, under the contract, has performed the work with reasonable care, skill, and ability, and if special skill and ability are required, such as under similar conditions and like surrounding circumstances are ordinarily employed in that profession or specially skilled business. Block v. Happ, supra; Fincher v. Davis, supra; Chapel v. Clark, supra. “When the action [or plea] is on the contract, the damages must necessarily be confined to such as were in legal contemplation within the minds of the contracting parties; whereas, in. a suit [or plea] in tort the injured party is limited only by the rule which requires that the damages must have followed directly and as the natural consequence of the act complained of.” Lipscomb v. Watkins, 28 Ga. App. 185 (1) , 186 (110 S. E. 502); Hines v. Evans, 25 Ga. App. 829, 833 (2) (105 S. E. 59). This distinction, however, relates not to the essential nature of a valid cause, but merely to the measure of damages. Thus, when the suit is on contract, and the defendant, waiving the breach of contract, sets up a plea of recoupment in tort, he must still show that the plaintiff has negligently performed some obligation imposed by the contract, which in its direct and natural consequences resulted in his injury. In the instant case the evidence does not sustain the plea, whether it be treated as sounding in contract or, as is contended by the plaintiff in error, as a plea of recoupment in tort; for, under the rule stated, the evidence fails to show any breach by the plaintiff of the express terms of the contract, or any breach of an implied obligation growing out of the same, which might, under proper rules of pleading, be recouped by way of tort, on the theory that the plaintiff had failed in its implied obligation under the contract to perform the agreed service with reasonable care and skill, such as under similar conditions and like surrounding circumstances is ordinarily employed in that profession or specially skilled business. While the defendant offered to show by electrical experts that a certain method of grounding the wires or the use of other safeguards would have tended to protect the trees or make them “reasonably safe” from the spread of lightning, no attempt was made to carry the burden of showing that such precautions were generally practiced in the tree-surgery business, or the skilled treatment of trees, so as to import such an implied contractual duty.

5. The grounds of the motion for a new trial relating to the proper amount of recovery, and the general grounds, not being argued or insisted upon, will be treated as abandoned,. '

Judgment affh'med.

Stephens and Bell, JJconcur.