text:
    15610.
    EDENFIELD v. ROUNTREE.
    1. As a general rule, the doctrine of caveat emptor applies to administrators’ sales; but fraud or misrepresentation in such a sale may be a good defense to an action upon a note for purchase-money. Where an administrator obtained leave to sell an entire brick building and advertised the property for sale as two designated lots fronting 30 feet each on a certain street, and described the building as “being 60 feet wide,” and the advertisement was read at the public sale, and the purchaser relied on the truthfulness of the representations thus made, and received from the administrator a deed describing the lots as having such frontage, when in fact the administrator’s intestate had sold to another 10 feet of this frontage, including the entire wall on one side of the building, which at the time of the administrator’s sale was in the adverse possession of another, the .doctrine of caveat emptor would not prevent the purchaser from the administrator, when sued by the administrator for the balance of the purchase price, from setting up the misrepresentation and obtaining an abatement or apportionment of the purchase price, if the proportionate value of the deficiency was capable of determination. The administrator, in assuming to state the exact frontage, would be bound to know of the previous sale by his intestate, and would be chargeable with the misrepresentation, regardless of whether he actually knew of its falsity.

      2. “An administrator can not sell property field adversely to the estate by a third person; he must first recover possession.” Civil Code (1910), § 4033. Where an administrator’s deed includes both land in possession of the estate and land held adversely by a third person, and the respective properties and values are capable of exact division and determination, the deed may be held void pro tanto, as to the part in adverse possession.
    3. Although the city court had no jurisdiction to cancel the deed as prayed for in one of the alternative prayers of the defendant’s plea, the jury would have been authorized, under the pleadings and the evidence as to the value of the 10-foot wall and deficiency in frontage, to find for the defendant in the amount of that value, as a recoupment to the consideration represented by the notes sued on. It was therefore error to direct a verdict for the plaintiff for the amount sued for.
    4. There being conflict in the evidence as to whether there was compliance with the statutory requirement of ten-days notice before suit, as a tiondition of the recovery of attorney’s fees provided for in the notes, the direction of a verdict for guch fees was error.
    Decided February 12, 1925.
    Complaint; from city court of Swainsboro—Judge Kirkland. March 24, 1924.

      Arthur W. Jordan, for plaintiff in error.

      Anderson & Trapnell, contra.
   Jenkins, P. J.

It is a well-established general rule that “the doctrine of caveat emptor applies to administrators’ sales;” and the provisions of the Civil Code (1910), § 4122, for apportionment of the purchase price on account of deficiency of acreage, or a rescission of the sale, have no application to such sales. McKinnon v. Sheffield, 149 Ga. 219 (1) (99 S. E. 855); Greer v. McDonald, 141 Ga. 309 (80 S. E. 1002); Mercer v. Sager, 129 Ga. 123 (58 S. E. 1037); Thrift v. Baker, 144 Ga. 508 (87 S. E. 676); Civil Code (1910), § 4032. Thus, it has been stated as a general rule that, “when one applies to an executor or administrator for information as to the title to land advertised for sale by such executor or administrator, or as to its quality or quantity, it is the same as if application were made to one who had no interest in the land. An -executor or administrator can not warrant the title; and this being so, his statements fix no liability upon the estate he represents nor upon himself.” Wells v. Harper, 81 Ga. 194 (6 S. E. 913, 12 Am. St. Rep. 310). But there are recognized exceptions to this rule. A fraud or misrepresentation practiced by an executor or administrator in the sale of his testator’s effects is a good defense to an action on a note given for the property on the sale of which the fraud was practiced (Williamson v. Walker, 24 Ga. 257, 259, 260; Kirkland v. Wade, 61 Ga. 478, 480; Kingsbery v. Love, 95 Ga. 543, 22 S. E. 617; Keen v. McAfee, 116 Ga. 731, 42 S. E. 1022; Colbert v. Moore, 64 Ga. 502; Holmes v. Holmes, 140 Ga. 219, 78 S. E. 903; Jones v. Warnock, 67 Ga. 484); and the general rule stated will not charge such a purchaser “with notice as to the acreage being sold, or the boundary of the tract, where the representative of the estate fraudulently undertook to give the exact acreage” or dimensions of the property, “and to point out the boundary lines, professing to know these facts himself and not leaving the purchaser to his own resources to acquire this information. If the purchaser relied on these false representations, he would be defrauded and entitled to a rebate for the shortage in acreage” or dimensions of the property, “whether the representative of the estate knew that his representations were false or not at the time of making them.” Redfearn on Wills & Admn. of Estates, 551; 552; Folsom v. Howell, 94 Ga. 112 (2) (21 S. E. 136) (where there was no actual fraud, but the representative assumed to state exact data, selling 38-6/10 acres as 50 acres). See also Brannen v. Brannen, 135 Ga. 590 (69 S. E. 1079); Southern Cotton Mills v. Ragan, 138 Ga. 507 (75 S. E. 611).

Where an administrator of an estate applied for and was granted leave to sell a described entire brick store building, advertised it for sale as “lots 5 and 6 in block 16, said lots fronting 30 feet each on Second Street and extending 90 feet to 30-foot alley, situated in the city of Stillmore, said building being 60 feet wide,” and this advertisement was read at the public sale, and where the purchaser relied upon the truthfulness of the representations thus made as to the property being the entire building and 60 feet in width, and received a deed from the administrator, describing the lots as having such frontage, when in fact the administrator's intestate had previously sold to another 10 feet of the frontage, including the entire wall on one side of the store building, which was in the adverse possession of another, and the property and building owned by the estate actually contained only a 50-foot frontage, the general rule of caveat emptor would not prevent the purchaser from setting up the misrepresentation, in defense to an action by the administrator for the balance of the purchase price bid for the property, and obtaining an abatement or apportionment of the purchase price on account of such misrepresentation, where the proportionate value of the deficiency was capable of determination. In assuming to state the exact frontage of the property and the building, the administrator would be bound to know of the previous sale by his intestate, and would be chargeable with the misrepresentation made, regardless of whether he actually knew of its falsity or had no actual intention to practice a fraud on the purchaser.

Section 4185 of the Civil Code (1910) declares that “a deed to lands, made while the same are held adversely to the maker of the deed, is not void.” But the contrary rule at common law, making void all conveyances of land which at the time is in the adverse possession of another, has been preserved in this State as a special rule applicable to administrators’ sales, and section 4033 of the Civil Code declares that “an administrator can not sell property held adversely to the estate by a third person; he must first recover possession.” Booth v. Young, 149 Ga. 276 (1) (99 S. E. 886); Guthrie v. Bullock, 143 Ga. 17 (84 S. E. 59); Downing Lumber Co. v. Medlin, 136 Ga. 665, 668 (73 S. E. 33); Hanesley v. Bagley, 109 Ga. 346 (34 S. E. 584); Heard v. Phillips, 101 Ga. 691 (31 S. E. 816, 44 L. R. A. 369); Thrift v. Baker, 144 Ga. 508, 509 (87 S. E. 676); Redfearn on Wills & Admn. of Estates, 540, note. While “the object of the provision contained in section 4033 of the Civil Code hs to prevent the administrator from sacrificing the value of the property by putting it up for sale under such circumstances that the purchaser would buy a lawsuit along with the land’ ” (Powell on Actions for Land, § 349; Booth v. Young, supra; Downing Lumber Co. v. Medlin, supra), the validity of such a deed is subject to attack by others than those having an interest in the estate, even including the holder of the adverse possession, and this is true even though his own lease be void as against the estate. Booth v. Young, supra. But the purchasers at administrators’ sales, as well as at other sales, must not themselves have gone into undisturbed possession; in which event the right to relief is controlled by other equitable principles. Henderson v. Fields, 143 Ga. 547, 548 (85 S. E. 741); Mathis v. Crowley, 146 Ga. 749 (3) (93 S. E. 313).

Where an administrator’s deed to lands includes both property in the possession of the estate and property “held ad-Tersely to the estate by a third person,” and such respective proper* ties and their values are capable of exact division and determination, the deed will not be held altogether void as failing to pass the title to the property of which the administrator could deliver actual possession to the purchaser, but may be held void pro tanto as to that portion in the adverse possession of another. See Booth v. Young, supra (149 Ga. 280), where the deed was held void as to the portion not in possession, but the Supreme Court expressly withheld its opinion as to whether the instrument would operate as a-good conveyance of the remaining portion.

“While a city court has no jurisdiction to grant affirmative equitable relief, it may entertain jurisdiction of an equitable plea purely defensive in its nature.” House v. Oliver, 123 Ga. 784 (1), 785, 786 (51 S. E. 729); Hanesley v. Nat. Park Bank, 147 Ga. 96 (1), 99 (92 S. E. 879); Geer v. Cowart, 5 Ga. App. 251 (1-4) (62 S. E. 1054); Swift v. Oglesby, 8 Ga. App. 540, 542 (70 S. E. 97); Birmingham Fertilizer Co. v. Dozier, 13 Ga. App. 759, 761 (79 S. E. 927); Davis v. Preston, 12 Ga. App. 65 (2), 68 (76 S. E. 766). “The cancellation of a deed is a matter purely and exclusively within the power of a court exercising full and unrestricted equitable jurisdiction. The only court of this kind in Georgia is the superior court.” Bank of the University v. Carlton, 96 Ga. 469, 473 (3) (23 S. E. 388). The city court of Swainsboro has no such powers. But such a court has jurisdiction even of an equitable plea, which is purely defensive, “and which, if sustained, would result simply in a verdict finding generally in favor of the defendant, or reducing the amount of plaintiffs 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.” Burnett v. Davis, 124 Ga. 541, 544 (52 S. E. 927); Hecht v. Snook & Austin Co., 114 Ga. 927 (41 S. E. 74).

“Recoupment lies for overpayments by defendant, or payments by fraud, accident, or mistake,” and “may be pleaded in all actions ex contractu, where from any reason the plaintiff under the same contract is in good conscience liable to defendant. And in all cases where, under the laws of this State, recoupment may be pleaded, 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. Civil Code (1910), §§ 4352, 4353.

“Where the defendant, in a suit in a city court on a note for the purchase-money of land, files a plea, alleging that the land is owned by and is in the possession of a third person, and that the plaintiff (the payee of the note) refuses and is unable to make titles to the land to the defendant, and that the note was given and payments on such purchase-money were made to the plaintiff on the faith of his representation that he owned the land and would make a good title thereto to the defendant, which representations were false and fraudulent, and the defendant seeks a recovery of the monej' paid and a cancellation of the notes, . . the city court has jurisdiction to entertain such defense and permit such recovery.” Norton v. Graham, 130 Ga. 391, 393 (60 S. E. 1049). .

In the instant case the administrator sued upon two promissory notes for a total of $4,033.35 principal, representing the alleged balance due upon the defendant’s bid in purchasing the property described in division 1 (a) of this decision, the total consideration of the deed executed to the defendant being $6,050, the defendant having paid the- difference in cash. The defendant in her plea and answer set up that 10 feet of the frontage of the building, including all of one of the side walls, was at the time of the administrator’s sale in the adverse possession and ownership of another, that she had been excluded from its possession, that the frontage had been misrepresented as described, that she had relied on such representation, and that the alleged deficiency was worth $2,000. The original plea, termed a “plea of total failure of consideration” and a “plea of recoupment,” contains alternative prayers and averments,— (1) that, as the entire sale was void, “both parties should be placed in statu quo as of the day of the sale,—that is to saj', plaintiff, by the judgment of the court, should be required to pay to defendant all of the money paid to plaintiff,— the sum of $2,000 with interest thereon to this date, that all of the deeds executed between the parties should be canceled and said building returned to plaintiff, that defendant should be required to pay a reasonable amount for the use of said premises as occupied by her and for the time occupied by her, and that the notes sued upon should be returned to this defendant,” that “there be an accounting between the parties hereto, that defendant have judgment against the plaintiff for the amount paid in cash, -less the rental value of said premises as occupied bjr this defendant, that said building be returned to plaintiff, and all the papers executed between the parties hereto be canceled and satisfied;” or (2) that her claim of $2,000, “or whatever sum this court may deem fit and proper,” for the value of the wall and deficiency in frontage be allowed. By amendment the plaintiff elaborated the alleged misrepresentations as to the frontage and wall, and sought to recover “the value of said ten feet . . and said wall in an amount that said ten feet width bears in proportion to the value of said building and said lot as represented by said plaintiff.” There was no demurrer to this plea, and there was evidence tending to support the essential averments. Under the foregoing rulings, while the city court had no jurisdiction with reference to the cancellation of the deed made to the defendant, as prayed for in the defendant's plea, it might have had jurisdiction to grant the remaining relief to the parties sought in the first of the described alternative prayers, save for the fact that the outstanding deed would remain as a cloud upon the plaintiff's title, and thus prevent the parties from being placed in statu quo. The defendant, therefore, was not entitled to relief under the first theory of defense. However, under the rules stated and the evidence as to the value of the ten-foot wall and the deficiency in frontage, the jury would have been authorized to find for the defendant therefor, as a recoupment to the consideration represented by the notes. It was therefore error to direct a verdict for the plaintiff for the amount sued for.

With reference to the attorney's fees, while there was evidence supporting the plaintiff's allegations and contention that the ten days notice had been given and was received by the defendant, there was evidence from which the jury might have found that it had not been received by her at all, or within the required time. For this additional reason, as to the item of attorney's fees it was error to direct a verdict for the plaintiff.

The court having erred in directing a verdict, a new trial should have been granted to the defendant upon this ground of her motion.

Judgment reversed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    15611.
    Lemaster v. Millers.
    Decided February 12, 1925.
    Action for damages; from Floyd superior court—Judge Wrigbt. April 4, 1924.
    Application for certiorari was denied by the Supreme Court.

      M. B. Súbanles, for plaintiff.

      Porter & Mebane, for defendant.
   Stephens, J.

1. One.who maintains a mercantile establishment for the purpose of selling goods owes a duty to a customer, lawfully in his store by his implied invitation for the purpose of transacting business, to protect the customer against the use of any unprovoked and unjustifiable opprobrious and insulting and abusive words by a clerk employed by him to deal with customers, tending to humiliate, mortify, and wound the feelings of the customer. Moone v. Smith, 6 Ga. App. 649 (65 S. E. 712); Cole v. Atlanta & West Point R. Co., 102 Ga. 474 (31 S. E. 107).

2. A petition as amended which alleges that the plaintiff, while present in the defendant’s store as a customer, desiring to make a purchase from the defendant, was, in a loud and angry tone which could be heard by other customers present, falsely and unjustly accused by one of the defendant’s clerks of having in a handbag a certain article belonging to the defendant, which charge humiliated and embarrassed the plaintiff, set out a cause of action for a wilful and intentional tort.

3. The court erred in sustaining the demurrer to the petition.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    15613.
    HOUSER v. VOSE et al.

    Where a real-estate owner told a broker with whom he had listed it for sale that he would exchange it for a certain unimproved lot owned by another person, as suggested by the broker, if the other person would, within a stated time, oiler to make the suggested trade, and where the broker obtained from the other person within that time a written offer for such an exchange, no such variance between the terms of the parties as would prevent a recovery of the broker’s commission was created by the following provisions of the written offer: “Interest and insurance to be prorated. This trade is made subject to the approval of titles to all property concerned. It is agreed that the vendor shall furnish good and marketable title to said property, and purchaser shall have a reasonable time in which to investigate same. In the event the title is objected to, the vendor shall be furnished with a written statement of all objections and be allowed a reasonable time thereafter in which to furnish valid title.” The provisions as to title amounted to nothing more than the law implied. The same is true of the provision as to prorating interest,—that is, that interest should be settled for by the party owing it. The provision as to insurance could not have operated against the defendant, the lot offered to him being unimproved; and the provision that objections to title should be in writing did not constitute a material variance.
    Decided February 12, 1925.
    Certiorari; from Fulton superior court—Judge Ellis. March 19, 1924. •

      McElreaih & Scott, for plaintiff in error.

      E. A. Etheridge, contra.
   Jenkins, P. J.

The defendant owner of improved real estate orally listed the property for sale with the plaintiffs as real-estate brokers. While the property was in the hands of the brokers for sale, one of them stated to the owner that he thought he had a prospect who would exchange an unimproved lot for the equity owned by the defendant in his real estate. The defendant owner stated to the broker that he- would trade as suggested, provided that the offer be made by noon of that day. The brokers, prior to the expiration of the time limit, telephoned to the office of the owner that the trade had been agreed upon, and in a few minutes after twelve o’clock saw the owner in person, and presented to him a signed offer from the prospective purchaser, whereupon, according to the testimony in the case, the owner declined to consummate the trade, giving as his reason that he had given an option on the property to another, and that it “did not belong to him any way.” The written offer submitted by the brokers from the prospective purchaser was in accordance with the terms of the oral listment, unless there was a difference by reason of the following provisions contained in the written offer: “Interest and insurance to be prorated. This trade is made subject to the approval of titles to all property concerned. It is agreed that the vendor shall furnish good and marketable title to said property, and purchaser shall have a reasonable time in which to investigate same. In the event the title is objected to, the vendor shall be furnished with a written statement of all objections and be allowed a reasonable time thereafter in which to furnish valid title.” A verdict in favor of the brokers, for the commissions claimed, was obtained in the municipal court. The defendant’s certiorari was overruled by the superior court. It,is contended that, the provisions quoted not having-been mentioned in the terms of the oral listment, there was a variance between it and the offer, and that therefore the brokers were not entitled to their commissions.

1. “The general rule, in the absence of a different agreement, is that a real-estate broker in whose hands properly is placed for sale earns his commissions when, during the agency, he finds a purchaser ready, willing, and able to buy, and who offers to buy on the terms stipulated by the owner.” Winer v. Flournoy Realty Co., 27 Ga. App. 87 (1) (107 S. E. 398).

2. If it be taken that the terms of the offer failed to conform to the terms of the listment, the fact that the owner did not then and there base his refusal upon such discrepancy would not estop him from setting up such a ground of defense, under the principle of the rulings made in Fenn v. Ware, 100 Ga. 563 (28 S. E. 238), and Winer v. Flournoy Realty Co., supra, since “the rule which prevents one who has. given-a reason for his conduct and decision in a matter from placing his conduct upon another and different ground after litigation has begun is but an application of the principle of estoppel in pais, and applies only where his conduct has caused another to act respecting the matter to the injury and detriment of the latter, and where the latter would be placed at an inequitable disadvantage should the former be allowed to rely upon a ground other than that urged as a reason for his conduct and decision in the matter.” Union Brokerage Co. v. Beall, 30 Ga. App. 748 (1) (119 S. E. 533). In the Fenn case and the Winer case, supra, there had been an acceptance of the offer made by the owner, and in each of those cases the failure of the offer to conform to the terms of listment or to the terms of the acceptance might have been obviated by the broker had such a ground of objection been promptly assigned; whereas in the instant case, while the offer was submitted in general terms .over the telephone before the expiration of the time of listment had expired, the terms of the offer were not themselves submitted until after its expiration.

3. Ordinarily the only implication in an executory contract for the sale of land is the promise to convey good title. This term imports no more than a marketable title, or one free from reasonable doubt,—-that is, not only a valid title in fact, but one that can readily be sold to a reasonable purchaser. Accordingly, a distinction has been recognized between a good and marketable title and a title such as may be approved by the owner. Winer v. Flournoy Realty Co., supra. The provision in the instant case, however, that the trade was subject to approval of titles to all property concerned, was qualified by the clause immediately following, to the effect that the vendor was to furnish good and marketable title, that is to say, the right of the purchaser to disapprove the title .was limited by the further provision contained in the written offer. Thus, construing the two provisions together, the offer as actually made amounted to nothing more than what the law would of itself have implied.

(а) The provision that interest should be “prorated,”—that is, that any lien as to interest should be settled for by the party owing it,—is nothing more than what the law would of itself imply. The provision that the insurance should be prorated could not possibly have militated against the rights of the defendant. The lot of the proposed purchaser being unimproved, the fact that the insurance maintained by the defendant should be paid for by the prospective purchaser worked’ in his favor and to his interest alone.

(б) The word “vendor” as contained in the written offer to purchase is made to refer throughout to the defendant owner, but even assuming, inasmuch as both parties to the proposed contract were in a sense “vendors,” that the terms of the offer quoted, with reference to having a reasonable time in which to investigate the titles, and that the vendor shall be furnished with a written statement of all objections, and be allowed a reasonable time thereafter in which to furnish a valid title, refer to each of the parties alike, such a reasonable and necessary provision should not and could not be construed as a material addition to the oral contract of listment which was in the minds of the contracting parties. That a person under contract to purchase should reject the title and fail or refuse to give his reason therefor is in and of itself unreasonable ; and consequently the provision that the reasons should be stated is nothing more than what could reasonably be said to have existed in the minds of the contracting parties. Nor could the fact that the offer provided that' such objection be in writing be reasonably taken as constituting such a variance as should work a forfeiture of the commissions which the broker had fairly earned.

Judgment affirmed.

Stephens and Bell, <717., concur.


text:
    15620.
    RIVERSIDE ACADEMY v. URIGH.
    1. Irrespective of whether the grounds of demurrer as to the items of expense alleged in the petition were properly pleaded and meritorious, the overruling of such grounds was harmless to the defendant, in view of the amount of the verdict, which did not include these items.
    2. The principle that “where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation 1ms begun, change his ground and put his conduct upon another and different consideration,” was not applicable in this case, and the court did not err in refusing to give it in charge to the jury.
    3. Inaccuracy of the charge of the court in referring to the action as a suit “for a breach of the contract,” when it was in the nature of an action of assumpsit for money had and received, could not reasonably have been prejudicial to the defendant, the court having correctly stated the essential averments and contentions of the parties as set forth in their respective pleadings, with the law applicable to the case thus made.
    4. Failure to add to the charge complained of a certain qualification not requested was not error.
    5. The evidence authorized a finding that (on account of the failure of the defendant to complete the new dormitory of its school as soon as it had expected to do so) the accommodations furnished to the plaintiff’s son,, in certain particulars, were not as stated and relied upon under the defendant’s catalogue; and therefore the jury were authorized to find the verdict rendered for the amount advanced to the defendant for the books and uniform returned to it, and for tuition and board, less an amount for tuition and board for the period of the son’s attendance at the school.
    6. The defendant can not complain that the amount of the verdict was less than the full amount paid to it by the plaintiff.
    Decided February 12, 1925.
    Complaint; from city court of Hall.county—Judge Sloan. March 29, 1924.
    The petition of Tlrigh against Riverside Academy alleges that, acting upon certain statements by the defendant school in • its catalogue with reference to accommodations for pupils, the plaintiff entered his son on October 11, 1920, for the remainder of the fall term ending December 18, 1920, and that upon finding that such accommodations were not as stated, he withdrew his son from school on October 19, 1920. Recovery was sought of $256, the amount advanced to the defendant for tuition and board, $83.75 for uniform, including overcoat, and books, and $40.25 additional advance payment, making a total of $380; and also, as expenses incurred in carrying out the contract, $50 paid for the railroad fare of his son in going to the school and returning home, and $50 paid “for supplies of linen, blankets, etc., which each pupil had to bring with him,” While the aA'erment is made, in connection with the latter two items, that “this sum Aras a loss to plaintiff by reason of the aforesaid breach of its contract by defendant,” the allegations in connection Avith the remaining items-are appropriate to an action for the recovery of money paid, treating the contract as rescinded, it being set forth that the plaintiff returned, “as soon as his son could reach home,- . . the uniform and books Avliich defendant had furnished him, in first-class condition, and defendant has the same,” and that said items represent money “for Avhich he has receiAred no consideration, and which defendant can not in equity and good-conscience retain.” The defendant demurred generally, and demurred specially to the two $50 items for expenses, upon the ground that “said items aré not legal charges against this defendant for Avhich there .could be any recovery in this suit.” There was, however, no ground of demurrer that such • expense items are inconsistent A\rith the damages sought in the recovery of the purchase price of the scholarship, and could not be pleaded in the same action. The jury found for the plaintiff $359, and allowed neither of the items claimed for expenses, since it is manifest that they allowed the first three contractual amounts sued for, less the amount represented by the board and tuition for the son AArhile actually in attendance upon the school. Exceptions pendente lite to the overruling of the demurrers were preserved by the defendant. Exception Avas taken also to the overruling of the defendant’s motion for a neAv trial, based upon the general grounds, and to certain instructions to the jury and the refusal of certain requests to charge.

      Johnson & Adderholdt, for plaintiff in error.

      J. 0. Adams, Howard Thompson, contra. '
   Jenkins, P. J.

(After stating the foregoing facts.)

“If one of two contracting parties claims that the other has committed a breach of the contract, he can not in the same action both treat the contract as rescinded and sue for the amount paid by him to the other party, and at the same time rely on the contract as existing. The allegations of the declaration make it a suit for the amount paid to the defendant by the plaintiff, treating the contract as rescinded. In addition the plaintiff sought to recover certain damages resulting from a breach of .the contract, treating it as of force. The latter claim should have been stricken on demurrer as inconsistent with the former.” Timmerman v. Stanley, 123 Ga. 850 (2, 3), 853 (51 S. E. 760, 1 L. R. A. (N. S.) 379). As stated in that case, the ground of demurrer was that the expense items “are inconsistent with'the damages laid in the paragraph seeking to recover the purchase-price of the scholarships, and can not be joined in the same action;” the demurrer Avas not “for misjoinder of causes of action, so as to put the defendant upon his election, but Avas for inconsistency' in joining certain claims with another, AA'hich had first been made and Avhich it Avas claimed determined the character of the action.” In the instant case there was no ground of demurrer for either misjoinder or inconsistency in joining claims. The jury, hoAvever, found for the plaintiff $359, and allowed neither of the items claimed for expenses. Thus, irrespectiA'e of whether or not the attack of the demurrers upon these items Avas properly made and Avas meritorious, the overruling of such grounds of demurrer, as well as the court’s refusal to charge that the plaintiff could not recover these items, Avas in any event harmless to the defendant.

While it is true that, “AA'here a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration” (Fenn v. Ware, 100 Ga. 563, 566, 28 S. E. 238; Cowdery v. Greenlee, 126 Ga. 786, 789, 55 S. E. 918, 8 L. R. A. (N. S.) 137; Tuggle v. Green, 150 Ga. 361 (2), 370, 104 S. E. 85; Frank & Meyer Neckwear Co. v. White, 29 Ga. App. 694 (3), 695, 116 S. E. 855), still, as Avas held by this court in Union Brokerage Co. v. Beall, 30 Ga. App.. 748 (1) (119 S. E. 533), this rule “is but an application of the principle of estoppel in pais, and applies only Avhere his conduct has caused another to act respecting the matter to the injury and detriment of the latter, and Avhere the latter avouIc! be placed at an inequitable disadvantage should the former be allowed to rely upon a ground other than that urged as a reason for his conduct and decision in the matter;” and consequently the principle has no application in the instant case so as to limit the plaintiff’s reasons for removing his son from the school to homesickness, merely because the son’s mother, on October 15, before he had left the school and before either she or the plaintiff Avas shown to have been apprised of any actual conditions, Avrote to the school, “I am afraid he is somewhat homesick, or some one has given him a very wrong impression since he has been up there.” Nor would the fact that the boy went home on a telegram addressed to him, and not to the defendant, saying that she was lierself sick, limit such reasons to the sickness of the mother, where the plaintiff, after the boy’s return, advised the defendant that he had withdrawn the boy for certain other reasons assigned. There was no error, under the evidence, in refusing to charge in effect .the principle stated. Moreover, it appears, under certain evidence, that the boy himself before leaving school, and the mother after his return home, complained of the crowded rooming arrangements, on account of which the plaintiff claims he was justified in rescinding the' contract.

The language of the court in referring to the action as “a suit brought by the plaintiff to recover for a breach of the contract,” and in charging that, “if you believe from the evidence there was a breach of the contract by” the defendant, “the plaintiff would be entitled to recover such damages as he may have, sustained by reason of that breach,” while inapt’ in thus referring to what was in the nature of an action of assumpsit for the recovery of money had and received, could not- reasonably have been prejudicial to the defendant, where the court correctly stated the essential averments and contentions of the parties with reference to the action, as set forth in their respective pleadings, with the law applicable to the case thus made. Nonperformance by a party of his covenants is a statutory ground of rescission (Civil Code of 1910, § 4306), and was the basis.here relied upon. Such “nonperformance” by the defendant, while not technically a “breach of contract” where the contract was for that reason and before performance rescinded by the defendant, in popular understanding was so similar to such a “breach” that the jury could not have been injuriously affected by such expressions.

' Nor was the charge quoted or a like instruction complained of erroneous for the'further reason assigned, that they were not qualified by the exception that such a breach should not have been “occasioned by the conduct, fault, or negligence of the plaintiff, or whether plaintiff by his conduct occasioned said breach, or whether plaintiff afforded defendant any opportunity of complying with said contract after plaintiff complained of said alleged breach.” Even if such an exception were warranted by the evidence, and were an accurate statement of legal principles, such a qualification was not required in the absence of a written request to give it in charge.

The defendant in its catalogue, relied upon by the plaintiff and his son under their evidence, had stated that there would be “comfortable quarters,” and that “each cadet has a single iron bed, . . half of a large, polished oak table, three drawers of a chiffonier, and half of a large closet.” While other contentions of the plaintiff with reference to crowded accommodations at the school, such as requiring the plaintiff’s son to be in a room with three other boys, or in reference to lavatories and baths, were not sustained by any evidence showing anything contrary to what was stated in the catalogue under the price paid by the plaintiff, the jury were authorized from the evidence for the plaintiff to find that (on account of the failure of the defendant to complete its new dormitory as soon as it had anticipated) the accommodations furnished to the plaintiff’s son, with reference to bed, table for books and study, drawers of chiffonier, and closet for clothing, were not as stated and relied upon under the catalogue, and therefore they were authorized to return the verdict rendered.

The defendant can not complain that the amount of the verdict was less than the full amount paid in by the plaintiff, it appearing that the jury of their own motion deducted from this sum an amount for board and tuition covering the week or ten days which the plaintiff’s son had spent at the school.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15631.
    RYLE v. FARMERS AND MERCHANTS BANK OF GORDON.
    There was no material error in the charge of the court as to the law applicable to the contentions of the defendant, who in her pleadings set up that she was not a joint maker but merely a surety on the note sued on (which was signed also by her son), and that the note was materially altered and the amount raised from $400 to $687, without her consent, after she signed it, and who testified that it was “just a blank note” when she signed it at the request of her son, and that he told her that it was for a renewal of a $400 note signed by them.
    The verdict for -the plaintiff was authorized by the evidence.
    Decided February 12, 1925.
    Complaint; from city court of Macon—Judge Gunn. April 12, 1924.
    The bank sued two defendants as joint makers of a promissory note for the principal sum of $687, dated February 3, 1922. One defendant pleaded bankruptcy and proved his discharge, and the court directed a verdict in his favor. His mother, the other defendant, whose signature appeared on the face of the note above that of the son, pleaded that she was “an accommodation indorser and nothing more than a surety on a note to the” plaintiff for not only her codefendant but also another person, that “the amount of said dote was $400, and the plaintiff has changed the note from $400 to $687, and released such other person;” that this change of the contract and the release of one of the principals has increased the liability and risk of the surety; that “she has given proper notice to” the other defendant “that she intends on the trial of this case to prove that she was an accommodation indorser for him on said note, and not a joint maker with him;” that she “does not know where the note was when it was changed, but she does know that it was changed after it was in the hands of the plaintiff, its agents and employees; the note was changed by raising it from $400 to $687, by changing the date from November 29, 1921, to February 3, 1922, by changing the maturity of the note from February 1, 1922, to September 1, 1922, by releasing” another named person from said note, “whose name does not now appear on the note; and said changes were made without her knowledge or consent and without any authority from her, and no one had the authority to act as her agent in making said changes in said note;” that “the defendant . . did not make and execute the note sued on jointly with” the other defendant, “neither did she make said note sued on in any capacity;” that “said note is no part of her obligation in any capacitj'', as surety, joint maker, or in any capacity; she did not agree with the plaintiff or its agents nor with any one else, neither did she give any one authority to bind her on said note;” and that she did not “authorize any one to execute the note sued on as principal or surety or in any capacity, for her and in her stead.” At the trial the plaintiff’s cashier swore that the son’s name was signed first on the note, which was then complete, and afterwards by the mother; and that the note as sued upon had been in no way changed. It appears from uncontroverted evidence that the $687 Jiote sued on was given to the bank to renew or take up a note for $400 principal, signed by the two defendants and another person, and other notes aggregating $278 principal, signed by the son and such other person but unsigned by the mother, all of which former notes were thus taken up and marked paid on February 1, 1922. Both defendants admitted their signatures on the $687 note sued upon. The defendant mother testified, that this note was “just a blank note” when she signed it; that her son, the other defendant, told her only that he wanted her to “sign it for a renewal of the $400 note;” that she “did not know anything about any other notes;” that her son said to her, “I have got to renew that note, and I want your signature on it;” that she was “security on the first note, $400, and they wanted it renewed,” and she “signed as security,” that her son signed when she signed it, and carried the papers back to the bank. The son testified that his understanding with the bank was that the note sued on was to embrace and include the amount represented by all the notes previously signed by him, but testified that when he went to his mother to get her to sign the new note, he told her he “wanted to renew the $400 note, [and] did not say anything about the $287,” and that he turned over to the bank’s cashier “the note in blank with my name and my mother’s signed to it.” The jury found for the plaintiff against the defendant mother. She excepts to the refusal of a new trial.

      J. D. Hughes, for plaintiff in error.

      Walter DeFore and James O. Estes, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

1. “If the fact of suretyship does not appear on the face of the contract, it may be proved by parol either before or after the judgment (the creditor not being delayed in his remedy by such collateral issue between the principal and his surety), if before judgment the surety shall give notice to the principal of his intention to make such proof.” Civil Code (1910), § 3556. The record shows that notice of such intention was given to the principal in the instant case. If such a surety “is by an erroneous ruling denied the right to establish before judgment the fact thus set up, he is entitled to a new trial.” Whitley v. Hudson, 114 Ga. 668 (3) (40 S. E. 838). In the case here cited the alleged error was the exclusion of evidence seeking to show that the defendant had signed merely as surety. In the instant case no such evidence was excluded; but it is contended that the court erred in charging generally that, “in the event you find for the defendant, the form of your verdict would be, cWe, the jury, find for the defendant/ and in failing in the same connection to charge the jury that if they found that she was surety only, the form of their verdict would be that they found that she was surety on the note, and that the plaintiff have judgment against her as surety in the sum sued for.” Even if the failure so to charge, in the absence of a written request, might be accounted error, it was, under the particular facts, without injury to this defendant; since it appears that after the other defendant, the alleged principal, had sustained his plea of discharge in bankruptcy, the court directed a verdict in his favor.

2. The delivery of an inchoate or incomplete bill or note,—as •where the instrument is delivered with blanks left for the insertion of the amount or terms of payment, or where a signature on a blank paper is delivered with the intention of having a complete instrument written over it,—confers on the person to whom it is delivered presumptive authority to complete the instrument in the manner contemplated by the signer, by filling the blanks, or by writing the instrument as the ease may be. Atlanta Nat. Bank v. Bateman, 21 Ga. App. 624 (3) (94 S. E. 853); 8 Corp. Jur. 182, 185; 3 R. C. L. 874, 875. These general principles, which are invoked where the person to whom a note is delivered has abused his authority, while more frequently applied where the plaintiff is a bona fide holder by transfer or indorsement (Hancock v. Empire Cotton Oil Co., 17 Ga. App. 182; 3 R. C. L. 893, 86 S. E. 434), have been given application where “the plaintiff bank was merely the payee of the note which the plaintiff in error signed in blank as an accommodation indorser or surety for the maker;” and it is held that “the bank is in the position of an innocent transferee or holder as to the implied power given by the surety to the principal to fill in the blanks, . . it not appearing that the bank had knowledge that the private agreement between -the surety and ihe principal was violated, and the filling in of the blanks being apparently with such implied authority.” Thompson v. Bank of Chatsworth, 30 Ga. App. 443, 445 (5) (118 S. E. 470).

(a) “Quite a distinction exists between the initial forgery or the material alteration of a completed instrument, and the filling in of blanks in an incomplete instrument by a person to whom it is intrusted by the signer.” Proof of the insertion of a larger amount in the blanks of a note than that authorized by the maker “would not support a plea of non est factum” (Hancock v. Empire Cotton Oil Co., supra; 3 R. C. L. 1003, 1004); but in the instant case, even if the defendant’s plea of non est factum, and plea of suretyship and release from liability by reason of the plaintiff’s alleged alteration of the note sued on, could be construed to cover the defense actually shown by the defendant’s testimony, viz., that the amount in the note was blank at the time she signed it, and that so far as she, the surety, was concerned she did not know that the principal would authorize it to be filled out and used for more than $400, it does not appear from the record that the plaintiff bank had any knowledge of the conversation and understanding between the principal and the alleged surety, or had any reason to believe that it was not authorized to fill in the amount left b.lank to the figure agreed upon with the principal.

3. “One who signs or indorses a note as surety can not in defense to an action thereon, either by the innocent payee or any other bona fide holder for value, set up that the principal maker, to whom he intrusted the note, delivered it in violation of a condition that a certain other person or persons should first sign or indorse it.” Crawford v. Citizens & Southern Bank, 20 Ga. App. 576 (3) (93 S. E. 173). “Knowledge of the facts in the holder at the time of taking must be shown.” Thompson v. Bank of Chatsworth, supra. In the instant case the proof showed that neither the principal to whom the note was intrusted nor the innocent payee had made or violated any such understanding with the alleged surety that another person, whose name appeared on a previous note, for which the note sued upon was given in renewal, should also sign such renewal paper.

4. There was no proof whatever as to any alterations in the note sued on, by changing amounts or dates, or by releasing another person after he had signed the note, as set forth in the plea.

5. The court did not err in charging the issues as actually made under the defendant’s proof, rather than strictly in accordance with her unsustained plea of non est factum and release as a surety by the alleged alteration of the note and release of another alleged signer, even though the court was not required so to charge. Moreover, the court charged that the defendant “contends that the note was brought to her in blank, and that . . it was her understanding that it was for the purpose of renewing a $400 paper, and that she signed those papers in blank,” and instructed the jury, “if you believe that to be the truth of the case, the defendant would be entitled to have and receive at your hands a verdict.” Such instruction,'without any qualifications, was much more liberal to the defendant than was required by the law and the evidence.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15632.
    Empire Glass & Decoration Co. v. Bussey.
    Decided February 12, 1925.
   Stephens, J.

1. It is not necessary that an employee work exclusively for liis employer, in order to be “regularly in service,” as provided in section 15 of the Georgia workmen’s compensation act (Ga. L. 1920, p. 167).

2. Since the workmen’s compensation act expressly provides that an employee whose contract of employment is made within this State with an employer whose place of business is within this State, if the contract does not expressly provide that the entire service contracted for shall be performed outside of this State, may in a proper case recover compensation for -an injury sustained by him when injured in performing his contract of service while in another State (Ga. L. 1920, p. 167, § 37), an objection to an award for such an injury, upon the ground that the employment, being without the State, does not come within the act, is without merit; and since the constitutionality of this provision of the compensation act is not questioned, an objection to the award upon the ground that the award was for an interstate employment is also without merit.

3. The mere refusal of an employee to continue in the employment of the employer after having received an injury does not, under section 33 of the act, bar him from compensation. By the provisions oi that section the commission can in its discretion grant compensation to an injured employee, who “refuses employment procured for him suitable to his -capacity.”

4. The evidence adduced before the industrial commission, when taken in connection with .the above rulings, authorized the award made, and the superior court did not err in affirming the award.

Judgment affirmed.

Jenhins, P. J., and Bell, J., eonewr.

Appeal; from Fulton superior court—Judge Bell. April 14, 1934.

Tillou Ton Nunes, for plaintiff in error.

Branch & Howard, Bond Almand, contra.


text:
    15634.
    GEORGIA WOOL STOCK COMPANY v. TRANSATLANTIC CLOCK & WATCH COMPANY.
    Tlie general rule, that “where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon ¡mother and different consideration,” did not apply in this ease so as to prevent the purchaser from setting up defects and deficiencies complained of after a different reason for refusing to accept the goods had been assigned.
    The defendant, having accepted and paid for the first shipment of goods under the contract, could not rescind and refuse to accept the second shipment on the ground that a part of the goods first shipped were defective.
    There being no express warranty, and no legal or tangible proof as to defects in the articles included in the second shipment, the trial judge, did not err in directing a verdict for- the contract price of the articles included in that shipment.
    Decided February 12, 1925.
    Certiorari; from Fulton superior court—Judge Bell. April 15, 1934.

      Bllioti Cheatham, for plaintiff in error.
    IF. S. Dillon, IF. J. Davis Jr., contra.
   Jenkins, P. J.

A vendor sued a vendee, in the municipal court of Atlanta, for the balance of the purchase price of one hundred pistols and of other articles bought under a single order. Twenty-seven of the pistols ivere first shipped, and the remaining seventy-three subsequently. The undisputed evidence showed that the defendant vendee used and paid for the first tAventy-seAren pistols, although one of its witnesses testified that three of these, when tested, proved defective, and that “the springs in the firing pin AArere not strong enough to fire the cap.” The defendant returned the second shipment of pistols with other merchandise, first assigning, in its letter to the plaintiff vendor, as a reason therefor, that it could not “use same, as Ave have changed our plans for our winter catalogue,” but in a letter to the plaintiff twelve days later, in reply to the plaintiff’s letter insisting upon payment, assigning as a reason that “we tried for a whole week to get one of these guns to shoot and were unable to do so; we mailed out some to our customers and every one of them were returned.” It does not appear just when the returned shipment reached the plaintiff. The evidence failed to show that any test or mechanical examination whatever was made of the guns received in the second shipment, and it is admitted by counsel in the briefs that “other items are not here contested.” The only possible contention made in the trial with reference to defectiveness in the second lot of firearms, other than the self-serving declaration contained in the second letter, not to be accounted as of evidential value, appears to be that they were of the same make, part of the same order, and in superficial appearance were like the first shipment, three of which twenty-seven had proved defective on test. In the defendant’s testimony there was some reference to an “unusually large number of guns being returned” by customers, brrt it does not appear to which shipment, if either, this referred; and the only definite statement as to such returns appears to be, “I should say 5 or 6 were returned out of the 27;” thus apparently referring to the first shipment. The defendant excepts to the overruling by the superior court of its certiorari from the verdict directed for the plaintiff and the judgment thereon.

1. The general rule, as stated in Fenn v. Ware, 100 Ga. 563, 566 (28 S. E. 238), that “where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration” (see also Tuggle v. Green, 150 Ga. 361 (2), 370, 104 S. E. 85; Frank & Meyer Neckwear Co. v. White, 29 Ga. App. 695 (3), 116 S. E. 855; Cowdery v. Greenlee, 126 Ga. 786, 789, 55 S. E. 918, 8 L. R. A. (N. S.) 137), does not have application in the instant case so as to prevent the defendant from setting up the defects and deficiencies complained of, by reason of the fact that it had written a previous letter assigning a different reason for refusing to accept the goods, since in the instant case the defense now relied upon was in fact urged before any controversy or litigation arose, and the record does not disclose any fact from which an inference could be drawn that the defendant’s previous letter “has caused [the plaintiff] to act respecting the matter to the injury and detriment of the latter, and where the latter would be placed at an inequitable disadvantage should the former be allowed to rely upon a ground other than that urged as a reason for [its] conduct and decision in the matter.” Union Brokerage Co. v. Beall, 30 Ga. App. 748 (1) (119 S. E. 533); Riverside Academy v. Urigh, ante, 455.

2. Under the contract for the sale of one hundred pistols, where twenty-seven were delivered, paid for, and used by the vendee, and the remaining seventy-three were subsequently delivered, the vendee could not rescind the contract upon the ground of the defectiveness of some of the firearms contained in the first shipment. Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559 (2) (89 S. E. 486); Carolina Portland Cement Co. v. Turpin, 126 Ga. 677, 678 (55 S. E. 925). “If a vendee has accepted a portion of goods contracted for, and they prove inferior to those stipulated for, he can not for this reason refuse to accept the residue; but if the residue prove inferior, he may refuse to accept them.” Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279 (3, 4), 282 (55 S. E. 50); Small v. Robertson, 28 Ga. App. 161 (1, 2), 162 (110 S. E. 504).

3. In the instant case there was no express warranty, but the defect complained of relates solely to the unsuitability for the purpose intended of some of the articles included' in a single order or contract of purchase. Whether or not the contract be construed as entire or separable, there being no sort of legal or tangible proof as to any defects in the articles included in the second shipment, a verdict for the plaintiff for the contract price of the articles included in the second shipment was properly directed, and the superior court did not err in overruling the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15648.
    HENRY COTTON MILLS v. SHOENIG & COMPANY.
    1-3. Under tlie pleadings in this ease the amount recoverable lor the cotton stored with the defendant and alleged to have been converted by it to its own use, and for the purchase of' which it held an option from the plaintiff, was not the price fixed in the option contract, the option having by its terms expired and, so far as appears, not having been extended, before the cotton was used by the defendant, but the action should be construed as claiming damages for a tortious conversion; and, since there was no proof of the value of the cotton at the time of the alleged conversion or between that time and the date of the trial, the verdict directed for the plaintiff, based solely upon the price fixed in the expired option, was contrary to law, as being without evidence to' support it.
    4. It was error to exclude the testimony offered by the defendant as to the actual market value of the cotton on the date on which it was used or sold by the defendant.
    5. It was not error to exclude testimony offered by the defendant as to the reasonable value of storage of the cotton in its warehouse between the time of the expiration of the option and the time of the alleged conversion ; the defendant not being entitled to set up a claim for such charges •—a claim ex contractu—as against a claim in tort for the conversion.
    Decided February 12, 1925.
    Complaint; from Pulaski superior court—Judge Graham. April 19, 1924.
    Henry Cotton Mills entered into the following contract with Shoenig & Company:
    “December 27th, 1921.
    “I have in storage for N. J. Shoenig & Company, Sylvester, Ga., 10 bales of cotton pickings in our warehouse. I accept 10 bales at 10c. per lb., and I advance $750.00 and charges on the 20 bales, should they order out the stuff immediately, I am to draw on N. J. Shoenig & Company the difference between $750.00 and the cost of the 10 bales that I have accepted. Should I want to keep the balance, I am to pay for it at 10c. per lb. No charge after taking out of depot. Cotton is now insured. This agreement is good for sixty days. Yours truly,
    “Henry Cotton Mills,
    “D. E. Duggan.”
    Shoenig & Company, owners of the cotton, sued Henry Cotton Mills, setting out the contract by way of inducement, and alleged that the defendant had in storage for the plaintiffs the 10 bales of cotton accepted in the contract at the price fixed of ten cents per pound (as to which bales there seems to be no question), and also the ten additional bales as to which the option was provided in the contract. It was alleged that the defendant “used and converted fo its own use” these bales, “the total value of which is” a stated sum, and that the defendant is due the plaintiffs, “under said contract,” the difference between said “value” and the $750 advanced to the plaintiffs. The court directed a verdict for the plaintiffs, which appears to be based solely upon the difference between the amount advanced and the price of the cotton as fixed by the option contract, allowing also a deduction for loss in weight. The defendant’s motion for new trial is based on the general grounds, and upon exceptions to the rejection Of testimony (as irrelevant) that the actual market value of the cotton on the date of its use by the defendant was 4-1/2 cents per pound, and also to the exclusion of testimony seeking .to show that “a fair, reasonable charge for storage for the 10 bales of cotton between” the time of expiration of the contract and the date on which the cotton was used was $43, which it is contended was a proper allowance by way of counterclaim. There appears to have been no communication between the parties after the making of the contract, and nothing to show an express or implied extension of the time fixed thereb3r. The plaintiffs did not “order out” the cotton. The defendant never notified them that if would use the cotton, but, it seems, merely kept the cotton until June 1, 1922, and then used it. There was no proof as to the market value at that time, the testimony offered by the defendant, that it was only 4-1/2 cents a pound, being excluded.

      H. F. Lawson, for plaintiff in error.

      L. G. Ryan, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

“Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Civil Code (1910), § 4268 (8). It “is of the essence of a contract when the parties have expressly so treated it, or when it is necessarily so from the nature and circumstances of the contract.” Sneed v. Wiggins, 3 Ga. 94, 99, 100. “As a general rule a time fixed by a contract within which an option may be exercised is to be regarded as of the essence.” “Where the subject-matter of the contract is of speculative or fluctuating value, it is generally held that the parties have intended that time shall be of the essence.” 13 C. J. 688. See also Emery v. Atlanta, 88 Ga. 321 (1), 329 (14 S. E. 556); Watkins v. Hendrix, 137 Ga. 330 (1), 331 (73 S. E. 581). Where an option or contract for the sale of a commodity having a fluctuating value clearly fixes by unambiguous language a time for performance, and where there is no evidence tending to show that the parties did not intend that time should be of the essence of the contract (see Ala. Construction Co. v. Continental Car Co., 131 Ga. 365, 368, 62 S. E. 160), but the contract and the surrounding circumstances manifestly show that the parties intended that time should be of such essence, the court may so rule as a matter of law. See Augusta Factory v. Mente, 132 Ga. 503 (2), 509, 510, 511 (64 S. E. 553); 13 C. J. 183 et seq. In the instant case the option or contract for the sale of cotton,—a commodity having a fluctuating value,—in which it was provided that “this agreement is good for 60 days,” time was of the essence of the contract, and the rights of the parties to act thereunder, in the absence of a novation or of an express or implied extension of such time, terminated at the end of the period stated. Thus, if the instant suit by the owners for the- recovery of the value of cotton stored with the defendant were construed as one upon the contract between the parties, a verdict for the defendant would have been demanded.

2. “When a transaction partakes of the nature both of a tort and a contract, the party complaining may waive the one and rely upon the other.” Civil Code (1910), § 4401; Stokes v. Wright, 20 Ga. App. 325 (93 S. E. 21). Where a petition is ambiguous in failing to malee clear whether the cause of action and remedy relied upon is one sounding in contract or in tort, the courts have applied various rules of construction, according to the jurisdiction sought to be invoked and the facts involved, the general rule being that, “where a petition can be construed either as a suit in contract or as an action for a breach of duty arising out of the contract, the latter construction will be adopted,” and the petition “will be construed as claiming damages for the tort.” Central of Ga. Ry. Co. v. Chicago Portrait Co., 121 Ga. 11 (1), 12, 13 (48 S. E. 727); So. Bell Tel. Co. v. Earle, 118 Ga. 506 (5), 511 (45 S. E. 272). See also Owens v. Nichols, 139 Ga. 475, 476 (77 S. E. 635); Buchanan v. McClain, 110 Ga. 477 (35 S. E. 665); Reynolds v. Padgett, 94 Ga. 341 (21 S. E. 570); City & Suburban Ry. Co. v. Brauss, 70 Ga. 368; Lamb v. McHan, 17 Ga. App. 5, 6 (86 S. E. 252); Fine v. So. Express Co., 10 Ga. App. 161 (13 S. E. 35); Howard v. Cen. R. Co., 9 Ga. App. 617 (71 S. E. 1017); Payton v. Gulf Line R. Co., 4 Ga. App. 762 (62 S. E. 469). In the absence of a special demurrer, however, where the facts alleged are appropriate to support either of two forms of action, the courts will “presume that [the pleader’s] purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action.” Stoddard v. Campbell, 27 Ga. App. 363 (3) (108 S. E. 311), and citations.

3. There being no evidence as to an express or implied extension of the time fixed by the contract for the purchase of the cotton, the plaintiffs not being entitled to maintain their action as upon the contract for the price fixed thereby, and their petition not seeking to recover as upon a quantum valebat or implied promise to pay, the action could be sustained only as one in tort, based upon the alleged conversion of the cotton by the defendant. The proper measure of damages, therefore, was not the price of the cotton provided in the expired option. Waring v. Gaskill, 95 Ga. 731 (2) (22 S. E. 659); Campbell v. Redwine, 22 Ga. App. 455 (3) (96 S. E. 347). The proof in the instant case wholly failing to show what the value of the cotton was at the time of the alleged conversion, or between that time and the date of trial, the verdict directed for the plaintiff, based solely upon the price stated in the expired option, was contrary to law, as being without evidence to support it. Whether on a retrial the plaintiff would be entitled to claim, under the pleadings as they may be amended and facts which may then develop, the highest proved value between the date of the alleged conversion and the trial is a question that the record does not now present for determination. But see, in this connection, Bennett v. Tucker, 32 Ga. App. 288 (123 S. E. 165), and citations. See also Waring v. Gaskill, supra; Campbell v. Redwine, supra.

4. Under the preceding rulings it was error to exclude evidence offered for the defendant as to the actual market value of the cotton on the date when it was sold or used by the defendant, which amount was less than that sought to be recovered by the plaintiffs.

5. The defendant not being entitled to claim storage charges—a claim ex contractu—for keeping the plaintiffs’ cotton in its warehouse during the time from the expiration of the contract to the alleged conversion, as against the plaintiffs’ claim in tort for such conversion, the coiirt did not err in excluding, as irrelevant, proof as to the reasonable value of such storage. See Harden v. Lang, 110 Ga. 392 (2), 400; Johnson v. Reeves, 112 Ga. 690, 691; Ingram v. Jordan, 55 Ga. 356 (2).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15658.
    ORR et al., trustees, v. RILEY, by next friend.
    1. Under the terms of the new “Code of School Laws” of this State, as embodied in the act approved August 19, 1919 (Ga. L. 1919, pp. 288-363; Park’s Code Supp. 1922, vol. 8, §§ 1432 (a)-1445 (g) inclusive), it is not required that contracts of teachers for service in local district schools, under the jurisdiction of county boards of education, shall be in writing,. as required under previous statutory provisions.
    2. The new “Code of School Laws” does not vest county boards of education with the exclusive power to select and contract with teachers for local school districts, by virtue of their express “power, if they deem best, to employ teachers for a salary,” although such boards have coextensive and, if actually exercised, superior and general supervisory powers in such selections. Where a teacher has been employed by local school district trustees by and with the consent, approval, and ratification of the county school superintendent, such a contract is not invalid merely because the county board has remained inactive and failed to assert either its potential original appointive or its supervisory powers in such selection as made by the local district trustees and the county superintendent, thus acting with its implied consent. Since it appears from the amended petition and the evidence in the instant case that the contract as made with the teacher by the local district trustees was authorized, recognized, or ratified by the county school superintendent, it is unnecessary to determine whether, under the new law, local school district trustees have the power to contract with teachers of local district schools without the consent, approval, or ratification of the county school superintendent.
    '3. Where local school district trustees, or a controlling majority thereof, acting officially and not as individuals, have actually discharged a teacher before the completion of her contract to teach for a full school term, and discontinued her services, directing her to “turn over the schoolhouse keys to the chairman of the board,” and where the teacher thereupon discontinues teaching, over protest, and files a petition in the nature of an appeal before the county board of education, but pending the appeal the defendant school-district trustees sign an agreement with counsel for the teacher, agreeing that such appeal petition should be “withdrawn from the consideration of the said county board of education, and that said plaintiff may, without prejudice, prosecute said matter before the proper court of law, such action, conduct, and agreement by the local district trustees will estop them from insisting that they had not breáched the contract, merely because her discharge had not been made final by the action of the county board, to whom she may have had a “right” of appeal.
    4. Under the foregoing rulings, the trial court properly overruled the demurrers of the defendant local school district trustees to the amended petition of the plaintiff teacher for the recovery of salary; the verdict for the plaintiff was fully authorized, and the court did not err in overruling the motion for a new trial.
    Decided February 12, 1925.

      Complaint; from city court of Elberton—* Judge Grogan. May -10, 1924.
    (Eeversecl on certiorari. 160 Ga.)

      TuU & Brown, for plaintiffs in error.

      J. T. Sisk, Howard B. Payne, contra.
   Jenkins, P. J.

The “Code of School Laws”' of this State, as embodied in the act approved August 19, 1-919 (Ga. L. 1919, pp. 288-363; Park’s Code Supp. 1922, vol. 8, §§ 1432 (a)-1445 (g) inclusive), expressly provides that “the provisions of this act are substituted for the existing school laws of this State, and that all the existing school laws of this State and all laws or parts of laws in conflict herewith are hereby repealed.” School Code, § 184 (Park’s Code Supp. 1922, § 1445 (g). While in the act of 1872 (Ga. L. 1872, p. 64), embodied in the Codes of 1873 and 1882, and in section 1360 of the Code of 1895 (vol. 1), it was provided that “the county boards [of education] are also empowered to employ teachers to serve in the schools under their jurisdiction, and the contracts for said service shall be in writing, signed in duplicate by the teacher on his own behalf, and by the county school commissioners on behalf of the board,” the present Code of School Laws has substituted the office of county superintendent of education for that of county school commissioner, and has neither expressly nor by Implication embodied the quoted provision of the former law, which required contracts with teachers to be in writing and executed in the manner therein designated. See Code of School Laws, §§ 146-160 (Park’s Code Supp. §§ 1440 (a)-1440 (o)).

The new Code of School Laws imposes upon county superintendents the primary duty of examining “applicants for license to teach in their respective counties,” acting with certain prescribed limitations under the State school superintendent, and of revoking “licenses granted by him or his predecessors for incompetency” or other causes, and it is provided that “the revocation of the license of any teacher shall terminate the connection of said teacher with any school in which he may have been employed to teach; but any teacher so dismissed shall have the right of appeal to the county board of education, whose decision shall be final.” Code of School Laws, §§ 160, 164 (Park’s Code Supp. 1922, §§ 1440 (o), 1440 (s)). It is provided also that the county school superintendent “shall hereafter suspend any teacher under his supervision, for non-performance of.duty, incompetency,” and other causes, “from which decision the teacher may appeal to the county board of education, and either being dissatisfied with their decision, they can appeal to the State superintendent or from there to the State board of education, the decision of which shall be final.” School Code, § 155 (Park’s Code Supp. 1922, § 1440 (j)). The new code also, in the same section empowering the county superintendent to examine and license teachers, provides that “the county board of education shall have power, if they deem lest, to employ teachers- at a salary.” School Code, § 160 (Park’s Code Supp. 1922, § 1440 (o)). . The county board of education, under the present law, is also the chief executive and administrative authority not only over general county schools, but also over' local tax district schools; and such board is further constituted by the act “a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law;” with a right of appeal to the State school superintendent from its decision. School Code, §§ 85, 76-142 inclusive (Park’s Code Supp. 1922, §§ 1437 (j), 1437 (a)-1438 (z) inclusive). By the latter section it is provided that, “while it is the purpose and spirit of this article [relating to local tax districts] to encourage individual action and local self-help upon the part of the school districts, it is expressly understood that the general school laws of this State as administered by the county board of education shall be. observed.” It is one of the designated duties and powers of local school district trustees under the new law “to make recommendations to the board of education for the advancement of the school interests,” and “to aid, by recommendation of desirable applicants, the county superintendent and board of education in keeping the school house and grounds equipped for good work.” Whether or not this general and somewhat ambiguous language refers to the selection of local school district teachers, it is manifestly not the purpose of this or other sections of the new law quoted above to vest in the county board of education the exclusive power of selecting and contracting with teachers for local school districts. Even though the board is given coextensive and' also superior and general supervisory powers, if actually exercised, in such selection, having the “power, if they deem best, to employ teachers,” the act does not make the original selection, approval, or ratification by the board a necessary prerequisite to a valid contract for teaching in a local school district; and where a teacher has been employed by local school district trustees, by and with the .consent, approval, and ratification of the county school superintendent, such a contract will not be held invalid merely because the county board has remained inactive, and has failed to assert either original appointive or supervisory powers in the action thus taken by the local district trustees and the county superintendent, acting with their implied consent. So much of the former law (Ga. L. 1889, p. 122), embodied in section 1362 of the Code of 1895’ (but omitted from the Civil Code of 1910), as provided, among the duties prescribed for local school district trustees, that they “shall make such recommendations to the county boards, in relation to the school interests of their subdistriets, as may seem to them best, aird especially in the matter of choosing teachers for their subdistricts,” and that “it shall be the duly of the county boards to choose as teachers the persons so recommended, provided they shall be persons duly qualified and eligible according to the provisions of existing law,” must be held repealed by the present law, which, in enumerating the duties of local trustees, provides a different method of recommendation “of desirable applicants” to the “county superintendent and board of education.” Code of School Laws, § 121 (Park’s Code Supp. 1922, § 1438 (e)). Whether or not, under the provision of the new law “that it is not the intention of this law to repeal or interfere with the laws which have been enacted establishing local district schools,” except as to the licensing of persons teaching therein (Code of School Laws, § 161; Park’s Code Supp. 1922, § 1440 (p)), and under other provisions of the new law, local school district trustees have power to legally contract with a person, properly licensed, for the teaching of a local district school, without the consent, approval, and ratification of the county school superintendent, it is unnecessary in the instant case to determine. Here it appears, from both the amended petition and the evidence, that the county school superintendent fully authorized, recognized, or ratified the contract for the school term, made by the local trustees with the plaintiff teacher; and this ground of the general demurrer and of the motion for new trial is without merit. See also Taylor v. Matthews, 10 Ga. App. 852 (1, 4), 856, 857 (75 S. E. 166); Board of Education of Doerun v. Bacon, 22 Ga. App. 72 (95 S. E. 753), discussing generally contracts with teachers.

.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jemkhsts, P. J.

text:
    15710.
    American Mutual Liability Insurance Company v. Hampton.
   Jemkhsts, P. J.

1. Section 31 of the Georgia workmen’s compensation act (Ga. L. 1920, p. 183) provides that, except for the specific injuries scheduled in section 32, “when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee .during such incapacity, a weekly compensation equal to one half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than twelve dollars a week.” With the exceptions above indicated, the act fails to provide for compensation in cases of partial incapacity, except where the average weekly wages after the injury are less than those prior thereto. There is no recognition of the elements of pain and suffering, or of increased discomfort and difficulty in performing the labors for which wages are paid after the injury; and as long as the average of these remain the same or more than those previously received, the law allows no compensation through the machinery of the industrial commission. See 28 R. C. L. 819, 822; Woodcock v. Dodge Bros., 181 N. W. 976; Niemenin v. Isle Royal Copper Co. (Mich.), 183 N. W. 9; Voight v. Industrial Commission (Ill.), 130 N. E. 470; McNamara v. McHarg, 192 N. Y. Supp. 743.

2. Notwithstanding the evidence of the physician making the x-ray examination of the employee’s left scapula and side, that such examination showed a “united fracture of the eighth rib, left side, in the region of the lower angle of the scapula,” beginning “about 2-1/2 to 3 inches from vertebral column, beginning upon the upper border of, extending down and outward,” and that this witness “would judge patient is about 25 per cent, permanently disabled;” and notwithstanding the evidence of the employee that his work, which was the same as that performed before the injury, was done with increased pain and dilliculty, it appearing, under the undisputed testimony and by the terms of the award, that the employee’s average weekly wages were the same or more than those received before the injury, the evidence does not support the award made by the commission, and the superior court erred, on the appeal of the insurance carrier, in affirming the award. Section 45 of the act, however, provides that, "upon the application of any party in interest on the ground of a change in covdiiion, the industrial commission may at any time review any award, . . and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded or agreed upon.” Ga. L. 1920, p. 191. If, therefore, future developing facts and circumstances should show “a change in condition” with reference to the employee by reason of his previous injury, such as would actually diminish the average weekly wages received by him, so that an award should be made, the law provides for such a contingency; and this ruling would not operate as res judicata barring a proper award.

Decided February 12, 1926.

Appeal; from Meriwether superior court—Judge Roop. May 19, 1924.

Frank Carter, for plaintiff in error.

J. J. Bou>den Sr., contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15722.
    SOUTHERN EXCHANGE BANK v. LANGSTON.
    Where capital stock pledged as collateral for the payment of a promissory note was sold by the pledgee after default as to payment, and the amount realized from the sale was not sufficient to pay the note, and in an action hi a city court the pledgee sought to recover the balance, damages because of a violation of the .contract of pledge in the sale of the pledged property could be set up by plea of recoupment.
    The charge of the court as to the law applicable, to the case was subject to exceptions taken in the plaintiff’s motion for a new trial.
    Decided February 12, 1925.
    Complaint; from city court of Dublin—Judge Sturgis. May 29, 1924.

      M. H. Black shear, C.. 0. Crockett, for plaintiff.

      J. S. Adams, E. Earl Camp, for defendant.
   Jenkins, P. J.

1. “Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not -complied with the cross-obligations or independent covenants arising-under the same contract.” It-“may be pleaded in all actions ex contractu, where from any reason the plaintiff .under the same contract is in good conscience liable to defendant;” and where recoupment may be pleaded, “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.” Civil Code (1910), §§ 4350, 4353. A city court has jurisdiction to entertain a proper plea of recoupment and to give judgment for the excess. Even though the counterclaim involve a tort and alleged conversion, “the tort could be waived and the claim set up as a defense, as upon an implied eon-tract” in the same transaction. Park v. Carmichael, 20 Ga. App. 36 (1 a, 4, 5) (92 S. E. 397); Norton v. Graham, 130 Ga. 391, 393 (60 S. E. 1049). There was no merit in the contention that the defendant could not recoup damages (such as would be proper) arising from the alleged violation of the express or implied terms of the pledge in question.

(a) Where there has been an actual conversion of the pledged property, the defendant pledgor, in a suit against him by the pledgee for the balance of the debt, is entitled to recoup the difference between the amount for which the pledgee sold the property in violation of the express or implied contract of pledge ánd the actual value of the property on the date of sale. Bennett v. Tucker, 32 Ga. App. 288 (123 S. E. 165, 167), and eases cited; Campbell v. Redwine, 22 Ga. App. 455 (3) (96 S. E. 347), and cases cited.

2. The statutory obligations as to public sale and notice to the pledgor may be waived by special contract (Civil Code of 1910, § 3530); and “where the pledgee is authorized, on or after the nonpayment of the note at maturity, to sell” corporate stock held as collateral “at public or private sale, without advertisement or giving any notice to the maker and pledgor, the sale is not invalid when made without demand and without notice of the time or place of sale.” The request of the pledgor to postpone the sale until further notice, with a promise “to pay whenever the pledgee wished,” is irrelevant. Thornton v. Martin, 116 Ga. 115 (3, 4) (42 S. E. 348).

3. The pledgee, in making such a private sale of the property pledged to him as collateral security, must act in good faith, and with a reasonable degree of skill and diligence in securing a fair price and conserving the pledgor’s interests, so far as consistent with his own" protection. If the pledgee sells corporate stock fairly and rightfully in all respepts, he is not responsible for its bringing less than its estimated value, and he must account only for the amotint actually received, where he has exercised the ordinary and reasonable care and diligence required by law as a part of his contractual obligations to the pledgor. Civil Code (1910), § 3535; 21 R. C. L. 692; 21 Cyc. 877, 878, 880.

4. Where property is easily and readily salable on the open market at a definite, well-known, or ascertainable market value, the mere failure of the pledgee in a private sale to sell at such value might of itself amount not-only to a failure of the ordinary and reasonable skill and diligence which is required of him by law, but also, where the facts are plain, amount to such a lack of good faith as would constitute fraud and a conversion of the property. But where the pledged property consists merely of stock in a private corporation, not readily salable on the open market, and without a real and definite market value fixed by public demand and actual sales, but having only a theoretical market value, based on estimates of the book value • of the stock and on two or three scattered and isolated sales made by stockholders before and after the day of sale by the pledgee, the mere failure of the pledgee to obtain for it such theoretical and opinionative market value will not of itself establish fraud and conversion. Palmour v. Roper, 119 Ga. 10 (5), 19 (45 S. E. 790); 19 R. C. L. 614 (§ 431).

5. In the instant case the ulistricken paragraphs of the defendant’s original plea of recoupment in effect admitted the execution of the note sued on, and merely set up that it was “incumbent upon the plaintiff to act in good faith to the extent of obtaining the market value” of the stock sold as collateral; that the plaintiff is indebted to the defendant “on account of its failure to obtain the market value of the same at the time of the sale as represented in the difference of $60 and $150 per share;” that such difference in the 47 shares amounted to $4250;’and that, “had the plaintiff obtained on the sale of said stock its market value as it was legally and moraHy bound to do, said market value . . would have exceeded plaintiff’s present demand in the sum of $3,459.36;” and the defendant prayed to recoup this difference. By an amendment to the plea it was alleged that “the plaintiff converted said stock by selling the same at less than the market value, having taken over and converted to their own use at a valuation of $60 per share, when in fact said stock at the time of taking over was worth $150 per share.” The plaintiff demurred generally to the plea as setting up “no legal defense,” and also as seeking to set up damages in tort in defense to an action cx contractu, and excepts to the overruling of this demurrer. The court in effect charged the jury that the sole issue was whether the plaintiff was “indebted to the defendant the difference between the fair market value of said stock and what the stock was actually sold for by the plaintiff;” that it was “the duty of the plaintiff to sell the stock fairly and at a fair market price, and if the plaintiff knowingly sold the stock at a price less than the market price, then the defendant would be entitled to recover from the plaintiff the difference between the fair market price and what the stock actually brought;” and in effect directed a verdict for the defendant if the jury should find “that the bank sold this stock for less than the market price,” if “the fair market price was greater than the amount of the debt duo the plaintiff by the defendant.” The jury returned a verdict for the defendant for $1,408.12 principal and $188.87'interest, total $1,596.99. To the above-quoted and similar instructions the plaintiff excepts in its motion for new trial.

(a) The court might have stricken the original plea on the general demurrer thereto, since there was no allegation of fraud and conversion; but there was no error in refusing to strike the plea as amended, setting up an actual conversion by the plaintiff to its own use of the stock in question. On that defense, however, a verdict for the plaintiff was demanded by the evidence. If on a retrial the plea should remain unamended, without alleging any want of ordinary care on the part of the plaintiff in failing to obtain the alleged value of the stock on the date of sale, and evidence as to an actual conversion should again remain lacking, the defendant’s right of recoupment would fail.

(b) But in the event of an, amendment of the plea as just indicated, the prop'er measure of damages, where there has been no conversion, but merely a failure to obtain at a private sale a fair and proper price for corporate stock held as collateral, by reason of a failure to exercise ordinary and reasonable skill and diligence, is not the difference between the price obtained and the theoretical intrinsic or opinionative market value, based only on calculations and opinion as to the book value of the assets and liabilities and on two or three isolated sales before and after the date of the transaction, but is only the difference between the amount obtained and such value as the jury may find could and should have been obtained by the pledgee had it exercised ordinary and reasonable skill and diligence in making the sale. This may or may not be the theoretical market value. The plea as now amended, in so far as it seeks to allege a conversion merely by failing to obtain the alleged market value of the stock, failed to state a legal defense; and the charge of the court upon that line, as indicated above, was erroneous. While there was evidence on both sides -as to what the stock should have brought, 'and as to the care and diligence exercised in making the private sale, there was no evidence of actual conversion of the stock to the pledgee’s own use.

6. The charge with reference to a recovery of the difference between the amount due the defendant and “the amount of the debt due the plaintiff by the defendant” was likely to have been confusing to the jury, in failing to refer to the plaintiff’s right to recover attorney’s fees on the note sued on, the defendant having in effect admitted general liability for principal and interest and receipt of the notice for attorney’s fees, and relying solely on his claim of recoupment.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15727.
    Brach & Sons v. Oglesby Grocery Company.
   Jenkins, P. J.

1. “A judgment that is void may be attacked in any court, and by anybody. In all other cases judgments can not be impeached collaterally, but must be set aside by the court rendering them.” Civil Code (1910), § 5968.

2. Under the general law applicable to courts other than the municipal court of Atlanta, or one as to which the creating act may contain a provision similar to that quoted below, an attachment in accordance with § 5056 of the Civil Code (1910), issued upon an affidavit administered by a commercial notary public, is absolutely void. Heard v. National Bank of Illinois, 114 Ga. 291, 293 (2), 294 (40 S. E. 266); Bruce v. Conyers, 54 Ga. 678; Falligant v. Blitch, 19 Ga. App. 675 (1); Civil Code (1910), § 622.

(a) Section 28 of the act. creating the municipal court of Atlanta, however, provides, that “affidavits for attachment and garnishment may be made before any officer authorized by law to administer oaths, including commercial notaries public; but all bonds in such proceedings issuing out of said court shall be approved by the clerk of said court, or his deputies, and all attachments and summons of garnishment shall be issued by said clerk or his deputies, and bear test in the name of said court.” This section creates an exception to the general law with reference to the attestation of attachment affidavits before commercial notaries, where the attachment writ issues from the municipal court of Atlanta. That it was the legislative intention to make this exception applicable to attachments issued from the municipal court returnable to the superior court, as well as to those returnable to the municipal court itself, appears jiot only from the general language in the section, “proceedings issuing' out of said court,” but also from the language of the preceding section 27, “attachments in said court, or returnable to said court.”

Decided February 12, 1925.

Complaint; from Fulton superior court—Judge Bell. March 24, 1924.

This suit was upon an open account. The defendant, while admitting previous indebtedness, denied any present liability, and contended that the full amount of the debt was paid by it on a judgment rendered against it in the same court. The case was tried by the judge without a jury, and judgment was rendered in favor of the defendant, upon an agreed statement of facts, from which it appears, that the defendant had in fact paid the judgment mentioned, which was obtained in attachment and garnishment proceedings instituted by a third person against the present plaintiffs as defendants and against the present defendant as garnishee; that only a special judgment against the fund was rendered on the attachment; and that the attachment affidavit was subscribed before a commercial notary public, but the bond was attested by, and the writ, bearing test in the name of the municipal court of Atlanta, was issued by, a deputy clerk of the municipal court, and made returnable to the superior court. The contention of the plaintiffs in the present case is that the payment of the previous judgment did not relieve the present defendant, for the reason that the attachment and the judgment rendered thereon were void, because the affidavit was subscribed before a commercial notary public.

Constitutional questions, with regard to the validity of that part of the act creating the municipal court of Atlanta which empowers commercial notaries to attest attachment affidavits, were suggested and argued in the briefs of counsel in the Court of Appeals, but the record does not show that they were raised in the court below.

.3. Since the previous judgment was not void, the payment thereof was a good defense to the, present action, and the trial judge did not err in so ruling.

4. Constitutional questions not raised by the pleadings nor passed upon in the trial court can not be raised for the first time in the appellate court. Cooper v. Nat. Fertilizer Co., 132 Ga. 529 (64 S. E. 650). They must have been properly raised, and their mere suggestion and argument in the briefs is insufficient. Laffitte v. Burke, 113 Ga. 1000, 1001 (39 S. E. 433); Spielberger v. Hall, 159 Ga. 511 (126 S. E. 552). But see, in this connection, Barnard v. DuPree, 149 Ga. 796 (102 R. E. 422).

Judgment affirmed.

Stephens and Bell, JJ., concur.

Anderson, Rountree & Crenshaw, for plaintiffs.

Little, Powell, Smith & Goldstein, for defendant.