text:
    958.
    MACON RAILWAY AND LIGHT CO. v. LEWIS.
    1. Where no error of law appears and there is some evidence to support the verdict, this court will not interfere with the discretion of the trial judge in refusing a new trial.
    2. Although there may be a variance between the proof and the allegations of the original petition, it ceases to be a variance when fully met by an amendment.
    3. A verdict will not be set aside as excessive where the amount is warranted by some evidence and is approved by the trial court.
    Action for damages, from city court of Macon — Judge Hodges. December 9; 1907.
    Argued February 24,
    Decided May 7, 1908.

      Roland Ellis, for plaintiff in error.

      Joseph II. Hall, Warren Roberts, contra.
   Hill, C. J.

Mrs. D. N. Lewis brought suit in the city court, of Macon against the Macon Kailway and Light Company, to recover damages resulting from personal injuries. The jury found a verdict in her favor for $5,000, and the railway company filed a motion for a new trial, which was overruled. The motion, besides the general grounds, contains three special assignments of error: (1) that the verdict is excessive; (2) that the-verdict is not justified by the evidence, but was rendered on account of bias and prejudice against the defendant, and (3) that the verdict was founded upon evidence which did not sustain or tend to sustain the cause of action set up in the declaration of plaintiff, to wit, that she was injured by a jerk caused by the forward movement of the car of the defendant.

The original petition alleges negligence by the defendant as follows : that on August 26, 1906, plaintiff was a passenger on one ■of the ears of the company, in the city of Macon; that at the corner of Bellevue street and Carling avenue, the point of her destination, the car was brought to a stop for the purpose of allowing her to leave it; that while attempting to alight, she was thrown from the car; that the distance from the step of the car to the ground, where the car stopped and where she attempted to alight, was about three feet; that although in plain view of the conductor when she made the effort to alight, and he saw it was difficult to get off at the place selected by him for her to get off, he made no effort whatever to assist her or to have the car moved to a place where she could have comfortably and safely gotten off, that by reason of the great distance she had to step, and the rough condition of the ground and place where the car was stopped, she was thrown to the ground, notwithstanding her great care in attempting to leave the car; that her injuries were caused entirely by the negligence of the defendant in selecting such a dangerous place for her to alight, and in not assisting her to alight, and in not moving the car to a place where she could safely alight. The second count of the original petition adds to the specification of negligence contained in the first count, by alleging that while she was in the act of alighting from the car, and in the exercise of all ordinary care and diligence in protecting herself, the car was suddenly moved forward by the company’s agent in charge of it, without any-notice whatever to her, and she was thrown with great force and violence to the ground, a distance of four feet from the step of the car, on which she was standing when the ear was so moved. By an amendment she alleges, “that while attempting to alight from the car at the time •and place where it stopped,' she was thrown from the car by the car being moved without notice to her; and that the company was negligent in selecting such a dangerous place for her to alight and in moving the car without notice to her, and in not assisting her in alighting therefrom, and in not moving the car to a place where she could safely alight.” . In both the original petition and the amendment she fully describes the character and extent of the injuries which she received by the negligent conduct of the defendant, summarized as follows: she suffered a severe fracture of the left hip-joint; the ligaments, nerves, and muscles thereof were wounded and lacerated; the injuries to her hip shortened her leg about two inches, and she received a severe and permanent shock to her entire nervous system; she has been unable to walk since the injury was received, except by means of crutches, and then only with great pain; at the time she received the injuries she suffered the greatest physical and mental pain and anguish, and has suffered ever since, and will continue to suffer as long as she lives, as the injuries are of a permanent character; at the time she received the injuries she was an able-bodied woman, capable of earning $1,000 per year, and her capacity for-earning money has been entirely destroyed by reason of the injuries, and she has had to expend $75 for treatment of them. She was 45 years old at the time of the injury.

The negligence alleged against the defendant was proved alone by the testimony of the plaintiff. She testified, that the car stopped for her to get off, where the ground was very low and very rough, and the running-board at the side of the car, upon which she had to step to get off, was very high from the ground; that when she went to leave the car she stepped on the running-board and was in the act of stepping down, and there was a movement of the car backward, not forward, and she was thrown four or five feet from the car; that it was the car’s motion that threw her, — nothing else; that she felt the motion of the car, and at the time she felt it she was in the act of stepping off; that she felt the motion of the running-board; that she was violently thrown to the ground by the -motion of the car, and was taken up and carried into a near-by house by some of the passengers, and put on a bed, where she remained until she was taken home in a hack. The character and extent of the injuries which she thus received are fully and specifically described by her, and her testimony in this respect is corroborated by that of four or five physicians who examined and treated her. It may be stated generally that the evidence on this point substantially supports the allegations of the petition. The conductor and several of the passengers contradicted the testimony of the plaintiff as to the manner in which she was injured. These witnesses testified, that the car was standing still when she stepped off; that they did not detect any movement at all of the car; that there were other passengers getting off the other side of the car at the same time; that there was no- jerk of the car, backward or otherwise, that threw her to the ground; that the only cause they could assign for her fall was that the step was higher from the ground than she had calculated, and that when she turned loose she consequently fell to the ground. All the witnesses testified that s)ie was thrown some distance from the car, from four to ten feet. A contradictory statement of the plaintiff, as to the manner in which she was injured, was also proved by the defendant, this statement being that she did not know whether she was thrown off the car or whether she fell therefrom.

■ It is insisted with a great deal of earnestness by the learned counsel for the plaintiff in error that the verdict against the company is without evidence to support it, counsel basing this contention on the fact that the account which the plaintiff gives of the manner of her injury is contradicted by the testimony of the conductor and the other passengers, and that the verdict of the jury on her testimony alone is contrary to law, in that it is against the great preponderance of the evidence. This court has repeatedly ruled that it has no jurisdiction to set aside the verdict of a jury because contrary to evidence, where there was any evidence to support it, because a verdict is not an error of law when there is any evidence upon which it could be predicated. The evidence of the plaintiff was positive as to the manner in which she was thrown from the car. If her testimony was the truth, the company was negligent in the manner described by her, and the very wide discretion which the law gives to the jury would have fully justified a verdict upon the testimony of the plaintiff alone, no matter how great the preponderance on the other side. Recognizing that the jury and the trial judge who see and hear the witnesses and their manner of testifying are in a much better position to settle questions of fact than an appellate court, the Supreme Court has invariably ruled that it will not set aside a verdict as contrary to evidence, where there is some evidence to support the verdict and it is approved by the trial judge. If we thought it necessary to discuss the evidence, we might call attention to the fact that the jury might have found some corroboration of the plaintiff’s testimony in the circumstance, proved by the witnesses for the defendant, that she was thrown from four to ten feet from the car, the inference being that she would not have been thus thrown except by some propelling force, and that the injuries she received would not have been so severe if she had simply fallen down on the ground from the running-board, unaccelerated by any movement of the car. But these are matters which the law of this State leaves to the exclusive determination of the jury.

We do not think that there is any material variance between the allegations and the proof. It is contended by the plaintiff in error that there is such a variance because it is alleged that the car moved “forward,” and the proof of the plaintiff is that the car moved “backward.” The gist of the negligence charged is the movement of the car when the plaintiff was in the act of stepping from the running-board; and whether it moved forward or backward is immaterial, if in fact it did move at that time, and if the consequence of the movement, whether forward or backward, was to throw the plaintiff to the ground. The law requires agreement of the proof with a material allegation; and where the allegation is substantially proved any variance as to immaterial particulars is not regarded. Southern R. Co. v. Tankersley, 3 Ga. App. 548 (60 S. E. 297); Georgia R. Co. v. Miller, 90 Ga. 571 (16 S. E. 939). The petition put the defendant on notice that the injury was’ caused by the movement of the car while the plaintiff was in the act of alighting; and whether it moved.forward or backward did not in any essential respect vary on this point the case presented by the petition. Besides, the record fails to disclose that any objection was made by the defendant to the admission of this testimony, on the ground that it was different from the allegations of the petition; and it is too late to make such objection after the verdict. Savannah Ry. Co. v. Barber, 71 Ga. 644; Haiman v. Moses, 39 Ga. 708; Central R. Co. v. Hubbard, 86 Ga. 627 (12 S. E. 1020); Ga. R. Co. v. Miller, supra. But any objection to the verdict on this ground is entirely eliminated by the amendment to the petition. This amendment alleged, that while attempting to alight from the car, the plaintiff was thrown therefrom, by the car being moved without notice to her, and that her injuries were caused by the defendant in moving the car without notice to her while she was in the act of getting off. Under this allegation, testimony that the car moved either backward or forward would have been admissible.

The amount of the verdict is probably large to the point, of generosity, yet this court can not say, under the facts, that the amount is so excessive and unreasonable as to evince prejudice, partiality, or misapprehension on the part of the jury. The trial judge did not regard the damages as excessive, and a reviewing court should have clear and convincing reasons for a different conclusion, before setting aside the verdict on the ground that, there is such excess. Judgment affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    965.
    DAVIS v. THE STATE.
    1. The defendant’s consent to be searched for $10 did not include the disclosure of a pistol which he was attempting to keep concealed and which was discovered by force; and consequently, reference to the pistol was inadmissible in evidence against the defendant, who had not been legally arrested.
    2. Evidence of guilt, which a defendant, either directly or indirectly, is compelled to disclose, is not admissible in a criminal prosecution against him. Hughes v. State, 2 Ga. App. 29 (58 S. E. 390).
    3. Inasmuch as the evidence in behalf' of the State, though illegally obtained, was not objected to at the trial, the verdict of gifilty was authorized, and it was not error to refuse a new trial.
    Russell, J., dissenting. The only testimony offered to support the conviction of the defendant being illegally obtained and inadmissible, a new trial should have been granted, even though on the trial before the judge without the intervention of a jury no formal objection to the evidence was interposed. “Testimony which is incompetent and inadmissible because the law stamps it as wholly unworthy of consideration can not, because it may not have been challenged on the trial of a ease, be treated by a reviewing court as having any probative force or value whatever.”
    Accusation of carrying concealed weapon, from city court of Dawson' — Judge Edwards. December 16, 1907.
    Submitted February 25,
    Decided May 7, 1908.
    W. E. Gun-, L. C. Eoyl, for plaintiff in error.

      M. J. Yeomans, solicitor, contra.
   Russell, J.

The prosecutor, Williams, had advanced the defendant $10 on a contract to work for him. He learned that the defendant was at work at another place, and demanded of him the return of the $10. The defendant claimed that he did not have the money, and some words passed between them. One George Spann, who had also gone after the defendant and was trying to take him from Mr. Lowry’s place where he was at work, at the same time claiming that the defendant had signed up a contract with him, told the defendant that he would have to go with him and work out his contract with him, and the defendant had started to go with him, at the time Williams came up. The defendant (being, so far as appears from the evidence, alone with these two conflicting parties, each of whom claimed that he was under contract with him, and Williams insisting upon' the return of his money because Spann was about to carry him away) consented to be searched for the money, claiming that he did not have it. Under these circumstances, he did not resist the search of any of his pockets, but attempted to conceal something between his pants and a pair of overalls which he was wearing. He would not take his hand out from under his overalls, and Williams ran his hand in there after it, but the defendant held his hand in there and would not pull it out. So Williams caught hold of his hand and jerked it out, when the witnesses saw that what the defendant had concealed (and which up to that time had not been disclosed) was a pistol. This was all the evidence upon the trial, and the defendant, unlike the defendant in Dozier v. State, 107 Ga. 708 (33 S. E. 418), made no statement.

If it plainly appeared that the defendant unreservedly consented to a search of his person, and the presence of the concealed pistol had been disclosed by him voluntarily, the judgment of the court finding him guilty would, of course, be the only judgment that could legally have been rendered. But it is perfectly plain, from the evidence in the record, that he was, to a certain extent, coerced by his surroundings into his agreement to be searched for the money. His consent, however, extended no further than this. This consent to be searched he had a right to withdraw; and it is undisputed, in the State’s own testimony, that so far as concerned the contents of his hand (which he had between his pants and his overalls, and which it was afterwards found contained the pistol), he did withdraw that consent. According to the testimony, he used every means in his power to keep concealed the hand containing the pistol, and it was only by the use of force and the jerking of his hand out that the evidence of his guilt of carrying a pistol concealed was made manifest. It can not be said that the presence of the pistol was voluntarily disclosed. The case, therefore, clearly comes under the rule which has heretofore several times been announced by this court and which is stated in the second headnote. The defendant could not be compelled to convict himself. We are all agreed, therefore, that the only evidence upon which the conviction of the defendant rests was illegal and inadmissible, and that if a timely objection to it had been offered, or if a motion had been made to rule it out, the evidence of the defendant’s possession of a concealed pistol on the occasion mentioned in the testimony should have been excluded. This is settled by the rulings of this court in Hammock v. State, 1 Ga. App. 126 (58 S. E. 66), Hughes v. State, 2 Ga. App. 29 (58 S. E. 390), and in other cases.

The question then turns upon the effect to be given to, the fact that no objection to this alleged evidence was offered at the trial. The majority of the court is of the opinion that the defendant’s failure to object amounted to a waiver of its inadmissibility, and that, being thus admitted by the consent of the defendant himself, it is competent to authorize the conviction. For this reason (as there can be no doubt of the sufficiency of the evidence adduced on the part of the State if its probative value is conceded) the judgment of the judge of the city court must be affirmed. For myself, I am unable to concur in the judgment of affirmance. As there is not a particle of legal evidence to support the conviction, it is, in my opinion, unwarranted, and should be set aside, regardless of the fact that the defendant’s counsel did not formally object or move to rule it out.

It may be that the fact that the trial was had before the judge without a jury was the reason why no objection was offered to the testimony. The defendant’s counsel may have presumed that as it is the judge who must weigh the objection and give direction to the jury with reference thereto, he would, when trying the ease without a jury, sift for himself the legal testimony from the illegal. Be this as it may, it is as much the duty of counsel to object, when a case is being tried before the judge as court and jury, as it would be if a jury were trying the case. But in the opinion of the writer it was unnecessary for the defendant to object to the testimony, because, being absolutely illegal, it possessed no probative value, and, in the absence of any legal testimony, could not support a conviction. The fact that no objection to the testimony was made at the trial is immaterial here,, because the State introduced no other evidence than this, which possessed no probative value. I think our decision should be controlled by the ruling in Eastlick v. So. Ry. Co., 116 Ga. 50 (42 S. E. 499). The only testimony offered to support the conviction of the defendant being illegally obtained and inadmissible, a new trial should have been granted, even though on the trial before the judge without the intervention of a jury no formal objection to the evidence was interposed. “Testimony which is incompetent and inadmissible because the law stamps it as wholly unworthy of consideration can not, because it may not ha,ve been challenged on the trial of a case, be treated by a reviewing court as having any probative force or' value whatever.” In that case the ruling was based on the fact that hearsay evidence, even though not objected to, will not support a verdict; and this because hearsay evidence has no probative value. Certainly incriminating testimony forced from a defendant against his will (which this court has declared to be so absolutely obnoxious as that it should be excluded if objection thereto is made, because such testimony is outlawed by the constitution and the enlightened policy of this State) should be insufficient to support a verdict, for a similar reason to that which excludes hearsay. Hearsay has no probative value (though it may be true), because the facts related depend upon the unsworn statement of one not before the court. Evidence extorted by force is the recital of acts or sayings not of the defendant himself, but of one who by force acts for him by compelling him to act or sqieak, not as he wishes, but as he who .compels him by force determined he shall act or speak. This is plainty shown by the evidence for the State in the present case. The evidence is undisputed that the defendant was wholly unwilling to disclose that he had a pistol, and, though virtually a captive, resisted this disclosure to the utmost of his ability under the circumstances. The personal inviolability of the citizen is too sacred to make evidence extorted by force, even if not objected to, more than physical hearsay without probative value. In my view of the case, even if the consent to search for money included the widest latitude possible, it was subject to be withdrawn or limited; and the evidence shows that it was limited and withdrawn in this case. The only evidence of guilt being plainly extorted from the defendant by superior force, he should have been acquitted. Under the view of my colleagues, the defendant waived the incompetency of the evidence by failing to object thereto at the trial, and therefore the judgment is Affirmed.

Russell, J., dissents.


text:
    971.
    TAYLOR v. FUTCH.
    The evidence authorized the verdict, and there was no error in refusing a new trial.
    Complaint, from pity court of Nashville — Judge Peeples. January 10, 1908.
    Submitted February 25,
    Decided May 7, 1908.

      Hendriclcs & Christian, for plaintiff in error.

      Alexander & Cary, contra.
   Russell, J.

Futch sued Taylor on a promissory note. The defendant pleaded, that he paid the note, by reason of the fact that he was garnished on a fi. fa. in a justice’s court, obtained by L. H. Warlick against W. R. and J. E. Futch, and he paid the garnishment judgment by giving his note to Warlick, the plaintiff in fi. fa. He further pleaded, that in the sale of some land to the plaintiff, it was part of the consideration that he was to pay off this fi. fa. and that the plaintiff was, to turn over to him the note sued upon. The jury found in' favor of the plaintiff. The assignment of error presented by the bill of exceptions is upon the judgment overruling the defendant’s motion for new trial. The motion is based upon the general grounds only.

The evidence is conflicting, and no reason appears why the court erred in refusing a new trial. The execution of the note was not denied, nor the justice of the 'indebtedness which it represented. The defendant claimed that the note was given for an interest in a mill and certain timber, and the plaintiff denied this. The plaintiff also testified to the defendant’s admission that the note he was sued upon was for labor. Without rehearsing the testimony, it is sufficient to say that every material point was placed squarely at issue by the conflicting statements of the plaintiff and the defendant. It was the prerogative of the jury to settle this conflict, and, in the absence of any error of law, their verdict, approved by the trial judge, will not be disturbed. Judgment affirmed.


author: Hill, C. J.

text:
    982.
    Spires v. Southern States Phosphate & Fertilizer Co.
    Complaint, from city court of McKae — Judge Griffin presiding. December 10, 1907.
    Submitted March 11,
    Decided May 7, 1908.
    The Southern States Phosphate and Fertilizer Company sued Spires on a promissory note. The defendant pleaded that he was entitled to be credited with the amount of certain notes deposited with the plaintiff as collateral security for the payment of the note sued on, and which he alleged the plaintiff had negligently failed to collect, thereby damaging him in that amount. The court, at the conclusion of the evidence introduced on the trial, directed a verdict against the defendant, for the amount sued for; and he excepted.
    The note sued on was dated May 11, 1905, and was due in December of the same year. From the evidence' it appeared, that collateral notes, due in October of that year, were deposited with the plaintiff as alleged, and were to be collected and the proceeds credited on the defendant’s note. Early in the fall of that year the plaintiff sent these notes to the defendant for collection. They were for fertilizer sold by the defendant for the plaintiff. The defendant testified: “I did not collect these, because some of these people had not gotten out their cotton and were back behind' ■some; the crops of 1905 being sorry, most of the farmers got behind; although they were on people who could have made arrangements to pay them ordinarily. They promised to pay me. Tn the fall of 1906 I did not have these notes in my charge; the fertilizer people had them, took them away from me . . February 5, 1906, and they never turned them-back to me, although if I had them last fall I could have collected all of them before now. . . They all could have been collected before now if the 'fertilizer people had tried to collect them. I do not know of any effort made by these people to collect them.” The defendant testified that after the notes went out -of his hands the makers of several of them offered to pay their notes, but, when they found that he did not have the notes to surrender to them, they refused to pay him. “I lost these amounts of these notes by not having them in my hand. . . I was not at that time the agent of the plaintiff to collect these notes, and I did .not have the right to take the money. I did not toll the company that these people had offered to pay these notes, or communicate with them in any way about them. . . I said I could have collected the notes, because thej were worth the notes and [the notes] could have been collected. I might have had to sue some of them, but I could have collected them. . . I know the company would have turned these notes back to me if I had paid mine. I would have paid mine if they had let me have these notes. They taken these notes away from me, and I didn’t bother any more with them.” The plaintiff admitted at the trial that the makers of certain of the notes would, if present, testify that they would have paid their notes if the notes had been left in the defendant’s possession or control; also that one of these persons paid his note at the time of the trial, except interest, and that he refused to pay the interest, because the plaintiff had the note and he could not get it until the trial. The defendant admitted that the amount then paid had been credited to him. It appeared that when the collateral notes were returned by him to the plaintiff, they were turned over to a bank, which notified each of the makers that his note was there; but they were not collected. Nothing further appears as to why the notes were not paid, or as to any effort to collect them.
   Hill, C. J.

1. One who receives promissory notes or other ehoses in action as collateral s'ecurity is bound to use ordinary diligence to collect' them. Civil Code, §2963; Schoul. Bail. (3d ed. §236); Colebrooke, Col. Sec. §114.

2. Where the maker of a promissory note is sued thereon by the payee, and the defense is set up that the latter failed to collect certain promissory notes pledged with him by the former as collateral security, the defendant must show that the collateral notes were collectible, and that the . failure to collect them was due to the negligence of the plaintiff, and that damage resulted therefrom to the defendant. This burden was not successfully carried in the instant case. Fisher v. Jones Co., 108 Ga. 490 (34 S. E. 172).

3. Under the decision of the Supreme Court in the ease of Mauck v. Atlanta Trust and Banking Co., 113 Ga. 242 (38 S. E. 845), the evidence in the case sub judice demanded the verdict as. directed.

Judgment affirmed.

George H. Harris, B. M. Frizzells, for plaintiff in error,

cited: Civil Code, §2963; 10 Ga. 208; 65 Ga. 305; 113 Ga. 243; 108 Ga. 493; 94 Ga. 688; 113 Ga. 1165.

IF. A. Wooten, contra,

cited: Civil Code, §3802; 105 Ga. 235, and cases cited supra.


text:
    1013.
    Wheeler v. The State.
    Accusation of selling liquor, from city court of Bainbridge — ■ Judge Harrell. January 20, 1908.
    Submitted March 31,
    Decided May 7, 1908.

      J. H. Gilpin, A. E. Thornton, for plaintiff in error.

      M. E. O’Neal, solicitor, contra.
   Russell, J.

1. Under an indictment charging the commission of a criminal offense, evidence is admissible to show that the crime was committed upon any date prior to the finding of the indictment, within the statute of limitations. Where a defendant is charged with the unlawful sale of whisky generally, the sale not being alleged as made to any particular individual, proof may be submitted of any sales made by him, in the jurisdiction of the court, within two years prior to the date of the accusation.

2. Proof that a witness has been convicted of the unlawful sale of intoxicating liquor affords no ground for impeachment of the witness, and can not be used to discredit his testimony. Only conviction of crime involving moral turpitude serves as a basis for impeaching, or 'can be held to be a ground for discrediting, the testimony of a witness who has been thus convicted; and the proper method of proving that a witness has been convicted of crime is by the record of his trial and conviction.

S. It is not error on the part of the court to confine the argument of counsel to such matters as are material to the issue, provided that, in rilling upon the question, neither the language nor the manner of the court is prejudicial to the rights of the client.

d. It was not error for the trial judge to instruct the jury, in response to a question from one of the jury as to the effect of their verdict upon a charge against witnesses in the case, that “it makes no difference to the jury whether witnesses were guilty of soliciting the sale of whisky or not; it is your duty to try this ease and see if the defendant is guilty or not guilty under the evidence and the law given in charge.”' Nor was it error for the court to charge the jury that they had nothing to do with what some one else did or did not; that it had nothing to do with the case on trial; that it was for them to say whether the defendant in the ease was guilty or not guilty.

5. The evidence authorized the conviction of the defendant, and there was no error in refusing a new trial.

6. The overruling of a demurrer to an indictment can not be considered on a motion for new trial, and affords no ground for new trial. Error in ruling upon a demurrer in a criminal ease must be made the ground of a special exception preserved pendente lite, or must be presented in a bill of exceptions which has been certified within twenty days from the ruling of which complaint is made. Judgment affirmed.


author: Powell, J.

text:
    1027.
    Clarke Brothers v. Deal.
    Motion to dismiss the writ of error.
    Submitted April 21,
    Decided May 7, 1908.

      W. deB. Barclay, for plaintiffs in error. G. L. Morgan, contra.
   Powell, J.

1. In order for this court to review a refusal to sanction a certiorari, the petition must be incorporated in the bill of exceptions or otherwise verified as a part thereof by the trial judge; an unsanctioned, petition can not be specified as a part of the record. Hall v. State, 2 Ga. App. 437 (58 S. E. 558), and cit.

2. While, by the Civil Code, §§5570, 5573, bills of exceptions may be amended by the record or so as to conform thereto, it is not permissible to add to a bill of exceptions, after its filing, service, and transmission, a paper not a part of the record, though it is certified by the trial judge to be a true copy of an instrument pertinent to the case.

3. Where the bill of exceptions complains of the refusal to sanction an application for certiorari, and the petition is neither incorporated in the. bill of exceptions nor attached as an exhibit thereto, the bill of exceptions can not be amended in this court by adding a copy of the petition, though it is verified by the judge of the superior court.

Writ of error dismissed.


text:
    1038.
    Caldwell v. Campbell.
    Certiorari, from Decatur superior court — Judge Spence. February 10, 1908.
    Submitted April 22,
    Decided May 7, 1908.

      B. 8. Longley, for plaintiff in error.

      Bicketson & Hale, Dasher & Parks, contra.
   Powell, J.

The plaintiff, an insurance agent, took from the defendant an application for insurance, in which the amount of the premium was left blank. He took, however, a note for the first premium, in a specified amount. The policy, when delivered to the applicant, recited a slightly larger sum as the annual premium, but acknowledged receipt of the first premium. The insured kept the policy, never offered to return it, and made no objection, until after the note matured. Beld, that a verdict against the defendant for the amount of the note was proper. Jones v. Gilbert, 93 Ga. 607 (20 S. E. 48); Leigh v. Brown, 99 Ga. 258 (25 S. E. 621) ; Johnson v. White, 120 Ga. 1010 (48 S. E. 426) ; Mass. Benefit Life Asso. v. Robinson, 104 Ga. 256(4), (30 S. E. 918, 42 L. R. A. 261). Judgment affirmed.


text:
    1045, 1046.
    HOWARD v. RUMBLE, and vice versa.

    1. No particular formality is essential to the creation of a mortgage. A writing indicating an intention to create a lien, and specifying the debt to be secured and the particular property upon which the lien is to take effect, is a mortgage. Where the seller of a horse, to secure the payment of a note given for the purchase-price, takes a mortgage on it and on other property, and subsequently the horse is taken back by the seller by request of the buyer, and the mortgage is credited with the sum to be allowed under the agreement, and still later the buyer reconsiders and decides to keep the horse, and the credit on the mortgage is erased and the buyer writes and signs an entry upon the mortgage, agreeing that the paper shall have all the efficacy originally possessed by it, the effect of the transaction is to create a mortgage. As to the horse it is a purchase-money mortgage, and superior in rank of lien to a prior judgment against the buyer.
    2. In such a case the lien of the judgment, being older in date, is superior in rank to that of the mortgage, as to the other property included; and, in the absence of some special equity controlling the case contrawise, is entitled to claim the proceeds of the sale of that property under the mortgage foreclosure.
    Money rule, from city court of Forsyth — Judge Clark. January 28, 1908.
    Argued April 22,
    Decided May 7, 1908.

      O. T. Lester, C. J. Lester, Persons & Persons, for plaintiff in error.

      B. II. Mann, Bloodworth & Bloodworth, contra.
   Powell, J.

This is a contest by money rule between Howard and Rumble, over the proceeds of a horse and mule sold by the sheriff under a mortgage foreclosure in favor of Howard against a common debtor of his and Rumble’s. Rumble had a common-law fi. fa. issued and recorded in 1901. On February 28, 1905, Howard sold to the defendant in fi. fa. the horse referred to, and, to secure the purchase-money represented in a note for $125, took a mortgage on it and on the mule. In the mortgage was a provision: “If said horse is returned in good fix every way, fat and without blemish, at maturity of note, with $25 additional, then this note will be surrendered to the party making the same.” In March, 1906, after the maturity of the debt, the purchaser returned the horse, and by mutual consent this entry was made on the mortgage: “Credit this note on return of horse with $100.” The next day the purchaser came back and said he could not get along without the horse, and he took it again, and the entry just referred to was erased and tire following, signed by the purchaser, was substituted: “S. M. Howard turns the horse back to me, and I agree that this note stands as appears in face, and above erasure is in effect.” At the hearing the court awarded the proceeds of the horse to Bumble, the holder of the J5. fa., and the proceeds of the mule to Howard, the holder of the mortgage. To so much of the judgment as awards the proceeds of the horse to Bumble, Howard excepts in the main bill.

The only fair interpretation to be given to the conduct of Howard and the purchaser of the horse in March, 1906, is that they either considered time as not being of essence in respect to the date bjr which the option to return the horse should be exercised, or that the seller waived his right to insist upon punctuality, and that the rescission contemplated in the original contract was effected. What effect then is to be given to the transaction which occurred the next day? This should be, as far as may be, in accordance with the intention of the parties. It is plain from what took place that they did not intend that there should be a resale of the horse on open account, but intended that Howard should hold the same debt and the same security he had held before. As between the parties no particular form is essential to the creation of a mortgage. If the writing relied on indicates an intention to create a lien, and specifies the debt to be secured and the property on'which the lien is to take effect, it is for all immediate intents and purposes a mortgage. Civil Code, §2724. There is no difficulty in ascertaining all these elements from the writing which was executed on the redelivery of the horse; therefore, in this novation Howard still retained a purchase-money mortgage on the horse and an ordinary mortgage on the mule. The transaction gave Bumble the right to have his debt paid out of the proceeds of the sale of the horse, in preference to the lien of any prior common-law judgment. Scott v. Warren, 21 Ga. 408; Rasin v. Swann, 79 Ga. 703 (4 S. E. 882). Bumble’s fi. fa. representing a pre-existing debt, no injury accrued to him from the transaction or from any failure to record the novation. Compare Conder v. Holleman, 71 Ga. 93. The proceeds of the horse should have gone to Howard.

To so much of the judgment as awards the proceeds of the mule to Howard, Bumble excepts in a cross-bill. It appears that during the period in which Rumble was in possession of this ñ. fa., he sold the common debtor goods on open account, and from time to time took payments in property’, which he, in the absence of express direction, credited on the account, leaving the fi. fa. unsatisfied. Howard’s rights, as we have shown, date from the novation in 1906. If Rumble had had actual or constructive notice of this mortgage, it is possible that some principle of equity might have required him to appropriate the payments received from the common debtor to the satisfaction of his lien. See Cofer v. Benson, 92 Ga. 793 (19 S. E. 56). Ho decision as to this is necessary; for it is not shown that Rumble had any notice, actual or constructive, of this transaction between Howard and the debtor. His judgment lien on the mule was superior in time to the mortgage lien, and therefore prima facie superior in rank. He was, therefore, entitled to the money arising from that source, unless he was, through equitable principle, relegated from this fund to some other. Howard asks the application of the doctrine announced in the Civil Code, §3691, that a creditor having a lien on two funds of the debtor, equally accessible to him, will be compelled to pursue the one on which other creditors have no lien. Under the proof, this was not a case for the application of this doctrine. The court should have awarded the proceeds from the sale of the mule to Rumble’s judgment. In the light of what we have said above, the objections urged against the introduction of the Howard mortgage in evidence, and made special grounds of exception in the cross-bill, are not meritorious, but the chief exception is meritorious.

Judgment reversed on both bills of exceptions.


text:
    1051.
    LOWRY NATIONAL BANK v. MADDOX.
    1. The defenses of the maker of a promissory note payable to order can be cut off only by the payee’s formal indorsement of it before maturity.
    2. A guaranty -written upon it by the payee is not such an indorsement.
    Complaint, from city court of Dublin — -Judge Burclh January 31, 1908.
    Argued April 22,
    Decided May 7, 1908.

      Ira 8. Chappell, Payne, Jones <£ Jones, for plaintiff in error.

      T. L. Grinev, Ilines & Jordan, contra.
   Powell, J.

The defendant executed his promissory note prom-' ising to pay Brooke, or order, a sum of money on a day fixed. He-had a good defense to the note, as against the original payee. Before its maturity Brooke pledged it to the plaintiff as collateral security, and wrote upon it the following: “For value received I hereby guarantee .the payment of this note at maturity. George W. Brooke.” The plaintiff claimed protection as a bona fide purchaser for value of commercial paper. The defenses by the maker of the note against the original payee were admitted by the court, and the trial resulted in favor of the defendant.

To enable the holder of a promissory note payable to the order of a named payee to assert successfully the rights of a bona fide purchaser for value, it must appear that the note was formally indorsed by the payee in writing before its maturity. Benson v. Abbott, 95 Ga. 70 (22 S. E. 127); Farris v. Wells, 68 Ga. 604; Haug v. Riley, 101 Ga. 375 (29 S. E. 44, 40 L. R. A. 244); Burch v. Daniel, 101 Ga. 228 (28 S. E. 622).

The indorsement of a negotiable instrument does not lose its force and efficacy because it includes a guarantee as well as a transfer. Vanzant v. Arnold, 31 Ga. 210; Baldwin Fertilizer Co. v. Carmichael, 116 Ga. 762 (42 S. E. 1002). An indorsement by the original payee of such a note, containing words of guaranty alone, without words of transfer, but accompanied by a physical transfer of the paper, may operate to pass title to the instrument and give to the holder the right to treat the payee as indorser with, an enlarged liability. Pattillo v. Alexander, 96 Ga. 60 (22 S. E. 646, 29 L. R. A. 616), and cit. But such a guaranty, in the absence of the ordinary words of transfer or assignment, does not constitute the holder such a purchaser for value as to protect him from defenses already accrued to the maker against the original payee. Trust Co. v. National Bank, 101 U. S. 68 (25 L. ed. 876); Pattillo v. Alexander, supra, pp. 71, 73); Andrews v. John Church Co., 1 Ga. App. 560 (58 S. E. 130). The bank, never having received a perfect formal'indorsement of the negotiable instrument, was .exposed to the same vulnerability from the defendant’s pleas as the original payee would have suffered if he had been the plaintiff. The defendant, having fully established his pleas, was entitled to the verdict which was rendered in his favor.

Judgment affirmed.


text:
    1056.
    1057.
    Nix v. Southern Railway Company. Nix, by next friend, v. Southern Railway Company.
    Actions for damages, from city court of Floyd county — Judge Hamilton. February 28, 1908.
    Argued April 22,
    Decided May 7, 1908.
    Will Nix, a minor suing by his next friend, sought to recover for personal injuries; and his father, in a separate suit, sought to recover for loss of the son’s services in consequence of the injuries. The court dismissed the suits, on general demurrer, and exceptions were taken in each case.
    From the petitions it appears, that Will Nix was a car-coupler in the defendant’s service, engaged with other employees in making up a train. He was at his post of duty, at the side of a stationary car, with his hand on the handle-bar with which couplings are made, for the purpose of coupling that car to cars which were being pushed toward it by an engine. The approaching cars were moving at the rate of six miles per hour, and he signalled with his hand to the engineer to reduce the speed and go very slow, because the coupling was about to be made. When the cars were about to come together he saw that'the draw-head of the stationary car was not in its proper position, but extended three or four inches out of its place and towards him, and that the coupling could not be made while it was in this position, because the knuckles in the draw-heads would not meet; and, in order that the coupling might be made, he put his foot against the draw-head and attempted to push it to its proper position. Just as the coupling was about to be made, the cars were given a quick, sudden push, and before he could get his. foot from against the draw-head, the draw-head of the moving car hit the draw-head of the stationary car with such force that it ■flew back and caught and lodged his foot between the dead-wood •and the draw-head, and he sustained the injuries in question. Owing to the weight of the draw-head and the short time in which he had to adjust it, he had not-succeeded in pushing it to its proper place. It was alleged, that the way in which he was attempting to put the draw-head in its proper place was the usual arid customary way of adjusting draw-heads when in that condition, and the -only way in which the defendant’s employees adjusted them; that -during the two or three years in which he had been coupling cars for the defendant, he had adjusted hundreds; that it was the ■duty of couplers to adjust them in that way; that his superiors adjusted them in that way in his presence, and saw Mm adjust them in that way and never corrected him. It was alleged, that he was free from fault, and that the defendant was negligent in using the ear with the draw-head in the defective condition described; and that the engineer was negligent in pushing the cars back against the stationary car so suddenly and with so much rapidity and force.
   Powell, J.

A car-coupler who sees and • knows that the draw-head and knuckle of the coupling are defective and will not act automatically, and who, while an engine with cars attached is backing rapidly to the point where the coupling is to be made, kicks against the draw-head and knuckle, to adjust them, just at the moment of impact, and thus gets his foot mashed, is, in legal contemplation, the author of his own injury, and can not hold the railway company liable therefor, although a signal given by him was disregarded by the engineer in thus rapidly-backing the engine and cars; it not appearing that the injured employee ' did not see and know the speed at which the engine and cars were running. Griffith v. Railroad Co., 124 Ga. 553 (53 S. E. 97, 4 L. R. A. (N. S.) 854). Judgment affirmed.

M. B. Eubanks, W. B. Mebane, for plaintiff,

cited: Ga. R. 87/631; 91/28; 73/814; 77/429; 103/820; Ga. App. 1/94, 281, 403, 413, 441; 2/295; Ga. R. 113/708; 122/88.

Maddox, McCamy <£• Shumate, George A. II. Harris & Son, for defendant,

cited: Ga. R. 92/495; 103/584; 124/553; 1 Ga. App. 259 (6).


text:
    1085.
    Carr v. The State.
    Indictment for robbery, from Bibb superior court — Judge Feb ton. March 3, 1908.
   Powell, J.

1. Tlie charge on the subject of alibi, taken in its entirety, is substantially in accord with what this court approved in the case of Smith v. State, 3 Ga. App. 803 (61 S. E. 737).

'2. Where the question of personal identity and the fact of alibi are virtually the same defense, a charge on the one substantially covers the other. Dale v. State, 88 Ga. 553 (6), (15 S. E. 287).

3. A slip of the tongue by the trial judge, in stating the general designation of the offense with which the prisoner stands charged, is cured by an immediate correction, in which not only the true designation is given, but also the full nature of the offense as set out in the indictment.

•4. No error appears. Judgment affirmed.

The instructions of the court to the jury on the subject of alibi were as follows: “Evidence has been introduced as to an alibi, by the defendant. The word alibi means elsewhere. That is the English definition of the Latin word alibi. In its legal sense and when used as a defense, it involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission; and the range of evidence in respect to the time and place must be such as to reasonably exclude the possibility of the-presence of the defendant. It is not required that the evidence or conviction of the impossibility of the prisoner’s presence should be more strong or full than would be sufficient to prove any other fact in the case. Any evidence, however, of an alibi is to be considered on the general case, with the rest of the testimony, and, if a reasonable doubt of guilt be raised by the evidence as a whole,, the doubt should be given in favor of innocence.” In the motion for a new trial an extract from these instructions was complained of “because it put the burden of proof upon the defendant to establish his alibi as fully and strongly as any other fact in the-case; which . . meant proof of his alibi bej'ond a reasonable doubt.” It was also alleged that the court erred in failing to instruct the jury upon the defendant’s contention as to the failure of the State to identify him as being the person who committed, the alleged offense.

Richard Curd, Glawson & Fowler, for plaintiff in error.

William Brunson, solicitor-general, Roland Ellis, contra.


text:
    1100.
    BRIGHT v. THE STATE.
    1. Under the provisions of § 122 of the Penal Code, one may be convicted' of an attempt to entice away the servant, cropper, or farm laborer of' another, although the attempt be not successful, and1 the servant, cropper, or farm laborer does not actually leave the service of his employer. One accused of enticing, persuading, .or decoying may also, where the-evidence authorizes, be convicted of the attempt, under § 1035 of the-Penal Code.
    2. The evidence authorized the verdict. No error of law is assigned, and it was not error to-refuse a new trial.
    Accusation of misdemeanor, from city court of Albany — Judge: Crosland. March 24, 1908.
    Submitted April 21,
    Decided May 7, 1908.

      L. W. Nelson, for plaintiff in error.

      John D. Pope, solicitor, contra.
   Russell, J.

The defendant, Harry Bright, was, by accusation, charged with a misdemeanor, in that, by offering higher wages, he attempted to entice, persuade, and decoy Bobert Brown and Cleveland Sweet, farm laborers of Virginia Harris, to leave' her while they were under contract with her and after they had actually entered upon her service, and during the term of their service, knorving that they were employed by her. The jury found the defendant guilty. After his conviction he moved for a new trial, upon the general grounds; and he now excepts to the judgment overruling his motion.

The specific point insisted upon by counsel for plaintiff in error is, that there was no evidence to show that there was any inducement offered by the plaintiff in error, or any words spoken by him whereby he influenced the will of the servants, so that they became dissatisfied with their employment, or were lured away. It is further insisted that the verdict of guilty is contrary to the evidence because it does not appear that the laborers ever left their employer, the prosecutor, or became dissatisfied by reason of the alleged attempt to decoy them away. Counsel for the plaintiff in error rely upon the decisions in McAllister v. State, 122 Ga. 744-747 (50 S. E. 921), and Hudgins v. State, 126 Ga. 641 (55 S. E. 492), as authority for these positions. Neither of these cases is in point. In the McAllister case the judgment was reversed because there was no evidence to show that the accused enticed, persuaded, or decoyed the employee to leave the service of his employer, or that the accused knew that the contract between the employee and the prosecutor had not expired. It appears from the record in the McAllister case that the defendant in that case was charged with having actually enticed, persuaded, and decoyed the employee to leave his employer, whereas in the present case the defendant is charged only with attempting to entice, persuade, and decoy. Eor that-reason the ruling,' that “the words used in the statute, ‘entice, persuade, or decoy/ indicate that there must be some word or act of incitement or inducement on the part of the offender, whereby he influences the will of the servant so that the latter becomes dissatisfied with his employment and is allured away,” is not pertinent to this ease. In the McAllister case the decision turned really upon the fact that there was no evidence that the employee did not leave his employer’s service of his own accord. But even if the court had held the evidence sufficient upon this point, as the defendant was charged with having persuaded or decoyed the prosecutor’s servant away, it necessarily followed • that the State was obliged to show that he left his employer. It is not necessary to show, however, that the attempt was successful, where the accusation charges only an attempt to entice or decoy. On the contrary, when the effort to entice, persuade, or decoy the servant of another is successful, the attempt passes into the ■offense of actually enticing and decoying.

When Judge Cobb, delivering the opinion in the Hudgins case, supra, said that the ingredients of the offense defined by §133 of the Penal Code include “the actual leaving by the servant the em•ployment before the term of service has expired,” he was also treating of an accusation for the actual enticing and decoying away of a servant. Of course, in such a case as above stated, it was necessary that the servant should have left his master’s employment before the offense of enticing was complete. Not so, however, where an enticing or decoying is attempted. This is an offense whether the one who attempts to persuade and decoy away a servant succeeds or not. In the present case the attempt only was charged; and it is expressly within the provisions of § 133 of the Penal Code: “If any person shall, by offering higher wages or in any other way, entice, persuade or decoy, or attempt to entice, persuade or decoy any servant, cropper, or farm laborer, whether under a written or parol contract, after he shall have actually entered the service of his employer, to leave his employer during the term of service, knowing that said servant, cropper or farm laborer was so employed, he shall be guilty of a misdemeanor.”

The evidence in behalf of the State showed, that there was a contract between the prosecutor and the servants or farm laborers named in the accusation, for the year 1908, at $10 a month each; that these servants had actually entered the service of the employer, and that in order to induce them to leave the prosecutor the defendant offered to pay them $13 a month, instead of the $10 per month for which they were working. There was also evidence that the defendant offered, as an additional inducement to one of the laborers, to let him many his daughter. The defendant was prosecuted before the farm laborers left their employer, but the evidence of the attempt to decoy them away from their employer, after knowledge of the contract and during its existence, was ample to authorize conviction, and there was no error in refusing a new trial. Judgment affirmed.


text:
    1101.
    Atterberry v. The State.
    Accusation of misdemeanor, from city court of Millen — Judge Anderson. February 17, 1908.
    Submitted April 21,
    Decided May 7, 1908.

      Joseph Law, B. P. Jones, for plaintiff in error.

      James A. Dixon, solicitor, contra.
   Powell, J.

Though a single act of gaming, without more, will not constitute the house in which it occurs a gaming-house, yet where the owner, for a consideration paid him, invites or permits other persons to use his house, though on only a single occasion, for the purpose of gambling, he is guilty of a violation of that portion of § 398 of the Penal Code which makes it a misdemeanor if any person “shall in any house, place or room, occupied by him, permit persons, with his knowledge, to come together and play for money or any other valuable thing' at any game or device for the hazarding of money or other thing of value.” Bell v. State, 92 Ga. 49 (18 S. E. 186). Judgment affirmed.


text:
    1106.
    Mathews v. The State.
    Conviction of assault with intent to rape, from Bibb superior court — Judge Felton. December 16, 1907.
    Submitted April 21,
    Decided May 7, 1908.

      Richard, Curd, John B. Cooper, for plaintiff in error.

      William Brunson, contra.
   Hill, C. J.

The assignments of error are entix-ely without merit, and the verdict is fully supported by the evidence. Judgment affirmed.


text:
    650.
    SOELL v. THE STATE.
    1. Error in tlie overruling of a motion to exclude testimony may be assigned by exceptions pendente lite, or may be reviewed by motion for new trial.
    2. The grounds of a motion for new trial must be distinctly approved by the trial judge. This approval may be entered upon the motion, or the ground of the motion may be verified in the bill of exceptions, but grounds of a motion not approved will not be considered by a reviewing court.
    (a) The approval of a ground of a motion for new trial extends no further than to verify statements contained therein as written.
    (1>) Where it does not appear that the objection which is urged to the admissibility of evidence was presented to the trial judge at the trial, or what objections, if any, were urged in support of a motion to exclude testimony, nothing is presented for the determination of the court in passing upon this ground of the motion for new trial and it may be disregarded without error.
    3. Though the evidence of the defendant’s guilt is weak and unsatisfactory, this court has no jurisdiction to review a finding of the jury upon an issue of fact.
    Indictment for selling liquor, from Walker superior court— Judge Wright. July 10, 1907.
    Submitted October 7, 1907,
    Decided May 18, 1908.

      Payne & Payne, Lumpkin & Wright, J. E. Rosser, for plainti'ff in error.
    IF. H. Ennis, solicitor-general, Walter B. Shaw, contra. .
   Russell, J.

The plaintiff in error, having been convicted, made a motion for new trial. His motion was originally based upon two general grounds; and, by amendment at the hearing, a third ground was added. The decision of the case turns upon the disposition of the third or amended ground of the motion. After thorough investigation, prolonged consideration, and several thorough discussions of the record in this case and of the'law applicable thereto, this court is satisfied that we can not hold that the trial judge erred in overruling the motion for new trial.

The amended ground of the motion for new trial, which was allowed by the presiding judge, was as follows: “Because the court erred in notf sustaining the motion of the defendant to exclude the testimony of T. A. Mashburn, to the effect that he purchased from Guy Shuttleworth, at Park City, Ga., some beer and whisky, paying for the same, ‘but the sale was made to him by Shuttleworth, to whom I paid the money therefor,’ and in admitting said testimony; said evidence being inadmissible and incompetent under the allegations of the indictment; and there is a material variance between the allegations of the indictment and said testimony. Said defendant was not put upon notice, by the indictment that he was called upon to defend, where the illegal sale was claimed to have been made through another person as agent. Wher,efore defendant prays the grant of a new trial upon the above ground.” “Allowed. Moses Wright, J. S. C. E. C.” It will be noticed that the amended ground of the motion for new trial is only “alloioed” by the presiding judge; which is not equivalent to that distinct and affirmative approval which is essential for the verification by the court of the statements of fact therein contained. Nothing is better settled than that grounds of a motion for new trial, not approved by the trial judge, will not be considered by a reviewing court. “An amendment to a motion for a new trial which has upon it an entry to the effect that it was 'allowed’ by the judge, with nothing else to indicate an approval of its grounds, is not sufficiently verified to authorize this court to deal with the assignments of error therein made.” Merritt v. Merritt, 113 Ga. 569 (38 S. E. 973). The entry of allowance meant “nothing-more than that counsel’s request to file additional grounds as an amendment was granted. A trial judge may pass upon grounds of a motion for new trial without approving them in the first instance. If, however, he overrules the -motion and the case is brought here, it is necessary . . that they have the express approval of the trial judge and that the fact of his approval affirmatively appear. Had this motion been granted by the trial judge . . [and could the case have been brought here by the State], alleging error in granting the motion, the granting of the motion would have been such a verification of the grounds that they could be considered here. The granting of the motion on these grounds verifies their truth.” Long v. Scanlan, 105 Ga. 425 (31 S. E. 436). See also Stephens v. Woolbright, 60 Ga. 323; Flournoy v. Wardlaw, 67 Ga. 378; Skinner v. Roberts, 92 Ga. 366 (17 S. E. 353).

The purpose of the verification of a ground of a motion for new trial being to inform the appellate court as to what indisputably occurred on the trial in the lower court, it has uniformly been held that if the judge, in the bill of exceptions, certified such a ground to be true, this would be equivalent to an approval of the ground in the first instance. It must affirmatively appear by the judge’s certificate, on the motion itself, or by an affirmative recital in the bill of exceptions, that the grounds taken are, as a matter of .fact, true, or they can not be considered by the appellate court; and either will suffice to verify all that is stated in any or all of the grounds of the motion, but not more than is thus contained. Smith v. Summerlin, 48 Ga. 425; Puffer v. Peabody, 59 Ga. 295; Central R. Co. v. Sears, 59 Ga. 436; Flanders v. Maynard, 58 Ga. 56; DeVaughn v. McLeroy, 82 Ga. 700 (10 S. E. 211); Thompson v. Ga. R. Co., 55 Ga. 458.

In the case now sub judiee, the ground of the motion is fully verified in the bill of exceptions; so we can treat the ground of the motion as if it had been distinctly approved in the first instance, and accordingly consider it. In the bill of exceptions the judge •certified that the objections upon which the motion to exclude the testimony were based were fully stated at the time that the motion to exclude it was made. For myself, I think this certificate will enable us to deal with these objections upon their merits, because, from the statement of the judge in the bill of exceptions, we know that the reason upon which the ruling of the court was invoked was 'stated at the trial, and, speaking for myself, I think the objection should have been sustained. I base my opinion upon the fact that the only purpose of the judge’s certificate is to state to this court what really transpired, as the only really authoritative source from which we can derive that information. In this case the statement in the bill of exceptions, which is certified by the presiding judge, supplements and makes perfect for our consideration a ground of the motion for new trial which would otherwise be valueless. On the other hand, it frequently happens that an explanatory note on the part of the trial judge minimizes or absolutely destroys what would be an unanswerable point in favor of a plaintiff in error. . It seems to me that taking into consideration the reason of the rule, it should work both ways. However, there seems to be considerable authority in support of the position of my colleagues, that the certification of the judge, contained in the bill of exceptions, extends no further than to verify the ground of the motion as it is written, whether it be perfect or imperfect. I am persuaded to yield the opinion I have heretofore entertained, by the consideration that if this had been a civil case, and the judge, instead of overruling the motion, had granted it, and the respondent in the motion (instead of the movant) had brought the ease to this court for review, we should probably be constrained to reverse the judgment granting a new trial, if it rested upon this ground alone; for the reason that it does not appear that the objections to the testimony, now urged, .were presented to the court at the time a ruling was invoked. It will be observed that in the ground of the motion under consideration there is no statement that the objections urged by the plaintiff in error, to the admissibility of the testimony which he sought to have excluded, were presented to the court at the time the motion was made. Nothing is better settled than that the distinct ground of objection to testimony must be clearly presented, and that in default of an explicit statement of the ground of the objection, the correctness of the court’s ruling is immaterial', because no ruling-is properly invoked or required. We conclude, therefore, that as the point upon which our ruling -is asked was never properly before the trial judge for his consideration, it was not error in the judge if he disregarded this ground of the motion entirely, because defective, and based his decision upon the other grounds of the motion.

Having disposed of the third ground of the motion, an affirmance of the judgment necessarily results from consideration of the two grounds, (1) that the verdict is contrary to law, and (2) that the verdict is contrary to the evidence and without any evidence to support it. Neither of these grounds is broad enough to include a consideration of the question whether the defendant, who was indicted as having sold intoxicating liquors directly, could be convicted upon proof that the intoxicating liquor in question was sold by one Shuttleworth, who testified that the defendant was one of the joint owners of the liquors kept for sale. Although we are constrained to hold that we could not consider the ground of the motion which raised this particular point, and although the plaintiff in error failed to except pendente lite, the certificate of the judge in the bill of exceptions would have presented the question had the bill of exceptions been certified within twenty days from the ruling complained of. But invéstigation of the record shows that more than two months elapsed between the trial and the presentation of the bill of exceptions. Upon review of the evidence (which, in view of our ruling above, must be considered as having been admitted without objection), we find that it would authorize the conviction of the defendant, and we are therefore constrained to hold that the judge did not err in overruling the general grounds of the motion and in refusing a new trial. We are unanimous in the opinion that the evidence in behalf of the State, as to the connection of this defendant with the sale of the liquors in question, is weak and to us insufficient. The only witness for the State who shows that this plaintiff,in error had any connection with the sale (and who was brought from the chain-gang to testify) appears to us to have been plainly impeached and discredited, both by proof of his contradictory statement and by the circumstances attending the disposition of the stock of liquors after his conviction, which is a strong circumstance corroborative of the impeaching testimony. Had we been upon the jury we should have favored an acquittal. But as to issues of fact this court has no power to reverse the findings of juries, nor any disposition to invade the peculiar province wisely allotted to them by law. The jury saw the witnesses and heard them. They are better able to reach the truth than we.

Judgment affirmed.


text:
    651.
    Hart v. The State.
    Indictment for selling liquor, from Walker superior court — ' Judge Wright. June 10, 1907.
    Submitted October 7,
    Decided May 18, 1908.

      Payne & Payne, Lumpkin & Wright, J. E. Posser, for plaintiff in error.

      W. U. Ennis, solicitor-general, Walter B. Shaw, contra.
   Russell, J.

No error of law is assigned; the evidence authorized the conviction of the defendant, and the trial judge did not err in overruling the motion for new trial, based solely upon the general grounds; for the reason that these grounds are insufficient to raise any question as to the admissibility of the evidence adduced upon the trial.

Judgment affirmed.


text:
    655.
    Farmers Mutual Life Protective Association v. Elliott.
    Action, on insurance policy, from city court of Atlanta — Judge Eeid. June 22, 1907.
    Argued November 13, 1907.
    Decided May 18, 1908.
    The plaintiff in error, a fraternal association insuring the lives of its members on the assessment plan, issued to B. P. Elliott, a member of the association, a certificate of insurance on his life, ■May 9, 1906. He died July 7, 1906. Meanwhile two assessments became due. Notice of one of them was sent to him on May 23, and, the assessment not having been paid, a letter was sent to him by the association on June 25, stating that “the time for sending in the assessment expired on June 23,” but that the time would be extended to July 1; and he was notified that in case of-failure to pay by July 1 his policy would become void. No payment was made by July 1, but on July 6 he sent to the association a money order for the amount of this assessment. On Juty 7 the association sent to him a letter which said: “We have to-day received your remittance for . . assessment on your certificate. . . This amount will be held unapplied until the enclosed health warrant has been properly executed and returned to this office, as the policy has lapsed for several days. Ivindly give this matter your prompt attention.” The health certificate was not executed. Notice of the other assessment was sent on June 13. On July 27, after the death of the insured, one Boyd sent to the association the amount of the two assessments; and on July 28 the association, in a letter addressed to the insured, acknowledged the receipt of the remittance, and stated that it would be held unapplied until an enclosed health warrant should be executed and returned. On August 7, 1906, the association returned to Boyd the amount of his remittance; and on March 7, 1907, it tendered to the widow of the insured the amount received from the insured for the first assessment. She refused the tender, and brought suit, as beneficiary, for the amount of the policy. The association set up, in defense, that the insurance had been forfeited by failure to pay assessments. . One of the conditions in the insurance certificate was as follows: “ Members holding benefit certificate shall be deemed in arrears and stand suspended if their dues and assessments remain unpaid for thirty days after notice has been mailed to their last address, as given to the Supreme Secretary.” This provision was also in a by-law of the association, which provided further: “If in arrears, the member shall stand suspended by operation of the law and forfeit all claims to benefits under the certificate. Should the said suspended member wish to be reinstated, he may pay up all dues and assessments due up to the time of apptying for reinstatement, and, upon presenting a receipt therefor and. a physician’s certificate showing him or her in good health, his application may be entertained by the council from which he was suspended, and, in their discretion, restored to membership.”
   Russell, J.

Even if, under the hy-laws of a benevolent fraternal association or assessment insurance society, no affirmative action is necessary in order to enforce the forfeiture of a policy of insurance, for nonpayment of dues or assessments, as the ease may be, the subsequent demand for the payment of such dues or assessments is a waiver of the forfeiture, and an acknowledgment that the delinquent policy-holder is still entitled to the benefits conferred by his contract with the association. Judgment affirmed.

Upon an agreed statement of facts, from which the foregoing appeared, the case was submitted to the judge, to be determined by him without a jury; and he rendered judgment for the plaintiff. The defendant excepted.

Edgar Latham, for plaintiff in error,

cited: Civil Code, §2135 et seq.; Georgia Masons v. Gibson, 52 Ga. 642 (3); Harrington v. Asso., 70 Ga. 340; Wright v. Supreme Commandery, 87 Ga. 426; Haupt v. Ins. Co., 110 Ga. 146; Hutson v. Ins. Co., 122 Ga. 847, 852; Bank of Commerce v. Ins. Co., 125 Ga. 552 (3), 557; 16 Am. & Eng. Enc. L. (1st ed.) 83; 21 Id. (2d ed.) 286, 288, 293, 294; Niblack, Ins. & Benefit Soc. (2d ed.) §§289, 291, 306; Illinois Masons v. Baldwin, 86 Ill. 479.

James Davison, Berner, Smith & Hastings, contra,

cited: Starnes v. Asso., 2 Ga. App. 237; Wright v. Supreme Commandery, 87 Ga. 426; 19 Am. & Eng. Enc. L. (2d ed.) 59 et seq.; 25 Cyc. 871 et seq.; Griesa v. Asso., 133 N. Y. 619 (30 N. E. 1146); affirming 15 N. Y. Supp. 71; Mee v. Asso., 69 Minn. 210 (72 N. W. 74); Murray v. Asso., 90 Cal. 402 (27 Pac. 309); Roswell v. Union, 13 Fed. 840; Modern Woodmen v. Jameson, 49 Kan. 677 (30 Pac. 460); Farmers Mut. Life Asso. v. Koontz, 30 N. E. (Ind. App.) 145; Moreland v. Ins. Co., 20 Ky. L. Rep. (46 S. W. 516); Beatty v. Asso., 75 Fed. 65; Stylow v. Ins. Co., 69 Wis. 224 (34 N. W. 151); Jackson v. Asso., 78 Wis. 463 (47 N. W. 733). The following cases were distinguished: Toeller v. Central Verein, 72 N. W. (Wis.) 630; Miles v. Asso., 108 Wis. 421 (84 N. W. 159); Schmidt v. Modern Woodmen, 54 N. W. (Wis.) 264; Leffingwell v. Grand Lodge, 86 Iowa, 273; Carlston v. Supreme Council, 115 Cal. 466 (35 L. R. A. 643).


text:
    794.
    OAK CITY COOPERAGE COMPANY v. KENNEDY STAVE AND COOPERAGE COMPANY.
    1. “The general rule is that when an offer to sell a quantity of goods at a specified price has been accepted by the person to whom it is made, both parties become bound by the terms of the offer, and neither is at liberty, after such acceptance, to withdraw.”
    2. The correspondence between the parties, set out in the opinion, makes a binding and enforceable contract, and breach thereof by one party, resulting in damage to the other, would give a cause of action.
    Complaint, from city court of Bainbridge — ■ Judge Harrell. October 14, 1907.
    Argued December 18, 1907.
    Decided May 18, 1908.
    'The Kennedy Stave and Cooperage Company brought suit against the Oak City Cooperage Company, on an account for a certain number of barrel staves which had been sold by the plaintiff to the defendant. The defendant’s answer, as amended, set up a correspondence between it and the plaintiff, which it claimed made a «mtract, under which the plaintiff was to supply to the defendant .-a number of barrel staves during the season of 1907 at a stipulated price; and alleged, that the plaintiff had broken the contract, in charging more than the stipulated price, and in failing to furnish, .the number of staves agreed upon, and that the defendant had thereby sustained damages, specifically set out, which it claimed ;to have the ’fight to recoup as against the claim of the plaintiff. The plaintiff demurred to the answer as amended, on the ground that the correspondence set out did not make a contract, — that the minds of the parties never met on the terms of the alleged contract, and that it is lacking in mutuality and is unilateral. The court sustained the demurrer and struck the answer, and the defendant excepts.

      The plaintiff in the court below was a manufacturer of barrel staves, and the Oak City Cooperage Company was a manufacturer of barrels, and the former had for some time furnished to the latter the staves used in the manufacture of barrels. On November 24, 1906, the plaintiff sent to the defendant the following telegram : “Are you depending on us to supply you next season ? Price will not be less than $33. Answer;” and on the same date sent the following letter: “We have just telegraphed you as follows: ‘Are you depending on us to supply you next season ? Price will not be less than $33. Answer/ Our reason for telegraphing you is that we have had more pressing inquiry for staves already than we can furnish next year, and it is our desire to take care of all of our oldtime customers first. Of course, if in the event you have decided to look elsewhere for your staves, if you will advise us quick, we can fill our book very easily.” On November 24, 1906, the defendant replied to the telegram and letter, as follows: “We are in receipt of your favor of the 24th, in which you confirm your telegram, and to which we replied as follows: ‘Yes, we are depending on you for our supply of staves at $33, if this is the best you can do/ We have not tried any one else for staves, as it has been our habit of buying our supply from you, and we feel that you will do the very best for us that you possibly can. This price seems a little bit high, but, as stated above, we have not tried the market, but feel assured that if the price should be less than $33 you would give us the benefit of the difference.” On November 26, 1906, the plaintiff wrote to the defendant: “Your telegram dated the 24th received last Saturday night, and reads, ‘Yes, we are depending on you for staves at $33, if that is the best you can do/ We thank you for this information and will be governed accordingly, but in the meantime would like for you to advise us as near as you can about how many staves you will require. The new price will go into effect December 1st. We doubt not that the price will go higher than $33. In fact we could get more than that for our staves to-day, and the advance should have taken effect 30 days ago, but to our regular customers we have been trying to hold it down as long as possible, although the price of rough materials and advance in wages did not justify us in doing so.” On November 30, 1906, the defendant, in reply to this letter, wrote as follows: ■“Replying to your letter of the 26th, we will need, during the coming year, in the neighborhood of 700,000 staves of an average qf 4 1/3. Please advise if we can count on your furnishing us this number of staves. We beg to call your attention to the fact that you have not shipped us any staves since the 9th, and will ask that you ship us a car of staves per week until further orders. Wo will be entirely out by the end of next week.” On December 3, 1906, replying to this letter, the plaintiff: wrote: “We have your favor of the 30th, and note that you will need for next season’s use in the neighborhod of 700,000 staves. We are not in a position to-day to state just how many we will be able to supply, but will advise you a littl-e later just what we will be able to do.” On December 8 the plaintiff again wrote: “Deferring to recent correspondence in regard to the probable number of staves that we will be able to furnish you next season, we beg to advise that we have sold two of our auxiliary stave plants that were located in the south part of this State, and 'this, of course, reduces our capacity, and we have decided that we had better say to you not to depend on us for over 400,000'staves for next year. We do this in order that you may be able to take care of yourself.” There was no direct reply to this letter, but on December 13 the defendant telegraphed and wrote to the plaintiff complaining of the delay in receiving-the staves. On December 31 the plaintiff wrote to the defendant, stating, that the plaintiff had had a meeting of its stockholders, and, on account of the ill health of its manager, and with a view of changing the location of the business, it had determined to offer its plant for sale; and that having come to this conclusion, and feeling sure that the sale would be effected in a short time, it advised the defendant to make arrangements with some other manufacturer to supply the defendant with staves for the next season’s delivery.

      Russell & Hawes, for plaintiff in error.

      R. Q. Hartsfield, contra.
   Hill, C. J.

(After stating the facts.)

The sole question for decision arises on the construction of the foregoing correspondence. Does this correspondence show a contract between the parties? The writer of this opinion is not without doubt as to the correct conclusion from the facts, but the doubt is not sufficient to justify a dissent from the judgment of his colleagues. To constitute a valid contract it is essential that both parties thereto fully assent to its terms. Civil Code of 1895, §§3631, 3637. Did the minds of the parties meet and-agree on the quantity of staves which one of the parties was to furnish to the other, and on the price to be paid? Both constituted essentials of the contract, and if there is doubt as to either, the contract would not be complete and enforceable. The general rule is well settled that where an offer to sell a quantity of goods at a specified price has been .accepted by a person to- whom it is made, both parties become bound by the terms of the offer, and neither is at liberty, after such acceptance, to withdraw. Black v. Maddox, 104 Ga. 161 (30 S. E. 723). To determine the question involved, we must look to the terms of the correspondence relied upon to show a contract.

The plaintiff in the court below, it appears, had been previously furnishing barrel staves to the defendant, who was a manufacturer of barrels, and, as the end of the season of 1906 approached, it wired and wrote to the defendant as follows :• “Are you depending on us to supply you next season? Price will not be less than $33. Answer.” And in the letter, it assigned, as a reason for the inquiry, that it was receiving pressing inquiries for staves, more than it could furnish during the ensuing year, and it was its desire 'to take care of its old customers first. On the same day that this telegram and this letter bear date, the -Cooperage Company replied : “Yes, we are depending on you for our supply of staves 'at $33, if this is the best you can do. We have not tried any, one else for staves, as it has been our habit of buying from you, and we feel that you will do the very best for us that you possibly can. This price seems a little bit high, but, as stated above, we have not tried the market, but feel assured that if the price should -be less than $33, you would give us the benefit of the difference.” On November 26, two days thereafter, the Stave Company wrote to the defendant the following letter: “Your telegram dated the 24th received last Saturday night, and reads, ‘Yes, we are depending on you for staves at $33, if that is the best you can do.’ We thank you for this information and will be governed accordingly, and in the meantime we would like for you to advise us as near as you can how many staves you will require. The new price will go into effect December 1st.”

In the view we take of this correspondence up to this point, the remainder of the correspondence between the parties becomes immaterial, for we have concluded that these four communications between the parties show a complete contract, both as to price and as to quantity. The first telegram and letter, and the reply thereto, left the question of price undetermined; for the Stave Company, though stating that the price would not be less than $33, did not unequivocally agree to furnish the staves at that price. It simply stated that the ¡Drice would not be less than $33. But the.Cooperage Company accepted the offer (or rather made a counter proposition to accept the offer) to furnish staves to supply the next sea- ' son’s demand at $33, if that was the best that'the Stave Company could do; and in reply to this acceptance of the staves (or counter proposition to take them) at that price, the Stave Company said, “We thank you for this information,” — that the Cooperage Company will accept the staves from the Stave Company at $33, —-“and will be governed accordinglyWe think that these words “will be governed accordingly,” taken in connection with the context, are sufficient to ex¡Dress an acceptance of the Cooperage Company’s counter proposition. The price was therefore agreed upon, and the quantity of staves to be furnished at this price fixed as being the number that would supply the Cooperage Company for the next season; and, in order that the Stave Company might arrange to furnish the necessaiy supply, the further inquiry was made by it of the Cooperage Company as to the number of staves it would require for the season, and it stated that the new price for the staves would go into effect December 1. Having, therefore, agreed to furnish at the stipulated price to the Cooperage Company the sup'ply of staves for the next season, the number of staves that would be required for the supply was immaterial as affecting the contract; and the information as to the number was only for the convenience of the Stave Company. We therefore conclude, that the correspondence between the parties makes a complete contract; that the Stave Company offered to furnish to the Cooperage Company for the next season such quantity as would be needed by the latter in the manufacture of barrels for that season, at the price of $33 per thousand, and that the Cooperage Company agreed to accept this offer and to pay for the staves at that price per thousand. A case very much in point is that of the McCaw Manufacturing Co. v. Felder, 115 Ga. 408 (41 S. E. 664).

If, therefore, there was a binding contract between the parties, and the defendant has, by reason of the breach of the contract by the plaintiff, suffered damage, such damage can be properly pleaded as a counter-claim, and the judgment of the court below in sustaining the demurrer to the plea and directing a verdict for the plaintiff, was erroneous, and must be set aside.

Judgment reversed.


text:
    931.
    WILSON v. CARTER et al.

    Where the payee of a promissory note, given for patent-right territory, procures it to he executed, by stipulating with the maker that he, the-payee, will fux-nish experienced men to canvass for the maker, and sell enough territory to pay off the note, a total breach of this stipulation is a good defense to a suit brought by a holder of the note who bought it with notice of the breach and the consequent failure of consideration.
    Complaint, from city court of Wrightsville — Judge Faircloth. December 21, 1907.
    Submitted February 18,
    Decided May 18, 1908.

      E. L. Stephens, for plaintiff.

      A. L. Hatcher, B. B. Blount, for defendants.
   Hill, C. J.

Wilson, claiming to be a bona fide holder for value before maturity, brought suit on three promissory notes, against the makers. The defendants admitted the execution of the notes,, but denied that Wilson was a bona fide holder, and further set up that,, the notes were without consideration. In elaboration of the plea it was averred, that the notes sued on were given by the defendants to the payees therein for territory of what the payees represented to be a patent bridle-bit, and in further consideration of an agreement by the payees to furnish to them experienced men. in the business, to canvass the territory for them until their commissions would amount to a sufficient sum to pay the notes; and that they were induced, by this representation and agreement whieh. constituted the consideration of the notes, to sign them; but that the representation that the bridle-bit was patented was untrue, and that the agreement to send experienced men to canvass the territority, so as to pay off the notes by commissions, was not performed by the payees, and that consequently there was a total failure of consideration for the notes, and that the plaintiff was put on notice of all these facts before the notes were transferred to him. A demurrer was filed to this plea, on the ground that it was an attempt to add to, alter, or vary the terms of a written contract, by contemporaneous parol agreement. This demurrer was overruled, and exception pendente lite was allowed. On the trial a verdict was found for the defendants, and the plaintiff filed a motion for a new trial, which was denied. There are several immaterial assignments of error, but the foregoing statement presents the only material question.

The defense relied upon was not an attempt to vary the terms •of the notes, but to show that they were without consideration. This can always be done when the suit is by the original payee. When the suit is brought by one claiming to be a bona fide holder for value before maturity, before a defendant can make a' defense of this character the plea and the proof must negative the allegation and the presumption of law that the plaintiff is a. bona fide holder. Harrell v. National Bank, 128 Ga. 504 (57 S. E. 869). In this case the evidence was sufficient to establish the fact that before the plaintiff had purchased the notes, the defendants put him on notice of all the facts tending to show that the consideration for the notes had utterly failed, as set out in the plea. He was, therefore, not a bona fide holder before maturity, and, if the notes were without consideration, was not entitled to recover.

It was further insisted that the defendants had not made out their defense of total failure of consideration, but that the evidence in their behalf established only a partial failure of consideration, this contention being based on the omission to show that the bridle-bit sold to the defendants was not in fact patented. The consideration of the notes was the purchase of the. territory for the patented bridle-bit, coupled with the agreement of the sellers of the patent rights, who were the payees in the notes, to furnish to the defendants experienced men to canvass the territory and sell enough rights therein to fully pay off the notes before maturity. The two parts •of the consideration were interdependent, and a total failure by the payees to comply with their agreement constituted a breach of the contract, and rendered worthless the consideration on which the notes were based. Underwood v. Bass, 1 Ga. App. 623 (57 S. E. 953); Crooker v. Hamilton, 3 Ga. App. 190 (59 S. E. 722); Toombs v. West, 94 Ga. 280 (21 S. E. 522).

The verdict is fully supported by the evidence, and the judgment refusing another trial is Affirmed.-


author: Hill, C. J. Powell, J.,

text:
    973.
    Fleming v. Satterfield.
    Complaint, from city court of Hartwell — Judge Hodges. December 30, 1907.
    Argued February 25,
    Decided May 18, 1908.
    The action was on a promissory note for $135 principal, dated January 2, 1907, and due 30 days after date, which recited that it was given for the purchase-money of “one blue horse-mule, 4 years old.” The defendant filed a plea as follows: On January 2, 1907, he traded to -the plaintiff a mule, worth $100, for the mule for which the note sued upon was given. He agreed to give the plaintiff $135 difference in the trade, which was to be paid ixC 30 days. The plaintiff guaranteed the mule traded to the defendant to be sound and all right in every particular. Before the trade was consummated the defendant discovered a knot on the right shoulder of the mule which the plaintiff traded to him, and he called the plaintiff’s attention to it. The plaintiff expressly guaranteed that the knot had recently come there, and that it would disappear in 30 days, and that it would never injure the work or appearance of the mule. The defendant, having confidence in the plaintiff and relying on this express warranty and the express warranty that the mule was sound otherwise, traded for the mule and gave to the plaintiff the note sued on. The said knot has not disappeared and is about the same size it was when the defendant traded for the mule; and it injured the mule in work and in appearance. The said mule was not a sound mule, as expressly warranted by the plaintiff. It was at the time and is now a “dung eater;” and it is deficient in its right hind leg. The defendant is unable to tell what is the matter with its hind leg, but in plowing or working to the wagon, after it is driven a while, it begins to throw its leg out against the trace-chains, and continues to do this, and, in so doing, it rubs off the hide and flesh from said leg and makes the leg sore. The mule is not a sound mule, and was not at the time the plaintiff traded it to the defendant. On account of the foregoing defective condition of the mule, $100 is a fair and reasonable price for it; and the defendant paid the plaintiff that amount at the time of the trade, in letting the plaintiff have a mule that was worth that amount. For the foregoing reasons, the consideration of the note sued upon has totally failed, and the defendant is not indebted to the plaintiff in any sum whatever. On the •trial the plaintiff moved that the court strike the plea, on the ground that the note sued on contained no warranty as to the soundness of the mule, and that the plea set forth facts which would add to the note an express warrant. The court sustained this motion, and then directed a verdict in favor of the plaintiff. The defendant excepted.
   Hill, C. J.

1. “Tlie rule is well settled that where the parties have reduced to writing what appears to be a complete and certain agreement, importing a legal obligation, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the whole of the agreement between the parties; and parol evidence of prior, contemporaneous, or subsequent conversations, representations, or statements will not be received for the purpose of adding to or varying the written instrument.” 2 Mechem on Sales, § 1254; Civil Code, § 5201.

2. Where a promissory note is given for the purchase-money of a mule, which is unambiguous and unconditional, and contains no warranty of the soundness of the mule, no express warranty can be added to the note by parol; and a plea which set up an express warranty, alleged to have been made by parol contemporaneously with the execution of such a note, was properly stricken on demurrer. Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711) ; Seitz v. Brewers’ Refrigerator Co., 141 U. S. 510 (12 Sup. Ct. 46, 35 L. ed. 837) ; 2 Mechem on Sales, § 1254.

Powell, J.,

dissents, because he does not think this a case in which the principle of tlje first headnote is applicable.

Judgment affirmed.

James H. Shelton, for plaintiff in error,

cited: Civil Code, §§3675, 5091; Aultman v. Mason, 83 Ga. 218; 2 Suth. Dam, 134. Bullard v. Brewer, 118 Ga. 918, distinguished.

A. A. M'cGurry, A. S. Shelton, contra,

cited, besides the authorities cited in the decision, Benj. Sales (17th ed., 1899), 666; 17 Cyc. 593-4, 611, 716-17.