author: Jenkins, P. J.

text:
    17759.
    LATIMER et al. v. GIFFORD.
    1. “Tlie fact that property is placed in the hands of a broker to sell does not prevent the owner from selling, unless otherwise agreed.” Civil Code (1910), § 3587.
    2. Since both counts of the petition in this case set up a special contract for tlie performance of services, with an express promise to pay at a price which in the one ease was certain, and which in the other case was capable of being made certain, each of the counts is based upon the alleged breach of an express, rather than an implied, agreement, to recover damages measured by the terms of the contract and not in quantum meruit. Jackson v. Buice, 132 Ga. 51, 54 (63 S. E. 823).
    3. The jury would have been authorized, but were not required, to find in favor of the plaintiff, under the averments in the first count of the petition.
    4. The evidence submitted by the plaintiff broker did not prove tlie case as laid in the second count of the petition, there being no evidence going to show the making of a contract of listment such as the second count sets forth.
    5. The issue which was involved under tlie first count of the petition, and which would have been involved under the second count if the plaintiff had established the listment as -alleged therein, was whether the plaintiff had procured and presented a customer according to the terms of tlie listment and prior to its expiration. “When the owner of land has placed it for sale with a broker, without setting a time limit, he is bound to exercise such good faith toward his agent as that he will not captiously withdraw the property for the purpose of defeating the agent’s commissions about to be earned. If a time limit is set, the agent must complete liis work within that limit; and if the parties set no limit, the law sets the limit of reasonable time. After the expiration of the ■ limit wliich the parties themselves have set, or the limit which the law sets in the absence of agreement on their part, the question of capriciousness in the refusal is not involved.” Shaw v. Chiles, 9 Ga. App. 460, 462 (71 S. E. 745). One of the defendants having testified that the agreement listing the property with the plaintiff for sale was revoked before the plaintiff procured and presented to the defendants the offer of the purchaser, under the rule just stated it was error for the judge to charge the .jury, in effect, that not only must the agent be given a reasonable time to effect a sale before the contract of listment can be withdrawn, but that even after the expiration of such a reasonable time, in order for the broker’s contract to be rescinded, there must be given reasonable notice in advance of the principal’s intention to revoke the authority to sell. The jury might have been willing to find that the plaintiff had been given a reasonable time to effect a sale by the date on which, the defendants contend, his contract was expressly rescinded, but they might have thought and found, under the charge of the court, that the previous two days’ notice alleged to have been given of such intention to rescind was not reasonable and ample notice such as was contemplated by the court’s instructions.

      Appeal and Error, 4 C. J. p. 650, n. 37.
    Brokers, 9 C. J. p. 564, n. 46; p. 565, n. 49; p. 606, n. 81, 83; p. 623, n. 64; p. 635, n. 41; p. 640, n. 76; p. 654, n. 41; p. 660, n. 68.

      6. The various other exceptions to the charge not being likely to arise upon another trial, it is not deemed necessary to deal with them here.
    Decided May 11, 1927.
    Rehearing denied July 14, 1927.
    Complaint; from Cobb superior court—Judge Knigbt presiding. October 23, 1926.

      George JD. Anderson, for plaintiffs in error.

      William Attaway, H. B. Moss, contra.
   Jenkins, P. J.

Gifford sued P. B. and W. D. Latimer for broker’s commissions, in two counts, alleging in the first count that the defendants agreed to pay him a lump sum of $500 if he would find a purchaser for described timber who would buy it at an agreed price of $8000, $3000 to be paid in cash and the balance to be settled in annual deferred payments. This count alleges that the plaintiff did actually procure and present a customer ready, able, and willing to buy‘the timber at the price and on the terms specified, but that the defendants thereupon declined to consummate the sale in accordance with the contract of listment. The second count alleges that defendants agreed to pay to the plaintiff the usual real-estate commission, alleged by the petition to be five per cent, of the purchase-price of the timber in the event the plaintiff procured a purchaser therefor at such price and on such terms as the defendants might accept; that the plaintiff procured and presented a purchaser who made an acceptable offer, and that the defendants pretended to decline to accept the offer, but did in fact secretly accept it, and thereafter consummated a sale directly with the plaintiff’s customer, in order that the plaintiff might be defrauded out of his commissions, which he alleges he thus became entitled to in the sum of $400. Neither count of the petition was demurred to. The jury found in favor of the plaintiff on the second count in the sum of $400. Exception is taken by the defendants to numerous alleged errors in the charge of the court.

Counsel on both sides assume in their briefs that the second count is a suit on a quantum meruit. From the evidence of the plaintiff it appears that a contract of listment such as is set forth in the first count was entered into with him by the defendants on or about June 1, 1922, and that about the middle of September he procured a customer for the timber at the price authorized by the contract of listment, to wit $8000, and on the terms set forth therein, and that when he submitted the customer’s offer the defendants declined to consummate the trade, stating that they no longer desired to dispose of the property at the price listed, inasmuch as the value of the timber had advanced. The plaintiff further showed that at a period of about two months subsequent to the time when such proposition was made to and declined by the defendants, the defendants effected a sale of the timber with the person thus procured by the plaintiff, at a price of $9000. The defendants admitted having made a contract with the plaintiff such as was set forth in the first count of the petition, but also contended that on Thursday preceding the Monday on which the plaintiff came to them with the offer they notified the plaintiff that unless a purchaser was found by the following Saturday, the contract listing the property for sale would be considered as terminated. This testimony for the defendants was denied by the plaintiffs. One of the defendants testified also that the customer produced by the plaintiff had already inspected the property with a view to purchasing the same prior to the time that the property had been listed with the plaintiff. One of the excerpts from the charge of the court excepted to is as follows: “I charge you that if you believe from the evidence that defendants employed the plaintiff to sell the property in question, that he had a right to continue his efforts to sell said property until notice was given him that the property had been withdrawn from the market, and that notice, in order to be effective, would have to be given him and not to his prospective 'customer. Notice to the customer would not be notice to him of such withdrawal, and this notice would have to be given him a reasonable time before his agency could be terminated; it could not be captiously or capriciously done, but must be done fairly.”

Judgment reversed.

Stephens and Bell, JJ., concur.

ON MOTION FOR REHEARING.

As will be seen by the syllabus and the statement of facts in the original decision, this was a suit brought in two counts by a real-estate broker for commissions. The first count set up a contract with the defendant owners of the property by which they agreed to pay commissions in the flat sum of $500 if the plaintiff broker would find a purchaser for the property involved at an agreed price of $8000, to be paid according to terms set forth by the petition. The second count alleges that the defendants agreed to pay the plaintiff the usual real-estate commission of five per cent, on whatever price the agent might procure for the property, acceptable to the defendants. The court held in the original syllabus that while these two counts set up different and distinct contracts of listment, both involved an express promise to pay a definite amount, one being definite by the terms of the agreement itself, and the other being definite inasmuch as it was capable of being made so merely by calculating the amount of five per cent, on whatever price the property should be sold for. In neither count do we think the action sounded in quantum meruit. Courts have nothing to do with measuring the quantity or value of services when the measure or value has been already expressly fixed by the contract sued on. It was for this reason that the statement was made that in our opinion neither the first nor the second count was grounded on quantum meruit.

The judgment was reversed for two reasons. First, because the verdict in favor of the plaintiff on the second count was not authorized by the evidence; and, secondly, on account of what we deemed an erroneous statement of the law, as set forth in the excerpt from the charge of the court embodied in the statement of facts. .The reason why we deemed this charge not only erroneous but possibly harmful, and therefore ground for reversal, is stated in the fifth division of the syllabus. The charge of the court was dealt with for the reason that since, under our decision, the case would have to be tried again, we felt it incumbent upon us to pass upon such complaints concerning the charge as might' conceivably come up on another hearing.

The main contention which able counsel for defendant in error-urges in his strenuous but courteous motion for rehearing is that this court departs from the exercise of its functions and powers when it undertakes to say what is and what is not authorized by the evidence. In our syllabus it was stated that the jury could have found in favor of the plaintiff on the first count of the petition; that the evidence authorized, but did not require, a finding in his favor on that count. It was stated that the verdict actually rendered in favor of the plaintiff as expressly based upon the second count was altogether unauthorized, in that there was no sort of testimony setting up the contract sued on in that count of the petition. On the contrary, the evidence for the plaintiff, in proving the contract as alleged in the first count, distinctly and plainly negatives the existence of any such agreement as is alleged by the second count. Had the jury found in plaintiff’s favor upon the disputed issues of the first count, this court would necessarily have affirmed the judgment, provided no errors of law had appeared such as are dealt with in the fifth division of the syllabus. The jury having found against the first count, although under the evidence it might have done otherwise, and having found in favor of the second count, which according to plaintiff’s own evidence it was wholly unauthorized to do, this court, of necessity, must hold that the verdict was contrary to law, as being without evidence to support it. It is true, as counsel for defendant in error strongly asserts, that nothing is better settled than that issues of fact are for the jury, that this court was established for the correction of errors of law, and that the verdict of a jury as approved by the trial judge is conclusive as to all issues of fact properly submitted to them. It is just as well settled, however, that in a case where an essential allegation of a petition is altogether without any sort of evidence to support it, but on the contrary is contradicted by all the evidence in the case, including that of the party in whose favor the verdict was rendered, the legality of the verdict does not involve an issue of fact, but such an unsupported verdict must be set aside as being contrary to law.

Rehearing denied.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    17600, 17601.
    RABON v. ATLANTIC COAST LINE RAILROAD COMPANY; and vice versa.

    In this action by a servant against his master to recover damages for personal injuries, the petition set forth a cause of action, and the evidence was sufficient to make a case for the jury. The court properly overruled the general demurrer to the petition, but erred in awarding a nonsuit.
    Master and Servant, 39 O. J. p. 929, n. 93; p. 1167, n. 72.
    Decided May 12, 1927.
    Rehearing denied July 13, 1927.
    Action for damages; from city court of Savannah—Judge Freeman. May 11, 1926.

      Oliver & Oliver, for plaintiff.

      Lawrence & Abrahams, F. R. Youngblood, for defendant.
   Bell, J.

This was a suit by a servant against his master for damages for personal injuries. In the main bill of exceptions the plaintiff assigns error on a judgment of nonsuit. In the cross-bill the defendant excepts to the overruling of its general demurrer to the petition.

Under the evidence the jury could have found the following facts: The plaintiff was ordered by the defendant to place a certain appliance, a-draft-gear,'in its proper position as part of the under-equipment of a freight-car. This appliance consisted of several parts, including two metal drums each of which contained a coil spring. These springs were set opposite each other, end toward end, separated by “follow plates.” The horizontal space into which the appliance was to be placed was closed on four sides, and was too small to receive the particular appliance in the usual manner. After inserting one of the drums, with its spring and the “follow plates,” the plaintiff undertook to drive the other drum and spring into position by striking the drum with an eight-pound hammer. At the first blow the springs and follow plates “sprang back” and fell from the enclosed space into which the appliance was being inserted, dropping on the plaintiff’s knee and causing the injuries sued for. The plaintiff was a carpenter and was not acquainted with the dangers incident to the installation of the appliance in question, and 'was acting under a direct and peremptory command of his superior workman, the- defendant’s alter ego, who told the plaintiff, “it was all right, it could go in,, to drive it in.” The petition alleged that the defendant was negligent in giving the plaintiff improper and negligent instructions as to the method of performing his work, in not furnishing to him material and equipment of the proper size, shape, and dimensions with wíúch to work, and in other particulars set forth, and that the plaintiff did not know and had not equal means with his master of knowing of the dangers which threatened him, could not have discovered the same by ordinary care, and was in the exercise of such care.

Under the decision in Hood v. Atlantic Steel Co., 29 Ga. App. 457 (115 S. E. 917), and authorities there cited, the petition set forth a cause of action, and the evidence was sufficient to make a case for the jury. The court properly overruled the demurrer, but erred in granting the nonsuit.

There is in the record some additional evidence bearing upon the question of assumption of risk, and also upon the question of whether the plaintiff should be barred because of his own negligence or want of care; but we can not agree that the evidence was sufficient to demand an adjudication against the plaintiff upon either of these issues. See further, in this connection: Massee & Felton Co. v. Ivey, 12 Ga. App. 583 (77 S. E. 1130); International Cotton Mills v. Webb, 22 Ga. App. 309 (96 S. E. 16); Winters v. Mallory Co., 23 Ga. App. 47 (97 S. E. 453); Buckeye Cotton Oil Co. v. Everett, 24 Ga. App. 739 (102 S. E. 167); Central of Ga. Ry. Co. v. Lindsey, 28 Ga. App. 198 (110 S. E. 636).

Judgment on the main bill of exceptions reversed; on the cross-bill affirmed.

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


text:
    17681.
    Weems et al. v. Kidd.
    Descent and Distribution, 18 C. J. p. 814, n. 74; p. 877, n. 20; p. 8SJ, n. 79; p. 900, n. 94, 5. Judgments, 34 C. J. p. 31, n. 7; p. 32, n. 11; p. 34, n. 41. Pleading, 31 Cyc. p. 766, n. 32.
    Decided April 16, 1927.
    Rehearing denied July 13, 1927.
    Certiorari; from Fulton superior court—Judge Howard. September 13, 1926.

      Noah J. Sione, for plaintiffs. II. A. Allen, for defendant.
   Bell, J.

1. Where on a sale of land the purchaser pays a part of the purchase-money in cash and receives from the seller a bond for title obligating the seller to convey the land on payment of the balance of the purchase-money, the purchaser has a beneficial or equitable estate in the land, and where the purchaser dies intestate the estate passes directly to his heirs at law. Stonecypher v. Coleman, 161 Ga. 403 (131 S. E. 75); Gholston v. Northeastern Banking Co., 158 Ga. 291, 293 (123 S. E. 111, 35 A. L. R. 23); Dunson v. Lewis, 156 Ca. 692, 700 (119 S. E. 846); Civil Code (1910), § 3929.

2. On subsequent breach of the bond for title by sale of the land to another, such heirs at law may treat the contract as rescinded and sue the obligor for the purchase-money paid (Hill v. Maffett, 3 Ga. App. 89, 59 S. E. 325), and in such a case it is not necessary that they proceed through an administrator. The petition under consideration in this case alleged, among other things, that the plaintiff’s intestate owed no debts at the time of his death, but failed to allege either that there was no administration on his estate or that the suit was consented to by the administrator. If the petition was defective for failure to allege either of these facts, the defect was amendable, especially in the municipal court of Atlanta, and, being amendable, was cured by the judgment in favor of the plaintiffs. Ga. L. 1925, p. 370, § 37(e); Yopp v. A. C. L. R. Co., 148 Ga. 539 (2) (97 S. E. 534); Stone v. Edwards, 32 Ga. App. 479, 483 (124 S. E. 54).

3. When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings. Civil Code (1910), § 5957. A judgment can not be arrested or set aside for any defect in the pleadings or record that is aided by verdict, or amendable as matter of form. Civil Code (1910), § 5960.

4. Applying the above-stated principles to the facts of this case, the judgment in favor of the plaintiffs was valid and binding, and the municipal court erred in sustaining the defendant’s motion in arrest of the same. The superior court erred in not sustaining the certiorari.

Judgment reversed.

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


author: Luke, J.

text:
    17853.
    Garner v. Information Buying Company.
    Decided May 11, 1927.
    Rehearing denied June 14, 1927.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. November 19, 1926.
    Application for certiorari was denied by the Supreme Court.

      E. F. Goodrum, for plaintiff in error.

      Luther TJ. Bloodworth, contra.
   Luke, J.

This case is controlled adversely to the contentions of the plaintiff in error by the law as laid down in Covington v. Rosenbusch, 148 Ca. 459 (97 S. E. 78); and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., conmir.


text:
    18001.
    Cumbie v. The State.
    Arrest, 5. O. J. p. 416, n. 90.
    Criminal Law, 16 C. J. p. 505, n. 23; p. 1045, n. 39.
    Decided May 11, 1927.
    Rehearing denied June 14, 1927.
    Pointing pistol; from city court of Carrollton—Judge Hood. February 11, 1927.
    Application for certiorari was made to the Supreme Court.

      Smith & Millican, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Luke, J.

1. While the evidence in this case shows that officers went to the defendant’s residence for the purpose of arresting him, the undisputed evidence shows .that they made no attempt to do so until he had committed' two crimes in their presence, to wit, using to them, without provocation, opprobrious words and abusive language, tending to cause a breach of the peace (Penal Code of 1910, § 387), and unlawfully pointing a pistol at one of the officers. Either of these crimes authorized the defendant’s arrest without a warrant, and the question of an illegal arrest is not involved. Especially is this so when - the defendant introduced no witnesses and in his statement to the jury made no contention that he pointed the pistol to prevent an illegal arrest. Such a contention not having been raised by the- evidence or the defendant’s statement, the court properly refused the several requests to charge on that subject.

2. The motion for a continuance was defective, in that it failed to show that the movant expected to have the absent witness present at the next term of court.

3. The verdict was amply authorized by the evidence.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


author: Jenkins, P. J. Stephens, J.,

text:
    17725.
    HOLLOMAN v. SOUTHLAND LOAN & INVESTMENT COMPANY.
    Certiorari, 11 C. J, p. 208, n. 6. Courts, 15 C, J. jp, 987, n. 61.
    Decided May 11, 1927.
    Rehearing denied July 14, 1927.
    Certiorari; from Fulton superior court—Judge Howard. September 17, 1926.
   Jenkins, P. J.

1. Under'tlxe ruling of this court in Crider v. Hughes, 36 Ga. App. 82 (135 S. E. 491), based upon the decision of the Supreme Court in Orr v. Southern Acceptance Co., 162 Ga. 400 (134 S. E. 80), an original judgment by one of the judges of the municipal court of Atlanta can not be reviewed by certiorari, hut an appeal from such a judgment must be taken under the provisions of the act approved July 31, 1925 (Ga. L. 1925, pp. 370, 386, § 2). Accordingly, the second count of the petition for certiorari in the instant case, to review the original judgment of the trial judge in the municipal court, was properly overruled.

2. Assuming, but not deciding, that an order of the trial judge of the municipal court of Atlanta, dismissing an appeal to the appellate division of that court, is not such a verdict, judgment, order, or ruling of the trial judge as that the writ of certiorari will not lie thereto unless such judgment is reviewed by the appellate division of the municipal court (Ga. L. 1925, pp. 370, 386, § 2; Orr v. Southern Acceptance Co., supra; Crider v. Hughes, supra), yet where it appears that the order of the trial judge was based upon the failure of the appellant to comply with a rule of the court, and the rule is not set out in the petition for certiorari, or otherwise made a part of the record, it will be presumed that the court was within the rule in dismissing the appeal, and that the rule was in conformity with and not inconsistent with the terms of the act. Beacham v. Kea, 118 Ga. 406 (45 S. E. 398). Moreover, in any event, since it appears from the petition for certiorari that the trial judge refused to approve the brief of evidence as tendered, and since under the facts of the particular case the appeal to the appellate division without an approved brief of the evidence would have been of no effect, the petitioner appears not to have been harmed by the dismissal, even if it was erroneous. It follows, therefore, that this court will not reverse the judgment of the superior court overruling the first count of the petition for certiorari, which seeks to review the alleged error of the trial judge in the municipal court in dismissing the appeal to the appellate division of that court.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Stephens, J.,

concurring specially. The act amending the municipal-court act, approved July 31, 1925 (Ga. L. 1925, pp. 370, 386, sec. 2), provides that “before the writ of certiorari shall lie to any verdict, judgment, order, or ruling of the municipal court of Atlanta, a motion for a new trial must be made before the judge trying the case, and his judgment thereon must be reviewed by the appellate division of said court in the manner herein provided, and the writ of certiorari shall lie only to the final judgment of the appellate division of said court.” As I construe this provision, no ruling whatsoever of any judge of the municipal court of Atlanta can be corrected by certiorari except by first passing through the appellate division of that court. Since the writ of certiorari in the present case is not directed to a ruling of the appellate division of that court, the judge of the superior court properly dismissed the certiorari.

Charles TF. Anderson, for plaintiff in error. Efurd & Phillips, contra.


author: Bloodwortii, J.

text:
    17973.
    Raines v. The State.
    Criminal Daw, 16 C. J. p. 567, n. 99, 1; p. 570, n. 90; p. 878, n. 35.
    Decided June 14, 1927.
   Bloodwortii, J.

1. Certain testimony which consisted of several sentences ' was objected to en bloc, and at least a portion of it was admissible. “Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted.” City of Atlanta v. Sciple, 19 Ga. App. 694 (3) (92 S. E. 28).

2. On the trial of a criminal case, relevant incriminatory evidence, taken from the person of the accused by one who had illegally arrested him, and discovered by a search of his person while he was under such illegal arrest, is admissible against him. The admission of such evidence does not contravene the constitutional provision that “No person shall be compelled to give testimony tending in any manner to criminate himself.” Nor does it violate the constitutional prohibition of unreasonable searches and seizures. Smith v. State, 17 Ga. App. 693 (88 S. E. 42). “There is no merit in those grounds of the motion for a new trial which complain of the admission of certain testimony of witnesses for the State, as to finding a flask of whisky in the defendant’s pocket when searching his person while he was under arrest. Even had the arrest been illegal and the search unauthorized, as contended, the evidence would have been admissible. Smith v. State, 144 Ga. 679 (87 S. E. 893); Smith v. State, 17 Ga. App. 693 (88 S. E. 42).” Stoker v. State, 23 Ga. App. 11 (97 S. E. 273). See also Sicks v. State, 35 Ga. App. 503 (133 S. E. 642). Under the rulings in the foregoing cases, there is no merit in the special ground of the motion for a new trial.

3. The evidence amply sustains the verdict.

Judgment affirmed.

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

Possessing liquor; from city court of Polk county—Judge 'Pi-son. January 17, 1927.

. Application for certiorari was denied by the Supreme Court.

Bunn & Trawiclc, for plaintiff in error.

J. A. Wright, solicitor, E. S. Ault, contra.


author: Bboyles, C. J.

text:
    17974.
    Whitehead v. The State.
    Intoxicating Liquors, 33 C. J. p. 701, n. 53; p. 801, n. 18 New.
    Decided June 14, 1927.
    Possessing liquor; from city court of Polk county—Judge Ti-son. January 17, 1927.

      Bunn & Trawiclc, for plaintiff in error.

      J. A. Wright, solicitor, E. 8. Ault, contra.
   Bboyles, C. J.

The verdict was demanded by the evidence, and none of the special grounds of the motion for a new trial require another hearing of the case.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    18054.
    Sims v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided June 14, 1927.
    Disturbing church service; from Barrow superior court—Judge Stark. February 26, 1927.

      James W. Arnold, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Luke, J.

The conviction of the offense of disturbing divine services had the approval of the trial judge, and there was evidence to support it. The special grounds of the motion for a new trial do not require a reversal.

Judgment affirmed.

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


text:
    18055.
    Britt v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided June 14, 1927.
    Larceny; from Gwinnett superior court—Judge Stark. March 11, 1927.

      0. A. Nix, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Bloodwortii, J.

The motion for a new trial contains the general grounds only. There is some evidence to support the verdict; and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618).

Judgment affirmed.

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


text:
    18066.
    OLIVER v. BOYNTON.
    It being shown by the record in this case that the defendant in error was prevented from collecting her judgment by proceedings not instituted by her or at her instance, and by circumstances over which she had no control, the grounds of the affidavit of illegality were without merit.
    Executions, 23 C. J. p. 553, n. 80.
    Judgments, 34 C. J. p. 656, n. 72.
    Decided June 14, 1927.
    Affidavit of illegality of execution; from city court of Cairo— Judge Rigsby. February 28, 1927.

      Jeff A. Pope, for plaintiff in error. M. L. Ledford, contra.
   Luke, J.

This case arises out of a bail-trover proceeding of Mrs. J. C. Boynton against E. F. Dollar. W. E. Oliver signed the bail-bond as security for Dollar, and plaintiff procured a judgment against Dollar as principal and Oliver as security. After this judgment was affirmed (Dollar v. Boynton, 17 Ga. App. 540, 87 S. E. 827), the fi. fa. issued thereon, March 17, 1916, was levied, June 8, 1925, upon the property of Oliver. On July 7, 1925, Oliver filed an affidavit of illegality, and this was traversed by the plaintiff. By agreement of counsel the case was- tried by the court upon an agreed statement of facts; and upon the hearing the court adjiidged that the affidavit of illegality be dismissed and the fi. fa. proceed. Oliver excepted.

In his affidavit of illegality Oliver set np that the said fi. fa., which had been levied on described land, “did issue illegally and is proceeding illegally for the following reasons, to wit:” (1) “Because the judgment in said case has become dormant, and the execution issuing thereon has therefore become null and void, and said judgment does not authorize the levying of said execution or the collection of same.” (2) “Because affiant was merely a surety, and his risk has been increased and he has been discharged from any liability as a surety in this case and become discharged from the judgment rendered in said case against him as the surety for E. E. Dollar, by the following facts and conduct of the plaintiff in fi. fa. since the rendition of the judgment on which the execution issued against him, to wit: After the rendition of the judgment against E. E. Dollar and affiant as his surety, the said E. E. Dollar entered an appeal in said ease to the Court of Appeals, and gave a supersedeas, bond in said ease, with R. W. Ponder as Iris surety, conditioned to pay the final judgment rendered in said case. Said ease was affirmed in the appellate court, and on the return of the remittitur to the city court of Cairo a judgment was entered on the 16th day of March, 1916, against the said E. E. Dollar and R. W. Ponder, his said surety. The said R. W. Ponder on said date, and until his death in 1921, was at all times solvent, and the amount of said judgment could have been realized out of the property belonging to the said Ponder. No execution was issued by the plaintiff on said judgmént, and the plaintiff failed and refused to issue an execution against the said Ponder, and allowed his estate to be set aside and delivered over to the heirs of the said Ponder, and by said conduct has failed to realize any part of said judgment out of the said' Ponder, and has allowed her judgment against the said Ponder to become dormant, and to lose her lien on the property of the said Ponder, thereby depriving affiant of any right or remedy under said judgment against the said Ponder, and thereby increasing his risk as a surety, and by said conduct has discharged affiant from any liability under the said judgment and execution; and for the foregoing reasons said execution is proceeding illegally and should be held to be null and void as to affiant.”

The grounds of this affidavit of illegality were traversed by Mrs. Boynton, for the following reasons: (1) “That said fi. fa. is not dormant, for the reason that a claim has been filed, and injunction served in said case, also an illegality, which legal delays prevent a dormancy of said fi. fa., plaintiff in fi. fa. being ready to show said facts by the records of the courts.” (2) “That the second ground of illegality is not good in law, because the same does not constitute an increase of risk as contemplated by law. It is only an accumulative protection for the plaintiff provided by statute, and could not have the effect of releasing the surety’ required to be given at the institution of bail-trover.” (3) “Plaintiff alleges that the said E. W. Ponder was not solvent, and that the setting apart of his estate, or any part thereof, to his widow and orphans as a twelve months support could in no event afford any remedy to the surety on the bond of E. E. Dollar in this case, and the judgment against E. E. Dollar and the surety, E. W. Ponder, would not be a prior lien to a twelve months support; and there are several liens unpaid which would be prior to this judgment -even if the contentions of the bondsman, W. E. Oliver, as to the law were correct.”

The agreed statement of facts follows: “It is agreed that a fi. fa. was issued on the 17th day of March, 1916, and recorded on the general execution docket, March 20, 1916, against E. E. Dollar doing business as J. J. Dollar Brothers & Oo., principal, and W. E. Oliver, bondsman, for the total sum of $386.70, including interest and costs, and that this execution was issued as a result of a suit brought by Mrs. C. J. Boynton against E. E. Dollar doing business as aforesaid, which was an action of trover for certain machinery and other property in the city court of Cairo, to which the said E. E. Dollar doing business as aforesaid filed his answer, and gave an eventual condemnation-money bond with W. E. Oliver as security thereon. That after said defense was filed for the said E. E. Dollar doing business as aforesaid, the case resulted in a verdict and judgment against E. E. Dollar doing business as aforesaid as principal, and 'W. E. Oliver as bondsman, to which judgment the said E. E. Dollar doing business as aforesaid filed a motion for a new trial in the city court of Cairo, which motion, after being heard, was overruled, and to the overruling of which the said E. E. Dollar doing business as aforesaid excepted, and by bill of exceptions carried the case to the Court of Appeals of Georgia, and that the said E. E. Dollar doing business as aforesaid gave a. supersedeas bond for the payment of the eventual condemnation-money bond, with R. W. Ponder as surety thereon. That said case was heard in the Court of Appeals and affirmed by that court. That thereafter, on the 16th day of March, 1916, judgment was had in the city court of Cairo upon the remittitur from the Court of Appeals against E. F. Dollar and bondsman, on which judgment an execution was issued against E. E. Dollar doing business as aforesaid, principal, and W. E. Oliver, bondsman, which execution was entered on the general execution docket in the office of the clerk of the superior court on the 20th day of March, 1916. That no execution was entered against E. W. Ponder, bondsman, and that no execution was entered of record on the general execution docket in the office of the clerk of the superior court of Grady County. That the eventual condemnation-money bond executed by E. F. Dollar and signed by W. E. Oliver as surety at the institution of the trover proceedings, and the supersedeas bond executed by E. F. Dollar with R. W. Ponder as surety in carrying the case to the Court of Appeals, are in the same case, and each and both provide for^the payment of the eventual condemnation-money at the conclusion of said case, and both given in the same case between the same parties plaintiff and defendant, and said liability being the sum of $300.00 principal, besides interest and costs, being the amount of the judgment in this case. It is further agreed that W. H. Hudson as deputy sheriff levied the fi. fa. issued as aforesaid, to wit, on March 17, 1916, on whole lot of land No. 284, in the 16th district of Grady County, containing 250 acres more or less, as the property of the defendant E. F. Dollar doing business as aforesaid. This levy was made on the 6th day of April, 1916, and on the 29th day of June, 1916, a claim was interposed by G. Dollar, C. L. Dollar, and Edmond Dollar, which claim was withdrawn by plaintiff on the 3d day of September, 1917. It is further agreed that an injunction was brought by E. F. Dollar against Mrs. C. J. Boynton and D. D. Perkins, sheriff of' Grady County, said injunction being brought in Mitchell County, the residence of Mrs. C. J. Boynton at that time, and was filed in the office of the clerk of the superior court of Mitchell County on the 7th day of September, 1920, and served on Mrs. C. J. Boynton on the 9th day of September, 1920, by C. D. Crow, sheriff, and service acknowledged on same date by D. D. Perkins, sheriff: of Grady County, restraining the proceeding of this execution to sell certain lands levied on theréunder as the prop.- ■ erty of E. E. Dollar, defendant, doing business as aforesaid, and a temporary injunction was granted against the proceeding under said fi. fa., which temporary injunction was dismissed at the April term of the superior court of Mitchell County, 1923, said injunction being in force until dismissed at plaintiff’s cost; said injunction proceeding setting up other matters not involved in this issue. It is further agreed that an injunction brought by E. E. Dollar against Mrs. C. J. Boynton in Grady superior court in May, 1916, as shown by the docket, appears to have been dismissed in 1921, according to docket entry in the office of the clerk of the superior court.”

The record in this case shows that the defendant in error was prevented from collecting her judgment by proceedings not instituted by her or at her instance, and by circumstances over which she had no control. This case is controlled in principle by Harris v. Woodard, 142 Ga. 297 (5) (82 S. E. 902). The grounds of illegality were without merit, and the court properly so held.

Judgment affirmed.

Broyles, O. J., and Bloodivorlh, J., concur.


text:
    18070.
    Stewart v. The State.
    Criminal Law, 17 C. J. p. 248, n. 3.
    Decided June 14, 1927.
    Bobbery; from Eulton superior court—Judge E. D. Thomas. February 26, 1927.

      Bentley & Bentley, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraw, contra.
   Luke, J.

Stewart was indicted and properly convicted of tlie offense of robbery. The special grounds of his motion for a new trial do not require a reversal of the judgment denying the -motion.

Judgment affirmed,.

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


author: Bloodwokth, J.

text:
    18077.
    Baird v. The State.
    Criminal Law, 17 C. J. p. 121, n. 74; p. 148, n. 73 New; p. 228, n. 16.
    Decided June 14, 1927.
    Manslaughter; from Banks superior court—Judge John S. Wood presiding. February 19, 1937.

      E. G. 8ba/)'lc, for plaintiff in error.

      Pemberton Qooley, solicitor-general, contra.
   Bloodwokth, J.

The date of the judge’s certificate to the bill of exceptions will be presumed to be the date on which it was tendered to him, where it does not affirmatively appear- from the bill of exceptions or from the certificate thereto that it was tendered on a different date. To give this court jurisdiction in a criminal case, the bill of exceptions must be tendered within twenty days from the rendition of the judgment complained of; and where the date on which it was tendered does not affirmatively appear, and the recital in the bill of exceptions that it was tendered “within the time provided by law” is qualified by the additional words, “and within thirty days of the entry of the judgment overruling said motion for new trial,” and the certificate of the judge is dated more than twenty days after the rendition of the judgment, the jurisdiction of this court to entertain the writ of error is not affirmatively shown. Wallace v. State, 16 Ga. App. 30 (84 S. E. 486); Roberts v. State, 18 Ga. App. 504 (89 S. E. 595); Tuggle v. State, 30 Ga. App. 670 (118 S. E. 778). Under this ruling the writ of error is Dismissed.

Broyles, O. J., and Luke, J., eoneur.


text:
    18078.
    Summerville v. The State.
    Criminal Law, 16 C. J. p. 1179, n. 67.
    Decided June 14, 1927.
    Indictment for violation of prohibition law; from Haralson superior court—Judge Edwards. March 35, 1937.
    Under an indictment charging sale and possession of intoxicating liquor, Jodie Summerville was found guilty jointly with Rich Clark and Homer Shedd; a joint motion for a new trial was overruled, and Summerville excepted.
    In an automobile, which Rich Clark said was his car and which he was driving, with his wife seated beside him, the sheriff, according to the testimony, found an uncovered jug of whisky about the center of the car and in front of the back seat, where Summer-ville and Shedd were sitting. The sheriff smelt whisky on Clark but not on the other defendants. Clark said he would like for the sheriff to take him right on to the 'chain-gang, that' he did not want to face Judge Edwards; and he asked the sheriff to shoot him; the other defendants said that they did not have anything to do with it. The defendants testified for each other and each made an unsworn statement in his own behalf. Clark testified: that the whisky belonged to Wright Parker and that Summerville and Shedd had no interest in it and nothing to do with it; that Wright Parker, Savage Parker, and another person got the jug of whisky and a can of whisky and put the jug and the can in the ear when it stopped on account of a puncture, on the return from a trip to Alabama; that he (Clark) took a drink, when it was offered to him, but told them to throw the whisky off the car, that it would get him in trouble; that later the can was taken out when these men left the car, and he thought the jug was taken out, until the sheriff stopped the car; that “Jodie got in the back seat after these other fellows got out.” Summerville stated that he saw the jug and the can brought into the car and heard them say it was whisky, and he was offered a drink, but did not take it; that he had never been caught but one time, when he had six gallons; and that he did not pay any attention about the jug being there after “these boys” got out of the car and he got in the back seat.
   Bboyles, C. J.

The evidence adduced upon the trial, tending to connect the accused with the offense charged, was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. It follows that the court erred in refusing to grant a new trial. Judgment reversed.

Luke and Bloodtvorlh, JJ., eoneur.

E. 8. Griffith, for plaintiff in error.

S. II7. Ragsdale, solicitor-general, contra.


text:
    18082.
    WILSON v. THE STATE.
    There was no error in charging- the jury on the law of voluntary manslaughter; and the evidence authorized the conviction of that crime.
    Homicide, 30 C. J. p. 317, n. G9; p. 40G, n.17.
    Decided June 14, 1927.
    Manslaughter; from Camden superior court—Judge Eeed. March 19, 1927.

      S. 0. Townsend, for plaintiff in error.

      W. B. Gibbs, solicitor-general, James B■ Thomas & Son, contra.
   Luke, J.

Alonzo Wilson was indicted for the olfense of murder, and was convicted of manslaughter. He excepted upon the usual general grounds, and “because the court erred in charging the law of voluntary manslaughter, and in charging the law of manslaughter at all, there being no evidence upon which to base such charge.” The evidence fully authorized the defendant’s conviction of manslaughter; and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    18083.
    BENNETT v. THE STATE.
    The court erred in overruling the demurrer to the accusation. To authorize a conviction under the “labor-contract act” of 1903 (Penal Code (1910), § 715), the evidence must show a contract of service distinct and definite as to all essential terms, such as the time when the contract is to commence and terminate, and the amount of wages to be paid.
    Master and Servant, 39 C. J. p. 138, n. 32.
    Decided June 14, 1927.
    Violating labor-contract law; from city court of Alma—Judge Tuten. March 5, 1927.

      S. F. Memory, for plaintiff in error.

      C. A. Williams, solicitor, contra.
   Bloodworth, J.

The accusation in this case, as amended, alleges “that the said Julius Bennett on or about the 1st day of December in the year 1926, in the county aforesaid, then and there unlawfully, having contracted with T. H. Bennett to perform for him certain services, necessary in the conduct of a turpentine farm, to wit, chip certain pine trees, dip gum, or any other kind of ■ labor usually performed in the conduct of a turpentine farm for the usual wages paid for said class of labor to wit, $1.50 per 1000 for chipping and from $2.00 to $2.50 per thousand when rented, with intent to procure from him money and other things of value, and not to perform the services so contracted for, did without good and sufficient cause fail and refuse either to perform said services or to return the money so advanced, to the loss and damage of said T. H. Bennett in the sum of $105; and, after having so contracted, did thereby procure from said T. H. Bennett the sum of $68.50; he, the said Julius Bennett, then and there agreeing to perform the above-described labor, beginning not later than the 8th day of January, 1927, and continuing said labor daily (Sundays excepted) until such tinie as the proceeds of his labor Avould amount to the sum so advanced, with intent then and there not to perform the services so contracted for, and did then and there, without good and sufficient cause, fail' and refuse either to perform said services or to return the money so advanced; said labor to be performed on the turpentine farm of the said T. H. Bennett, in said county, oar lot of land 184 iar the 5th district of said couoaty; to the loss and damage of said T. H. Bearnett in the sum of $68.50.” To the accusation a deanurrer was filed, in part as follows: “that the facts alleged in said aceusatioaa do aiot coaastitute a criminal offense under the laws of Georgia; that the labor contract as alleged in said accusation is too vagare, uncertain, aard indefinite to be the basis for a crimiaial prosecrrtioaa.” The deaanarrer was overruled, and exeeptioars pendeaate lite were filed.

In Sheffield v. State, 13 Ga. App. 78 (78 S. E. 828), the first paragraph of the decisioar is as follows: “To authorize a conviction uaider the ‘labor-coaatract act5 of 1903 (Penal Code, § 715), the evidence must show a coartract of service, distinct aard definite as to all essential terms, such as the time whear the contract is to commence and termiarate, the amount of wages to be paid, how the laborer is to work, whether by the dajr, week, month, or year, where he is to work, and the character of the work to be performed. Starling v. State, 5 Ga. App. 171 (62 S. E. 993); Mosely v. State, 2 Ga. App. 189 (58 S. E. 298); Glenn v. State, 123 Ga. 585 (51 S. E. 605); McCoy v. State, 124 Ga. 218 (52 S. E. 434); Presley v. State, 124 Ga. 446 (52 S. E. 750); Thorn v. State, ante, 10 (78 S. E. 853).” The coaatract iaa the instaaat case is aaot “distinct and definite as to all its esseaatial terms.” It is not distinct as to the time when the term of service was to- begiaa. The contract was made “oaa or about the 1st day of December,” 1926, and the accused was to begiaa work “aaot later than the 8th day of January, 1927.” The work could have commenced immediately after the contract was made. The contract is indefinite also as to the wages to he paid. For “chipping,” the wages were to range from $1.50 to $2.50 per thousand, and it is not stated what the pay was to be when the accused was dipping “gum,” or when he was engaged in “other kind of work usually performed in the conduct of a turpentine farm.” To say that he was to receive the “usual wages paid for said class of labor” is indefinite. 'As the time of the beginning of the contract is indefinite, and the wages to be paid is also indefinite, it is impossible to calculate when the “proceeds of his labor would amount to the sum” advanced him; and therefore it is not possible to estimate when the contract would terminate. The court erred in overruling the demurrer to the accusation, and the other proceedings were nugatory.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.


text:
    18089.
    Beaudry v. National Bank of Wilkes.
    Appeal and Error, 4 C. J. p. 852, n. 56.
    Trial, 38 Cyc. p. 1779, n. 75.
    Decided June 14, 1927.
    Complaint; from Fulton superior court—Judge Humphries. February 22, 1927.

      Alston, Alston, Foster & Moise, for plaintiff in error.

      Clement E. Sutton, Anderson, Rountree & Crenshaw, contra.
   Bloodworth, J.

1. When the excerpt from the charge, of which complaint is made in the motion -for a new trial, is considered in connection with the full instructions given to the jury, it shows no reason why a new trial should be granted.

■ 2. The evidence is ample to support the verdict.

Judgment affirmed.

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


author: Broyles, 0. J.

text:
    18090.
    LIFE INSURANCE CO. OF VIRGINIA v. BARTLETT.
    1. The demurrer on the ground that the petition showed that no beneficiary was named in the policies declared on, and that the plaintiff was neither executor nor administrator of tlie deceased insured, his wife, was not sustainable.
    2. Under previous rulings applied to the facts of the case, the insurer could not legally declare a forfeiture of the policies because of failure of the insured to pay 'one of the premiums within the specified time.

      Insurance, 32 C. J. p. 1348, n. 2.
    Life Insurance, 37 C. J. p. 530, n. 79; p. 607, n. 89.

      3. The court did not err in overruling the demurrer.
    Decided June 14, 1927.
    Complaint on life policy; from city court of Macon—Judge Hall. March 25, 1927.
    Application for certiorari was denied by the Supreme Court.

      Jones, Jones & Johnston, for plaintiff in error.

      Walter DeFore, James G. Fstes, contra.
   Broyles, 0. J.

Suit was brought against the Life Insurance Company of Virginia upon two policies of life insurance issued to the wife of the plaintiff. Under the ruling in Pate v. Life Insurance Company of Virginia, 19 Ga. App. 597 (91 S. E. 883), and the facts of the instant case, the petition was not subject to general demurrer because It showed that no beneficiary was named in the policies declared upon, and that the plaintiff was neither the executor nor the administrator of his deceased wife’s estate. The request of counsel for the plaintiff in error that the decision in the Pate case, supra, be reviewed and overruled is denied.

“Where the insurer, by his custom and course of dealing with the insured, in receiving, without objection, premiums or assessments past due, when he could have insisted upon a forfeiture, has induced the belief on the part of the insured that premiums or assessments can be paid within a reasonable time after they mature, the insurer can not claim a forfeiture because, at the time of the death of the insured, premiums or assessments were due by him which, had he lived, it is reasonable to suppose would have been accepted upon the same terms as those upon which other deferred payments had been received.” Bankers Health & Life Ins. Co. v. Givvins, 12 Ga. App. 378 (77 S. E. 203); Moman v. Bankers Health & Life Ins. Co., 35 Ga. App. 565 (2) (134 S. E. 341); Cotton States Life Ins. Co. v. Lester, 62 Ga. 247 (35 Am. R. 122). Under this ruling and the facts of the instant case, the insurer can not claim a forfeiture of the policies because of the failure of the insured to pay one of the premiums within the time specified in the policies. This is true although each of the policies contained the following stipulation: “It [the policy] shall be void if any premium shall not be paid according to the terms thereof; and it is agreed that this provision, which avoids the policy in case any premium shall be overdue, shall not be considered in any respect waived by any act of grace by the company in the acceptance of overdue premiums upon this or any other policy.”

According to the terms of the policies they became void upon the failure of the insured to pay any premium within four weeks from the date on which it was due. However, the petition showed that payments of many premiums on the policies, more than four weeks in arrears, had been accepted by the insurer in full satisfaction of such premiums, and that the only payment not so accepted was ■made “at the office of the district manager of the defendant company in Macon, Ga.,” on June 21, 1926, for the premium due on May 17, 1926, and that this payment was made one or two days before the death of the insured. The. petition is silent as to the state of health of the insured on,June 21, 1926.

Under the above-stated rulings the court did not err in overruling the demurrer to the amended petition.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    18092.
    GEORGIA MOTOR SALES INC. v. WADE.
    The court erred in allowing tlie petition, the verdict, the judgment, and the execution to be amended.

      (а) While section- 5686 of the Code of 1910 provides that all misnomers on the civil side of the court may “be amended and corrected instanter,” this section must be construed in connection with section 5681 of the same code, which provides that amendments may be made “at any stage of. the cause,” and, so construed, even a misnomer in a petition can not be amended after the case has been tried and a verdict and judgment rendered.
    (б) A verdict must harmonize with the petition, and the judgment and execution must follow the verdict.
    (c) “The name of a corporation is of its very essence; by that name it is empowered to sue, and by it it is liable to be sued; the name of it is, therefore, of its substance; it can only be known in all legal proceedings by that name.”
    Corporations, 14a C. J. p. 787, n. 77; p. 835, n. 86.
    Judgments, 33 C. J. p. 1169, n. 36.
    Pleading, 31 Cyc. p.- 469, n. 62, 66.
    Trial, 38 Cyc. p. 1S85, n. 92.
    Decided June 14, 1927.
    Amendment of judgment, etc.; from city court of Richmond county-—Judge Black. March 24, 1927.

      Cohen & Gray, for plaintiff in error.

      Fleming & Fleming, contra.
   Bloodworth, J.

The record in this case shows that on October 28, 1926, A. C. Wade filed, to the December term, 1926, of the city court of Richmond county, a petition against the Georgia Motors Company Inc., to recover on a claim arising out of the sale to him of an automobile which he alleged proved worthless for his use; that process was directed to the Georgia Motors Company Inc., and the petition and process were served “personally upon B. P. Mays, secretary and treasurer of said company;” that the case was marked “in default,” and when the case was called for trial at the February term, 1927, of said court.the plaintiff testified to the facts stated in his petition and the court directed a verdict in his favor. The verdict was in favor of the plaintiff, but it did not name the defendant. On February 24 a judgment was entered against “the defendant, the Georgia Motors Inc.” On February 25 an execution was issued which followed the verdict. On February 28 “The Georgia Motor Sales Inc.” filed a motion to set aside the judgment, and among other things alleged that the petition was brought against and the process issued in the name of “Georgia Motors Inc.,” and was served upon “Georgia Motor Sales Inc.” The motion further alleged that the “true name of the corporation upon which the petition and process was served is Georgia Motor Sales Inc.;” that “the Georgia Motor Sales Inc. did not acknowledge service on said petition, did not waive process, did not appear and plead or file any defense to the action brought against Georgia Motors Inc.” To the motion to set aside the judgment Wade filed a demurrer, and a sworn answer in which he alleged that “the true defendant was served, and was required under the law to make answer if it desired to contest the suit.” The attorneys for the defendant were allowed to withdraw its motion. Thereafter Wade filed a verified motion to amend the petition, the verdict, the judgment and the fi. fa. On March 14, 1927, Georgia Motor Sales Inc. filed objections to the motion to amend, and.on March 28, 1927, the judge passed an order sustaining the motion to amend. To this order Georgia Motor Sales Inc. excepted.

The plaintiff’s motion to amend contains the following prayers: “That he be allowed to correct the misnomer by designating the defendant as the c Georgia Motor Salese,Inc.,’ instead of the ' Gcorgia Motors Company Inc./ or the ‘Georgia Motors Inc/ And that the verdict be amended by inserting the words ‘the Georgia Motor gales Inc/ after the words ‘defendant’ therein; and that the judgment be amended by striking out the words the ‘Georgia Motor Inc./ and inserting in their stead the words ‘Georgia Motor Sales Inc/ And that the fi. fa. be likewise amended by designating the defendant as the ‘ Georgia Motor Sales Inc/ ” In the bill of exceptions we find that “the plaintiff offered to amend his petition, and sought to amend the verdict, the judgment, and the execution in said case; said amendment being allowed on March 24, 1927. The Georgia Motor Sales, Inc. objected to all of said amendments. On March 24 his honor entered the following order and judgment in the case: ‘After hearing an argument on all points involved, it is hereby adjudged and ordered that the amendments as prayed for in the foregoing petition are allowed/ To said order allowing the amendments the Georgia Mofor Sales Inc. then excepted, • and now excepts and assigns error thereon.” It is insisted by the defendant in error that as the petition contains the name the “Georgia Motors Company Inc.” as the defendant, and as the real name of the defendant is “Georgia Motor Sales Inc.,” the error was merely a misnomer and amendable instanter under the provisions of section 5686 of the Civil Code of 1910, which is as follows: “All misnomers, whether in the Christian name or surname, made in writs, petitions, bills, or other judicial proceedings on the civil side of the court, shall, on motion, be amended and corrected instanter, without working unnecessary delay to the party making the same.” In the brief of counsel for the defendant in error a number of cases are cited to support this contention, but in none of them was the petition amended after verdict. Section 5681 of the said Code is as follows: “All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by. The defendant after the first term can not set up new matter by way of amendment, except as provided in section 5640.” As these are cognate sections both referring to amendments, they must be construed in pari materia. Thus construed the provisions of § 5686, that all misnomers shall “on motion be amended and corrected instanter,” means that misnomers may be amended and corrected instanter, provided the amendment is offered “at any stage of the cause.” What is meant by “at any stage of the cause?” The first headnote in Real Estate Bank & Trust Co. v. Baldwin Locomotive Works, 145 Ga. 105 (88 S. E. 584), is as follows: “The sections of the Civil Code in regard to amendment are to be construed together; and the section which authorizes an amendment in equity in lieu of a supplemental bill, construed in connection with the section which provides that amendments may be made at any stage of the cause, does not contemplate the allowance of an amendment after final termination of the trial.” (Italics ours.)

In Southern Mutual Ins. Co. v. Turnley, 100 Ga. 297 (27 S. E. 975), the 7th headnote is as follows: “It is too late to amend a declaration after a judgment thereon has been rendered, and a motion for a new trial is pending.” In the opinion in that case Chief Justice Simmons said: “After verdict and judgment, and pending the motion for new trial, the court, over objection by the defendant, permitted the plaintiffs to amend their declaration by alleging that the defendant had waived certain stipulations of the policy. There must be some limit as to the time of amendment; and although our law is quite liberal on this subject, the code providing that amendments may be made ‘at any stage of the cause'' (Civil Code, § 5097), we do not think that this means that they may be made after the case has been tried and a judgment rendered therein which has not been set aside or vacated.” (Italics ours.) The case from which we have just quoted is cited with approval in City of Columbus v. Anglin, 120 Ga. 789 (3, 4, 5) (48 S. E. 318). In Hyer v. Holmes, 12 Ga. App. 848 (5) (79 S. E. 63), Chief Judge Russell said: “One of the amendments, to the allowance of which exception is taken, was presented after the conclusion of the evidence and argument. The amendment appears to be pertinent to the evidence and germane to the issue. It is well settled that an amendment which meets these requirements is permissible at any stage of the case prior to the rendition of the verdict.” (Italics ours.) In discussing what is now § 5681 of the Code of 1910, Mr. Justice Simmons, in Savannah, Fla. &c. Ry. Co. v. Watson, 86 Ga. 796 (13 S. E. 156), said: “Under this section, we think the court erred in refusing to allow the amendment, even at the late stage of the case then on trial. This is a very broad provision in the law for amendments. It declares that either of the parties may, at any stage of the case, as matter of right, amend their pleadings in all • respects, etc. While the facts of this case show gross negligence on. the part of the defendant in not sooner offering this amendment, yet under this section, he had a right to make it at any time before the jury returned their verdict.” (Italics ours.) In Cureton v. Cureton, 120 Ga. 565 (2) (48 S. E. 165), Mr. Justice Evans said: -“All parties ‘may, at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance.’ Civil Code, § 5097. This right to amend’ exists even after the evidence has been concluded and the jury have the case under consideration. Bryant v. Ilambriclc, 9 Ga. 133. Amendments may be allowed when the judgment of the court has been orally announced but before it has been entered. Lytle v. DeVaughn, 81 Ga. 226 [7 S. E. 281]; Freeman v. Brown, 115 Ga. 23 (1) [41 S. E. 385]. But it is loo late to amend the pleadings after verdict and judgment. So. Mutual Ins. Co. v. Turnley, 100 Ga. 296 (7) (supra).” (Italics ours.) In Estill v. Estill, 147 Ga. 358, 363 (94 S. E. 304), Mr. Justice Hill said: “An amendment to the pleadings can be made at any time before verdict.”

The foregoing decisions seem to settle the proposition that a proper amendment to the petition can be made at any time before judgment but not after, and that the court erred in allowing the petition to be amended after verdict in the instant case. In the absence of an amendment to the petition, can the verdict and judgment be amended so as to change the name of the defendant therein from “Georgia Motors Company Inc.” to “Georgia Motor Sales Inc. ?” We think not. The effect of such an amendment would be to destroy the conformity between the petition and process and the verdict and judgment. The petition names as the defendant “Georgia Motors Company Inc.,” the process was directed to the “Georgia Motors Company Inc.,” and service was perfected on • “the defendant, the Georgia Motors Co. Inc.” The letters “Inc.” show that the defendant was an incorporated concern. In Bradford v. Water Lot Co., 58 Ga. 282, Judge Jackson said: “The execution must follow the judgment; the judgment is against the Water Lot Co. of the City of Columbus; the execution is against the Water Lot Company; therefore the execution does not follow the judgment—Code 3636. Is this variance substantial? The name of a corporation is of its very essence; by that name it is empowered to sue, and by it it is liable to be sued; the name of it is, therefore, of its substance; it can only be known in all legal proceedings by that name; and if it be sued by a different name, the suit would be dismissed. If it be sued by its right name and judgment be entered up against it by its right name, but the execution is issued thereupon by a different name, the variance is material.” In Neal-Millard Co. v. Owens, 115 Ga. 959 (42 S. E. 266), the headnote is as follows: “Where a defendant in a pending suit is served with a process in which an entirely different person is named as defendant, such process is, as to the person served therewith, no process at all; and the name of the real defendant can not, by amendment at the trial term of the case, be substituted for the person named in the process. In such a case it is proper to sustain a timely motion made by the defendant to vacate the entry of service upon him made by the sheriff.” In discussing that case Mr. Justice Cobb said: “If in order to give the court jurisdiction of a proceeding brought against a defendant he must either have been served with a mandate from the court to appear and answer the plaintiff’s demand, or must have waived such mandate, it would seem to follow, as a necessary corollary from this, that the service upon a defendant of a process commanding some one else to appear in court would be no process at all as to the defendant, and he would have a right to utterly disregard the same. When after the service of such a process the sheriff enters a return that the defendant has been served with the petition and process, the fact that he may institute a proceeding to have the entry of service vacated, and by so doing show that he has had notice of the pendency of the suit, ought not to put him in any worse position than if there had been no return of service and he had treated the whole proceeding as a nullity so far as he was concerned. We do not think it is a purely technical or formal objection for a defendant to urge that he has not been served with process requiring him to appear in court; or that a process which commands a person other than the defendant to appear in court can be said to substantially conform to the law relating to process. If this is true, then the mere fact that the defendant may have had. notice of the pendency of the suit would not authorize the court to enter a judgment against him in a proceeding which had been instituted without any valid service upon him. . . The declaration having been served on the defendant named therein, together with a process commanding 'the defendant5 to appear in court at a specified time, he was bound to know that the process referred to the person named in the declaration. But where an entirely different name is stated in the process as defendant, the case is wholly different.55 See Bibb Land-Lumber Co. v. Lima Machine Works, 104 Ga. 118 (2) (30 S. E. 676, 31 S. E. 401).

In Thompson v. American Mortgage Co., 122 Ga. 39 (49 S. E. 751), the headnote is as follows: “Where a petition was filed and process issued against A, and the return of the sheriff shows that he served 'the defendant,5 and where, in entire conformity to the pleadings, judgment by default was entered against A, such judgment can not, on the ground that its rendition against A was the result of a clerical error, be so amended as to make it a valid judgment against B, there being apparent on the face of the record no evidence of any clerical error or inadvertence. This is so though B admits that he was the party who owed the debt sued for and should have been made the defendant in the suit, and informally consents that the judgment be so amended as to apply against him.55 In discussing that case Mr. Justice Candler said: “The petition was against Mary Coley, the process was against Mary Coley, and the return of the sheriff showed that 'the defendant5 was served. If the declaration and process had been against Caroline Coley, and the judgment against Mary, then the error would have been amendable if made in the proper manner. Or if the suit had been against Caroline, and the process and judgment against Mary, the error could have been cured by amendment. But the declaration, process, and judgment were -all against Mary Coley, and execution issued against Mary Coley. There could have been no clerical error or inadvertence on the part of any officer of court. Everything done, both by the clerk and the sheriff, was in conformity to the plaintiff’s pleadings, and the judgment rendered was also in conformity thereto. The subsequent order of the court did not seek to amend anything except the judgment rendered, and its effect was to destroy the conformity between the judgment and the pleadings and process. In other words, taking the record as now presented to us, we have a petition and process against Mary Coley, service on the defendant named, and a judgment against Caroline Coley. There is no question that a judgment may be amended, even after execution has issued thereon; but it is clear that the amendment must harmonize with the pleadings, and unless it does so it will be void.” In the instant case as the declaration, process, and judgment were all against the “Georgia. Motors Company Ine.” there could have been no clerical error or inadvertence on the part of any officer of the court. Everything done by both the clerk and the sheriff was in conformity to the plaintiff’s pleadings, and the judgment rendered was also in conformity therewith. In the ease we are now considering the verdict, judgment,' and execution can not be amended without first amending the petition, as the verdict must harmonize with the petition and the judgment and execution must follow the verdict; and under the principles announced in the foregoing cases, as the petition can not be amended after verdict and judgment, the court erred in allowing the verdict, the judgment and the execution to be amended.

Judgment reversed.

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


author: Broyles, 0- J.

text:
    18094.
    Bunkley v. The State.
    Assault and Battery, 5 O. J. p. 791, n. 24. Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84; p. 1149, n. 91, 92. Weapons, 40 Cyc. p. 861, n. 82.
    Decided June 14, 1927.
    Shooting at another; from Pike superior court—Judge Searcy. March 13, 1937.

      Bunn & Tremido, for plaintiff in error.

      E. M. Owen, solidtor-gen&ral, contra.
   Broyles, 0- J.

The accused was convicted of unlawfully shooting at another, and of carrying a pistol without a license (the two eases, by consent, having been tried together). The verdict in each ease was amply authorized by the evidence; and in the light of the facts of the ease and the entire charge of the court, there was no harmful error, either of commission or omission, in the excerpts from the charge as complained of in the motion for a new trial.

Judgment affirmed.

Luke amd Bloodworth, JJ., concur.


text:
    18095.
    FOWLER v. THE STATE.
    The evidence authorized the verdict, and no error requiring a new trial appears.
    Assault and Battery, 5 C. J. p. 788, n. 2.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Infants, 31 C. J. p. 997, n. 31.
    Decided June 14, 1927.
    Cruelty to child; from city court of Dublin—Judge Bidgood. March 8, 1927.
    IF. A. Dampier, for plaintiff in error.

      J. A. Merrill, solicitor, contra.
   Luke, J.

B. C. Fowler was convicted of cruelly, unreasonably, and maliciously beating Guy Boyles, an eleven year old child not his own. The evidence fully authorized the jury’s verdict, and no reversible error appears in any of the grounds contained in the amendment to the motion for a new trial. The court’s judgment overruling the motion for a new trial was eminently correct.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    18096.
    ATKINSON v. SHAW.
    Suit on five notes, brought jointly against their maker and against the indorser of two of them, was not open to demurrer for misjoinder of parties and of causes of action. *

    Actions, 1 C. J. p. 1101, n. 54, 56.
    Bills and Notes, 8 C. J. p. 853, n. 20.
    Decided June 14, 1927.
    Complaint; from Morgan superior court—Judge Park. March 17, 1927.

      M. G. Few, for plaintiff in error. F. B. Lambert, contra.
   Broyles, C. J.

Shaw held a series of five promissory notes signed by Mrs. Elizabeth Thompson. Two of the notes had been indorsed by Atkinson. Shaw brought a joint suit against Mrs. Thompson and Atkinson, alleging that the notes were past due and unpaid, that Mrs. Thompson was liable as maker on all five of the notes, and that Atkinson was liable as surety and guarantor on the two -notes which he had indorsed by signing his name on the backs thereof, all of the notes having been executed by Mrs. Thompson on the same date and given for the purchase-money of one tract of land. Atkinson demurred to the action, upon the ground that the petition showed a misjoinder of parties defendant, and a misjoinder of causes of action. The demurrer was overruled, and Atkinson excepted.

The court properly overruled the demurrer. Shaw?s claim against Mrs. Thompson on all five of the notes and his claim against Mrs. Thompson and Atkinson on two of the notes were not “distinct and separate claims” within the meaning of section 5515 of the Civil Code of 1910, which provides that “distinct and separate claims of or against different persons can not be joined in the same action.”

Judgment affirmed.

Lulce and Bloodworlh, JJ., concur.


author: Broyles, O. J.

text:
    18097.
    Farmers & Merchants Bank v. Cochran.
    Appeal and Error, 3 C. J. p. 333, n. 64, 70; p. 968, n. 44; 4 O. J. p. 604, n. 57.
    Decided June 14, 1927.
    Rehearing denied July 15, 1927.
    Complaint; from city court of Thomasville—Judge MacIntyre. March 29, 1927.

      G. E. Hay, for plaintiff in error. TUus & Delde, contra.
   Broyles, O. J.

1. “When a defendant against whom a verdict has been rendered makes a motion for a new .trial, he can not properly, while the motion is still pending and undisposed of, bring to this court for review any ruling, order, or decision made by the judge during the progress of the case.” Gross v. Wilds, 21 Ga. App. 620 (94 S. E. 812); Kelly & Jones Co. v. Moore, 125 Ga. 382 (54 S. E. 118); Dulce v. Story, 113 Ga. 112 (38 S. E. 337); Carreker v. Thornton, 1 Ga. App. 508 (57 S. E. 988).

2. “When in a given case it should have been obvious that the writ of error was premature, this court will refuse an application to allow the bill of exceptions to be withdrawn and filed in the court below as exceptions pendente lite.” United Glass Co. v. McConnell, 110 Ga. 616 (2) (36 S. E. 58); Harvey v. Bowles, 112 Ga. 421 (2) (37 S. E. 364); Burkhalter v. Roach, 145 Ga. 834 (4) (90 S. E. 52).

3. Under the rulings just stated and the facts of this case, the bill of exceptions must be dismissed, and the request of counsel for the plaintiff in error that he be allowed to withdraw the bill of exceptions, and that this court direct that the copy of the bill of exceptions of file in the lower court operate as exceptions pendente lite, must be denied.

Writ of error dismissed.

Bloodworth, J., concurs. Jjuke, J., disqualified.


text:
    18098.
    SANDERSVILLE RAILROAD CO. v. McDANIEL.
    1. The court did not err in overruling the demurrers to the petition as amended.
    2. A new trial is not required because the court allowed the plaintiff to testify that “the actual damage done to my car at the time it was struck by that train was $1079.”
    3. The errors complained of in grounds 2, 4, and 8 to 13 inclusive, of ’ the motion for a new trial, when considered in the light of the entire charge of the court and the facts of the case, show no cause for a new trial.
    4. There is nothing in grounds 3, 5, G, and 7 of the motion, which complain of the refusal by the court of certain requests to charge, that requires a new trial.
    5. There is ample evidence to support the verdict.
    Appeal and Error, 3 O. J. p. 981, n. 74; 4 O. J. p. 982, n. 44; p. 987, n. 3; p. 988, n. 5.
    Evidence, 22 C. J. p. 507, n. 33; p. 509, n. 61; p. 581, n. 98.
    New Trial, 29 Cyc. p. 782, n. 52, 54.
    Railroads, 33 Cyc. p. 1053, n. 84.
    Trial, 38 Cyc. p. 1598, n. 18; p. 1711, n. 19; p. 1778, n. 73; p. 1779, n. 75.
    Decided June 14, 1927.
    Damages; from city court of Sandersville—Judge Goodwin. March 16, 1927.

      J. J. Harris, for plaintiff in error. Evans & Evans, contra.
   Bloodworth, J.

W. T. McDaniel sued the Sandersville Bail-road Company for damages, alleging that without fault on his part, but because of the carelessness and negligence of the engineer of the defendant company, an automobile truck belonging to him was struck by one of the trains of the railroad company and injured and damaged in the sum of $1000. To the petition the defendant filed both general and special demurrers. After the petition was amended the demurrers were overruled, and the defendant filed exceptions pendente lite. The case proceeded to trial and resulted in a verdict for the plaintiff for $500. • The defendant made a motion for a new trial ;• and upon this being overruled, the case was brought here for review.

Headnotes 1 and 5 need no elaboration.

The court did not err in allowing the plaintiff to testify that “the actual damage done to my ear at the time it was struck by that train was $1079.” This evidence was not based exclusively upon information “from some unknown party in Atlanta,” but plaintiff told in detail of the damages to the truck, and in addition swore: “I saw my truck about an hour before it was struck by the train, and I saw it just after it was struck. From having seen it before and having seen it afterwards, in my opinion the damage done to my truck by that collision with the locomotive and cars was. $1079.” Besides, there was evidence from another witness, to which no objection was offered, that “the train did the truck at least $1000 damage.” The verdict was for $500 only. Bryant v. Sovereign Camp, 29 Ga. App. 360 (2-c) (115 S. E. 285), and cit.; Bullard v. Metropolitan Life Insurance Co., 31 Ga. App. 643 (6) (122 S. E. 75).

Grounds of the motion 2, 4, and 8 to 13 inclusive complain of alleged errors in the charge of the court. We have carefully examined all of these grounds, and fail to find in any of them anything that requires the grant of a new trial. Indeed we are impressed with the idea that the- charge as a whole fully, fairly, and accurately covered all the issues made in the case.

“Befusal to give requests in charge is not error when, so far as legal, they are fully covered by the general charge.” Atlanta Consolidated St. Ry. Co. v. Bagwell, 107 Ga. 157 (3) (33 S. E. 191). “The requests to charge, so far as legal and pertinent, were sufficiently covered by the general charge, which, as a whole, fully and fairly presented to the jury the law of the case.” Atlanta Ry. & Power Co. v. Walker, 112 Ga. 725 (2) (38 S. E. 107). “A correct statement of the law applicable to the case is not erroneous because the court failed in the same connection to give to the jury other and further instructions.” Killian v. State, 19 Ga. App. 750 (2) (92 S. E. 227). “Where a ground of a motion for a new trial complains of the failure of the judge to charge certain principles of law (which the ground alleges should have been charged under the evidence adduced upon the trial), but where no evidence whatsoever is set forth in the ground, the ground is not complete and understandable within itself, and this court will not search through the brief of evidence to discover whether there was any evidence requiring such instructions.” Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305). Under the principles announced in the foregoing rulings, the court did not err in refusing to give in charge the instructions requested in grounds 3, 5, 6, and 7.

Judgment affirmed.

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


text:
    18099.
    Taylor v. Murph.
    Partnership, 30 Oye. p. 413, n. 15; p. 475, n. 27.
    Decided June 14, 1927.
    Rehearing denied July 14, 1927.
    Breach of contract; from city court of Oglethorpe—Judge Greer. March 25, 1927.

    Application for certiorari was denied by the Supreme Court.

      John B.'Guerry, for plaintiff in error. Julo Fellon, contra.
   Broyles, C. J.

1. The court did not err in overruling the demurrer to the' petition.

2. This was a suit for damages for the alleged breach of a partnership contract for the buying and selling of certain Florida real estate. A verdict for the plaintiff was returned; the defendant’s motion for a new trial was denied, and to that judgment he excepted. The evidence established the fact that the plaintiff and the defendant had entered into a contract for the buying and selling of certain real estate in the State of Florida. The evidence, however, failed to show any breach of the contract by the defendant, or that he was legally or morally liable in any amount.to the plaintiff. On the contrary, the evidence as a whole, properly construed, showed that the defendant, in the transactions involved, acted in good faith towards the plaintiff, and that he was in no way responsible for the plaintiff’s loss. It follows that tlie verdict in favor of the plaintiff was unauthorized, and that the refusal to grant the defendant’s motion for a new trial was error.

Judgment reversed.

Luke and Bloodworlh, JJ., concur.


text:
    18100.
    CRANFORD v. WESTERN UNION TELEGRAPH CO.
    It not appearing that the compensatory damages sought in this case were proximately caused by the alleged tortious conduct of the defendant in failing to deliver a telegram, the demurrer to the petition, that such . damages were “too uncertain, remote, and speculative to be the basis of a recovery,” was properly sustained.
    ■Pleading, 31 Cyc. p. 78, n. 95; p. 81, n. 10.
    Telegraphs and Telephones, 37 Oye. p. 1725, n, 89; p. 1754, n. 31; p. 1755, n. 33; p. 1750, n. 3S, 39, 40.
    Decided June 14, 1927.
    Damages; from city court of Valdosta—0. W. Franklin, judge pro hac vice. April 12, 1927.

      Copeland & Dulces, for plaintiff.

      T. G. Connell, F. K. Wilcox, for defendant.
   Luke, J.

' J. G. Cranford sued the Western Union Telegraph Company for compensatory damages alleged to have been sustained by him because of the failure of said company to transmit and deliver a telegraphic message. The defendant demurred to the petition, because the damages sought were “too uncertain, remote, and speculative to be the basis of a recovery,” and the question for decision is whether or not the trial judge erred i'n sustaining this demurrer.

The gist of the case presented by the. petition follows: The plaintiff owned a mineral and oil lease on forty acres of land located in Union county, Arkansas. On or about December 19, 1925, J. E. Walker, a resident of said State, wrote on ordinary paper the following telegram: “J. G. Cranford, Valdosta, Ga. Came here yesterday. Dumas well about as previously advised. Several locations made, one in N. E. corner of N. E. y±, Section 8. -Can sell your 30 acres for $100.00 per acre cash, $150.00 per acre in oil. This is top of market, and in view particularly of short-lived lease, my advice is to sell. Wire me what to do. [Signed] J. E. Walker.” Walker delivered said message to II. M. Wyatt, to be forwarded by the defendant to the petitioner at Valdosta, Ga. On the 18th or 19th day of December, 1925, Wyatt copied said message on a Western Union Telegraph ■ blank and delivered it to defendant’s agent at El Dorado, Arkansas; and said agent, after being paid the charges on said telegram, accepted same for transmission. Said message was never delivered to the plaintiff or at his office or residence in Valdosta, though messages had often been delivered to him by defendant at both places, and though both could easily be found at all times. H. M. Wyatt was the person with whom said Walker was negotiating, on behalf of the petitioner, for the sale of thirty acres of said lease; and Wyatt was ready, willing, and able to buy said thirty acres of said lease, and to pay therefor $100 per acre in cash, and an additional $150 per acre in oil, provided said lands produced oil when a test was made; and had Wyatt been advised by Walker on behalf of petitioner, within four or five days after the date of said message, that petitioner would accept $100 per acre cash and $150 per acre in oil, Wyatt would have purchased thirty acres of said lease on said terms. Had petitioner received said message, he would have offered to sell on the terms and conditions therein stated, and would have caused his offer to be communicated to Wyatt by Walker, who was acting for the petitioner. The petitioner was not, at any time after said message should have been delivered, able to dispose of his said lease, or any portion thereof, for any sum whatever. Said lease, has expired, and petitioner was deprived of the opportunity to dispose of his said lease for $3000 in cash as the direct and proximate, result of the defendant’s negligence in failing to promptly transmit and deliver said message.

Construing the foregoing petition most strongly against the pleader, as we are bound to do under the attack of the demurrer, it fails to set out a cause of action. Walker’s telegram did not contain an offer of any one to purchase, but contained a mere statement on his part that he could sell upon certain terms, with an inquiry as to whether or not Cranford would do so. Certainly the receipt of this telegram by Cranford would have made no contract of sale. Again, if said telegram had been promptly delivered to Cranford and he had advised Walker that he would sell upon the terms indicated, there would yet have been no contract between Cranford and W^att until Walker advised Wyatt of Cranford’s offer and Wyatt accepted it: and it does not appear that Wyatt was legally bound to accept such offer. In short, the damages sought to be recovered were “too uncertain, remote, and speculative to be the basis of a recovery,” and it can not be said that any injury proximately resulted to the plaintiff from the alleged tortious act of the defendant. Wilson v. W. U. Tel. Co., 124 Ga. 131 (52 S. E. 153); Clay v. W. U. Tel. Co., 81 Ga. 285 (6 S. E. 813, 12 Am. St. E. 316); W. U. Tel. Co. v. Watson, 94 Ga. 202 (21 S. E. 457, 47 Am. S. E. 151); Richmond Hosiery Mills v. W. U. Tel. Co., 123 Ga. 216, 224 (51 S. E. 290); Bashinsky v. W. U. Tel. Co., 1 Ga. App. 761 (58 S. E. 91).

The case at bar is distinguished from W. U. Tel. Co. v. Fatman, 73 Ga. 285 (54 Am. E. 877), and Dodd Grocery Co. v. Postal Telegraph-Cable Co., 112 Ga. 685 (37 S. E. 981), strongly relied on by the plaintiff in error, in that in these cases “there was a failure to correctly transmit or promptly deliver a message which would have closed a contract, the direct result of which failure was to cause a loss.” See Richmond Hosiery Mills v. W. U. Tel. Co., supra.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodwoeth, J.

text:
    18101.
    Carter v. Tyson.
    New Trial, 29 Cyc. p. 942, n. 95.
    Decided June 14, 1927.
    Complaint; from Cook superior court—L. W. Branch, judge pro hae vice. March 24, 1927.

      Jef S. Story, for plaintiff in error. H. W. Nelson, contra.
   Bloodwoeth, J.

The evidence authorized the verdict in favor of the plaintiff; and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

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


text:
    18102.
    Hinkle v. Cooner.
    Negligence, 29 Cyc. p. 606, n. 82. Pleading, 31 Cyc. p. 407, n. 71; p. 414, n. 13; p. 416, n. 40.
    Decided June 14, 1927.
    Rehearing denied July 14, 1927.
    Action for damages; from city court of Macon—Judge Hall. March 25, 1927.
    Miss Cooner was struck on the head and injured by an iron spike or bolt that fell from behind Dr. Hinkle’s office sign in the City of Macon when a workman was trying to fasten the sign more securely to the wall. Before amendment her action for damages on account of the injury was against Dr. Hinkle and Dr. Bushin as a partnership and individually. The petition alleged, that the sign when originally installed was insecurely fastened to the wall by the defendants, in that it was fastened with only three spikes instead of four,—that a spike which should have been fastened to the wall at one end of the sign and below it was never fastened, but got behind the sign and was negligently left there, and in this condition remained a menace to persons walking on the sidewalk, where the plaintiff was walking when the spike fell upon her; that the defendants were negligent in not preventing this dangerous condition and in allowing the spike to remain where it was; that in response to a demand of the building inspector of the city, the defendants, through their servant and agent, D. Davis, were undertaking to fasten the sign securely to the wall, it being-loose at one end, when the spike fell on the plaintiff’s head. It was alleged that the defendants, through their agent, were negligent in the handling of the sign when this work was being done, and in not warning the plaintiff or placing a guard or barrier on the sidewalk, and that in the original installation of the sign the defendants were negligent in failing to comply with an ordinance of the city, which required that “All signs shall be properly stayed, bolted, and anchored through the walls with proper supports of metal.” By the amendment referred to in the decision the plaintiff struck from the petition the alleged partnership and Bushin, so that the suit proceeded against Hinkle individually; it was alleged that the sign was installed by Hinkle, that the offices where it was placed were then in Iris exclusive possession and control, that he placed Bushin in control of the offices as his agent and employee, that Bushin, pursuant to his authority as such agent and under the direction of the building inspector of the city, employed Davis to do the work mentioned above, and that Hinkle knew, or in the exercise of ordinary care should have known, that the sign was insecurely fastened and that the spike behind the sign was a source of danger to all persons using the sidewalk in front of the building. The amendment was allowed over the objection that it “materially changed the cause of action . . and should be disallowed as a matter of law;” and error was assigned on its allowance.
   Bboyles, C. J.

1. The- amendment to the petition did not materially change the cause of action set forth in the original petition, and was properly allowed.

2. The admission in evidence of the extract from an ordinance of the City of Macon, as set forth in the motion for a new trial, was not error. The evidence authorized the jury to find that the ordinance had been violated by the defendant, and that such violation contributed to the injuries sued for. The case of Fisher v. Georgia Northern Railway Co., 35 Ga. App. 733 (134 S. E. 827), cited by counsel for the plaintiff in error, is distinguishable by its particular facts from the instant case.

3. The excerpt from the charge of the court, complained of in the motion for a new trial, was not error for any reason assigned.

4. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke amd Bloodworth, JJ., concur.

The ordinance referred to in the petition was admitted in evidence over the defendant’s objection that it was irrelevant and incompetent, for the reason that there was no evidence that he violated the ordinance, and that there was no evidence from which it could legitimately be inferred that such violation caused or contributed to the injury complained of. For the same reason the defendant, in his motion for a new trial, complained of the charge of the court to the effect that if the defendant failed to observe the provisions of the ordinance, and such failure caused or contributed, without fault of the plaintiff, to the injuries in question, that in itself would be negligence for which the plaintiff would be entitled to recover,

Jones, Parle & Johnston, for plaintiff in error.

Walter DePore, James O. Pistes, Charles H. Garrett, contra.


author: Bloodwobtii, J.

text:
    18104.
    Snider v. The State.
    .Intoxicating Liquors, 33 'C. J. p. 761, n. 53.
    Decided June 14, 1927.
    Possessing intoxicating liquor; from city court of Sandersville— Judge Goodwin. March 15, 1927.
    1 J. C. Newsome, for plaintiff in error.

      George C. Evans, solicitor, contra.
   Bloodwobtii, J.

1. None of the grounds of the motion for a new trial show any reason why the ease should be tried again.

2. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., concwr.


text:
    18105.
    LENHARDT v. THE STATE.
    Where a cashier of an insolvent bank, having charge and control of the bank, and having knowledge of its insolvency, receives money on general deposit in the bank, and thereby loss or injury results to the person who made the deposit, the cashier is guilty of a felony, under the provisions of the banking act (Ga. L. 1919, p. 219, sec. 29).
    Banks and Banking, 7 O. J. p. 580, n. 28; p. 582, n. 44, 50. Indictments and Informations, 31 C. J. p. 708, n. 29.
    Decided June 14, 1927.
    Receiving deposit in insolvent bank; from Franklin superior court—Judge W. L. Hodges. March 30, 1927.
    The indictment in this case was drawn under the act of 1919 (Ga. L. 1919, p. 219, sec. 29; Park’s Code Supp. 1922, vol. 11, § 202(ce)). The material parts of that section (bearing upon this case) are as follows: “Receiving deposits after insolvency. When money is deposited on general deposit with any bank in this State, . . and such bank . . is insolvent at the time, and such insolvency is known to the officers having charge or control of such bank, . . and loss or injury shall result to such depositor, then . . such officers having charge or coütrol of such bank . . who, with the knowledge aforesaid, so received such deposits, shall be punished by imprisonment in the penitentiary for not less than one (1) year nor more than ten (10) years.” The indictment (formal parts omitted) was as follows: “charge and accuse L. F. Lenhardt . . with the offense of felony; for that the said accused L. F. Lenhardt did, on the 29th day of September, 1923, in the county aforesaid [Georgia, Franklin county]unlawfully and with force and arms, being then and there the cashier of the Bank of Franklin County, a bank chartered under the laws of the State of Georgia, and having charge and control of said bank, did accept and receive on general deposit in said bank from Ola Higgins the total sum of $1,679.30, of the value of $1,679.30, said bank at the time thereof being insolvent, which insolvency was then and there known to the said Lenhardt, cashier as aforesaid, and that by reason thereof loss and injury resulted to the said Ola Higgins.”
    The demurrer to the indictment (formal parts omitted) was as follows: (1) “Said indictment does not allege or charge against defendant the violation of any criminal statute of the State of Georgia.” (2) “Said indictment does not allege that the insolvency of the said The Bank of Franklin County was known to the officers having charge and control of said bank at the date of the acceptance of the deposit alleged in the indictment to have been received by this defendant at a time when said bank was insolvent; and an essential ingredient of the offense of receiving money into an insolvent bank on deposit is knowledge of the insolvent condition of such bank on the part of the officers having charge and control thereof.” (3) “Said indictment does not charge that defendant was an officer having charge and control of said bank; the allegation that defendant was cashier of said bank, and as such cashier had charge and control of the same at the time of the acceptance of the alleged deposit, being a mere conclusion of the pleader.” (4) “Said indictment does not allege the names of the officers having charge and control of said bank at the date of the alleged deposit at a time when said bank was insolvent, and does not allege that such officers had knowledge of the alleged insolvency.” (5) “Said indictment does not allege when said bank became insolvent so as to put defendant on notice to answer said indictment.” The court overruled the demurrer, and the defendant excepted.

      Linton S. Johnson, George L. Goode, James U. & Emmett Skelton, for plaintiff: in error.

      Pemberton Gooley, solicitor-general, contra.
   Broyles, C. J.

(After stating the foregoing facts.) The indictment was drawn in substantially the language of the statute, and was not subject to any ground of the demurrer interposed. The indictment charges that the accused was cashier of the bank, that he had charge and control of it, that he accepted a sum of money from a named person on general deposit in the bank when the bank was insolvent and when he (the accused) knew of such insolvency, and that loss and injury thereby resulted to the depositor. If the charges in the indictment are true, the defendant is guilty of the offense charged.

Judgment affirmed.

Luke and Bloodworth, JJ.; concur.