text:
    1006.
    MARIETTA FERTILIZER COMPANY v. BECKWITH.
    1. Where one party to a contract of sale knows that the other is laboring under a delusion or mistake with respect to a material fact affecting the value of the property, and .not only keeps silence with reference thereto, but, by artifice, adds color and credence to the delusion or mistake, he is guilty of fraud equivalent to an express misrepresentation.
    2. To constitute legal deceit and fraud by the use of language, the language need not affirm the existence or non-existence of something which is untrue; it is sufficient if the language of one party to a contract misleads the other party as to the existence of a fact, and thereby induces him to enter into the contract.
    3. If the holder of a promissory note has knowledge of any fact which affects the value of the note, he is under a legal obligation to disclose it to a proposed innocent purchaser of the note. When he fails to do so, the purchaser is entitled to have the contract of purchase rescinded.
    4. The rule of law that in commercial transactions the parties trade “at arm’s length” is venerable with age, but not fragrant with commercial honesty. It applies only where the struggle for advantage is in the open, with no masked batteries of fraud, and with no deceitful conduct by which one antagonist is disarmed.
    5. There is evidence to support the verdict; the trial judge approves it, and so do we.
    Appeal, from Newton superior court — Judge Roan. January 18, 1908.
    Argued March 13,
    Decided April 20, 1908.

      B. T. Frey, Rodgers & Knox, for plaintiff.

      L. L. Middlebroolc, for defendant.
   Hill, C. J.

The Marietta Fertilizer Company sued W. B. Beck-with in the county court of Newton county, on a check given by him and payable to the order of the plaintiff. A judgment for the plaintiff was entered in the county court, and an appeal was entered to the superior court. The defense made was the alleged fraudulent conduct of the agent of the plaintiff, relating to the consideration for the check; and on the trial the jury found a verdict in favor of the defendant. The plaintiff’s motion for a new trial was overruled- The material facts of the transaction may be briefly stated as follows: The check in question was given by the defendant to one Frey, agent of the plaintiff, for a promissory note made by one W. F. McCullough, payable to the order of the plaintiff. Frey was endeavoring to collect this note and others as agent of the plaintiff. On the day he sold the note to the defendant he had previously sold him several other notes for small amounts. According to the testimony of the 'defendant, about an hour after he had bought the other notes, Frey again approached him; it was about the time the train was due on which Frey was to go as a passenger, and he (Frey) was in a hurry, “and he told me that he had another note that he wanted to sell me, on Mr. McCullough right down the road two or three miles. He said that he had not intended to sell this note when he sold the other notes, but 'he had decided to sell it. He told me it was on Mr. McCullough two or three miles down the road. He left the impression on me that it was Mr. Burrell McCullough. I told him that Mr. Burrell McCullough was a man that paid his obligations promptly, as much so as any man I knew, and I did not see why he did not pay the note, as the note was then past due. He said Mr. McCullough said he came up to pay off the note, two or three times last year, and could not find him. He said that Mr. McCullough had a lot of cotton there at the gin-house, at the market, but he did not care to sell it right then, but he would arrange to pay off the note in a few days. He said he would sell me this note at the same discount as he sold the others, that he was in a hurry to catch the train. . . I told him that if Burrell McCullough gave them that note, there was no trouble about it, and I would take it. He said He acknowledges this, does not deny it; if there is any trouble about it, it is my note.’ I gave him a check for the note.” “I had the note in my hand before paying it, but did not notice it closely, as I did not have on my glasses. I noticed it after-wards, and the signature was pretty dimly written. Mr. Frey made the impression on my mind that it was Mr. Burrell McCullough’s note. If I had known that it was on W. F. McCullough, I would not have bought it. The next day I saw Mr. Burrell McCullough and called his attention to the note, and he told me that it was not his, but his son’s note; and I stopped payment on the cheek at the bank. I know both of the McCulloughs, and can tell the letter B from the letter W. Frey told me it was Mr. McCullough down the road two or three miles. He did not tell me that it was Burrell McCullough, nor did he tell me it was on W. F. McCullough. He told me it was on Mr. McCullough down the road. Burrell McCullough lived down the road two or three miles from Mansfield, and W. F. McCullough lived about six miles in a different direction. Frey came to me in a hurry, right at train time, to sell the note to me, and was in a hurry to get off on the train. I told Frey if Burrell McCullough acknowledged the note, I would take it. I called Burrell McCullough’s name. I was very busy and Frey was in a hurry. When I told him that Burrell McCullough was a man noted for promptness in meeting his obligations and I could not see why he had not paid the note before this, he replied that he came last fall two or three times and wanted to pay it, but could not find him. Burrell McCullough had a gin-house. W. F. McCullough did not have a gin-house.”

Frey, the agent for the plaintiff, testified, that in the afternoon, before selling the note to the defendant, he went to see Burrell McCullough, and Burrell McCullough told him that the note was not his, but was made by his son W. F. McCullough; that he tried to sell the note to Burrell McCullough, and that he then went to see W. F. McCullough about paying the note, and that W. F. McCullough told him that he had cotton and in a few days would get it ginned and pay the note, and that there was a lot of cotton lying around the gin. Frey denied that the defendant mentioned the name of Burrell McCullough to him or stated that Burrell McCullough was a good man and would pay his debts; and he denied .any fraudulent conduct on his part inducing the defendant to purchase the note, but-claimed that the transaction was entirely legal and free from any fraud, and that the defendant had full opportunity of examining the note before he bought it. It was proved by .another witness in behalf of the defendant that he had gone with Mr. Frey the afternoon before, to the house of W. F. McCullough, and that W. F. McCullough said that he would pay the note when he was able. This witness saw no cotton at W. F. McCullough’s lying around or in the field. And it was also proved that Frey had been informed by an attorney, to whom he had delivered the note on W. F. McCullough for collection, that he could not collect it.

It will thus be seen that the only -issue in the case is the one of fraud; and in this connection it may be said that this issue was fully, fairly, and accurately presented to the jury in the charge of the court, and that the assignment of error upon an excerpt from the charge on this subject, as not authorized by the facts, is entirely without any merit, as this excerpt contained statutory and well-settled definitions of both actual and constructive fraud, and was entirely pertinent to the issue made by the evidence. The only, question in the record for this court to determine is, whether the verdict in favor of the defendant is supported by any evidence. This case is a close one, under the facts and well-established principles of law. We can not say that the conclusion of the jury is unsupported; and any doubt which we may have we shall therefore solve in favor of the verdict; and we are more especially led to do this because the verdict seems to be in line with the strictest adherence to fair and honest dealing, in business transactions. We are aware that neither courts of law nor courts of equity maintain as high a standard of business and commercial integrity and honesty as is demanded by moral obligation. The doctrine o| the Homan law, strongly approved by that great orator and lawyer, Cicero, that it is the duty of every man to disclose all facts to another with whom he is dealing which are material to his interest (Cic. de Offic: Lib. 3, ch. 13), is not generally enforced in courts of justice, either in England or America. 1 Story’s Eq. Jur. (13th ed.) §205. While principles of justice and sound morals may require the most scrupulous good faith, candor, and truth, in all dealings whatsoever, the courts of law and equity take a more practical and commercial view of the question, and assign limits to the exercise of their jurisdiction, short of these principles. The well-established rule of the common law, that men who trade trade at arm’s length, is applicable to business transactions, in the absence of any special fiduciary relations between the parties. This 'rule is not based on a high standard of business morality, but appears to be the outgrowth of practical business exigency. It is impossible to lay down any general rule which would govern in all cases, .and the question of fraud must be determined by the particular facts of each case. Mr. Justice Atkinson, in the case of Wood v. Cincinnati Safe Co., 96 Ga. 123 (22 S. E. 909), states with terseness and perspicuity the general principles on the subject: “Fraud is exceedingly subtle 'in its nature. There are infinite means by which it can be accomplished. In its conception human ingenuity is limitless in its capabilities. It is therefore impossible to state any general rule by which particular frauds are to be identified. Classification is almost, if not quite, impossible. It may be perpetrated by willful misrepresentations made by one person to another, with a design to mislead and which do actually mislead. It may be perpetrated by signs and tricks, and even silence may in some instances amount to fraud.” Pothier, in his work on Obligations, .says, that the term “fraud” fs applied to every artifice made use of by one person for the purpose of deceiving another. 1 Poth. Oblig. 19. And Chancellor Kent, in his great work, has laid it down as a general rule that, “each party is bound in every case to -communicate to the other his knowledge of material facts; provided, he knows the other to be ignorant of them.” 2 Kent’s Com. 482. These general principles relating to the subject of fraud are to be construed, of course, in connection with the general rule, equally well established, that the law does not afford relief to one who suffers by not using the ordinary means of information, whether his neglect is due to indifference or to credulity. When the means of knowledge are at hand and equally available to both parties, •and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations. Hart v. Waldo, 117 Ga. 598 (43 S. E. 998) ; Branan v. Warfield, 3 Ga. App. 586 (60 S. E. 325); Andrus v. St. Louis Smelting Co., 130 U. S. 643 (9 Sup. Ct. 645, L. ed. 1054); Slaughter’s Adm’r v. Gerson, 80 U. S. 379 (20 L. ed. 627).

As to the transfer or sale of promissory notes, the Civil Code, §3685, declares, that “Every transferor of a negotiable instrument, whether by indorsement or delivery, warrants (unless otherwise agreed by the parties) that he is the lawful holder and has a right to sell, that the instrument is genuine, and that he has no knowledge of any fact which proves the instrument to be worthless, either by insolvency of the maker, payment, or otherwise.” And in the case of Gordon v. Irvine, 105 Ga. 144 (31 S. E. 151), the Supreme Court says, that “The holder of a promissory note who has knowledge of the insolvency of its maker is under a legal and moral obligation to impart such knowledge to an innocent purchaser before negotiating it. When he fails to do so, and the purchaser is thereby injured, an action of deceit will lie by the latter against the former.” Applying these principles of law to the facts of this case as shown by the defendant, was there evidence sufficient for the jury to find in favor of the defendant on his plea of fraud? Did the agent of the plaintiff, at the time he sold the note to the defendant, know any fact, in reference to the note, that he was under a legal obligation to disclose to the defendant? He knew that the note was not made by Burrell McCullough. He knew that it was made by W. F. McCullough, and that the amount due could not be made out of him. He also knew that the defendant was under the impression that the note was made by Burrell McCullough, who promptly paid his debts. Knowing these facts, was it not his duty in good faith to have informed the defendant of his error? The language of the great English chancellor, Lord Ellen-borough, applies here: “He saw that the defendant had fallen into a delusion in supposing the picture to be Sir Felix Agars, and yet he did not remove it. Not removing that delusion might lie taken as equivalent to an express misrepresentation.” Hill v. Gray, 1 Starkie, 434. Where one of the parties to a contract is mistaken in a material matter pertaining thereto, and the other party, knowing of such mistake, is silent in regard thereto, such silence is a .fraud upon the mistaken party. Wyche v. Greene, 26 Ga. 415; Shelton v. Ellis, 70 Ga. 297. To meet these facts and inferences, the plaintiff says that the defendant had the note in his possession, looking at it, and had full opportunity of seeing that as a matter of fact it was not signed by W. B. McCullough, but by W. F. McCullough. But the plaintiff’s agent who sold the note saw that the defendant had not discovered this fact. Did the plaintiff’s agent, instead of removing any apparent delusion of the defendant as to the real maker of the note, endeavor in any manner, by any artifice, to keep or strengthen him in such delusion or mistake ? The defendant says, on this subject, that the agent told him it was a note of Mr. McCullough, down the road two or three miles. The defendant further says, that he expressed surprise that Burrell McCullough (calling his first name) had not paid his note, as he was as good a man as any one he Anew, and that he told him that if Burrell McCullough gave the plaintiff that note, there was no trouble about it, and that he would take it; and that to this the agent replied, “He acknowledges it, does not deny it. If there is any trouble about it, it is my note.” If this testimony is true (and the jury believed it), can it be said that there was no artifice on the part of the agent of the plaintiff, to deceive the defendant as to the truth of the ease and to keep him under the mistake that the note was the note of Burrell McCullough? Section 3534 of the Civil Code provides, on the subject of fraud, that, “Where one party 'knows that the other is laboring under a delusion with respect to the property sold or the condition of the other party, and yet keeps silence,” such silence amounts to perpetration' of actual fraud. Now fraud may consist of deceit by language or act, or by both; and to constitute deceit and fraud by the use of language it is not essential that the language should distinctly affirm the existence or non-existence of something that is'untrue, but “it is sufficient that the language of one party is such as to convey to the other party to a'contract the existence of a fact, of state of facts, which induced the party to- enter into the contract, but which were untrue.” 3 Fields’ Lawyers’ Briefs, 569, and cases there cited.

Did not the language of the agent induce the defendant to believe that Burrell McCullough had made this note? Did hot he almost expressly declare, according to the testimony of the defendant, that it was the note of Burrell McCullough? For in reply to the statement of the defendant that if Burrell McCullough made the note, there was no trouble about it and he would take it, the agent said, “He acknowledges it.” Besides, in stating that' the Mr. McCullough who made the note lived “two or three miles down the road,” when he knew (because he had been to Burrell McCullough’s house the afternoon before) that it was Burrell McCullough who lived there, and also knew that W. F. McCullough did not live two or three miles down the road, but “six miles in a different direction” (for he had also been to W. F. McCullough’s house the afternoon before), was he not inferentially misstating the facts, for the purpose of keeping the defendant in ignorance of the truth ? ■ Did not this language of the agent of the plaintiff tend to divert the attention of the. defendant from the critical examination of the signature of the note; and was it not obviously intended to prevent such examination, and to allay any suspicion which the defendant had as to who was the maker of the note? These parties were dealing at arm’s length, it is true, and if the defendant failed to discover whose name was signed to the note, or made a mistake wholly by his own negligence, unmixed with any deceitful artifice or conduct contributing to such failure or mistake by the agent of the plaintiff, it has been held that he would have no right to complain of the result of his own negligence. But our code says that the transferor of a negotiable instrument- warrants to the purchaser that he has no knowledge of any fact which proves the instrument to be worthless, either by insolvency of the maker, payment, or otherwise (§3685, supra). And the Supreme Court, in Gordon v. Irvine, supra, declares, that the holder of a promissory note is under a legal and moral obligation to impart such information to an innocent purchaser before negotiating it; and that if he fails fo do so, and the purchaser is thereby injured, an action of deceit will lie by the latter against the former.

On this question of the negligence of the defendant in not discovering the real signature to the note, the question of the emergency created by the agent of the plaintiff, in his hurry to take the train, may also be considered, according to several decisions of the Supreme Court. Boynton v. McDaniel, 97 Ga. 400 (23 S. E. 824); Jossey v. G. S. & F. Ry. Co., 109 Ga. 439 (34 S. E. 664); Angier v. Eq. B. & L. Asso., 109 Ga. 625 (35 S. E. 64); and especially Wood v. Cincinnati Safe Co., supra.

In addition to the testimony above quoted, which we think fully authorized the verdict of the jury, it should not be forgotten that the testimony also ’ discloses an effort, on the part of the agent of the plaintiff, to mislead the defendant as to the ability of the maker of the note to pay it. He told the defendant that the maker of the note had cotton around his gin-house, and had promised to sell it and pay the note in a few days, while, another witness testifies, the maker of the note had no cotton, and had simply promised to pay the note when he was able to do so. _ The agent was under no obligation to speak on this subject, but if'he spoke, he was under obligation to speak the facts.

After carefully considering all the evidence in the record, in the light of the authorities and decisions cited, we have come to the conclusion that the verdict of the jury was right, and that the judgment refusing a new trial should not be disturbed.

Judgment affirmed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    1011.
    PURCELL v. ARMOUR PACKING COMPANY.
    1. A declaration setting forth a bank check and alleging, that it was given to the plaintiff' by the defendant in consideration of merchandise which the plaintiff delivered .to a third person, and that the cheek lia4 been duly presented for payment, and that payment thereof was refused, by the drawee, sets forth a good cause of action.
    2. Between the immediate parties, a bank check must be supported by a. consideration, in order to be enforceable against the maker.
    (a) When sued thereon by the original payee, the maker can show by parol evidence that the check is without consideration, or that the consideration has failed.
    (b) A plea alleging that a. cheek was given to the plaintiff by the defendant without any present consideration, but with the understanding that if a third person would turn certain money over to the defendant at a future time the check would be paid out of it, and further alleging that the money has never been turned over to the defendant, sets, forth a good defence; and the' court erred in striking the plea, on demurrer.
    3. In a suit by a payee against a maker of a bank check, the plaintiff makes out a prima facie case by proving the execution and delivery of the check, and that it has been duly presented to the drawee for payment, and payment thereof refused. The check itself imports its own consideration, in the sense that consideration will be presumed until the contrary appears.
    Appeal, from Glynn superior court — Judge Parker. December 3, 1907.
    Submitted March 13,
    Decided April 20, 1908.

      Twitty & Reese, for plaintiff in error. D. W. Krauss, contra.
   Powell, J.

The Armour Packing Company, as payee, sued Purcell as maker, on a bank check. Purcell demurred because the, declaration did not allege a consideration and did not allege that payment of the check had been demanded of the drawee. The-plaintiff thereupon filed the following amendment: “Plaintiff alleges that the said unpaid check was properly and duly presented, for payment at the Brunswick Bank and Trust Company, Brunswick, Ga., upon which said check was drawn, but that before plaintiff presented said check for payment on the following Monday morning, having been given on the previous Saturday afternoon after banking hours, the said defendant wrongfully, improperly,, and without authority of law, had stopped the payment of said check by said Brunswick Bank & Trust Company, and had ordered and instructed said bank not to pay plaintiff the same. Plaintiff shows to the court- that the said check was accepted as cash by plaintiff, in payment of certain goods supplied to one Houston Floyd, and represented a cash sale, and cash payment of certain meats and supplies furnished to said Houston Floyd for cash and on strictly cash terms, and was so given and accepted as cash, said plaintiff dealing on a cash basis with said Houston Floyd, under some arrangement between said defendant and Floyd, the said defendant giving his check for such meats simultaneously with the delivery of same to said Floyd.” After allowing the amendment, the court overruled the demurrer, and the defendant excepted. There is no merit in the demurrer. The amendment sufficiently alleged a demand and refusal. Haynes v. Wesley, 112 Ga. 668 (3), (37 S. E. 990, 81 Am. St. R. 72); 2 Dan. Neg. Inst. (5th ed.), §1646. And even if it was necessary to allege a consideration, it is difficult to see wherein the amendment was lacking in this particular. The allegation is that the delivery of the meat to Floyd was the detriment which the plaintiff suffered in exchange for the check. The act of delivering the meat was the doing of that which the plaintiff was not bound to do, and was the injury which it suffered. Detriment to the promisee may furnish a good consideration. Civil Code, §3657.

The defendant excepts to the court’s action in striking its plea and answer, which in -substance is as follows: The execution and delivery of the check sued on was admitted, and it is alleged that the check was given under the following circumstances: On the morning of June 16, which was Saturday, the plaintiff’s agent came to the defendant and informed him that he had a consignment of meat for one Floyd and requested defendant to give a check therefor. Defendant replied, that while he had, on several occasions in the past, given his checks for goods consigned to Floyd, this was because Floyd had funds on deposit with him out of which the chebks were to be paid; that on this particular day Floyd had no such funds with him, and therefore he could not give plaintiff a check for the meat. Thereupon plaintiff’s agent went away, but in the afternoon of the same day he returned and told defendant that he had been to see Floyd, who was entirely out of-meat, that it being Saturday, Floyd was very anxious to obtain enough of the consignment to enable him to carry on that day’s business; and plaintiff’s agent then requested defendant to give a check fox a portion of the consignment dating the same Monday, June 18, stating to defendant that he would send the check on to Savannah, and it would not be returned until /the following Tuesday, and in the meantime Floyd would have sold the meat and collected for it and turned the money over to defendant for deposit. “Defendant refused to do this, but stated to plaintiff’s said representative that if it would be any accommodation to him, he would give his check for the amount of the part of said consignment which plaintiff would deliver to said Floyd, for the day’s business, dating the same Monday, June 18, upon the distinct understanding that plaintiff would rely upon the funds which said Floyd would turn over to defendant on the Monday and Tuesday following, for payment of said check. . . Defendant expressly stated to plaintiff’s said representative that he had no funds in his hands belonging to said Floyd and subject to his check, except possibly a dollar or two, and that he would not use his personal funds to meet such check. Plaintiff’s said representative said that this would be all right, as he was confident that said Floyd would be able to dispose of the meats which he intended to deliver to him, and that under the arrangement suggested, the check would be protected, and would be paid when presented. . . Defendant avers that the check sued on was given under the circumstances hereinbefore detailed, and that there was no consideration moving unto him therefor, and he was acting merely as a custodian of the funds which said Floyd might turn over to him to be applied to the payment of said check, and did not agree to assume said Floyd’s indebtedness, or any part thereof, but distinctly and expressly refused so to do; that the plaintiff did not treat the cheek as payment of its account against said Floyd for said amount; that no assignment of plaintiff’s account against said Floyd was ever made or mentioned, and that defendant is in no way liable to plaintiff either for said check or for said account or any part thereof.”

In striking this plea the trial judge held that, assuming all the facts alleged therein to be true, still the plea fails to set up a good legal defense to the plaintiff’s' cause of action. In this we think he erred. This plea in effect alleges, that the check was not given or accepted as payment for the meats delivered to Floyd, nor was the delivery of the meats the consideration for the check; that it was in fact without any present consideration; that while under the agreement between the plaintiff and the defendant a consideration for the check might be supplied by the payment by Floyd to the defendant, on Monday or Tuesday following, of an adequate amount of monej’', it had not been paid. If in fact the cheek was without present consideration, it was primarily a nudum pactum, though the subsequent payment by Floyd of the money could have supplied a consideration and have rendered the promise binding; and if this is the truth of the case, the check was not binding until the money was paid by Floyd, for the obvious reason that until this had been done, the promise lacked the indispensable prerequisite of consideration. “A promise made for a consideration thereafter to be performed, though it will be invalid as a, promise, will take effect as an offer, and will therefore become a binding promise as soon as the consideration is performed, unless it has been revoked or has otherwise ceased to exist before that time.” LangdelFs Summary of the Law of Contracts, §70; Morrow v. So. Ex. Co., 101 Ga. 812 (28 S. E. 998); cf. Toombs v. West, 94 Ga. 280 (21 S. E. 522); Jones v. Glover, 93 Ga. 484 (21 S. E. 50). It does not make any difference, in the application of the rule, whether the consideration contemplated by the promising party is to be supplied by the promisee himself or by a third person. Civil Code, §3664; Bell v. Sappington, 111 Ga. 391 (36 S. E. 780).

In showing by parol evidence that the check is unsupported by any consideration, either immediate or supplied, the defendant does not, as the plaintiff contends, alter the terms of a valid written contract, but merely shows that there has never been any contract at all, for lack of one of the elements necessary to its creation. It is hornbook law that even though a writing express a consideration, the defendant, when sued thereon, can show by parol evidence that there is in fact no consideration, or that the consideration has failed. Hawkins v. Collier, 101 Ga. 145 (28 S. E. 632); Pitts v. Allen, 72 Ga. 69. Suppose the defendant had said to the plaintiff, “I hereby deliver to you my check dated ten days in the future, in consideration of your delivering to me in the meantime your horse;” and that the plaintiff, assenting to the proposition, took the check, held it eleven days, and sued the defendant thereon without having in the meantime delivered the horse. Could not the defendant show, by parol evidence, that the, plaintiff had never delivered the horse? And if he did so show, would it be contended that this would not be a good defense to the suit on the cheek, so long as it remained in the hands of the original holder? If so, why can not the defendant in this case show that the money, the payment of which, according to his plea, was to be the only acceptable consideration for the check, hás never in fact been paid to him? In each case the defendant is showing merely that the writing set up is not a contract. Civil Code, §3056; Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 61 L. R. A. 148, 97 Am. St. R. 171); Molyneux v. Collier, 30 Ga. 731 (5); Knight v. Knight, 28 Ga. 165. Of course, if in fact inquiry into consideration will alter or change the terms of a valid written contract, parol evidence in regard thereto will not be received. Wellmaker v. Wheatley, 123 Ga. 201 (51 S. E. 436); Pitts v. Allen, supra; Atkinson v. Lanier, 69 Ga. 640 (2); Capps v. Edwards, 130 Ga. 146 (60 S. E. 455). That is to say, if an unconditional-written promise is founded upon a consideration, parol evidence is inadmissible to engraft a condition on it; but if a written contract apparently unconditional rests upon no consideration other than the doing of something or the happening of something subsequently to the execution of the writing, the doing of that thing or the happening of that event of necessity becomes a condition precedent to the existence of the contract, and parol evidence may therefore be heard on this question. The plea of the defendant alleges facts which, if the allegations are true, show that there is not and never has been any consideration moving to him for the check, and, therefore, it is not enforceable against him by the payee. The doctrine expressed in 2 Ames’ Cases on Bills & Notes, 876 (14), to the effect that a bill or note is binding between the immediate parties even without consideration, whether correct from a historical standpoint or not, is not now the law of this State (Wilensky v. Morrison, 122 Ga. 664 (50 S. E. 472); Morrison v. Hart, 122 Ga. 660 (50 S. E. 471); Pettyjohn v. Liebscher, 92 Ga. 149 (17 S. E. 1007); Radcliffe v. Biles, 94 Ga. 480 (20 S. E. 359)), nor does it represent the present-day current of the authorities. 7 Cyc. 690; Horn v. Fuller, 7 N. H. 511. The check has never been negotiated to an innocent purchaser, and therefore the rights of such a holder are not involved. A check merely negotiable but not negotiated must, like any other contract not under seal, be supported by a consideration. The consideration of a contract is that present or promised benefit to the maker, or detriment to the other party, through which the consent of the promisor is gained.

The pleadings of the parties in the case sub judice raise a square conflict upon a controlling question of fact, — namely, as to whether or not there was a consideration for the check. On the one hand the plaintiff contends that the consideration inducing the contract was the detriment which it suffered in delivering the meat to Floyd; on the other hand the defendant denies this, and contends that the consideration upon which the minds of the parties met was the benefit which he was to receive by the payment to him of certain money by Floyd. If each contention is supported by proof, a question for the jury arises. By striking the defendant’s plea the judge precluded the defendant from introducing evidence in support of his contention; and, in so doing, committed reversible error.

After the defendant’s plea was stricken, the case proceeded to trial. The plaintiff introduced in evidence the check, the execution and delivery of which the defendant admitted, and the admission in open court, of counsel for the defendant, that the check had been duly presented for payment and payment thereof refused. The plaintiff closed; whereupon the judge directed a verdict in his favor. This action of the court is the subject of final assignment of error in the bill of exceptions. The defendant contends, that the plaintiff, in suing on a bank check, must, as a part of his prima facie case, prove a consideration for the check; that a check, as between the immediate parties, is merely a simple contract, and is like any other simple contract, as to proof of consideration. It is undoubtedly true that for certain purposes a bank check is regarded as a simple contract. For example, the statute of limitations as to “simple contracts in writing” applies to cheeks. Haynes v. Wesley, 112 Ga. 668 (37 S. E. 990, 81 Am. St. R. 72). But in other respects a bank check more nearly resembles a specialty than a simple contract, and the law governing specialties is applicable thereto. “The term ‘specialty’ is applied to an instrument which becomes effective by the mere fact of its formal execution. There are two classes of specialty contracts in the English law,- — common law specialties and mercantile specialties. The first class includes bonds and covenants, i. e. instruments under seal; the second class includes bills and notes, and policies of insurance, and possibly other mercantile instruments. There is a prevalent notion, traceable to an opinion given in the House of Lords in 1778, in the case of Rann v. Hughes, 7 T. R. 350, n., that only contracts under seal can be specialties, all. other contracts, whether written or oral, being merely simple contracts.. The fallacy of this notion is easily demonstrable by an examination of the resemblances between bills and notes and instruments under seal, on the one hand, and the differences between bills and notes and simple contracts, on the other hand, in those points in which specialties and simple contracts most strikingly differ from each other.” See 2 Ames’ Cases on Bills and Notes; 872. "That learned author proceeds to show that bills, notes, and checks are specialties, and are so treated at common law. But whether a check is a specialty or not, under our law (bee Civil Code, §§3634 et seq.), it is certainly such an instrument as is by the law merchant negotiable, and as to which a consideration will be presumed. 8 Cyc. 109, 222; 2 Words & Phrases, 1111; Daniels v. Kyle, 1 Ga. 304, 305. In 2 Daniel on Negotiable Instruments (5th ed.), §§1646, 1652, it is said: “In the hands of the payee, a bank check which is unpaid and has not been presented for payment can not be used as evidence of any indebtedness from the drawer to the payee, for the drawer has only contracted that the bank should pay the amount on demand, and until demanded the drawer is not bound. But Vhen this is done .and shown, the check then imports a debt from the drawer to the payee, and it may be sued on without proving the consideration, value received being presumed. . . Whenever a ‘check is negotiable, it is undoubtedly subject to the same principles which govern ordinary bills of exchange in respect to the rights of the holder. In the first place, it is evidence of valuable consideration as between the immediate parties thereto.” In a suit on a bill of exchange or other instrument negotiable by the law merchant, it is not necessary to ayer or prove a consideration therefor. 8 Cyc. 109, 222; Hawkins v. Collier, 101 Ga. 145, 148 (28 S. E. 632); McClain v. Lawther, 35 W. Va. 297 (13 S. E. 1003); Underhill v. Phillips, 10 Hun (N. Y.), 591; Brewer v. Brewer, 7 Ga. 584; Rowland v. Harris, 55 Ga. 141; Georgia National Bank v. Henderson, 46 Ga. 487 (12 Am. R. 590); Daniel v. Andrews, 2 Ga. Dec. (Dudley) 157; Averett v. Booker, 15 Gratt. (Va.) 164 (76 Am. D. 203); Terry v. Ragsdale, 33 Gratt. 345. In the last case cited it is said: “The check is prima facie evidence that the drawer, at the time it was drawn, was indebted to the payees in the amount of the check on an indebtedness previously existing, or created at the time the check was drawn. There is no plainer nor better settled principle of law than that.” We are constrained to hold, therefore, that in a suit on a bank check, the payee makes out a prima facie case when he proves the execution and delivery of the check, that he has duly presented it to the drawee for payment, and that payment has been refused. In the first instance the check imports its own consideration, in the sense that it will be presumed, until something to the contrary appears, that there was a consideration moving to the maker. Of course this presumption is rebuttable; and a check which is utterly wanting in consideration is not binding on the maker, unless it has been transferred to an innocent holder for value. See Huntington v. Shute, 180 Mass. 371, 372 (62 N. E. 380, 91 Am. St. R. 309); Thompson v. Sioux Falls National Bank, 150 U. S. 231 (14 Sup. Ct. 94, 37 L. ed. 1063) ; Foster v. Paulk, 41 Me. 425. Judgment reversed.


author: Russell, J.

text:
    1049.
    GREEN v. THE STATE.
    1. In a criminal case the. venue must be proved beyond a reasonable doubt, and it must affirmatively appear, from the evidence, that the crime alleged was committed at a place within the jurisdiction of the court.
    2. When a petition for certiorari in a criminal ease purports to contain all of the evidence introduced on the trial, and it does not appear therefrom that the venue was proved, it is error to refuse to sanction the petition, where it assigns error upon the ground that the verdict was contrary to evidence and without evidence to support it.
    3. It is not necessary that a copy of the accusation or indictment, upon which the defendant in a criminal case was convicted, be attached to: his petition for certiorari, or that such copy be presented to or identified by the trial court prior to the coming in of the answer to the writ of certiorari. It is the office of the answer to verify all proceedings had in the lower court, whether oral or in writing.
    Certiorari, from Tift superior court — Judge Mitchell. February 6, 1908.
    Submitted March 31,
    Decided April 20, 1908.

      J. B. Murrow, John J. Murray, for plaintiff in error.

      W. E. Thomas, solicitor-general, contra.
   Russell, J.

Ed Green was found guilty, in the city court of Tifton, of unlawfully selling intoxicating liquors without a license. A petition for certiorari was presented by him to the judge of the superior court, who refused to sanction it and order the issuance of the writ. He here excepts to the refusal of his petition. The petition contained thirteen assignments of error. It is unnecessary to deal -with more than one of the numerous exceptions presented and insisted upon here.

The first exception is that “the verdict is contrary to evidence and is against the weight of evidence and without evidence to support it.” A thorough investigation of the evidence alleged in the petition to have been adduced upon the trial of the defendant discloses that no reference was made by any of the witnesses to the subject of the venue. The venue can be proved, like any other fact, either directly or by circumstantial evidence, but it must affirmatively appear in testimony that the court trying the case has jurisdiction. Not a single witness in this case gives a hint - as to where the alleged sale took place, — whether it was in Tift county or in some other. The verdict was, therefore, according to the allegations of the petition, not only without evidence to support it, as alleged in the first exception, but was also for that reason contrary to law, as. alleged in the second exception. In a criminal case the venue must be proved beyond a reasonable doubt, and it must affirmatively appear, from the evidence, that the crime alleged was committed at a place within the jurisdiction of the court.

The question then arises as to what force should be given by a trial judge to the allegations of the petition, when a petition for certiorari is presented for his sanction. It is of course well settled and necessarily true that after the answer is filed, the reviewing court is to determine absolutely from the answer what actually occurred in the trial court, and is bound to disregard any statements of fact made in the petition which are not verified by the answer. But in advance of the answer, a suitor would be defeated of any right to have an incorrect or unjust judgment against him reviewed, unless it be assumed that, prima facie at least, the allegations of the petition represent the truth of what transpired upon the trial in the court whose judgment is sought to be reviewed. This is one of the reasons why the petition for certiorari is required to be verified in • the terms set forth in the Civil Code, §4638. The exact point was ruled by this court in Linder v. Renfroe, 1 Ga. App. 58 (57 S. E. 975), in which-we held that “in application for certiorari, all the allegations of fact therein contained, including statements of what was testified, are to be taken and considered as true by the court, when clearly set forth and when the petition is verified as prescribed in the Civil Code, §4638. Until the time for the answer to the writ has arrived, these statements of the petition as to the evidence, rulings of the court, or any other fact which developed -or transpired in any proceeding in the lower court, taken as the truth, are to be applied by the reviewing court to such assignments of error as are properly presented by and contained in the petition.” As there is no evidence, either direct or circumstantial, which tends to show the venue, and as the assignment of error is expressly made, that the verdict is contrary to evidence, it clearly follows that the petition should have been sanctioned and the writ ordered to issue, so that the answer would determine whether the defendant had been legally convicted or whether the verdict was unauthorized. When a petition for certiorari in a criminal case purports to contain all of the evidence introduced on the trial, and it does not appear therefrom that the venue was proved, it is error to refuse to sanction the petition, where it assigns error upon the ground that the verdict was contrary to evidence and without evidence to support it.

The learned counsel for the State concedes that the verdict of guilty can not be sustained upon the proof of venue presented by the record. lie suggests, however, that perhaps the judge had the right to refuse to sanction the petition for certiorari, upon the ground that the accusation, under which it was alleged the trial occurred, was not identified. The word “suggest” is perhaps too strong, for it would be more proper to say that the inquiry is made whether, under the ruling in Ga. So. & Fla. Ry. Co. v. State, 116 Ga. 845 (43 S. E. 254), it may not be held that the copy of the accusation, which the petitioner attached to his petition, should have been verified by the judge of the city court. We have no hesitation in holding that it is unnecessary that a copy of the accusation or indictment, upon which the defendant in a criminal case was convicted, be attached to his petition for certiorari, or that such copy be presented to or identified by the trial court prior to the coming in of the answer to the writ of certiorari. It is the office of the answer,to verify the proceedings had in the lower court, whether oral or in writing. In a case, such as the present, where one of the points made is that the court erred in failing to sustain a demurrer to the accusation, the accusation should be incorporated in the petition for certiorari; hut as a part of the petition it does not require the verification of the trial judge in advance of his answer. There is no duty upon the trial judge to thus verify any part of the petition; and as he has no connection whatever with the matter until he has been ordered to make an answer, it is not apparent that there is any means by which a petitioner can require him to verify an accusation or' indictment, or any other paper used in the course of the trial.

The writ of certiorari should have been ordered to issue, upon the showing made by the petition, which was properly verified in accordance with the provisions of the Penal Code, §765.

Judgment reversed,.


text:
    797.
    KING & COMPANY v. CANTRELL.
    1. A certiorari bond need not be under seal.

      %. The evidence demanded the judgment rendered.
    Certiorari, from Fulton superior court — Judge Ellis. September 13, 1907.
    Submitted December 18, 1907.
    Decided April 22, 1908.

      Maddox & Sims, for plaintiffs in error. J. E. & L. F. McClelland, contra.
   Powell, J.

In June, 1905, Cantrell obtained .from King & Co. $45; and in September, 1905, obtained a like sum. In each case he executed his note, due 90 days after date, for $60; also an order on Lester Book & Stationery Company, directing it to pay King & Co. $5 on each Saturday night, out of his wages to be earned, until twelve such payments were made. The notes were paid in full, and Cantrell brought this suit to recover back, as usury, the difference between the lawful interest on the $90 and the amount received by King & Co. King & Co. practically admitted these facts,' but set up that they did not make a loan, — that they bought the wages to be due Cantrell by Lester Book & Stationery Company. They swore that there was an agreement that there was to be no loan of the money, and only a purchase of his earnings. The jury in the justice’s court found for the defendant. The plaintiff brought certiorari. The certiorari bond was not under seal, and the defendants moved to dismiss the proceeding; the judge overruled the motion, and to this the first exception in the record is taken. Upon considering the petition and the answer, the judge decided that- no issue of fact was presented, and rendered final judgment in favor of the plaintiff, for the full amount sued for. To this judgment also exception is taken.

A certiorari bond need not be under seal. Political Code, §4, par. 7. The court therefore did not err in overruling the motion to dismiss.

The contention of the plaintiffs in error, that they were entitled to go to the jury on the question whether the transaction between them and Cantrell was a loan of money or a purchase of wages, is not well founded. The papers speak for themselves; and they are not to be Contradicted by parol testimony, in the absence of fraud, accident, or mistake. Indeed, under the 17th section of the act of August 15, 1904 (Georgia Laws 1904, p. 84), an assignment of unearned wages is void. Cantrell’s giving of his promissory notes for the money is wholly contradictory of the contention that he merely sold wages and borrowed nothing. But one lawful result was possible, and that was effectuated by the judgment rendered. Judgment affirmed.


author: Hill, C. J.

text:
    836.
    STUBBS & COMPANY v. WADDELL et al.

    .1. In order for a landlord to have a lien upon his tenant’s crop for supplies, the landlord must furnish the supplies. He may furnish the supplies directly, or he may order it done through others on his credit. Eor this purpose he may borrow money directly or through his agent; and although the note for the money may be signed by the tenant as principal maker, if the credit be extended by the lender to the landlord, whose authorized agent signs the note as security, this would not affect the landlord’s lien for supplies; and it would not affect the right of the landlprd that the agent signed his own name to the note instead of that of his principal, if, in so doing, he was acting for his principal, and not for himself, and-this fact was known to both the lender of the money and the tenant. Wliat the truth of the matter is is a question for the jury, and on this issue the testimony of both lender and agent is competent and relevant.
    2. ISfo error of law appears, and theN verdict is amply supported by the evidence.
    Money rule, from city court of Polk county — Judge Irwin. October II, 1907.
    Argued January 21,
    Decided April 22, 1908.

      Mundy cG Mundy, for plaintiffs in error.

      James <£• Ilutchens, contra.’
   Hill, C. J.

The questions in this case arise on a rule to distribute money in the hands of the sheriff, realized from the sale of personal property of the defendant. Stubbs & Co. claimed the fund by virtue of an execution based on the foreclosure of a mortgage on the crops of the defendant, which mortgage had been given to them to secure advances to make the crops. Ella C. Wad-dell claimed the money for rent, the defendant being her tenant of the premises on which the crops were made. The jury found a verdict in her favor; and Stubbs & Co. filed a motion for a new trial, which was overruled.

On the trial of the ease, it was conceded by Stubbs & Co. that the claim of Mrs. Waddell for rent was prior in law' to the fi. fa. held by them based on-the mortgage for supplies; but they insisted that two thirds of the claim for rent had been paid by the tenant. The entire amount of rent which the tenant had agreed to pay Mrs. Waddell for the farm was 1,500 pounds of lint cotton, and Stubbs & Co. claimed that all but 536 pounds of this lint cotton had been paid to Mrs. Waddell by the tenant, on the rent; and this amount of 536 pounds they tendered to Mrs. Waddell. The correctness of this contention is to be determined by the application of the proceeds of two bales of cotton which it is conceded tile tenant had delivered to Mrs. Waddell* It is insisted that these two bales were delivered on the rent, and that if applied in payment of the rent, they would have reduced the balance due on this account to 536 pounds of lint cotton. Mrs. Waddell insisted, that these two bales were not applied in payment of the rent, but to the payment of a-note for $75, which amount she, as landlord, had advanced to her tenant, under the statute, to make a drop for that year, and that her right as a landlord for these advanees was superior to that of the, lien of Stubbs & Company for advances. The testimony in behalf of Mrs. Waddell showed that this $75 had been borrowed by her through her agent, J. O. Wad-dell, as security for her tenant, Smith, from the Commercial Bank of Cedartown. Stubbs & Co. insisted that J. O. Waddell, in borrowing this $75, was not acting as her agent, but that the loan was made to Smith, the tenant, on his individual account, with J. O. Waddell as security. The proceeds arising from the sale of the two bales of cotton which were turned over by the tenant to Mrs. Waddell were applied by her agent, J. O. Waddell, first to the payment of this note for $75, due the Commercial Bank, and the balance was credited on the rent account. Whether the two bales of cotton were paid on account of rent or on account of this note, and whether this note was Mrs. Waddell’s note, upon which she was liable, were questions of fact, and were solved by the jury in favor of Mrs. Waddell. If, as a matter of fact, the $75 note was for supplies which the landlord had furnished her tenant for the year, it would make no difference in law whether the proceeds from the sale of the two bales of cotton were applied to its payment, or to the payment of the' rent, as Mrs. Waddell’s lien in both cases would be superior to that of Stubbs & Co.; and, therefore, the only vital question in the case is as to the issue raised on this note. Waddell, the husband, testified, that he signed this note as agent for his wife, for the purpose 'of getting the money from the bank to advance to her tenant, the principal maker of this note, to pay for supplies in making the crop; that the credit was extended by the bank to him as the agent of Mrs. Waddell, the landlord, and not to the tenant, and that he sold the two bales of cotton turned over to him, as agent for Mrs. Waddell, for the purpose of paying this note, and that the balance arising from the sale he had put to the credit of the rent contract. There is some testimony in the record which indicates that this application of the proceeds of the two bales of cotton was an afterthought, springing out of the exigency arising from the failure of the tenant to pay his rent and his note to the bank and to pay Stubbs & Co. too. But the jury took the view contended for by Mrs. ■ Waddell and supported by the testimony of her husband.

Much stress is laid by the plaintiffs in error on the fact that the $75 note given to the bank for the money furnished to Smith was not signed by Mrs. Waddell. Her agent testified, that in securing tbe money for Smith, he was acting for her, and that this fact was known to both the lender of the money and to Smith, and that the bank extended the credit to him as her agent; and it appears on the face of the note that Smith, the maker thereof, was in fact her tenant. ' Whether this note was intended to bind Mrs. Waddell for money which she thus advanced to her tenant, or whether the note was the individual obligation of J. O. Waddell, and' he signed it as security for Smith, and not as agent for his wife, were questions of fact, and parol testimony was properly admissible to show the truth of the transaction. Civil Code, §3039; Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (50 S. E. 1008); Scott v. Pound, 61 Ga. 579; Brimberry v. Mansfield, 86 Ga. 792 (13 S. E. 132) ; Burkhalter v. Perry, 127 Ga. 438 (56 S. E. 631). In order to bind Mrs. Waddell on this note, it was not essential that her name should have been signed thereto. If J. O. Waddell was her agent for that purpose, and the money was advanced by the bank on the note with this understanding, it was advanced by her to the principal maker of the note as her tenant, and she would have a lien therefor as landlord, just as if she had signed the note herself. Burkhalter v. Perry, supra. On this question the note itself was relevant and competent testimony, as well as the testimony of J. O. Waddell. If, therefore, the jury believed that the note to the bank was made by Waddell as agent for his wife, and was for the purpose of advancing supplies to her tenant, her lien would be superior to that of Stubbs & Co., and it could make no difference if the proceeds of the two bales of cotton received by the tenant were paid on this note, or on her lien for rent.

The judge, in his charge, which is excepted to, we think aptly covered the law on this controlling question, when he told the jury, “if you believe that John O. Waddell was acting as agent for his wife in furnishing Smith, her tenant, with the $75 received from the 'Commercial Bank, then I charge you that she would have a lien superior to the mortgage of A. W. Stubbs & Co., and it would make no difference whether she applied the two bales of cotton received to the lien for the money furnished, or to the rent due her. I charge you she would have a right to apply it to either lien.” The case of Cofer v. Benson, 92 Ga. 793 (19 S. E. 56), relied upon by the plaintiff in error, is distinguished from the one at bar on its facts. In that case the landlord, with the consent of his tenant, applied the proceeds arising from the sale of a portion of the tenant’s crop (which had been mortgaged to a third party, for supplies) to a claim of the landlord against the tenant, which was inferior to the mortgage lien, and the court held that this was an unlawful application, operating to the injury of the holder of the mortgage, and was satisfaction pro tanto of the lien for rent. In the present case the tenant owed the landlord the amount of two claims, both of.which were superior to the claim of a third party for advances made to the tenant; and therefore rights of this third party were not affected by the manner in which the landlord applied the proceeds of the two bales of cotton, as between these superior claims.

IVe find no error of law committed by the court, and the verdict Is supported by the evidence. Judgment affirmed.


text:
    848.
    Early County v. Fielder & Allen Company.
    Complaint, from city court of Blakely — Judge Jordan. October 22, 1907.
   Hill, C. J.

1. While, by the Political Code, § 343, all contracts made with county authorities on behalf of a county must be in writing and entered on the minutes (Milburn v. Glynn County, 109 Ga. 473; Holliday v. Jackson County, 121 Ga. 310), yet where a suit is brought against a county on an alleged written contract, attached to the petition as an exhibit, and the defendant files no demurrer, but in its answer, though categorically denying each allegation of the petition, admits that “it [the county] entered into a contract with the plaintiff,” substantially of the nature indicated in the petition, for the purchase of certain furniture, and that the furniture was delivered, but alleges that there was a breach of warranty, in that the furniture was not of the grade contracted for, and on the trial no point is made as to the plaintiff’s failure to prove that the contract was entered on the minutes, the defendant will not be allowed, after verdict against it, to raise for the first time, on motion for a new trial, the point that the plaintiff did not prove that the contract was entered on the minutes of the county commissioners. Bedingfield v. Bates, 2 Ga. App. 107.

2. The admission of a party that he made “a contract” will, in the absence of explanation, limitation, or exception, be construed to mean that he made a valid, binding contract, executed with the formality required by law. Draper v. Macon Dry Goods Co., 103 Ga. 601, 663.

3. None of the other exceptions are meritorious.

Judgment affirmed.

Russell, J., dissents.

Submitted January 22,

Decided April 22, 1908.

R. H. Sheffield, for plaintiff in error.

Pottle & Glessner, contra.


text:
    869.
    Howell v. Simpson Grocery Company.
    Claim, from city court of Floyd county — Judge Hamilton. November 7, 1907.
    Argued February 4,
    Decided April 22, 1908.

      George A. II. Harris & Son, .for plaintiff in error.
    , Lipscomb & 'Willingham, contra.
   Hill, C. J.

No error of law appears, and the verdict of the jury settles the conflict in the evidence. Judgment affirmed.


text:
    935.
    Rowland v. Page, constable, for use, etc.
   Hill, C. J.

1. Section 5430 of the Civil Code prescribes the condition of a forthcoming bond authorized to be taken by the levying officer, and the officer has no right to vary the condition by any agreement with the defendant in execution. Any such agreement is void and without effect as to the right of the plaintiff in execution, and can not be set up as a defense to a suit on the bond, brought by the officer, for the use of the plaintiff in execution. King v. Castlen, 91 Ga. 488 (18 S. E. 313).

2. That the security on a forthcoming bond was induced to sign it by a fraudulent promise or representation made by the levying officer, where the plaintiff was not privy to the fraud, constitutes no defense to a suit on the bond. If the levying officer deceived or misled the surety, to his hurt, the redress is against him. Civil Code, § 5437; Craig v. Herring, 80 Ga. 709 (5), (6 S. E. 283).

3. “In an action on a forthcoming bond, no issue can properly be raised as to the title to the property involved. The only question to be decided is whether or not there has been a breach of the bond.” O’Neill Mfg. Co. v. Harris, 127 Ga. 641 (56 S. E. 739) ; Hatton v. Brown, 1 Ga. App. 747 (57 S. E. 1044).

4. Where the property of a tenant was levied upon under an execution, and a forthcoming bond was given by him, with his landlord as security, the tenant could not thereafter deliver the property to the landlord in settlement of a debt to the landlord, and thereby release the latter from liability on the bond. Barfield v. Covington, 103 Ga. 190 (29 S. E. 759). Judgment affirmed.

Certiorari, from Johnson superior court — Judge Eawlings. November 26, 1907.

Argued February 18,

Decided April 22, 1908.

An execution against Outlaw was levied on certain corn as his property, and he replevied the property, executing a* forthcoming bond with Eowland as security, payable to Page, constable, the levying officer. To a suit on this bond, brought in a justice’s court by Page, as constable, for the use of the plaintiff in execution, against the principal and the surety, Eowland pleaded, in substance, that the corn levied on was his own property and was never the property of Outlaw; that he was Outlaw’s landlord and the corn was raised by Outlaw as his cropper; that at the time of the levy the levying officer was apprised of these facts, but induced him to sign the bond by promising to hold up the levy until he (Eowland) and Outlaw could have a settlement between themselves, and that if nothing was due Outlaw the bond was to be void; that the officer did not comply with the terms ■ of the agreement, and thus practiced a fraud upon him; that he, as landlord, had a settlement with Outlaw, and it was found that he owed nothing to Outlaw, but that Outlaw was indebted to him. The justice, on demurrer, struck the pleas, and the superior court, on certiorari, sustained this judgment and dismissed the certiorari. Eowland excepted.

'William Faircloth, B. B. Blount, Hines & Jordan, for plaintiff in error. F. L. Stephens, contra.


text:
    970.
    Clements et al. v. National Bank of Tifton.
   Hill, C. J.

1. A sued B, O, and D, as makers of a promissory note, also claiming attorneys’ fees, and alleging the statutory notice therefor. B answered, admitting the execution of the note as principal maker, with C and D as sureties, and his indebtedness for principal and interest, but denied the allegation of notice' of the claim for attorneys’ fees. C and D made no defense. Judgment was rendered by the court against B for principal and interest, and against C and D for principal, interest, and attorneys’ fees. Held, the judgment was erroneous as to the attorneys’ fees against O and D. If in fact they were all joint principals, they were equally liable.

% If C and D were sureties for B, no judgment could be lawfully rendered for a greater amount against the sureties than against the principal. The judgment for attorneys’ fees against O and D should be written off.

Affirmed, xoith direction.

Complaint, from city court of Nashville — Judge Peeples. December 10, 1907.

Submitted February 25,

Decided April 22, 1908.

J. H. Powell, Watts Powell, for plaintiffs in error.

R. D. Smith, R. S. Foy, contra.


text:
    980.
    CLEMENTS v. THE STATE.
    The verdict is without evidence to support it.
    Indictment for burglary, from Sumter superior court — Judge Littlejohn. December 23, 1907.
    Argued March 10,
    Decided April 22, 1908.

      Blalock & Cobb, for plaintiff in error.

      F. A. Hooper, solicitor-general, Zach Childers, contra.
   Hill, C. J.

Will Clements was convicted of the crime of burglary, on an indictment charging that he “did unlawfully and with force and arms the dwelling-house of Mrs. Fannie Furlow break and enter, with intent to commit a larceny.” His motion for a new trial being overruled, he brings the ease to this court. The evidence may be substantially stated as follows: Mr. and Mrs. Porter boarded with Mrs. Furlow, and on the day named in the indictment Mrs. Furlow had gone out of her house to take a drive, leaving Mrs. Porter inside. Before she left she closed the doors and windows, but did not lock the front door. Subsequently, and before the return of Mrs. Furlow, Mr. Porter came to the house, and he and his wife were in their room up-stairs. Between four and five o’clock in the afternoon, the defendant opened the door of the room occupied by Mr. and Mrs. Porter, and, seeing them inside, immediately shut the door and ran, and was pursued by Mr. Porter, but was not then caught. A day or two after the defendant had been seen in the house, he was arrested, and was identified by Mr. ánd Mrs. Porter as the negro who opened the door of their room and,ran from the house. His identity was also clearly established by two other witnesses, of his own race, who knew him and saw him mn from the house. The defendant acknowledged having been in the house, stating that he went there “to hunt a job.”

We think that the verdict in this case is without evidence to support it, and should be set aside. The corpus delicti is not satisfactorily shown, either by the evidence considered alone, or by the evidence in connection with the statement of the defendant as to the fact of his presence in the house and the purpose for which he entered. It should be clearly established by the evidence alone. The circumstances indicating a breaking are quite weak, and there is no evidence whatever as to the specific intent in breaking and entering the house, charged in the indictment. The conduct of the defendant when discovered in the hpuse arouses suspicion that his intent in so entering was unlawful, but a bare suspicion is not sufficient to establish a fact. And even if it be conceded that his conduct was suspicious and indicated some unlawful purpose in entering the house, it certainly was not sufficient to show that this unlawful purpose was that charged in the indictment, to wit,- to commit the offense of larceny. The statement of the defendant as to his purpose in entering the house was probably false, and evidently was not believed by the jury; but a falsehood, while the subterfuge of a criminal, is not alone satisfactory proof of crime.

Judgment reversed.


text:
    993.
    WILSON v. COBB.
    1. The verdict was not without evidence to support it.
    2. Grounds of a motion for a new trial dependent upon facts dehors the record will not be considered, unless approved or certified to be true by the presiding judge.
    Distraint, from city court of Leesburg — Judge Long. January 25, 1908.
    Submitted March 12,
    Decided April 22, 1908.

      H. B. Simmons, for plaintiff in error. J. R. Long, contra.
   Powell, J.

The original motion contains only the general grounds; the amendment contains several special grounds. The grounds of the amendment are not verified or approved by the trial judge. The following endorsement, signed by the judge, is not equivalent to an approval: “Bead, considered, and allowed.” Williams v. State, 120 Ga. 488 (48 S. E. 149); Sindy v. State, 120 Ga. 202 (47 S. E. 554); Jackson v. State, 116 Ga. 834 (43 S. E. 255).

Judgment affirmed.


text:
    1034.
    Jones v. The State.
    Accusation of larceiw, from city court of Macon — Judge Hodges. February 3, 1908.
    Argued March 31,
    Decided April 22, 1908.

      Augustin Daly, for plaintiff in error.

      William Brunson, solicitor-general, Boland Ellis, contra.
   Hill, C. J.

1. Whether the explanation which the accused makes of his possession of property recently stolen is sufficient to rebut the inference of guilt arising from such possession is a question to he determined solely by the jury.

2. No error of law is complained of, and the verdict approved by the trial court will not be disturbed. Judgment affirmed.


text:
    1037.
    Boyd v. The State.
    Indictment for burglary, from Terrell superior court — Judge Worrill. February 8, 1908.
    Submitted March 31,
    Decided April 22, 1908.

      21. C. Edwards, for plaintiff in error.

      J. A.- Laing, solicitor-general, R. R. Arnold, J. B. Ridley, contra.
   Powell, J.

1. Where an indictment for burglary alleges, as the purpose of the breaking, the intent to commit a larceny, no description, value, or ownership of any goods intended to be stolen need be alleged. Tarver v. State, 95 Ga. 223 (21 S. E. 381) ; Kidd v. State, 101 Ga. 528 (28 S. E. 990) ; Lanier v. State, 76 Ga. 304; Berry v. State, 124 Ga. 825 (53 S. E. 616).

2. Where one person rents a house and uses it as a dwelling, but allows a room therein to be occupied by a boarder or lodger, and this room is burglarized, the ownership of the house, in an indictment for burglary, may be alleged either in the general or in the special occupant.

Judgment affirmed.


text:
    1054.
    Barker v. The State.
    Accusation of larceny, from city court of Tifton- — Judge Eve. February 3, 1908.
   Powell, J.

The evidence was circumstantial only, and presented several reasonable theories other than that of the defendant’s guilt.

Judgment reversed.

Submitted March 31

Decided April 22, 1908.

Smith & Foy, for plaintiff in error.

■ W. J. Wallace, solicitor, contra.


text:
    1061.
    Richter v. The State.
    Accusation of selling mortgaged, property, from city court of Moultrie — Judge McKenzie. February 27, 1908.
    Submitted March 31,
    Decided April 22, 1908.

      T. W. Mattox, for plaintiff in error.

      W. F. Way, solicitor, J. A. Wilkes, contra.
   Hill, C. J.

1. Where the testimony of an absent witness would not be admissible or material, it is manifestly not an abuse of discretion to refuse a continuance because of his absence.

2. An accusation charging the fraudulent sale of mortgaged property, is sufficient which alleges, that A executed a mortgage to B, covering, with other property, “one black horse mule about ten years old named Doe,” and that A, without the consent of B and with intent to defraud B, did dispose of the said mule, to the loss and damage of B in the sum of $160. It is not necessary to allege in the accusation, more specifically, “how or in what manner” A disposed of the mule, or to whom he sold it, or “how or in what way” a loss of $160 was sustained by B.

3. Where the accused was charged with disposing of a mule which he had mortgaged, with intent to defraud the mortgagee, a statement in a letter proved to have been written by him after his arrest, that he had “traded the mule,” was pertinent to the issue, and the letter was properly admitted in evidence.

4. Where the prosecutor testified that he had been “injured in the sum of $160 by the fraudulent sale of one black horse mule about ten years old,” value was sufficiently proved.

5. No error of law appears, and the verdict is amply supported by the evidence. p Judgment affirmed.


text:
    1080.
    DAVIS v. THE STATE.
    Prom a defendant caught in an apparently guilty situation, an unreasonable explanation is worse than no explanation at all.
    Accusation of selling liquor, from city court of Vienna — Judge Hendersón. February 10, 1908. • •
    Submitted March 31,
    Decided April 22, 1908.

      Busbee £ Busbee, for plaintiff in error.
    Waifs Powell, solicitor, contra.
   Powell, J.

One night last August two gentlemen, while standing in the concealment' of a warehouse door in the city of Vienna, saw two negroes, one of them the defendant, the other Perry Street, go behind the warehouse and sit down on a platform. The defendant had a quart bottle and a grip. He handed the bottle to Street, who proceeded first to take a drink and then to reach his hand into his pocket and to give the defendant therefrom something, which the gentlemen in watching could not' swear was money, but which one of them testified “rattled like money.” The defendant was immediately arrested for violating the prohibition law. On his person were found a small drinking glass and a corkscrew, in the grip another bottle of whisky and a shoe-buttoner. The defendant, while on his way to jail, admitted that what Street had given him was a dime. In his statement before the jury the defendant said, that he had started to the railroad station with a view of going to Montezuma on a visit to his father and mother, and was carrying the whisky to them; that he met his nephew by marriage, Perry Street, who asked him if he had any whisky, and, the reply being in the affirmative, a drink was requested. The defendant expressed a willingness to comply with the request, on condition that Street would leave the sidewalk and go behind the warehouse. There the drink was tendered and taken. The defendant then recalled that Street owed him a dime for a shirt, and asked for payment. Street did not have a dime, but paid him a nickel. Street was not called as a witness. Why the defendant should have started off from a “dry” town, on a visit to his parents, carrying only two bottles of whisky, a drinking glass, a corkscrew, and a shoe-buttoner, why he sought such seclusion in the nighttime, to give his kinsman a harmless drink, why he should have remembered to dun him for the price of a shirt while he was still smacking his lips over the exhilarating draught, why shirts should be so cheap in Vienna, why Street was not called to corroborate his unfortunate benefactor’s statement, were questions which must have weighed heavily on the minds of the twelve intelligent men who tried the case. All these things may have been the result of coincidence; the jury did not think so; nor do we.

Judgment affirmed.