author: Luke, J.

text:
    11790.
    Lewis, trustee, etc., v. American Type Founders Co.
    Decided March 8, 1927.
    Conversion; from Fulton superior court — judge Ellis. October 8, 1926.

      Dillon, Calhoun & Dillon, for plaintiff.

      George B. Bush, for defendant.
    Actions, 1 O. J. p. 1020, n. 18.
    Pleading, 31 Cyc. p. 416, n. 40.
   Luke, J.

1. The petition in this ease alleges that the defendant, without authority, took and carried away designated articles of personalty of a stated value, and that “petitioner brings this suit for a conversion of said property by the defendant and asks that a judgment be given him for the value of the same.” Held that the action sounds in tort, and the court erred in sustaining the general demurrer to the petition, upon the theory that it was in assumpsit. The plaintiff was bound by the rule that “Where one wrongfully takes the personal property of another and converts the same to his own use in some other manner than by a sale, and does npt receive any money therefor, the owner has a right of action ex delicto against such wrong-doer, and is restricted to this form of action.” Kirkpatrick Hardware Co. v. Hamlet, 20 Ga. App. 719 (2) (93 S. E. 226), and cit.

2. The court erred in disallowing the proffered amendment stating that the action was brought in trover for the unlawful taking and detention of the said property, that it was the property of the bankrupt, that a demand was made for it by the plaintiff and refused by the defendant, and that a verdict for damages was sought.

3. The foregoing is decisive of the exception to the judgment overruling the motion for a rehearing, based upon the original contention of the plaintiff in error that the action was’ ex delicto and not ex contractu.

Judgment reversed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    17791.
    Thornton et al. v. Graham.
    Decided March 8, 1927.
    Appeal; from Appling superior court — Judge Knight presiding. October 14, 1926.

      H. L. Williams, for plaintiff in error.
    Justices of the Peace, 35 C. J. p. 655, n. 18 New; p. 656, n. 33.
   Bloodworth, J.

This case is controlled by the ruling in Singer Mfg. Co. v. Walker, 77 Ga. 649, which is as follows: “Where a case was tried before a justice of the peace, and from the judgment rendered by him the defendant appealed to a jury in that court, if, upon the call of the ease for trial upon the appeal, the defendant did not appear, it was error for the justice for that reason to dismiss the appeal. An appeal is a de novo investigation, and should not be dismissed because of the absence of the defendant.” See also Davenport v. Puett, 4 Ga. App. 83 (60 S. E. 1031).

Judgment reversed.

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


author: Broyles, C. J.

text:
    17793.
    Stanaland et al. v. Chastain.
    Decided March 8, 1927.
    Vendor and Purchaser, 39 Cyc. p. 1907, n. 70; p. 1908, n. 77; p. 1909, n. 78, 79.
   Broyles, C. J.

1. Where two persons agree, one to sell and the other to buy a certain piece of land at a fixed price, and the buyer pays part of the purchase-price and takes and retains possession of the land, but fails to pay the balance of the purchase-price when due under the agreement, and the vendor thereafter elects not to rescind the contract of sale, but to bring an action against the vendee for the balance of the purchase-price, but where his petition fails to allege that he has tendered the defendant a deed to the property, or that he is able and willing to make title on recovery of judgment and the satisfaction of the same by the defendant, his petition is subject to general demurrer, the defendant being entitled either to have the contract of sale rescinded or to have a deed to the property upon the payment of the full purchase-price. Taylor v. Fowler, 155 Ga. 659 (118 S. E. 212); Morris v. McKee, 96 Ga. 611 (2), 613, 614 (24 S. E. 142). See also Smith v. Tatum, 140 Ga. 719 (2) (79 S. E. 775). The case of Knowles v. Elyton Land Co., 88 Ga. 642 (15 S. E. 675), cited by the defendant in error, is distinguished by its particular facts from the instant case and the above-stated cases cited in support of the present ruling, and the rulings made in the Knowles case (some ,of which were obiter) are not in conflict with the present holding.

2. Under the above-stated ruling the court erred in overruling the general demurrer to the petition; and that error rendered the further proceedings in the ease nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Complaint; from city court of Thomasville — Judge MacIntyre. October 30, 1926.

Application for certiorari was made to the Supreme Court.

Clifford E. Hay, for plaintiffs in error.

J. E. Craigmiles, W. D. MacIntyre, contra.


text:
    17794.
    Roberts, alias Nelson, v. The State.
    Decided March 8, 1927.
    Possessing intoxicating liquor; from Houston superior court-judge Mathews. October 30, 1926.

      Marx Kunz, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1009, n. 6; 1061, n. 61; 17 C. J. p. 88, n. 48 New, 56 New; p. 256, n. 62; p. 322, n. 48.
   Broyles, C. J.

1. The ground of the motion for a new trial complaining of the admission of certain testimony of a named witness is not complete and understandable within itself. Furthermore, substantially the same evidence was elicited from another witness' without any objections from the defendant.

2. The evidence connecting the accused with the offense charged was not wholly circumstantial, and the court, therefore, did not err in failing to charge the law of circumstantial evidence, it not appearing that a written request for such a charge was made.

3. It is never error for the court to refuse to give a charge that is orally requested only. A written request must be presented.

4. The verdict was authorized by the evidence. The case is distinguished by its particular facts from the cases cited in the brief of counsel for the plaintiff in error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17795.
    Cook v. The State.
    Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84; 17 C. J. p. 89, ji. 65 New; p. 91, n. 77; p. 252, n. 17; p. 256, n. 62; p. 271, n. 41.
   Luke, J.

1. The conviction in this case being sustained by the evidence and approved by the trial judge, this coprt can not set aside the verdict upon the general grounds of the motion for new trial.

2. Grounds 1, 2, and 3 of the amendment to the motion for new trial will not be considered, for the reason that each of them fails to state the name of the witness whose testimony was admitted over counsel’s objection. Crawford v. State, 33 Ga. App. 612 (127 S. E. 415), and cit.; Wilkie v. State, 159 Ga. 559 (126 S. E. 383).

Decided March 8, 1927.

Possessing intoxicating liquor; from city court of LaGrange— Judge Tuggle. October 27, 1926.

Duke Davis, for plaintiff in error.

L. L. Meadors, solicitor, contra.

3. Under tlie facts of the case and in view of the full and fair charge of the court upon the law of circumstantial evidence, there is no merit in the assignment that the court erred in charging that “some evidence has been admitted which is termed circumstantial evidence,” for the alleged reason that this was an expression of opinion by the court that there was some direct evidence in the case, and that the defendant was thereby deprived of the full benefit of the circumstantial-evidence rule.

4. Ground 5, that the court erred in declining to give to the jury certain instructions requested in writing, is not in proper form for consideration, for the reason that it fails to allege that the requested charge was pertinent and applicable to the facts of the case. Hightower v. State, 33 Ga. App. 73 (125 S. E. 511).

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concurring.


text:
    17796.
    Shepherd v. The State.
    Decided March 8, 1927.
    Possessing intoxicating liquor; from city court of LaGrange— Judge Tuggle. November 5, 1926.

      Wyatt & Wyatt, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
    Criminal Law, 17 C. J. p. 88, n. 46.
   Bloodworth, J.

In his statement on the trial the accused admitted that when he was arrested he was in possession of two pints of whisky; and there is no merit in the special ground of the motion for a new trial, especially when this ground is considered in connection with the note of the trial judge attached thereto. “There is no merit in those grounds of the motion for a new trial which complain of the admission of cer-' tain 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 tlie 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).

Judgment affirmed.

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


text:
    17797.
    Gullatt v. City of LaGrange.
    Decided March 8, 1927.
    Complaint; from city court of LaGrange — Judge Tuggle. October 25, 1926.

      Duke Davis, for plaintiff. L. B. Wyatt, for defendant.
    Bail, 6 C. J. p. 1025, n. 64 New.
   Luke, J.

This is a suit to recover $200 deposited, as a “cash bond” to guarantee the plaintiff’s appearance as defendant at a specified term of the police court of the City of LaGrange, at which, on his failure to appear, the “bond” was marked “forfeited” to the city by the presiding judge of that court. The jury found in favor of the city, and the plaintiff excepted to the refusal to grant him a new trial. Meld:

1. Not only did the evidence adduced at the trial fail to sustain the allegations of the petition, but there was evidence from which it could reasonably have been concluded that the plaintiff at his own instance and request made the said deposit instead of giving an ordinary bond, with full knowledge that his money would be forfeited if he did not appear, and with the statement that he “damn sure wouldn’t be there.”

2. None of the grounds of the motion for a new trial require another hearing of the case.

Judgment affirmed.

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


text:
    17798.
    Arnold v. The State.
    Decided March 8, 1927.
    Possessing intoxicating liquor; from Terrell superior court— Judge Yeomans. November 20, 1926.

      E. A. Wilkinson, for plaintiff in error.

      B. T. Castellow, solicitor-general, R. R. Arnold, E. C. Hill, contra.
    Criminal Law, 16 O. J. p. 1008, n. 4; 17 C. J. p. 352, n. 48.
   Broyles, C. J.

The evidence connecting the accused with the offense charged was wholly circumstantial, and, therefore, the failure of the trial judge to instruct the jury upon the law of circumstantial evidence was reversible error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    17799.
    HIX v. THE STATE.
    A conviction of simple larceny was authorized by- the evidence, from which it appeared that the defendant borrowed a cow for the ostensible purpose of getting milk from it for a sick baby, and, without the knowledge or consent of the lender, sold the cow, and failed to account for the proceeds of the sale. The evidence was sufficient to authorize an inference that when the defendant borrowed the cow, he had the intent to steal it.
    Criminal Law, 16 O. J. p. 849, n. 23; p. 929, n. 86.
    Larceny, 36 C. J. p. 899, n. 34.
    Decided March 8, 1927.
    Larceny of cow; from Chattooga superior court — Judge Maddox. November 29, 1926.

      C. D. Rivers, for plaintiff in error.

      J. F. Kelley, solicitor-general, contra.
   Luke, J.

While the jury in this case could have taken as true the defendant’s statement that he was_ authorized by the prosecutrix to sell her cow, and that he did so, and failed to account for the proceeds of the sale because of his inability to find the prosecutrix, yet they declined to do so, and, as they had the right to do, accepted as true the testimony of the prosecutrix that the defendant borrowed the cow for the ostensible purpose of procuring milk for a sick baby, and, without the knowledge or consent of the lender, sold the cow, and failed to account for the proceeds of the sale. Viewing the case as a whole, its strength is not impressive, yet the evidence is sufficient to authorize an inference that the defendant had the intent to steal the cow when he borrowed it, and to sustain the conviction of simple larceny; and the court did not err in overruling the motion for new trial. Rice v. State, 6 Ga. App. 160 (64 S. E. 575); Munn v. State, 12 Ga. App. 479 (77 S. E. 591); Maxwell v. State, 25 Ga. App. 306 (103 S. E. 178).

Judgment affirmed.

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


author: Bloodworth, J. Luke, J.,

text:
    17800.
    NATIONAL FIRE INSURANCE COMPANY OF HARTFORD v. BENNETT.
    Wliere the insured under a fire-insurance policy suffered a loss, and under the provisions of the policy the amount of loss was submitted to appraisers, one appointed by the insured and the other by the company, and these selected an umpire, and where, pending a consideration of the amount of the loss, the appraiser appointed by the insured withdrew from a consideration of the matter and the other appraiser and the umpire made an award which the insured refused to accept, and he sued, on the policy, and where upon the trial of the case the defendant offered in evidence the award, and it was objected to on the ground that the arbitrator appointed by the company was not impartial, and this was clearly shown by uncontradicted evidence, the court did not err in rejecting the award.
    Fire Insurance, 26 C. J. p. 419, n. 36; p. 420, n. 38; p. 426, n. 68, 71; p. 537, n. 56, 57.
    Decided March 8, 1927.
    Complaint on fire policy; from Cherokee superior court — Judge E.- D. Thomas presiding. November 9, 1926.
    The National Fire Insurance Company of Hartford issued a fire-insurance policy covering a dwelling and certain outhouses belonging to O. P. Bennett. The dwelling and the smokehouse were totally destroyed by fire. The insured promptly furnished proofs of loss, but he and the company could not agree upon a settlement. Thereupon, in conformity with the provisions of the policy, the insured and the company each appointed an appraiser, and these selected an umpire. The appraisers failing to agree, the appraiser appointed by the insured withdrew from further consideration of the matter, and the other appraiser and the umpire made an award and fixed the loss at $1,700. The insured, being dissatisfied with this finding, brought suit on his policy, and a verdict in his favor for $1,750 was returned. This included $50 on the smokehouse. On the trial the defendant offered in evidence the award, and, on motion of counsel for the plaintiff, it was rejected. The insurance company filed a motion for a new trial, which was overruled,' and it excepted.

      Spalding, MacDougald & Sibley, H. G. Vandiviere, for plaintiff in error.

      A. J. Henderson, H. C. Holbrook, Morris, Hawkins & Wallace, contra.
   Bloodworth, J.

(After stating the foregoing facts.) A ground of the motion for a new trial alleged that the court erred “in excluding from the jury the appraisal agreement entered into between the insured and the company, and the award made in pursuance thereof, fixing the sound value of the property and the amount of the loss and damage thereof.” This award was objected to by plaintiff upon the following grounds: “The said appraisal and the award made thereunder was not binding upon the plaintiff, for that the appraiser selected by the company, to wit, E. B. Taylor, was as a matter of law disqualified to act as appraiser, for that the said E. B. Taylor had been employed by the company for a period of three weeks at ten dollars per day for the purpose of getting up evidence as to the value of said property, and by the said E. B. Taylor submitted to the adjuster for the company; the objection being in the following language, and is here inserted at plaintiff’s insistence, to wit: "We object to it. You will recall from the testimony of Mr. Taylor that he was the appraiser selected by the company in this case, and you will also recall that he testified that for three weeks before he was selected that he had been in its employ, and while he was working up here for them, getting up these statements, he was paid $10 a day for that, and was employed by the insurance company for the purpose of getting up this evidence for them, and at the time he got these statements went and submitted it to the adjuster. We say this is a flagrant violation of an arbitrator, as we understand it. The law contemplates an impartial arbitrator. Go and investigate. He swears that he took as his basis for the estimate the other papers he selected, the statements he got while he was in the 'employ of the insurance company, and we think it is so flagrantly fraud on its face that it would not be an arbitration in contemplation of law, and that this paper in evidence, developing that fact, that this paper should not be introduced as evidence, because it shows fraud on its face to select a man that was in their employ’.” Counsel for the plaintiff in error insist that the appraiser selected by the company “was not a regular employee of the defendant company, but had been employed for the purpose of getting up evidence as to the value of the property and the extent of the loss and damage,” and “was not disqualified to act as an appraiser, but movant contends that the information which the said E. B. Taylor had acquired while employed by the company for that purpose served to qualify said Taylor as a competent appraiser.” They insist also “that the appraisal agreement and the award made in accordance therewith was conclusive of the amount of loss and damage sustained by the plaintiff.” Whether the rejection of the award as evidence was error is the question for this court to determine.

The law, the contract of insurance, and the oath taken by the appraisers all contemplate that an appraiser should be disinterested and impartial. The policy contains the following provision: “In the event of disagreement of the'amount of loss the same shall as above provided be ascertained by two competent and disinterested appraisers, the insured and the company each selecting one, and the two so chosen shall first select a competent and disinterested umpire.” (Italics ours.) Before entering upon the discharge of their duties the appraisers took the following oath: “We, the appraisers above named, do solemnly swear each individually and for himself, that ioe have no interest as employee, relative, creditor, or otherwise in any of the parties signing the foregoing appointment, nor are we interested in said property or insurance thereon; and that we will act with strict impartiality in the discharge of our duties as such appraisers, rendering an award to the best of our knowledge, skill- and judgment.” (Italics ours.) The record clearly shows that the appraiser Taylor, appointed by the insurance company, was neither disinterested nor impartial. It shows that for some time, probably^for three or four weeks, prior to the meeting of the appraisers he was in the employ of the insurance company. In its motion for a new trial the defendant admits this. The record shows also that the company paid him $10 per day for his services. Taylor himself swore: “After they employed me as adjuster, paying me $10 a day, I came up here investigating this loss and had them name me as appraiser.” The record shows also that Taylor was very active as an employee of the insurance company in obtaining estimates of the amount of damage and loss, and refused to consider any estimate of the loss except that which he had obtained, and none other was considered in making up the award. The umpire swore: “We based all our findings on the written statements that Taylor had.” A contractor named Pritchard, forty-three years old, who had been engaged in that work practically all his life, furnished to the appraiser appointed by the insured an itemized sfatement of the material and labor necessary to rebuild the destroyed dwelling. Taylor swore that he refused to consider that estimate, which was $4,041.52, “because it was out of reason.” However, he did consider an estimate of $2,500, made for him by a contractor named Cline. It could hardly be shown more clearly than in this case that Taylor was both interested and partial.

The judge who tried the case did not err when he rejected the award as evidence, and the judge who heard the motion for a new trial properly overruled it.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., concurs specially.

Luke, J.,

concurring specially. I concur in the judgment reached by my colleagues, because the record shows that the arbitrator for the insurance company was not disinterested or impartial, as is required by law. The law and the contract of insurance under consideration require that the appraisers shall be “disinterested,” and the oath taken by the appraisers provided that they were not “interested in said property or insurance thereon,” and that they would “act with strict impartiality” in the discharge of their duties as appraisers. The record clearly shows that the appraiser for the insurance company was not impartial; that he had the company appoint him as appraiser; that he refused to consider any estimate of the loss except that which he himself had obtained while he was in the previous employ of the company; that he refused to consider an estimate of $4,041.52 “because it was out of reason,” but did consider an estimate of $2,500, which was favorable to the insurance company. This conduct might be usual where one contemplates building a house, but it is unusual and improper for an appraiser, supposed to be impartial, seeking the truth, and trying to ascertain the cost of replacing the burnt building, to refuse to consider an estimate because it was not to the interest of the company that appointed him. For this reason the trial judge properly rejected the award as evidence.

However, since the record shows that the objection made by plaintiff to the award was in part that “R. B. Taylor was, as a matter of 1cm, disqualified to act as appraiser, for that the said R. B. Taylor had been employed by the company for a period of three weeks at $10 per day for the purpose of getting up evidence as to the value of said property,” I deem it necessary to say that I am of the opinion that former employment by the insurance company -would not disqualify Taylor to act as an appraiser, there being no employment, except as appraiser, at the time he was acting as such. A former employee could be absolutely disinterested and impartial.


text:
    17801.
    CHENEY v. CORBITT MOTOR-TRUCK COMPANY.
    A bill of exceptions can not be maintained where the only exception therein is to a judgment disallowing an amendment to the answer of the defendant. This is true notwithstanding a recital in the bill of exceptions that the case proceeded to judgment in favor of the plaintiff.
    Appeal and Error, 3 O. J. p. 488, n. 34.
    Decided March 8, 1927.
    Attachment; from city court of Lexington — Judge W. L. Hodges presiding. October 16, 1926.

      Hamilton McWhorter, Lamar C. Rucker, for plaintiff in error.

      W. W. Armistead, contra.
   Broyles, C. J.

The bill of exceptions recites that a proffered amendment to the answer of the defendant was .disallowed, that thereafter a demurrer to the answer was sustained, and that.“the court directed a judgment for plaintiff, and judgment was entered on said date for the full amount sued for.” The only assignment of error in the bill of exceptions is as follows: “To the refusal of the court to allow amended plea, plaintiff in error excepted, and now excepts and assigns the same as error, upon the ground that said refusal was contrary to law.”

It is well settled that the striking of the entire answer of a defendant is not a final judgment, and that a bill of exceptions in which the only exception is to such striking is subject to dismissal; and this is true although it be recited in the bill of exceptions that the case proceeded to verdict and judgment in favor of the plaintiff. McCranie v. Shipp, 10 Ga. App. 544 (73 S. E. 701), and cit. A fortiori, a bill of exceptions can not be maintained where the only assignment of error therein is upon a judgment disallowing an amendment to the answer. See, in this connection, Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047).

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


text:
    17802.
    FINN v. REESE et al.

    Under the facts of this case, in which it appeared that a bill of sale of crops grown in 1926 was executed by the maker of the crops, who had in 1916 executed to another a security deed to the land, and that in 1926 the land was sold under a power of sale contained in the security deed, and the crops were sold under a common-law fi. fa. and, on a money rule, the fund arising from the sale of the crops was contested for by the holder of the bill of sale, who had foreclosed it as a mortgage, and also by the purchaser of the land under the power of sale in the security deed, who'had distrained for rent of the land, the court did not err in awarding the fund to the plaintiff in the mortgage fi. fa. The distraint was abortive, the defendant not being tenant of the plaintiff therein.
    The plaintiff in the mortgage fi. fa. did not, by executing, for the purpose of levy and sale, an escrow deed to the crops, estop himself from foreclosing his bill of sale as a'mortgage.
    Landlord and Tenant, 35 O. J. p. 953, n. 33; p. 963, n. 27; p. 969, n. 56; 36 O. J. p. 536, n. 59.
    Decided March 8, 1927.
    Money rule; from Laurens superior court — Judge Camp. October 16, 1926.

      M. H. Blackshear, for plaintiff in error.

      William Brunson, Burch & Daley, L. F. Watson, contra.
   Luke, J.

W. S. Reese filed a petition asking that J. M. Finn, Hadden & Company, and L. F. Watson, sheriff, show cause why the court should not issue a money-rule to distribute $105 realized from the sale on September 2, 1926, of 65 acres of cotton and 45 acres of corn, all on the stalk and in the field, and 1,800 pounds of picked cotton, levied on as the property of Mrs. Z. E. McLendon and J. M. McLendon under a senior common-law execution in favor of Hadden & Company. The petition alleged that Reese was claiming the fund under a bill of sale coveting the said property, and under a mortgage fi. fa., and that J. M. Finn was claiming under a distress-warrant which had been placed in the hands of the sheriff with instructions to hold up the funds, and that the petitioner was entitled to the money.

The court, by consent, tried the case without a jury. The evidence was substantially as follows: In 1918 Mrs. Zenobia McLendon (hereinafter called Mrs. McLendon) executed to a corporation a security deed to lot of land 136 in Laurens county, Georgia. Mrs. McLendon and J. M. McLendon occupied the land and cultivated the crops thereon during the year 1926, “and since purchase of same by J. M. Finn.” On April 21, 1926, Mrs. McLendon executed to W. S. Eeese a bill of sale (recorded June 11, 1926) to all crops grown that year on said lot 136 to secure the price of fertilizers furnished by Eeese to make the said crops. On October 6, 1926, the bill of sale was foreclosed as a mortgage and a fi. fa. was issued thereon. On the same day W. S. Eeese executed to Mrs. McLendon an escrow deed to the said crops, for the purpose of levy and sale. On July 8, 1926, said lot 136 was sold to J. M. Finn under the power of sale contained in the security deed from Mrs. McLendon to said corporation. On September 17, 1926, J. M. Finn foreclosed a distress warrant for the rent of said lot 136 for the year 1926, and procured an execution against J. M. McLendon and Mrs. McLendon. The court adjudged that the funds in the hands of the sheriff, less costs of court, be paid to W. S. Eeese. Finn excepted.

The controlling issue in the case is whether or not Finn’s claim of a landlord’s lien under the distress warrant proceeding is superior to Eeese’s claim under bill of sale. Though no counter-affidavit was interposed to that proceeding, Eeese had the right to show, under the money rule, if he could, that the distress warrant was abortive, for the reason that there was no relationship of landlord and tenant between the parties. Smith v. McPherson, 78 Ga. 84. Under the evidence this case will be considered just as though the name of J. M. McLendon never appeared in it. “The relation of landlord and tenant, either by express contract or by legal implication, is an essential basis of a distress warrant.” Hearn v. Huff, 6 Ga. App. 56 (64 S. E. 298). The evidence discloses no express contract of renting, but it is contended that one is implied. “When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not under the plaintiff, or if possession is adverse to him, no such implication arises.” Civil Code (1910), § 3692. “One who makes to a creditor for the purpose of securing a debt, a deed to land, but retains possession of the land, does not thereby become the ‘tenant’ either of such creditor or of his vendee.” Ray v. Boyd, 96 Ga. 808 (22 S. E. 916). Indeed, after default on March 1, 1926, in payment of the debt secured by the security deed, Mrs. McLendon was not the tenant of the grantee or of Finn, and Finn had no ground for a distress warrant against her for rent. Stevens v. McCurdy, 124 Ga. 456 (52 S. E. 762). What, then, was Finn’s status after his purchase of lot 126 on July 8, 1926, under the power of sale in the security deed? Since the security deed under which he 'purchased antedated by several years the act of August 21, 1922, which declared all crops, matured or unmatufed, to be personalty, Finn’s rights to the crops in question were the same as they were prior to that act; and crops, whether mature or immature, prior to that act, were parts of the realty and passed by a sale of the land, in the absence of contractual reservation of the crops. Chason v. O’Neal, 158 Ga. 725 (3) (124 S. E. 519); Virginia-Carolina Chemical Co. v. Floyd, 159 Ga. 311, 555 (125 S. E. 709, 126 S. E. 378). Finn is not claiming under a proceeding grounded upon his title to the crops in question, but, on the contrary, predicates his right to have the funds upon an alleged lien, which in turn rests squarely upon the contrary theory that not he, but others, owned the crops. Under the pleading and the facts in this case, we hold that the relationship of landlord and tenant did not exist between Mrs. McLendon and Finn, that the latter had no lien to invoke as a basis for his distress warrant, that the distraint proceeding was abortive, and that the court did not err in overruling the motion for a new trial.

2. But Finn insists that Reese estopped himself from foreclosing his bill of sale as a mortgage, by executing to Mrs. McLendon, for the purpose of levy and sale, an escrow deed to the said crops. The record in this regard is as follows: Reese introduced in evidence “an escrow deed from W. S. Reese to Mrs. Z. E. McLendon, dated October 6, 1926, and recorded in the clerk’s office . . October 7, 1926, which escrow deed was filed and recorded prior to the levy of mortgage fi. fa.” The deed itself sets out that it was made under section 6037 of the Civil Code of 1910, for the purpose of levy and sale, and for no other purpose. It takes no citation of authority to show that the evidence in this case is entirely insufficient to estop Reese from foreclosing his bill of sale as a mortgage.

Judgment affirmed,.

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


text:
    17803.
    ARMSTRONG v. REYNOLDS.
    1. Though the contract in this case was one in which the subtenant, for a consideration flowing to him, agreed to pay certain rent for which the tenant was originally liable, and though this contract was not in writing, “the contract was not void under the statute of frauds, as being in parol, under the facts of the case. The transaction falls within the exception to the statute, that where there has been performance on one side, accepted by the other in accordance with the contract, the statute shall not apply.”
    2. Neither the exceptions pendente lite nor the motion for a new trial show cause for a reversal of the judgment. Two juries have rendered verdicts in favor of the plaintiff; the trial judge has twice approved such a finding, and no sufficient reason is shown for our interference with the judgment complained of on this the second trial of the case.
    Appeal and Error, 4 O. J. p. 867, n. 67; p. 868, n. 68.
    Frauds, Statute of, 27 O. J. p. 355, n. 93.
    Decided March 8, 1927.
    Breach of contract; from city court of Sparta — Judge Lewis. November 19, 1936.

      T. M. Hunt, G. L. Dickens, for plaintiff in error.

      M. L. Felts, contra.
   Bloodworth, J.

Reynolds brought suit against Armstrong to recover the value of rent due by Armstrong as a subtenant on Reynolds’ land. The jury rendered a verdict in favor of the plaintiff; the defendant brought the case to this court; and this court reversed the judgment of the trial court, as shown by 33 Ga. App. 27 (125 S. E. 512). Thereafter, and in due time, the plaintiff offered an amendment to his petition which was allowed. The defendant demurred to the amendment, and to the overruling of his demurrer and the allowance of said amendment he filed exceptions pendente lite. Upon the second trial the jury again rendered a verdict in favor of the plaintiff, and the defendant again brought the case to this court assigning error upon the exceptions pendente lite and upon the overruling of his motion for a new trial.

The amendment to the petition, offered and allowed before the second trial of the case, did not constitute a separate cause of action, and was properly allowed by the trial judge. Under this amendment and the evidence in support thereof the agreement between the plaintiff and the subtenant is made more explicit, and thereby an additional phase of the case is presented which was not before this court on the review of the first trial. The evidence in tbe first trial shows that the plaintiff and the defendant' discussed an agreement as to levying on the subtenant’s crop, and also shows that the plaintiff did not levy on the subtenant’s crop; but it does not show that the plaintiff and the defendant actually reached an agreement, and it does not show that the plaintiff refrained from procuring a distress warrant and levying on the defendant’s crop because of an agreement. In the opinion when this case was first passed upon by this court it was said: “Counsel for plaintiff in error cites and relies on the case of Saulsbury v. McKellar, 59 Ga. 302, to support his contention, but the facts in that case clearly differentiate it from this one. This case is more analogous to the case of Worrill v. Barnes, 57 Ga. 404.” The amendment to the petition, a portion of which is hereinafter quoted, while it does not change the cause of action, brings the case within the ruling of the Saulsbury case and shows that the plaintiff was “lulled into security” by the express promise of the defendant to pay the rent to the extent of 1,000 pounds of .lint cotton, which promise the plaintiff acted on to his detriment, and because of which he did not levy a distress warrant on the crop grown by the defendant. The amendment to the petition, offered on the second trial, alleged that the plaintiff “notified said Armstrong that said crops which were then in possession custody and control of Armstrong were impressed with this plaintiff’s lien, and that this petitioner expected to enforce the same, . . and did at said time give due notice to the said Armstrong of the existence of this petitioner’s lien. . . After petitioner’s notice to Armstrong of the existence of his lien and of his intention to enforce it, Armstrong then agreed to hold and keep the crops raised on said premises until petitioner could undertake to satisfy his lien for rent on all of the premises rented by Jordan from the crops made on the portion which Jordan cultivated, and agreed with petitioner that if Jordan (the original tenant) did not pay all of the rent, that as a consideration for this petitioner withholding the enforcement of his special lien for rent on the portion of the crop raised on petitioner’s' land cultivated by Armstrong during said year that he, Armstrong, would pay the balance of the rent contracted to be paid by Jordan to petitioner, provided it did not exceed one thousand pounds of middling lint cotton, and petitioner agreed to accept that, and did withhold the enforcement of his landlord's lien by distress warrant on the parts of the crops made on the lands cultivated by Armstrong, and did take all crops raised by Jordan on land cultivated by Jordan, and there was an insufficient amount to pay petitioner’s lien against the crops raised on said lands cultivated both by Jordan and Armstrong. . . Armstrong applied the 1,000 pounds of cotton raised on the portion of land cultivated by him . . to the payment of a debt owed by Jordan to Armstrong & Company. . . Defendant by his conduct prevented this petitioner from enforcing his landlord’s special lien against the crops raised on the portion of the land cultivated by defendant, and . . the promise made to this petitioner by Armstrong and acted upon by petitioner to his injury is a sufficient consideration to support petitioner’s claim against defendant for the .value of said 1,000 pounds of cotton.” (Italics ours.) In support of these allegations the plaintiff testified: “I was going to foreclose a distress warrant on all the crops at that time. . . It was then that Mr. Armstrong promised me he would pay if I would not levy on his cotton. Armstrong promised to pay that rent if I would not proceed against him. I never did sue out a distress warrant against Armstrong, because he told me he would pay it. . . Mr. Armstrong said, ‘You clean up Jordan.’ I told him ‘All right, I will go ahead.’” (Italics ours.) The foregoing and other evidence shows that, because of Armstrong’s promise to pay, the plaintiff refrained from procuring a distress warrant and levying on Armstrong’s crop; that Armstrong failed to pay as per his agreement, and that plaintiff was damaged as a result thereof. The statute of frauds requires that “a promise to answer for the debt, default, or miscarriage of another” must be in writing; but exceptions to this rule are “where there has been performance on one side, accepted by the other in accordance with the contract;” and even “where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.” Civil Code (1910), § 3223 (2, 3).

Though the contract in the instant case was one in which the subtenant, for a consideration flowing to him, had agreed to pay certain rent for which the tenant was originally liable, and though this contract was not in writing, “the contract was not void under the statute of frauds, as being in parol, under the facts of the case. The transaction falls' within the exception to the statute, that where there has been performance on one side, accepted by the other in accordance with the contract, the statute shall not apply.” Flagg v. Hitchcock, 143 Ga. 380 (2) (85 S. E. 125). See also Wooten v. Wilcox, 87 Ga. 474 (13 S. E. 595); Goolsby v. Bush, 53 Ga. 353 (1); Alford v. Davis, 21 Ga. App. 820 (2) (95 S. E. 313); Holcomb v. Mashburn, 10 Ga. App. 781 (74 S. E. 307). The contract between the plaintiff and the defendant, so far as it obligated plaintiff, was performed, and the defendant, having received the benefit of this performance, is bound by the terms of the contract.

Neither the exceptions pendente lite nor the motion for a new trial show any cause for a reversal of the judgment. Two juries have rendered a verdict in favor of the plaintiff; the trial judge has twice approved such a finding, and no sufficient reason is shown for our interference with the judgment complained of on this the second trial of the case.

Judgment affirmed.

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


text:
    17808.
    Conkle v. The State.
    Decided March 8, 1927.
    Attempt to make intoxicating liquor; from Clayton superior court — Judge Hutcheson. October 23, 1926.

      Charles H. Griffin and O. J. Coogler, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 255, n. 53; p. 271, n. 41.
   Bloodworth, J.

There was evidence to support the verdict, and the special ground of the motion for a new trial was not approved by the trial judge. Judgment affirmed.

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


text:
    17809.
    Conkle v. The State.
    Decided March 8, 1927.
    Criminal Law, 17 C. J. p. 255, n. 53.
   Bloodworth, J.

There is no merit in any of the grounds of the amendment to the. motion for a new trial, and the evidence authorized the verdict. Judgment affirmed.

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

Possessing intoxicating liquor; from Clayton superior court-judge Hutcheson. October 23, 1926.

Charles H. Griffin, O. J. Coogler, for plaintiff in error.

Claude C. Smith, solicitor-general, contra.


text:
    17812.
    Pierce et al v. The State.
    Decided March 8, 1927.
    Car-breaking; from Whitfield superior court — Judge Tarver. November 27, 1926.
    Jim and Bill (or Will) Pierce were convicted under an indictment which charged them and Jesse Bates and Cliff Whitener with breaking and entering a certain freight-car of the Western and Atlantic Eailroad on January 28, 1924, and taking from it, with intent to steal, a sack of dry salt meat, two crates of lard in tin cans, a crate of “wiene” sausage, a hoop or crate of cheese, and a hog.
    The brief of evidence states that “The evidence of Jess Bates in another case, not this identical case, is read to the jury by the State.” This evidence is not set out in the record. The other codefendant, Cliff Whitener, testified: “I did go to the chain-gang for this car robbery. . . I know Jim and Bill Pierce. I was -up at the Hotel Dalton one night and Bill came in where I was at, . . and Bill asked me if I wanted to make some money; . . we came out of the hotel and went down the street, and Jim was out there, Jim Pierce. We got in my car, . . went down the street, . . and picked up Jess Bates, . . went down to South Depot street, told me to turn in to the Manley Jail Works; I turned in there; they told me they would be back in about ten or fifteen minutes. I waited there and they came up there with a can of lard, cheese, Bologna sausage, and a dressed hog. The dressed hog was wrapped in a sack; . . it weighed something over one hundred pounds, I guess. They didn’t tell me where they got it. . . They taken all the stuff out but the . . dressed hog, carried it off, taken it out of the car. I don’t know exactly which direction they went with it; it was dark. . . They were gone, I guess, twenty minutes. Bates and Bill and Jim went away with that, carried what was carried away from the car. They did not bring any of it back. We all got in the car and went . . to a little shack, John Pat Quillian. We put the hog under his bed. . . Then we came back home. We went back to John Pat Quillian’s shack. It was there. He was not there. We didn’t do anything with it; we left the hog there. . . I made a confession of this in Louisville to the detectives. . . I was brought back and denied this thing vigorously. . . I went before the grand jury and swore I ha’d nothing to do with it. . I remember when you tried this case on the first day of August, 1925, that I made a statement then to that jury and still protested my innocence, and told them that I was not guilty and knew nothing about it. .. . I am telling the truth now.”

      Criminal Law, 16 C. J. p. 1178, n. 63.
   Broyles, C. J.

The evidence was insufficient to authorize the verdict, and the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

J. M. Love testified that about 6 :45 on a morning in 1924 he discovered a car “on the W. & A. side” that was broken open, . . just east of the Manley Jail Works. . The east door was open; the seals had been broken. The car was loaded with perishables, meat, lard, and such like, “on the W. & A. side-track.” W. N. Carpenter testified that in 1924 his business was “checking freight, W. & A. depot;” that a paper introduced in evidence was “the original billing that accompanied that car,” and that there was “one sack of meat short for Yining and two crates of lard for Yining. . . This car was to be broken en route; it was broken here. After it was broken there was merchandise in it for towns south of here; had a lot of meat in it to be unloaded south of here; my checking was for such articles billed to Dalton. . . I do the checking about eight in the morning. . . That was a W. & A. shipment, Western and Atlantic Railroad.” Steve J. Wiley testified that in January, 1924, his business was checking freight, and when the train arrived at Cartersville he “checked a hog short; . . from the billing that was one sack of dressed hog, 112 pounds;” that was the only thing he checked short “out of that car.”

A police officer testified, that when he “found out these boys were connected with this car breaking,” he made efforts to arrest the Pearce boys; he “found out Jim was gone, but later found he was home in bed, sick; that was a good while after the robbery; . . seems like it was a year or longer; . . he made no effort to get away” that the witness knew of, “and he came down and made bond;” that Bill was located in Lenoir City, Tennessee, and got away, but finally came back; “his father brought him up.”

The Pierces, in their statements at the trial, denied that they were guilty or knew anything about the stealing. Two witnesses testified as to the finding of several buckets of lard on the bank of Mill creek. A yard-conductor of the Western and Atlantic Railroad testified that on or about January 24, 1924, “about 8:30,” he discovered that a car in the yard had been broken; it was next to Manley’s Jail Works, and was loaded with meats; the seals were broken on the east side.

Counsel for the plaintiffs in error contended that there was no evidence to connect the Pierces with the car-breaking, except the uncorroborated testimony of accomplices; that one accomplice could not corroborate another, and that the verdict, therefore, was contrary to law.

George G. Glenn, D. W. Mitchell, for plaintiffs in error

cited: Bishop v. State, 9 Ga. App. 205; Williams v. State, 159 Ga. 729 et seq.

C. C. Pittman, solicitor-general,

cited: Chance v. State, 33 Ga. App. 137; Williams v. State, supra.


text:
    17813.
    Pullen v. The State.
    Decided March 8, 1927.
    Larceny of cotton; from Whitfield superior court — Judge Tarver. November 27, 1926.
    Tracks were relied on to connect the accused with the crime.
   Luke, J.

Aside from the fact that the party who was jointly indicted with the plaintiff in error for stealing 200 pounds of seed-cotton, and who had previously pleaded guilty to the theft charged, testified, when introduced as a witness for the State, that he alone stole the cotton, and that the plaintiff in error had nothing whatever to do with it, the conviction rests solely upon circumstantial evidence which does not exclude every reasonable hypothesis save that of the guilt of the accused; and for this reason the verdict can not stand. Penal Code (1910), § 1010. See also Lindsey v. State, 9 Ga. App. 299 (3) (70 S. E. 1114), and cit.

Judgment reversed.

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

George G. Glenn, D. W. Mitchell, for plaintiff in error.

G. G. Pittman, solicitor-general, contra.


text:
    17814, 17815.
    17816, 17817.
    Home Insurance Company of New York v. Swann; and vice versa. Home Insurance Company of New York v. Clinkscales; and vice versa.

    Decided March 8, 1927.
    Complaint; from city-court of Blakely — Judge Sheffield. November 16, 1926.
    It was contended that the contract was contrary to public policy in providing for collection of premium'installments after lapse of insurance.

      Lowrey Stone, for plaintiff. C. L. Glessner, for defendant.
   Broyles, C. J.

1. Under the ruling in Fireman’s Fund Insurance Co. v. Lindsey, 32 Ga. App. 683 (124 S. E. 369), the contract declared on in each of these eases is not contrary to public policy, and is enforceable in a court of justice, and the court did not err in overruling the defendant’s motion (made in each case) to dismiss the plaintiff’s action. The decisions in Fireman’s Fund Insurance Co. v. Jackson, 161 Ga. 559 (131 S. E. 359), Williams v. Empire etc. Insurance Co., 8 Ga. App. 304 (68 S. E. 1082), and Lytle v. Scottish American Mortgage Co., 122 Ga. 459 (50 S. E. 402), cited by counsel for the plaintiffs in error in the cross-bills of exceptions, are not in conflict with this ruling.

2. This is the third appearance before this court of these cases. See 34 Ga. App. 19, 27 (128 S. E. 70); 35 Ga. App. 358, 360 (133 S. E. 280), where a full statement of the material pleadings and evidence is set forth. Under the rulings of this court previously made in these eases and the evidence adduced on the last trial, a verdict in each case for the full amount sued for was demanded, and in each case the court erred in overruling the plaintiff’s motion for a new trial.

Judgments on main hills of exceptions reversed; on cross-hills affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17822.
    Cowart v. The State.
    Decided March 8, 1927.
   Bloodworth, J.

There was ample evidence to authorize the defendant’s conviction, and his motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

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

Larceny of automobile; from Tattnall superior court — Judge Sheppard. October 28, 1926.

H. H. Elders, for plaintiff in error.

J. Saxton Daniel, solicitor-general, J. T. Grice, solocitor-general, contra.


author: Bkoyles, C. J.

text:
    17823.
    Kennedy et al. v. The State.
    Decided March 8, 1927.
    Assault and battery; from Columbia superior court — Judge A. L. Franklin. October 20, 1926.

      J. B. & T. B. Burnside, for plaintiffs in error.

      George Rains, solicitor-general, John M. Graham, contra.
    ■Criminal Law, 16 C. J. p. 1202, n. 70; p. 1230, n. 66; p. 1242, n. 35; 17 C. J. p. 212, n. 18.
   Bkoyles, C. J.

1. The alleged newly discovered evidence is impeaching, and the affidavits of the “newly discovered” witnesses do not support the averments of the ground of the motion for a new trial based upon the alleged newly discovered evidence. Furthermore, the affidavits in support of such witnesses are defective in that they fail to give the names of the associates of the witnesses, and, therefore, the trial judge was authorized to deny the grant of a new trial on this ground. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

2. The other grounds of the motion for a new trial are not argued'or referred to in the brief of counsel for the plaintiff in error, and are treated as abandoned.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    17831.
    ANDERSON v. THE STATE.
    If the sentence imposed in this case, which provides “that the sentence of twelve months on State farm be suspended upon payment of fine of $25, upon condition that the defendant does not become intoxicated for the period of his sentence,” comes within the purview of the probation law of 1913, the court’s order revoking the suspension and requiring the defendant to serve the sentence is not such a final judgment as is reviewable on a bill of exceptions.
    If the conclusion now reached by this court, that the wording of the sentence precluded it from coming within the purview of the act of 1913, supra, be correct, the part which provides for suspension of the twelve months’ service on the State farm was void, and the unsatisfied part of the sentence should be served.

      Criminal Law, 16 C. J. p. 1335, n. 65, 72; 17 C. J. p. 33, n. 30.

      Decided March 8, 1927.
    Revocation of parole; from city court of Sandersville — Judge Goodwin. November 6, 1926.

      A. R. Wright, W. C. McMillan, for plaintiff in error.

      George G. Evans, solicitor, contra.
   Luke, J.

On October 27, 1926, defendant pleaded guilty to drunkenness upon a public highway, and the court passed the following sentence upon him: “Wherefore it is the judgment of the court that Tom Anderson do pay a fine of $25 and be confined in the State farm at Milledgeville at hard labor on the public works, or such 'other place as the proper authorities of said'county may direct, for the space of twelve months, and then be discharged. Ordered further that the sentence of twelve months on State farm be suspended upon payment of fine of $25, upon condition that* the defendant does not become intoxicated for the period of his sentence — twelve months.” On November 1, 1926, the court ordered the defendant to show cause why the suspended sentence of twelve months should not be put in operation. At the hearing on November 6, 1926, the court revoked “the suspension of twelve months sentence on the State farm . . and ordered that the defendant shall serve the remainder of said sentence on the State farm at Milledgeville.”

1. If, as contended by the attorneys for both the State and the defendant, the foregoing sentence comes within the purview of the act of the General Assembly approved August 16, 1913 (Ga. L. 1913, p. 112; Park’s Penal Code, § 1081 (a) et seq.), the court’s order revoking the suspension of the twelve months’ sentence on the State farm and requiring the defendant to serve the sentence is not such a final judgment as is subject to review on a bill of exceptions. Antonopoulas v. State, 151 Ga. 466 (107 S. E. 156); Jackson v. State, 27 Ga. App. 648 (110 S. E. 423).

2. .On the other hand, if we are correct in the conclusion here reached, that the wording of the sentence imposed was such as to preclude it from coming within the purview of the said act of 1913, then that portion of the original sentence suspending the twelve months’ service on the State farm was void, and there was nothing for the defendant to do except serve the valid and unsatisfied part of the sentence. See Park’s Penal Code, § 1081 (a), (b), (c), and (d); Conley v. Pope, 161 Ga. 462 (2), (4) (131 S. E. 168), and cit.

Judgment affirmed.

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


text:
    17832.
    Turner v. The State.
    Decided March 8, 1927.
    Certiorari; from Fulton superior court — Judge Howard. October 18, 1926.

      R. B. Blackburn, for plaintiff in error.

      Roy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
    Criminal Law, 16 C. J. p. 1141, n. 77.
   Bloodworth, J.

1. The ground of the certiorari based upon the refusal to declare a mistrial for alleged improper remarks of the prosecuting attorney is not cause for a new trial, especially in view of the explanatory note, relating to this ground, in the judge’s answer to the certiorari.

2. None of the other special grounds of the certiorari which properly present any question for decision by this court show any reason for another trial of the case.

3. The verdict is not without evidence to support it, and the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

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


text:
    17834.
    Sanders v. The State.
    Decided March 8, 1927.
    Possessing intoxicating liquor; from city court of Columbus— Judge Tigner. November 30, 1926.

      R. Terry, for plaintiff in error.

      B. H. Chappell, solicitor, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 248, n. 3.
   Broyles, C. J.

The motion for a new trial being upon the usual general grounds only, and the verdict being authorized by the evidence, the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17840.
    Rogers v. The State.
    Decided March 8, 1927.
    Possessing and selling intoxicating liquor; from Berrien superior court — Judge Knight. December 17, 1926.

      Jeff S. Story, for plaintiff in error.

      H. G. Morgan, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 255, n. 53.
   Luke, J.

The evidence demanded the verdict, and the special assignments of error do not require another hearing of the case. Bedsole v. State, 32 Ga. App. 792.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., eoneur.


author: Jenkins, P. J.

text:
    16621, 16622.
    Sumter County v. National Surety Company; and vice versa.

    Decided March 16, 1927.
    Complaint on bond; from city court of Americus — Judge Harper. March 27, 1925.

      R. L. Maynard, for plaintiff. Ellis, Webb & Ellis, for defendant.
    Counties, 15 C. J. p. 529, n. 98 New.
   Jenkins, P. J.

It appearing that the county treasurer has accounted for more than the lawful funds of the county which went into his hands, the court below did not err in granting a nonsuit-in an action against the surety on his bond to recover commissions on funds illegally borrowed by the county. See answers to question certified to the Supreme Court in this ease, 163 Ga. 840 (136 S. E. 907).

Judgment affirmed on main bill of exceptions; cross-bill dismissed.

Stephens and Bell, JJ., concur.


text:
    17626.
    BIBB MANUFACTURING COMPANY v. WILLIAMS.
    1. Under the facts of this case, the defendant in which was insured against liability for damages of the kind sued for, it was not improper for the court to purge the jury by inquiring whether any juror was an employee, a stockholder, or a relative of the insurance company.
    2. When the charge of the court, to the effect that contentions in the pleadings are without probative value and must be established by evidence, is read in connection with other instructions as to the burden of proof, it is not subject to exception on the ground that it put upon the defendant the burden of establishing such contentions.

      Damages, 17 C. J. p. 1065, n. 7.
    Juries, 35 C. J. p. 394, n. 34.
    Negligence, 29 Cyc. p. 657, n. 54.
    Trial, 38 Cyc. p. 1785, n. 90.

      3. The charge on comparative negligence was not subject to the exceptions taken.
    4. The exception on the ground that the charge of the court as to the amount of the recovery, if the plaintiff should be entitled to recover, permitted damages for the injuries as set forth in the petition, and not as established by the evidence, is without merit. The jury were instructed in the same connection that they would be governed by the evidence upon the question of the injury; and the effect of the instruction complained of was merely to limit the recovery to the proved allegations of tlie petition.
    5. The verdict of $500 can not be set aside as excessive,
    Decided March 16, 1927.
    Damages; from Bibb superior court — Judge Malcolm D. Jones. July 18, 1926.
    Application for certiorari was made to tbe Supreme Court.
    This was a suit for damages on account of injuries sustained by the plaintiff when struck by an automobile operated by the defendant’s agent. On the call of the case for trial, counsel for the plaintiff and the defendant stated to the court, not in the hearing of the jury, that the defendant was insured against liability by the United States Fidelity and Guaranty Company of Baltimore, Maryland. After that statement, and upon request of counsel for the plaintiff, the court purged the jury by inquiring of all the jurors in the court-room, which included the panel from which the jury was to be stricken, whether or not any of them were stockholders, or sons of stockholders, or employees of the insurance company. This inquiry was made oyer the objection of counsel for the defendant, who stated to the court that he was a general agent of the insurance company and that he knew there were no stockholders of that company in the county, and that none of the jurors were stockholders or sons of stockholders of that company. Counsel for the plaintiff then called the court’s attention to the fact that a certain juror was employed by a real-estate and insurance firm which represented the insurance carrier as agents in Bibb county, and counsel for the defendant replied that the particular juror was employed in the real-estate department of the firm and had no connection with the insurance company, but offered to allow the juror to go off for cause, or to strike him as a strike for the defendant. No juror disqualified upon the inquiry as to relationship to the insurance company; and upon the jury being stricken and impaneled, the defendant moved to declare a mistrial, on account of the alleged improper purging of the jury. This motion was overruled, and the case proceeded to trial. The trial resulted in a verdict in favor of the plaintiff for $500. The defendant excepts to the refusal of a new trial.

      Ryals, Anderson & Anderson, for plaintiff in error.

      R. D. Feagin, A. W. Graves, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) While evidence in a suit for personal injuries that the defendant is protected by liability insurance is inadmissible, as being irrelevant and immaterial, and it is the general rule that, where the mere exclusipn of such evidence and appropriate instructions from the court to disregard it and remarks of counsel thereon can not disabuse the prejudicial impression created upon the jury, a mistrial should be granted (O’Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 579 (36 S. E. 59); Heinz v. Backus, 34 Ga. App. 203, 128 S. E. 915), still, where it appears that the defendant is in fact insured against liability, the employees, stockholders, and relatives, of stockholders of the insurance carrier are disqualified to serve as jurors in the case; and in .such a.case it is not error' for the court, at the request of the plaintiff and over the objection of the defendant, to purge the jury by inquiring whether any juror is an employee or stockholder of, or related to a stockholder of, the insurance company. City of Sandersville v. Moye, 25 Ga. App. 64 (4) (102 S. E. 552); Central R. Co. v. Mitchell, 63 Ga. 173; Atlantic Coast Line R. Co. v. Bunn, 2 Ga. App. 305 (58 S. E. 538). This is true even though counsel for the defendant states to the court that no such stockholders reside in the county of the trial, where no adequate proof is offered to that effect, and where it does not appear that the request for such inquiry is made in bad faith and only for the purpose of conveying to the jury the information that the defendant is protected by liability insurance. In this case the trial court was not able to say, as a matter of law, that no juror of the panel was disqualified for the reason indicated; and, such being the case, it was the duty of the trial judge to purge the panel. Whatever discretion might have been his in the method employed for such purpose, under the facts disclosed by the record it was no abuse of discretion for him to resort to the usual and most effective means of ascertaining the fact of disqualification. 35 C. J. 394; Featherstone v. Lowell Cotton Mills, 159 N. C. 429 (74 S. E. 918); Girard v. Grosvernordale Co., 82 Conn. 271, 73 Atl. 747; Faber v. Reiss Coal Co., 124 Wis. 554 (102 N. W. 1049); Wilson v. St. Joe Boom Co., 34 Idaho, 253 (200 Pac. 884).

Complaint is made of the following excerpt from the charge of the court: “The contentions of the parties are set out in the plaintiff’s petition and in the defendant’s answer, and in an amendment filed by the plaintiff, and in another amendment filed by the defendant. These contentions or pleadings have no probative value in themselves. They simply set out what the parties contend for, and these contentions must be established by the evidence in the case.” The excerpt complained of was not error for the.reason assigned that it put upon the defendant the burden of establishing its contentions, the court having just previously charged the jury that the burden was upon the plaintiff to establish his contentions by a preponderance of the evidence, and that if he failed to do so, or if the evidence preponderated in favor of the defendant, or was so equally balanced that the jury could not say that it preponderated one way or the other, the plaintiff would not be entitled to recover. The only reasonable intendment of the excerpt is not that the plaintiff might recover if the defendant failed to prove its plea, but that the plea itself had no probative value. Nor was the charge of the court, in stating to the jury the contentions of the parties, and that “if you believe that the contentions of the defendant express the truth of this case, then your verdict would be for the defendant, instead of the plaintiff,” erroneous for the reason assigned that it placed upon the defendant the burden of establishing its contentions, since the charge as given was correct, and was necessarily qualified by the previous instruction of the court as to the burden of proof resting upon the plaintiff.

The exception to the charge of the court on comparative negligence, that it “leaves the jury to infer that if both plaintiff and defendant were negligent, the plaintiff would be entitled to recover, notwithstanding he might have avoided the consequences to himself of defendant’s negligence by the exercise of ordinary eare>” is without merit. On the contrary, the excerpt complained of permitted a recovery only in the event the plaintiff’s negligence was less than that of the defendant and his own negligence did not prevent his avoidance of the injury by the exercise of ordinary care.

The charge of the court relative to the amount of the recovery if the plaintiff should be entitled to recover is not erroneous for the reason assigned, that it permitted damages in compensation for the injuries as set forth in the petition, and not as established by the evidence, since, just preceding the excerpt complained of and in the same connection, the jury -were instructed that they would be governed by the evidence upon the question of the injury, and the excerpt complained of merely limited the recovery to the proved allegations of the petition.

The verdict' in favor of the plaintiff for $500 can not be set aside upon the ground that it is excessive, nor upon the general grounds of the motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17836.
    ETHRIDGE v. TAYLOR.
    The allegations of the petition for certiorari, by which it was sought to show error in the judgment of a justice of the peace overruling an affidavit of illegality, not being verified by the magistrate’s answer, in which there was nothing' to indicate that the execution attacked by the affidavit was proceeding illegally, and there being no traverse or exception to the answer, the superior court erred in sustaining the certiorari.
    Justices of the Peace, 35 G. J. p. 876, n. 49; p. 877, n. 58; p. 878, n. 83; p. 880, n. 23.
    Decided March 16, 1927.
    Certiorari; from Wilkinson superior court — Judge Park. November 23, 1926.

      Eli B. Hubbard, for plaintiff in error.
   Jenkins, P. J.

A petition for certiorari was brought by the defendant in error, to review the judgment of a justice of the peace in overruling an affidavit of illegality interposed to the levy of an execution issued from the justice’s court. The magistrate returned the following answer: “In reply to the certiorari in the case of W. A. Ethridge vs. Wes Taylor, all parties were legally notified and appeared at the regular term of court. Court was opened and Wes Taylor was called, but he refused to be sworn in the case. He also refused to have his witnesses called.' He did not ask for any continuance of the case, and said lie would not have anything more to do with it. After a lapse of four days my legal adviser told me there was nothing more I could do but to issue an execution, as neither Taylor nor his lawyer had made any move in the case. Therefore I proceeded to issue the execution. I claim that the defendant (Taylor) had had his day in court.”

1. “Allegations in the petition for certiorari, not verified by the answer, are not to be taken as admitted, and present nothing for determination, either by the superior or the appellate courts.” Thompson v. Becham, 2 Ga. App. 84 (58 S. E. 311), and cit. “Upon the trial of a certiorari case, it is to the answer of the magistrate, or judge of the lower court, and not to the petition for the writ of certiorari, that the superior court must look, in order to ascertain what occurred upon the trial of the case below. If the' answer is not full enough, the plaintiff in certiorari, by pursuing the course provided by law, can have it perfected. If the plaintiff desires to controvert any statement contained in the answer, his remedy is to traverse the truth of the same.” Knowles v. Coachman, 109 Ga. 356, 358 (34 S. E. 607).

2. There being nothing in the answer of the magistrate to- indicate that the execution was in fact proceeding illegally, and no exceptions being taken to the answer, and no traverse filed by the plaintiff in certiorari, it was error for the court to sustain the certiorari and grant a new trial.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17839.
    MITCHELL v. WILSON.
    The verdict in the justice’s court, being supported by evidence and approved by the superior court on certiorari, can not be set aside by this court.
    Appeal and Error, 4 C. J. p. 1084, n. 30; p. 1086, n. 38.
    Decided March 16, 1927.
    Certiorari; from Babun superior court — Judge J. B. Jones. November 11, 1926.

      W. S. Paris, for plaintiff in error. James F. Ramey, contra.
   Jenkins, P. J.

The only contention of the plaintiff in error is that the evidence adduced before a jury in a justice’s court does not authorize the verdict returned. The testimony is in sharp conflict, and a verdict in favor of the plaintiff in error would have been fully authorized. However, the testimony of the plaintiff in the justice’s court, if believed by the jury,' as it must have been, supports the verdict returned, and that verdict having been approved by the .superior court on certiorari, it can not be set aside here. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17194.
    Decatur County v. Praytor, Howton & Wood Contracting Co.
    Bridges, 9 O. J. p. 441, n. 39.
    Counties, 15 C. J. p. 559, n. 65.
    Equity, 21 C. J. p. 36, n. 16; p. 390, n. 84.
   Luke, J.

1. “Equity will not take cognizance of a plain legal right, where an adequate and complete remedy is provided by law.” Civil Code (1910), § 4538.

2. “Notwithstanding the prayer for ‘discovery,’ ‘accounting,’ and relief in equity, the petition alleges no cause showing inadequacy at law. In fact the remedies provided at law are adequate, and it follows that equity has no jurisdiction. Properly construed the petition makes a plain action at law based on contract.” Burress v. Montgomery, 148 Ga. 548 (5). See also Lexington Presbyterian Church v. Reid, 147 Ga. 225. Under the above-stated ruling, the petition in the instant case (brought in two counts), properly construed, makes a plain action at law based on a breach of contract, and this court has jurisdiction of the case.

3. “A county is liable to suit by contractors for breach of a valid and binding contract for the building of a bridge over a river in such county, upon the assumption that the difference between the representations in the plans and specifications as to the facts and conditions under the bed of the river, and the actual facts and conditions thereof, amounted to a breach of the contract by the county.”

4. “Where a county enters into a valid and binding written contract for the building of a bridge across a river, and where, after considerable work has been done by the contractors, it is discovered that the bridge can not be completed under the plans and specifications which were prepared by the authorized agents of the county and made a part of the contract, and where, upon such disclosure, the contractors promptly notify the county that it. is impossible to complete the bridge under the original plans and specifications, and where the county thereupon engages another contractor to complete the structure, and where the difference between the representations of the plans and specifications as to the facts and conditions under the bed of the river and the actual facts of the situation amount to an actual .breach of the contract by the county, the county can be sued at law for a breach of such contract on its part.”

Decided April 12, 1927.

Breach of contract; from Decatur superior court — Judge Custer. January 29, 1926.

Certiorari was granted by the Supremo Court.

H. G. Bell, Pottle & Hofmayer, for plaintiff in error.

Jones, Evins, Moore & Powers, Copeland & Dukes, T. G. Connell, E. K. Wilcox, contra.

5. Under the facts stated in the petition now under consideration, the plaintiff “contractors would not be entitled to recover the entire profits which they would have made if they had completed their contract, but they would be entitled to recover only the value of materials furnished and the work done by them upon the bridge up to the time they abandoned the project, less any amount paid them under the contract.”

6. The preceding paragraphs numbered 3, 4, and 5 are rulings of the Supreme Court in this case, in answer to questions certified by this court (163 Ga. 929, 137 S. E. 247); and, under those rulings and the facts of the ease, the trial court properly overruled the general demurrers to both counts of the petition as amended, but erred in overruling the special demurrers to subparagraphs (6), (c), and (d) of paragraph 12 of the amendment to the first count of the petition.

7. The remaining special grounds of demurrer to the first count of the petition as amended, and the special demurrers to tlie second count as amended, were properly overruled.

Judgment reversed.

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


text:
    17211, 17239.
    HYATT v. COUNCIL; and vice versa.

    The judgment of the court of ordinary, approving the return of commissioners awarding a year’s support to the widow and minor children of the decedent in this case, was not conclusive upon the creditor of the decedent’s estate who sought to set aside the judgment, under the facts set out in his petition to that court. The petition was not subject to' the general demurrer, and it does not appear that the court erred in the rulings upon the special demurrer.
    Decided April 12, 1927.
    Appeal; from Sumter superior court — Judge Littlejohn. January 18, 1926.
    The judgment attacked was rendered July 6, 1925. The petition attacking it was filed Septemer 12, 1925. The petition prayed that the judgment be declared void and that the award of the commissioners be vacated, for the reason that while the commissioners awarded only $3,500 for a year’s support (which was right and proper), the reasonable value of the property of the estate set aside for such support amounted to $37,169.04, and this discrepancy was so great as to show either fraud, collusion, accident, or mistake on the part of the commissioners. An additional ground of attack was that there was an insufficient description of the property set apart for the year’s support, and an insufficient description of the liens and mortgages against the property. The Court of Appeals, in a certified question to the Supreme Court, set out the foregoing facts and other facts stated in the following opinion, and asked: “Under these facts, was the judgment of the court of ordinary approving the return of the commissioners conclusive upon the petitioning creditor, and should the petition have been dismissed upon general demurrer?” The Supreme Court answered in the negative.; Beck, P. J., and Hines, J., dissenting.

      Exeeutors and Administrators, 24 C. J. p. 272, n. 7.

      W. W. Dykes, R. L. Maynard, for plaintiff in error.

      J. A. Hixon, contra.
   Broyles, C. J.

1. A petition was filed by a creditor of the estate of a decedent to set aside a judgment of the court of ordinary approving the return of commissioners awarding a year’s support to the widow and four minor children of the deceased. Under the facts and circumstances set forth in the petition, the judgment of the court of ordinary was not conclusive upon the petitioning creditor, and the court properly overruled the general demurrer to the petition. This is true although it appeared from the petition that the ordinary had duly complied with the statutory requirements as to issuing citation and publishing notice in regard to the application for the year’s support, that the petitioning creditor failed to file a caveat to the award of the commissioners, that nothing was done by anybody to prevent him from doing so, and that by the exercise of the slightest diligence he could have filed a caveat, setting up all the objections urged in his petition, at or before the term of the court of ordinary to which the award of the commissioners was made returnable. Hyatt v. Council, 163 Ga. 870 (137 S. E. 16), decided by the Supreme Court in answer to a question certified by this court.

2. It does not appear from the record that the court erred in any of its rulings upon the special demurrer interposed to the petition.

Judgment affirmed on both the main bill and the cross-bill of exceptions.

Lulce and Bloodworth, JJ., concur.


text:
    17355.
    Lockhart, executor, et al. v. State of Georgia et al.

    Decided April 12, 1927.
    Appeal; from Richmond superior court — Judge A. L. Franklin.' March 9, 1926.
    After setting out the facts stated below, the Court of Appeals propounded to the Supreme Court the following questions: “(1) Is the estate of Cornelius V. McAulilfe, or the distributive shares thereof under his will, subject to any State inheritance tax? (2) Does the State inheritance-tax law passed in 1913 and amended in 1919, which was in force at the time of the death of the testator, apply to said estate (see Park’s Code Supp. 1922, §§ 1041 et seq.); or does'the State inheritance-tax law which was approved by the Governor and made a law on August 27, 1925, after the death of the testator but before the estate had been appraised for inheritance-tax purposes and before a final accounting was made, apply to said estate? (See Ga. L. 1925, pp. 63, 64.)” An affirmative answer to the first question was given by the Supreme Court; the answer to the second question was that the tax should, be levied and collected under the act of 1913, as amended by the act of 1919. It was held that the case was controlled by the decision in Davant v. McAlpin, 163 Ga. 309.
    The following facts were stated in the certified question: Cornelius V. McAulifle died September 21, 1924, leaving a will which was probated in the office of the court of ordinary of Richmond county, Georgia, and Milledge Lockhart qualified as executor thereunder September 27, 1924. The estate has not been closed, nor the executor discharged, nor has a final accounting been made by him. The net estate, after paying the debts and costs of administration, amounts to $15,770.60. On July 3, 1925, the executor filed his application to have the ordinary act as sole appraiser to make the appraisement of the property of the estate and determine and assess the amount of inheritance tax due thereon, which application was joined in by the distributees of the estate, the tax-commissioner of the county, and the State tax-commissioner (being all of the persons interested in the amount of inheritance tax), who duly waived the appointment of appraisers. Before appraisement or distribution of the estate the inheritance-tax act of 1935 became a law, August 37, 1935. On September 1, 1935, before assessment by the ordinary of the amount of inheritance tax due (the assessment being made September 16, 1935), the executor and the legatees filed with the tax-commissioner of Georgia a petition that he pass an order declaring no tax due by the legatees, on the ground that the act approved August 37, 1935, exempted all estates from any inheritance tax except where the net total aggregates such an amount as would make them due Federal estate taxes; and alleging that the said act provides.that no other inheritance tax shall be levied or collected; and that “the estate of Cornelius Y. McAuliife shows the net amount to be less than such an amount as would subject the estate to the payment of Federal estate taxes, and therefore no inheritance tax would be due the State of Georgia by the legislature under said will.”

      Taxation, 37 Oye. p. 1557, n. 81; p. 1569, n. 75.
   Luke, J.

Under the decision of the Supreme Court in this ease, in answer to questions certified by this court (164 Ga. 15, 137 S. E. 549), and the agreed statement of facts filed in the trial court, the judgment excepted to was not error for any reason assigned.

Judgment affirmed.

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

The judge of the superior court, on appeal from the court of ordinary, held that the act of 1918, and not the act of 1935, applied to the estate, and ordered that the inheritance tax be paid accordingly, as assessed by the court of ordinary.

Cohen & Gray, Adams & Adams, for plaintiffs in error.

Wright & Jackson, George M. Napier, attorney-general, David C. Barrow, Hitch, Denmark & Lovett, contra.


text:
    17366.
    Friedman v. Mizell.
    Physicians and Surgeons, 30 Cyc. p. 1554, n. 66; p. 1593, n. 33; p. 1594, n. 41.
    Statutes, 36 Cyc. p. 1071, n. 25; p. 1074, n. 37; p. 1078, n. 43; p. 1098, n. 49; p. 1099, n. 57.
   Broyles, C. J.

1. Section 3 of the act of 1881, now embodied in section 1684 of the Civil Code of 1910 (requiring every practitioner of medicine to register in the office of the clerk of the superior court of the county wherein he resides and is practicing, in a book to be kept for the purpose, his name, residence, and place of birth, together with his authority for practicing medicine) was repealed by implication by the act of December 12, 1894 (Ga. L. 1894, p. 85). This act of 1894 was in turn repealed, either expressly or by implication, by the act of August 18, 1913 (Ga. L. 1913, p. 101), and after August 18, 1913, a physician licensed under the act of 1894 was not required to register in accordance with the provisions of the act of 1881, and a physician licensed under the act of 1894, who had caused his certificate to be recorded as required by that act, could recover for services rendered after August 18, 1913, although the record of his certificate had been made prior to August 18, 1913. Friedman v. Mizell, 164 Ga. 1 (137 S. E. 400), decided by the Supreme Court in answer to a question certified by this court.

Decided April 12, 1927.

Certiorari; from Fulton superior court — Judge Humphries. April 8, 1926.

Noah J. Stone, for plaintiff in error.

Kobak & Levy, Fuller & Bell, contra.

2. Under the above-stated ruling and the facts of this case, the plaintiff in the court below was entitled to recover for the services sued for, and the certiorari was property oveiTuled.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17842.
    ALL CHURCH PRESS INCORPORATED v. HARRIS ADVERTISING AGENCY INCORPORATED.
    The contracts upon which the suit was based xx'ere unilateral, and the court did not err in sustaining the demurrers to the petition; nor did the judge of the superior court err in overruling the certiorari.
    Decided April 12, 1927.
    Certiorari; from Fulton superior court — Judge Howard. November 25, 1926.
    The original petition in this case is as follows: “The petition of All Church Press, Inc., a corporation, shows the court as follows: 1. That E. C. Harris Advertising Agency, Inc., the defendant herein named, is a corporation with its principal place of business in the City of Atlanta, said State and county, and an agent upon whom service of process may be made in said city, State and county. 2. Your petitioner shows that during May, 1924, and at all times since that date, it has been publishing the following newspapers in the following cities; .to wit: The Tribune in Fort Worth, Texas; the Dallas World, in Dallas, Texas; and The Times, in Houston, Texas. Your petitioner shows that under date of May 28, 1924, it entered into a contract with said defendant to publish one thousand inches of advertising in the Dallas World at and for the price of $476.00, a copy of which contract is shown by Exhibit ‘A/ hereto attached. Your petitioner shows that under date of May 28, 1925, it entered into a contract with said defendant to publish in the Tribune, at Fort Worth, Texas, one thousand inches of advertising at and for the price of $476.00, as shown by a contract, a copy of which is hereto attached, marked Exhibit ‘B.’ Your petitioner shows that under date of May 28, 1924, it entered into a contract with said defendant to publish in the Tribune, at Fort Worth, Texas, one thousand inches of advertising at and for the price of $467.00, as shown by a contract, a copy of which is hereto attached, marked Exhibit ‘Bd Your petitioner shows'that under date of -May 28, 1924, it entered into a contract with said defendant to publish in the Times, at Houston, Texas, a thousand inches of advertising at and for the price of $476.00, as shown by Exhibit ‘ C/ hereto attached. Your petitioner shows that said defendant agreed to furnish copy with instructions for each issue in which advertising was to appear, and obligated itself to pay for said advertising, all of which is more fully shown by the contracts, copies of which are marked Exhibits ‘A,’ ‘B,’ and ‘0/ hereto attached. 3. Your petitioner shows that it has at'all times been ready, willing, and able to carry out its contract; but said defendant has declined to go forward with the same, and has declined to carry out each and all of the obligations imposed upon said defendant under and by virtue of the terms of the aforementioned contracts. 4. Your petitioner shows that the price to be paid by said defendant under the said three contracts amounts to fourteen hundred and twenty-eight dollars ($1,428.00), and your petitioner, by reason of the breach of said contracts by said defendant, has been damaged in the sum of thirteen hundred and twenty-eight dollars ($1,328.00), this being the amount which defendant was to pay your petitioner under said three contracts, less the cost to your petitioner of printing the advertisements which were to have been furnished by said defendant, which cost of printing said advertisements would not have exceeded the sum of one hundred dollars ($100.00). 5. Your petitioner shows that it has at all times been ready, willing, and able to carry out its agreement with said defendant, and said defendant, without excuse or justification, failed and declined to go forward with said contracts. Wherefore, your petitioner prays judgment against said defendant in the sum of thirteen hundred and twenty-eight dollars ($1,328.00), and prays that process may issue,” etc. The three contracts sued on are similar in form, and the following is a copy of one of them: “The Dallas World (Friday), Dallas, Texas (Dallas county). You are hereby authorized to insert the advertising of Drug Products, Inc., Atlanta, • (Karnak) on the following terms and conditions: Space to be used within one year from date of first insertion 1,000 inches. Position: -Top column, next reading, on live news page. Kate: .47 6/10 per inch. Less 15% commission, 2% cash discount, payable monthly as used, it being agreed that the above rate is the minimum at which a contract for similar space and conditions can be secured, and that if at any time during the life of this contract a lower rate for same space and conditions is put into effect, then this contract is to be completed at such lower rate from that time. Further, it is agreed that additional space may be used under the same conditions, at the above rate, and that rebate is to be made when total space used earns additional discounts of any kind. It is agreed that all advertising under this order (unless otherwise specified) shall be set up and appear in the regular body type of the paper, with headings in such type as is regularly used over news matter, all copy having the appearance of news to be labeled ‘Adv.’ or ‘Advertisement’ at conclusion. Copy, with instructions for each issue in which advertising is to appear, to be furnished. No advertisement to be repeated without specific orders to that effect. Publisher agrees to mail a copy of each issue containing this advertisement to the agency at address below, promptly after publication, also statement covering advertising inserted during previous month is to be mailed on the first of each month, in order that remittance may be forwarded before expiration of cash discount period. (Signed) E. C. Harris Advertising Agency, Inc., Atlanta, G-a., H. S. A., E. C. Harris. Publisher’s Acceptance World-All Church Press, by Homer Tomlinson, Y. P., G. M.” Demurrers to the petition were filed, and, upon these being sustained and the petition dismissed, the plaintiff excepted, and by certiorari carried the case to the superior court. The judge of the superior court overruled the certiorari, and the plaintiff excepted.

      Contracts, 13 C. J. p. 247, n. 6; p. 263, n. 74; p. 331, n. 18.

      Albert E. Mayer, for plaintiff. Fuller & Bell, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) While each .of the “contracts” upon which the suit was based was signed by both parties, they were not such contracts as could be enforced in the courts, because lacking in mutuality. To have a contract upon which an action will lie, both parties must be bound thereby. Under the terms of the “contracts” sued upon, there was no absolute promise on the part of advertising agency to do anything. The contracts provided that a certain amount of space must be used within one year from the date of the first insertion, but no time is set for the first insertion, nor is there any promise that it will ever be made. The advertising agency is not required to make such an insertion, and therefore the contract is unilateral and unenforceable. However, this inchoate, this unilateral, contract would ripen into a mutual and enforceable contract when and if a “first insertion” was made, and would then become a contract for 1,000 inches of space, “to be used within one year from the date of the first insertion.” The contracts were not mutual and binding when signed, nor did they afterwards become so, but remained unilateral, and the general demurrer to the petition was- properly sustained by the judge of the municipal court; and the judge of the superior court did hot err in overruling the certiorari.

Judgment affirmed.

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


text:
    17843.
    Morris, trustee, etc., v. Robinson.
    Decided April 12, 1927.
    Trover; from Fulton superior court — Judge E. D. Thomas. November 4, 1926.

      M. C. Few, for plaintiff in error.

      Underwood & Haas, E. Smyth Gambrell, contra.
    Appeal and Error, 4 C. J. p. 852, n. 56.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and none of the grounds of the motion for a new trial require another hearing of the ease.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17846.
    Johnson v. Lock, administratrix.
    Decided April 12, 1927.
    Lien foreclosure; from city court-of Dublin — -Judge Bidgood. October 30, 1926.

      W. A. Dampier, for plaintiff in error.

      M. H. Blackshear, D. P. Tinley, contra.
    Judgments, 34 C. J. p. 277, n. 85; p. 329, n. 55.
   Broyles, C. J.

1. The bill of exceptions complains of the denial of a motion to vacate and set aside a judgment and verdict in a lien-foreclosure ease. The motion was based upon the alleged ground that the affidavit upon which the execution issued was null and void, for the reason that it did not allege that the tenant in question was “removing” or “seeking to remove” his crops from the rented premises, but alleged merely, in this connection, “that part of the crop has been moved by said tenant from the premises.” Held: (a) 'This defect in the affidavit was amendable. Civil Code (1910), § 5706; Collins v. Taylor, 128 Ga. 789 (58 S. E. 446). (6) “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.

2. The motion to vacate and set aside the verdict and judgment was further defective in that it failed to show, or even to allege, that the movant had a meritorious defense. Roberts v. Roberts, 150 Ga. 757 (105 S. E. 448); Dabney v. Benteen, 35 Ga. App. 203 (2) (132 S. E. 916).

■3. Under the above-stated rulings the court properly denied the motion to vacate and set aside the verdict and judgment.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17847.
    JOHNSON v. LOCK, administratrix.
    An affidavit for distress warrant based on the ground that the rent “is now due and unpaid by reason of the fact that said tenant [the defendant] has removed part of the crop from the premises” was not void because of failure to allege that the tenant “is removing” or “seeking to remove” his crops from the rented premises.' The affidavit was amendable, and the court did not. err in overruling the motion to set aside the verdict and judgment for the plaintiff.
    Decided April 12, 1927.
    Distraint; from city court of- Dublin — Judge Bidgood. October 30, 1926.
    The motion to set aside the verdict and judgment was based on the ground that the affidavit and the distress warrant were void because of the omission stated above.

      W. A. Dampier, for plaintiff in error,
    cited Civil Code (1910), §3700; 12 Ga. App. 754.

      M. H. Blackshear, D. P. Tinley, contra,
    cited 35 Ga. App. 587; 128 Ga. 789, 790; 30 Ga. App. 68; 89 Ga. 72; 35 Ga. App. 203 (2); 150 Ga. 757 (1); Civil Code (1910), §§ 5706, 5960.
   Luke, J.

This ease arises ont of the overruling of a motion to set aside a verdict and judgment procured in a proceeding to dis-train for rent, where the only ground alleged-in the affidavit on which the distress warrant was based (and stated in the warrant) was that “said rent is now due and unpaid by reason of the fact that said tenant has removed part of the crop from the premises.”

The general rules controlling this case are clearly and concisely stated by Justice Atkinson in McDonald v. Kimball Co., 144 Ga. 105 (2) (86 S. E. 234), as follows: “If the pleadings are so defective that no legal judgment can be rendered, the judgment will be arrested or set aside.” Civil Code (1910), § 5959. “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, § 5960. “All . . affidavits that are the foundation of legal proceedings” are “amendable to the same extent as ordinary declarations, and with only the restrictions, limitations, and consequences now obtaining in the case of ordinary declarations and pleas.” Ga. L. 1887, p. 59; Ga. L. 1889, p. 110; Civil Code, § 5706.

Measuring the case at bar by the foregoing rules, the affidavit was amendable, and the court did not err in overruling the motion to set aside the verdict and judgment. Collins v. Taylor, 128 Ga. 789 (58 S. E. 446); Reese v. Walker, 89 Ga. 72 (14 S. E. 888); Carter v. Caverly, 30 Ga. App. 88 (116 S. E. 664).

Judgment affirmed.

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