text:
    15294.
    JOBSON et al. v. MASTERS.
    1. Tlie act of 1920 (Ga. L. 1920, p. 215), authorizing persons licensed thereunder to charge and collect interest at the rate of 3 y2 per cent, per month on loans in sums of $300 or less, relates only to calendar months, whether the particular month for which the interest is to be computed happens to consist of 28, 29, 30, or 31 days; and if the lender charges or receives any sum whatever in excess of that authorized by the statute, the contract of loan is null and void and the lender forfeits his right to recover either the principal or the lawful interest and charges.- .
    2. A litigant seeking to bring himself within the provisions of that act, so as to enable him to recover upon a contract stipulating to pay interest at the rate of 3% per cent, per month, must, as conditions precedent to such alleged right, show that he was licensed in accordance with the provisions of the act, that the contract was made under such license and at the place of business designated therein, that the contract does not upon its face show any violation of the act or failure to comply with its mandatory provisions, and that at the time of the loan he delivered to the borrower' the statement prescribed by section 14 of the act. In the absence of either of these essentials, a contract of loan in which the borrower agrees to pay interest at any rate higher than 8 per cent, per annum is usurious.
    Decided April 16, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. December 1, 1923.
    Application for certiorari was denied by the Supreme Court.

      S. Jay Masters instituted in the municipal court of Atlanta a bail-trover proceeding against J. B. Jobson and Mrs. Sallie -Lou Jobson, to recover certain household goods. He alleged that the defendants were in possession of the property, that he claimed title thereto, and that they refused to deliver it to him or to- pay him the profits thereof. The petition contained the usual prayer for process. In addition to answering the paragraphs of the petition, the defendants pleaded: “that the alleged right and title of plaintiff in the property sued for grew out of a contract or bill of sale and mortgage given by defendants to plaintiff for the purpose of securing a loan of money made by plaintiff to defendants on the 19th day of December, 1921. Under said contract of loan, defendants agreed to pay plaintiff, as interest on the amount borrowed, 3% per cent, per month. . . The sum originally borrowed was ; .. $204, and was to be repaid in twelve equal installments of $17 each and interest as aforesaid at 3% per cent, per month, the amount paid at each payment on the principal to be deducted therefrom and a new principal to then run till the next payment, and interest paid on the new principal; that plaintiff charged, contracted for, and received interest and charges on said loan and the new principals aforesaid in excess of those permitted by the act of the General Assembly of Georgia, approved August 16, 1920, allowing charges of interest to be made on loans not in excess of $300 to be 3% per cent, per month; and that, therefore, under the terms and provisions of said act, the contract of loan and the bill of sale and mortgage to secure said loan to defendants, and in which the alleged right and title to the property sued for herein was conveyed to plaintiff, is void and of no effect, and conveys no title or rights to the plaintiff, and the plaintiff has no title to the property sued for herein and cannot recover said property.” The remainder of the plea was devoted to setting out in detail the dates and amounts of the payments, which do not differ from those proved by the plaintiff upon the trial.
    To prove his alleged title, the plaintiff introduced in evidence a writing, dated December 19, 1921, and signed by the defendants, the only part of which here material was as follows: “For value received, we or either of us promise to pay S. Jay Masters, or order, or bearer, the sum of two hundred four and 00/100 dollars, the same to be paid as follows: twelve equal monthly installments of $17 on the 19th day of each month after date here (with interest thereon) at the rate of three and one-half per cent, per month on the unpaid balance as provided for in an act of the legislature approved August 16th, 1920. And to secure the payment of the same, we hereby deed, sell, and convey the following property . . [here followed a description of property as in plaintiff’s petition] to the said S. Jay Masters, or order, or bearer, the said property being now at my home,” etc. Annexed thereto was another writing, purporting to be a bond to reconvey the property to the defendants upon the payment of the debt as above shown. While this bond commenced, “I, the undersigned S. Jay Masters, am held and firmly bound,” etc., yet the undertaking was signed only by A. B. Madison. Neither of these writings contained any recital that the plaintiff was licensed under the act referred to, nor was any evidence offered to show that he was so licensed. Except as above shown, neither of them tended to show that the debt in question was created by a loan, or, if so, the actual amount of the loan. Neither of these writings contains any recital or other indicia tending to show at what particular place of business the debt was created or the papers executed, nor was any other evidence offered tending to show these things. Plaintiff introduced in evidence also a book (which was not shown to have ever been delivered to the defendants or to have come from their possession) purporting to contain a record of the transaction in controversy, describing the above-mentioned bill of sale under the words, “Amount of loan, $204.00,” on the back of which was a copy of section 13 of the above-cited act. It showed the following record of payments:
    Date paid Interest paid Paid on loan Balance loan
    $204.00
    1/19 $7.38 $17.00 187.00
    2/22 6.98 17.00 170.00
    3/22 5.16 17.00 153.00
    4/20 5.18 17.00 136.00
    5/23 5.24 17.00 119.00
    7/17 7.64 17.00 102.00
    8/21 4.17 17.00 85.00
    9/21 3.07 34.00 51.00
    11/16 3.33 17.00 34.00

      This book nowhere contained the name or address of the plaintiff or the name or address of the person purporting to have signed the bond to reconvey the property to the defendants. It did contain the name and address of J. B. Jobson, followed by the words, “In account with Surety Loan Company,” without the address of that company. A Mr. Madison, whose initials do not appear, testified as a witness for the plaintiff: that he' (the witness) was manager of the Southern Security Company, and that his company represented S. Jay Masters in making the loan to the defendants, to secure which they executed the bill of sale in evidence; that he had collected thereon payments as shown by the table set out above; and that the calculation of the interest on the loan was made by a certain machine which they had in their office, which was a standard machine, used generally by loan companies, and which calculated interest on the actual number of days'. In his opinion the loan was made under the ¿bove-cited act of 1920, but he stated no fact on which to base that opinion. In collecting the interest he undertook to calculate it at the rate of 3% per cent, per month for the actual number of days between payments, instead of on the basis of the calendar month; and, so far as the table of payments set out above may indicate a contrary purpose, the figures are due to his errors in calculating the interest due at the times of the payments. The minute details of his testimony touching the separate payments are unimportant here. He further testified to a demand on the defendants for the property before suit was brought. Jobson testified only with respect to the dates and amounts of the payments as made by him, which did not differ from the table of payments set out above. The plaintiff elected to take a money judgment, and judgment in favor of the plaintiff was rendered accordingly. The exception here is to the judgment of the superior court overruling the certiorari sued out by the defendants, in which the judgment of the municipal court is assigned as error because contrary to law and the evidence, with many amplified statements of that ground of error.

      H. G. Holbrook, for plaintiff in error.

      G. F. Fielding, contra.
   Luke, J.

(After stating the foregoing facts.) In this' court' counsel for both parties, by their briefs, treat the case as one coming within the provisions of the act of 1920 (Ga. L. 1920, p. 215) “to license and regulate the business of making loans in sums of $300 or less,” etc., the only question discussed by them being whether the lender charged and collected such sums of interest as to void the note and security given for the loan. In our view of the case there are other fundamental questions on which the case might turn, under the pleadings and the general assignment that the judgment of the municipal court was contrary to law and the evidence. But we will first consider the case as discussed by counsel for the parties.

The suit being an action of trover, it was essential that the plaintiff show title in himself to the property in controversy. It was to this end that he introduced the bill of sale in evidence. If valid and enforceable, it was sufficient for this purpose. Watts v. Wight Investment Co., 25 Ga. App. 291 (103 S. E. 184). The defendants attack this bill of sale, contending that it is null and void, under the provisions' of the small-loan act of 1920, to which the writing itself refers. They attack it not for anything that appears on its face, but because the plaintiff collected interest in excess of the maximum rate of 3% per cent, per month allowed by that act. Section 13 of the act provides: “Every person, co-partnership and corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of three hundred dollars ($300) and may charge, contract for and receive thereon interest at a rate not to exceed three and one half (3%) per centum per month. Interest shall not be payable in advance or compounded, and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or other charge or amount whatsoever, for any examination, service, brokerage, commission or other thing, or otherwise, shall be directly or indirectly charged, contracted for or received, except the lawful fees, if any, actually, and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. If any interest or charges in excess of those permitted by this act shall be charged, contracted for or received, the contract of loan shall be null and void and the licensee shall have no right to collect or receive any principal, interest or charges whatsoever.” By section 17 of the act it is declared that “no loan for which a greater rate of interest or charge than is allowed by this act has been contracted for or received, wherever made, shall be enforced in this State.”

In authorizing an interest charge nf 3y% per cent, per month that statute deals not with days, but with months; and the word “month,” as therein used, means a calendar month, whether the particular month for which the interest is to be computed happens to consist of 28, 29, 30, or 31 days. Civil Code (1910), §5; 1 Words & Phrases (2d series), 552. It appears, from the uncontradicted evidence, that the plaintiff repeatedly collected monthly installments of interest in excess of 3% Per cent, per month; in fact, that, notwithstanding the terms of the contract and of the statute, he intentionally disregarded calendar months in all his computations of interest, endeavoring only to compute it at the rate of 3% per cent, per month for the actual number of days between payments. He undertakes to excuse as bona fide errors of computation all excessive charges of interest appearing, from that method of calculation. In view of the emphatic and unambiguous provision -of the statute that “no further or other charge or amount whatsoever, for any . . thing, or otherwise, shall be directly or indirectly charged, contracted for or received,” the principle announced in Patton v. Bank of LaFayette, 124 Ga. 965 (4) (53 S. E. 664, 5 L. R. A. 592), is not here applicable,' nor do even bona fide errors of calculation seem to afford a sufficient excuse for such overcharges. Especially is this so under the peculiar facts of this case, where there was no necessity whatever for computing interest for the fractional part of a month, and where the plaintiff still retains the benefits of his admitted errors and does not appear to have ever made any effort to restore or account for the sums thus wrongfully taken. Nor is it any excuse to say that the amount of usury thus taken was small. As for that matter, the principal debt itself was small, and could in no event exceed the sum of $300. But from the date ¿/the loan, December 19, 1921, to the date of the first interest payment, January 19, 1922, was exactly one month of 31 days. Three and a half per cent, interest on the principal debt of $204 for that month was $7.14. The amount of interest collected was $7.38, or an excess of 24 cents. Small as that may seem, a similar excessive charge for each month during the twelve months period involved would amount to more than one per cent, per annum on the entire principal debt for the year. For the second month the plaintiff appears to have collected 43 cents in excess of the maximum rate of interest allowed by the act in question, this excess alone amounting to almost as much as one month’s interest at the rate of 3 per cent, per annum on the principal debt of $187 then outstanding. Other monthly collections of interest show overcharges, while some of them show undercharges; but if further details are desired, the table set out above affords a sufficient basis therefor.

The question then is: What effect, if any, do such overcharges have on the bill of sale as evidence of plaintiff’s alleged title ? The small-loan act of 1920 allows of but one answer. While it allows to lenders of small sums who comply with its provisions the unusual privilege of charging and collecting interest thereon at the rate of 3% per cent, per month, or 42 per cent, per annum, where other persons are allowed only 8 per cent, per annum, it also provides the unusual penalty of forfeiture of both principal and interest for one who undertakes to do business under its provisions and who, in any manner whatsoever, contracts for or receives, either directly or indirectly, any thing whatsoever in excess of its provisions for money thus loaned. In the language of the act: “If any interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void, and the licensee shall have no right to collect or receive any principal, interest or charges whatsoever.” It necessarily follows that the plaintiff was not entitled to recover.

Aside from such excessive charges of interest, does the plaintiff show any right to charge or collect interest even at the rate of 3% Per cent. Per month in accordance with the provisions of the small-loan act of 1920? From section 1 of that act it emphatically appears that the privilege of charging such a high rate of interest is allowed only to those who are bonded and licensed in accordance with the subsequent sections of the act. In this case the plaintiff failed to show that he was such a licensee. Proof of that fact, if it is a fact, was necessary to bring him within the prospective provisions of the act and establish his right to the rate of interest claimed by him; in short, it was essential to his case, since the payments as made amount to more than enough to cover the principal debt and interest thereon at the rate of 8 per cent, per annum.

Again, by section 8 of that act it is provided: “No person, co-partnership or corporation so licensed shall make any loan provided for by this act under any other name or at any other place of business than that named in the license. Not more than one place shall be maintained under the same license, but the licensing official shall issue more than one license to the same licensee upon the payment of an additional license fee and the filing of an additional bond for each license.” While the debt in question was payable to “S. Jay Masters, or order, or bearer,” yet it appears from the evidence that the contract was negotiated for him by the Southern Security Company, through its manager. Not only is it a matter of doubt as to which of them, if either, is a licensee under the act of 1920, but the evidence utterly fails to disclose at whose place of business the loan was made. In order to come within the terms of the act, the loan must have been made at the place of business named in the license issued to the licensee; and since this loan was made in the name of S. Jay Masters, and a licensee cannot lawfully make such a loan in any name other than his own, it was essential to the plaintiffs case to show that he was a licensee, and that the loan was made at his authorized place of doing such business. Without such proof the payments made are ample to cover the principal debt and interest thereon at 8 per cent, per annum. Section 14 of the act of 1920 provides, in part, that “Every licensee shall deliver to the borrower at the time the loan is made a statement . . showing . . the name and address . . of the borrower and of the licensee.” The document introduced in evidence by the plaintiff to establish his compliance with this provision does not contain his own name or the name of the Southern Security Company, or the address of any other person or concern, as such lender. It does state the name and address of one of the defendants “In account with Surety Loan Company.” For this reason also the plaintiff failed to bring himself within the terms of the small-loan act of 1920, or establish his authority to collect interest at a rate in excess of 8 per cent, per annum. Whether the plaintiff sufficiently showed a compliance by him with the other provisions of that act need not be here considered.

The act as a whole is unusually free from ambiguities; and, as was said by Judge Nisbet in the opinion in Neal v. Moultrie, 12 Ga. 110: “The exclusion of interpretation, where none is needed, may be stated to be, notwithstanding the absurdity which it involves, the first rule of construction.” In Badger v. State, 154 Ga. 443 (114 S. E. 635), this act was held to be constitutional as against the several attacks there made upon it. The question now presented for decision is whether it makes or destroys the plaintiff’s case as proved by him upon the trial in the municipal court. And we hold that every person who seeks to bring himself within the provisions of the small-loan act of 1920, so as to be authorized to enforce a contract for interest at the rate of 3% per cent, per month, must, as conditions precedent to such alleged right, show (1) that he was a licensee under this act, (2) that the contract sought to be enforced was made under such license and at the place of business therein designated, (3) that the contract does not upon its face show any violation of this act or failure to comply with its mandatory provisions, and (4) -that he delivered to the borrower at the time of the loan the statement prescribed by section 14 of the act. In other words, the burden of proof is upon the plaintiff to establish the apparent validity of the contract upon which he relies for a recovery. Even then the defendant may render the contract null and void by alleging and proving that subsequent to the execution of such a valid contract the plaintiff received thereon some one or more of the things prohibited by section 13 of the statute. Applying these principles to the facts of the instant case, the court erred in overruling the certiorari.

Judgment reversed.

Broyles, G. J., and Bloodworlh, J., concur. .


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    15299.
    Quattlebaum v. The State.
   Luke, J.

1. A ruling ón a demurrer cannot properly be made a ground of a motion for a new trial. Park's Penal Code, § 1096, annotations under catchword “Demurrer.”

2. In the trial of an indictment for arson the conduct of the accused shortly before and leading up to the alleged burning is a proper matter of inquiry.

3. Where an indictment for arson charges the accused with “wilfully, maliciously, and purposely” setting fire to and burning a described building, it is not erroneous for the court, in charging the jury, to define the offense in the language of the statute, treating as surplusage the word “purposely,” used in the indictment.

Decided April 16, 1924.

Conviction of arson; from Bulloch superior court — Judge Strange. December 15, 1923.

Deal & Renfroe, for plaintiff in error.

A. S. Anderson, solicitor-general, contra.

4. The evidence authorized the verdict, and for no reason assigned was the judgment overruling the defendant’s motion for a new trial erroneous.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Broyles, C. J.

text:
    15301.
    SIMMONS v. SIMMONS.
    The defendant’s plea contains redundant, superfluous, and irrelevant matters, including various transactions alleged to have been entered into between the plaintiff and a third person — not a party to this suit — which were calculated to mislead and prejudice the jury against the plaintiff’s right to recover; and the court erred in overruling the plaintiff’s timely special demurrer in which the plea is attacked upon this ground. This error rendered the further proceedings in the case nugatory.
    Decided April 16, 1924.
    Action for breach of contract; from Bulloch superior court— Judge Strange. December 26, 1923.
    This is a suit by R. Simmons against Brooks Simmons to recover the par value of certain Dnited States government bonds. The petition alleged that the plaintiff was the owner of these bonds, and that, having been approached by the defendant for a loan, he delivered the bonds to the defendant on or about April 1, 1921, with the agreement that the defendant could pledge or sell the bonds, but that the petitioner should be paid semiannually the interest stipulated in the bonds, and that the bonds should be returned to him- in the fall of 1921, or, in the event that the bonds had been sold by the-defendant, other bonds of the same issue and description and for the same amount wefe to be returned to him by the defendant. It was alleged that the defendant breached this contract, in that he failed and refused to return the bonds borrowed, or other bonds of the same issue, or to pay petitioner the val\i.e thereof, or to pay any interest, except the semiannual interest which was due on June 15, 1921, although petitioner demanded from time to time since the fall of 1921 that defendant return the borrowed bonds or other bonds of the same issue.

      The defendant filed an answer in which he denied all the material allegations of the petition, except that the plaintiff was the owner of the bonds at the time specified in the petition; and in paragraph 7 of his answer he alleged that he was not individually indebted to the plaintiff, because he did not borrow or use the bonds for himself, but that the bonds were loaned to and used by a corporation known as the Brooks Simmons Company. The remaining paragraphs (eight to thirteen inclusive) of the defendant’s answer set forth in detail certain transactions between the plaintiff and the Brooks Simmons Company relative to an alleged sale of a stock of merchandise, furniture, and fixtures) and to various claims and counterclaims between the Brooks Simmons Company and the plaintiff, including accounts which had run for a period of years and which in the aggregate involved large sums of money.
    The plaintiff in due season filed a special demurrer to that part of the defendant’s answer which related to the transactions between the Brooks Simmons Company and the plaintiff, upon two grounds: (1) that these alleged transactions were irrelevant to the cause of action and the parties set forth in the petition; and (2) that the allegations demurred to related to transactions alleged to have been made and entered into between parties different and separate from the plaintiff and defendant. The court overruled plaintiff’s demurrer, and he excepted pendente lite. The case then proceeded to trial and a verdict was returned in favor of the defendant. The plaintiff filed a motion for a new trial, which was overruled, and he excepted.

      Anderson & Jones, F. B. Hunter, Howell Gone, for plaintiff.

      Fred T. Lanier, Hinton Booth, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.) As we view this case it is only necessary to consider the exceptions to the judgment overruling the plaintiff’s special demurrer. It is our judgment that the court erred in refusing to sustain the demurrer and in not striking that portion of defendant’s plea which showed affirmatively that the matters set forth in paragraph 8 to 13 inclusive were not only foreign to the issue, but concerned parties different from those named in the petition. The harmful effect of permitting these transactions to go to the jury and to be read and considered by them is obvious. The transactions show, upon their face, that they relate to a long series of dealings between the plaintiff and a stranger to this case. They were not only calculated to confuse the jury upon the real issue in the case, but to prejudice them against the plaintiffs right to recover. In other words, to use the language employed by Justice Evans in the case of Lampkin v. Garwood, 122 Ga. 410 (50 S. E. 172), “such allegations, in a suit for a breach of contract, not only have no place in legitimate pleading, but are calculated to mislead and prejudice the jury, if read in their hearing or commented on in the argument of the case.-” See also Reese v. Reese, 89 Ga. 645 (3) (15 S. E. 846); Augusta Railway Co. v. Glover, 92 Ga. 132 (2), 142 (2) (18 S. E. 406).

It follows from what has been said that the court erred in overruling the special demurrer; and this error rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    15304.
    Anderson v. The State.
    Decided April 16, 1924.
    Conviction of manufacture of liquor; from Wilkes superior court — -Judge Shurley. December 8, 1923.

      Colley & Colley, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodworth, J.

1. Eor no reason alleged does the excerpt from the charge, of which complaint is made, require the grant of a new trial, when it is considered in connection with the facts of the case. See Belcher v. State, 25 Ga. App. 493 (103 S. E. 852).

2. There was direct evidence that in the smoke-house of the defendant, at his residence, there was found a fifty-gallon barrel of mash which was “fermented and ready to make liquor,” and which if drunk to excess would produce intoxication. The conviction of the defendant did not, therefore, depend entirely upon circumstantial evidence, and it was not error, in the absence of a timely and appropriate written request, for the judge to omit to instruct the jury upon the law of circumstantial evidence.

3. The evidence authorized the verdict, and the motion for a new trial was properly overruled.

Judgment affirmed.

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


text:
    15305.
    Washington et al. v. The State.
    Decided April 16, 1924.
    Conviction as accessory alter the fact of murder; from city court of Newuan — Judge Post. December 28, 1923.
    Certiorari was granted by the Supreme Court.

      J. 8. Hall, G. G. Finch, A. S. Camp, for plaintiffs in error.

      W. L. Stallings, solicitor, contra.
   Broyles, C. J.

1. Where two defendants are jointly indicted and jointly tried, and make a joint motion for a new trial, a joint writ of error to review the judgment overruling the motion can properly be sued out. Harnage v. State, 7 Ga. App. 573 (2) (67 S. E. 694); Walden v. State, 9 Ga. App. 584 (1) (71 S. E. 945).

(a) Where, however, two defendants, after being jointly indicted and jointly tried, make separate motions -for a new trial, and the court passes separate written orders overruling the motions, the defendants cannot bring their cases to this court in one bill of exceptions. This is true because, while the defendants had the right to unite and to make a joint motion for a new trial, they warned this right and elected to make separate motions, and, the court having separately passed upon each jnotion, the two distinct and separate judgments, overruling the two distinct and separate motions for a new trial, cannot be reviewed in one bill of exceptions. It follows that this co'urt is without jurisdiction to entertain the bill of exceptions in this case, and that the motion of the State to dismiss the writ of error must be granted.

(6j The decision in the case of Powell v. State, 152 Ga. 81 (108 S. E. 464), does not conflict with the ruling made in this case, for in that case no motion for a new trial -was filed, but the defendants joined in a direct bill of exceptions to the judgment finding them in contempt of ■ court. There was no waiver of their rights in that case.

Writ of error dismissed.

Luke and Bloodworih, JJ., concur.


text:
    15306.
    Newton v. Mayor and Aldermen of Savannah.
   Luke, J.

1. “A petition for certiorari to review the judgment of a police or recorder’s court, unless a pauper’s affidavit is made, must affirmatively allege (among other things) that the petitioner has filed with the clerk of that court, if it has a clerk, a bond payable, etc., and conditioned, etc., which has been approved and accepted by said clerk; and there should be attached to the petition a certified copy of the bond, together with a certificate from the clerk of the court that the bond was filed with him and was approved and accepted by him. Unless all these things appear, to wit, the aforesaid allegations in the petition, the certificate of the clerk of the court verifying them, and a certified copy of the bond given, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing.” Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1 (90 S. E. 970).

Decided April 16, 1924.

Certiorari; from Chatham superior court — Judge Meldrim. November 30, 1923.

B. L. Golding, for plaintiff in error.

2. Under the above ruling- the certiorari should have been dismissed, but as the same result was reached by its being overruled, the judgment will not be reversed. Memmler v. State, 75 Ga. 576 (1 a); Kendricks v. Millen, 16 Ga. App. 273 (3) (85 S. E. 264); Flynn v. East Point, 18 Ga. App. 729 (90 S. E. 372).

Judgment affirmed.

Broyles, G. J., and Bloodivorth, J., concur.


text:
    15307, 15331.
    Mayor and Aldermen of Savannah v. Foltz; and vice versa.

    Decided April 16, 1924.
    Complaint; from Chatham superior court — Judge Meldrim. January 4, 1924.
    From the petition it appears that on January 18, 1923, the mayor and aldermen of Savannah passed a resolution authorizing the clerk of council “to have photographs taken of each and every page of the petition of sundry citizens endorsing Paul E. Seabrook • as independent candidate, for mayor of Savarpiah, and to have a bound copy of these photographs preserved for the purpose of being held in the general office of the clerk of council for inspection by the public,” and it was “further resolved that payment of the bill for the work aforesaid be . . appropriated out of the city treasury for such purpose,” and the city comptroller was “authorized and directed to draw voucher upon the city treasurer for the same.” It appears that thereafter the plaintiff made a bid for the photographing, that his bid was accepted by the clerk of council, and that he furnished to the clerk 199 cloth-mounted prints of the petition, and presented a bill for them at the price named in his bid, amounting to $398, the amount sued for. In the demurrer it was contended that the mayor and aldermen were without charter authority to authorize the work in question, and that the resolution providing for the spending of money for the purpose stated was invalid."
   Broyles, C. J.

1. Nothing is more harmful to the peace, welfare, and good government of a city than a corrupt administration of its election laws; and a pure and clean administration .thereof is, beyond all question, conducive to the public welfare. It follows that under the general welfare clause of the charter of the city of Savannah, the city has the authority to have made photographic copies of any public records bearing upon the election of a mayor or alderman of the city of Savannah, for the purpose of having them kept in the office of the clerk of council for the inspection of the public.

2. The petition in this case set out a cause of action, and the court did not err in overruling the general demurrer.

Judgment affirmed on the main hill of exceptions; cross-hill dismissed.

Luke and Bloodivorth, JJ., concur.

F. P. Mclniire, for plaintiff in error.

Lawrence & Almhams, David S. Atkinson, contra.


author: Bloodwortii, J.

text:
    15312.
    Lindsay v. The State.
    Decided April 16, 1924.
   Bloodwortii, J.

1. “In tlie light of the rule that in misdemeanors all wlio aid or abet are principals, one who, at a place where an illicit distillery is in operation, participates by such acts as helping barrel the liquor, helping keep up the fire, and leveling the still worm when it is about to get out of proper adjustment, may be convicted upon an indictment charging him with manufacturing liquor.” Strickland v. State, 9 Ga. App. 201 (2) (70 S. E. 990). See also Gason v. State, 21 Ga. App. 122 (94 S. E. 268).

2. “One who is present at a distillery when whisky is being manufactured, and who personally assists in the manufacture, is guilty of manufacturing whisky; and it is immaterial whether or not he is hired to work thereat.” Thomas v. State, 24 Ga. App. 350 (100 S. E. 760).

3. “Presence of a person at a distillery where intoxicating liquor is'being made, and his flight on seeing an officer approaching, may, when not satisfactorily explained, authorize a jury to find him guilty of making such liquor. Whether an attempted explanation of such presence and conduct is reasonable and satisfactory is a question for the jury.” Flint v. State, 29 Ga. App. 222 (114 S. E. 584); Yonce v. State, 29 Ga. App. 73 (114 S. E. 584); s. c. 154 Ga. 419 (114 S. E. 325).

4. “Whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732).

5. Under the rulings in the foregoing cases the evidence in this case was sufficient to authorize the jury to find tlie defendant guilty. The trial judge was satisfied with the verdict, and, as no error of law was committed, this court cannot interfere.

Judgment affirmed.

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

Conviction of manufacture of liquor; from Paulding superior court — Judge Irwin. December 15, 1923.

A. L. Bartlett, for plaintiff in error.

B. 8. Griffith, solicitor-general, contra.


text:
    15313.
    Meek v. The State.
    Decided April 16, 1924.
    Conviction of manufacture of liquor; from Paulding superior court — Judge Irwin. December 28, 1923.

      A. L. Bartlett, for plaintiff in error.

      B. 8. Griffith, solicitor-general, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only. The evidence was conflicting and would have authorized the defendant’s acquittal, but it also authorized his conviction, and, the finding of the jury against him having been approved by the trial court, this court is without authority to interfere.

Judgment affirmed.

Luke atnd Bloodworth, JJ., concur.


text:
    15314.
    Sinyard v. The State.
    Decided April 16, 1924.
    Indictment for possessing distilling apparatus; from Paulding superior court — Judge Irwin. December 15, 1923.

      J. B. Hutcheson, for plaintiff in error.

      B. 8. Griffith, solicitor-general, contra.
   Luke, J.

The evidence authorized the defendant’s conviction of having located upon his premises an apparatus for the distilling and manufacture of liquor, and the court did not err in overruling his motion for a new trial based upon the general grounds only.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    15320.
    Isom v. The State.
   Bloodworth, J.

1. “In this State the husband is recognized by law as the head of his family, and, where he and his wife reside together, the legal presumption is that the house and all the household effects, including any intoxicating liquors, belong to the husband as the head of he family. This presumption of course is rebuttable. Young v. State, 22 Ga. App. 111 (95 S. E. 478), and authorities cited.” Hendrix v. State, 24 Ga. App. 56 (95 S. E. 478). Under the foregoing ruling there is no eiTor in the first special ground of the motion for a new trial.

Decided April 16, 1924.

Conviction of possession of liquor; from city court of Floyd county — Judge Bale. January 5, 1924.

Porter & Mebane, for plaintiff in error.

James Maddox, solicitor, contra.

2. “The court is not required to charge upon a theory of defense arising solely from the statement of the accused, in the absence of a timely written request so to charge. Hardin v. State, 107 Ga. 718 (33 S. E. 700); Baker v. State, 111 Ga. 141 (36 S. E. 607); Gay v. State, 111 Ga. 649 (36 S. E. 857); Richards v. State, 114 Ga. 834 (40 S. E. 1001); Smith v. State, 117 Ga. 259 (43 S. E. 703); Johnson v. State, 4 Ga. App. 59 (60 S. E. 813).” Lott v. State, 18 Ga. App. 747 (2) (90 S. E. 727). See also Green v. State, 22 Ga. App. 793 (97 S. E. 201). The rulings in the foregoing ca'ses dispose of the second ground of the amendment to the motion for a new trial adversely to the plaintiff in error.

3. Under the facts of this ease, and in the absence of a legal and proper written request to charge as provided by section' 6084 of the Civil Code of 1910, the court did not err in failing to charge on circumstantial evidence.

4. The verdict is not without evidence to support it.

Judgment affirmed.

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


text:
    15321.
    Sampson v. The State.
    Decided April 16, 1924.
    Indictment for arson; from Thomas superior court — Judge W. E. Thomas. December 15, 1923.

      Titus & Delete, for plaintiff in error.

      O. E. Hay, solicitor-general, Eva Lulce Hay, contra.
   Broyles, C. J.

1. In view of the note of the trial judge this court cannot say that the overruling of the motion for continuance was error.

2. The verdicr was amply authorized by the evidence, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

•Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Duke,' J.

text:
    15330.
    Wilson et al. v. The State.
    Decided April 16, 1924.
    Indictment for larceny of automobile; from Bibb superior court —Judge Mathews. December 3, 1923.

      C. D. Irwin, W. A. McClellan, for plaintiffs in error.

      Charles H. Garrett, solicitor-general, contra.
   Duke,' J.

1. Where, fifteen minutes after the jury retired to consider their verdict, counsel for the accused voluntarily absented himself from the court, without leave, and, during the same session, the court was regularly advised that the jury had agreed upon a verdict, and the court had counsel for the accused called and made a reasonable effort to locate him, and failing to do so, received the verdict during his absence, caused the jury to be polled, and thereupon sentenced the prisoners in accordance with the verdict so received, this was not error requiring the grant of a new trial, the defendants being present in court. Roberson v. State, 135 Ga. 654 (2) (70 S. E. 175); Richards v. State, 136 Ga. 67 (2) (70 S. E. 868).

2. Under the facts of this ease, the court did not err in charging the jury as follows: “One of the circumstances the State contends is proven in this case is that these defendants were found in possession of the car alleged to have been stolen, shortly after it was stolen the next day. If you believe from the evidence, as a matter of fact, these defendants were found in possession of this ear the next day after it was stolen, if it was stolen, you would be' authorized from that circumstance alone to infer that it was stolen and infer the guilt of the defendants; that is, you would be authorized to so find. But it is a question for the discretion and judgment of the jury as to whether that circumstance alone would be sufficient to so find. The law says if you believe it, you may find the defendants guilty from that circumstance alone. But, after all, it comes back to the general proposition, that guilt must be shown beyond a reasonable doubt.” The sole criticism urged against this charge is that “it. absolutely eliminated from the consideration of the jury the question of the reasonable explanation of the possession of stolen property which a defendant may make and which is a good defense under the law.” If the defendants, or either of them, had undertaken to make any explanation of their possession, there might be some foundation for this criticism; but, while the evidence tended to show that the automobile was stolen at night and was found in the possession of the defendants early on the following morning, yet, instead of undertaking a satisfactory explanation of such possession on their part, each of the defendants denied it.

3. The evidence authorized the verdict finding the defendants guilty of the larceny of an automobile as charged, and for no reason assigned was the judgment of the lower court overruling the motion for a new trial erroneous.

Judgment affirmed.

Broyles, O. J., and Bloochoorth, J., concur.


text:
    15340.
    Harp v. The State.
    Decided April 16, 1924.
    Indictment for manufacture of liquor; from Macon superior court — Judge Littlejohn. December 12, 1923.

      J. J. Bull & 8on, for plaintiff in error.

      Jule Fellon, solicitor-general, contra.
   Bloodworth, J.

There is no merit in any of the special grounds of the motion for a new trial. There is some evidence to support the finding of the jury, and the motion for a new trial was properly overruled. See Lindsay v. State, 32 Ga. App. 74 (122 S. E. 649).

Judgment affirmed.

Broyles, O. J., and Luhe, J., eoneur.


text:
    15346.
    Bishop v. The State.
    Decided April 16, 1924.
    Rehearing denied May 14, 1924.
    Accusation of abandonment of children; from city court of Griffin — Judge Darsey. December 22, 1923.

      John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.
    IF. H. Connor, solicitor, C. A. Byars, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    15361.
    Clark v. The State.
    Decided April 16, 1924.
   Luke, J.

1. “In order,to convict a person of knowingly having upon his premises any apparatus for the distilling or manufacturing of intoxicating liquors, it is not necessary for the State to prove, unless it is so charged in the indictment, that a complete apparatus, or all the apparatus necessary for the making of whisky, was found upon the premises.” Strickland v. State, 27 Ga. App. 321 (2) (108 S. E. 124), and citation.

2. Under the above ruling, the defendant’s conviction in the instant case was authorized by the evidence, and the court did not for any reason assigned err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

Accusation of violation of liquor law; from city court of Floyd county — Judge Bale. January 12, 1924.

F. W. Copeland, for plaintiff in error.

James Maddox, solicitor, contra.


author: Blood worth, J.

text:
    15366.
    Tooke v. The State.
    Decided April 16, 1924.
    Indictment for manufacture of liquor; from Macon superior court — Judge Littlejohn. December 18, 1923.

      J. J. Bull & Son, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Blood worth, J.

1. Each of grounds 2, 3, and 4 of the amendment to the motion for a new trial is but an amplification of the general grounds. Under the qualifying note of the trial judge to each of the other special grounds, none of them requires the grant of a new trial.

2. There is ample evidence to support the verdict.

Judgment affirmed.

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


text:
    15369.
    McPherson v. The State.
    Decided April 16, 1924.
    Indictment for manufacture of liquor; from Macon superior court — Judge Littlejohn. December 13, 1923.

      J. J. Bull & Son, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Broyles, C. J.

The defendant was charged with making whisky. The evidence, while circumstantial, authorized his conviction, and the court instructed the jury upon the law of circumstantial evidence. None of the grounds of thp amendment to the motion for a new trial shows cause for a reversal of the judgment overruling the motion.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    15370.
    WELLS v. THE STATE.
    The refusal to declare a mistrial because of the improper statements of one of the prosecuting attorneys in his argument to the jury was, under the facts of this ease, error requiring the grant of a new trial.
    Decided April 16, 1924.

      Indictment for assault with intent to murder; from Coffee superior court — Judge Summerall. December 29, 1923.

      Diclcerson & Kelley, Gasey Thigpen, for plaintiff in error. .

      A. B. Spence, solicitor-general, J. N. McDonald, contra.
   Luke, J.

The accused, a female, was on trial for assault with intent to murder. Her character was not in issue. It incidentally appears from uncontradicted testimony that she was married, though not living with her husband at the time of the alleged transaction. During the concluding argument an attorney employed by the prosecutrix declared to the jury, “You should convict the little wench,” and, in reply to a motion by defendant’s counsel for a mistrial, he added: “I base the fact that she is a wench on the fact that she has got no husband and that she has got a baby.” Defendant’s counsel then duly moved for a mistrial because of both of such statements of the special counsel for the prosecution. The court overruled the motion, saying: “I will instruct the jury not to consider the argument of counsel to the defendant’s character, and I will overrule the motion for mistrial.” This ruling is assigned as error in defendant’s motion for a new trial. Civil Code (1910), §4957; Morris v. Maddox, 97 Ga. 575 (2) (25 S. E. 487); Hudson v. State, 101 Ga. 520 (3) (28 S. E. 1010); Ivey v. State, 113 Ga. 1062 (2) (39 S. E. 423); Butler v. State, 142 Ga. 286 (11) (82 S. E. 654); Smoot v. State, 146 Ga. 76 (1) (90 S. E. 715). The argument of counsel was not authorized by the evidence, and the court failed in its charge to instruct the jury not to consider it.

Other grounds of the motion for a new trial, if meritorious, are not such as will likely recur upon another trial of the case.

Judgment reversed.

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


text:
    15373.
    McCoy v. The State.
   Bloodworth, J.

1. “There being no proof of a plenary confession by the accused, but, at most, evidence only of incriminatory admissions, it was such an error to charge the law relating to confessions as to require the grant of a new trial. These incriminatory admissions are not conclusive; and proof of inculpatory admissions will not authorize a charge upon the subject of confession. Owen v. State, 120 Ga. 296 (48 S. E. 21); Riley v. State, 1 Ga. App. 651 (57 S. E. 1031), and decisions cited.” Porter v. State, 11 Ga. App. 246 (74 S. E. 1099). Under tlie foregoing ruling the judge erred in charging the law relating to confession. See also Beasley v. State, 28 Ga. App. 564, and cases cited in the opinion (p. 565); Chislon v. State, 19 Ga. App. 608 (1).

Decided April 16, 1924.

Conviction of manslaughter; from Randolph superior court— Judge Yeomans. December 29, 1923.

Charles W. Worrill, for plaintiff in error.

B. T. Gastellow, solicitor-general■, B. B. Arnold, contra.

2. It is not necessary to pass upon the other grounds of the motion for a ■new trial, as the issues raised therein are such as are not likely to recur on another trial.

Judgment reversed.

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


text:
    15376.
    Hester v. The State.
   Broyles, C. J.

1. Where sequestration of the State’s witnesses was requested by counsel for a defendant on trial for assault with intent to rape, and there were only two witnesses for the prosecution, — a 12-year old girl (the alleged victim), and her mother, — the judge did not abuse his discretion in allowing the mother, who was the prosecutrix, to remain in the court-room during the trial and to testify after her daughter had testified. See, in this connection, Swain v. State, 151 Ga. 375 (2) (107 S. E. 40), and citations.

2. “When the facts from which the inference of guilt or innocence is to be drawn are all established by direct proof, and only the intent with which the alleged criminal act was committed, or the degree of criminality, . must be inferred, the trial judge, in the absence of a timely request, is not required to give in charge to the jury the usual rule applicable to circumstantial evidence, to the effect that if the proved facts are consistent with innocence, the defendant should be acquitted; this for the reason that every one is presumed to intend the natural and legitimate consequences of his acts.” Reddick v. State, 11 Ga. App. 150 (3) (74 S. E. 901). Under this ruling, and the facts of the instant case, the failure of the court to charge upon the law of circumstantial evidence, in the absence of a timely and appropriate written request, was not error. The ease of Cooper v. State, 2 Ga. App. 730 (3) (59 S. E. 20), relied upon by the plaintiff in error, is distinguished by its particular facts from the Reddick case and the case at bar.

3. “Under the provisions of the act of the General Assembly of Georgia, raising the ‘age of consent’ of female children to fourteen years (Ga. L. 1918, p. 259), the offense of an assault with intent to rape, when committed upon a female child over ten years old and under fourteen years of age, is not a reducible felony.” Atkins v. State, 154 Ga. 540 (114 S. E. 878). Under this ruling there is no merit in the 3d special ground of the motion for a new trial.

Decided April 16, 1924.

Conviction of assault with intent to rape; from Laurens superior court — Judge Kent. December 4, 1923.

W. A. I)ampiar, for plaintiff in error.

E. L. Stephens, solicitor-general, contra.

4. Tlie evidence authorized the verdict, and the overruling of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

Lulce and Bloodworth, JJ., eoneur.


text:
    15377.
    Waters v. The State.
    Decided April 16, 1924.
    Motion to change venue; from Jeff Davis superior court — Judge Highsmith. January 15, 1924.

      L. C. Harrell, Russell Ross, W. B. Kent, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, Walter F. Grey, solicitor-general, S. D. Hell, contra.
   Luke, J.

1. Where a petition for a change of venue is made by one accused of crime, under the provisions of section 964 of the Penal Code of 1910, relating to change of venue in criminal cases, and after hearing evidence the judge refuses the petition, a bill of exceptions to review such judgment must be tendered to the judge hearing the petition within 6 days after the refusal to grant the same. Ga. L. 1911, p. 74.

2. Under the above ruling, the bill of exceptions in the instant case must be dismissed.

Writ of error dismissed.

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


text:
    15378.
    McLendon v. The State.
    Decided April 16, 1924.
    Accusation of possession of liquor; from city court of Carrollton —Judge Hood. January 11, 1924.

      Smith & Millican, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Bloodworth, J.

1. When all the evidence and the entire instructions given to the jury in this case are considered, neither of the special grounds of the motion for a new trial shows error that requires a reversal of the judgment.

2. The, verdict is supported by some evidence and has the approval of the trial judge, and, as no error of law is shown to have been committed, this court will not interfere.

Judgment affirmed.

Broyles, O. J., and Lulce, J., eoneur.


text:
    15379.
    Richardson v. The State.
    Decided April 16, 1924.
    Accusation of possession of liquor; from city court of Carrollton —Judge Hood. January 11, 1923.

      Smith & Millican, for plaintiff in error,

      Willis Smith, solicitor, contra.
   Broyles, C. J.

Tlie verdict was amply authorized by tne evidence, and none of the special grounds of the motion for a new trial shows reversible error. Judgment affirmed.

Lúhe and Bloodtoorth, JJ., concur.


author: Bloodwohth, J.

text:
    15383.
    HERRINGTON v. THE STATE.
    1. The first ground of the extraordinary motion for a new trial is without merit, because: (a) The letter referred to therein could not legally be admitted in evidence in case a new trial should be ordered. Perry v. State, 102 Qa. 368 (1) (30 S. E. 903). (&) Statements by a third person that he and not the accused was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial. Oooh v. State, 22 Qa. App. 790 (5) (97 S. E. 258), and case cited. See, in this connection, Kelly v. State, 82 Qa. 441 (2) (9 S. E. 171) ; Robison v. State, 114 Qa. 445 ( 2) (40 S. E. 253); Rawlins V. State, 126 Qa. 96 (3, 4) (54 S. E. 924). Moreover, before a new trial should be granted upon alleged newly discovered evidence it should be such as, if believed, would probably produce a different verdict upon another trial, — such evidence as would be “decisive of the controversy.” The record shows that the person who claims to have been the actual perpetrator of the crime in this case was tried and sentenced to the State penitentiary of Virginia, and had a bad record in “various other-places. ” The evidence of such a witness, when disputed in any case, would hardly be “decisive of the controversy.”
    2. Evidence that Byrd (now deceased) told McSwain that “one of his men who was working with him investigating the accident” told Byrd that some unnamed and unidentified person told him (Byrd’s assistant) that the car which hit deceased was a Nash touring-car and was driven by him (the unnamed person) is clearly hearsay, and would not be admissible upon a trial of the case.
    3. The only effect of the alleged newly discovered evidence referred to in the 3d ground of the extraordinary motion for a new trial would be to impeach the witness referred to therein. “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the ease, if the sole effect of the evidence would be to impeach the witness a new trial will not be granted. Arwood v. State, 59 Qa. 391 (1); Levining v. State, 13 Qa. 513 (1); Wright v. State, 34 Qa. 110 (2); Jachson v. State, 93 Qa. 190 (18 ¡S. E. 401) ; Haynes v. Stale, 18 Ga. App. 741 (3), 742, 743 (90 S. E. 485), and oases cited.” Key v. Slate, 21 Ga. App. 795 (1) (95 S. E. 269).
    4. It is now the fixed law of this State that “the extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs; as, when a man has been convicted of murder and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character.” Rogers v. State, 18 Ga. App. 702 (90 S. E. 356), and eases cited.
    Decided April 16, 1924.
    Rehearing denied May 13, 1924.
    Conviction of involuntary manslaughter; from Bibb superior court — Judge Mathews. January 12, 1924.

      John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      Charles R. Garrett, solicitor-general, contra.
   Bloodwohth, J.

To the headnotes it is necessary for a clear understanding of this case to add only the following statement of facts: Plaintiff in error was tried under an indictment which charged him with the murder of J. M. Cofer. He was convicted of involuntary manslaughter, made a motion for a new trial, which was overruled, and the judgment was affirmed by this court (31 Ga. App. 167). Certiorari, was denied by the Supreme Court.Later the plaintiff in error filed an extraordinary motion for a new trial, which was overruled, and he excepted. The three grounds of the extraordinary motion which are insisted on in this court are: (1) Newly discovered evidence consisting of a letter which purported to have been written by one O. E. Burnett, then in jail at Danville, Va., which was addressed to the "Chief of Police, Macon, Ga.,” and left on the desk of the acting chief of police of Danville, and in which Burnett said that he, and not Herrington, was the person that killed Gofer, and that he was driving a “Nash-six touring-car.” (2) Newly discovered evidence of H. L. McSwain that Walter C. Byrd (now deceased), who was at the time acting deputy sheriff of Bibb county, Georgia, and who was investigating the killing of Cofer by an automobile, told him that “one of his men who was working with him investigating the accident told him that the car that hit J. M. Cofer and killed him was a Nash-six touring-car, and that his helper got in the car and rode up the road a piece with him, and while he was in the car the man driving the car told him that he had struck a man back down the road, but didn’t think that he hurt him very bad.” (3) Newly discovered evidence of the bad character of Mary Smith, a witness for the State.

The extraordinary motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Bell, J.

text:
    13536.
    Citizens and Southern Bank v. Union Warehouse and Compress Company.
    Decided April 19, 1924.
    Complaint; from Richmond superior court — Judge ITenry 0. Hammond. March 23, 1922.

      Wright & Jackson, Adams & Adams, for plaintiff.

      Alexander & Lee, for defendant.
   Bell, J.

The Court of Appeals certified certain questions in this case to the Supreme Court. Construing the petition in the light of the Supreme Court’s answers, the trial court erred in sustaining the demurrers and dismissing the petition. See Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434 (122 S. E. 327).

Judgment reversed.

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


author: Jenkins, P. J.

text:
    13842.
    13862.
    Boswell v. Roberts. Brown, trustee, v. City of Greensboro.
    Decided April 19, 1924.
    Complaint; from city court of Greensboro — Judge Fisher. June 10, 13, 1922.

      J. G. Faust, for Boswell. Miles W. Lewis, contra.

      Joseph P. Brown, J. G. Fatist, for Brown. J. S. Gdllatoay, Noel P. Park, contra.
   Jenkins, P. J.

Under the answer of the Supreme Court to a question certified to it by this court, “the city court of Greensboro is not a constitutional city court from which writs of error will lie direct” to this court, and the writs of error in the above-stated eases must be-dismissed. Boswell v. Roberts, 157 Ga. 585 (122 S. E. 216).

Writs of error dismissed.

Stephens and Bell, JJ., concur.


text:
    13890.
    Texas Company v. Davis, agent.
    Decided April 19, 1924.
    Action for damages; from Walton superior court — Judge Fort-son. July 30, 1933.

      J. C. Knox, for plaintiff.

      Miles W. Lewis, B. L. & H. G. Gox, for defendant.
   Bell, J.

This was an action for negligence, brought on February 28, 1922, under the act of Congress approved February 28, 1920, known as the “transportation act of 1920,” wherein it is provided that suits may be filed thereunder “not later than two years from the date of” its passage. Held: The court below properly dismissed the suit, on the ground that it was not filed within time. See question certified by this court and the Supreme Court’s answer, in this case: 157 Ga. 538 (122 S. E. 62).

Judgment affirmed.

Jenhms, P. J., and Stephens, J., concur.


text:
    14546.
    Register v. Southern States Phosphate & Fertilizer Company.
    Decided April 19, 1924.
    Affidavit of illegality; from Candler superior court — Judge Hardeman. April 3, 1933.

      Travis & Travis, Charles Emory Smiih, C. W. Turner, for plaintiff in error.

      Kirlcland & Kirhland, contra.
   Bell, J.

This case came up on exceptions by a defendant in 11. fa. to a judgment striking his affidavit of illegality. This court certified to the Supreme Court four questions, which that court has answered. See 157 Ga. 561 (122 S. E. 323). Question 1 related to ground 3 of the affidavit of illegality; question 2 to ground 4; question 3 to ground 1; and question 4 to ground 2. Under the Supreme Court’s answers, grounds 2 and 3 were valid, and the trial court erred in striking the affidavit of illegality as a whole, on an oral motion in the nature of a general demurrer.

Judgment reversed.

Jenhms, P. J., and Stephens, J., concur.


author: .Stephens, J.

text:
    14836.
    Davis et al. v. Griffeth Mule Co.
   .Stephens, J.

1. Since the act of 1916 (Ga. L. 1916, p. 48), repealing the statute by which “all titles to property made as part of an usurious contract” were invalidated (Civil Code of 1910, § 3442), a waiver of homestead in a note infected with usury is not void, and the risk of a surety on tlie note is not, by reason of the note being secretly infected with usury, increased, and the surety therefore is not released. Laing v. Hinesville Bank, 31 Ga. App. 416 (120 S. E. 799).

Decided April 19, 1924.

Complaint; from Madison superior court — Judge W. L. Hodges. June 2, 1923.

Clarence E. Adams, for plaintiffs in error.

Berry T. Moseley, J. T. Murray, contra.

2. In a suit on a promissory note executed since the passage of the act of 1916, supra, where the only defense interposed by the defendant was that he was a surety and was released by reason of the above-stated facts, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    14873.
    STANSALL v. COLUMBIAN NATIONAL LIFE INSURANCE COMPANY.
    1. The evidence abundantly authorized a finding in favor of the defendant.
    2. This court having previously held under the authority indicated in the following statement of facts, that the issue as to fraud alleged to have been perpetrated by the insured in procuring the policy was one of fact to be settled by the jury, it becomes necessary, under the state of the record (which as to the evidence is substantially the same as when the case was previously before this court), to pass upon the special assignments of error.
    3. The special assignments of error argued in the briefs of counsel for the plaintiff in error are dealt with in the opinion. The remaining assignment, not argued in the briefs, is without merit.
    Decided April 19, 1924.
    Action on life-insurance policy; from city court of Atlanta— Judge Reid. June 22, 1923.
    Application for certiorari was denied by the Supreme Court.
    The controversy arising over this claim has been the subject of litigation for about eleven years. The case has previously been before this court three times (13 Ga. App. 508; 19 Ga. App. 247; 27 Ga. App. 537), and before the Supreme Court twice (146 Ga. 267; 150 Ga. 45). There has been one mistrial. On the trial reviewed in 27 Ga. App. 537 (109 S. E. 297), a verdict was directed in favor of the defendant. Under the authority of the decision in Conn. Mutual Life Ins. Co. v. MuTkey, 142 Ga. 358 (82 S. E. 1054), the'verdict directed in favor of the plaintiff in that (the last preceding) trial was set aside by this court in an opinion in which it was said: “In a suit by the same plaintiff on another policy of life insurance covering the same risk, where the issue as to fraud was the same, and the evidence on that issue was for the most part identical and in its effect substantially the same, it was held by the Supreme Court that, “under the evidence introduced, it was for the jury to say whether the representations thus made were material to the risk.’” (27 Ga. App. 537 (1).) On the last trial, which is now before this court for review, the evidence for each of the parties was substantially the same, and resulted in a verdict in favor of the defendant. The order of the trial judge overruling the motion for a new trial is as follows: “In my opinion the verdict of the jury is so clearly right under the evidence that I am disposed to regard as harmless any errors that may have been committed, and the motion for new trial is overruled.”
    In'the application for the insurance, dated February 28, 1911, the question was asked, “To what extent do you use — (a) tobacco; (6) wines; (c) spirits; (d) malt liquors; (e) or any stimulant; (/) or any narcotics; state the amount used, and whether daily or nearly every day?” to which the applicant made written and signed answers as follows: “(ft) Smoke two or three cigars daily; (5) none; (c) one or two drinks a month; (d) one or two bottles a week; (e) none; (/) none.” On the trial of the issue raised by the plea, that these answers, upon which the defendant relied in issuing the policy, were false, fraudulent, and material to the risk, the defendant put upon the stand Dr. J. II. Conway, who testified, that, beginning June, 1904, and for ten years and a half thereafter, he was manager and physician in charge of what was then known as the “Neely Institute,” maintained as an institution for the treatment of addictions to narcotics, alcohol, and tobacco, and neurasthenia; that upon the admission of any patient for treatment it was his strict duty to take what was called the “physician’s statement,” providing a permanent history of the case. He testified that he took such a statement, signed by himself, from W. M. Mulkey, the insured, on May 9, 1911. Hsing the “physician’s statement” as a memorandum to refresh his recollection, he swore in substantially the language of the written statement, indicating by his testimony that he was doing so, that he (Mulkey) “told me that he was here for treatment for alcoholism; stated he was forty-four years old and was a contractor, and had first used alcoholic liquor thirty years before this, and now he states here that he had used it excessively for two years, and for the past three months has recently been using it in the following form and daily quantity of one quart. He made that statement on May 9th, 1911.” A written memorandum or statement signed by Mulky and also this statement signed by Dr. Conway were offered in evidence, whereupon the following colloquy took place: “Mr. Anderson (for plaintiff) : 'I object to so much of the paper or anything written on it as was not signed by Mr. Mulkey.’ The Court: 'That is all he offers, as I understand:’ Mr. Colquitt (for defendant) : 'I offer the part, as a memorandum of the witness.’ The Court: 'I rule that out as documentary evidence. You can use it in the argument to the jury, as to what the witness said.’ Mr. Colquitt: 'That is all we want.’ The Court: 'I don’t admit it as evidence.’ Mr. Anderson: ' Do I understand that you do not offer in evidence the part of this paper signed by Mulkey?’ Mr. Colquitt: 'Yes, sir, we offer all of it in evidence. As I understand, the court’s ruling is, all of this part signed by Mr. Mulkey goes in as documentary evidence; that the other part goes in to be used as argument, but not as documentary evidence.’ Mr. Anderson: 'Not as evidence at all.’ The Court: 'I stated I did not admit it as evidence.’ Mr. Colquitt: 'We can use it before the jury as argument, as refreshing the doctor’s memory ?’ ” The court certified that “On the trial the only use made of the paper referred to was to refer to it as being a memorandum or copy of what the witness had sworn, just as a transcription from the stenographer’s notes could have been used.” Movant in substance contends, that, although the judge properly excluded the paper signed by the witness Conway, as documentary evidence, his ruling in permitting-counsel to make use of it as a memorandum, in his argument to the jury “as to what the witness said,” amounted to prejudicial, error, in that the effect of counsel’s so doing necessarily amounted to more than making use of a memorandum showing what the witness had just sworn to, and had the actual effect of thus getting the paper itself before the jury as a solemn anterior record.

      Horton Brothers, Anderson, Rountree & Crenshaw, for plaintiff.

      Colquitt & Conyers, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) Section 5873 of the Civil Code (1910) provides that “a witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally speaks from his recollection thus refreshed, or is willing to swear positively from the paper.” A witness in giving positive testimony from recollection as thus refreshed may read in the presence of the jury from a memorandum made by him or which at some time he knew to be correct. Burney v. Ball, 24 Ga. 505 (2); Proctor & Gamble Co. v. Blakely Oil Co., 128 Ga. 606 (2) (57 S. E. 879). But where a witness testifies from his recollection as thus refreshed, the paper itself, where not otherwise binding upon the party against whom the witness testifies, is without probative value and is not admissible as documentary evidence, for any purpose. In Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 195 (3) (33 S. E. 961), the court said: “In one ground of the motion for a new trial it is alleged that the court erred in allowing a written memorandum made by the witness Foster, in reference to a conversation between himself and the plaintiff, to be introduced in evidence. This memorandum was clearly inadmissible for any purpose. It did not purport to have been signed by the plaintiff, and was in no way binding upon him. It might have been proper enough to allow Foster to refer to this paper for the purpose of refreshing his memory, if need be, but it had no value whatever as original evidence.” The courts of many foreign jurisdictions and many of the text-book writers seem to have drawn a distinction between cases where the witness finally testifies to a “past” recollection, and where he finally testifies to a “present” recollection. In instances like the first, the rule laid down by Q-reenleaf on Evidence (16th ed.), vol. 1, p. 542, is as follows: “Since the witness has verified and adopted the record as representing his knowledge on the subject, it becomes a part of his testimony, ‘just as if without it the witness had orally repeated the words from memory/ and may therefore be read aloud by him and shown to the jury, or otherwise put in evidence. A few courts speak of the writing as ‘not in itself evidence/ — meaning apparently — what cannot be denied — that it has no standing except as verified and adopted by the witness. A few others expressly refuse to allow it to be ‘read in evidence/ or ‘given in evidence/ but this must be regarded as erroneous.” So too Mr. Chamberlayne, in his work on the Modern Law of Evidence (vol. 5, § 3508), states the rule as follows: “Should the production of the contemporaneous memoranda fail to refresh the memory of the maker to such an extent as to enable him to testify to the existence of the facts asserted as a matter of present knowledge, it by no means follows that the usefulness of the memorandum is exhausted. On the contrary, the memoranda themselves may be admitted in evidence, as constituting proof of the facts asserted; provided the maker of the memorandum is able to testify, not only that he made it under proper conditions of contemporaneousness and the like, but also that he knows now that at the time he made the memorandum he knew the facts and that the memorandum states them correctly.” This rule is itself, however, subject to various qualifications and restrictions, one of which pertains to what is termed the “spontaneity” in the making of the memorandum, another the “regularity” in its making, — that is, whether it was or was not the business or official duty of the witness making the memorandum so to do. Our own courts do not seem to have formulated any rule upon the question just dealt with, and it is unnecessary, in the determination of the present case, for us to undertake to do so. In instances of the second kind, — that is, such as are referred to by the code-section quoted, and where the witness, as in this case, after refreshing his memory, finally speaks from his present recollection, the rule is generally recognized as being otherwise. As to such a case the words of Lord Ellenborough are quoted in the work by Mr. Greenleaf as follows: “It is not the memorandum that is the evidence, but the recollection of the witness.” Following this quotation, the rule laid down by that text-book is as follows: “The party whose witness uses it has no right to have it read to or handed to the jury; it is only the opponent who may do this in case he wishes to cast doubt on the reality of the refreshment of memory.”

In the case of Ingram v. Hilton & Dodge Lumber Co., supra, and in the discussion just referred to, it must be borne clearly in mind that the question was whether the memorandum could be treated as evidence, whether the statements therein contained had probative value as such. When a document is tendered in evidence, if it be “admitted” at all, it is admitted as evidence. The extent of the ruling in the Ingram case is only to the effect that it cannot be treated as evidence for any purpose. In the instant case, as shown by the colloquy set forth in the statement of facts, the defendant objected to the introduction of the memorandum as “evidence.” The court repeatedly ruled it out as such. In doing so he stated that counsel could “use it in the argument to the jury as to what the witness had said.” While it appears that during the course of the colloquy counsel renewed their objection to its admission “as evidence at all,” it does not appear that objection was ever made then or later during the argument to its “use” in the argument to the jury, not as evidence, but as showing what evidence the witness had given. The court certifies that such was the only use made of it. In view of the fact that the writing was not admitted but was distinctly and repeatedly rejected, and in view of a lack of any objection to such a restricted “use” of the excluded writing as was permitted, and in view of the fact that the witness not only testified in substantially the language of the memorandum, but indicated to the jury that he was doing so, we do not think that the restricted use of the excluded memorandum was calculated to prejudice the minds of the jury so unduly as to authorize the setting aside of their verdict.

Had the testimony of the witness not been in substantially literal accord with the statements contained in the memorandum, and had he himself not indicated by his evidence before the jury that such was the case, the reading of its contents to the jury would have presented a very different question. But it might be re- ■ marked that, in a case such as that, the paper could not have been used for the purpose for which its use was permitted. It is a fact in the case that the witness, in attempting to narrate a conversation had with the insured about 10 years previously, was able to refresh his recollection by means of a memorandum written and signed by himself at the time the conversation occurred, and which purported to contain the answers then made by the insured. This is a fact or circumstance which the defendant was entitled to have the jury consider in determining the weight and value of the witness’s testimony; not that the memorandum itself was admissible in evidence for the defendant for any purpose; not that the writing could be used as evidence for the purpose of proving the statements therein contained, since, in the language of the court in the Ingram case, as evidence it was “clearly inadmissible for any purpose.” But the record shows that the writing was not admitted in evidence at all for any purpose whatsoever; and was only permitted to be “used” for a restricted purpose not objected to, after its admission as evidence had been repeatedly denied and its lack of probative value expressly adjudicated. The only difference in the effect between counsel’s using the memorandum, instead of using a transcript from the stenographic notes, in discussing the witness’s testimony in his' argument, might have been to indicate to the jury that the witness had sworn in exact accord with the memorandum previously made. This was already an undeniable and undisputed fact, the witness himself having so indicated in his testimony on the stand. Such a disclosure is, however, at last, the very gist of plaintiff’s complaint. If the use of the excluded paper did not harm in this way, it could not harm at all. The use of the paper was permitted, and it was actually used during the argument, as- a memorandum indicating what the witness had sworn to'. Even if objection had been entered to such a restricted use of the excluded writing, it could not have harmed the plaintiff by disclosing a fact which was already known and incapable of dispute.

The court charged the jury as follows: “The two questions you are to decide in this case are whether these answers, to which I have called your attention, were false or not, and if false, 'whether they were material to the risk that the company was asked to assume in is'suing the policy. What I mean by material is what effect would these answers, if false, have on the company, or its . authorities in deciding whether the policy should issue or not. If you believe that these answers are false, and if you believe the contentions of the defendant, and that if the insured, Mulkey, had answered tnithfully, if you believe the contentions of the defendant are true on the -subject, if you further believe the company luould have been influenced to decline to issue the policy, then these answers would be material. In other words, what the law means by materiality or whether these questions are material or not is, did they influence and affect, or would they influence and ■ affect the judgment of the authorities of the company in determining whether the policy should issue or not? If you believe they would, then they would be material; if you believe they would not, they would not be material. So that under these instructions it is a question of fact for you to say whether the answers were material or not on the part of the company in considering whether it would issue the policy or not.” Exception is taken to certain portions of this extract from the charge, on the theory that the test of the materiality of false representations consists, not in what might have been the effect upon the particular company issuing the policy, but what its effect upon “a prudent company” would be. In other words, the test is not as to what the effect was, but what it should have been.

Plaintiff’s counsel cite Empire Life Insurance Co. v. Jones, 14 Ga. App. 647 (2) (82 S. E. 62), and Life Insurance Co. of Va. v. Pate, 23 Ga. App. 232 (2), 234 (97 S. E. 874), in which the following language was used: “A material representation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.” Counsel for defendant in error cite numerous authorities, the language of which sustains the charge as sound, even though it be assumed that the effect of the language was to make the question of materiality turn upon the question whether the defendant company was influenced by the alleged misrepresentation. See Empire Life Ins. Co. v. Jones, supra (14 Ga. App. 647, 656, 659); Mutual Life Ins. Co. v. Bolton, 22 Ga. App. 566, 569 (96 S. E. 442); Miller v. Maryland Casualty Co., 193 Fed. 343, 350; Mutual Life Ins. Co. v. Hilton, 211 Fed. 31, 34; Mulville v. Adams, 19 Fed. 887; Cooley’s Brief on the Law of Insurance, vol. 3, p. 1953; 16 Am. & Eng. Enc. L. (2d ed.), 933; May on Insurance (3d ed.), §§ 184, 195; Joyce on Insurance (2d ed.), vol. 3, p. 3057, § 1892. Without going into a discussion of the reasoning of defendant’s counsel to the effect that, even were it possible to assume that these portions of the charge were inaccurate within themselves, any such deficiency was cured by other and different portions of the charge, we are of the opinion that in the instant case the court, in defining materiality, as pertaining to any misstatement of the insured, submitted to the jury the question whether in their opinion the alleged misstatements were such as “would” influence and affect the judgment of the governing authorities of the insurance company. Repeatedly he charged in effect that if the jury believed that the misrepresentations (if made) were such as “would” influence them, they were material, and if they were such as would not influence them, they were immaterial. This gave to the jury the right to say whether they regarded the misrepresentations as being of such a kind and character as reasonably would or should influence an insurer, and did not in any fair sense leave it for them to find that the misrepresentations were material if acted upon by the defendant for some frivolous cause or excuse. The definition of “materiality;” as formulated by Judge Wade in the decisions of this court cited by the plaintiff, is admirably framed, but the failure of the trial judge to follow the language there used cannot be treated as reversible error, unless the meaning of the charge as actually given conveys a wrong impression of the law. What was said by this court in Ætna Life Ins. Co. v. Conway, 11 Ga. App. 557, 561, 562 (75 S. E. 915), seems pertinent here: “The company is not bound to issue the policy, and may refuse to do so without giving any reason for its action. The question therefore is, if the applicant had dealt ‘in the utmost good faith’ and disclosed the nature and extent of his previous illness and disclosed the names of the physicians by whom he had been treated, would he still have been a desirable risk and would the company have accepted him as such? ‘In general it may be said that the test, in determining whether questions contained in an application for insurance are material, is whether the knowledge or ignorance of the facts sought to be elicited thereby would materially influence the action of the insurer.’ Cooley’s Briefs on the Law of Insurance, vol. 3, p. 1953.” Judgment affirmed.

Stephens and Bell, JJ,, concur.


text:
    14888.
    BROWN et al. v. HORN.
    Refusal to allow an amendment to pleading cannot be made a ground of a motion for a new trial.
    An agreement at tlio time a promissory note is signed, that it shall be credited with whatever reasonable amount may be subsequently arrived at as due the maker for services previously rendered to the payee, cannot have the legal effect of changing the terms of the note from an unconditional to a conditional promise to pay, so as to relieve the maker from liability according to its express terms; and the court erred in refusing to allow the defendants to introduce testimony as to such an agreement, offered in support of their plea of set-off.
    Decided April 19, 1924.

      Complaint; from city court of Nashville — Judge W. R. Smith. July 9, 1923.

      W. D. Buie; C. A. Christian, for plaintiffs in error.

      B. A. Hendricks, contra.
   Jenkins, P. J.

Horn sued Brown and others on a purchase-money note. The defendants pleaded and offered to prove a set-off in a named sum, to which they claimed they were entitled by reason of the fact that, previous to the signing of the note, the plaintiff was indebted to them for the care and feed of certain live stock, for which they were to receive a reasonable compensation, and that the note was to be credited accordingly. The plaintiff objected to the introduction of evidence setting up the defense pleaded, on the ground that any such obligation between him and the defendants, existing at the time the note was executed, was merged into and closed by the giving of the note. The court sustained the objection, and refused to permit the defendants, on their oral motion, to amend their plea so as more fully to set up their defense. These rulings were complained of in their motion for a new trial.

1. “A ruling of the court in disallowing an amendment to the pleading cannot be made a ground of a motion for a new trial.” Simmons v. Lanford, 21 Ga. App. 686 (1) (94 S. E. 907). In so far as the second special ground of the defendants’ motion for new trial seeks to except to the refusal to allow an amendment to their plea and answer, which they orally suggested to the court but did not reduce to writing or actually offer, the exception is without merit.

2. The fact that defendants offered to show that at the time the note was signed it was agreed that it should be credited with whatever reasonable amount might be thereafter arrived at as due the makers for the services which had been rendered to the payee could not have the legal effect of changing the terms of the note from an unconditional to a conditional promise to pay, so as to relieve the defendants from liability upon the instrument according to its expressed terms and stipulations. See Hirsch v. Oliver, 91 Ga. 554 (18 S. E. 354); Dendy v. Gamble, 59 Ga. 434; cited in Rheney v. Anderson, 22 Ga. App. 417, 420 et seq. (96 S. E. 217). Without attacking or denying the terms of the agreement as actually entered upon, the defendants were entitled to show, if they could, that they were entitled to the set-off claimed. “The execution of a promissory note is evidence of a full settlement of all debts up to the date thereof, except such as are specially excepted at the time; and where the maker sues the payee for a debt alleged to have been due before the execution of the note, the giving of the note to the payee is presumptive evidence that he had paid the debt to the maker before or when the note was executed. This presumption can be rebutted.” Fletcher v. Young, 10 Ga. App. 183 (1) (73 S. E. 38).

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Jenkins, R. J.

text:
    14894.
    Long v. Burge, Stevens & Conklin.
   Jenkins, R. J.

1. Where certiorari in a case tried in the municipal court of Atlanta is applied for more than 30 days after the rendition of a verdict and judgment adverse to the petitioner, but within 30 days from the overruling of his motion for new trial, and exceptions are taken both to the verdict and judgment and to the order refusing a new trial, only the latter can be considered. If the petitioner desires to except to the verdict and judgment, the certiorari must be applied for within 30' days thereafter. Louisville & Nashville R. Co. v. Lovelace, 24 Ga. App. 616 (1) (101 S. E. 718); s. c. 26 Ga. App. 286 (1) (106 S. E. 6); Freedman v. Bush, 30 Ga. App. 757 (119 S. E. 421).

2. Where the evidence authorized a finding that the plaintiff architects and the defendant owner of land entered into a contract under which the architects were to make preliminary plans and drawings for a building thereon, with the understanding that if the owner should decide to erect the building the architects, while not to be paid for such preliminary work, were to be given the complete architectural contract, but if the erection of the building should be abandoned, then the architects were to be paid for their preliminary work, it was incumbent upon the architects, in a suit to recover compensation for such preliminary work, to show that the idea or intent of erecting the building had been abandoned by the owner, as it was upon this theory that their claim for compensation was predicated. Herrington v. Jones, 132 Ga. 209 (63 S. E. 832); Dolan v. Lifsey, 19 Ga. App. 518 (5) (91 S. E. 913); Macon Union Co-op. Assn. v. Chance, 31 Ga. App. 636 (122 S. E. 66 (3)). Such an abandonment may be established by words, acts, or conduct of the owner (Miller v. Watson, 139 Ga. 29, 32, 33, 76 S. E. 585), or by evidence that he had actually failed to consummate the design within the time contemplated by the contract.

3. “When a contract fixes no time for performance, it is to be construed as allowing a reasonable time for that purpose; and what is a reasonable time is” generally “a matter of fact to be determined by a jury under all of the circumstances of the ease.” Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (3) (58 S. E. 200); American Ry. Express Co. v. Roberts, 28 Ga. App. 510 (1, 2) (111 S. E. 744). It appears from undisputed evidence in the instant case that about two years had elapsed after the making of the preliminary plans, and that during this time the defendant owner took no step toward the erection of the building in question. While he testified that he had not “abandoned” the idea, ho failed to give any sort of testimony indicating a purpose to erect the building, and, after -basing any such possible intention upon the condition that other parties should erect another building on the adjoining-lot at some indefinite time, testified merely that “we may, if financial and other circumstances are favorable, build the office building.” Under this evidence, taken in connection with the lapse of time from the making of the contract, the verdict for the plaintiffs upon the issue of abandonment was authorized, and the judge of the superior court did not err in overruling the defendant’s certiorari.

Decided April 19, 1924.

Certiorari; from Fulton superior court — Judge Humphries. May 11, 1923.

Etheridge, Sams & Etheridge, for plaintiff in error.

Burr ess & Dillard, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14901.
    Parker, guardian, v. Kidd et al.

    Decided April 19, 1924.
   Jenkins, P. J.

“The right of creditors to subject to the payment of their judgments the surplus realized from a sale under a security deed is superior to the claim of a transferee of the bond to reconvey whose interest was acquired subsequently to the date of the judgments. O’Connor v. Georgia Railroad Bank, 121 Ga. 88 (48 S. E. 716). E converso, the transferee of a bond to reconvey whose transfer is anterior to a judgment against the transferor of the bond will be entitled to take the surplus derived from the sale of property conveyed to secure a debt.” McIntire v. Garmany, 8 Ga. App. 802 (1) (70 S. E. 198); Hubert v. Merchants Bank, 137 Ga. 70 (72 S. E. 505); Burney Tailoring Co. v. Cuzzort, 132 Ga. 852 (1, 2) (65 S. E. 140); Rucker v. Tabor, 133 Ga. 720 (66 S. E. 917); Hardy v. Truitt, 20 Ga. App. 529 (3), 534 (93 S. E. 149). In the trial of the instant money-rule proceeding, brought in behalf of the transferee of such a bond for title, the undisputed evidence shows that the assignment was made and the transferee assumed in writing the indebtedness mentioned in the security deed more than three years prior to the date of the other judgments now claiming- the surplus fund, obtained against the transferor of the bond. It was therefore error to direct a verdict against the transferee claimant and in favor of the judgment intervenors.

Judgment reversed.

'Stephens and Bell, JJ., concur.

Money rule; from Hart superior court — Judge W. L. Hodges. June 9, 1923.

J. A. McBuff, for plaintiff. J. B. Morris, for defendants.


text:
    14908.
    Georgia Casualty Company et al. v. James et al.

    Decided April 19, 1924.
    Appeal; from Grady superior court — Judge Custer. May 19, 1923.

      Brock, Sparks & Russell, for plaintiffs in error.

      Hartsfield & Conger, contra.
   Jenkins, P. J.

This was a case of admitted liability for partial dependency by a mother of several minor children on account of the death of a son and brother who contributed to their support. The evidence showed that the father was an invalid. Petitioners were allowed $4.75 weekly compensation during the period of indemnity. Plaintiffs in error contend that not quite all of the award was authorized by the evidence. Held: The judgment of the industrial commissioner, sustained by the commission as a whole and by the judge of the superior court on appeal, appears to have been painstakingly arrived at, and is sustainable under several theories of the evidence.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14917.
    Bray v. Freeman.
    Decided April 19, 1924.
   Jenkins, P. J.

“A new trial will not be granted because a witness swore on the trial to a fact wholly unexpected to the plaintiff, who at the time knew that the statement was false, and that he could so prove by a witness whose testimony he could have procured had he thought such proof was necessary. The party surprised by the statement of the witness should have moved for a continuance. He cannot take his chances of a verdict and then claim surprise.” Beckford v. Chipman, 44 Ga. 543, 546; Sanders v. State, 7 Ga. App. 603, 604 (67 S. E. 696). Under this rule, in a suit on a promissory note where the defense consisted of a plea of non est factum, and the plaintiff testified that the note was signed in the presence of the defendant’s wife, a new trial cannot be granted because the defendant might be able now, but, on account of not having anticipated such evidence and consequently not having procured the wife’s presence at the trial, was then and there unable to controvert the same by her testimony. Especially is this true where no effort to continue the case was made at the time of the trial.

Judgmetvt affirmed.

Stephens and Bell, JJ., concur.

Complaint; from Madison superior court — Judge W. L. Hodges: June 33, 1933.

Berry T. Moseley, for plaintiff in error.

Gordon & Gordon, contra.