text:
    14747.
    Tompkins v. Hardison et al.

   Jenkins, P. J.

1. “A brief of' the evidence must be filed by the movant with the motion to reinstate a ease in which a nonsuit has been awarded and the case dismissed for want of sufficient evidence.” City of Atlanta v. Jenkins, 137 Ga. 454 (2) (73 S. E. 402); City of Atlanta v. Miller, 125 Ga. 495 (54 S. E. 538). Such an approved brief of evidence, as in a motion for new trial (Taylor v. Tanner, 143 Ga. 18, 84 S. E. 68), is an indispensable part of such a motion to reinstate; and if the brief is not prepared and presented by the movant as provided in the orders for hearing, the motion to reinstate may be properly dismissed on motion.

Decided November 27, 1923.

2. “On presentation of an incorrect brief of evidence the trial judge may require that it be corrected, and upon the movant’s failure or refusal to correct it the judge may refuse to approve it, but before refusing on the ground that the brief is incorrect, he should call attention to the particulars in which it is incorrect and afford the movant an opportunity to correct it.” Bugg v. State, 13 Ga. App. 672 (2), 674, 675 (79 S. E. 748); McConnell v. State, 8 Ga. App. 394, 396, 397 (69 S. E. 120); Martin v. Mendel, 10 Ga. App. 417, 421 (73 S. E. 620). The trial judge may avail himself of the official stenographic report, or of an oral reading of the evidence by the stenographer from his notes. “There is no law, however, which requires a party . . or his counsel to make up a brief of the evidence from the official stenographer’s report. It is simply incumbent upon the movant’s counsel to prepare and present to the judge a correct brief of the evidence, and in so preparing it he may resort to his own'memory, to notes taken by himself, or to any other source, so that the brief he does present for approval be fair and accurate.” Central R. Co. v. Robertson, 92 Ga. 741, 744 (18 S. E. 986); Edmonds v. State, 122 Ga. 728, 730 (50 S. E. 936); Watson v. Dampier, 148 Ga. 588 (3) (97 S. E. 519). “Abridgment and condensation are as essential to the legality of a brief of the evidence as is the approval of the trial judge.” Albany Ry. Co. v. Wheeler, 6 Ga. App. 270 (1) (64 S. E. 1114). “If a brief of evidence containing only the material facts should be presented to a trial judge and he refuse to approve it, a bill of exceptions would lie to this refusal.” Price v. High, 108 Ga. 145, 149 (33 S. E. 956).

3. In the instant ease, where it appears that the movant had made a bona fide effort to prepare a correct brief of the evidence, that it was timely presented to the court for approval, and submitted to opposing counsel, that counsel for the movant at the hearing stated that “he stood ready to make any corrections pointed out by the court or counsel for the defendant, and had made all that had been pointed out by either,” and had previously advised the court that a brief made up by the official stenographer from his notes would not be used, for the reason that the movant was financially unable to pay for the same; that the official stenographer who reported the case was present at the hearing, and testified that, while a brief of evidence made by himself would take 15 double-spaced pages instead of the four single-spaced pages comprising the brief of the movant, he had not read the movant’s brief, that his shorthand notes were in court, that he had previously read them to opposing counsel “at his request,” and “had as soon read them to the court,” and that “the court and counsel in the case could by having . . [him] read these notes now correct 'the brief if there is any incorrectness in it,” it was error to dismiss the motion to reinstate the case, without pointing out to the movant wherein his brief was incorrect or deficient, and affording him then and there opportunity to correct or amend the same.

Judgment reversed.

Stephens and Bell, JJ., concur.

Action for breach of contract; from city court of Dublin— Judge Sturgis. June 8, 1923.

8. P. New, for plaintiff.

Adams & Camp, for defendant.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14750.
    Georgia Railroad v. Henderson.
   Jenkins, P. J.

“When it is shown by a plaintiff in an action against a railroad company to recover damages for killing a cow that the animal was killed by the running and operation of a train of cars, the law raises a presumption of negligence against the company, and, without 'more, the plaintiff is entitled to recover the value of the animal killed. Such presumption, however, may be rebutted; and when the evidence of the engineer . . on the locomotive which struck the animal is to the effect that she came upon the track suddenly and immediately in front of the locomotive, and that all reasonable and ordinary diligence was used to prevent striking the animal, but without avail, such presumption is successfully rebutted.” Ga. So. & Fla. Ry. Co. v. Sanders, 111 Ga. 128, 129 (36 S. E. 458); Ga. R. Co. v. Wall, 80 Ga. 202, 204 (7 S. E. 639) ; Whiddon v. Atlantic Coast Line R. Co., 21 Ga. App. 377 (2) (94 S. E. 617); AtlantiC Coast Line R. Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34); Atlantic Coast Line R. Co. v. Cox, 11 Ga. App. 384 (75 S. E. 268). In the instant case the effect of the plaintiff’s evidence was merely to show the killing of the cow by the defendant’s train; and while he testified that the track was straight, so that the animal might have been seen for a distance of 150 yards from where she was hit, he did not see the injury. He testified that the cow came on to the track from a path which “went on to the track in a cut;” that it was “about 12 or 15 feet from the rail to the edge of the cut;” that “you couldn’t see the cow while she was in the path until she came out into the cut;” that “the tracks of the cow indicated that she went along the path straight to the track and was hit as soon as she got to the track;” and that “she did not run along the track at all.” The engineer of the locomotive which struck the animal testified that he “first saw the cow when she came out of a sort of gully on to the track,” when he was only 25 or 30 yards from her; “that as soon as he saw her he put on the brakes and blew the cattle alarm, but “it was physically impossible to stop the train without striking her; ” that he was keeping a lookout, and that there was nothing else which he could have done to stop the train. This evidence was not disputed. The statutory presumption being completely rebutted by the testimony for the defendant and the physical facts shown by both the plaintiff and the defendant, the finding and judgment for the plaintiff must be set aside.

(a) One of the witnesses for the railroad company, whom the briefs term its “section foreman,” but whose connection with the defendant the record does not in any way disclose, testified that he went to the place where the eow was after she was struck, that “both her hind legs and her back were broken,” and that in the presence of the plaintiff he “killed her and dragged her off of the right of way.” The plaintiff contends that this testimony showed that the railroad by its agents “took possession of the cow, killed it, and carried it away,” that this was an assumption of liability by the defendant, and that its “agents had no right to kill it and carry it away as they did.” Had the petition charged and the evidence shown an unauthorized killing of the cow by the defendant’s agent after having been struck by the train, as thus contended, a recovery might have been had as for a tortious conversion; but neither the petition nor the evidence justifies such a claim. The petition is based on the theory that the injury was occasioned by the running of the defendant’s train, and the resulting statutory presumption of negligence was invoked. The evidence fails to show a conversion, and the testimony of the witness last mentioned merely indicates that on finding that the animal was mortally injured he killed it in the presence of the owner and removed it from the right of way.

Decided November 27, 1923.

Damages; from city court of Washington—Judge Sutton. June 11, 1923.

Gumming & Harper, W. A. Slaton, for plaintiff in error.

F. H. Colley, Hugh H. Combs, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Belt., J.

text:
    14759.
    Tatum v. Waters, survivor.
   Belt., J.

1. Where, on the trial of an action for the purchase price of goods charged to the defendant but delivered to another, the evidence makes a case of sales wholly on the authority, oral or written, of the defendant, and wholly on his credit, he is the original debtor, and the law of promise to answer for the debt, default, or miscarriage of another, as contained in the statute of frauds, is not applicable. Casteel v. Allgood, 31 Ga. App. 107 (1) (119 S. E. 456); Easterling v. Bell, 29 Ga. App. 465 (1) (116 S. E. 50). Where, then, one person gave to a merchant a written agreement or order authorizing the merchant to furnish supplies to a third person to a certain amount, upon the credit of the writer, it was not necessary, when the supplies had been furnished to this amount, that the authority of. the merchant to make further sales to such third person upon the credit of the writer of the order should again be in writing. The defendant in the present action denied that he had given any authority except in a writing and for a certain amount less than that claimed in the plaintiff’s suit, but there was evidence sufficient to authorize an inference that he had given,oral authority for further sales upon'his credit, and the verdict found for the plaintiff was supported.

2. Where newly discovered evidence is insisted on as a ground for a new trial, and, from a counter-showing made, it appears that the evidence is conflicting as to the truth of the facts claimed to be newly discovered, this court will not interfere with the discretion of the court below either in granting or refusing a new trial upon such ground. Atlanta Consol. Street Ry. Co. v. McIntire, 103 Ga. 568 (2) (29 S. E. 766).

Decided November 27, 1923.

Complaint; from Milton superior court—Judge Blair. May 19, 1933.

George F. Gober, G. B. Walker, for plaintiff in error.

J. P. Brooke, contra.

3. Applying the above rulings, the court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


author: Per Curiam.

text:
    14205.
    SOUTHERN RAILWAY COMPANY v. COOK.
    As to the release signed by the plaintiff the case is controlled by the decision in the case of Mayes v. Bast Tenn. do. By. Oo., 89 Ga. 264.
    Decided December 5, 1923.
    Rehearing denied January 17, 1924.
    Action for damages; from city court of Floyd county—Judge Nunnally. December 1, 1933.

      Hamilton & Hamilton, Maddox, McCamy & Shumate, for plaintiff in error.

      Denny & Wright, contra.
   Per Curiam.

1. In Hayes v. East Tenn. &c. Ry. Co., 89 Ga. 264 (15 S. E. 361), the Supreme Court held: “The plaintiff below, while an employee of the defendant railway company, having sustained a personal injury by reason of its negligence, and having thereafter released his right of action for such injury by a contract of accord and satisfaction fully executed, cannot maintain an action against the company for inducing him to enter into that contract and accept satisfaction under it bj’ fraudulently persuading him, through its superintendent and its employed physician, to believe that his injury was not a material one and would not be permanent, it not being alleged that any artifice, trick, or contrivance was used to' prevent him from ascertaining the true nature of his injury and its probable duration, these matters lying as much within his knowledge, or means of knowledge, as within the knowledge of the' defendant, its officers, agents, and employees.” The principles announced in that case are controlling in this, and, under the" pleadings and the evidence. a’dduced, a recovery for the plaintiff was not authorized. The decision in the Hayes case, supra, is not in conflict with the decision in Sou. Ry. Co. v. Nichols, 135 Ga. 11 (68 S. E. 789), the latter case being distinguished by its particular facts. It follows that the court erred in overruling the general grounds of the motion for a new trial.

2. It is unnecessary to consider the other assignments of error.

Judgment reversed.

Broyles, C. J., and Luke, J., concur. Bloodworth, <7., dissents.


author: Luke, J.

text:
    14414, 14519.
    ATLANTIC REFINING CO v. PEERSON; and vice versa.

    1. The court did not err in overruling the third and sixth grounds of the defendant’s special demurrer.
    2. There was no error in sustaining the seventh ground of the demurrer to the petition as amended.
    3. Where a court enters up a judgment that three grounds of a special demurrer to a petition be sustained, and that the petition is “dismissed at plaintiff’s cost, unless plaintiff, within four days from this ■ date, shall file an amendment curing the defects pointed out by said grounds of defendant’s special demurrer,” and, within the time specified, the plaintiff, without objecting in any way to the terms of the judgment, files an amendment which cures the defects pointed out by two of the grounds of the demurrer, but fails to remedy those indicated by the other ground, and the court, in passing upon a timely motion to dismiss the petition because the amendment filed failed to meet “the terms, conditions, and requirements of said judgment,” adjudicates that the petition be not dismissed, but that plaintiff’s failure to meet the ground of the demurrer merely eliminated from the case the paragraph as to which the demurrer was sustained, held, that the first judgment, unchallenged and unchanged, was the law of the case; that its plain purport was that the defective paragraph of the petition attacked by the seventh ground of the demurrer was essential to the plaintiff’s case; and that the contrary judgment rendered on the motion to’ dismiss was erroneous.
    Decided December 5, 1923.
    Action for damages; from Glynn superior court—Judge Ilighsmitb. January 29, 1923.

      Bennei, Twiity & Beese, for plaintiff in error.

      J. T. Colson, Little, Poiuell, Smith & Goldstein, contra.
   Luke, J.

When this case was previously before this court (see Atlantic Refining Co. v. Peerson, 28 Ga. App. 779, 113 S. E. 116), the petition as first amended and the demurrer thereto were set out in full in the decision; and we shall now give only such a brief statement of the case as is essential to a clear understanding of the questions here presented. Plaintiff procured a judgment against defendant for damages alleged to have been sustained by him while in the employ of defendant, in attempting to cut a rivet inside a large iron smoke-stack lying prone on the ground. It was alleged that his injury resulted from his being struck in the eye by a flying fragment from a defective punch, which, while being held in position by him, was shattered from an ordinary blow upon it with a hammer wielded by a fellow-workman. It was also alleged that the punch furnished to him was an improper instrument for doing the work at hand. The judgment of this court upon the first appearance of this case here was: that the overruling of the defendant’s general demurrer was not error; that the amended petition was subject to the 3d, 6th, 7th, and 9th special grounds of the demurrer; and that the overruling of some of these special grounds rendered the further proceedings in the case nugatory.

On January 18, 1923, in making the remittitur the judgment of the trial court, the judge struck paragraph 18 -of the petition, upon the ground that it was immaterial and inflammatory, as charged in the 9th ground of the demurrer, and adjudged “that the 3d, 6th, and 7th grounds of defendant’s special demurrer be, and the same are, hereby sustained, and said petition be and the same is hereby dismissed at plaintiff’s cost, unless plaintiff, within four days from this date, shall file an amendment curing the. defects pointed out by said grounds of defendant’s special demurrer.” This order further provided “that if plaintiff shall file any amendment to his petition within the time herein required, the right be and is hereby reserved and given to defendant, at any time within three days from the date of the filing of such amendment by plaintiff, to demur to plaintiff’s petition as then amended, or file such other pleadings thereto as defendant may deem proper.” Within due time the plaintiff amended, and the defendant filed a timely motion to dismiss the case because the plaintiff’s amendments failed to meet “the terms, conditions, and requirements of said order and judgment of January 18, 1923.” On January 29, 1923, in passing upon said motion to dismiss, it was adjudged by the court that plaintiff’s amendment was sufficient to meet the 3d and 6th grounds of the special demurrer, but failed to meet the 7th ground. It was further “ordered and adjudged that the within motion is overruled and denied, and that said case does not stand dismissed under the aforesaid order of January 18, 1923, the court holding that said 7th ground of demurrer relates to an allegation of negligence, and that the effect of plaintiff’s failure to amend to meet said grounds of demurrer is to eliminate from the case and preclude plaintiff from recovering on the theory that defendant should have provided plaintiff with a side rivet cleaver instead of the B & 0 punch.”

The 3d ground of the demurrer was that the plaintiff did not in the 16th paragraph or elsewhere in his petition “allege by what means, examination, or test defendant could have discovered the alleged defect or danger in the punch used by him, or in the work he was doing;” and the 6th ground was that the plaintiff failed to allege how a reasonable inspection of the punch would have disclosed to the defendant its defective condition, or why the defect did not appear to plaintiff. The amendments offered so clearly met these grounds of the demurrer that it would be useless to discuss them. The 9th ground of the demurrer has been eliminated from the case.

The controlling and only matters for us to consider are two. The first is whether the contention raised by the plaintiff in his cross-bill of exceptions, that the court erred in holding that the 7th ground of the demurrer was not cured by amendment, is correct. If the court did so érr, a reversal must follow; if not, the remaining question, to be determined is that raised by the contention in the defendant’s direct bill of exceptions, that the court erred in failing to sustain its motion to dismiss the petition.

The 7th ground of the special demurrer is directed at subsection i of the 16th paragraph of the petition, which is as follows: “That defendant was negligent in not furnishing petitioner with a tool equal in kind to that in general use, and reasonably safe for petitioner, who operated it with ordinary care and diligence, for that had defendant so done, it would have furnished petitioner with a side rivet cleaver, such a side rivet cleaver would have made easy the cutting off the head of said rivet, and would thus have avoided said injury.” Defendant’s demurrer to this subsection is: “Because defendant [plaintiff] does not allege that he did not know that the punch being used by him was an improper instrument, and that it was not a side rivet cleaver, which he alleges would have made easy the cutting of the rivet.” We think it is clear that plaintiff’s attempt to show by this amendment that he did not know that the punch used by him was an improper instrument is abortive, for the reason that, construing his amendment most strongly against him, it merely alleges that he did not know the cleaver was an improper instrument because he had not gone into the stack, without setting out any sufficient facts to indicate why he should not have entered the stack and examined the rivet before attempting to cut it off.

We have given this case sedulous attention, and have experienced no little difficulty in deciding it. We do not deem it necessary to discuss those cases wherein the general rule is laid down that the effect of striking from a petition a paragraph without which a cause of action would be set forth is not to work a dismissal of the petition, but only the elimination from the case of the defective paragraph. This rule is applied in the following cases cited by plaintiff. Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812 (1) (55 S. E. 968); Canuet v. Seaboard Air-Line Ry., 128 Ga. 41 (1) (57 S. E. 92); McSwain v. Edge, 6 Ga. App. 9 (1) (64 S. E. 116). In none of these cases does there appear to have been a judgment that the failure of plaintiff to offer an amendment curing the defects attacked by the demurrer within a stipulated time worked a dismissal of the petition. Nor do we think this ease is controlled by "the rule laid down in Folsom v. Howell, 94 Ga. 112 (1). There the order of the court was that the petition be dismissed unless amended within a given time so as to make it good in law. The ruling of the Supreme Court was that the judgment was not final upon the merits, but that the “petition was open for amendment within the time limited, and another demurrer afterwards filed to the petition as amended should have been overruled if the petition as a whole set forth a cause of action, whether the matter contained in the amendment aided it or not.” If the petition' was originally good as against the demurrer, and another demurrer was filed to the amended petition, the whole case was opened up, and, of course,' the second, demurrer was not good any more than the first one. The case of Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 (1) (78 S. E. 902), is another instance where there was an order similar to the one in the Folsom, case, supra. There the petition as amended was demurred to, and the trial court held that two grounds of the demurrer were good. The Supreme Court held that the original order was conditional and did not finally dispose of the case, and that where, in such a case, the amended petition is sufficient to withstand the amended demurrer, the case is still in court.

In the case at bar the trial court held that a certain allegation of negligence was essential to the vitality of the petition, and that if the plaintiff failed to file an amendment within four days curing the defects pointed out by the demurrer, his case should be dismissed, and that within three days from the time of offering the amendment the defendant could demur, or file such other pleadings as he saw fit, to the amended petition. Plaintiff amended within the stipulated 'time, and defendant did not demur to the amended petition, but filed his timely motion to dismiss the same because defendant failed to meet the terms and conditions of the court’s previous order. Defendant’s motion performed the functions of a demurrer, and more besides. It invoked the court’s ruling as to whether the amendment offered cured the defects pointed out by the demurrer, and then insisted that the petition be dismissed, not because the usual consequence of striking a nonessential allegation of negligence is the dismissal of the. petition (for it is not), but because, the court having previously so held, such holding became the law of the case and was binding on the court. In our opinion, the motion to dismiss partook so much of the nature of a demurrer that when the judge, on the hearing of that motion, adjudged that the amendment did not cure the defective allegation in the petition, the court could have given plaintiff an opportunity to cure such allegation by further amendment; and had it been perfected, the court could have then properly overruled the motion to dismiss. If no amendment had been filed within four days to meet defendant’s demurrer, the case would have automatically been dismissed. Clark v. Ganson, 144 Ga. 544 (1) (87 S. E. 670). If an amendment had been filed within four days but not allowed, the petition would have stood dismissed. Johnson v. Vassar, 143 Ga. 702 (85 S. E. 833). If, as was done, an amendment was filed and allowed, but failed to cure the defects pointed out by the demurrer, under the rulings in the Folsom and Olds Motor Works cases, supra, the court could have allowed the plaintiff to amend further to meet the demurrer; and if he had then successfully done so, he would have been in court. But this was as far as the court could go. The first order, in so far as it held that the amendment under consideration was essential to plaintiff’s case, was still the law of the case, that judgment not having been changed or questioned in any way, and the court could not destroy the effect of it byja subsequent judgment holding directly contrary to it. Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241); Marbut v. So. Ry. Co., 22 Ga. App. 330 (95 S. E. 1021), and cases cited; Kelly v. Ga. Ry. & Power Co., 24 Ga. App. 439 (101 S. E. 401); Pratt v. Gibson, 96 Ga. 807 (23 S. E. 839).

Nor do we think that the fact that the order of January 18 and the order of January 29 were both passed 'during the same term of court affects the conclusion we have reached. The former judgment may have been in the breast of the court, but it was not properly taken out.

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

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


text:
    14444.
    PETERSON, adm’x, v. APPLEBY et al.

    As a general rule, one employed by an owner of property to sell it as Ms agent is not authorized to sell it to himself alone or with others.
    Under the facts of this case, the plaintiffs, a firm of brokers with whom the defendant had listed real estate for sale, were not entitled to recover a commission from him for services in procuring a prospective purchaser, who obtained from the defendant an option for the purchase of the property and transferred the option to one of them.
    Decided December 5, 1923.
    Complaint; from city court of Douglas—Judge Henson. February 15, 1923.

      B. A. Moore, Dart & Slater, for plaintiff in error.

      McDonald & Willingham, contra.
   Per Curiam.

This is a suit to recover commissions alleged to have been earned by the plaintiffs as real-estate brokers. After the filing of the suit the defendant died, and his widow, as administratrix, was made a party defendant and filed an answer denying any and all liability. Although she recites in her bill of exceptions that the court, at the conclusion of the evidence, directed a verdict in favor of the plaintiffs, the sole assignment of error is upon the overruling of her motion for a new trial, which is based upon the general grounds, and upon the admission and rejection of certain evidence. The special grounds of the motion are without substantial merit; but, since we are of the opinion that the evidence adduced upon the trial demanded a finding in favor of the defendant, the verdict in favor of the plaintiffs, as directed by the court, was contrary to law and the evidence, and, therefore, the court erred in not granting a new trial upon the general grounds of the motion.

The evidence submitted upon the trial shows that the original defendant—the decedent, Oliver Peterson—listed with the plaintiffs, who were a partnership of real estate brokers, a certain plantation for sale at the price of $105,000, agreeing to pay to them as brokers a commission of five per cent, on that sum; that acting under this contract the plaintiff procured a prospective purchaser in the person of B. N. Sykes, of North Carolina, who sought to negotiate a sale with Peterson at the stipulated price, and that the latter then listed with the brokers his plantation and certain personal property located thereon, at the price of $130,000, agreeing to pay a commission of five per cent, on that sum; that Peterson thereupon executed and delivered to Sykes, the prospective purchaser procured by the brokers, an option setting forth the terms of the trade, to wit: purchaser to assume a loan of $40,000 upon1 the lands described, the payment of $10,000 cash, and the balance of the purchase price in five payments. The plaintiffs do not contend that they ever found a purchaser ready, able, and willing to pay cash for the plantation, but their contention is that they found a purchaser (Sykes) who was ready, able, and willing to buy on the terms stipulated in the option. This contention is without merit, for the uncontradicted evidence shows that prior to the expiration of the option, Sykes, the optionee, transferred it to one of the plaintiff brokers, the transfer being in the following language: “I hereby transfer the within option to E. J. Vibbert with full power for him to execute the same. (Signed) B. N. Sykes. Witness H. 0. Bolter.”

Thus the evidence shows conclusively that the option, prior to its expiration, was transferred to B. J. Vibbert. Therefore the optionor was bound to convey, if at all, to the transferee. But, since the transferee was one of the brokers, the optionor was not bound to convey the property in question to any one. In this connection see section 3582 of the Civil Code (1910), which is as follows: “Without the express consent of the principal after full knowledge of all the facts, an agent employed to sell cannot be himself the purchaser; and an agent to buy cannot be himself the seller.” And in the case of Mitchell v. Gifford, 133 Ga. 823 (67 S. E. 197), it was held: “As a general rule, where one is employed by an owner of property to sell it as his agent, he is not authorized to sell it to himself alone or together with others.” It is true that Sykes, the transferor of the option, testified that he assigned or transferred the option to the broker with the distinct understanding that the latter was to act as his agent in completing the transaction with the defendant. However, such evidence is altogether insufficient to alter the rule announced by the above citations, since it does not appear that the defendant knew that the intent of the transferor was otherwise than the unconditional assignment showed. See, in this connection, Williams v. Moore-Gaunt Co., 3 Ga. App. 756 (4) (60 S. E. 372). The broker cannot bind the principal and claim that the refusal to sell was not his fault but that of the principal, “unless he makes it plain that he has not acted privily, but that his master was consenting thereto.” Gann v. Zettler, 3 Ga. App. 589 (60 S. E. 283).

It follows from what has been said that the evidence demanded a finding in favor of the defendant, and that, therefore, the verdict in favor of the plaintiffs, as directed by the court, was contrary to law and the evidence.

Judgment reversed.

Broyles, G. J., and Luke, J., concur. Blood-worth, J., dissents.


author: Bloodworti-i, J.

text:
    14468, 14469.
    WADLEY SOUTHERN RAILWAY CO. v. WRIGHT, comptroller-general; and vice versa.

    An ordinary sitting for county purposes on August 22, 1921, had no power or authority to order a “tax levy for the year 1922.”

      (a) Although this point was raised for the first time in the brief of counsel for the plaintiff in error, this court holds as above because such a judgment is absolutely void.
    Decided December 5, 1923.
    Affidavit of illegality of execution; from Treutlen superior court—Judge Crum presiding. February 21, 1923.

      A. S. Bradley, for plaintiff in error.

      W. J. Wallace, N. L. Gillis Jr., contra.
   Bloodworti-i, J.

On January 20, 1922, the comptroller-general of Georgia issued a tax fi. fa. against the Wadley Southern Railway Company, which was levied on an engine of the company. An affidavit of illegality was filed by the defendant, attacking certain items named in the order levying the tax. An examination of the record discloses the fact that the ordinary of Treutlen county, sitting for county purposes, on August 22, 1921, passed an order as follows: “It is ordered that an ad valorem tax levy of twenty-five mills, or twenty-five dollars on the thousand dollars assessed tax values for said county, be levied for county purposes for the year 1922, as itemized below. [Then follow the several items.] The tax-collector of Treutlen county is hereby ordered to collect the same, beginning October 1, 1921.” The issues raised by the affidavit of illegality were submitted by consent and under an agreed statement of facts to Hon. D. A. R. Crum, judge of the Cordele circuit, who sustained the illegality in part and overruled it in part. From the view we take of this case, it is unnecessary to determine whether or not, under the facts submitted to him, the judge erred in his rulings. In our opinion, an ordinary sitting for county purposes on August 22, 1921, has no .power or authority to order a “tax levy for the year 1922,” and pass such an order as is copied above. It will be noted that while the order provides for a tax levy for the year 1922, it directs the tax-collector “to collect the same, beginning October 1st, 1921.” The whole scheme of county taxation in this State is that each year is a unit, and the taxes which the ordinary is authorized to levy must be for the expenses of the year in which they are levied or for debts past due. Ordinaries, as county officials and sitting for county purposes, can do no act not authorized by statute, and there is no law in this State which provides that an ordinary in one year can levy a tax for the expenses of the county for the succeeding year. See, in this connection, Albany Bottling Co. v. Watson, 103 Ga. 504 (1), 505 (30 S. E. 270). So we must conclude that the foregoing judgment of the court of ordinary is absolutely void, and can be so held by any court “when it becomes material to the interest of the parties to consider it.” Civil Code (1910), § 5964. Lowers v. Kirkpatrick Hdwe. Co., 21 Ga. App. 751 (2) (94 S. E. 1044).

Judgment on main bill of exceptions reversedj cross-bill dismissed.

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


author: Bloodworth, J.

text:
    14604.
    GEORGIA LUMBER COMPANY INC. v. JOHNSON-BATTLE LUMBER CO.
    The court erred in overruling the demurrer attacking a portion of the plea, upon the ground that the defendant sought therein to set off an item of damage arising ex delicto against a cause of action arising ex contractu.
    Decided December 5, 1923.
    Complaint; from Colquitt superior court—Judge W. E. Thomas. May 1, 1923.

      Humphreys & DeLoache, for plaintiff.

      Dowling & Whelchel, for defendant.
   Bloodworth, J.

For the purpose of disposing of this ease it is necessary to set out the following facts only: The Georgia Lumber Company sued the Johnson-Battle Lumber Company for the purchase price of a carload of lumber. The defendant filed a plea, a part of which is as follows: “This defendant further shows that the amount sued for by plaintiff in this case represents the purchase price of a car of lumber sold by plaintiff to defendant, to be shipped by plaintiff to the order of this defendant; that after said car of lumber had been delivered to the transportation company, and while same was in transit, the plaintiff, learning that defendant would insist upon payment by plaintiff of amounts herein sued for, undertook to divert said car of lumber, and did hold same for several days at Cape Charles, Ya.; that holding said ear was unauthorized and without lawful right or excuse; that expense accumulated while said car Was so held, amounting to: demurrage $13.00, team track storage $6.00, and equipment penalty $40.00, making a total expense of $59.00 which was lawfully charged against said car of lumber and which defendant was required to pay.” Plaintiff moved to strike this portion of the plea, “upon the ground that defendant therein seeks to set off an item of damage arising ex delicto against a cause of action arising ex contractu.” The case proceeded to trial, a verdict was rendered for the defendant, and the plaintiff excepted.

1. Whether that portion of the plea to which the demurrer was filed, as shown in the foregoing statement of facts, be treated as a plea of set-off or of recoupment, the court erred in overruling the demurrer thereto. There is no statute in this State which authorizes a defendant in a suit at law to set off, as a matter of legal defense to a suit on a contract, damages arising from a tort committed by the plaintiff. If there is an equitable reason for allowing a set-off, this special reason must be pleaded and proved. In this case this was not done. In Swift v. Oglesby, 8 Ga. App. 540 (1) (70 S. E. 97), it was held: “The ordinary rule is that a set-off as to matter arising ex delicto cannot be pleaded in defense to an action arising ex contractu. Where special equitable reasons exist for a variation of this general rule, the special reasons must be pleaded and proved.” See also Geer v. Cowart, 5 Ga. App. 251 (62 S. E. 1054); Mashburn v. Inman, 97 Ga. 396 (1) (24 S. E. 39); Green v. Combs, 81 Ga. 210 (6 S. E. 582). As to recoupment, the Civil Code of 1910 provides, in sections 4350, 4352, and 4353, that “Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.” “Recoupment lies for over-payments by defendant, or payments by fraud, accident, or mistake.” “Recoupment may be pleaded in all actions ex contractu, where from any reason the plaintiff, under the same contract, is in good conscience liable to defendant. And in all cases where, under the laws of this State, recoupment may be pleaded, if the damages of the defendant shall exceed, in amount, those of the plaintiff, the defendant shall in such cases recover of tbe plaintiff the amount of such excess.”- There is no claim in this case that the plea of recoupment is for over-payments, or payments by fraud, accident, or mistake. If in the ease we are considering the damages sought to be recouped arose under the contract sued on, if these damages resulted because the plaintiff had “not complied with the cross-obligations or independent covenants arising under the same contract,” then .the plea would be good as a plea of recoupment. But such is not this case. When the plaintiff accepted the order for the carload of lumber, what was his obligation under this contract of sale? So far as appears from the record, the contract obligated him to do nothing more than to deliver the lumber to the railroad and have the carrier accept it. When this was done he had fully complied with his obligation to the defendant. Having completed his contract, anything that he did after this was not a part of the contract, did not grow out of it, but was independent of it, and any tort committed by him after the completion of the contract could not be set up in a plea of recoupment to a suit for the purchase price of the lumber. “It is proper to strike paragraphs of an answer designed to set up the defense of recoupment, when they do not, by sufficient and appropriate allegations of fact, show that the damages therein claimed were occasiond by reason of a breach by the plaintiff of the contract sued on.” White v. Blitch, 112 Ga. 775 (1) (38 S. E. 80). See Jester v. Bainbridge State Bank, 4 Ga. App. 469 (2 a), 472 (2) (61 S. E. 926). The error in overruling the demurrer to this portion of the plea rendered the further proceedings nugatory.

Judgment reversed.

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


text:
    14775.
    Bailey v. Gardner.
    Decided December 5, 1923.
   Luke, J.

1. The evidence was conflicting, and the judgment will not be reversed upon the general grounds of the motion for a new trial.

2. The grounds of the motion for a new trial complaining of alleged errors in the introduction of evidence, in the court’s charge, and of the failure to- charge, contain no reversible error.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.

Action for damages; from Gordon superior court—Judge Tarver. May 12, 1923.

Albert Kemper, A. L. Henson, for plaintiff.

J. G. B. Brwin, for defendant.


text:
    14800.
    Hinton v. The State.
    Decided December 5, 1923.
    Indictment for making intoxicating liquor; from Macon superior court—Judge Littlejohn. June 12, 1923.

      John B. Guerry, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Luke, J.

“The Court of Appeals is without jurisdiction to pass upon the merits of any bill of exceptions the recitals of fact in which are not duly certified to be true. Binyard v. State, 126 Ga. 635 (1) (55 S. E. 498), and citations.” Foster v. State, 29 Ga. App. 233 (114 S. E. 582).

Writ of error dismissed.

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


text:
    14809.
    Williams v. The State.
    Decided December 5, 1923.
    Indictment for larceny of automobile; from Heard superior court—Judge Eoop. May 19, 1923.
    Certiorari was granted by tbe Supreme Court.
   Luke, J.

1. The circumstances relied upon by the State to corroborate the testimony of the accomplices, as to the defendant’s participation in the offense charged, while slight, were passed upon by the jury after full and fair instructions from the court as to the weight and effect of such evidence; and this court cannot say, as a matter of law, that these corroborating circumstances were insufficient. See Chapman v. State, 109 Ga. 165 (34 S. E. 369).

(a) Moreover, two accomplices testified in this case, each corroborating the other, and, under the ruling made in the ease of Stone v. State, 118 Ga. 705 (5), 711, 712, 713, 714 (45 S. E. 630, 98 Am. St. R. 145), one accomplice can corroborate another. Therefore, the conviction of the defendant would have been authorized even had there been no other evidence connecting him with the crime.

2. In a case of this character the refusal of a written request to charge the law of circumstantial evidence is not error.

3. The verdict was authorized by the evidence, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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

M. U. Mooty, L. L. Meadors, for plaintiff in error.

W. Y. Atkinson, solicitor-general, S. Holderness, contra.


text:
    14841.
    Ray v. The State.
    Decided December 5, 1923.
    - Accusation of possession of liquor; from city court of Floyd county—Judge Nunnally. June 39, 1933.
    Upon testimony as to the finding of whisky in fruit jars in a hole covered with a chop-block and chips near a woodpile in the backyard of Ray’s home, he was convicted upon the charge of having intoxicating liquor in his possession, custody, and control. The case came to this court on exceptions to the overruling of his motion for a new trial, the grounds of which, besides the general grounds, were in substance as follows:
    The court erred in failing entirely to charge the jury on the law of circumstantial evidence, and in failing to give certain instructions on that subject which are set out in this ground.
    The court erred in charging as follows: “If, however, it has not been made satisfactory to your mind how it was there, if it was there, you would be authorized to presume that it was in his possession and to find him guilty.” The movant contends that this part of the charge was error because it assumed as a fact that the whisky was on the defendant’s premises, and amounted to an expression of opinion that it was there; and it further placed the burden on the defendant to show how the whisky was there, when as a matter of law the reason why it was there was not material, the defense being that if it was there, the defendant did not place it there and did not know it was there.
    The court err'ed in charging that anything found in the defendant’s house or within the curtilage of his house, or anything found in his outhouses, is presumed to be in his possession. The movant contends that this was error because possession is only a circumstance from which the jury may infer guilt, and is a presumption of fact and not one of law; and because there was nothing claimed to have been found in any outhouse or within the curtilage of the defendant’s house, and the charge was an expression of opinion that the whisky was found in such a place.
   Luke, J.

1. The evidence connecting the accused with the offense charged being wholly circumstantial, the court erred, even in the absence of a timely and appropriate written request, in failing to charge the law of circumstantial evidence, the principle of that law not having been sufficiently presented by the charge given.

2. The other grounds of the motion for a new trial are without substantial merit.

Judgment reversed.

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

The court erred in charging: “That presumption may be rebutted or overcome by evidence submitted to you by the defendant, or in any other way, by showing that the person who had it in his possession had no knowledge of it and did not permit it to be placed on his premises. If these facts have been made to appear to your reasonable satisfaction, you should acquit him.” The movant contends that this was error because it assumed as a matter of fact that the whisky was in the possession of the defendant; and further because it put upon the defendant the burden of proof of his innocence to the reasonable satisfaction of the jury, when the law places, the burden upon the State to prove the defendant’s guilt beyond a reasonable doubt, and the defendant is not required to do anything until his guilt is established beyond a reasonable doubt.

The court, in charging on the statement of the defendant, erred in charging as follows: “You will give it just such weight as you think it is entitled to, along with the other testimony in the case.” The movant contends that this was error because it required the jury to consider his statement along with the other testimony, when the jury had the right to reject the testimony and believe the statement; and this part of the charge had the effect of withdrawing a previous instruction that the jury might believe the defendant’s statement in preference to the sworn testimony.

M. B. Eubanhs, for plaintiff in error.

James Maddox, solicitor, contra.


text:
    14912.
    Durden v. The State.
   Luke, J.

Extraordinary motions for new trials are not favored by tlie courts, and in passing upon sucli motions the trial judge is vested with a wide discretion. In this case the extraordinary motion, based upon the ground that two of the jurors who tried the defendant had prior to the trial expressed an opinion as to the defendant's guilt, was met by a counter-showing by the State, and, under this showing, this court cannot hold that the trial judge abused his discretion in overruling the motion.

Decided December 5, 1923.

Rehearing denied February 25, 1924.

Indictment for forgery; from Glynn superior court—Judge High-smith. July 6, 1923.

Application for certiorari was denied by the Supreme Court.

James B. Thomas & Son, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.


author: Broyles, C. J.

text:
    14941, 14942.
    Lovelace Lumber Co. v. Bohler, administratrix, et al.; and vice versa.

    Decided December 5, 1923.
    Trover; from Lincoln superior court—Judge Shurley. July 11, 1923.
    Application for certiorari was denied by the Supreme Court.

      Burnside & McWhorter, for plaintiff.

      Clement JS. Sutton, for defendants.
   Broyles, C. J.

1. Under the facts of the case the overruling of the motion for a nonsuit was not error.

2. The jury returned a verdict'for the plaintiff for $500, and the plaintiff made a motion for a new trial which was based upon the usual general grounds only. As there was some evidence to support the verdict, this court is without authority to interfere with the judgment overruling the motion.

Judgment affirmed on main and cross-hills of exceptions.

Luke- and Blood-worth, JJ., concur.


author: Broyles, O. J.

text:
    14947.
    Davis v. Cunningham.
   Broyles, O. J.

1. “There is no provision of law for the amendment of a petition for certiorari (Singer v. Walker, 77 Ga. 649; Western & Atlantic R. Co. v. Jackson, 81 Ga. 478, 8 S. E. 209; Neal v. Neal, 122 Ga. 804, 50 S. E. 929; Landrum v. Moss, 1 Ga. App. 216, 57 S. E. 965), or for amending .the pauper’s affidavit, made in lieu of the statutory bond, to obtain a writ of certiorari. Simpkins v. Johnson, 3 Ga. App. 437 (60 S. E. 202).

“(a) Section 5708 of the Civil Code of 1910, which provides that ‘where material words are omitted by accident or mistake in an affidavit to appeal in forma pauperis, such omission is amendable,’ does not apply' to a pauper’s affidavit made in a certiorari case. Simpkins v. Johnson, supra.

Decided December 5, 1923.

Certiorari; from Bibb superior court—Judge Malcolm D. Jones. July 14, 1923.

James Eugene Horne, James H. Dodgen, for plaintiff in error.

Walter DeFore, James G. Estes, contra.

“(h) A writ of certiorari is void, and cannot be amended, where the pauper’s affidavit made to obtain the writ uses the conjunctive ‘and,’ instead of the disjunctive ‘or,’ in violation of section 5187 of the Civil Code. Simpkins v. Johnson, supra.” Hackett v. Tate, 18 Ga. App. 453 (1 a, 6) (89 S. E. 535).

2. Under the above-stated rulings the judge of the superior court did not err in disallowing the proffered amendment to the pauper’s affidavit attached to the petition for certiorari, or in thereafter dismissing the certiorari.

Judgment affirmed.

Luke and Bloochoorih, JJ., concur.


author: Broxles, C. J.

text:
    14950.
    McNeil v. Lewis et al.

    Decided December 5, 1923.
    Complaint; from city court'of Morgan—Judge E. L. Smith. July 11, 1923.
    A. A. Lewis and W. A. Baldwin, the transferees of a promissory note signed by B. T. Eubanks and payable to the order of Mrs. Minnie McNeil, on which was written a transfer, signed by the payee, as follows: “Eor value received 'I this day transfer the within note to A. A. Lewis and W. A. Baldwin,” brought suit thereon against the maker and Mrs. McNeil jointly. Mrs. McNeil filed a plea denying indebtedness, and in paragraph 3 of the plea alleged: This defendant owned a place in Terrell county, and plaintiffs owned a place in Calhoun county and desired to trade places with her. They valued their places at $737 more than defendant’s place was valued at, and defendant, not having the money to pay the same, offered to trade'and did trade to plaintiffs the note sued on (which was for the principal sum of $857.11), “discount in said note more than $130 to petitioner,” and it was agreed and understood at the time when said trade was made that this defendant was not to he liable on said note, and the transfer was entered thereon only for the purpose of giving plaintiffs the right to sue thereon as against the maker, “it being understood and agreed and the discount of $130 being allowed all to the purpose and for the purpose only of transferring said note without recourse on this defendant.” The fact that the words “without recourse” were left out of said transfer was due solely to a mistake, mutual between the parties and contrary to their agreement, it being emphatically agreed and expressed at the time, and for a consideration, that the plaintiffs would look only to E. T. Eubanks, the maker of the note, for payment thereof. The answer was amended by adding: “that this defendant construed the transfer on said note to mean that it conveyed title to said note to the plaintiff, and in no wise made the defendant liable on said note as transferee [ ?] or otherwise, and that this construction placed on said note by said defendant was known to the plaintiff at the time, and he accepted said transfer thereon knowing the construction that was placed on same by this defendant. She understood from said transfer that she only conveyed title and in no wise was responsible for the payment of said note. It would be a fraud on defendant to be held liable on said transfer.”
   Broxles, C. J.

Under the particular facts of the case the court did not err in striking paragraph 3 of the plea, and the amendment thereto, or in refusing to strike a portion of the petition, or in thereafter rendering judgment in favor of the plaintiff and against both defendants.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

A motion to strike paragraph 3 of the answer, and the amendment, was made by the plaintiffs upon the ground that “the same undertakes to add to, contradict, and vary the terms of a written contract of indorsement, by parol testimony.” ' The motion was sustained.

There was also a motion by Mrs. McNeil to strike “that part of plaintiffs’ petition which alleged liability against Mrs. McNeil, on the ground that no sufficient allegation was made on said petition . . on which to base a judgment against her as indorser, it not being alleged that she was an indorser on said note.” This motion was overruled.

The court rendered judgment against Eubanks as principal and against Mrs. McNeil as indorser, for the amount of the note; and Mrs. McNeil excepted, assigning error on the rulings and judgment stated.

A. L. Miller, for plaintiff in error, cited:

143 Ga. 569; Civil Code (1910), §§ 4267, 5796; 155 Ga. 630; 123 Ga. 784.

W. E. Gun-, B. B. Marlin, contra:

Civil Code (1910), §§ 3562, 3556; 114 Ga. 668 (3); 155 Ga. 630; 138 Ga. 473; 9 Ga. App. 350; 56 Ga. 605; 143 Ga. 569 (distinguished); 139 Ga. 646; 33 Ga. 491.


text:
    14957.
    DECATUR COUNTY BANK v. THOMASON.
    The amendment of the claim affidavit and bond was properly allowed.
    The ruling made by this court, on review of a former trial of this case, that the plaintiff in execution failed to make out a prima facie case, was the law of the case on the trial now under review, the evidence on both trials being substantially the same.
    In a claim case, where the plaintiff in execution assumes the burden of proof and fails to make out a prima facie case, and no evidence is introduced by the claimant, the presiding judge should not direct a verdict finding the property not subject, but should dismiss the levy or the ease made by it.
    As it was shown that some of the hogs levied on and claimed in this case were subject (though the evidence is silent as to which or how many of them), the judgment is affirmed with direction that if the plaintiff in execution so desires, the verdict directed be vacated, and a judgment dismissing the levy or the case made by it (which is tantamount to a nonsuit), be entered when the remittitur is made the judgment of the trial court.
    Decided December 5, 1923.
    Levy and claim; from city court of Bainbridge—Judge Spooner. July 23, 1923.
    Tlie motion to dismiss the claim was on the ground that the case stated in the claim affidavit and bond was not the case shown by the execution, the execution being in favor of the Decatur County Bank, and the claim affidavit and bond stating that the execution was in favor of the First National Bank. The court allowed an amendment substituting the name of the Decatur County Bank for that of the First National Bank.

      E. G. Bell, for plaintiff.

      Eartsfield & Conger, contra.
   Broyles, C. J.

1. Under the provisions of sections 5706 and 6707 of the Civil Code of 1910, which respectively declare that all affidavits for the foreclosure of liens, and all affidavits that are the foundation of legal proceedings, are amendable to the same extent as ordinary declarations and pleas, and that all bonds lawfully taken in a judicial proceeding may be amended and new security given if necessary, the court did not err in refusing to dismiss, on motion of counsel for the plaintiff in fi. fa., the claim interposed, or in thereafter allowing the claimant to amend his claim affidavit and bond. See also, in this connection, Veal v. Perkerson, 47 Ga. 92 (3), 97; Lee v. Mills, 69 Ga. 740.

2. When this case was formerly before this court it was held: “In the trial of the instant claim the plaintiffs in fi. fa. specifically assumed the burden of proof. The burden was carried so far as it showed, without dispute, that the mortgagor had title to the mortgaged property at the time the mortgage was executed. Morris v. Winkles, 88 Ga. 717 (1), 719 (15 S. E. 747); Jones v. Hightower, 117 Ga. 749 (2), 751 (45 S. E. 60). As to the main issue, relative to whether or not the property levied on was that included and described in the mortgage, the plaintiff offered in evidence its mortgage, the execution, and the entry of levy thereon, which showed prima facie that the property levied upon was the same as that described in the mortgage. The plaintiff, however, dy its own testimony, went further and showed the actual incorrectness of the return. [Italics ours.] The levying officer testified for the plaintiff that cthe levy specifies that the hogs were all marked with a split in the right ear, but some of the hogs levied on were not marked/ The defendant in fi. fa., also testifying for the plaintiff, swore that while some of the original hogs included in the mortgage had died, £I .wanted Mr. Jones [plaintiff in fi. fa/s vice-president and cashier] to have his money, and I picked out the best hogs I had, except three which belonged to my children, and I told Mr. Jones that I would include these hogs, hog for hog, of like kind and of the same breed/ The evidence for the claimant was to the same effect, but failed to show definitely which of the hogs were marked and which were not. The verdict finding all of the property subject to the fi. fa. was therefore without evidence to support it.” Thomason v. Decatur County Bank, 28 Ga. App. 422 (3) (111 S. E. 578).

3. On the trial now under review the claimant did not introduce any evidence, and the court, at the conclusion of the evidence adduced in behalf of the plaintiff in fi. fa., which was substantially the same as that introduced upon the former trial, directed the jury to find the property not subject. This was error, since the previous ruling by this court, to the effect that the plaintiff in fi. fa. failed to cany the burden specifically assumed by it, became the law of the case; and it is well settled that, if in a claim case the plaintiff in fi. fa. fails to make out a prima facie case and the claimant introduces no evidence, the presiding judge should not direct a verdict finding the property not subject, but should either „dismiss the levy or the case made by it. Stewart v. Mundy, 131 Ga. 586 (4), 587 (62 S. E. 986), and authorities there cited.

4. However, as the plaintiff in fi. fa., although it failed to carry the burden specifically assumed by it, to wit, of showing that all of the property levied upon was subject, did show that some of the hogs (though the evidence is silent as to which or how many of them) were subject, the judgment will not be reversed, but direction is given that, if the plaintiff in fi. fa. so desires, the verdict directed be vacated, and a judgment dismissing the levy or the case made by it (which is tantamount to a nonsuit), be entered when the remittitur is made the judgment of the trial court. See, in this connection, Zipperer v. Savannah, 128 Ga. 135 (4) (57 S. E. 311).

Judgment affirmed, with direction.

Lulce and Bloodworth, JJ., concur.


author: Bboxles, C. J.

text:
    14961.
    Cobb v. Bank of Cobbtown.
    Decided December 5, 1923.
    Levy and claim; from Candler superior court—Judge Hardeman. July 16, 1923.

      W. A. Morgan, for plaintiff in error.

      Anderson & Trapnell, contra.
   Bboxles, C. J.

Tlie motion for a new trial contained the usual general grounds only; and, there being some evidence to support the verdict, this court is without authority to interfere with the judgment overruling the motion.

Judgment affirmed.

Lulce and Bloodworth, JJ., concu/r.


author: Béoxbes, C. J.

text:
    14983.
    Barton v. Watkins Company et al.

   Béoxbes, C. J.

1. “The recitals of fact in an affidavit of illegality must be taken as true, unless written traverse or joinder of issue be filed. If, however, the affiant goes to trial before a jur.y without distinctly objecting' on the ground that'no such traverse or joinder of issue fias been filed, he will be estopped thereafter from raising the objection.” McLeod v. Bird, 14 Ga. App. ,77 (I), 78 (80 S. E. 207), and citation. Under this ruling and the facts of the instant case, the plaintiff in error must be held to have waived the written traverse or joinder -of ■issue.

Decided December 5, 1923.

Affidavit of illegality of execution; from Fulton superior court— Judge Ellis. July 3, 1923.

Lowndes Calhoun, for plaintiff in error.

Wathins, Russell & Asbill, contra.

2. Under the facts of this case, service of process issued by the clerk of the superior court, directed to the defendant, and served (as testified by the deputy sheriff) on a person (who told the officer making the service that she was the defendant’s wife), who lived in the house in « which the defendant resided, with an entry of service as provided by statute (Civil Code of 1910, § 5563), was good although the evidence introduced in behalf of the defendant showed that the person served was not his wife and did not actually live in the rooms occupied by the defendant, but occupied rooms across the hall from those in which the defendant lived. Cooper v. Fourth National Bank, 26 Ga. App. 44, and cases; cited on pages 46 and 47 (105 S. E. 375). The decision in that case was, on certiorari, affirmed by the Supreme Court. See 152 Ga. 599 (110 S. E. 723).

3. Under the above-stated rulings, the court did not err in denying the motion for a new trial or in overruling the motion to set aside the judgment previously rendered.

4. This court not being convinced that the writ of error in this case was prosecuted for the purpose of delay only, the request of the defendant in error that damages for such delay be awarded is denied.

Judgment affb'med.

Luke and Bloodworlh, JJ., concur.


text:
    15002.
    Lawson v. Brown.
    Decided December 5, 1923.
    Petition for certiorari; from Houston superior court—Judge Malcolm D. Jones. July 9, 1923.

      Marion Turner, for plaintiff in error.

      M. Kunz, contra.
   Broyles, C. J.

As the bill of exceptions contains no assignment of error, it cannot be entertained by this court.

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


text:
    15011.
    Maryland Casualty Co. v. McAlpin, ordinary.
    Decided December 5, 1923.
    Action, on bond; from city court of Savannah—Judge Freeman. August 30, 1923.
    Application for certiorari was denied by the Supreme Court.

      O'Byrne, Iiartridge, Wright & Brennan, for plaintiff in error.

      Oliver & Oliver, Bouhan & Herzog, contra.
   Broyles, C. J.

1. A contract of suretyship must be strictly construed in the interest of the surety. Board of Education v. Fudge, 4 Ga. App. 637 (1 a).

2. Where an administrator receives money for the use of particular individuals, the receipt operates as a specific appropriation of that money, and the administrator is liable for it in his individual capacity only, such money being no part of the estate of the decedent. Johnson v. Hall, 101 Ga. 687, 691 (29 S. E. 37).

3. Where an administrator of the estate of a deceased employee of a railroad company receives money in settlement of a death claim against the railroad company, arising out of the homicide of the deceased employee (the railroad company and the deceased employee being engaged in interstate commerce at the time of the homicide), the surety upon the bond of the administrator is not liable for the misappropriation by the administrator of the money so received, as such fund is no part of the decedent’s estate, but is for the benefit solely of certain designated beneficiaries named in the Federal employer’s liability act. Cooper v. Cooper, 30 Ga. App. 710 (119 S. E. 335). This is true although the statute law of this State (Civil Code of 1910, § 3972) provides that the bond of every administrator “shall be conditioned for the faithful discharge of his duty as such administrator, as required by law.”

4. Under the above-stated rulings, the petition in the instant case failed to set forth a cause of action, and the court erred in overruling the general demurrer.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    15015.
    EVANS & TATE v. PREMIER REFINING COMPANY.
    The law requiring insurance companies to procure a license to do business in this State was not rendered applicable to the plaintiff in this case by its contract insuring the defendants against breakage of gears of automobiles on which lubricant bought from it was used.
    The defendants, having pleaded a written contract which amounted to an express warranty, could not rely upon an implied warranty.
    Under an express stipulation of the contract, no claim for broken gears was to be allowed by the plaintiff unless the defendants paid their account with the plaintiff when due; and the evidence showed, without contradiction, tliat.tlie defendants failed to comply with this condition.
    Under the pleadings and the evidence the court did not err in directing a verdict for the plaintiff.
    Decided December 5, 1923.
    Complaint; from Walker superior court—Judge Wright. September 5, 1923.
    This was a suit on an open account for goods sold by the plaintiff to the defendants. The defendants filed a plea in which they set up that the goods (automobile lubricant) were sold under a written contract of insurance wherein the plaintiff, in consideration of the purchase of the lubricant by the defendants, insured the defendants against the breakage, by natural wear and tear, of the gears of the automobiles of such persons as purchased the lubricant from the defendants. It was stipulated in the contract that when such breakage occurred, the plaintiff was to replace the gears, through the defendants, without loss to the owners of the automobiles. It was further stipulated in the policy that no claim on the policy would be paid the defendants unless their account with the plaintiff was paid when due. The defendants further pleaded that, in accordance with the contract, they placed the lubricant in the automobiles of certain named persons and that thereafter the gears in such automobiles were broken, and, acting under the contract, they had to replace the gears in the cars at a damage to them of $91.75, and that they mailed notices to the plaintiff in accordance with the contract. They further pleaded that they shipped the gears to the plaintiff in accordance with its instructions, and that the express charge thereon was $2.21, and-they pleaded that the plaintiff was indebted to them in the total sum of $93.96, which they asked to have set off against any liability arising under the contract; The defendants further pleaded that the lubricant bought by them was not reasonably suited for the purposes intended, and was wholly worthless.

      Norman Shaltuck, for plaintiffs in error.

      Rosser & Shaw, contra.
   Broyles, C. J.

(After stating the foregoing facts.) The defendants, having pleaded a written contract which amounted to an express warranty, could not rely upon an implied warranty, and they could not show that the lubricant was worthless unless they also showed that they had complied with the conditions named in the contract (International Harvester Co. v. Dillon, 126 Ga. 672, 55 S. E. 1034), and the undisputed evidence showed that the defendants had not complied with the express stipulation in the contract that no claim for replacing broken gears could be allowed them unless their account with the plaintiff was paid when due. Nor can we agree with the contention of defendants’ counsel that the plaintiff could not recover the purchase price of the lubricant sold to the defendants, for the reason that the plaintiff had no license as an insurance company to transact business in this State. We do not think that the contract of indemnity or of insurance entered into in this ease is a contract of insurance, or that the plaintiff thereby became an insurance company, within the meaning of the statute (Park’s Civil Code, § 2415 a).

Under the pleadings and the evidence submitted, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Dulce and Bloodworth, JJ., concur.


author: Broyles, 0. J.

text:
    15023.
    Green v. The State.
    Decided December 5, 1923.
    Indictment for possession of liquor; from Fulton superior court —Judge Humphries. August 8, 1923.

      G. G. Battle, for plaintiff in error. .

      John A. Boylcin, solicitor-general, B. A. Stephens, B. H. Pharr, contra.
   Broyles, 0. J.

The verdict was amply authorized by the evidence, and none of the grounds of the motion for a new trial requires a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur. .


text:
    15024.
    Green v. The State.
    Decided December 5, 1923.
    Description of the case and names of counsel the same as in the next preceding case.
   Broyles, O. J.

The verdict was amply authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial requires a reversal of the judgment below.

Judgment affirmed.

Luke and Bloockoorth, JJ., concur.


text:
    15026.
    Clark v. The State.
    Decided December 5, 1923.
    Indictment for fornication and adultery; from Wilcox superior court—Judge Crum. July 27, 1923.

      M. B. Cannon, Eldridge Gulls, for plaintiff in error.

      J. B. Wall, solicitor-general, contra.
   Luke, J.

The sole assignment of error is upon the ground that the evidence did not authorize the verdict. There was ample evidence to authorize the conviction. The court, having approved the verdict, properly overruled the motion for a new trial.

Judgmenl affirmed.

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


text:
    15029.
    Kirkland v. The State.
    Decided December 5, 1923.
    Conviction of stabbing; from Candler superior court—Judge Hardeman. August 9, 1923.

      G. W. Turner, for plaintiff in error.

      Walter F. Grey, solicitor-general, contra.
   Broyles, C. J.

It affirmatively appearing from the bill of exceptions and the record that the bill of exceptions was not tendered to the judge within 20 days of the date of the judgment overruling the motion for a new trial, this court is without jurisdiction to entertain the bill of exceptions.

Writ of error dismissed.

Luhe and Bloodworlh, JJ., concur.


text:
    15030.
    Taylor v. The State.
    Decided December 5, 1923.
    Indictment for assault with intent to rape; from Candler superior court—Judge Hardeman. August 9, 1923.

      O. W. Turner, for plaintiff in error.

      Walter F. Grey, solicitor-general, contra.
   Luke, J.

The motion for a new trial in this case was overruled on August 9, 1923; the movant tendered a bill of exceptions on September 5, 1923, and on that date it was certified by the trial judge. The bill of exceptions having been tendered more than twenty days after the overruling of the motion for a new trial, the writ of error must be

Dismissed.

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


author: Broyles, 'C. J. Broyles, C. J.

text:
    15035.
    WALKER v. CITY OF CAIRO.
    Decided December 5, 1923.
    Rehearing denied January 16, 1924.
    Affidavit of illegality of execution; from Grady superior court— Judge Custer. August 11, 1923.

      S. P. Cain, for plaintiff in error.

      Pope & Bennet, Jeff A. Pope,- contra.
   Broyles, 'C. J.

1» The motion to dismiss the exceptions pendente lite is denied»

’2. Where this court delivers an opinion with headnotes by the court, the headnotes are not to be considered alone as showing what is decided, but the headnotes and opinion are to be taken together. Frazier v. State, 15 Ga. App. 366 (83 S. E. 273).

3. The decision of this court previously rendered in this case (27 Ga. App. 323), properly construed, was that the 5th ground of the affidavit of illegality was not subject to general demurrer, and, therefore, the trial court erred in sustaining the general demurrer to the entire affidavit of illegality and in dismissing' it. This court did not pass upon the question whether other grounds of the illegality were subject to general demurrer, and the trial court, upon making the judgment of this court the judgment of the superior court, properly so construed the judgment of this court. And, under the facts of the case, the trial court did not err in overruling the general demurrer to ground 5 of the affidavit of illegality and in sustaining the general demurrer to the other grounds of the affidavit.

4. Under the particular facts of the case the court did not err in directing a verdict for the plaintiff in fi. fa., or in thereafter overruling the motion for a .new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

ON MOTION ROE REHEARING.

Broyles, C. J.

It is contended by counsel for the plaintiff in error in his motion for a rehearing that when the trial judge, on the first hearing of this case, sustained the general demurrers to the affidavit of illegality, he at the same time overruled the special demurrers interposed thereto, and that this ruling “became the law of the case and could not be later set aside on a general demurrer, motion to dismiss or otherwise,” and, therefore, “that when the court entered an order overruling the demurrers numbered 11, 12, and 15, it necessarily adjudicated that the facts set up in paragraphs 2, 3, and 6 [of the affidavit of illegality] were relevant, material, and set up defensive matter.” We agree with the contention of counsel that the judgment overruling the special demurrers became the law of the case, but we do not agree with counsel’s assumption that the demurrers numbered 11, 12, and 15 were special demurrers, or that they were so considered by the judge when he passed the order overruling “the special demurrers.” ■

After a careful consideration of all the grounds of the motion for a rehearing we ñnd no good or sufficient reason for granting the same.

Rehearing denied.

Lulce and Bloodworth, JJ., concur.


text:
    15036.
    Hughes v. The State.
    Decided December 5, 1923.
    Indictment for larceny of automobile; from Lowndes superior court—Judge W. E. Thomas. September 4, 1923.

      James M. Johnson, for plaintiff in error.

      O. E. Hay, solicitor-general, Eva L. Hay, contra.
   Bloodworth, J.

There is no merit in the special ground of the motion for a new trial, and there is some evidence to support the verdict.

Judgment affirmed.

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


text:
    15043.
    Bishop v. The State.
    Decided December 5, 1923.
    Indictment for larceny of hog; from Spalding superior court— Judge Searcy. September 8, 1923.

      H. M. Fletcher, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Broyles, O. J.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15044.
    Duke v. The State.
   Luke, J.

The defendant’s contention that he was convicted upon the uncorroborated evidence of an accomplice is without merit. The testimony of the accomplice was corroborated by evidence which tended directly to connect the defendant with the commission of the offense. The defendant has had a legal trial, the verdict has been approved by the trial court, and for no reason pointed out was it error to overrule his motion for a new trial.

Decided December 5, 1923.

Indictment for larceny of hog; from Spalding superior court-judge Searcy. September 8, 1923.

J. A. Darsey, for plaintiff in error.

E. M. Owen, solicitor-general, contra.

Judgment affirmed.

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


author: Broyles, ó. J.

text:
    15048.
    Shaw v. The State.
    Decided December 5, 1923.
    Indictment for larceny of automobile; from Fulton superior court—Judge E. D. Thomas. September 8, 1923.

      O. G. Battle, IF. Paul Carpenter, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, R. H. Pharr, contra.
   Broyles, ó. J.

1. The exceptions pendente lite (complaining of the overruling of a demurrer to the indictment) cannot-be considered, as the main bill of exceptions contains no assignment of error upon the exceptions pendente lite or upon the judgment of the court overruling the demurrer. Nor can the overruling of a demurrer to an indictment be a ground of a motion for a new trial.

2. The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial which were approved by the court (the disapproved grounds not being considered) requires a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15050.
    Adams v. The State.
    Decided December 5, 1923.
    Indictment for larceny after trust; from Floyd superior court-judge Wright. September 15, 1923.

      Porter & Mebane, for plaintiff in error.

      E. S. Taylor, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial in this case is based upon the general grounds only. As there is evidence to support the verdict, and no error of law appears, the judgment of the trial court must be

Affirmed.

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


text:
    15058.
    Harvey v. The State.
    Decided December 5, 1923.
    Conviction of manslaughter; from Fulton superior court—Judge Humphries. September 10, 1923.

      II. -A. Allen, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, B. U. Pharr, contra.
   Luke, J.

The defendant was indicted for the offense of murder; he was convicted of manslaughter. The evidence amply authorized the conviction.

The assignment of error upon the ground that the court erred in charging the law of manslaughter is wholly without merit. Every element of manslaughter is shown in the testimony. The jury were authorized to accept that version of the case.

The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworlfo, J., concur.


text:
    15049.
    STEVENS v. THE STATE.
    A conviction of the offense of receiving stolen goods was not authorized by the evidence.
    Decided December 5, 1923.
    Indictment for receiving stolen goods; from Fulton superior court—Judge E. D. Thomas. August 23, 1923.
    From the evidence it appears that Harry Stevens, the defendant, conducted a clotlies-pressing business in the City of Atlanta, and that on a Saturday night and until an early hour on Sunday morning John Bagwell, George Tumlin, and Hubert Puckett were at the “pressing club” of Stevens, and, in pursuance of a plan then made by them, Tumlin and Puckett went from there to Hanna’s store, broke into it, and stole fourteen cartons of cigarettes, some cigars, and $8.50 in money-from the store, and that the packages of cigarettes were taken to the pressing club and put on a counter, and the money divided. Bagwell was convicted of the burglary, Tumlin escaped, and Puckett (a boy sixteen years old) was the only witness for the State on the trial of Stevens, except the owner of the stolen property. Puckett, in his testimony, said: “The trip to the store was planned about two o’clock in the morning at Harry Stevens’ pressing club. . . The pressing club is partitioned off. We were in the front part of the pressing club when the trip to the store was planned. . . Harry told us he would not do it if he was us.” After testifying as to the burglary by Tumlin and himself, the witness said: “Both of us carried the cigarettes down to the pressing club. We put them on the counter and went back down to the store, to set it on fire. Harry Stevens was there when we got back. . . Harry was in the back of the pressing club. I saw him, but we did not talk to him. . . Harry did not ask us anything, and we did not tell him anything. He did not see where we had put the cigarettes. . . We left all the cigarettes we got out of the place at Harry’s place. I never got any of them from there. . . We left them on a wooden counter, just a little shelf. It is the place where he receives his clothes when they bring them in to press. . . Harry didn’t say anything about the cigarettes. . . George Tumlin said that they hid the cigarettes in the roof. . . Harry was in the back, and me and George was in front. . . $8.50 in money was stolen at the store that night. George Tumlin, John Bagwell, Harry Stevens, and myself spent it. . . The money was divided into four parts, and I got some. . . The pressing club was a place where they worked late at night. Harry kept the club open until late on Saturday night. . . He was busy with his pressing business. . . Harry was pressing clothes. . . We first began to talk about the burglary' at two o’clock in the morning. Harry told us he would not. do it, advised against it. . . I don’t know of my own knowledge that Harry Stevens ever got any of the cigarettes. George told me later that he had hidden the cigarettes at some place about the pressing club.” “We didn’t tell him we got the money at that time. . . I didn’t give Harry Stevens any part of the $8 in money. George Tumlin had the $8. I did not see Harry get any of the money. He never told me that he got any of it. He never told me that he got any of the cigarettes, and I never saw him get them. . . I got a fourth of the money. . . I took the money out of the cash register; I took my part and gave the rest to George Tumlin. There was nobody there when I did that. . . When we left to go down to the store Harry already knew we were going to rob it. That was the time he told us he would not do it." I never seen Harry get none of the stuff that come out of the store.” The defendant, in his statement at the trial, said that he knew nothing- about the cigarettes, cigars, or money brought to his place, that he “was in the back and asleep.”

      Fred E. Harrison,• Louis H. Foster, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, B. H. Pharr, contra.
   Luke, J.

The defendant was convicted of the offense of receiving stolen goods. A strong suspicion of his guilt is created .by the evidence, but in our judgment the evidence was insufficient to authorize his conviction. It was therefore error to overrule the motion for a new trial.

Judgment reversed.

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


text:
    15059.
    Harvey v. The State.
    Decided December 5, 1923.
    Conviction of assault with intent to murder; from Fulton superior court—Judge Humphries. September 10, 1933.

      H. A. Allen, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, B. H. Pharr, contra.
   Luke, J.

The evidence authorized the conviction. The charge of the court upon the law of shooting at another worked no harm to the defendant. The defendant had a legal trial, and the court, having approved the verdict, properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    15074.
    Lloyd v. The State.
    Decided December 5, 1923.
    Accusation of possession of liquor; from city court of Oglethorpe —Judge Greer. September 10, 1933.

      Jere M. Moore, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Broyles, O. J.

The verdict was authorized by the evidence and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15092.
    Pulliam v. The State.
    Decided December 5, 1923.
    Indictment for manufacture of liquor; from Cobb superior court —Judge Blair. September 8, 1923.

      H. B. Moss, for plaintiff in error.

      John B. Wood, solicitor-general, contra.
   Bloodworth, J.

1. As the brief of plaintiff in error contains no general insistence on all of the grounds of the motion for a new trial, and does not refer to the special grounds of the motion, they will be treated as abandoned.

2. There is ample evidence to support the verdict.

Judgment affirmed.

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


text:
    15093.
    Stafford v. The State.
    Decided December 5, 1923.
    Accusation of carrying pistol without license; from city court of Oglethorpe—Judge Greer. September 10, 1923.

      Jere M. Moore, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Broyles, C. J.

This case having been submitted subject to the payment of costs within ten days, and the costs not having been paid within such time, the writ of error must be dismissed.

Writ of error dismissed.

Luke and Bloodworth, JJ., eoneur.


text:
    15094.
    Stafford v. The State.
    Decided December 5, 1923.
    Accusation of shooting on highway; from city court of Oglethorpe—Judge Greer. September 10, 1923.

      Jere M. Moore, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Broyles, C. J.

This case having been submitted subject to the payment of costs within ten days, and the costs not having been paid within such time, the writ of error must be dismissed.

TPrii of error dismissed.

Luke and Bloodworth, JJ., eoneur.


text:
    15095.
    Grimes v. The State.
    Decided December 5, 1923.
    Indictment for uttering fraudulent check; from Milton superior court—Judge Blair. September 25, 1923.

      J. P. Brooke, for plaintiff in error.

      John 8. Wood, solicitor-general, contra.
   Luke, J.

The defendant was convicted of a violation of the Penal Code (1910), §249. The evidence demanded the conviction. The assignment of error upon .an excerpt from the charge of the court, in the light of the entire charge, is without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    15102.
    Kirkpatrick v. The State.
    Decided December 5, 1923.
    Conviction of voluntary manslaughter; from Dodge superior court—Judge Graham. September 7, 1923.

      Roberts & Smith, J. H. Milner, for plaintiff in error.

      M. H. Boyer, solicitor-general, G. W. Griffin, W. A. Wooten, contra.
   Broyles, C. J.

The accused was charged with murder and convicted of voluntary manslaughter. The verdict was authorized, under the evidence and the defendant’s statement. Indeed, a verdict of murder would have been amply supported by the evidence, and the accused was fortunate in being convicted of the lesser offense.

The charge of the court was more favorable to the defendant than the law and the facts required, and was not subject to any of the exceptions taken thereto.

The overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Stephens, J.

text:
    12771.
    Reserve Loan Life Insurance Co. v. Phillips, administrator.
   Stephens, J.

This court having in a judgment rendered in this case (29 Ga. App. 99, 113 S. E. 815) affirmed the judgment of the city court of Valdosta, and the Supreme Court, on certiorari, having reversed the judgment of this court (156 Ga. 372, 119 S. E. 315), the judgment of affirmance originally rendered by this court must be vacated and the judgment of the trial court reversed.

Decided December 7, 1923.

Action on life-insurance policy; from city’court of Valdosta— Judge Cranford. July 30, 1921.

A. T. Woodward, Gf. A. Deitch, F. G. West, J. J. Murray, O. M. Smith, for plaintiff in error.

Whitalcer & Dulces, contra.

Judgment reversed.

Jenhins, P. J., and Bell, J., concur.


text:
    13847.
    Philadelphia Underwriters v. Folds.
    Decided December 7, 1923.
    Action on fire-insurance policy; from Carroll superior court— Judge Eoop. June 15, 1922.

      Smith, Hammond & Smith, J. M. B. Bloodworih, for plaintiff in error.

      Willis Smith, contra.
   Jenkins, P. J.

On this bill of exceptions of an insurance company to an order of a superior court, under the act approved August 14, 1916 (Ga. L. 1916, p. 128), appointing an umpire to ascertain certain damages by fire under a fire insurance policy, the Supreme Court having held, in answer to questions certified to it by this court, that such order “is not a judgment that can be reviewed by writ of error, and the Court of Appeals has not the power to entertain an assignment of error based thereon,” the motion of the defendant in error to dismiss the writ of error must be granted. 156 Ga. 773 (120 S. E. 102).

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    14146.
    Moore v. American National Bank.
    Decided December 7, 1923.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. December 5, 1922.

      Boy W. Moore, Strozier & Deaver, for plaintiff.

      Jones, Parle & Johnston, for defendant.
   Jenkins, P. J.

The Supreme Court having answered the controlling question in this case, certified to it by this court, adversely to the contentions of the plaintiff in error, the judgment of the superior court sustaining the certiorari must be affirmed. 156 Ga. 724 (120 S. E. 2).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14265.
    HANEY, CHANDLER & COMPANY v. JOHNSON & COMPANY.
    In the trial of this action of trover for the recovery of a bale of cotton, the evidence was such as to raise issues for the jury as to the ownership of the cotton as between plaintiffs and defendants. The court therefore erred in directing a verdict for the defendants.
    Decided December 7, 1923.
    Trover; from Cherokee superior court—Judge Blair. December 12, 1922.
    Haney, Chandler & Company brought trover against J. H. Johnson & Company for a bale of cotton, which was deposited in the warehouse of the defendants, and to which the plaintiffs claimed title under a bill of sale from C. W. Bates, dated June 26, 1921. The evidence seems undisputed that this bale had been delivered in the fall of 1920 to the defendants by the wife of Bates; that they extended credit to her on the faith of its security; that, as merchants rather than warehousemen, they gave no warehouse receipt; that, acting under the authority originally given by Mrs. Bates and under the instructions of J. Y. Smith, the agent of the landlord renting the land on which the cotton was made, they sold this bale on June 24, 1921, prior to its attempted transfer by 0. W. Bates to the plaintiffs; and that the proceeds of this sale by the defendants were applied -in the payment of advances made to Mrs. Bates and to the claim of Smith as agent for the landlord. The evidence is in dispute as to whether Bates or his wife rented from Smith’s wife the land on which the cotton was raised. It appears that Bates was in feeble health during most of the crop year of 1920, when the bale of cotton was made, and died in August or September, 1921, before the trial; and that Mrs. Bates had died during the latter part of 1920. The principal questions of fact argued by counsel with reference to the determination of whether the evidence raised any issue for the jury may be reduced to the following: 1. Did Bates or Mrs. Bates rent the land from the owner, Mrs. Smith, or her husband, J. Y. Smith, acting for her; and who was the owner of the cotton at the time it was turned over to the defendants by Mrs. Bates; and consequently, did Bates or Mrs. Bates have authority to control the same? 2. If Mrs. Bates was not the renter of the land and the Owner of the cotton in the fall of 1920, when she pledged the cotton for advances made by the defendants, did she have authority, as agent acting for her husband, so to control and subject it?

      Anderson & Roberts, for plaintiffs.

      Wood & Vandiviere, for defendants.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. The defendants, claiming under Mrs. Bates, assert that there was no competent evidence showing that Bates rented the land, and contend that Mrs. Bates was unmistakably the tenant of the land and owner of the cotton, and that the evidence therefore demanded a finding in their favor. However, the evidence of both Mrs. Kate Durham, a daughter of Mr. and Mrs. Bates, and of Crawford Garrison, their son-in-law, was to the effect that the land had been rented by Bates and not Mrs. Bates. While the evidence discloses that the daughter was not present at the time of the renting, there is nothing to indicate, either on direct or cross-examination, that the son-in-law was absent at the time the contract was entered upon; and both the daughter and the son-in-law swore positively that Mr. Bates, under whom the plaintiffs claim, rented the land. The evidence of the son-in-law, while thus silent as to whether he was present at the time the contract was actually entered upon, does state that Mr. Bates went over to the farm and .inspected it in company with the witness, for the purpose of renting it; and both of these witnesses testify to various acts of Mr. Bates indicating his own personal control over the rented premises, such as might be taken in support of the theory that he himself was the tenant. In view of this testimony, and in view of the fact that each of these witnesses swore positively to the rental of the premises by Mr. Bates as a fact, this court cannot say, as a matter of law, that their testimony is manifestly based upon mere hearsay or constitutes mere conclusions of the witnesses. On the other hand, J. V. Smith swore that he, acting for his wife, the owner, rented the land to Mrs. Bates. It cannot be said that the evidence upon this question was not in conflict.

2. Even conceding that Bates was the tenant of the land and owner of the cotton, the evidence seems undisputed that, in his enfeebled condition from a cancer, during the year 1920, Mrs. Bates, with his knowledge and consent, was handling most of his affairs and acting as his recognized agent in all the farm transactions, including the disposition and sale of the crops. Since there is no dispute that the defendants held the cotton under their claim of security for advances procured by Mrs. Bates, it would seem, under the evidence, that the defendants would have to be treated as lawful bailees of the property held as collateral for their debt; except for the evidence of the daughter and the son-in-law of the Bates to the effect that in June, 1931, while their father was yet alive, they, acting for him, went to the defendants and advised them that they could apply only one of the two bales then stored upon the defendants’ indebtedness, and that the other bale, the one in dispute, was to go to the plaintiffs; and that the defendants agreed that “we could get the bale of cotton any time after that week,” and that “Haney [referring to plaintiffs] could get the bale any time after that week.” This conversation ■ seems not to have been denied by the defendants; and such admissions might have authorized the jury to find against the defendants’ evidence that the bale in question had been deposited as claimed and was being held as collateral security for their indebtedness.

Judgment reversed.

Stephens and Bell, JJ., concur.