text:
    16491.
    American National Insurance Company v. Potts.
    Life Insurance, 37 O. J. p. 405, n. 45, 68.
    New Trial, 29 Cyc. p. 835, n. 66.
   Stephens, J.

1. An insured person who, upon the date of making application for life insurance and upon the date of the issuance of the policy, was suffering from tuberculosis of the throat, and who was, to all appearances, in bad health, and who died within twenty-one days thereafter', was not in sound health at the date of the issuance of the policy.

2. Where a policy of life insurance provides that “no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health,” notice to the agent who delivered the policy of the sickly condition of the insured at the time of the issuance and delivery of the policy, which condition was unknown to any other official of the company, was insufficient to constitute a waiver by the company of the above quoted provision of the policy, where, by the terms of the policy, the powers of the agent delivering the policy were expressly limited and the agent had no power to waive any of its provisions, the limitations upon the agent’s authority being contained in the policy in the following terms: “ All statements made by the insured in the application herefor shall, in the absence of fraud, be deemed representations and not warranties. Its terms can not be changed or conditions varied, except by a written agreement signed by the president or secretary. Therefore agents (which term includes superintendents and assistant superintendents) are not authorized and have no power to make, alter or discharge contracts, waive forfeitures, or receive premiums on policies in arrears more tha.n four weeks, or to receipt for same in the receipt book, and all such arrears given to an agent shall be at the risk of. those who pay them, and shall not be credited upon the policy, whether entered in the receipt book or not.” Reliance Life Ins. Co. v. Hightower, 148 Ga. 843 (98 S. E. 469) ; American National Ins. Co. v. Floyd, 34 Ga. App. 541 (130 S. E. 531).

3. In a suit by the beneficiary named in the policy, to recover under the policy against the insurer for the death of the insured, where it appears undisputed that the insured was not in sound health, as indicated in paragraph one of the syllabus, which condition was patent and .known both to him and to the beneficiary at the time of the application for insurance and at the time of the issuance of the policy, a verdict for the defendant was demanded. A verdict having been rendered for the plaintiff, the trial court erred in not sustaining the defendant’s motion for a new trial upon the general grounds.

Decided February 13, 1926.

Complaint; from city court of Floyd county—Judge Bale. April 8, 1925.

Maddox, Matthews & Owens, for plaintiff in error.

Porter & Mebane, contra.

Judgment reversed.

Jenlwns, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    16531.
    Nellis & Company et al. v. Houser.
    Frauds, Statute of, 27 O. J. p. 249, n. 88; p. 385, n. 25.
    Decided February 13, 1926.
    Action on contract; from Houston superior court—Judge Malcolm D. Jones. May 18, 1925.

      Brown & Brown, for plaintiffs in error. G. L. Shepard, contra.
   Stephens, J.

1. This being a suit by the seller against the purchaser for an alleged breach of an oral contract for the sale of three carloads of peaches which the defendant had refused to accept after one car had been loaded and tendered to him, to which the defendant pleaded a general denial and also that the contract was within the statute of frauds and unenforeible, and there being evidence to the effect that, according to the terms of the contract, the peaches were to be of different varieties,—as Hiley Belles and Georgia Belles (there being an issue between the parties as to the proportion of such varieties),—and that the peaches were inspected at the packing house while the first car was being loaded, and were also inspected after they were placed in the car by an authorized agent of the purchaser, the inference was authorized that by the terms of the contract the peaches were packed and the car was loaded in accordance with the wishes of the purchaser, and that the seller, in packing the peaches and loading them into the car, did so in accordance with the provisions of the Contract. The jury was therefore authorized to find that the contract had been partially performed by the seller, and that, from the nature of the contract and from the perishable nature of the commodity contracted for, it would have been a fraud upon the seller by the purchaser if the purchaser were not compelled to perform, and that therefore the contract, which was not in writing, was taken out of the statute of frauds. Civil Code (1910), § 3223 (3).

2. The evidence authorized the verdict found for the plaintiff.

3. See, in this connection, Nellis v. Houser, 33 Ga. App. 266 (125 S. E. 790).

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


author: Jenkins, P. J.

text:
    16571.
    CASWELL v. VANDERBILT et al., receivers.
    On the trial of an action brought by receivers whose appointment was not conditioned on the giving of a bond, although the order appointing them directed that they forthwith file with the clerk of the court a bond to be approved by the court, it. was not harmful to the defendant that the trial judge, over the defendant’s objection that the document offered in evidence was not the highest and best evidence of the fact stated therein, admitted in evidence a certificate of the clerk that the receivers had filed the required bond.
    On the trial of an action by receivers of a corporation for the conversion of certain choses in action delivered to the defendant for collection, where the plaintiffs offered in evidence a trust receipt given by the defendant to the corporation, acknowledging receipt of described clioscs in action for collection for the corporation’s account, and reciting that the receipt was given in pursuance of a certain contract between the parties, and where the plaintiffs alleged that the contract referred to in the receipt was verbal, and the defendant testified that the only contract made by him was the trust receipt and certain notes which he gave to the corporation and which are in the record, it was not ground for a new trial that the trust receipt ivas admitted in evidence over the objection that it was not admissible without proof of the contract referred to therein.
    A trustee can not attack the title of the cestui que trust; and the defendant having declared in the trust receipt that he held in trust for the corporation the choses in action described therein, he was estopped from denying that declared fact.
    A defendant in trover can not set up as a defense his discharge in bankruptcy.
    In an action for the conversion of promissory notes the notes are evidence of their own value.
    The presumption being that the choses in action were, as between the parties to the trust receipt, worth the amount of their face value as set forth in the trust receipt, and the defendant having offered no evidence to reduce their value, and the amount thereof being less than the amount of the defendant’s debt to the plaintiffs, there was no question as to value to be submitted to the jury.
    The judge did not err in directing a verdict for the plaintiff for any of the reasons assigned.
    Appeal and Error, 4 C. J. p. 969, n. 56.
    Bankruptcy, 7 C. J. p. 397, n. 1 New.
    Evidence, 22 0. J. p. 1138, n. 32.
    Receivers, 34 Cyc. p. 151, n. 58.
    Replevin, 34 Cyc. p. 1492, n. 42 New; p. 1507, n. 59 New.
    Trial, 38 Cyc. p. 1351, n. 6 New.
    Trover and Conversion, 38 Cyc. p. 2107, n. 47.
    Trusts, 39 Cyc. p. 226, n. 98.
    Decided February 13, 1926.
    Trover; from Heard superior court—Judge Roop. May 16, 1925.

      Vanderbilt and others, as receivers of Virginia Carolina Chemical Company, brought an action against A. E. Caswell for the con- ' version of certain notes and accounts held by the defendant in trust for collection for the account of that company. The plaintiffs alleged that the defendant had delivered to the company his trust receipt for such choses in action, and had refused to account for them. The defendant admitted the execution of the trust receipt, but denied that he had ever transferred or delivered over to the said company any of the said choses in action which were payable to himself. He denied also that the plaintiffs were receivers of the company or had authority to maintain the action. He pleaded his discharge in bankruptcy, and alleged that he turned over to his trustee in bankruptcy all the notes and accounts that he had on hand, and that in turn the trustee delivered them to the attorney for the plaintiffs. It appeared that whatever notes and accounts were in fact turned over to the plaintiffs by the trustee in bankruptcy were not involved in the case. On the trial of the case the court, at the conclusion of the evidence, directed a verdict in favor of the plaintiffs for the full amount sued for, the plaintiffs having elected to take a money verdict. The defendant filed a motion for a new trial, upon general and special grounds, assigning error also upon the direction of the verdict. The motion was overruled, and the defendant excepted.

      Smith & Millican, for plaintiff in error.

      Hall & Jones, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. One of the assignments of error is that the court erred in admitting, over the defendant’s objection, a certificate of the clerk of the district court of the United States that the receivers had in fact filed the bond required by the order appointing them; which certificate was appended to a certified copy of the order and decree of the Federal court appointing the receivers. No objection was made to the certified copy of the decree making the appointment, but the objection was aimed at the certificate of the clerk that the receivers had filed the bond. The ground of this objection was that the certificate was not the highest and best evidence of the fact set forth therein. In our opinion, the admission of this certificate was harmless, for the reason that proof was not required that the bond provided for had been given. The certified copy of the order and decree of the Federal court states that the parties named in the decree are “hereby appointed as ancillary receivers of the above-named defendant, Virginia Carolina Chemical Company, and of all the properties” of said company; the order provides that such properties shall be turned over to the named receivers “upon presentation of a certified copy of this order,” and it further provides that all persons are forthwith restrained from proceeding in any action at law or in equity, or other-wise, against the defendant company. While the order does provide that the receivers shall forthwith file with the clerk of that court a bond, to be approved by a judge of that court, for the faithful performance of their duties as receivers, their appointment is nevertheless made immediate and absolute, and is not conditioned upon the filing and approval of such bond. While the failure to give such bond might subject the appointees to that court's measures of discipline, yet such requirement as to giving bond, not being specified as a condition precedent to their authority and appointment, is not a matter which can be inquired into by other parties in other proceedings. In those cases in which receivers are appointed “upon their giving bond,” or where the order provides that they must give the bond before proceeding to exercise the powers conferred upon them, the rule would be different; for under such character of orders the giving of the bond amounts to a condition precedent to their assumption of the powers conferred upon them as receivers. See, in this connection, Seymour v. Newman, 77 Mo. App. 578; Hagan v. Holderby, 62 W. Va. 106 (57 S. E. 289, 125 Am. St. R. 960); 34 Cyc. 151. For the same reasons the holding here made is not within the ruling of this court in Traylor v. Epps, 11 Ga. App. 497 (2) (75 S. E. 828); Ellis v. Hopps, 30 Ga. App. 453, 455 (11) (118 S. E. 583).

2. Another assignment of error was to the effect that the court erred in admitting the trust receipt given by the defendant to Virginia Carolina Chemical Company, in which the defendant acknowledged receipt of described choses in action for collection for the company's account. The objection was that inasmuch as it was recited in the said trust receipt that it was given in pursuance of a certain contract made between the parties, the receipt was inadmissible without proof of the contract referred to. Plaintiffs alleged that the contract referred t,o was a verbal contract, but there seems to have been no testimony offered by the plaintiffs on this score. The defendant testified that he had made no such contract, that the only contract he ever made was the trust receipt and the notes which he gave directly to the said corporation. These two notes are in the record. In this state of the record, it can not be held that the court erred in not sustaining this objection.

3. Another assignment of error was that the court refused to allow the defendant to prove that he never in fact transferred or delivered to the Chemical Company any of the notes or accounts set forth in the trust receipt. The objection by the plaintiffs to this proffered testimony was that it was an effort to vary the terms of the written trust receipt. The receipt was in the terms of a formal contract and declaration of trust, reciting the actual receipt of such choses in action by the defendant, as trustee, which he was thereafter to hold for the said company as such. The proffered testimony was an effort to vary the terms of this writing by destroying the terms of the trust declared therein; and it was properly disallowed. “An agent can not dispute his principal’s title, except in such cases where legal proceedings, at the instance of others, have been commenced against him.” Civil Code (1910), § 3584. It is an undoubted principle of law that a trustee can not attack the title of his cestui que trust. See Civil Code (1910), ■§ 5739. The defendant, declaring solemnly in writing that he holds the property in trust, is estopped to deny that declared fact.

4. The defendant also pleaded and proved his discharge in bankruptcy, as a bar to the action. In an action of trover the issue is one of title, and not of debt. Consequently the defendant in such an action can not set up as a defense his discharge in bankruptcy. This is true although the plaintiff elects to take a money verdict for the damages alleged to have been sustained. Birmingham Fertilizer Co. v. Cox, 10 Ga. App. 699 (73 S. E. 1090); Citizens Bank v. Mullis, 161 Ga. 371 (131 S. E. 44).

5. As to proof of the value of the choses in action, this court, in a ease of very similar facts, has determined: “ Promissory notes are evidence of their own value, in an action of trover.’” Birmingham, Fertilizer Co. v. Cox, supra. In the Cox case it appeared that a fertilizer company sold fertilizer to the defendant, and took the defendant’s note therefor. The defendant sold the fertilizer to planters, took their notes, transferred them as collateral seeurity to the fertilizer company, aucl retained the collateral notes for collection. The defendant having’ failed, on demand, to surrender the collateral notes or to account for them, the fertilizer company brought an action in trover; and the court held as stated in the above quotation. And see Levy v. American Wholesale Corp., 32 Ga. App. 103 (2) (122 S. E. 808). In the case of Hetrick v. Smith, 67 Wash. 664 (122 Pac. 363), it was held, in an action against an attorney, that “the attorney should be charged with the accounts receivable at their face.” Neither as to the notes nor as to the accounts in the case at bar was it shown by the defendant that they were worth less than their face value. The presumption being that the choses in action were, as between the parties to the trust receipt, "worth the amount of their face value as set forth in the trust receipt, and the defendant having offered no evidence to reduce their value, and the total amount thereof being less than the total amount of defendant’s indebtedness to the plaintiffs, there was no question as to value to be submitted to the jury.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16575.
    Risener v. Kidd.
    Sales, 35 Cyc. p. 447, n. 45; p. 464, n. 90.
    Decided February 13, 1926.
   Stephens, J.

1. In a suit upon a promissory note given for the balance due upon the purchase price of a mule, a plea in the nature of a recoupment, which seeks to recover of the plaintiff money theretofore paid upon the purchase price in excess of the alleged value of the mule, and which alleges a breach of warranty by the plaintiff, and that the defendant overpaid the plaintiff in the amount named, but nowhere alleges upon what terms or conditions, if any, the alleged overpayments were made, fails to set out any right in the defendant to recover against the plaintiff. Such plea was properly stricken upon demurrer. Civil Code (1910), § 4352.

2. The evidence authorized the inference that the defendant kept the mule for about a year after he bought it, and that in the meantime he made no complaint as to a breach of warranty. A jury were authorized to infer, from the evidence, that the warranty had not been breached as claimed by the defendant, and that, .if there was a breach, it was waived by the defendant. The verdict for the plaintiff was authorized.

3. The trial court did not err in refusing to sustain the defendant’s certiorari.

Judgment affirmed.

Jenldns, P. J., and Bell, J., coneur.

Certiorari; from Hart superior court—Judge W. L. Hodges. May 7, 1925.

J. E. & Emmett Shelton, for plaintiff in error.

B. B. Zellars, contra.


text:
    16584.
    Moore, executor, v. Moore, administratrix.
    Appeal and Error, 4 O. J. p'. 908, n. 65.
    Bills and Notes, 8 C. J. p. 241, n. 5; p. 799, n. 72; p. 1088, n. 77.
    Decided February 13, 1926.
    Complaint; from Greene superior court—J. S. Callaway, judge pro bae vice. May 13, 1925.
    Application for certiorari was denied by the Supreme Court.
    Mrs. Margaret Moore, as administratrix of P. G. Moore, sued G. A. Moore, as executor of the will of Mrs. Eliza 0. Moore, on two promissory notes, payable to the order of P. G. Moore, signed by Mrs. J. M. Moore, who is admitted to be the same person as Mrs. Eliza C. Moore, one dated January 1, 1921, for $400, and the other dated June 23, 1921, for $50. There was no denial of liability on the $50 note. The defendant set up and introduced in evidence, as a defense to the suit on the $400 .note, a writing dated September 1, 1921, signed by the payee of the note, which purported to transfer to G. A. Moore, his brother, in consideration of love and affection, two notes, one of which was the $400 note sued on. This writing was separate and distinct from the note itself, and not attached to it. The jury found for the plaintiff the full amount of both notes. The defendant’s motion for a new trial was overruled, and he excepted.
   Stephens, J.

1. Neither under the negotiable-instruments law adopted August 18, 1924 (Ga. L. 1924, p. 126), nor under the law as it previously existed, does the legal title to a negotiable promissory note, payable to order, pass to a transferee for a consideration of love and affection only and not for value, except by indorsement upon the instrument itself or upon a paper attached to it. Such a transferee, therefore, acquires no legal title to the note by a separate transfer to him in writing executed by the payee but unattached to the note. Ga. L. 1924, p. 126, §§ 31, 49; Citizens First National Bank of Albany v. Wilson, 155 Ga. 321 (116 S. E. 316), s. e. 28 Ga. App. 524 (111 S. E. 821) ; Haug v. Riley, 101 Ga. 372, 375 (29 S. E. 44, 40. L. R. A. 244) ; Daniel, Neg. Instr. (6th ed.), § 741.

2. The payee of such a note, in executing- such a transfer on September 1, ■ 1921 (prior to the adoption of the negotiable-instruments law), did not part with the legal title to the note. His administratrix, therefore, is entitled as a matter of law to recover on the title against the maker, who, having no other defense, can not, by setting up the transfer, dispute the plaintiff’s title. Civil Code (1910), § 4290; Ga. L. 1924, p. 126, § 59.

3. This being a suit upon the note referred to, and upon another note, which is admittedly due, brought by the administratrix of the payee against the executor of the maker, the verdict found for the plaintiff was as a matter of law demanded, and the other alleged errors were harmless to the defendant and immaterial.

Judgment affirmed.

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

J. G. Faust, Noel P. Park, for plaintiff in error.

F. H. George, contra.


text:
    16608.
    GRIFFIN v. HARMON.
    One who in the'proper court of the county of a minor’s residence applied for appointment as guardian of the minor could not, when the application and a caveat to it by one who prayed to be appointed guardian were pending, change the minor’s domicile so as to divest the court of jurisdiction; and where, pending that proceeding, the applicant took the minor to another State and there applied for guardianship, a judgment of a court of that State appointing him as guardian was void for lack of jurisdiction of the person of the minor; and, even if such a judgment could not be collaterally attacked, the applicant would be estopped from claiming a benefit under it.
    Tire applicant’s motion to dismiss his application was properly overruled, the caveator having prayed to be appointed guardian. The proceeding was in the interest of the minor, and not of the applicant for guardianship, and the court was charged with the duty of protecting the minor’s interest.
    Domicile, 19 O. J. p. 412, n. 36.
    Estoppel, 21 O. J. p. 1232, n. 98.
    Guardian and Ward, 28 O. J. p. 1068, n. 70, 71; p. 1087, n. 4 New.
    Judgment, 34 C. J. p. 1138, n. 57; p. 1140, n. 60.
    Decided February 13, 1926.
    Certiorari; from Richmond superior court—Judge A. L. Franklin. May 27, 1925.

      Burnett & Burnett, Samuel F. Garlington, for plaintiff.

      West & West, Hammond & Kennedy, for defendant.
   Jenkins, P. J.

1. This case is controlled by the ruling of the Supreme Court in Shorter v. Williams, 74 Ga. 539, where it was held that “Where application was made for the guardianship of certain minors in the county where their father had lived and died, and where they were then domiciled, the court of ordinary thereby acquired jurisdiction to hear, determine, and grant letters of guardianship for their persons and property; and this jurisdiction could not be divested or rendered nugatory by the removal of the minors to the state of Alabama by their sister, and the grant of letters of guardianship to another by the probate court of that state, pending the application in Georgia.” Accordingly, where, as in the instant case, an application for letters of guardianship has been made in the proper court of the county of the minor’s residence, and where after citation thereon has been issued and published and a caveat to the application has been filed, objecting to the appointment of the petitioner thereon and also affirmatively praying that the caveator herself be appointed as guardian under the proceeding thus instituted, the applicant can not change the domicile of the minor while his application and the caveat are pending, and in this way divest the court of its jurisdiction. Consequently, in the trial of such a proceeding, a judgment rendered in a proceeding subsequently instituted in a court of a foreign jurisdiction into which the minor had been physically removed by the applicant, pending the hearing of his original application and the caveat in the court of the minor’s residence, was properly held to be void for lack of jurisdiction of the person of the minor. The place of the minor’s domicile having been fixed by the residence of the minor’s last surviving parent, as set forth in the petitioner’s own original application, and the subsequent unauthorized physical removal of the child by the applicant having in no way affected that fact (Hayslip v. Gillis, 123 Ga. 263, 51 S. E. 325), the court of the minor’s residence, in which the original proceeding was instituted, had legal cognizance of its sole jurisdiction of the person of such minor, and an appointment by a court of a foreign jurisdiction of a guardian of the person of a minor residing in this State was void. Boyd v. Glass, 34 Ga. 253 (89 Am. D. 252), and cit. See also Brandon v. Brandon, 154 Ga. 661, 667 (115 S. E. 115). The judgment of the foreign State being absolutely void for lack of jurisdiction of the person of the minor, as shown by the time of its rendition, when taken in connection with the facts set forth by the petitioner in his original application in the Georgia court, the petitioner would be estopped from claiming a benefit thereunder, even though it were true that such a foreign judgment could not ordinarily be collaterally attacked for want of jurisdiction in the court rendering it. However, the rulings made in the Shorter and Boyd cases, and in McCauley v. Hargroves, 48 Ga. 50 (15 Am. E. 660), plainly indicate that the constitutional provision and congressional statutes requiring that full faith and credit be given to judicial proceedings of another State .do not prohibit an attack on a foreign judgment on the ground that it is void for lack of jurisdiction in the court rendering it. To the same effect are rulings of the Supreme Court of the United States. See Thompson v. Whitman, 18 Wall. 457 (21 L. ed. 897); Haddock v. Haddock, 201 U. S. 562, 573, 26 Sup. Ct. 525, 50 L. ed. 867, 5 Ann. Cas. 1). See also Story’s Conflict of Laws, § 609. In Alabama Great Southern R. Co. v. Hill, 139 Ga. 224 (76 S. E. 1001, 43 L. R. A. (N. S.) 236, Ann. Cas. 1914D, 996), relied on by counsel for the plaintiff in error, the court held merely that where the foreign judgment was rendered by a court of competent jurisdiction, it could not be collaterally impeached for fraud.

2. The court did not err-in overruling petitioner’s motion to dismiss his application, where, in response to the citation which had been issued and published therein, the defendant in error had appeared and asked that she hersqlf be appointed under the proceeding thus instituted. The petition must be taken to have been instituted in the interest of the child, and not in the interest of the person applying, and it is the 'interest of the child which the court having jurisdiction is charged to protect.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16613.
    Sutherland v. Barker et al.

    Appeal and Error, á O. J. p. 947, n. 16.
    Executors and Administrators, 24 O. J. p. 1165, n. 84.
   Jenkins, P. J.

1. In a contest for the appointment of administrators with the will annexed of a deceased testator, between the applicants selected by the legally appointed guardian of the adopted child of the decedent, which foster child is a beneficiary under the will, and another, as the father of the minor, the court did not err in dismissing the caveat and objection of the father, on the ground that he was a stranger to the proceeding. The superior court, on appeal, having passed an order merely dismissing the caveat and objection of the father as appellant, and not having dismissed the appeal, direction is given that the appeal be entered as dismissed, so as to render final the order of appointment as made in the court of ordinary.

Decided February 13, 1926.

Appeal; from Fulton superior court—Judge Humphries. April 14, 1925.

Walter B. Brown, W. K. Dial, for plaintiff in error.

Slaton & Hopkins, contra.

2. Since the appellant could not in any event have sustained his appeal, it is immaterial that the court overruled his motion for a continuance of the case in the superior court. See Sutherland v. Donovan, 34 Ga. App. 643 (130 S. E. 688); Sutherland v. Barker, 161 Ga. 465 (131 S. E. 53).

Judgment affirmed, icith direction.

Stephens and Bell, JJ., concur.


text:
    16624.
    Bibb Manufacturing Company v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company.
    Carriers, 10 C. J. p. 180, n. 95 New.
    Decided February 13, 1926.
    Attachment; from city court of Macon—Judge Jordan. June 1, 1925.
   Stephens, J.

1. The provision in a bill of lading, that the carrier’s responsibility for goods in an interstate shipment over the lines of connecting carriers will terminate upon the storage of the goods by the terminal carrier in a public or licensed warehouse after the expiration of forty-eight hours from the time when.the person entitled to receive the goods has been notified of their arrival and has failed to remove them, constitutes a contract binding upon the shipper and the delivering carrier, by the terms of which the carrier is released from liability for any loss or damage to the goods after their storage in a warehouse in compliance with this provision of the bill of lading. Model Mill Co. v. Carolina, C. & O. Ry., 136 Tenn. 211 (5) (188 S. W. 936) ; Efland Hosiery Mills v. Hines, 184 N. C. 356 (114 S. E. 472) ; Gregg v. Illinois Central R. Co., 147 Ill. 350 (35 N. E. 343, 37 Am. St. R. 238) ; 4 R. C. L. 763, § 229.

2. In a suit by the shipper against the terminal carrier for a conversion of the goods by a warehouseman with whom the defendant had stored them after their arrival at the point of destination, where it appeared that the goods, which had been shipped under a bill of lading containing the above provision, had been stored by the defendant in a public licensed warehouse after notice, as required by the provision in the bill of lading, had been given by the carrier to the person entitled to receive the goods and who had failed to remove them, a finding for the " defendant was authorized.

Judgment affirmed.

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

Bibb Manufacturing Company sued the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for conversion of goods delivered by the plaintiff to the Central of Georgia Railway Company at Porterdale, Georgia, on June 24, 1920, consigned to the plaintiff in Indianapolis, Indiana, order notify Parker Tire & Rubber Company. The case was submitted to the court, for trial without a jury, on an agreed statement of facts, from which it appeared that the shipment arrived at destination in due course without delay on July 16, 1920, over the line of the defendant, the final carrier, and on their arrival the defendant notified the Parker Tire & Rubber Company that the goods were ready for delivery, but the Parker Tire & Rubber Company failed to remove them, that the defendant kept the goods in its warehouse for four days, and on July 22, 1920, stored them in a licensed public warehouse in Indianapolis, and they remained in storage until September 13, 1921, when they were sold for freight and storage charges. It is admitted that the storage company failed to comply with the laws of the State of Indiana with regard to the sale of goods placed on storage. The shipment was made under an order-notify bill of lading, signed by both the shipper and the carrier, which contained the following provision: “Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner’s risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.” The finding of the court was in favor of the defendant, and the plaintiff excepted.

Jones, Parle & Johnston, for plaintiff.

L. D. Moore, for defendant.


text:
    16627.
    SWINNEY, administrator, v. WRIGHT.
    The charge of the court as to the effect of evidence in regard to the good character of the defendant in an action for assault and battery was misleading, and is ground for a new trial. The other instructions complained of are not subject to the exceptions taken. Appeal and Error, 4 C. J. p. 710, n. 41; p. 989, n. 16.
    Assault and Battery, 5 C. J. p. 680, n. 26; p. 682, n. 46; p. 691, n. 63 New; p. 693, n. 83.
    Decided February 13, 1926.
    Action for damages; from city court of Polk county—Judge Tison. May 18, 1925.
    C. M. Swinney sued Ivy Wright for damages because of an assault and battery, alleging: that on a certain date the plaintiff went over to a certain portion of his lands where the defendant was farming, for the purpose of looking after the collection of rent due him by the defendant; that while he was there the defendant approached him, declaring that he understood that the plaintiff had accused him of stealing to his little son; that the plaintiff undertook to disabuse his mind of any such notion; that, without notice or warning, the defendant struck the plaintiff a violent blow upon his forehead, knocking him to the ground, and that while he was thus prostrate upon the ground, the defendant unmercifully beat and bruised him, so that he was disabled for a long time and permanently injured; that the plaintiff was sixty-three years of age, of frail and feeble build, while the defendant was a strong, powerful, and robust young man, much stronger and heavier than the plaintiff; that the attack was entirely unprovoked; that the defendant “did violently, brutally, and wantonly strike, kick, and beat your petitioner as aforesaid, giving to petitioner not the least warning or cause to expect said attack; that said attack was malicious and premeditated on the part of the defendant.” The plaintiff prayed not only for actual damages, but also for punitive or exemplary damages, all in the sum of $2000. The defendant in his answer denied the plaintiff’s allegations, and alleged that he made no attack on the plaintiff, but simply undertook to repel an attack upon himself by the plaintiff with a dangerous weapon,—a knife,—with only such force as was necessary in his own defense; that the plaintiff was a very high-tempered man, quarrelsome and hard to get along with when angry or excited; that the defendant had always endeavored to live-4’ an honorable, upright, and peaceable life, and that at the time of the occurrence he tried to persuade the plaintiff to make an examination of the corn which the defendant was setting aside for the plaintiff’s rent, in order that he might be convinced that an honest division had been made, but that instead of doing this the plaintiff made the attack upon him. No demurrer by either side was specified as a part of the record.
    On the trial of the case the defendant was allowed to introduce testimony as to the character of the plaintiff, tending to show that he was quarrelsome and hard to get along with, over the plaintiff’s objection that such evidence was irrelevant and immaterial to any issue in the case. The defendant was allowed to introduce evidence as to his own character for peaceableness, over the plaintiff’s objection that it was irrelevant and immaterial. After the conclusion of all the testimony the court, while charging the jury, ruled out all the evidence as to the character of the plaintiff, but charged the jury that the evidence as to the character of the defendant might remain in and be considered by the jury, “together with all the facts and circumstances as detailed from the witness stand, in determining whether the defendant was justified or not in whatever you find that he did on this occasion.” ’ The verdict was for the defendant. The plaintiff’s motion for a new trial was overruled, and the movant having died, his administrator (who, while the motion was pending, was made a party) excepted to the overruling of the motion.

      Porter & Mebane, Bunn & Trawich, for plaintiff.

      E. S. Ault, John K. Davis, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. As to the testimony in regard to the character of the parties the court instructed the jury as follows: “The court permitted evidence as to the character of Mr. Swinney, the plaintiff in this case, as to violence, turbulence, and peacefulness, to go before you. The court now excludes all that testimony relating to the character of Mr. Swinney for violence, and instructs you not to consider any of the testimony in arriving at your verdict. The testimony as to the character of the defendant Ivy Wright is allowed to remain for your consideration, and at the proper time in the charge the court will instruct you as to the effect of that testimony.” The plaintiff, in his motion for a new trial, objected to this instruction, because the court did uot give the names of the witnesses whose testimony as to the plaintiff’s character had been withdrawn from the jury, but left the jury to guess who they were. Objection was taken also to the reference thus made to the testimony relating to the character of the defendant, and this latter objection is dealt with in the third division of this decision. It appears from the record that the defendant offered certain character testimony as to the plaintiff, tending to show that he was a quarrelsome man and hard to get along with. At the time of its introduction the plaintiff objected to it on the ground that it was irrelevant and immaterial. The instruction excepted to is in conformity with the plaintiff’s contention, and he can not be heard to complain of it; nor do we think that if the original admission of this evidence was erroneous, the jury could have been misled by the fact that when it was subsequently withdrawn from their consideration the names of the witnesses so testifying were not mentioned by the court in connection with this excerpt from the charge.

2. The next assignment of error is to this excerpt from the charge: “If you believe from the evidence in. this case that the plaintiff, Mr. Swinney, was the aggressor, and that the defendant used such force as was necessary to repel an attack upon him by Mr. Swinney, then the plaintiff would not have a right to recover in the ease.” There was no error in this charge, for this was one of the pleaded issues in the case, and it was supported by portions of the evidence. ■

3. One exception is taken to the admission of evidence relative to the defendant’s character for peacefulness. Another is made to the following excerpt from the charge of the court: “In determining the first issue, whether the plaintiff is entitled to recover or not,—that is, whether the defendant was justified in doing whatever he did do,—you can consider all the testimony, including any testimony that has gone before you relative to the alleged good character of the defendant, . . take that into consideration, together with all the facts and circumstances as detailed from the witness stand, in determining whether the defendant was justified or not in whatever you find that he did on this occasion.” The exception to this excerpt was that it “tended to leave, and actually did, as movant insists, leave the impression with the jury that if they should find from the evidence that defendant had a gobd character, plaintiff would not be entitled to recover in the case;” and further, that the character of the defendant was not an issue, “and that if he made an unjustifiable assault upon the plaintiff and the plaintiff suffered damages thereby, said plaintiff would be entitled to recover regardless of whether or not defendant had good character.” Section 5745 .of the Civil Code (1910) provides as follows: “The general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” In the instant case the contention of the plaintiff is that the defendant made a violent, malicious, and unwarranted attack upon him, for which he was entitled to recover exemplary or punitive damages. The character of the defendant for violence or peaceableness was thus necessarily involved by the very nature of the action and by the character of the damages claimed. Evidence going to show the reputation of the defendant for peaceableness was therefore properly admitted. The purpose of such testimony is limited, however, to throwing light upon the question of the truth or falsity of the acts complained of, and has nothing to do with the question of justification under the facts, as they may be found to exist. It was therefore misleading for the court to charge that in considering whether the defendant was justified in doing what he did, the jury might consider the evidence relative to his good character. This charge might have been construed by the jury as tantamount to an instruction that good character of the defendant constituted an element of justification. While it is true that in determining as to what the defendant did, the jury should consider all the testimony, including the character testimony, as throwing light upon the probability or lack of probability of the other testimony, still, in determining whether, under the facts as found to be true, the defendant was justified, his good character or lack of good character played no part. In other words, his good character may throw light upon the question as to what he did, but does not throw light upon the question as to what he ought to have done. A different rule would apply in a case where the defendant relies upon the turbulent character of the plaintiff in establishing his own justification. In such a case the character of the plaintiff for violence may throw light upon the question of the defendant’s justification, since it is a factor which the defendant might have properly considered in determining his own danger and what means he could be justified in resorting to in his own defense. See Dannenberg v. Berkner, 118 Ga. 885 (45 S. E. 682).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16635.
    ROGERS COMPANY v. MURRAY.
    The termination of a prosecution begun by the issuance of a warrant charging a criminal offense was not shown by the allegation in the petition, in an action for malicious prosecution, that on the hearing of the warrant the court discharged the accused; and, in the absence of an allegation showing that the prosecution had ended, it was proper tot dismiss the action, on demurrer.
    Malicious Prosecution, 38 O. J. p. 385, n. 55; p. 387, n. 70; p. 398, n. 26; p. 420, n. 67; p. 438, n. 61; p. 445, n. 26; p. 467, n. 57, 60.
    Decided February 13, 1926.
    Action for malicious prosecution; from Eulton superior court— Judge E. D. Thomas. June 4, 1925.
    Mrs. L. E. Murray sued L. W. Rogers Company and C. W. Sullivan for malicious prosecution, alleging that on a date named she requested the said Sullivan, who was the manager of one of the said company’s stores, to cash a check for $21, drawn by Walter T. Meador, upon Fourth National Bank, payable to the plaintiff, and indorsed by her; and that the check was cashed as requested; that it appeared that the check was presented for payment by the defendant company, and payment was refused for lack of sufficient funds; that the said company called upon her to redeem the check; that she paid, on account of the same $10, and stated"that she would pay the balance in the very near future; that instead of waiting upon her the defendants caused a warrant to be issued against her from the municipal court of Atlanta, charging her with being a common cheat and swindler; that she appeared at that court, and the court, on hearing the case, discharged her; whereupon she brought this action. The defendants filed general and special demurrers to the petition, which were overruled, and they excepted.

      Edgar B. Craighead, William C. Henson, for plaintiff in error.

      T. C. Battle, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. “The restrictions under which actions for malicious prosecution are placed, and the guarded conditions authorizing them, clearly show that they are not highly favored or much encouraged, and this is because of their tendency to promote litigation and engender strife, as well as to deter persons from coming forward to vindicate the public justice and to insist upon their private rights in the only way that the law allows.” Wilcox v. McKenzie, 75 Ga. 73; Henderson v. Francis, 75 Ga. 178.

2. The plaintiff’s case in an action for malicious prosecution is made out when the following elements appear: (1) that the prosecution, has terminated in his favor; (2) that the prosecution was instituted maliciously and (3) without probable cause, and (4) that it has caused the plaintiff damage. Clark v. Douglas, 6 Ga. App. 489, 490 (65 S. E. 304).

3. There could be no recovery under the petition, since it failed to allege that the prosecution referred to had terminated in favor of the defendant therein. While the procuring from the committing court of an order discharging the defendant in a warrant amounts to a termination of the prosecution when no further action is taken (Page v. Citizens Banking Co., 111 Ga. 73, 36 S. E. 418, 51 L. R. A. 463, 78 Am. St. R. 144), the mere allegation of such discharge, without at least showing in general terms that the prosecution has been terminated, does not meet the requirements of the rule stated. Civil Code (1910), § 4446; Tyler v. Upchurch, 31 Ga. App. 599 (121 S. E. 521).

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    15857.
    Perry v. Tumlin.
    Certiorari, 11 C. J. p. 158, n. 86 New; p. 173, n. 83.
    Courts, 15 C. J. p. 986, n. 54, 60.
    Pleading, 31 Cyc. p. 167, n. 90.
   Bell, J.

1. “It is not necessary to traverse an entry of service in which it appears that the defendant has been personally served, in order to file a plea to the jurisdiction of the court; nor is a plea to the jurisdiction of the court, which avers that the defendant is a nonresident of the county in which the suit is brought, defective, although there is no denial that the defendant was duly served as alleged in the entry of service made by the officer who executed the process. Service is one thing, and jurisdiction is another and entirely different thing in the sense that service is essential even though jurisdiction be admitted.” Perry v. Tumlin, 161 Ga. 392 (131 S. E. 70).

Decided February 16, 1926.

Certiorari; from Fulton superior court—Judge E. D. Thomas. July 8, 1924.

J. A. Perry, F. A. Hooper & Son, for plaintiff in erroi

Roger B. Jones, Troutman & Troutman, contra.

2. “Where a certiorari is granted to review the proceedings of a municipal court in a case in which two or more of the judges each presided at different stages of the trial, and exceptions are taken as well to the judgment of the judge who ruled upon an issue antecedent to the final judgment as to the final judgment itself, both municipal judges should answer the certiorari. In such a ease the answer of the judge who presided in the trial of the issue antecedent to that in which the final judgment was rendered is sufficient to verify or deny the allegations of the petition for certiorari upon that point, even though the municipal judge who presided at the time the final judgment was rendered may answer that for lack of knowledge he is unable to make answer as to the truth of the allegations of the certiorari upon the antecedent issue. In a municipal court composed of more than one judge but in which only one judge presided in the original trial of a case, the right to review by certiorari will not be denied by reason of the fact that the judge who rendered the final judgment in the cause may not be able to certify to an antecedent ruling of the court rendered while another and different judge thereof was presiding.” Perry v. Tumlin, supra.

(a) The rulings by the Supreme Court as quoted above were made in answer to questions certified in the present case.

3. Under the decision in Peacock v. Collins, 110 Ga. 281 (2) (34 S. E. 611), the evidence adduced upon the trial of the plea to the jurisdiction in the instant case demanded a finding in favor of the plea. It follows that the municipal court erred in rendering judgment against the plea, and the superior court erred in not sustaining the certiorari to review that and the final judgment.

Judgment reversed.

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


text:
    16327.
    COX et al. v. WALTER M. LOWNEY COMPANY OF GEORGIA.
    Except as provided by section 3699 of the Civil Code (1910), having reference to the duty of the landlord to keep the premises in repair, there is in this State, as at common law, no implied covenant that the premises are suitable for the purpose for which they are leased, or for the particular use for which they are intended by the tenant. Under the facts of this case the court erred, as against the landlord, in instructing the jury that it is the duty of the landlord to make the premises which he rents suitable for the purpose for which they are intended, and that he must, upon notice of any defect, keep the premises, by repairs, in such condition as to be suitable for such use.

      Landlord and Tenant, 36 C. J. p. 45, n. 81; p. 131, n. 27; p. 586, n. 99.

      Decided February 16, 1926.
    Distraint; from Fulton superior court—Judge E. D. Thomas. February 2, 1925.

      Fuller & Bell, Troutman & Troutman, for plaintiffs.
    17. 8. Dillon, C. H. Calhoun, for defendant.
   Bell, J.

The present suit arose upon the issuance of a distress warrant in favor of Cox & Simpkins against Walter M. Lowney Company of Georgia, and the filing of a counter-affidavit by the defendant. The rented premises consisted mainly of the basement of a building, the upper part of which was occupied by the plaintiffs. The lease contract was in writing and covered the period from January 1, 1920, to July 6, 1924. The defendant occupied the premises until about June 1, 1921, and paid the rent of $100 per month until that time. It refused further payments, and the plaintiffs distrained. In the defendant’s counter-affidavit it was alleged that the premises were leased from the plaintiffs to be used in conducting a wholesale candy business, and that the use to which the property was to be put was known by the plaintiffs, and that “said property was not adapted to the uses intended;” that during heavy rains a large amount of water would flood the premises, and “said premises would become damp and in such condition that the candies stored [therein] would spoil and deteriorate and become worthless;” that the plaintiffs were given notice of “said condition, and were requested to repair such defects,” but failed to put the premises “in a condition so that the same could be used by this defendant;” that at the execution of the lease contract the defendant was not aware that the premises contained any of the defects mentioned, but believed that they were in a good state of repair and “adapted for uses which the defendant was then intending to make of the property;” that “plaintiffs’ failure to make repairs amounted to an eviction of defendant, as it was impossible to remain in said premises, because of the large amount of water and moisture which would regularly flow into said premises during rains; that on account of said condition it was necessary for defendant to abandon said premises after this suit was filed;” that there was thus “a failure of consideration under said contract, and the defendant now pleads same as the reason why no liability exists thereunder.” Defendant further sought to recoup damages because of the spoiling of a large quantity of candy “by reason of the moisture accumulating in the basement.” The trial resulted in a verdict in favor of the defendant. The plaintiffs’ motion for a new trial was overruled, and they excepted. The lease contract contained no covenant on the part of the landlord that the premises were suitable for the use intended, nor any agreement as to repairs. In one of the special grounds of the motion for a new trial the plaintiffs assigned error upon the following charge of the court: “It is the duty of the landlord to make the premises which he rents suitable for the purposes for which they are intended; and he must, upon notice of any defect, keep the premises, by repairs, in such condition as to be suitable for such use. If you find that the premises were kept in such condition, you would find for the plaintiffs the amount sued for; but if, on the other hand, you find that the premises were not kept in such condition after notice, and that they became wholly untenantable, and a constructive eviction resulted, then the defendant would have the right to terminate the lease for such failure, if any, to keep the premises in condition after notice; and if he did so on this account; then the plaintiffs can not recover except for the actual time the defendant remained in the building and used the premises.”

According to our construction of the evidence, the jury could have found that the dampness or moisture which spoiled the candies and rendered the premises unfit for use as a place for the storage of such commodity resulted not from leaky walls or overhead or other defects in the premises, but from a “sweating” due in some way to a mere unsuitability of the basement for such use. On the other hand, there was evidence from which the jury could have inferred that the walls were leaky or that there were other defects in the basement, and that the untenantability of the premises was the result of the plaintiffs’ failure to make needed repairs. This inference, however, was not demanded, for, as we have just indicated, the evidence would have authorized a finding that the basement was not in need of repairs, but was inherently unsuitable as a place to store candy.

In view of the issues as thus developed by the evidence, we are of the opinion that the court committed, error in instructing the jury as above stated. At common law there was no implied covenant on the part of the landlord that the premises were suitable for the purpose for which they were rented, or for the particular use for which they were intended by the tenant. Stack v. Harris, 111 Ga. 149 (36 S. E. 615); Viterbo v. Friedlander, 120 U. S. 707 (7 Sup. Ct. 962, 30 L. ed. 776); 14 R. C. L. 772; 1 Tiffany's L. & T. 556; 36 C. J. 45. The only modification of this rule in Georgia is as to the duty of the landlord to “keep the premises in repair.'' Civil Code (1910), § 3699. And-in the absence of an agreement so to do, ■ the landlord is not bound to repair patent defects, of which the defendant had knowledge at the time of entering the rent contract. Aikin v. Perry, 119 Ga. 263 (3) (46 S. E. 93). There have been several decisions by the courts of this State which, by the language used, would seem to hold that it is the duty of the landlord to make the premises suitable for the purpose for which they were rented, among them the following: Whittle v. Webster, 55 Ga. 180; Driver v. Maxwell, 56 Ga. 12 (2); White v. Montgomery, 58 Ga. 204 (1); Aikin v. Perry, supra; Henley v. Brockman, 124 Ga. 1059 (5) (53 S. E. 672); Thompson v. Walker, 6 Ga. App. 80 (1) (64 S. E. 336); MeYere v. Withers, 15 Ga. App. 688 (64 S. E. 336). But in each of these cases the court was dealing solely with the duty of the landlord to make needed repairs, for in none of them was any question involved as to an implied covenant by the landlord that, irrespective of the state of repair, the premises were suitable for the purpose for which they were leased, or for the particular uses which the tenant intended to make of them. While, in Monahan v. National Realty Co., 4 Ga. App. 680 (1) (62 S. E. 127), the liability was for improper construction, it was nevertheless for a defect. We think there is nothing in any of the decisions, when studied in’light of the facts upon which they are predicated, which could mean that the common-law rule has been changed in this State, except as provided in section 3699 of the Civil Code (1910), having, reference to repairs. We therefore hold that the implied covenant of the landlord does not, regardless of the condition of repair, include “an undertaking on his part that the premises leased are suitable or fitted for the particular use for which they are intended by the lessee.” Adair v. Allen, 18 Ga. App. 636 (2) (89 S. E. 1099). See also Wright T. Ware, 19 Ga. App. 18 (1) (90 S. E. 742).

We can not agree with counsel for defendant in error that the excerpt complained of should, by itself or in view of the entire charge, be construed as referring only to the duty of the landlord to put or keep the premises in repair. Such may have been the intention of the learned judge who presided in the case; but we are of the opinion that the jury could have construed the charge, and probably did construe it, as telling them that it was the duty of the landlord to malee the premises suitable for such purpose, whether they were defective and in need of repair or not, and also to keep them suitable, by repairs, upon notice of any defect. The duty should have been limited to repairs only.

There was no error in any of the charges complained of in the other grounds of the motion for a new trial, except in so far as they may have been at variance with the principles above enunciated, and it is therefore unnecessary to examine them in detail. One or more of the contentions for the plaintiffs in error should have been made by requests to charge, in order to present any question for decision thereon. From what has been said, the court erred in overruling the plaintiffs’ motion for a new trial.

Judgment reversed.

Jenleins, P. J., and Stephens, J., concur.


text:
    16346.
    Nix et al. v. Citizens Bank of Moultrie.
    Bills and Notes, 8 C. J. p. 1063, n. 70.
    Counties, 15 C. J. p. 478, n. 31; p. 666, n. 79 New.
    Evidence, 23 C. J. p. 50, n. 63.
    Eraud, 26 C. J. p. 1106, n. 18.
    New Trial, 29 Cye. p. 833, n. 61.
   Bell, J.

The bank sued the County of Rockdale on a negotiable promissory note executed by the county commissioners in behalf of the county, payable to another person or order, which the plaintiff had purchased before maturity. In Citizens Bank of Moultrie v. Rockdale County, 152 Ga. 711 (111 S. E. 434), the petition was held good as against demurrer. The county, however, prevailed upon the final trial of the case, and the verdict and judgment in its favor was affirmed by operation of law because the Justices of the Supreme Court were equally divided. 156 Ga. 500 (119 S. E. 322). Eor a description of the note and a statement of the recitals therein and a copy of the resolution by the county commissioners, which was attached thereto, see 152 Ga. 712, 713 (111 S. E. 434). As to the contents of a further exhibit which was attached to the note at the time the plaintiff purchased it, see 156 Ga. 509, 525 (119 S. E. 322). The bank, after failing in its effort to recover against the county, brought against the county commissioners as individuals the present action for fraud. The latter suit resulted in a verdict for the defendants. The court granted the plaintiff a new trial, and the defendants excepted. Field:

1. Even though the defendants may have been exercising a judicial or quasi-judicial function, when, as commissioners, they passed the resolution determining the existence of a casual deficiency, and might not be held liable because their conclusion as to this matter was unfounded and false, they were not acting in such capacity when thereafter they inserted in the note executed by them a false recital that it was within the amount which the county could borrow to meet such casual deficiency. To any person relying and having a right to rely on the truth of such recitals and damaged thereby they would be liable. 23 A. & E. Enc. Law (2d ed.), 376; Robinson v. Rohr, 73 Wis. 436 (40 N. W. 668, 2 L. R. A. 366, 9 Am. St. Rep. 810).

2. Even assuming that under the true law the plaintiff bank should have recovered against the county, it can not for this reason be said that the plaintiff was not damaged by the defendants’ misrepresentation. The bank was not obliged to sue the county in the first instance. It could have sued either the county or the present defendants, or could have sued both in separate actions. “A plaintiff may pursue any number of consistent concurrent remedies against different persons until he obtains a satisfaction from some of them.” Civil Code (1910), § 5522.

3. The fact that, in addition to the certified copy of the resolution of the board of commissioners there was attached a financial statement of the county, an examination of which might have led to a discovery that the indebtedness of which the note formed a part was in excess of the amount which the commissioners had the power to borrow, would not, as a matter of law, preclude a recovery against these defendants. Whether, under these circumstances, the plaintiff could have discovered the falsity of the representations by the exercise of proper diligence would be a jury'question. Knox v. Aspinwall, 62 U. S. 539 (16 L. ed. 208); Briesenick v. Dimond, 33 Ga. App. 394 (126 S. E. 306), and cases cited. See also the opinion by Mr. Chief Justice Russell in 156 Ga. 500 (119 S. E. 322). This is true irrespective of whether the same rule might obtain in an action against the county. See, in this connection, the opinion of Mr. Justice Hines in the case just cited, and Baker v. Rockdale County, 161 Ga. 245 (130 S. E. 684).

4. Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or made by mistake and innocently and acted on by the opposite party, constitute legal fraud. Civil Code (1910), § 4623; Allison v. Nunn, 34 Ga. App. 561 (130 S. E. 364).

5. Under the facts of this case it is immaterial that the defendants did not intend to injure the plaintiff or any one. It is also immaterial that they did not • know that the plaintiff would purchase the note. Mashburn v. Dannenberg Co., 117 Ga. 567 (16) (44 S. E. 97) ; Young v. Hall, 4 Ga. 95 (4).

6. The plaintiff’s cashier, who testified as a witness in its behalf, was not a party, and the rule that the testimony of a party given in his own behalf is to be construed most strongly against him was not applicable to the testimony of this witness. Reaves v. Columbus &c. Co., 32 Ga. App. 140 (2) (122 S. E. 824).

Decided February 16, 1926.

Deceit; from Kockdale superior court—Judge Hutcheson. February 21, 1925.

Application for certiorari was denied by the Supreme Court.

J. B. Irwin, J. II. McCalla, Jones, Parle & Johnston, for plaintiffs in error.

James L. Dowling, Erie B. Askew, contra.

7. The jury could have found that the plaintiff relied upon the representation, and had a right to rely upon it, and was not negligent in failing to ascertain the truth, and that it was damaged in the sum claimed.

8. Since the verdict in favor of the defendants, under the law and the evidence, was not demanded, the court did not err in granting a first new trial.

Judgment affirmed.

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


text:
    16505.
    Town of Bartow v. Smith.
    Appeal and Error, 4 C. J. p. 305, n. 26; p. 326, n. 74 New.
    Trial, 38 Cyc. p. 1657, n. 47.
   Bell, J.

1. This court will not dismiss the bill of exceptions merely because the service thereof appears to have been acknowledged on a date which the court judicially knows was Sunday, when counsel did not state in the entry of acknowledgment that it was not to be construed as a waiver of the defect. See Ga. L. 1911, p. 149, Park’s Code, § 6164 (a) j Swindle v. Poore, 59 Ga. 336 (2) ; Lott v. Banks, 21 Ga. App. 246 (94 S. E. 322). Stephens, J., dissents.

2. Furthermore, since the acknowledgment is not the service, nor a waiver of service, but is a mere admission that proper and legal service has been made, it may be taken as evidence of that fact. Even though the acknowledgment should be taken as having been written and signed on Sunday (but see Swindle v. Poore and Lott v. Banks, supra), it does not appear that the service itself as referred to therein was made on that date. Bell, J., dissents.

3. Query: Since it was not within the ordinary calling of the defendant in error to acknowledge service of the bill of exceptions, would it not have been lawful for him to have made the acknowledgment in person on Sunday, and, if so, was not the acknowledgment in his behalf by his attorney lawful, although the attorney himself in making the acknowledgment was doing an act within the work of his ordinary calling? Penal Code, § 416; Hayden v. Mitchell, 103 Ga. 431 (3) (30 S. E. 287) ; Williams v. Allison, 10 Ga. App. 840 (3) (74 S. E. 442).

4. The motion to dismiss the bill of exceptions is denied.

Decided February 16, 1926.

Rehearing denied February 26, 1926.

Complaint; from Jefferson superior court—Judge Hardeman. ' March 17, 1925.

Roy V. Harris; for plaintiff in error. M. Q. Barwiclc, contra.

5. The plaintiff, a civil engineer,-brought suit against a municipality to recover for services alleged to have been rendered by him in making, at the defendant’s request, “surveys, investigations, and reports for the development of a municipal hydro-electric plant.” The petition alleged that the reasonable value of his services was one and one half per cent, of $44,300, “the estimated cost of the proposed power plant.” ' The defendant in its answer denied liability in the amount sued for, and alleged that it only employed the “plaintiff to make a preliminary survey and to submit a rough estimate of the approximate cost of building a dam across” a certain named creek, and denied that it had authorized or accepted the services described in the plaintiff’s petition. Seld: There being some evidence in support of the defendant’s contentions, the court erred in charging the jury as follows.: “The defendant, as I construe the pleadings and. the evidence, admits that there was a contract, but the defendant contends that it was agreed and understood between the parties, clearly and distinctly, that the plaintiff was not to furnish in his work anything like an accurate estimate of the cost of the construction of this plant, but that he was to make merely a superficial survey and a rough estimate, without undertaking to be definite, or anywhere near accurate about it, and that they did not contemplate, at the time that, the contract was entered into, that he was to make the survey and in addition thereto to calculate and ascertain, by the exercise of his skill as a professional man, exactly accurate estimate of the cost of the construction of this plant.” This excerpt erroneously implied that the defendant had employed the plaintiff to make a “rough estimate” of the cost of a complete plant, whereas the defendant contended that the plaintiff had been requested only to estimate the cost of constructing a certain dam.

6. The other assignments of error, in the form in which they are made, are without merit. For the reasons set forth in the preceding paragraph the court erred in overruling the motion for a new trial.

Judgment reversed.

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