text:
    15222.
    HUTCHINSON v. DOBBINS.
    It appearing that before the defendant’s counterclaim was filed he was adjudicated a bankrupt, and there being a presumption, in the absence of anything to the contrary in the record, that there was a trustee in bankruptcy in whom title to the defendant’s assets was vested, and it not appearing that the subject-matter of the counterclaim was included in any exemption set apart to the bankrupt, the right to sue upon the counterclaim was prima facie in such a trustee, and not in the defendant.
    It follows that the dismissal of a certiorari sued out to review a judgment against the defendant, which lie settled, was not prejudicial error as against his attorneys, who, under an agreement for fees contingent on a recovery upon the counterclaim, contended that, notwithstanding the settlement by their client, they had the right to prosecute the certiorari, in order to recover their fees.
    Decided April 24, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. November 8, 1933.

      F. W. Flint, W. I. Heyward, for plaintiff in error.

      R. R. Jaclcson, G. E. Moore, contra.
   Bell, J.

In this action, which originated in the municipal court of Atlanta, the defendant was sued for $60. He denied all liability and sought to recover of the plaintiff in the sum of $46 upon a counterclaim. The defendant’s plea, in so far ■ as it amounted to a cross-action, was stricken on demurrer, and upon the trial a judgment for $50 was rendered in favor of the plaintiff. The defendant’s attorneys thereupon presented to the judge of the superior court a petition for certiorari, complaining of these rulings and judgments, which petition was duly sanctioned. The certiorari was dismissed by the judge of the superior court at the hearing thereon, upon the ground that it appeared in the amended answer of the judge of the municipal court that the defendant (the petitioner in certiorari), as shown by the record in that court, had settled the judgment which the plaintiff (the defendant in certiorari) had recovered against him, as stated above. The judgment of dismissal was rendered over the objection of the attorneys for the petitioner in certiorari, who at the time showed that they had been employed to defend the original action and to prosecute the cross-action under an agreement by the terms of which they were to have as their fee, in case they successfully defended the main action, whatever sum the defendant might recover in the cross-action. Contending that upon these facts shown tht court erred in dismissing the petition for certiorari, notwithstanding the settlement by their client, they brought in his name a bill of exceptions, assigning error upon such dismissal.

It appears in the record that the counterclaim was based upon alleged overpayments to the extent of $46 made by the defendant to the plaintiff in redemption of a sale of salary, and that all the transactions involved in the litigation arose prior to June 13, 1933. It further appears that the defendant, upon his voluntary petition, was adjudicated a bankrupt on August 30, 1922. The record is silent as to whether a trustee was appointed or not. It does not appear what property, if any, was set aside to the defendant as a homestead or exemption. The plaintiff’s action was filed on March 24, 1923, and the answer was filed in May thereafter.

1. Under section 70 of the bankruptcy act of 1898, the assets of the bankrupt to which the title vests in the trustee upon adjudication, if a trustee is appointed, “except in so far as it is to property which is exempt,” includes all “rights of action arising upon contracts, or from the unlawful taking or detention of or injury to the [bankrupt’s] property.” See Commercial Bank of Augusta v. Warthen, 119 Ga. 990 (3) (47 S. E. 536).

2. It is provided by § 55 of the bankruptcy act that the court shall cause the first meeting of the creditors of the bankrupt to be held not less than ten nor more than thirty days after the adjudication, and by § 44 that a trustee shall be elected at the first meeting of creditors after adjudication. In the absence of proof to the contrary, the law presumes done that which ought to have been done, and while a trustee may not be appointed if there are no assets to be administered, it appears that the bankrupt was not without assets, even if none other than the cause of action alleged in his counterclaim to the present action. There is, therefore, in the absence of anything shown to the contrary, a presumption that a trustee was duly elected and qualified before the filing of the answer and counterclaim in this case in 1923; and it not appearing that the cause of action therein alleged had been set apart to the bankrupt as an exemption, the right to sue was prima facie in such trustee and not in the bankrupt. Wright v. Calhoun National Bank, 31 Ga. App. 434 (120 S. E. 795). Assuming that there would be a presumption that the bankrupt claimed what was for his benefit, — that is, an exemption, — there could be no presumption that the subject-matter of the present counterclaim or any other particular property — the record not showing the value of his assets — was so set apart. Thus, upon the record as it stands, the defendant was not entitled to recover upon the counterclaim, and no right of his attorneys was lost by the dismissal of the certiorari, their contingent interest in fees being confined solely to such sum as might be recovered against the plaintiff.

3. Irrespective of other questions involved in tbe writ of error, it being undisputed that the judgment on the main action, as between the parties, had been settled, and it appearing, as a matter of law, that no recovery could lawfully be had on the cross-action, whether for the benefit of the defendant’s attorneys or otherwise, there is no reason to reverse the judgment dismissing the certiorari. Even assuming that such judgment was irregular, no injury was done to the plaintiff in error or his attorneys. Atlanta Railway & Power Co. v. Owens, 119 Ga. 833 (1) (47 S. E. 213); Holbert v. Allred, 24 Ga. App. 727 (4) (102 S. E. 192); compare Morrison v. Green, 96 Ga. 754 (23 S. E. 845).

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15228.
    REDD & CO. v. LATHEM & SONS.
    1. Where a disinterested witness, who is in no way discredited by other evidence or his own, testifies from his own knowledge to a fact which is not in itself improbable or in conflict with other evidence, the witness is to be believed, and the fact testified to is to be taken as legally established. But this does not mean that the jury is bound in every case to accept evidence as true although it is not contradicted by direct evidence. It may be inherently subject to discredit, or so from the circumstances. While in this action of trover, in which a verdict was found for the defendants, two witnesses, whose evidence was not directly contradicted or otherwise affirmatively attacked, testified that the property had been pledged to the defendants by the owner as security for an indebtedness prior to an alleged purchase of the same by the plaintiffs, yet the testimony of neither was so certain, clear, and consistent as to establish the fact of the pledge as a matter of law.
    2. In the absence of any consent or agreement, either express or implied, on the part of the husband, that the earnings of the wife shall be retained by her as her separate estate, they belong to him.

      (a) A married woman may become a member of a partnership with her husband, and thus become bound jointly and severally with him for the partnership debts.
    (5) A partner cannot sell partnership assets in payment of his or her individual debt, but may do so in payment of an existing debt of the firm, or may pledge the same to secure such firm debt.
    (c) As to the ownership of the property in dispute in this case as it existed prior to the origination of the respective claims of the plaintiffs and the defendants, the evidence did not authorize the conclusion (1) that it was the sole property of a feme covert, but would have warranted a finding either (2) that it belonged solely to her husband, or (3) that it was the property of the husband and the wife as partners. The inference was authorized also that such husband and wife were indebted as partners both to the plaintiffs and to the defendants. The verdict found for the defendants was supported upon any one of the following theories: (1) a pledge of the property to them by the husband individually and as sole owner; (2) a pledge by either the husband or the wife as member of a partnership to secure a partnership debt; (3) the storage of the property with the defendant as warehousemen, with no title shown in the plaintiffs, provided the jury believed that the property was solely that of the husband, or that the debt in favor of the plaintiff was not the debt of a partnership composed of the husband and wife, the plaintiffs claiming only through a transaction with the wife. The jury could have decided in favor of the plaintiffs upon one theory and only one, namely, that the husband and the wife were partners, and that, without any previous pledge of the .property in dispute to the defendants, they, acting through the wife as a partner, sold it to the plaintiffs in payment of their partnership debt. A finding was not demanded for either party, as a matter of law, upon any theory.
    3. The following excerpts from the charge of the court were assigned as error upon the ground that they were inapplicable to the issues and prejudicial: (a) “The court instructs you that if the consideration of the sale of the property was outstanding indebtedness of Mr. McClure, that Mrs. McClure couldn’t legally sell her cotton to pay her husband’s debts. If she sold the cotton to pay her own debt, it would be a valuable consideration and the trade would be good.” (6) “If the plaintiff here bought the cotton from Mrs. McClure, and if Mrs. McClure was the owner of the cotton at the time plaintiffs claim ±o have bought, and if she sold to the plaintiffs, and that was prior to any sale made to the defendants, why the plaintiffs’ title would be good, or would be superior to that of the defendants.” Held, these charges were not adjusted to the issues, and the former was probably prejudicial. Por this reason the court erred in overruling the motion for a new trial.
    Decided April 24, 1924.
    Trover; from Cherokee superior court — Judge Blair. November 17, 1923.

      Brooke & Henderson, for plaintiffs.

      Wood S Yandiviere, for defendants.
   Bell, J.

This was an action of trover by E. P. Bedd & Company against W. A. Lathem & Sons, for the recovery of five bales of cotton. Each of these firms ran a mercantile store and each had an account against either Henry or Ethel McClure, or against them both jointly. The defendants also ran a warehouse in which the cotton had been stored by the McClures in the fall of 1920. It was contended by the defendants that they received it from the McClures in pledge. It was the contention of the plaintiffs, on the other hand, that the cotton had not been delivered to the defendants in pledge, but merely for keeping, and that tlie plaintiifs acquired title thereto by a purchase from Ethel McClure, the consideration for which was the settlement of an account which she and her husband owed to the plaintiffs and the surrender of a note which the plaintiffs held against one Dodd, who had worked for Ethel McClure, or for her and her husband, during 1920. The alleged purchase and sale relied on by the plaintiffs occurred on February 25, 1921. ■ A verdict was found in favor of the defendants. The plaintiffs filed a motion for a new trial, which was overruled, and they excepted. In the two special grounds of the motion error is assigned upon the following excerpts from the charge of the court, upon the ground that they were inapplicable to the issues and prejudicial: (a) “The court instructs you that if the consideration of the sale of the property was outstanding indebtedness of Mr. McClure, that Mrs. McClure couldn’t legally sell her cotton to pay her husband’s debts. If she sold the cotton to pay her own debt, it would be a valuable consideration and the trade would be good.” (&) “If the plaintiff here bought the cotton from Mrs. McClure, and if Mrs. McClure was the owner of the cotton at the time plaintiffs claim to have bought, and if she sold to the plaintiffs in satisfaction of an obligation of her own to the plaintiffs, and that was prior to any sale made to the defendants, why the plaintiffs’ title would be good, or would be superior to that of the defendants.”

We are satisfied that the general grounds of the motion for a new trial are without merit. The evidence was quite sufficient to authorize the verdict found in favor of the defendants. If we could concur in their contention that the verdict as to title was demanded, it would then be unnecessary to pass upon the assignments of error upon the charge, because in that case any errors in the charge would be harmless. We will pass upon that question first.

It is insisted for the defendants that the fact of pledge was established as a matter of law. Marvin and Jack Lathem, members of the defendant firm, each testified that the cotton was pledged by Henry McClure as it was stored, and that his wife on one or more occasions was present and agreeing to the arrangement. It is true that their testimony upon this point was not directly disputed.' Neither Henry McClure nor his wife, each being sworn as a witness for the plaintiffs, could remember whether the cotton had been pledged to the defendants or not. We do not decide that the evidence so given was or was not sufficient to raise an issue as to the truth of the testimony of the Lathems. It appears, though, that notwithstanding the claim of the Lathems that the cotton was to be sold at any time they decided to sell it and that the pledge was certain, they yet, according to some of the evidence, sought a further agreement with the McClures with reference to its disposition, doing so as late as the date of the alleged purchase by the plaintiffs. Marvin Lathem testified that the McClures told him to put it in the warehouse and apply it upon their account at any time they (the defendants) decided to sell it. He testified again, however, — referring to a later transaction, —that he “tried to get both of them to sell this cotton and apply it on account.” The father of Ethel McClure testified in behalf of the plaintiffs that Marvin Lathem came to his house about the first of February, 1931, and tried to “buy” the cotton from Ethel, and that she refused to sell it to him; that he “just wanted to buy the cotton,” and that this was about three o’clock in the morning. Jack Lathem testified that he tried to get Mrs. McClure to take a bill for the cotton in July, 1921, and that she would not accept it; that “it was after the cotton had been sold and applied on account, according to instructions or agreement with Mrs. McClure and Henry, that I presented the cotton bill to Mrs. McClure.” But at another point he testified: “We did not sell the cotton until July, 1933; after the trial here [a previous trial of the same case] they told me to go ahead and weigh the cotton up and give them credit for it; that the case was over and it was my cotton.” In view of these circumstances it cannot be said that the testimony of the Lathems established, as a matter of law, that the cotton had ever been pledged. “Where a disinterested witness, who is in no way discredited by other evidence or his own, testifies from his own knowledge to a fact which is not in itself improbable or in conflict with other evidence, the witness is to be believed, and the fact testified to;is to be accepted as legally established.” But “it cannot be said, as a matter of law, that the jury is bound to accept evidence as true, although not contradicted by direct evidence” (italics ours). Whiddon v. Hall, 155 Ga. 570 (6), 578 (118 S. E. 347). Compare Atlantic Coast Line R. Co. v. Drake, 31 Ga. App. 81 (4) (94 S. E. 65); Yaryan Rosin & Turpentine Co. v. Haskins, 29 Ga. App. 753 (2) (116 S. E. 913); Jones v. Teasley, 25 Ga. App. 784 (105 S. E. 46). The credibility of these witnesses was for the jury. There were circumstances which the jury could weigh in determining the weight to be given their testimony.

The defendants make the further contention that the evidence shows that the cotton was produced upon a farm operated by Henry and Ethel McClure, husband and wife, while they lived together, without any agreement by the husband that the wife should have her separate earnings, and that the title to the cotton was therefore in the husband. Hence, they insist that the pledge by Henry McClure was all-sufficient, irrespective of the consent of his wife, and that she, having no title, could not convey any to the plaintiffs, who dealt with her only. The rulings made above, that the credibility of the testimony of the Lathems was under the circumstances a question for the jury, will apply equally to the contention that their evidence conclusively established a pledge by the husband independently of the concurrence of his wife.

Thus we conclude that notwithstanding what may have been the preponderance of the evidence upon the point, a finding was not demanded, as a matter of law, that the cotton had ever been pledged to the defendants as they contended. The power of Ethel McClure to make the sale to the plaintiffs will be discussed in the following division of this opinion.

It indisputably appeared that the cottoñ had been stored with the defendants, whether in pledge or not, and that until demanded by the plaintiffs they had continued in the lawful possession of it. If, therefore, the proof was insufficient to show ownership in the plaintiffs, the verdict found for the defendants still was demanded as a matter of law. “In the absence of any consent or agreement, either expressed or implied, on the part of the husband that the earnings of the wife shall be retained by her as her separate estate, they belong to him.” Georgia Railroad Co. v. Tice, 124 Ga. 459 (5) (52 S. E. 916, 4 Ann. Cas. 200); Cotter v. Gazaway, 141 Ga. 534 (1) (81 S. E. 879); Mock v. Neffler, 148 Ga. 25 (2) (95 S. E. 673); Heyman v. Heyman, 19 Ga. App. 634 (1) (92 S. E. 25). It appears that Henry and Ethel McClure were husband and wife, living together upon a farm whereon the cotton was produced; also that the cotton was produced principally, if not altogether, by her labor together with that of their children and an employee. She seems to have thought the cotton was hers, testifying: “I worked in the field and made this cotton while my husband worked on a truck and made what he could that way. I say the cotton to have been mine because I worked in the field and the children worked in the field and made it.” If this were all the evidence upon the question, we should say that the title to the cotton so produced was in the husband, and that the plaintiffs did not acquire title in purchasing from the wife, she not appearing to be the husband’s agent. But there was some evidence authorizing the inference that Henry and Ethel McClure were partners. “A married woman may contract to become, and actually become, a member of a partnership with her husband.” Schofield v. Jones, 85 Ga. 816 (2) (11 S. E. 1032); Vizard v. Moody, 119 Ga. 918 (2) (47 S. E. 348); Morrison v. Dickey, 122 Ga. 353 (3) (50 S. E. 175, 69 L. R. A. 87); Butler v. Frank, 7 Ga. App. 655 (2) (67 S. E. 884). Marvin Lathem testified: “Henry and Ethel McClure had an account with Lathem & Sons when they brought this cotton there. . . We had furnished Henry and Ethel McClure supplies to make their crop on that year.” Both he and Jack Lathem dealt with the McClures as joint owners or as partners. In all the transactions they recognized her as having an interest, as is shown by expressions in the testimony of the one or the other, such as the following: “They began to turn this cotton over to us;” “they put this cotton in there;” “he and his wife both said they would make ten, but it developed that they only made seven” bales; “they were to turn the cotton over to me to go on account;” the cotton was to be placed on the account “when they said . . let it go;” “they told me at the time this cotton was sold to sell it and give them credit for it;” “Ethel and Henry McClure told me, the parties who made the account, they both authorized me,” etc.; “they told me to sell the cotton;” “I had a talk with both parties, and Ethel McClure agreed to that;” “all I wanted was for them to bring the balance of the cotton down;” “I asked them to bring it;” “tried to get both of them to sell this cotton;” “the previous arrangement we had about the account was to charge it jointly to them, and that was the account they said they wanted the cotton to apply to;” “they wanted to leave it there to be applied on what they owed.” From this evidence we think the conclusion was warranted that Henry and Ethel McClure were partners. If so, either one of them could have pledged the cotton to the defendants as security for the partnership debt. So also could Ethel McClure sell it to the plaintiffs, if acting within the scope of the partnership business and not violating a previous pledge to the defendants. It was inferable that the account which the plaintiffs held against the McClures was also a partnership debt. But a part of the alleged consideration for this transaction was the surrender of a note which the plaintiffs held against Albert Dodd, whom Ethel McClure had employed for the year 1920 and who had not been paid for his labor. It could yet be inferred from the circumstances that although Ethel McClure employed him, she was acting for the partnership in doing so, and that in obtaining a surrender of his note payable to the plaintiffs as part consideration for the cotton, the partnership retired its indebtedness to him for his services. A partner cannot sell partnership property in payment of his or her individual debt (Eady v. Newton Coal Co., 123 Ga. 557 (1), 51 S. E. 661, 1 L. R. A. (N. S.) 650, 3 Ann. Cas. 148), but may do so in payment of an existing debt of the firm. Such a sale will pass title to the creditor, though the other partner has no knowledge of the transaction. Denton v. Hannah, 12 Ga. App. 494 (5) (77 S. E. 672). In like manner, a partner may pledge the firm’s property to secure the firm’s debt. Thus, the jury could have found that Ethel McClure, acting for the partnership, made a valid transfer of the title to the cotton to the plaintiffs, the inference not being demanded that the cotton had previously been pledged by either of the McClures to the defendants. The verdict found for the defendants was, therefore, not absolutely demanded.

There was no evidence at all, however, to show that the cotton was the individual property of Ethel McClure, and the only theory upon which the plaintiffs could claim title was that of a partnership between Henry McClure and his wife, and of a sale by the latter in payment of the partnership obligations. If the title to the property was in the husband, the plaintiffs did not acquire title in dealing with the wife, and could not recover, irrespective of a pledge to the defendants, because the plaintiffs cannot recover without title. The same is true also if the debt to the plaintiff was not a partnership debt, even though the McClures were in partnership. Again, the plaintiffs ought not to recover if the property was pledged to the defendants either by the husband or the wife as a partner, if they were partners, and if the pledge was made before the transaction in which the plaintiffs claimed to have purchased. Having reached the conclusion that the evidence did not absolutely demand the verdict found for the defendants, we next will examine the excerpts from the charge of the court assigned as error.

From what we have stated above, there ivas no issue in reference to a sale to the plaintiffs by Ethel McClure of her property to satisfy the individual debt of her husband. The evidence did not warrant a finding that the cotton belonged to her individually, but only that it was that either of her husband or of a partnership composed of herself and her husband; nor was there any proof that any individual debt of her husband was paid by the sale, the only evidence upon the subject being that it was the joint debt of them both, whether as partners or not. It follows that the charge complained of in the first ground of the amendment to the motion for a new trial was inapplicable to any issue involved upon the trial. A charge containing a correct statement of an abstract principle of law, but not applicable to the evidence, and tending to mislead the jury and prejudice the rights of one of the litigants, is reversible error. Nation v. Jones, 3 Ga. App. 83 (3) (59 S. E. 330); Culberson v. Alabama Construction Co., 127 Ga. 599 (1) (56 S. E. 765, 9 L. R. A. (N. S.) 111, 9 Ann. Cas. 507). An irrelevant charge is not always cause for a new trial. When one has been given and is assigned as error, the court will examine the record to determine if the losing party was in any way prejudiced thereby. If not, the error will be treated as harmless, and a new trial upon that ground will be denied; otherwise where it appears that the inapplicable charge may have tended to the prejudice of the complaining party. In this case it is probable that the jury' were confused and misled by the excerpt complained of in this ground of the motion. For this reason a new trial should have been granted.

Having determined that there was no evidence to the effect that the transaction between Ethel McClure and the plaintiffs was a sale of her separate property to satisfy the debt of her husband, the correctness of the proposition insisted upon in the briefs for plaintiffs in error, that the defendants were not in such privity in estate with Ethel McClure that they might assail her transaction with the plaintiffs upon that ground, is not raised for decision. See Palmer v. Smith, 88 Ga. 84 (1) (13 S. E. 956); Hawes v. Glover, 126 Ga. 305 (5) (55 S. E. 62); Scaife v. Scaife, 134 Ga. 1 (2) (67 S. E. 408).

Unless the excerpt complained of in the second ground of the amendment to the motion for a new trial contained an intimation of a sale or pledge to the defendants, which was issuable under the evidence, we do not think that this charge was erroneous for any reason assigned. We will say, however, that it ought not to have been given, for the reason that there is no evidence that the cotton was the individual property of Mrs. McClure. It was either the property of her husband or that of a partnership of which she was a member. The charge therefore was inapplicable to the issues, but not for that reason prejudicial to the complaining party. It might have been the subject of complaint by the defendants had they not prevailed. If upon another trial the issues be the same, the language of this excerpt should be avoided.

A new trial must be ordered because of the error in giving the excerpt complained of in the first special ground of the motion. Nothing said in the foregoing discussion of the facts should be taken as intimating any opinion by this court as^to which party ought to prevail, and should not prejudice either party. A free reference to the evidence has been necessary in order to demonstrate satisfactorily to ourselves, whether also to others, the correctness of the solution we offer of the problems which the case has presented.

Judgment reversed.

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


text:
    15239.
    McKibben v. Fourth National Bank of Macon.
   Bell, J.

1. The cardinal rule in the construction of contracts is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction. Civil Code (1910), § 4266. As to whether a contract is one of suretyship or of guaranty, “as with other contracts, the whole matter is governed by the intention of the parties.” Baggs v. Funderburke, 11 Ga. App. 173, 174 (74 S. E. 937). The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement. Etheridge v. Rawleigh Co., 29 Ga. App. 698, 703 (116 S. E. 903); Fields v. Willis, 123 Ga. 273, 275 (51 S. E. 280).

2. It is true that in order to constitute one a surety his obligation must be “identical with that of the principal” (Graham v. Roberson, 79 Ga. 72, 74, 3 S. E. 611; Etheridge v. Rawleigh Co., supra), but identity of obligation does not necessarily mean identity of instrument; and while a surety is usually bound with his principal by the same instrument (Musgrove v. Luther Publishing Co., 5 Ga. App. 279, 281, 63 S. E. 52), this is not always true. The form of the contract is immaterial provided the fact of suretyship exists (Civil Code of 1910, § 3541), and one may assume that relation even by an instrument separate and distinct from that of his principal and also subsequent in time. Baggs v. Funderburke, supra.

3. It was stipulated in the instrument sued on in this case that its “true intent and purpose” was to render the makers thereof liable for any indebtedness of the corporation in which they were stockholders “precisely to the same extent” as if each of them “had duly and regularly indorsed the paper of said corporation,” and that they should be jointly and severally liable therefor “as indorsers are liable to the holder of a negotiable instrument under the law merchant.” It is clearly manifest from this language and the instrument as a whole that the parties signing it did so with the specific intent to become liable as “accommodation indorsers” or sureties. Civil Code (1910), § 3541.

(a) Applying the rulings of the preceding paragraphs, the makers of the instrument upon which the action in this ease was predicated were sureties and not guarantors. It was therefore unnecessary that the plaintiff should allege that the principal debtor, the corporation, was unable to perform. Compare Fields v. Shores-Mueller Co., 25 Ga. App. 395 (1) (103 S. E. 473).

4. Suits against joint obligors or joint promisors residing in different counties may be brought in either county. Civil Code (1910), § 6541. One of the makers having resided and having been served in the county in which the suit was brought, the court was not without jurisdiction as to the plaintiff in error, although he resided in a different county in this State.

5. It was not necessary that the principal, — that is, the corporation for whose indebtedness the makers of the instrument sued on became liable as sureties, — should be sued in the same action. “The holder of a joint and several note may sue the obligors jointly or severally, or sue any one of the signers alone. On such an obligation he may sue the principal and the surety jointly, or .at his option he may sue either the principal or the surety alone. Civil Code (1910), § 3553, 3559; Reid v. Flippen, 47 Ga. 273, 275; McMillan v. Heard National Bank, 19 Ga. App. 148, 151.” Johnson v. Georgia Fertilizer Co., 21 Ga. App. 530 (3) (94 S. E. 850); Amos v. Continental Trust Co., 22 Ga. App. 348 (2) (95 S. E. 1025). However, there was no plea or demurrer raising the question of nonjoinder of parties.

6. In a suit against joint and several obligors residing in different counties where the court has jurisdiction of them both when the suit is filed, the mere fact that the resident defendant is subsequently discharged upon some matter in avoidance not existing at the commencement of the action will not prevent the court from proceeding'to judgment against a nonresident defendant. Daniel v. Browder-Manget Co., 13 Ga. App. 392 (2) (79 S. E. 237). Under this ruling, the court did not lose its jurisdiction over the nonresident defendant because of the bankruptcy (even assuming a discharge therein) of the resident defendant, occurring after the institution of the action. Regardless of the soundness of the entire ruling contained in the second headnote of the decision just cited, the soundness of so much of it as is applicable to this case is not doubted. Therefore the request of the plaintiff in error, that this decision be reviewed and overruled, must be declined.

(a) The rule as to jurisdiction of the nonresident defendant would be otherwise, however, if there was no joint liability at the time the action was brought, but even then, if the joint liability appears by the suit, the issue in regard thereto should be determined on the final trial and not on a dilatory plea. Williams v. Atlanta National Bank, 31 Ga. App. 212 (5) (120 S. E. 658).

7. One of the recited considerations of the instrument declared on was “the agreement on the part of the bank to renew any indebtedness of the corporation now existing for a period of at least 30 days from the maturity thereof.” While the plea alleges that the. principal debtor, Akin & Company, “did not secure or obtain any credits or indulgence,” it is not shown therein that the plaintiff violated its agreement to extend the same, but the contrary affirmatively appears. The plaintiff, on April 2, 1923, accepted a note due in 30 days for the existing matured indebtedness of the principal debtor, and even if the note was not so executed as to be binding upon the latter-, being signed without authority, it was subject to ratification by it, and in the event thereof would then have been binding as a renewal upon both parties thereto. Whether it was binding upon the plaintiff bank as a renewal or extension of the existing indebtedness, without such ratification by the purported maker, the bank treated it as such, and thus abided by its agreement in the instrument declared on, to renew any existing indebtedness for the space of 30 days. The plea, therefore, failed to show any failure of consideration, or any breach by the plaintiff.

8. Assuming that the plea sufficiently averred, as against a general demurrer, that the person who executed the note representing the alleged indebtedness of the principal debtor, Akin & Company, was acting without authority in so doing, and thus that the note as such would not be enforceable against the corporation, nor even properly considered as evidence of indebtedness against it, the plea having alleged that this note “represents a balance of $5,000 borrowed by Akin & Company in the year 1919, and $6,000 assumed by Akin & Company ,to plaintiff,” and the action not being based upon the note itself, but upon a separate writing, wherein the makers bound themselves to pay to the plaintiff bank “as the same becomes due, any indebtedness of [their principal, Akin & Company] . . now in existence 'or that may be hereafter created, whether by note, discount, acceptance, overdraft, indorsement, or in any other form,” it is immaterial in this action that the particular note may not have been executed by authority of the corporation, it thus affirmatively appearing from tlie plea that Akin & Company was in fact indebted to the plaintiff in a sum equal to that for which the sureties were sued. Compare Jones v. Ezell, 134 Ga. 553, 556, 557 (68 S. E. 303).

Decided April 24, 1924.

Complaint; from city court of Macon — Judge Gunn. November 5, 1923.

In Bibb county, on June 22, 1923, the Fourth National Bank of Macon brought an action against Thomas N. McKibben, J. II. MeKibben, and L. B. Akin, upon the following instrument:

9. Applying the above rulings, the court did not err in sustaining the plaintiff’s general demurrers to the plea to the jurisdiction and to the defendant’s answer, nor in overruling the defendant’s demurrer to the plaintiff’s suit.

10. The plaintiff in error contends, that, the action being upon an instrumcnt providing for the payment of attorney’s fees, the recovery of which is dependent upon giving to the defendant the required statutory notice, and the trial judge having rendered judgment in the ease without a jury, the judgment is erroneous because it was not “couched in such language as to indicate that the judge, sitting as a jury, . . found the fact to be that written notice of suit had been as required by law,” as was ruled by this court to be necessary, in Valdosta &c. R. Co. v. Citizens Bank of Valdosta, 14 Ga. App. 329 (4) (80 S. E. 913). This court is unable, however, to concur in the construction which the counsel for plaintiff in error places upon the judgment. It appears to be dual in nature, importing a finding upon facts, together with a judgment thereon. This contention, therefore, cannot be sustained either as to the judgment as a whole or even as to the part thereof relating to attorney’s fees. Sen Elliott v. Wilks, 16 Ga. App. 466 (3) (85 S. E. 679).

11. Another contention of the plaintiff in error is that the judgment for attorney’s fees is not valid because the plaintiff’s allegations of notice to the defendant did not show a compliance with the statute (Civil Code of 1910, § 4252). This was an action by the obligee in the instrument declared on, a copy of which was attached, and which provided for the payment of such fees. The petition alleged that the defendants were indebted therefor. The following allegation made in the complaint (certainly in the absence of a special demurrer thereto) sufficiently averred a compliance with the statute with reference to the giving of such notice: “Petitioner shows that more than ten days prior to the filing of this suit it gave written notice to each and all of said defendants of its intention to sue on said contract evidencing said indebtedness to the September term; 1923 [to which the suit was made returnable] of the city court of Macon.” Stocking v. Moury, 128 Ga. 414 (2) (57 S. E. 704); Strickland v. Lowry National Bank, 140 Ga. 653 (4) (79 S. E. 539); Youmans v. Moore, 13 Ga. App. 119 (2) (78 S. E. 862); Reeves v. Gower, 14 Ga. App. 293 (2) (80 S. E. 699).

12. No other reasons are urged for reversing the judgment, and, it not being-erroneous upon any ground taken, affirmance must follow.

Judgment affirmed.

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

“State of Georgia, Bibb County. — We, the undersigned, stockholders in the Akin & Co., hereinafter called the ‘corporation/ in consideration of the sum of $1 to each of us in hand paid by .the Fourth National Bank of Macon, hereinafter called the ‘bank/ receipt of which is hereby acknowledged, and in consideration of the credit extended to the said corporation by the bank, and in consideration of the agreement on the part of the said bank to renew any indebtedness of the corporation now existing for a period of at least thirty days from the maturity thereof, do hereby bind ourselves and agree to pay the said bank, as the same becomes due, any indebtedness of the said corporation to the said bank, now in existence. or that may be hereafter created, whether by note, discount, acceptance, overdraft, endorsement, or in any other form, together with any renewal thereof, with interest or renewals thereon and all costs of collection, including 10 per cent, attorney’s fees.

“This agreement is made and entered'into between the undersigned stockholders of said corporation and the bank in order to avoid the necessity and inconvenience of endorsing the evidence of indebtedness of the said corporation to the said bank, and its true intent and purpose is to make the undersigned parties hereto liable for the said indebtedness of said corporation to said bank in all respects and precisely to the same extent as if each of the undersigned parties hereto had duly and regularly endorsed the paper of the said corporation to the said bank, whether indebtedness be represented by note, discount, acceptance, overdraft, endorsement, or any and all other ways, and in the event of liability accruing under this agreement each of us shall be jointly and severally liable to the said bank for the indebtedness of the said corporation as endorsers are liable to" the holder of a negotiable instrument under the law merchant. Each of us hereby severally waives and renounces for himself any and all homestead and exemption rights either of us and the family of either of us may have under and by virtue of the constitution and laws of Georgia, any other State or the United States, as against any indebtedness that we may have to pay to the said bank by virtue of this instrument or any renewal of said indebtedness, and each of us further waives demand, protest, and notice of demand, protest, and nonpayment, and any and all other formalities which are or might be necessary and proper to make us liable for the payment of said indebtedness, however the same may be evidenced, if our names were on said paper, or any evidence of indebtedness in the regular and usual manner and form. This agreement shall be binding without any notice to the undersigned of its acceptance or of the making of extension or renewal of any indebtedness to the corporation, and shall continue notwithstanding any parties hereto may cease to be stockholders in the corporation. No further credit is to be extended under this agreement after notice in writing not to do so is served on the bank by any one of the undersigned parties.

“In witness whereof we have hereunto set our hands and seals, this 10th day of March, 1923.

“Thos. N. McKibben (L. S.),

“J. H. McKibben (L. S.),

“L. R. Akin (L. S.)”

The petition alleged: that the corporation Akin & Company had become indebted to the plaintiff upon a note dated April 2, 1923, and due in 30 days, signed by Akin & Company, for the principal sum of $4,900, which remained unpaid, and for which the defendants were liable, together with interest and attorney’s fees as provided in the note, by reason of their undertaking as set forth above; that the defendants Akin and Thomas N. McKibben were residents of Bibb county, and that J. H. McKibben was a resident of Butts county. J. H. McKibben filed a plea to the jurisdiction, upon the ground that, both of the other defendants having been adjudicated bankrupts, — Akin before the suit was filed and Thomas N. McKibben afterwards, — there was no joint liability upon his part with either of them, and that therefore he was not suable in Bibb county, but that he could be sued only in the courts of Butts county, where he resided. He demurred on the following grounds: No cause of action is set forth; the obligation sued on is one of guaranty, and it is not alleged that the plaintiff proceeded first against the principal, Akin & Company, or that Akin & Company was unable to pay; that the petition shows upon its face want of jurisdiction as to this defendant; that a guarantor cannot be sued jointly and severally in the same action with another guarantor.

Subject to his plea and demurrer, the. same defendant filed an answer, the material portions of which were as follows: (a) That the defendant L. R. Akin was not a resident of the county of Bibb as alleged, but resided in Fulton county. (This defendant was never served.) (5) That both of the codefendants had been adjudicated bankrupts (the dates in this connection were not alleged). (c) That the obligation sued on “was executed for the purpose of securing any loan of money that said plaintiff might make to Akin So Company, and not for the purpose of paying any debt which Akin So Company owed plaintiff at the time said obligation was executed. This defendant alleges that at the time said obligawas executed, said Akin So Company did not borrow any money or secure anything else of value from plaintiff, and never thereafter borrowed any money or obtained anything else of value from plaintiff; . . that said Akin So Company did not secure or obtain any credits or indulgence, or other benefit by reason of said obligation.” (d) “This defendant denies that plaintiff furnished said Akin So Company any money at the time said note sued upon was executed, but on the other hand this defendant alleges, that said note sued upon was given in renewal of two notes which became due on the 2d' day of April, 1923, and that said note sued upon represents a balance of $5,000 borrowed by Akin So Company in the year 1919, and $6,000 assumed by Akin So Company to plaintiff by Tappin So Company, and that no money was furnished to Akin So Company by plaintiff on said alleged note.” (0) That the note purporting to have been executed by Akin So Company on April 22, 1923, was not signed by any person or officer having authority to execute it; that under the charter and by-laws of Akin So Company, its notes and obligations could only be signed by its president, or in his absence the vice-president, unless otherwise directed by the board of directors, and that the note in question was signed by the secretary and treasurer without authority from the board of directors. These facts were known to the plaintiff at the execution of the note, and by reason thereof the note is not binding upon Akin & Company, and this defendant is not liable therefor under the obligation sued on.

The court sustained the plaintiff’s general demurrers to the plea to the jurisdiction and to the answer, and overruled the defendant’s demurrer to the suit, and thereupon entered a finding and judgment in favor of the plaintiff, as follows: “I find for the plaintiff against the defendant, J. II. McKibben, the sum of $4900 principal, $199.27 interest, and $509.92 attorney’s fees. Whereupon it is considered, ordered, and adjudged that the plaintiff, the Fourth National Bank of Macon, do have and recover of the defendant, J. H. McKibben, the sum of $4900.00 principal, $199.27 interest to date, $509.92 attorney’s fees, future interest at 8% per annum, and all costs to be taxed by the clerk.”

The defendant J. H. McKibben excepted, assigning error upon the judgment and rulings stated. It is recited in the bill of exceptions that after the preliminary rulings, the final judgment was rendered at the appearance term of the court, without a jury and without evidence being submitted ;■ but the only assignment of error upon the final judgment was that it was contrary to law, and that as the erroneous rulings upon the demurrers “entered into and affected the further progress and final result of the case, the said court erred in making, passing, and entering verdict and judgment against J. II. McKibben.”

W. T. Davidson, for plaintiff in error.

Jones, Parle & Johnston, contra.


text:
    15244.
    HOFFMAN v. FRANKLIN MOTOR CAR CO.
    1. The direction of a verdict is in legal contemplation a final judgment from which a writ of error will lie. LeGere v. Blakely Ginning Go., 11 Ga. App. 325 (1) (75 S. E. 163), and cases cited.
    2. It is an indispensable requisite of a motion for continuance on the ground of surprise, made by the defendant after an amendment by the plaintiff to his petition, that the movant make oath, or his attorney state in his place, “that such surprise is not claimed for the purpose of delay.” This matter is not left to inference, and there must be an express statement to that effect in the record. Atlantic c6 Birmingham B. Go. v. Douglas, 119 Ga. 658 (1) (46 S. E. 867) ; Civil Code (1910), § 5714. The application for continuance in the ease at bar was lacking in this essential particular.
    3. In case of a sale of a chattel, where the parties have reduced to writing what appears to be a complete and valid contract of sale, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire agreement, and parol evidence of prior or contemporaneous representations, statements, or agreements in regard to the subject-matter is inadmissible to add to, take from, or vary the written instrument. Bond v. Perrm, 145 Ga. 200 (1) (88 S. E. 954); s. e. 18 Ga. App. 179; Pryor v. Ludden é Bates, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267) ; Dyar v. Walton, 79 Ga. 466 (2) (7 S. E. 220) ; Reeves Tractor £ Implement Co. v. Barrow, 30 Ga. App. 420 (1) (118 8. E. 456).
    4. Where, without fraud, accident, or mistake touching its execution, the parties to a sale of personalty enter into a written contract with respect . thereto in which is contained a stipulation that “the vendor does not warrant said property and makes no representation concerning same except that the title to same is in the vendor and free from incumbrance)” such stipulation amounts to an express refusal by the vendor to warrant the property except as to title, and the vendee cannot contradict the terms thereof by pleading a breach of the other ordinary implied warranties of the law or of express warranties and representations made by the vendor prior to or at the time of the sale, as to the condition of the property sold. Harrell v. Holman, 21 Ga. App. 159 (1) (93 S. E. 1021) ; Payne v. Chal-Maos Motor Co., 25 Ga. App. 677 (1) (104 S. E. 453); Branch v. James, 4 Ga. App. 90 (60 S. E. 1027); Connell v. Newkirk-George Motor Co., 28 Ga. App. 382 (111 S. E. 749); Washington £ Lincolnton R. Co. v. Southern Iron £ Equipment Co., 28 Ga. App. 684 (1) (112 S. E. 905).
    5. The answer in this case, with the proffered amendments, in seeking to set up the defense of a rescission of the contract of sale by mutual consent, under the provisions of the Civil Code, § 4304, was fatally defective in that it failed to show that the vendor accepted the return of the property in lieu of payment of the purchase price, but only upon the promise that it would “make some satisfactory adjustment with the defendant, ” which was never executed. Such averments did not establish a sufficiently definite agreement touching the alleged rescission, showing that the minds of the parties had failed to meet with respect thereto.
    6. Neither did the answer, together with the proffered amendments, set forth the defense of accord and satisfaction. Where accord and satisfaction is pleaded in bar to a suit based on the original cause of action, it must appear that the accord has been fully executed.
    7. The, action' in this case was based upon ordinary promissory notes, the consideration of which was not disclosed in the suit. At the appearance term the defendant filed an answer alleging that the notes had been ' given as a part of the purchase price of an automobile, and undertaking to set up the defenses of fraud, failure of consideration, and mutual rescission -or accord and satisfaction. At a subsequent term of the ■ court the plaintiff tendered and the court allowed an amendment to the petition, "in which it was averred that contemporaneously with the sale the .parties entered into a written contract fixing the terms thereof, including .the stipulation set forth in paragraph 4 above. Thereafter the court • disallowed certain amendments to the defendant’s answer, struck the' original plea, and directed a verdict in favor of the plaintiff. Held: Under.the several rulings made above, and considering the terms .of the sales contract (assuming its execution), none of the defenses pleaded were valid; but the failure of the defendant to answer the amendment to the petition, averring the execution of the sales contract, would not authorize the court to treat the allegations in the amendment in respect thereto as being admitted. The defendant is not required to answer an amendment to the plaintiff’s petition. However, if he answers . it voluntarily, he will be bound by any admissions which he makes of the facts therein alleged, and the proposed amendments to the answer in this ease are construed as containing an admission of the execution oí the sales contract set forth in the previous amendment to the petition. Without such admission the court could not properly have struck the defendant’s original answer, treating it as setting forth good defenses to the suit as originally framed; and while the amendments to the answer were rejected, and therefore never became a part of the original plea so as to make the entire plea as amended subject to a motion to dismiss in the nature of a general demurrer, the plea would have become so subject instantly upon the allowance of the amendments which ■ the defendant insisted upon, and upon the refusal of which he assigns error. It thus appears from the entire record that the correct legal result was reached, and that the defendant was not harmed by the . irregular procedure adopted in attaining it.
    Decided April 24, 1924.
    Complaint; from DeKalb superior court — Judge Hutcheson. November 15, 1923.

      Harwell, Fairman & Barrett, for plaintiff in error.

      Smith, Hammond & Smith, contra.
   Bell, J.

Proceedings were had in this case in the following chronological order:

(1) Franklin Motor Car Company filed suit against J. Leon Hoffman to the February term, 1923, of the superior court of DeKalb county, upon plain, ordinary promissory notes, the consideration of which was not disclosed in the suit. Each note, however, contained a statement that it was one of a series of notes secured by a “title contract.”

(2) At the appearance term the defendant filed an answer admitting the execution of the notes sued upon, alleging that they were executed for the purchase price of an automobile, and setting up what in this case we will treat as sufficient pleas, to the suit as originally filed, of fraud and failure of consideration. The alleged fraud related only to the condition of the car. It was alleged that the car was worthless. The plea alleged also certain facts which the plaintiff in error, the defendant in the court below, has sought to sustain in this court alternatively, — that is, either as a plea of mutual rescission of the contract, or of accord and satisfaction, the same being contained in paragraph 11 of the answer as follows: “For further plea defendant says that on or about December 10, 1922, the contract was rescinded and the car returned .to plaintiff, and is now in their possession. A short time before this last return of the car defendant had returned it and refused to take it back, and plaintiff came to defendant and requested him to give it another trial, and told him if it did not run satisfactorily they would take it back and make some satisfactory adjustment with defendant. Relying upon this agreement, defendant again took the car, to give it another trial, and, after ten days trial, found it would not run, and finally delivered it back to plaintiff as above stated.”

(3) When the case was called for trial at a subsequent term of court the plaintiff offered and the court allowed an amendment to the petition, adding thereto a copy of the contract referred to in the notes sued on, and averring that such contract was executed by the defendant contemporaneously with the notes. The contract set out in the amendment contained the following stipulation: “The vendor does not warrant said property, and makes no representation concerning same except that the title to same is in the vendor and free from incumbrances.” The notes wore described in the contract conformably with the averments of the original petition.

(4) Thereupon the defendant offered two amendments, the first of which, in connection with additional averments upon the subject of fraud and failure of consideration, included the following references to a contract executed between the parties, touching the sale: “All of the representations were made to defendant prior to the purchase and delivery of the car, and prior to the signing of the contract to purchase and the notes therefor, that is the notes sued on;” “defendant, . . relying on said representations, accepted the car, signing the purchase contract, and gave his notes for same, the notes sued on.” There were also 'in this amendment several additional statements similar to these, signifying that the defendant had signed a sales contract, referred to by him as “the contract,” “said contract,” or “his contract.” This amendment sought to add-the following to the averments of the original plea upon the subject of rescission (or accord and satisfaction): “The circumstances leading up to the rescission of the contract between the parties as set forth in the 11th paragraph of defendant’s original answer were substantially as follows: The car commenced to give trouble soon after defendant purchased it, and would not run. Defendant took it back to plaintiff for repairs from time to time, and, upon their assurances that they would fix it, he would take it back ancl try it again. This occurred as many as a dozen times, possibly more, defendant attempting in good faith to keep it. Defendant needed the car for use in his business as a landscape gardener and architect, which necessitates the use of a car every day. Over half the time defendant had it and was attempting to use it, it was in the shop for repairs, to his inconvenience and loss in business. Not being a mechanic, defendant is not able to say what the trouble was with the car, but does allege that it would not run. He alleges further that it would make only seven or eight miles on a gallon of gasoline. Defendant would take the car back to plaintiff from time to time, and plaintiff would attempt to repair it, and would assure defendant that it was all right, and defendant would take it out and try it again, and trouble would immediately develop and the car would not run. After thus attempting to run it under the circumstances related, defendant returned it to plaintiff and refused to take it back, and plaintiff came to defendant and requested him to give the car another trial, assuring him they would not expect him to keep the car if they could not make it satisfactory to him, and told him if he would take it back and try it again, and if it did not run satisfactorily, they would take the car back and make some satisfactory adjustment with defendant. Relying upon this agreement, defendant again took the car to give it another trial and after ten days trial found it would not run, and finally delivered it back to plaintiff, and they now have it. This rescission of the contract of sale of said car took place on or about December 10, 1933, wherefore, because of said rescission, defendant is not indebted to plaintiff in any amount on the notes sued on, but on an adjustment of the equities between the parties, plaintiff is due defendant the sum of $350.”

The second amendment was as follows: “With further reference to the agreement between the parties, rescinding the contract of purchase of said car, said rescission agreement was for the purpose of settling the differences existing between the parties,— in other words, as a compromise or settlement of their differences with reference to said car, — defendant claiming all the time to plaintiff that the car would not run, and plaintiff promising to fix it; and it was to compromise and settle their differences without recourse to litigation that the rescission came about, and in pursuance of that agreement defendant delivered the car back to plaintiff. These negotiations and the agreement rescinding said contract, as set forth in his original answer and the amendment heretofore presented, and in this amendment, were had with W. T. Harmon, agent and representative of plaintiff, and with Mr. Beall, who was agent and manager of said plaintiff company at the time said negotiations and said agreement to rescind took place.”

(5) The amendments to the defendant’s answer were disallowed; the original plea, upon the motion of the plaintiff, was stricken; and a verdict was directed for the plaintiff for the full amount sued for.

Nothing need be added to the rulings announced in head-notes 1, 2, 3 and 4.

We construe the answer and the proffered amendments as attempting to plead a rescission by mutual consent, under the Civil Code, § 4304, which provides as follows: “A rescission of the contract by consent, or a release by the other contracting party, is a complete defense.” See, upon this question, the following: Cheek v. McWhorter, 29 Ga. App. 109 (1) (2) (113 S. E. 812); Manley v. Underwood, 27 Ga. App. 822 (1) (3) (110 S. E. 49); Daniel v. Burson, 16 Ga. App. 39 (1) (84 S. E. 490); Battle v. Holmes, 146 Ga. 245 (3) (91 S. E. 32); Crutchfield v. Dailey, 98 Ga. 462 (1) (25 S. E. 526); Barnett v. Terry, 42 Ga. 283; Johnson v. Worthy, 17 Ga. 420 (2).

A rescission of an executory contract of sale must be pleaded with substantially the same definiteness as any other contract or. agreement. In order for a plea successfully to set up a rescission as a defense to a suit upon the contract, it must appear, directly or impliedly, that the parties are to be restored to their original status. It is not sufficient “to simply set out the fact as a legal result; but the opposite party is entitled to be put in the possession of the circumstances relied on to establish it.” Barnett v. Terry, 42 Ga. 283, 287; Daniel v. Burson, supra; Steen v. Harris, 81 Ga. 681 (2) (3) (8 S. E. 206).

In this case the plea, together with the amendments tendered, only averred that subsequently to the sale, when the automobile was giving the defendant trouble, the plaintiff insisted that the defendant should try it again, and agreed that “if it did not run satisfactorily, they would take the car back and make some satisfactory adjustment with the defendant,” and that, relying upon this agreement, the defendant, after another unsuccessful effort to use the car, “finally delivered it back to the plaintiff, and they now have it.” What the defendant here calls an agreement to rescind is too vague, uncertain, and indefinite to be enforceable. On the contrary, it affirmatively appears from the answer and the proffered amendments that the minds of the parties failed to meet, for neither could know what were the obligations of himself or the other under such agreement. A rescission fully executed, by which the vendee surrenders the property to the vendor and the vendor cancels the obligations of the vendee for the purchase-money, is valid, and binding on the parties (Barnett v. Terry, supra; Daniel v. Burson, supra; Steen v. Harris, supra); but as indicated above, it should appear in the plea, at least by implication, that the alleged rescission had this effect. If there may be such a thing as a pro tanto rescission, the plea in this case fails to show to what extent the obligation to pay the purchase-money was extinguished. If the defendant could claim the value of the car in the hands of the plaintiff, as a credit or an extinguishment- to that extent of the remainder of the unpaid purchase-money, this does not strengthen the defendant’s position, for the reason that elsewhere in his answer he alleged that the automobile was worthless.

The facts as the defendant has stated them do not show an agreement to rescind the contract of sale, and thus to extinguish the defendant’s obligation for the purchase-money, but merely a promise on the part of the plaintiff that it would reacquire the property upon terms as to which the parties have reached no agreement. There was no sufficient defense of a mutual rescission, either in the original answer or in the answer and the amendments taken together.

Nor can the averments which we have discussed in the preceding division of this opinion be considered a sufficient plea of accord and satisfaction. “Where accord and satisfaction is pleaded in bar to a suit based on the original cause of action, it must appear that the accord has been fully executed.” Accord executed is satisfaction; accord executory is only substituting one cause of action in the room of another, which might go on to any extent. Every accord ought to be full, perfect, and complete; for if divers things are to be performed by tire accord, the performance of part is not sufficient, but all ought to be performed. If the thing is to be performed at a day to come, tender and refusal is not sufficient, without actual satisfaction and acceptance. To be good, the accord must be fully executed; execution of part and tender of performance of residue is not sufficient. As long as the accord is executory, although it is partially performed, the original cause of action is not extinguished. Such was the language of the Supreme Court in Long v. Scanlan, 105 Ga. 424 (2), 426 (31 S. E. 436). See also Kennedy v. Maddox, 15 Ga. App. 684 (1) (84 S. E. 153). What we have said above as to the indefiniteness of the plea as one of rescission applies as well if it be treated as a plea of accord and satisfaction.

We think that the original answer sufficiently set forth the defenses of fraud and failure of consideration as to the suit as originally framed, but it is unnecessary to decide whether it did or did not, in the view which we take of the case as a whole. Treating the plea as being sufficient at the time it was filed, as against an oral motion to strike, it could not be rendered bad by a subsequent amendment to the plaintiff’s petition. The failure of a defendant to answer an amendment to the petition does not authorize the court to treat the allegations in the amendment as being admitted. Hudson v. Hudson, 119 Ga. 637 (4) (46 S. E. 874). While a defendant may file an answer to an amendment to the petition, admitting or denying material allegations in the amendment, or stating why he can neither admit nor deny them, he is not required to make answer to an amendment. Brown v. Atlanta, Birmingham & Atlantic R. Co., 131 Ga. 259 (1) (62 S. E. 186). See further, on this subject: National Pencil Co. v. Pinkerton’s National Detective Agency, 19 Ga. App. 429 (1), 432 (91 S. E. 432); McElmurray v. Blodgett, 120 Ga. 9 (2) (47 S. E. 531); Miller v. Georgia Railroad Bank, 120 Ga. 17 (3) (47 S. E. 525); Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (6), 707 (50 S. E. 1008); Watson v. Barnes, 125 Ga. 733 (1) (54 S. E. 723); Brown v. Tomberlin, 137 Ga. 596, 600 (73 S. E. 947).

The mere fact, therefore, that the plaintiff amended its petition, setting up a sales contract containing a stipulation which would exclude the defenses of fraud'and failure of consideration, would not have authorized the court to strike the original plea. Whether sucli contract existed as alleged in the plaintiff’s amendment would ordinarily be a matter oí proof, with the burden upon the plaintiff. If such contract was executed and contained the stipulation that the vendor did not warrant the property in any manner except as to title, the defenses set up in the original plea would be excluded; but the defendant must in some way be committed to such contract before he is estopped to rely on such defenses. If he is so committed only in the evidence, the plaintiff can only take advantage of the fact by invoking a ruling upon the evidence, and not by a motion to strike the plea. We think, however, that the first amendment which was offered to the defendant’s answer in this case contained an admission of the execution of the contract set forth in the amendment which had been allowed previously to the plaintiff’s petition. While, as stated above, the defendant was not required to answer the amendment, if he did so he is bound by any admission which he may have made of any facts therein alleged. Raleigh & Gaston R. Co. v. Pullman Co., supra. As is shown in the statement of facts, the defendant in the first of his proffered amendments several times admitted the execution of the contract. He does not make specific reference to the plaintiff’s amendment, but we think no other inference is reasonably possible than that the contract referred to in the tendered amendment to the answer was the contract set forth in the plaintiff’s amendment.

The word “the” is a definitive, and is commonly used before nouns which are specific or understood. As used here it was indicative of something already before the court in the pleadings. The only contract which had thereto been referred to was that alleged in the plaintiff’s amendment. Necessarily this is the contract whose execution the defendant in one of his amendments admitted.

But the amendments, having been rejected, never became a part of the original plea so as to render it bad as a whole and subject to a motion to .strike (compare Hicks v. Beacham, 131 Ga. 89 (2) (62 S. E. 45); Griffin v. Russell, 144 Ga. 275 (2) (87 S. E. 10, L. R. A. 1916F, 216); Pollard v. Blalock, 147 Ga. 406 (2) (94 S. E. 226)); and yet if they had been allowed, as the defendant insisted in the court below and insists here they should have been, the plea as a whole, by reason of the averments referred to in the amendment first offered, would at once have been subject to such motion. The proffered amendments are now before us as a part of the record, and, construing them and the original answer together, no defense whatsoever was set forth as against the amended petition.

While it was error to strike the plea as originally filed, it appears from the record that the correct legal result was reached, and the defendant was not harmed by the improper method adopted in attaining it. Giving to the defendant the benefit of everything pleaded and of everything which he offered to plead, a finding is demanded in favor of the plaintiff for the amount sued for. It follows that the action of the court in directing such finding should not be reversed because of the error to which we have referred. See Norris v. Rawlings, 138 Ga. 711 (3) (76 S. E. 60).

Our decision necessarily involves a holding that the defendant’s first amendment should be construed as admitting the execution of the contract set up by the plaintiff’s amendment to the petition.

Judgment affirmed.

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


text:
    15319.
    WALKER v. JENKINS.
    1. “The objection that an action is prematurely brought can be raised only by a timely formal plea in abatement, or, if the defect appears on the face of the pleading, by a special demurrer Ifiled at the first term. Realty Company v. Ellis, 4 Ga. App. 402 (61 S'. E. 832), and eit.; Jester v. Bambridge Bank, 4 Ga. App. 469.” Gate City Fire Insurance Co. v. Thornton, 5 Ga. App.'585 (1) (63 S. E. 638). Furthermore, where an employee is wrongfully discharged before' the end of his term, and elects to sue for a breach of the contract of employment, he may do so immediately and claim any special injury which he may have sustained in consequence of such breach. Citizens Bank of Adrian v. Southern Securities Co., 143 Ga. 101 (1) (84 S. E. 565); Civil Code (1910), § 3588. In such an action the measure of damages is the actual loss from the breach of the contract, and in estimating the amount all facts down to the time of the trial may be considered. Roberts v. Crowley, 81 Ga. 429 (3) (7 S. E. 740). It does not appear from the petition in this ease that the action was prematurely brought.
    2. The contract shown by the petition in this case was one establishing the relation of principal and agent, and containing mutual obligations of the signatory parties. It was agreed therein that the selling agent would “devote his time during period specified in selling” named articles of the manufacturer “on terms and at prices” to be fixed by the manufacturer, and that the latter would pay the selling agent, “on the first of each month after orders sold have been shipped, 15% gross commission on all sales.” These stipulations, together with the contract as a whole, sufficiently disclose the appointment of an agent, the terms and conditions of the agency, and the compensation to be paid by the principal for the agent’s services. The contract was not unilateral, and was a binding and enforceable agreement between principal and agent. American Agricultural Chemical Co. v. Rhodes, 139 Ga. 495 (1) (77 S. E. 582) ; Palmer Brick Go. v. Woodward, 138 Ga. 289 (1), 294 (75 S. E. 480); Happ Bros. Go. v. Hunter Mfg. Go., 136 Ga. 671 (1) (71 S. E. 1099); Phares v. Stover, 136 Ga. 843 (1) (72 S. E. 344); Fontaine v. Baxley, 90 Ga. 416 (1), 425 (17 S. E. 1015) ; Oooley v. Moss, 123 Ga. 707 (2) (51 S. E. 625) ; Suñndell v. First Rational Bank, 121 Ga. 714 (1) (49 S. E. 673); Pacific Mutual dec. Go. v. Oaraker, 31 Ga. App. 707 (121 S. E. 876); Anderson v. Mangham, 32 Ga. App. 152 (123 S'. E. 159).
    3. The clause of the contract that the selling agent “is to pay his own expenses and to work the described territory as he may choose and at his own risk and liability” does not nullify the stipulation that the selling agent “will devote his time during period specified in selling” the manufacturer’s products, but only has reference to the methods to be employed by the agent in effecting sales, including his itinerary, the persons upon whom he would call and other details in connection with the solicitation of orders, and to the fact that he must bear all expenses, and cannot reasonably mean that he could have chosen whether or not he would work at all.
    4. In a suit by an agent or employee for damages resulting from a wrongful discharge by the principal or employer, “if there are mitigating facts, such as that earnings were realized, or might have been, between the wrongful dismissal and the end of the term, this is matter of defense.” Ansley v. Jordan, 61 Ga. 483; Phillips Lumber Go. v. Smith, 7 Ga. App. 222 (3), 224 (66 S. E. 623). See Mendel v. Converse, 30 Ga. App. 549 (5) (118 S. E. 586); Southern Upholstering Go. v. Lieberman, 27 Ga. App. 703 (4) (109 S. E. 509).
    5. Where'one is employed to sell goods on commission, and the contract of employment is breached by the employer, and the salesman sues for damages alleged to consist in the loss of profits which he would have earned directly under the contract but for its breach, the petition will be held good on demurrer, if it furnishes reasonable data for computation and the loss is such as must have been within the contemplation of the parties when entexfing the contract. Damages which are the legal and natural result of the breach are not necessarily too remote to be recovered merely because they may be to some extent contingent. The petition set forth a cause of action, and therefore was not subject to the general demurrer.
    6. Paragraph 27 of the petition, which alleged that “petitioner shows that his traveling and other expenses during said five months would not have exceeded the sum of $600,” was not subject to demurrer on the ground that “it was speculative and not based on facts.” The plaintiff alleged positively that this would have been his expense, and it cannot be said that there is any element of speculation therein.
    7. The petition, however, in alleging that the plaintiff’s sales for the period of his contract remaining after his discharge would each month liave increased' to tlie extent of 25 per cent, over tlie sales of the preceding month, improperly introduced an element of uncertainty and speculation as to the corresponding increase in the profits which he would have realized under the contract, which rendered the allegations of paragraph 20, so far as they related to such increase, subject to the objection raised by the demurrer that the alleged damage was speculative, prospective, and not.capable of either accurate or just ascertainment. If this defect in the petition may not be cured otherwise so as to meet the demurrer, it may be done by proper allegations for the recovery of lost profits on the 'basis of sales made during the time in which the plaintiff was actually employed.
    Decided April 24, 1924.
    Action on contract; from Fulton superior court — Judge Humphries. December 12, 1923.
    W. M. Jenkins sued George W. Walker, trading as the Metallic Casket Company, for damages on account of an alleged breach of a contract between them, which was as follows:
    “State of .Georgia, Fulton County. — This contract made in duplicate this September 11, 1919, for a period of one year from date, between W. M. Jenkins, selling agent, on commission, and the Metallic Casket Company, manufacturer.
    “It is agreed W. M. Jenkins will devote his time during period specified in selling the caskets and other "articles listed by the Metallic Casket Company, on terms and at prices named by the Metallic Casket Company. It is agreed that the territory to be traveled by W. M. Jenkins shall be the State of Florida and Southern Georgia, and as far north as So. Ry., A. & W. P. to Newnan. It is further agreed that W. M. Jenkins is to pay his own expenses and to work the described territory as he may choose and at his own risk and liability. Expense money for two weeks to be advanced. The Metallic Casket Company agrees to pay W. M. Jenkins on the first of each month after orders sold have been shipped 15% gross commission on all sales of caskets, and 15% commission on all sales of cloth, handles, etc. It is agreed W. M. Jenkins shall receive commissions on all others [orders?] shipped into said territory by the Metallic Casket Company during the term of this contract.” Signed by the parties.
    It is alleged that the plaintiff sales agent began promptly to perform his duties and obligations under the contract; that he traveled from month to month in the territory assigned to him, and, by personal interviews and by correspondence, diligently developed and built up a constantly growing trade therein, and with such signal success as to gain cordial recognition and commendation from the defendant; that on April 9, 1920, after the contract had been in force for approximately seven months, defendant, without any previous intimation, informed petitioner that he had no further need for his services, defendant stating at the time that he had discontinued the manufacture of caskets, closed down his factory, and sold his business to other parties; and that thereby the defendant breached his contract to petitioner’s injury and damage. The petition further alleges, that at the time plaintiff entered defendant’s service defendant had recently completed and was just commencing the operation of his factory; that defendant was wholly unknown as a manufacturer of caskets in the territory assigned to petitioner, and that defendant proposed to introduce and sell a new casket, to wit: “Gleason’s Metallic Casket,” which was wholly unknown to petitioner’s trade, and that by reason of this fact it was necessary for the plaintiff to do a great amount of preliminary work in order to promote and develop trade for a new and unknown company which was handling a new and unknown product as its principal line of business; and that, therefore, it required a period of some three to four months for petitioner to get a substantial start, with sales in his territory; that from September 11, 1919, the day he commenced business, until December 6, 1919, the sales and shipments into his territory aggregated approximately $3,994.50; that during the period between December 6, 1919, and December 13, 1919, they amounted to approximately $2,283.90; that during the Christmas holidays season, from December 13, 1919, to January 3, 1920, they totalled approximately $647; so that during the first three months and three days of his contract the total sales and shipments into his territory were approximately $6,923.40; that from January 3 to February 6 they aggregated approximately $2,596.55; from February 6 to March 6 approximately $3,850.25, being an increase of 50 per cent, over the January sales; from March 6 to April 9 approximately $5,-680.80, being an increase of approximately 50 per cent, over his February sales; thus that for the period of three months and six days from January 3, 1920, to April 9, 1920, the date when, it is alleged, the contract was breached, the sales and shipments into his territory aggregated approximately $12,127.60; that dividing the time he actually worked into two periods of approximately three months each, petitioner’s sales during the second three months exceeded the first three months by more than 100 per cent., and his sales for January, February and March, 1920, month by month, exceeded each previous month’s sales- approximately 50 per cent.
    In paragraph 26 it is alleged that if the defendant had permitted plaintiff “to go on with his work during the five months remaining under the terms of his contract, he could and would have maintained as a minimum increase 25 per cent, each month over each previous month; that is to say, that had he been permitted to continue the performance of his contract to the date of its termination, petitioner’s sales for the month of April would have aggregated as a minimum $7,101.00; and for the month of May $8,-876.25; and for the month of June $11,095.31; and for the month of July $13,869.18; and for the month of August $17,336.47; and your petitioner would and could have earned as commission during the five months remaining of his contract the gross sum of $8,-741.73, or 15 per cent, on $58,278.21, the aggregated estimated sales for the five months.” In paragraph 27 it is alleged that “his traveling and other expenses during said five months would not have exceeded the sum of $600,” leaving “a net profit of $8,141.73, being the amount of damages suffered by petitioner”' as a result of the defendant’s breach of the contract.
    The defendant demurred to the petition generally: (1) because it set forth no cause of action; (2) because the alleged contract sued on is unilateral, is not binding on either party thereto, and is unenforceable in law, in that plaintiff in said contract does not bind himself to work and sell the articles enumerated therein, nor does defendant obligate himself to manufacture and ship them; (3) plaintiff seeks to recover damages for a breach of an alleged contract of employment, and does not allege that he .sought employment elsewhere without success, or that he did anything required of him under the law to reduce the damages alleged to have been sustained, or that he had or had not actually earned anything during the period from the date of the alleged breach to the termination of the alleged contract. The defendant demurred specially to the paragraph alleging what would have been the plaintiff’s expense in carrying out the contract, on the ground that it was speculative and not based on facts; and to the paragraph as to the commissions the plaintiff could and .would have earned by sales between the date of the breach and the termination of the contract, on the ground that “the allegations contained therein are purely speculative, prospective and not capable of either accurate or just ascertainment.” The demurrer was overruled and the defendant excepted.

      George F. Gober, B. K. Johnston, for plaintiff in error.

      Austin & Boykin, contra.
   Bell, J.

(After stating the foregoing facts.) Only the fifth and seventh headnotes require elaboration. Where a contract of the character set forth in the statement of facts is breached by the employer, and the salesman sues for damages alleged to consist in the loss of profits which he would have earned directly under the contract but for its breach, the petition will be held good on demurrer if it furnishes reasonable data for computation, and if the loss is such as must have been within the contemplation of the parties when entering the contract. Damages which are the legal and natural result of the breach are not necessarily too remote to be recovered merely because they may be to some extent contingent. Civil Code (1910), §4394; Baldwin v. Marqueze, 91 Ga. 404 (3), 411 (18 S. E. 309); American Chemical Co. v. Rhodes, 139 Ga. 495 (2) (77 S. E. 582); Gore v. Malsby, 110 Ga. 893 (3) (36 S. E. 305); Fontaine v. Baxley, 90 Ga. 416 (5) (17 S. E. 1015); Stewart v. Lanier House Co., 75 Ga. 582 (1); Western Union Telegraph Co. v. Fatman, 73 Ga. 285 (4); Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483 (2) (60 S. E. 279); Tygart v. Albritton, 5 Ga. App. 412 (1) (63 S. E. 521); McIntosh v. Patton, 12 Ga. App. 305 (3) (77 S. E. 6); Mimms v. Betts Co., 9 Ga. App. 718 (1) (72 S. E. 271).

Where an agent selling on commission undertakes the sale of an article which is new to the trade, and which is being marketed by a manufacturer previously unknown, and actually solicits and obtains orders for such an article for a period of several months under a yearly contract, and where, the employer then breaches the contract approximately five months before its termination, the sales made during the period of time in which the salesman was actually employed may furnish a reasonable basis for estimating the profits which he would have realized under the contract during tbe remainder of the term, provided the loss thereof arose naturally and according to the usual course of things and is such as the parties contemplated or reasonably might have anticipated when the contract was made, as the probable result of its breach. Civil Code (1910), §§ 4394, 4395; Baldwin v. Marqueze, supra; Chappell v. Western Railway of Alabama, 8 Ga. App. 787 (1) (70 S. E. 208). A salesman after working a certain territory for a considerable period may, in the absence o£ a change in conditions, reasonably anticipate that at least for a limited time in the future his sales may be measured by what he has done in the past. His efforts have resulted ’in sales in the past. Nothing else appearing, it is reasonable to assume that with the same efforts his sales will continue generally throughout the territory, within the period of ordinary human foresight, in the same volume. He cannot anticipate or allege that he might have made sales to any particular person or persons, for in the very nature of the business his orders will be received at uncertain times and from uncertain persons in his territory, depending on his diligence, competition, and other contingencies. The results of his efforts in the past will be some assurance of what he might accomplish in the future. We think that the petition was good as against a general demurrer, inasmuch as the damages which the plaintiff alleged included those which he might properly have laid on the basis of the profits which had been realized by him during the period of the contract in which he Was actually employed.

We think, however, that paragraph 26 of the petition was subject to the special demurrer interposed. In this paragraph it is alleged that the plaintiff’s sales for the first month after his discharge would have exceeded those of the last month of his employment to the extent of 25 per cent., and that the sales of each month after his discharge would to the same extent have exceeded those of the preceding month. We think that the petition does not allege sufficient facts to warrant these conclusions as to the increase in the sales, but that here an element of uncertainty and speculation is improperly introduced into the computation of the damages claimed, and thus that the allegations of this paragraph, so far as they aver the corresponding increase in the profits which the plaintiff would have realized, are subject to the special demurrer that the alleged damage was speculative, prospective and not capable of either accurate or just ascertainment. If the contract had been for a longer period, two years for instance, could the plaintiff claim that his sales and commissions would have increased in the alleged geometrical progression to the end of the term? Such a position would be utterly unreasonable, and the declaration does not disclose with sufficient certainty that such increase would have occurred during the approximately five months of the term which remained after his discharge. The reason for the increase in sales as limited by the petition is not such as to justify the conclusion drawn by the plaintiff in respect thereto. In our opinion, the averments in regard to such increase in the sales and resulting commissions during the time subsequent to the plaintiff’s discharge are insufficiently supported by alleged facts, under the ruling of the Supreme Court in American Chemical Co. v. Rhodes, supra, to the effect “that claims of damage under breach of contract that are speculative in character and that are incapable of reasonably exact computation cannot be the basis of a recovery; the mere opinion of an agent selling on commissions, as to what, sales he could have made but for the breach of the contract, does not afford sufficient certainty to be the basis of a recovery in damages.” See also Savannah &c. R. Co. v. Bonaud, 58 Ga. 180 (2); Smalls v. Brennan, 14 Ga. App. 84 (80 S. E. 339); 13 Cyc. 49; 1 Sutherland Damages (4th ed.), 257, §69. But if the defect in the petition may not otherwise be cured, it may be done by proper allegations for the recovery of damages on the basis of commissions on sales during the period, or intervals thereof, in which the plaintiff was actually employed. The question whether he should or should not be absolutely limited to a recovery upon such basis is not presented for decision. What we do rule is that the facts as now alleged in the petition fail to show that he is entitled to recover for the increase of commissions which it is averred he would have earned during the period following the breach. Furthermore, all that we have said is intended to relate to the sufficiency of a pleading, and not to the requisite proofs to sustain it.

Judgment reversed.

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