text:
    14933.
    SOUTHERN TIMBER COMPANY v. BLAND.
    1. Land described in a deed of conveyance as being so many acres of a designated tract, viz., 170 acres, originally granted to Mary Price, is capable of definite ascertainment on identifying the 170-acre Mary-Price tract. Where two deeds of conveyance divided lands, and it appears that the Mary-Price tract, .conveyed by one of the deeds, abuts on the line between the lands divided, an identification of the Mary-Price tract would establish the dividing line as called for by the deeds.
    2. Where it is sought to establish the dividing line between two tracts of land by acquiescence of the adjoining landowners without reference to the line called for in the deeds of division, the line is not established as the dividing line in the absence of acts or declarations by the landowners of both tracts establishing it as the dividing line.
    3. In a suit in trover to recover timber cut and carried away by an adjacent landowner from lands described in a timber lease under which the plaintiff claims title, where the plaintiff’s title to the timber is dependent upon the falsity of the contention of the defendant that a dividing line between the two tracts of land had been .established by acquiescence for a period of more than seven years by former owners of both tracts, the line contended for by the defendant does not appear to have been acquiesced in by the plaintiff, or those under whom the plaintiff claims, and therefore is not established as the true dividing line, where it appears that the line contended for by the defendant, if it had ever been established, i;an through woods and was evidenced by indefinite markings, in the absence of any evidence that the plaintiff, or any of those under whom the plaintiff claims title, ever had any actual knowledge of the existence of such line or ever consented to it as the dividing line. Civil Code (1910), §§ 3821, 3822; Catoosa Springs Co. v. Webb, 123 Ga. 33 (50 S. E. 942).
    4. Knowledge by the plaintiff that a person claiming turpentine rights under a predecessor in title to the defendant, and also turpentine rights in the land on which the plaintiff claims the timber rights, had “cupped” the timber-up to the dividing line does not amount to acquiescence by the plaintiff in such line as the dividing line between the two tracts. Where, during the existence of the lease by which the plaintiff acquired the timber rights, notice was given to the adjoining landowners under whom the plaintiff claims the timber rights that the defendant would have the property surveyed to determine the dividing line between the tracts, and where the owners notified paid no attention to the notice, this conduct of the owners, even assuming that it could amount to an acquiescence by them in the lino run by the defendant when making such survey, could only amount to an acquiescence from the time of the survey in the line surveyed as the dividing line, and could not affect any rights of the plaintiff, under the timber-lease, in the land to which the plaintiff’s lessor actually had title at the time of the making of the lease. Besides, such survey was made in the year 1918, and has not been acquiesced in for a period of seven years.
    5. A petition in a suit in trover impliedly alleges the plaintiff’s damages in the amount of the value of the property sued for. Pitts & Son Co. v. Bank of Shiloh, 20 Ga. App. 143 (2) (92 S. E. 775). A plea denying generally tlie allegations of the petition is therefore a denial of the plaintiff’s right to recover in the amount sued for, and therefore necessarily presents an issue, not only as to the plaintiff’s right to recover, but as to the amount of the plaintiff’s damage. Civil Code (1910), § 5636. It follows, therefore, that in a suit in trover to recover for timber cut and carried away by the defendant, evidence tending to prove the amount of the plaintiff’s damage, as provided in the Civil Code (1910), §4515, where the defendant was an unintentional and innocent trespasser and converted the timber bona fide under a claim of title, was properly admitted under the defendant’s plea of general denial. The statement in Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (63 S. E. 270), to the effect that such a defense should be specially pleaded, is obiter.
    6. This being a suit in trover wherein the plaintiff seeks to recover the value of certain timber alleged to have been cut and carried away by the defendant from land in which the plaintiff owns the timber rights under a lease from the owners of the fee, who hold under a deed made with reference to a certain conveyance under which they claim title, the lands described in which are capable of definite ascertainment, and it not appearing that a proposed land line contended for by the defendant, the establishment of which would defeat plaintiff’s title to the timber, had ever been legally established as against the plaintiff’s rights, and the plaintiff’s title to the timber being therefore established, the evidence did not authorize the verdict found for the defendant. It was therefore error to overrule the plaintiff’s motion for a new trial.
    Decided September 19, 1924.
    Trover; from Liberty superior court — Judge Sheppard. June 30, 1923.

      Oliver & Oliver, 8. B. Brewton, for plaintiff.

      B. A. Way, O. L. Cowart, for defendant.
   Stephens, J.

The headnotes need no elaboration. The record shows the following: On June 3, 1890, Angus M. Lang, desiring to divide certain property belonging to him, executed two deeds of conveyance, one of which conveyed part of the land to the Daniel children, who were children of a deceased daughter, and the other of which conveyed the other part of the land to Isabella Augusta Eogers, a living daughter. The deed to the Daniel children contained the following description: "All that tract or parcel of land situate, lying and being in the said county of Liberty, State of Georgia, originally granted to Jacob Delk, May 9, 1839, containing one hundred and ninety-five acres, also all that other tract or parcel of land situate, lying and being in said county and State, originally granted to Fleming Terrell, December 28, 1847, and containing one hundred and fifty acres, except .one hundred and thirty-nine acres cut off said original tract for W. G. Sheppard, the part of the tract therein conveyed being 111 acres, together with all the rights and privileges thereunto belonging, forever in fee simple.” The deed to Isabella Augusta Rogers contained the following description: “All that tract or parcel of land situate, lying and being in said county of Liberty, State of Georgia, containing four hundred and eighty (480) acres, one hundred and seventy (170) acres of which was originally granted to Mary Price; the rest of said four hundred and eighty (480) acres known as the Sloan survey and Samuel Delk survey, and bounded north by land this day conveyed to Janie, Ann Eliza, Maud and Cleburne Daniel, grandchildren of said Angus M. Lang, south by lands of Capt. E. P. Miller, east by lands of Sam Eraser, and west by lands of Wheeler and J. R. Martin; together with all the rights and privileges thereunto belonging, in fee simple.”

Afterwards, on January 35, 1904, the Daniel children conveyed the timber rights in their land for a period of ten years, with the right of renewal for a further period of ten years, to the Hilton & Dodge Lumber Company, describing the lands therein as follows: “two tracts of land — one known as the Shaw tract and the other known as the Delk tract; the two tracts containing three hundred and six.(306) acres, and bounded as follows: north by lands of William Sheppard, east by lands of Millard Rogers and Edmund Daniel, south by lands of J. R. Martin, and west by lands of J. R. Martin.”

This timber lease was afterwards renewed to the plaintiff, the Southern Timber Company, who it seems had succeeded to the rights of the Hilton & Dodge Lumber Company. The renewal contracts were dated March 30, 1917, as to three of the Daniel children, and February 3, 1919, as to one of the Daniel children. Both of these renewal contracts, which were executed by all the Daniel children, referred, for a description of the land, to the lease made to the Hilton & Dodge Lumber Company, January 35, 1904. The defendant, J. Morgan Bland, is the successor in title to Isabella Augusta Rogers.

The present litigation arises out of a dispute between the plaintiff, the' Southern Timber Company, and the defendant, J. Morgan Bland, over the dividing line between the two tracts of property. The plaintiff is suing the defendant in trover to recover the value of timber cut by the defendant, which the plaintiff alleges and claims was cut from the land described in the plaintiff’s timber lease, to which timber the plaintiff claims title. Eecognition of -the line claimed by the defendant as having been established by acquiescence for a period of more than seven years by the landowners of both tracts would give to the defendant title to certain of the land comprised within the description of the Daniel deed from Lang, the timber rights to which had been conveyed to the plaintiff. The evidence adduced for the purpose of establishing the line by acquiescence is as indicated in the headnotes.

The verdict found for the defendant was necessarily based upon a finding that the line contended for by the defendant had been established by acquiescence as the dividing line between the two tracts of land. The dividing line between the two tracts as indicated in the descriptions in the deeds from A. M. Lang to the Daniel children and to Eogers is capable of definite ascertainment by identification of the Mary-Price tract. This line the surveyors found by reference to recorded deeds, including the deed to the Mary-Price tract. The evidence as to this is without dispute, and, upon the failure of the evidence to establish the line contended for by the defendant by acquiescence, establishes the line found by the surveyors as the true line, and establishes the plaintiff’s title to the timber sued for.

Judgment reversed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    15032.
    Comer Company v. Joyner.
   Stephens, J.

1. Where salt in sacks is stored in a house, evidence as to the deleterious condition of salt in one of the sacks is corroborative of evidence as to a similar deleterious condition of salt in every one of the sacks stored in the same place and under the same conditions and surroundings at a time several weeks prior thereto; the probative value of such evidence being for the jury.

2. This being a suit by the purchaser against the seller of such salt, to recover damages alleged to have been sustained by the plaintiff because some meat upon which the plaintiff applied the salt became spoiled as the result of the deleterious condition of the salt, and the evidence authorizing the inference that the salt, which was sold with knowledge by the seller that the purchaser intended to use it for the purpose of curing meat, was not suited for that purpose, and that, as a result of its use by the purchaser for the purpose intended, the meat became spoiled and totally unfit for use, to the damage of the purchaser in the amount found by the jury, the verdict found for the plaintiff was authorized.

Decided September 19, 1924.

Complaint; from city court of Sylvania — Judge Evans. August 27, 1923.

H. A. Boylcin, Powell & Morris, for plaintiff in error.

Overstreet & Overstreet, contra.

Judgment affirmed.

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


text:
    15051.
    Rutland et al. v. Parham.
    Decided September 19, 1924.
   Stephens, J.

1. A surety on a promissory note, given to the vice-president of a corporation for the purchase of shares of its stock, who claims to have been induced to execute the contract of suretyship by a false representation made to him by the payee of the note, who was the seller of the stock, that the corporation was not indebted in any substantial amount, fails to show such fraud as would invalidate the contract of suretyship, where it appears that the surety relied solely upon the statement of the payee of the note, and made no inquiry of the maker for whom he was becoming surety, who was present when the representation was made, and who was president of the corporation and in control of and managing its business, and who had access to its books. The surety thus had, through the maker, an obvious and easily available means of ascertaining the financial condition of the corporation, and the surety’s failure to make inquiry of the maker was such a negligent disregard of his own interests as would preclude him from asserting the alleged fraudulent representation of the payee as an inducement causing him to enter into the contract. Dortic v. Dugas, 55 Ga. 484 (6); Brooks v. Boyd, 1 Ga. App. 65 (57 S. E. 1093). Assuming that the maker had no actual knowledge of the financial condition of the corporation, the surety, who did not know this, was nevertheless negligent, as indicated, in failing to make inquiry, since his conduct in this respect is to be measured not by what information he would in fact have obtained, but by what was an apparently fruitful source of information. Besides, an inquiry of the maker, who was ignorant of the financial condition of the corporation, apparently would have elicited knowledge as to the financial condition of the corporation from the books accessible to the maker.

2. Applying the above rulings to the undisputed evidence in a suit by the payee of the note against .the sureties, where the only defense was that the contracts of suretyship were procured by fraud upon the part of the payee of the note, a verdict for the plaintiff was properly directed. Judgment affirmed.

Jenkins, P. J., and Bell, J., coneur.

Complaint; from city court of LaGrange — Judge Duke Davis. August 31, 1923.

Wyatt & Branan, W. E. Armistead, for plaintiffs in error.

L. L. Meadors, contra.


text:
    15067.
    Shearer v. Housch.
    Decided September 19, 1924.
    Trover; from Walker superior court — Judge Wright. August 21, 1923.

      Norman Bhattuclc, for plaintiff.

      Rosser & Bhaw, for defendant.
   Stephens, J.

1. A recorded contract of sale retaining in the vendor the title to “one Hanson Six Touring Car, Motor No. 7 W 8225, Serial No. 1504,” does not constitute constructive notice of the retention of title to one Hanson Six Touring Car, Motor No. 82225, serial No. 1504, in the absence of any evidence otherwise indicating that the two descriptions applied to the same ear, and where it appears that the only method of distinguishing one Hanson Six Touring Car from another is by both the motor number and the serial number.

2. In a suit in trover, for the alleged conversion of “one Hanson Six Touring Car, Motor No. 7 W 8225, Serial No. 1504,” to which the plaintiff claimed title under a retention-of-title contract of sale, where the evidence showed that the car converted was in fact the ear sued for, being the ear bought by the defendant from the plaintiff’s vendee, but was one Hanson Six Touring car, Motor No. 82225 (not 7 W 8225), and serial No. 1504, the record of the contract did not constitute constructive notice to the defendant of the plaintiff’s retained title in the car; and there being no evidence otherwise that the defendant had notice of the plaintiff’s title, the direction of a verdict for the defendant was not error.

Judgment affirmed.

Jenkins, P. J., and Bell, J., coneu/r.


text:
    15073.
    Wise v. Hall.
   Stephens, J.

Where notes given for a balance of purchase-money due for land were, in a subsequent transaction, taken up by another person, who made a partial payment upon the purchase price and gave his own notes to the vendor for the balance .due, in lieu of the original notes, and thus established himself as the purchaser of the land in the place of the original purchaser, and where thereafter, in a suit in equity, the original purchaser, who was the maker of the original notes and retained possession of the land, attacked the transaction in which the notes were substituted, as being.a fraud upon her, and obtained a favorable adjudication therein, establishing her right as purchaser and decreeing that, upon a payment by her, within sixty days, of the unpaid purchase-money due on the original contract with the vendor, a deed conveying the land should be made and delivered to her, she could not, after a failure to thus avail herself of her right to obtain a deed to the land upon a payment by her within sixty days of the amount decreed, retain possession of the land and defend a suit against her by the holder of the title to the land, for the unpaid amount thus decreed as due by her on the purchase-money, upon the ground of the alleged validity of the transaction by which another person was substituted for her as purchaser of the land, and which in her suit had been attacked and decreed to be invalid as against her. While her failure to avail herself of her right, under the decree, to obtain a deed to the land by a payment of the unpaid purchase-money within the period of sixty days perhaps amounted to a waiver by her of her right to purchase the land, her continued possession of the land estopped her from setting up such a waiver in her favor. She could not retain possession of the land and at the same time refuse to pay for it, and,' since the amount claimed by the holder of the legal title as due by her on the unpaid purchase money had been determined in a suit to which she was a party, she could not dispute either the amount sued for of her liability therefor. A verdict for the plaintiff was properly directed. Judgment affirmed.

Decided September 19, 1924.

Complaint; from Walker superior court — Judge Wright. August 25, 1923.

STATEMENT BY STEPHENS, J.

Missouri Wise bought certain land from T. L. Williams, and gave purchase-money notes therefor and took a bond for title. Subsequently, being unable to meet her payments, she arranged with her brother, Pryor Walker, to come to her assistance. With her consent he gave his own notes to Williams, taking up the notes given by Mrs. Wise. Walker obtained the bond for title from Mrs. Wise, but whether she endorsed a transfer upon it does not appear. Walker, who had made a payment on the purchase price to Williams, transferred his so-called equity in the land to Hall & Evitt and delivered to them the Wise notes. Mrs. Wise, who had retained possession of the land, afterwards brought a bill in equity against Williams, Walker, and Hall & Evitt, in which she alleged that, by the transaction referred to, she had been defrauded out of her right to purchase the land, and she prayed that she be allowed to pay the balance due to Williams and obtain a deed to the land. A decree to this effect was awarded her, on condition that within sixty days she make certain payments ascertained as due to Williams. She failed to avail herself of this right, and in the meantime Williams made a deed to the land to Hall & Evitt upon their payment to him of the indebtedness represented by the Pryor Walker notes. Hall, as surviving partner, afterwards brought suit against Mrs. Wise upon the notes executed by her, and the suit was defended by her upon the ground that the notes had been paid by the substitution of the Pryor Walker notes and the payment of the latter by Hall & Evitt. A verdict for the plaintiff was directed for the amount which had been decreed as due by Mrs. Hall on the purchase-money as evidenced by her notes, less a small credit, and interest and attorney’s fees as provided in the notes, the last item not being disputed. To the direction of this verdict the defendant excepted.

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

Norman Shattuch, for plaintiff in error. Rosser & Shaw, contra.


author: . Jenkins, P. J. Bell, J.,

text:
    15076.
    CALLAWAY v. BARMORE.
    1. The evidence authorized the inference that the person who executed the alleged contract on behalf of the defendant had authority to execute it.
    2. The court committed error, under the peculiar facts and circumstances of this case, in charging the jury that if a certain instruction was in fact given by the defendant to the alleged agent, the relation of principal and agent, as a matter of law, arose between them when the latter proceeded thereunder.
    3. “Where one holds another out as his special agent, the principal is bound by the agent’s apparent authority to do the particular thing thus authorized, as well as to do any and all things usual and necessary, and to employ all usual and necessary means that may be reasonably required,_ in the due, proper, and ordinary performance of the particular purpose of the appointment.” The charges complained of in grounds 6 and 7 of the motion for a new trial were in accordance with this principle, and not erroneous.
    4. The court did not err in charging the jury that if they found that the plaintiff was entitled to recover any of the damages sued for, they might add interest thereto from the date of the breach of the contract, if they deemed it proper to do so, embracing the whole in one amount.
    5. The evidence authorized the verdict, and the judgment overruling the motion for a new trial is reversed solely because of the error pointed out in the second headnote and the corresponding division of the opinion.
    Decided September 19, 1924.

      Complaint; from city court of Atlanta — Judge Reid. September 15, 1923.

      Westmoreland & Smith, Frank A. Hooper & Son, for plaintiff in error.

      Hardwick & Jordan, contra.
   . Jenkins, P. J.

E. R. Barmore, a contractor and builder, brought suit in the city court of Atlanta against E. C. Callaway for the breach of an alleged contract whereby, it is averred, he was employed by the defendant, “acting through one H. K. Chapman, architect, to do certain construction work; namely, to underpin and support the east wall of what is knoAvn as the Clark property, situated at 23 E. Alabama street, Atlanta, Ga., for the purpose of safely holding said wall until the defective stone Avail should be removed and replaced. The portion of the said wall to be underpinned and supported was a section of tAventy-five feet, or such amount as to safely guard the division Avail during said removals ■ and replacements at this point. The price agreed upon for said work was $500.” The petition alleges that soon after the plaintiff entered upon the work the defendant stopped him and prevented his performance of the alleged contract, causing him the damage sued for. A verdict was found for the plaintiff, the defendant made a motion for a new trial, which the court refused, and he excepted.

It is vigorously maintained by the plaintiff in error that the verdict is without evidence to support it, because of the absence of any proof of authority in the architect Chapman to make the contract. The owners of the property in question were a Miss Clark and her sister, who lived in California. They were aunts of the defendant’s wife. He resided in Atlanta and, as a relative of the owners, was concerned in the protection of their interests, and while he would advise them, he Avas in no sense their agent. These facts are undisputed.

Chapman, the architect, sworn as a witness for the plaintiff, testified with reference to three separate conferences which he had with the defendant, Callaway, preceding his action in employing the plaintiff in the defendant’s name to do the work upon the wall. He said that at the first conference Callaway called his attention to the defective wall and asked him to go down and look at it, declaring to him at the time, however, that, while he, Calla-way, was interested in the owners, he was not their agent, had no authority to act as such, and that any contract would have to be made by B. D. Watkins & Company, the owners’ representatives. The second conference was after the witness had examined the wall and found it, as he said, in a dangerous condition. He testified that he reported this fact to Mr. Callaway and advised that it was “hazardous to leave that wall to stand in that shape,” but that Mr. Callaway requested him to go down and look at it again, in order to verify his opinion; and that at that time he called the plaintiff, Barmore, to meet him there. With reference to the third conference, the witness testified: “I then [after the second visit to the wall] went back and reported to Mr. Callaway that I was still of the same opinion, that the wall should be made safe as soon as possible, and Mr. Callaway told me at that time to have the wall jacked up and made safe, and then they would see how much would have to be replaced and what other work would have to be done on it.” Thereafter, without further communication with Callaway, Chapman proceeded to make the contract in his behalf upon which the plaintiff relies.

Other evidence of this witness was as follows: “He stated that his wife was a niece of Miss Clark, and he was interested in Miss Clark, but that Watkins Company were her agents here, to collect rents and look after the building, and for me to go and look at it and make an estimate, but Watkins would have to make the contract with me; but he told me not to see the Watkins people until I saw him and let him know what it was going to be.” “After I had reported to him exactly the condition of it he said, ‘Have it jacked up and made safe, held in place, and then we will see what can be done with it.’” Q. “He didn’t tell you to go out and make a contract with anybody else did he?” A. “Well, no contract had been made at that time.” “No, sir, he didn’t tell me, ‘Mr. Chapman, you get a contractor, go there and fix that wall, and make a contract with him.’” Q. “He never did authorize you to make that?” A. “He never authorized me to have that wall jacked up.” “He told me to have that-wall jacked up and made safe. He didn’t tell me to make a contract, or have a contract for it, because he left that in my hands. No, sir, he didn’t authorize me to make a contract with any contractor to jack up that wall.” The jury might have concluded from this testimony that while the defendant did not in terms authorize the witness to enter into a contract, he nevertheless instructed the witness to have the wall jacked up and made safe.

The defendant testified that he never instructed Mr. Chapman to make any contract about having the work done, and denied most positively that he directed him to have the wall jacked up and made safe. He claimed that Chapman solicited work and told him about the defective wall, and that he replied: “Mr. Chapman, I haven’t any authority to make any contract for the work. The agents are Watkins & Company, who have entire charge of Miss Clark’s' property, and they have asked me to look at the wall, and to advise with Miss Clark, so that I could advise Watkins & Company.” He testified that he promised merely to recommend Chapman for the job, and that he said to him: “You will have to make your ultimate contract with them [Watkins & Company], as I have no right or title in it, and have no right to make the contract;” that he tried “to make it plain,” and further said to Chapman: “If you will go down and look at the wall, you might see what you think it would cost, so that we can tell Miss Clark;” that thereupon Chapman went to examine the wall and reported its condition; that Chapman then asked if he should now go down and see Watkins & Company, to which the defendant replied: “No, you will lose time now, and might lose the job. I will tell you in ample time when to get in touch with them;” and that the most he ever said to Chapman was: “I am going to advise that that wall be jacked up if I never go any further with it. It is time for you to get busy.”

The defendant claims not to have had any further conversation with Chapman until the next day, when he found that Chapman had undertaken to contract with Barmore on his behalf. It appears that the contract was instantly repudiated, and that Barmore was required by the defendant to desist from its further execution.

The action is not founded upon the theory that the defendant undertook without authority to contract on behalf of the owners of the property. But the plaintiff is seeking to hold him to a contract which he is alleged to have made upon his own credit through his alleged agent Chapman. We think the evidence for the plaintiff was sufficient to authorize the inference that while Callaway at first did not intend to enter into any contractual relations either upon his own account or in behalf of the owners, desiring merely to become informed as to the condition of the property of his wife’s relatives, in whom he was interested, in order that he might advise them or their agents of any needed repairs, he nevertheless, finally, on being informed that the wall was in danger of collapsing at any time and was requiring immediate attention, concluded, in view of the emergency, to pledge his own responsibility to the extent of such temporary measures as would make the wall safe, after which such general and permanent repairs as the condition of the wall might require should be provided through Watkins & Company, whom he had mentioned at the outset as the only ones authorized to act for them. The evidence for the plaintiff warranted the conclusion that on account of his relationship to the owners and his solicitude for their best interests, he decided ultimately to employ his own credit toward guarding against the more serious losses which might result to them if the wall did not have immediate attention, taking the risk of reimbursement, or waiving it. If he told Chapman to have the wall jacked up and made safe, his declaration at the same time that he was unauthorized to act for the owners might perhaps,' under one view of it, even tend to strengthen the inference that he was acting for himself.

The conflict in the testimony as to whether he gave Chapman such directions was one of fact which, of course, has been settled in favor of the plaintiff by the jury, and by their solution of it, whatever may have been the actual truth, this court under the law is absolutely bound. The evidence was sufficient to authorize a finding that Chapman was empowered as the defendant’s agent to make the contract.

In one of the special grounds of the amended motion error is assigned upon the following charge of the court: “The plaintiff contends that the defendant gave directions to Mr. Chapman to have this wall referred to jacked up and made safe. If you believe that contention to be true, that would constitute Mr. Chapman the agent of Mr. Callaway, in so far as the subject-matter referred to was concerned.” It is insisted that even though the jury should have believed that the defendant directed Chapman to have the wall jacked up and made safe, it was still for them to determine whether under all the facts and circumstances such direction would constitute Chapman the agent of Callaway, with authority to make the contract in question; that is, to make a contract with another to do the work; that the charge erroneously authorized the jury to find from the evidence that Chapman was the agent of the defendant, although he was informed that the defendant would not make any contract in connection with the work on the wall, and that it contained an expression of opinion by the court as to what facts would constitute Chapman the agent of the defendant, when such question was one of fact to be determined by the jury.

We have seen that under the evidence given by the architect for the plaintiff the jury were authorized to find that the defendant told the architect to “have the wall jacked up and made safe.” But the question for our decision on the exception to the above-quoted excerpt from the charge of the court is not whether such statement was actually made, but, assuming, as we must,, that it was made, the inquiry is whether or not, under all the facts and circumstances of the case, the defendant must necessarily be taken to have been then and there acting for himself, or whether he may have been continuing to assume to act for his absent relatives while disclaiming any legal and binding authority so to do: The jury has never passed upon this phase of the case. The court decided this question in plaintiff’s favor as a matter of law. In other words, the effect of the instruction to the jury was that, no matter how plainly it might appear that the defendant had been assuming to act for his relatives and not for himself, while candidly stating that he was without legal authority to bind them, the mere giving of the direction'indicated authorized the architect to conclusively assume or presume as a matter of law that he thereby intended to impliedly revoke and withdraw all of his previous plain and positive inhibitions upon his personal liability; and that he must thereby have necessarily intended to impliedly assume to bind his own individual credit. In view of the fact that in all the previous conversations the defendant had made it unmistakably clear that he was assuming to act, though without legal authority, for the owners and not for himself, it is our opinion that the jury should, have been allowed to say whether the direction quoted should have impliedly authorized the architect to assume a “right about face” in all that the defendant had so plainly and so repeatedly emphasized relative to his own status and personal responsibility. The record shows that the premises belonged to non-resident relatives of the defendant’s wife; that, while the defendant disclaimed any sort of right or interest therein, he was nevertheless assuming to protect their interest; and that in doing so he candidly disclaimed any legal authority and plainly denied individual responsibility. It appears from the record that the architect, -under whose employment the plaintiff acted, had sought out the defendant for the purpose of obtaining employment for himself; that the defendant, on being thus solicited, called the architect’s attention to the building in question; and that the architect then reported to the defendant a need of emergency repairs. The architect swore: “Yes, he told me he would try to get the job for me, I had been doing work for him; he told me B. D. Watkins Company was agent for Miss Clark, that I would have to make my contract with them, that he was not the agent.” The evidence for the defendant was to the effect that the most he ever indicated was that he would consult with his relatives, “advise” having the work done, and try to “throw the job” to the soliciting architect. He swore that he in fact took it up with them by telegram. The architect’s own evidence, however, is such as to thus plainly indicate that the defendant had clearly let him understand that he was acting in the interest of and advising with his relatives. It thus indisputably appears that the architect, in soliciting work from the defendant, knew that, while he was dealing with one without any sort of personal interest or-legal authority in the subject-matter of the negotiations, he nevertheless dealt with him as one who was related to the owners, and who, as their relative, was assuming to protect their best interest in the emergency which the architect reported to be in existence. The architect could, if he chose, have thus relied upon the influence of the defendant with the owners in having them to approve and ratify his acts and conduct in having the emergency work done and in “throwing the job” to him. We believe, therefore, that, even accepting the evidence of the architect exactly as given, to wit, that Callaway finally told him to “have the house jacked up and made safe,” it was still a question for the jury whether he should be assumed to have thereby reversed everything he had hitherto plainly said respecting his own status, and to have thereby intended to impliedly pledge his own personal and individual credit; or whether, in view of the entire absence of any express assumption of personal liability, and in view of the previous conversations and all the surrounding facts and circumstances, this relative of the absent owners, though without personal interest or legal authority, was continuing to assume to protect their immediate interest and incidentally to “throw the job” to this particular architect.

The case of Raoul v. Newman, 59 Ga. 408, cited for the plaintiff in error, seems to be directly in point. In that case, as here, there could never have been any sort of possible question as to the defendant’s lack of authority (unless by an implied agency to procure necessaries for the injured child in the absence of the father) to bind any person for the services except himself, but in that case it was held that “the jury ought to consider all the circumstances, and determine whether the plaintiff believed, aird had a right to believe, that the defendant was offering his own credit,” when he, as the plaintiff did in this case, directed that the work be done. The instant case seems stronger for the defendant, for while here just as in that case no express pledge of the defendant’s credit is claimed, but only an implied. assumption of personal responsibility is contended for, yet in this case it indisputably appears that the defendant, though without personal interest or legal authority in the matter, had throughout the transaction made it known that he was assuming to act for and was advising with the owners. • It might possibly seem to the jury that, after having repeatedly made his status as a mere interested relative of the owners and friend of the architect absolutely clear, the architect should have received from the defendant something more definite than the one alleged implied, but vague and indefinite, assumption of personal liability. Of course, the defendant might have pledged his own credit for the benefit of his relatives and of his friend, but, in view of all the facts and surrounding circumstances, such an intention need not be necessarily assumed, even had the jury been permitted to pass upon that issue. Section 3613 of the Civil Code (1910) provides, that “all agents, by an express undertaking to that effect, may render themselves individually liable, and every agent exceeding the scope of his authority is individually liable to the person with whom he deals.” Here it is not sought to hold the defendant liable on account of any express personal undertaking, nor on account of having exceeded his legal authority, since it is conceded that he, as the friend and relative of the owners for whom he was assuming to act, disclaimed any such. It by no means necessarily follows that one cannot assume to act for and on behalf of another because of the fact that he expressly disclaims legal authority to bind him. Where a person does not actually pledge his own credit, and all the facts and surrounding circumstances are such as plainly to indicate that he has been assuming to act solely in the interest and for the benefit of another, the fact that he candidly disclaims all legal authority to bind the person in whose interest he may assume to act does not necessitate the conclusion that he must have acted for himself. As already stated, it was just as patent in the Raoul case as it is here that the defendant was without any sort of legal authority to bind any one for the services except himself, but since in that case, as here, he did not expressly bind himself, the court held that it was a question for the jury to determine, in view of all the surrounding facts and circumstances, whether or not he should have been taken to have actually intended to do so.

Mr. Mechem, in his valuable text-book on Agency, has this to say (§ 1370) : “Where agent disclaims present authority. If the doctrine of the previous section be sound, as it unquestionably is, then a fortiori will the agent not be liable where he expressly disclaims any present authority, and leaves the other party to take the chances. He may, of course, expressly undertake to procure authority or ratification, but such an undertaking would not be lightly inferred.” It might be contended that the authority just cited begs the question, for it purports to deal with a case where the agent disclaims authority. In reply, it might be asked, when is an agent not an agent ? When he disclaims any power as such. The above-quoted authority recognizes that despite such disclaimer he may nevertheless assume to act as agent, and that one dealing with such a person must depend at his peril upon the ratification of his conduct. Such might have been the opinion of the jury as to what the situation was in the instant case. An architect soliciting business for his own personal benefit and profit is told about a certain building belonging to absent relatives of the defendant, which might need attention. The defendant expresses his interest in the welfare of the architect and in the owners as his relatives, but disclaims any interest in the property and any authority to bind the owners. The architect reports back that an emergency exists; and the defendant, who has been assuming to act for the. owners, though disclaiming the legal authority of an agent, upon the emergency being reported tells the architect to “have the wall jacked up and made safe,” without any hint of express assumption of personal liability. Must the court hold as a matter of law that such an intention should be necessarily implied? How easy indeed it would have been for the architect, who throughout was acting in his own interest, to have inquired of 'the defendant, who had repeatedly disclaimed personal responsibility, if he thereby meant impliedly to take back all that he had previously emphasized and thus inferentially assume personal and individual liability. This was not done. It is merely assumed. In the absence of any express undertaking oh the defendant’s part, and in view of all the surrounding facts and circumstances, the jury should have been permitted to say whether the defendant was continuing to act, as he had hitherto assumed to act, for his absent relatives in the reported emergency, or whether he thereby intended to reverse his attitude and bind his individual credit for their benefit and for the benefit of his friends.

We are the more convinced of the correctness of this position for another reason. The architect, according to his own and the plaintiff’s theory of the case, was but a special agent authorized to do a particular thing on the implied responsibility of the defendant. “In special agencies for a particular purpose, persons dealing with the agent should examine his authority.” Civil Code (1910), § 3595. “Persons dealing with an agent for a particular purpose are bound to inquire as to the extent of his authority.” Harris Loan Co. v. Elliott &c. Co., 110 Ga. 302 (2) (34 S. E. 1003). Bearing in mind this elementary principle of law, we find that the architect testified as follows: “Acting under those instructions, if I can put it” that way, I received from Mr. Barmore an estimate in this shape, $500 minimum, that is all we could see at that time would have to be done there at least, of $500, and in case the entire wall would have to be removed, the maximum price would be $3,000. This was a little higher, more expensive than I thought it would be, and I knew Mr. Callaway didn’t think that the cost would be that high (italics ours), so that I would not close with Mr. Barmore at that time, telling him I would see Mr. Callaway, discuss the matter with him, and then let him know. I went back over to the coffin company the third time, but it was late in the afternoon then, and Mr. Callaway had gone, and I tried to locate him down at the town office in the Candler Building, and he was not there, hadn’t been there, so I didn’t get in touch with Mr. Callaway. I told Mr. Barmore I believed the claim — I believe Mr. Barmore called me up after I got home myself, and I told him I had not been able to get with Mr. Callaway to report this proposal, and for Mr. Barmore to hang up and let me call Mr. Calla-way at his apartment, which I did, and could not get that phone •to answer. I suppose Mr. Callaway was not there, and then in a few minutes Mr. Barmore called me up, and I stated to him that I had been unable to get Mr. Callaway, but he had given me instructions to have that wall made safe, and for him to go to work, and I would draw up a contract in the morning, the next morning (italics ours), to be signed by Mr. Barmore, and would have it ready for him, and to come around to sign that contract. Mr. Barmore hauled a good deal of blocks and tackle and stuff. I went over there and saw the pile when I was trying to stop the work the next day. I ihinlc I finally got in contact with Mr. Barmore the next day about twelve o’cloclc and stopped the work. [Italics ours.] As soon as Mr. Callaway and Mr. Johnson ordered me to have the work stopped, I notified Mr. Barmore’s men to stop and to tell Mr. Barmore not to proceed any further until we got together with Mr. Callaway on this proposition.”

It thus appears that, not only was the plaintiff chargeable with the duty of seeing that the architect, as the alleged agent of Calla-way, did not exceed his authority, but it appears that he was actually put on express notice that the architect agent was assuming to enter upon a contract which he himself thought was “a little higher and more expensive” than it should have been, and was certainly higher and more expensive than his alleged principal contemplated. In other words, the plaintiff is not only seeking to hold the defendant personally liable on an implied assumption of personal liability, despite all the surrounding facts and circumstances looking to the contrary, but would hold him on a contract the cost of which the architect himself thinks was to some extent excessive. The evidence authorized the inference that both the architect and the plaintiff knew the price was more than, under the plaintiff’s theory of the case, the defendant ever contemplated or intended he should be bound for. Can the agent bind his principal for a contract if both he and the plaintiff knew it was not contemplated or intended by his principal? The jury might have found that the plaintiff went forward with his eyes open, actually knowing that the architect agent was trying to bind the defendant to a contract which both knew exceeded anything which the alleged principal had' contemplated or intended. The architect had an interest in letting the contract, but as agent for the defendant he could not let his interest and his duty to his principal conflict. The explanation given by the architect for thus exceeding what the jury might have found was the extent of his authority was that the defendant was absent from his office late in the evening, presumably after office hours, and that he failed to get an answer to a telephone call at the defendant’s residence.

We do not go so far as to hold that the evidence demanded a finding either that Chapman exceeded his authority in regard to the price, if given the direction claimed, or that the plaintiff knew he was exceeding his authority if he did so. We have considered the evidence upon these questions merely as shedding light upon the question of whether the court erred in charging the jury that if Callaway told Chapman to have the wall jacked up and made safe, such direction, as a matter of law, would necessarily authorize Chapman to proceed as Callaway’s agent. We think the charge was error.

In ground 6 of the amended motion for a new trial error is assigned upon the following charge of the court: “But, if Mr. Barmore knew that there was a limitation upon the authority of Chapman as to fixing the price, he would be bound by such knowledge; and if he knew that there was a limitation upon the authority of Chapman in relation to fixing the price, if he knew before Chapman could fix the price that he must refer the question back to Mr. Callaway, then he would not have had the right to assume that Chapman had a right to fix the price, and Callaway would not be bound by any contract made by Chapman in excess of his actual authority, if Barmore knew what the actual authority was. To restate that again: if Callaway in fact gave Chapman authority to have the wall jacked up and made safe, that would carry with it-the authority to fix the price, and Bar-more had a right to assume that he had authority to fix the price. But if in truth Barmore knew that there was a limitation and that Chapman had no authority to fix the price, then Barmore could not act on the assumption that he did have the authority, but himself would be bound as well as Chapman by the limitation upon his .authority, if there was such; so that if Mr. Chapman had to refer the question of price back to .Callaway, and Barmore knew this, then he could not assume that Chapman had authority to fix the price, and the contract, if made, would not be binding on Callaway, if there was such limitation.” It is assigned that, the evidence being insufficient to authorize the finding that Chapman was more than a special agent, anjr limitation upon his authority would be binding on the plaintiff, even if he did not have knowledge thereof, and that the judge therefore illegally placed upon the defendant the burden of showing such knowledge before he could have advantage of his contention that even if Chapman was his agent, he was merely authorized to obtain estimates of the cost of the work and submit them to the defendant for approval before proceeding to contract.

The evidence did not establish that Chapman was more than a special agent (see First National Bank v. Nelson, 38 Ga. 391 (1), 401 (95 Am. D. 400); Foster v. Jones, 78 Ga. 150, 1 S. E. 275); and while it is provided in the Civil Code, § 3595, that “in special agencies for a particular purpose,, persons dealing with the agent should examine his authority” (see also Baldwin Fertilizer Co. v. Thompson, 106 Ga. 480, 32 S. E. 591; Harris Loan Co. v. Elliott &c. Co., supra; Thomas v. Bagley, 119 Ga. 778, 47 S. E. 177), it is also declared in the same code section that “the agency will be construed to include all necessary and usual means for effectually executing it,” and this latter provision is applicable as well to special agents as to general agents. See Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124 (45 S. E. 980). And so long as a special agent does not go beyond the necessary and usual means for executing his agency, his powers with reference to the particular undertalcing are in the nature of those of a general agent to the extent that private instructions or limitations not known to thé person dealing with him cannot affect them. “A principal is bound to the extent of the apparent authority he has conferred upon the agent, and not by the actual or express authority, where that differs from the apparent authority.” Turner v. Clark, 143 Ga. 44 (3), 46 (84 S. E. 116). See also Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (4) (50 S. E. 1008). “Where one holds another out as his special agent, the principal is bound by the agent’s apparent authority to do the particular thing thus authorized, and to employ all usual and necessary means that may be reasonably required, in the due, proper and ordinary performance of the particular purpose of the appointment. Civil Code (1910), § 3595.” Wise v. Mohawk Rubber Co., 23 Ga. App. 255 (98 S. E. 100). The instructions here considered were not erroneous for any reason assigned. What has been said will dispose of ground 7 of the motion for a new trial, wherein similar questions are raised by exceptions to a further extract from the court’s charge.

. While we have already stated our conclusions with reference to certain phases of the evidence, we will repeat, in this connection, that we do not think the evidence demanded a finding, although authorizing it, that Chapman exceeded his authority as to the amount he might agree to pay for the work, if he had the instructions claimed, although it is shown in his testimony that he thought that Barmore’s price was higher than Mr. Callaway would like. He hesitated to agree to Barmore’s figures, and, after receiving them, tried to get in touch again with Callaway before closing the contract, but, on failing promptly to do so, directed Barmore to go ahead. This evidence, while showing a preference on the part of Chapman.to obtain Callaway’s final approval, did not, as. a matter of law, demand the conclusion that he was bound to do so.

But even if it were otherwise, the verdict found for the plaintiff would not be illegal upon that ground, unless the evidence also showed conclusively (as it did not) that Barmore was put upon notice as to the special limitation upon Chapman’s authority having sole reference to the price.

Error is assigned upon the following charge of the court: “Under the law, then, you would have the right, if you think it is right to do so, to add a sum equivalent to interest at the rate of seven per cent, per annum from the date of the breach of the contract until this date. Under the law you would not be required to add this sum equivalent to interest, but you have a right to do so if you think'it is right. Your method of ascertaining this sum would be to calculate interest on the amount you think the plaintiff ought to recover from the date of the breach of the contract to this date.” It is contended that “said charge was error for the reason that, under the facts in this case, the plaintiff would not be entitled to interest upon the amount of his recovery, because the plaintiffs damages, if any, were unliquidated, and the amount uncertain. Movant contends that said charge was error for the further reason that the interest would not be computable from the date of the breach of the contract, as stated by the court, but would only run from the date when, under the contract, plaintiff would have received the contract price for the work in question.” While in actions for unliquidated damages interest is not recoverable eo nomine, it is not error,in such a case for the court to instruct the jury that if they should find that the plaintiff is entitled to damages, they may, if they see proper, add interest thereto and embrace the whole in one amount. This is true even in tort eases. Central Railroad v. Sears, 66 Ga. 499; Western & Atlantic R. Co. v. McCauley, 68 Ga. 818; Gress Lumber Co. v. Coody, 104 Ga. 611 (30 S. E. 810). “In all eases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time till the recovery” (italics ours). Civil Code (1910), § 4396. Whether such interest will be allowed or not is discretionary with the jury. This was recognized and observed in the charge.

The evidence authorized the verdict. The judgment of the trial court, overruling the motion for a new trial, is reversed solely for the error pointed out in headnote % and the corresponding division of the opinion.

Judgment reversed.

Stephens, J., concurs. Bell, J., dissents.

Bell, J.,

dissenting. I cannot agree to the ruling of the majority as contained in the 2d headnote and the corresponding division of the opinion, nor, therefore, to the judgment of reversal. The question is, if Callaway in fact directed Chapman to have the wall “jacked up and made safe,” did such direction, as a matter of law, establish the relation of principal and agent between them, when the latter proceeded thereunder, as the court in effect instructed the jury? In support of the negative of this question, the plaintiff in error cites the case of Raoul v. Newman, 59 Ga. 408. Raoul was the station agent of the Central Railroad at Macon. A negro boy 13 or 14 years of age was severely injured in the yards of the company’s warehouse. The father of the child was absent. Raoul called in Newman, a physician, and said to him: “Go ahead, do what you can for the boy.” New--, man rendered the services as requested and charged the same to Raoul. He subsequently sued Raoul and recovered. The Supreme Court, upon exceptions by the defendant, said: “It seems, moreover, to have been thought by the court that any employment of the plaintiff by the defendant, however it may have been intended and understood at the time, would render the defendant personally liable. This is not correct. The jury ought to consider all the circumstances, and determine whether the plaintiff believed, and had a right to believe, that the defendant was offering his own credit. If, in the presence of a great and overwhelming calamity to a human being, the defendant was merely acting for the absent father, and the plaintiff so understood it, the father would be liable for any necessary services rendered by the physician, and the defendant would not be liable for anything done by the physician after he became enlightened as to -the true situation. For coming to the spot when sent for by the defendant he would be entitled to a fair and reasonable compensation, if he came upon a bare message, without being advised of the circumstances under which itowas sent.”

In commenting upon this case in Green v. Coast Line R. Co., 97 Ga. 15, 36 (24 S. E. 814, 33 L. R. A. 806, 54 Am. St. R. 379), the Supreme Court said: “This court held that if there was a great and overwhelming’calamity to the child, rendering medical aid instantly necessary, the parent would be responsible as for necessaries, and Raoul would be treated as his agent to call the physician.” If the injured party had been an adult, and Raoul had called the physician just as he did, it would seem that in no view could he have been held liable for the physician’s services. See Norton v. Rourke, 130 Ga. 600 (61 S. E. 478, 18 L. R. A. (N. S.) 173, 124 Am. St. R. 187). In such a case, in the absence of an express contract, the physician should infer only that the call was one of humanity and not of a party offering to contract. As to who would be liable under such circumstances, see Cotman v. Wisdom, 83 Ark. 601 (104 S. W. 164, 12 L. R. A. (N. S.) 1090, 119 Am. St. R. 157, 13 Ann. Cas. 25).

In the case at bar, if Callaway said to Chapman, “Have that wall jacked rip and made safe,” his statement could not have been taken as a call of humanity, as in the Norton case; nor were there circumstances from which the law could imply an agency to act for another, as was true in the Raoul case; and yet Callaway was at all times stating that he had no authority as agent to bind the owners. In each of the cases just referred to there was some one else besides the speaker who could be held liable, — in the Raoul case the boy’s father, in the Norton case the injured party himself, he being an adult. Cotman v. Wisdom, supra.

If the evidence in the case now under consideration had authorized the inference that Callaway was the agent of Miss Clark and her sister, then the language ascribed to him could not have been held, as a matter of law (whether as a matter of fact), to have evidenced an intention to contract on behalf of himself rather than as the agent of the owners. But since every one concerned agrees that he was not the owners’ agent and did not presume to act as such, no other reasonable inference is possible to be drawn from such declaration by him, under the circumstances, if he made it, than that he intended to bind himself, and that for such purpose he nominated Chapman as his agent. Any other interpretation of the direction by Callaway to Chapman, if given as claimed, would, rinder the undisputed circumstances, have placed Callaway in the anomalous attitude of one who, though, declining to pledge his own credit in behalf of relatives of whose interests he was solicitous but for whom he was expressedly not authorized to make contracts, would yet call upon another, apparently a stranger to them, to assume responsibility for the expense of the urgently needed work upon their property, without any assurance that anybody would ever pay for it. Was the interested relative and adviser requesting that the stranger take the risk? There is nothing to indicate that Mr. Callaway would have taken a position so unreasonable and abnormal; and unnatural characteristics should not be attributed to him without evidence. While it is true that “where reasonable men might differ as to the inferences to be drawn from certain evidence, the matter should be left to the jury” (Dixon v. Bristol Savings Bank, 102 Ga. 461 (2), 468 (31 S. E. 96, 66 Am. St. R. 193); Toole v. Edmondson, 104 Ga. 776, 784, 31 S. E. 25), yet, if the testimony of Chapman was true, that Callaway told him to have the work done, it could lead to no other reasonable conclusion, under all the circumstances, than that Callaway intended to become personally responsible.

When a given state of facts will bear several different interpretations it is the function of the jury to say which one of them should be adopted, but where only one reasonable inference can be drawn therefrom, the question resolves itself into one of law, and may be determined by the court. Civil Code (1910), §§ 5735, .5936, 5943; Toole v. Edmondson, supra.

Again, Chapman was an architect. Callaway knew it. The language ascribed to the latter, if uttered, did not, under the circumstances, reasonably import that Callaway intended that he should be responsible only in the event that Chapman should do the work himself, but implied nothing less than that he should have it done by others. If this testimony is true, he was told to have the work done. “The relation of principal and agent arises wherever one person expressly or by implication authorizes another to act for him.” Civil Code (1910), § 3569. Even if Chapman should have undertaken the work himself, necessarily he would have had to employ help. The details of accomplishing the desired end were not given. The execution would have involved a discretion. “Agency may also be defined as the relation created by express or implied contract or by law, whereby one party delegates the transaction of some lawful business with more or less discretionary. powers to another, who undertakes to manage the affair and render to him an account thereof. 1 Am. & Eng. Enc. Law .937.” Burkhalter v. Ford Motor Co., 29 Ga. App. 592 (116 S. E. 332). “The agent’s authority will be construed to include all necessary and usual means for effectually executing it.” Civil Code (1910), § 3595.

The excerpt from the charge left it to the jury to solve the conflict between the testimony of Chapman and that of Callaway as to whether the latter directed the former to have the wall jacked up and made safe. In my opinion, the trial judge was right when he then told the jury that if they found that issue in favor of the plaintiff, “that would constitute Mr. Chapman the agent of Mr. Callaway, in so far as the subject-matter referred to was concerned.” I think that tbe extract from Mechera ón Agency quoted by my esteemed associates is wholly irrelevant. It has reference only to a situation where one assumes to act as agent for mother without authority, and his want of authority is disclosed. In such a case, it is manifest that the fact that the principal cannot be bound would not be cause for charging the agent. Compare Peeples v. Perry, 18 Ga. App. 369 (89 S. E. 461). In the instant case there was no effort to hold the defendant liable as one having assumed to act as agent for another when he had no authority, but the case is predicated upon the theory that the defendant, recognizing and expressly declaring his want of authority to bind the owners, proposed to act in the premises upon his own account.

I think that the trial was free from error, and that the motion for a new trial was properly overruled.


text:
    15091.
    Fireman's Fund Insurance Company v. Lindsey.
   Stephens, J.

1. Wliere a policy of fire-insurance provides that it insures for a term of five years 'in consideration of the payment by the insured of a part of the premium in cash and the balance in four equal yearly installments evidenced by an “installment note,” and where by both the policy and the installment note it is provided that, upon default by the insured in the payment of one of the installments payable upon the premium when due, all the remaining unpaid installments may be declared due and collectable, and that until such due and unpaid installments are paid the policy shall lapse and the insurer shall not be liable for any loss thereunder during such period of default, but that upon payment of the past-due installments the policy shall revive, there arises a contract of insurance for an entire period of five years, by the terms of which the insurer at all times during the entire period is under a contractual obligation to furnish protection, upon a compliance by the insured with his obligations under the contract as to payment of installments due upon the premium. The promise of the insurer to furnish protection under the terms of the contract, and the promise of the insured to make payments under the terms of the contract, are mutual, and each promise is a consideration for the other. May on Ins. (4th ed.), § 345-11; American Ins. Co. v. Klink, 65 Mo. 78; Minnesota Farmers &c. Ins. v. Olson, 43 Minn. 21 (44 N. W. 672); Darsey v. Ins. Co. of North America, 32 Ga. App. 458 (123 S. E. 622).

2. A lapse of the policy in accordance with its terms and its automatically ceasing to afford protection during a period of default by the insured in the payment of past-due installments on the premiums cannot amount to a failure of consideration. Therefore, in this ease, in which the Insurer sought to recover installments past due on the premium note, the defendant’s plea of a failure of consideration by reason of a lapse of the policy set up no defense, and the court erred in overruling the plaintiff’s demurrer to the plea, and in thereafter directing a verdict for the defendant.

Decided September 19, 1924.

Complaint; from Kandolph superior court — Judge Custer. September 15, 1923.

The action ivas upon two “installment notes” for $219.47 and $301.94 respectively, each given in consideration of a policy of insurance. The notes were identical except in dates and amounts; and the policies were identical in the parts material here. One of the notes reads as follows: “For value received, in policy No. F. 17570 T. I. 769, dated the 18th day of August, 1920, issued by the Atlanta Home Underwriters, of the Fireman’s Fund Insurance Co., of San Francisco, Cal., I promise to pay to the said company, or order (by mail if requested), at the office of its Southern Farm Department, in Atlanta, Ga., with expenses of collection and attorney’s fees, and without relief from valuation or appraisement laws, three hundred and one dollars and 94 cents, payable in installments as follows: seventy-seven dollars and 74 cents each upon the first day of September, 1921, 1922, 1923, and 1924, .respectively, without interest. And it is hereby agreed that in case any of the installments herein named shall not be paid at maturity, or if any single payment promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium for said policy shall not be paid promptly when due, this company shall not be liable for loss during such default, and the said policy shall lapse until payment is made to this company at the Southern Farm Department at Atlanta, and the whole amount of installments or notes remaining unpaid on said policy may be declared earned, due and payable, and may be collected by law. In settlement of any loss under above policy, this company may deduct therefrom the entire amount of unmatured installments of this note. This note is given in payment of above policy of insurance.”

The following provisions are taken from one of the policies: “In consideration of the stipulations herein named, and of forty-five and 71/100 dollars paid, and the payment of installments when clue on installment note of two hundred nineteen and 47/100 dollars, due and payable as follows: fifty-four and 87/100 dollars on the first day of each September, 1921, 1922, 1923, 1924, respectively, does insure G. O. Lindsey, for the term of five years from the 18th day of August, 1920, at noon, to the 18th day of August, 1925, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding twenty-nine hundred dollars, to the following described property [describing it]. It is understood and expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note, given for premium upon this policy, remains past due and unpaid; or while any single payment, promissory note (acknowledged as cash or otherwise), given for the whole or any portion of the premium, remains past due and unpaid. Payments of notes and installments thereof must be made to the said Atlanta Home Underwriters, of the Fireman’s Fund Insurance Company, at its Southern Department office in Atlanta, Georgia, or to k person or persons specially authorized to collect the same for said company. And it is understood and expressly agreed that the failure of the assured to receive notice of the approaching maturity of the premium note or notes, or any installment thereof, shall not operate to render the company liable for any loss or damage while such note or notes, or installments thereof, remain overdue and unpaid. The company may collect, by suit or otherwise, any past-due notes or installments thereof, and a receipt from the said Atlanta office of the company for the payment of past-due notes or installments must be received by the assured before there can be a revival of the policy, such revival to begin from the time of said payment, and in no case to carry the insurance beyond the end of the original term of this policy.

Judgment reversed.

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

“This policy shall be canceled at any time at the request of the insured; or by the company by giving five days notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually. paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium.”

Smith, Hammond & Smith, James W. Harris, for plaintiff.

H. B. King, for defendant.


text:
    15103.
    Central of Georgia Railway Co. v. Dixon.
   Stephens, J.

1. A petition in a suit against a railroad company, impersonal injuries, which alleges that the plaintiff, when crossing a track of the defendant company at a public crossing, became suddenly ill and unconscious, and that when he became conscious he found himself about sixty feet from the crossing, upon the side of the railroad-track, suffering from an injury from a passing train, and which describes the nature of his injuries and alleges- negligence on the part of the defendant in failing to keep a vigilant lookout and not seeing him on the railroad-track, and in running the defendant’s train over the crossing at a rate of speed dangerous to persons upon the crossing, and other acts of negligence, sets out a cause of action in favor of the plaintiff, and does not show that the plaintiff, by the exercise of due care, could have avoided the injury sustained, or that the plaintiff’s injuries were caused by his own negligence.

2. Where the plaintiff predicates his right to recover solely upon the alleged acts of negligence of the railroad company as respects its duty to the plaintiff upon a railroad crossing, and the answer of the defendant is only a general denial of the plaintiff’s allegations, it is not error for the court, in the absence of a special request, to fail to give in charge the law relative to injuries to trespassers upon the tracks of a railroad company at places other than public crossings, although the evidence authorizes a finding that at the time of the injury the plaintiff was not upon the crossing, but was elsewhere upon the track of the defendant and was a trespasser. Ala. Great Southern R. Co. v. Brown, 138 Ga. 328 (6, 7) (75 S. E. 330); Savannah El. Co. v. Jackson, 132 Ga. 559 (4) (64 S. E. 680); Wrightsville &c. R. Co. v. Gornto, 129 Ga. 204 (4) (58 S. E. 769).

3. Where the court instructed the jury that the burden rested upon the plaintiff to establish “the truth of the allegations contained in the petition,” a subsequent charge in the language of the Civil Code (1910), § 2780, to the effect that where damage is done by a railroad company the company is liable therefor unless it appears that the company had exercised due diligence, “the presumption in all cases being against the company,” which is immediately followed by a charge that if it should appear that the defendant company “inflicted the injury as contended by the plaintiff upon him, then I charge you that a presumption of negligence would arise against the company,” is not error as failing to instruct the jury that the presumption of negligence must be limited to the acts of negligence charged in the petition.

4. Where in such a case the court had clearly instructed the jury that if the plaintiff were permanently injured the jury could then use the mortality tables which were in evidence, in determining the amount of the plaintiff’s damage should the plaintiff be entitled to recover, it was not error to fail to charge that if the jury found that the injuries were not permanent, they should disregard the annuity tables. Especially is this omission to charge not error when the court instructed the jury that the use of the mortality tables was not obligatory upon them.

Decided September 19, 1924.

Action lor damages; from city court of Oglethorpe — Judge Greer. October 10, 1923.

Felton & Felton, H. A. Wilkinson, for plaintiff in error.

J. A. Ilixon, Gilbert G. Robinson, contra.

5. An exception to the charge upon the ground that the court “omitted to direct the jury’s attention specifically to the fact that, incident to declining years, the plaintiff’s capacity to labor or earn money might decrease, and that they should take this into consideration in fixing the amount of damages,” is without merit, where it appears from the charge that the court did instruct the jury that “the increasing infirmities of age, with a corresponding diminution of earning capacity, and other causes, may contribute in a greater or less degree to decreasing the gross earnings of a lifetime. In estimating damages, a proper allowance and deduction should be made in favor of the defendant for any diminution in income from labor which would have resulted from any of these sources.”

6. The evidence authorized the inference that the plaintiff was injured upon the tracks of the defendant railroad company at a public crossing, and presented an issue of fact, as to whether any negligence of the defendant was the proximate cause of the injury; and, it appearing that the plaintiff’s leg was broken, and that he suffered other serious personal injuries, as a result of being hit by a train of the defendant company, the verdict found for the plaintiff was authorized.

Judgment affirmed.

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


text:
    15158.
    ANDREWS v. RICHARDSON.
    Although the office of deputy tax-collector of Eulton county is a legal statutory office, filled by appointment made by the tax-collector of Eulton county, and although his compensation may be legally payable under a contract between him and the tax-collector out of the fees and emoluments which the latter receives as compensation for services as tax-collector, such contract, in so far as it restricts the right and power of the tax-collector at any time to discharge the deputy for any reason whatsoever, either with or without cause, hampers and encumbers the tax-collector in performing the public duties of the office, and for that reason is against public policy. Where by the terms of such a contract a deputy is appointed and employed for a certain period of time (as in this ease for four years), the deputy cannot, although discharged by the tax-collector before the expiration of the term in violation of tlie contract, recover tlie value of liis unaxpired term, under tlie contract.
    Decided September 19, 1924.
    Action for breach of contract; from Fulton superior court— Judge Ellis. September 25, 1923.

      Key, McClelland & McClelland, Liiile, Powell, Smith & Gold-stein, for plaintiff.

      Heivlett & Dennis, for defendant.
   Stephens, J.

Andrews sued Richardson for an alleged breach of a contract, the plaintiff alleging that Richardson, as tax-collector of Fulton county, employed Andrews as a_ deputy tax-collector under Richardson for a term of four years, and that Richardson, by discharging Andrews after the expiration of one year and before the expiration of the term to which Andrews had been appointed, breached the contract, to the damage of Andrews in the sum of $22,500, which sum represented Andrews’ salary under the contract for the remaining three years at $10,000 per year, less $7,500 actually earned by Andrews during that period. Richardson in his plea denied generally all the allegations in the petition.

Upon, the trial Andrews testified, in substance and so far as is material, that in the year 1920 he was a candidate before the .people for the office of tax-collector of Fulton, county, and that Richardson was a candidate for the same office; that during the progress of the campaign and before the election it was agreed between him and Richardson that Andrews was to “run” as a deputy upon Richardson’s “ticket,” and in the event of Richardson’s election to the office Andrews was to be a deputy tax-collector in the office, serving under Richardson during Richardson’s term of office of four j'ears, at a salary of $7,500 for the first year and $10,000 per year for the remaining three years of the term; that Richardson was elected and took office on January 1, 1921, thereafter ; that Andrews worked in the office for one year, until December 31, 1921, when Richardson discharged him, assigning as a reason that Andrews’ services were “not satisfactory;” that Andrews was paid by Richardson only $7,500, as contracted to be paid for his services for the first year. Andrews further testified that after Richardson’s installation in office Richardson reiterated the alleged pre-election promise of employment of Andrews for a term of four years, upon all of its terms, and that Andrews agreed thereto. A nonsuit was awarded, and Andrews excepts thereto.

The alleged contract under which Andrews was employed, as testified to by him, whether arising out of the pre-election agreement or the agreement made ■ after Richardson’s installation in office, meets all the requirements of a contract, save in so far as it may be invalid as against public policy. It clearly appears from the testimony as adduced by Andrews that his discharge by Richardson was unjustified and amounted to a breach of the contract by Richardson. The nonsuit can therefore be sustained only upon the theory that the contract when entered into was void as against public policy.

The attorneys for the defendant in error contend that the alleged contract upon which Andrews predicates his cause of action is void as against public policy. We quote from their brief as follows: “We cannot get away from the proposition that the defendant in error agreed to pay the plaintiff in error to retire from the race for tax-collector; to join him on his ticket as a deputy; to use his political influence; to solicit votes for him; to vote for him, and, in the event of his election, the defendant in error agreed to pay $37,500 for the plaintiff in error. Can it be said for one moment that this agreement was not against public policy and void, for the reasons: (1) that it was for the sale of a public office; (2) that it was for the sale of a vote.; (3) that it was for the sale of political influence; (4) that it had as an object the influencing of air election to public office; (5) that it restricted a public officer in the discretion vested in- him, in the selection of his appointees, and in their discharge for incompetency.”

Andrews testified that it was no part of the pre-election arrangement between him and Richardson that Andrews should withdraw from the race for tax-collector, nor does it appear that it was agreed between Andrews and Richardson that Andrews was to give his political support to Richardson. Andrews, however, did withdraw from the race and did vote for Richardson, and did exert his influence in Richardson’s behalf, and Richardson in his public advertisements stated that Andrews was running as a deputy on Richardson’s “ticket.”

While it was, no doubt, within the contemplation of the parties that Andrews should retire from the race and not oppose Richardson, who was a candidate for the same office, and give his support to Richardson, we will nevertheless treat the agreement made as if it was uncontaminated with any such considerations, and as if Andrews had not been a candidate for the office and had not solicited votes for Richardson, and had done no more than agree with Richardson before the election to serve as a deputy for four years in Richardson’s office in the event of Richardson’s election. It is therefore not necessary here to pass upon the validity of the prevailing system whereby candidates for public office make preelection promises of appointment to subsidiary positions under them, in the event of their election, to popular and influential people, oftentimes made without reference to their fitness, in consideration of the political strength and influence which inures to the candidates from the publication of the names of such promised appointees and the active solicitation of votes by them, and their friends. As respects such contracts, see the following authorities: Penal Code (1910), § 665; Exchange National Bank v. Henderson, 139 Ga. 260 (77 S. E. 36, 51 L. R. A. (N. S.) 549); Liness v. Hesing, 44 Ill. 113 (93 Am. D. 153); Nichols v. Mudgett, 32 Vt. 546; Robinson v. Kalbfleisch, 5 T. & C. (N. Y.) 212.

The sole question for our determination, then, is whether an executory contract by the terms of which one who is, or is about to become, a public official, employs or appoints another for a definite period of time to perform public services under the direction of the employer and for a compensation to be paid by the employer, is invalid, as against public policy. Whether the compensation is to be paid by the employer out of the emoluments accruing to him from the office, or is a rigid and unconditional obligation against him, it is unnecessary to consider. It can safely be assumed, however, that under the alleged contract between Andrews and Richardson, it was contemplated that Andrews was to be paid by Richardson out of Richardson’s fees and revenues accruing to him by virtue of the office, the office being upon the “fee system.”

In Bynum v. Knighton, 137 Ga. 250 (73 S. E. 400, Ann. Cas. 1913A, 903), where the Supreme Court held that “a sheriff may contract with his deputy for the discharge of the duties of his trust either for a specific compensation or for a reasonable portion of the fees and emoluments of the office,” the contract between the sheriff and the deputy was to the effect that the deputy should receive for his services as deputy one half of the entire income or revenue received by the sheriff from the office during the pendency of the contract, and was executed after the sheriff had been elected. Instead of the appointment of the deputy under that contract being for a definite period of time, as in the alleged contract between Andrews and Richardson, it was made for an indefinite period, and was terminable at will by mutual consent of the contracting parties. The deputy sued for and recovered fees already earned by him for services already rendered under the contract. That case is manifestly no authority in support of the validity of an executory contract of appointment of a deputy by a public officer for a definite period of time, or as establishing the right of such deputy to recover for services unperformed by him under the contract, predicated upon the deputy’s discharge before the expiration of the term.

Andrews was appointed by Richardson to perform the duties of a public office. He was not appointed to perform private services for Richardson. Richardson, in making the appointment, irrespective of any previous contract between them, was necessarily acting as a trustee for the public. The contract, therefore, must be construed with due regard to the public interest, and in so doing it must not be given a construction that would hamper Richardson as tax-collector in performing his duties to the State and the county whose servant he was. It is also immaterial in this connection whether Andrews’ position as deputy tax-collector was an office established and recognized by law, or was a private creation of the tax-collector, Richardson. Andrews was nevertheless performing public duties and Avas to all intents and purposes a public official.

It is well settled that any contract made by a public official which would hamper or restrict him in the due performance of his public duties is necessarily against public policy. The contract between Richardson and Andrews, in so far as it obligates Richardson to retain Andrews in office for a definite period of time or beyond the time when Richardson should see fit to dispense with his services, necessarily would hamper Richardson in the performance of his public duties. It is conceivable that the retention of Andrews in office, although he is properly performing the duties of deputy tax-collector and has not otherwise violated the contract, might hamper the efficiency of' the entire office force and prevent Richardson from properly and efficiently performing the duties of the office. The contract sued upon, therefore, is void as against public policy. 2 Elliott on Contracts, § 711; Connor v. Canter, 15 Ind. App. 690 (44 N. E. 656); Hager v. Catlin, 18 Hun, 448; Baskett v. Moss, 115 N. C. 448 (20 S. E. 733, 48 L. R. A. 842, 44 Am. St. R. 463); Civil Code (1910), § 4253.

The position of Andrews is not strengthened by the fact that the office of deputy tax-collector to which he was appointed is authorized by law. Civil Code (1910), § 1227. It is there provided that “Tax-collectors in counties under the provisions of this Article shall have power- to appoint one or more deputies, who shall be vested with the same powers as to levy and collections as are vested in the tax-collectors; the said tax-collectors shall be responsible for the acts of said deputies, and their compensation shall be paid by said tax-collectors.” While his position as deputy tax-collector is a legal office under the statute, and Richardson is by the statute given the right to make the appointment, the statute fixes no term. In the absence of any statutory regulation as to removal, the right to remove necessarily rests with the appointive power. Unumquodque eodem modo quo colligatum est dissolvitur. Broom’s Legal Maxims, 856. No term being fixed and Richardson having the right to remove, this right can be legally exercised by Richardson at any time and upon any ground. Tiedeman on Municipal Corporations, 126, § 83. Andrews therefore was not illegally discharged. Any contract made by Richardson, whether privately in his individual capacity or as tax-collector and as a public official, restricting the exercise by him of this public right vested in him to remove any of his deputies, is necessarily against public policy.

We recognize the rule that a public official who has been illegally removed from office may recover the future accruing salary of the office for the period which he would have served but for the removal. Burney v. Mayor &c. of Boston, 24 Ga. App. 7 (100 S. E. 28), and cases there cited. 2 McQuillin on Municipal Corporations, 1128; Tiedeman on Municipal Corporations, 130, § 85. The decisions so holding are sustainable upon the theory that the officer, although discharged, is still de jure in office and is legally entitled to the term until legally removed. In the present case Andrews was not illegally discharged.

It is also well settled that no public official has any proprietary or vested right in his office. Gray v. McLendon, 134 Ga. 224 (67 S. E. 859); Hall County v. Quillian, 32 Ga. App. 586 (124 S. E. 143). Therefore, when ousted before the expiration of his term, he has no right which he can legally enforce to the profits of the office which would have accrued to him for future services unperformed. Andrews, although a deputy employed by Eichardson, was to all intents and purposes a public official, and therefore had no proprietary or vested right to his office as deputy tax-collector, and-although he may have been discharged without cause, he has no legal claim against Eichardson for the value of his unexpired term under the contract.

The nonsuit, therefore, was properly awarded. In arriving at this conclusion we are not unmindful of the fact that the evidence of Andrews, construing it as we have done, sustains his petition and thereby proves his case as laid; but since this is not a ground of his attack upon the award of a nonsuit; but he has planted his contention solely upon the alleged validity of the contract of employment as testified to by him, stripped of all facts that would render it illegal as against public policy by reason of any agreement upon his part to withdraw from the race for tax-collector or to give his political support to Eichardson, should we reverse the award of a nonsuit upon the ground that the evidence proves the case as laid, Andrews would win a Pyrrhic victory, and upon a new trial, since nothing by way of evidence could be added to validate his contract, his entire case would, on motion in the nature of a general demurrer, be dismissed.

Judgment affirmed.

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


text:
    15241.
    15262.
    Ruffner v. Dunlop. Sophie Mae Candy Corporation v. Ruffner.
   Stephens, J.

I. A promissory note executed in the name of one by another as his agent, which contains no words binding the agent personally, is not the individual undertaking of the agent, and the agent is not liable on the note, although the consideration for which it was given inured solely to the agent’s benefit. Nor would the agent, as sole beneficiary of the consideration, be liable on the note, although his principal for any reason was not bound; as where the principal is a corporation and the execution of the note was ultra vires. Whatever remedy may exist in behalf of the payee of the note against the agent is not available by a suit upon the note. Peeples v. Perry, 18 Ga. App. 369 (89 S. E. 461); Gill v. Tison, 61 Ga. 161; 1 A. & E. Enc. Law (2d. ed.), 1124, 1128; 31 Cyc. 1615; 2 C. J. 806; 21 R. C. L. 847; Story on Agency (8th ed.), 369; Ogden v. Raymond, 22 Conn. 379 (58 Am. D. 429); Long v. Colburn, 11 Mass. 97 (6 Am. D. 160); Ballou v. Talbot, 16 Mass. 461 (8 Am. D. 146).

Decided September 19, 1924.

Complaint; from Fulton superior court — Judge Humphries. November 15, 1923.

Neufville & Neufville, Frank P. Slockion, for Ruilner.

Horace Bussell, Watkins & Asbill, contra.

2. Where the note was executed by “Sophie Mae Candy Corporation, by William Dunlop, its Treasurer,” and did not contain any apt words binding Dunlop, in a suit against him in his individual capacity by the payee of the note a general demurrer to the petition was properly sustained.

3. Where the suit is filed jointly against the agent in his individual capacity and against the principal, the overruling of a demurrer filed by the principal, not being a matter between the plaintiff and the codefendant agent (the parties to the main bill of exceptions), is not a matter for a cross-bill of exceptions tendered by the principal.

4. Where the transcript of the record, accompanying what purports to be a cross-bill of exceptions, filed and brought to this court by the principal who is not a party to the main bill of exceptions, is not sufficient for a determination of the errors complained of therein, without reference to the record accompanying the main bill of exceptions, such cross-bill of exceptions, although certified and filed within the time required by law applicable to a main bill of exceptions, does not meet the requirements of a main bill of exceptions. While, perhaps, this court could supply such deficiency in the record by proper order directed to the clerk of the trial court, a failure so to do and a dismissal of such cross-bill of exceptions can work no real hardship upon the plaintiff' in error therein, as the latter’s rights involved in the alleged cross-bill of exceptions are already protected and preserved by exceptions pendente lite duly filed.

5. The purported cross-bill of exceptions must therefore be dismissed. Gilstrap v. Leith, 24 Ga. App. 720 (102 S. E. 169).

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

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