text:
    15734.
    Widincamp v. Patterson.
   Jenkins, P. J.

1. Where a promissory note and contract of sale contains the express signed provision that the “described property,” consisting of live stock, “was bought by me after full inspection, and without any warranty (express or implied), and without any reservation whatever,” and that “I further understand that no conditions, stipulations, or statements not included in this note shall be binding upon the vendors, that I have carefully read the full contents of this note, that the same embraces in full my contract of purchase, and I fully understand the same,” the maker, when sued upon the instrument, is not entitled to plead a variance of such terms by parol, that the agent representing the payee at the time of delivering the note told the maker that “he would guarantee [one of the mules in question] to be sound, well, and healthy, in a first-class condition,” that “if the mule don’t work, you bring her back and I will give you a mule as good as the other one in her place,” and made other similar statements, and that the maker delivered the note on the faith of such warranties and statements. Shinall v. Skelton, 28 Ga. App. 527 (2) (112 S. E. 163); Connell v. Newkirk-George Motor Co., 28 Ga. App. 382 (111 S. E. 749); Brooks v. Williams Mfg. Co., 29 Ga. App. 258 (115 S. E. 150); Borders v. Chapman, 22 Ga. App. 712 (97 S. E. 96); Reeves Tractor Co. v. Barrow, 30 Ga. App. 420 (a, b) (118 S. E. 456).

2. “Fraud which would relieve a party who can read must be fraud which prevents him from reading.” Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915); Sloan v. Farmers Bank, 20 Ga. App. 123 (a) (92 S. E. 893). The maker is bound by a statement in a note excluding all warranties and representations as to the condition of a horse, “unless he showed that he could not read, and was for that reason imposed upon, or that the note was signed under some emergency which excused the failure to read, or that the failure to read was brought about by some fraud or misleading device of the payee of the note.” Davis v. Joyner, 27 Ga. App. 132 (107 S. E. 551). It is true that in a ease where the signer of a note can not read, and the payee undertakes to state or read the full contents, and misreads by omitting part of the same, or misstates the purport, such action may constitute fraud which will authorize a rescission. Brooks v. Matthews, 78 Ga. 739 (1), 741 (3 S. E. 627). But no defense is shown where, in the absence of any compelling emergency, one neglected to read the contents of the instrument merely bcause he had not “his glasses with him” and was not able to read without them, and the payee did not undertake to read the paper or state the contents with regard to its exclusion of all warranties, but merely told the defendant that “it was a retainer title to the mules.”

3. “In order to exercise the right of rescission for fraud, the defrauded party must act promptly on discovery of the fraud and must restore or offer to restore whatever he has received by virtue of the contract if it is of any value.” Shinall v. Skelton, 28 Ga. App. 527 (4) (112 S. E. 163), and cases cited; Jones v. Watson, 13 Ga. App. 390, 391 (79 S. E. 239). In the instant case, even if the allegations referred to above and other averments showed such fraud as would have authorized the defendant to rescind the contract exchanging mules with the plaintiff, while it appears that the defendant tendered back the mule complained of, he at no time offered to return the other, or sought a return of his own stock, so as to restore both parties to the original status quo.

4. “The doctrine of restitution, as applicable to rescission of contracts, applies only where one of the parties seeks to rescind the contract without the consent of the other. It has no application to the rescission of a contract by mutual consent of the parties.” Manley v. Underwood, 27 Ga. App. 822 (3), 831 (10 S. E. 49); Civil Code (1910), §§ 4304-4306. A subsequent agreement, in the nature of a rescission or novation, modifying the terms of a contract of sale excluding all warranties, and so as to warrant expressly the condition of the property, may be made, but must be supported by a valuable consideration. Brooks v. Matthews, 78 Ga. 739 (2) (3 S. E. 627); Anderson v. International Harvester Co., 27 Ga. App. 533, 534 (109 S. E. 417). Where one making an exchange of live stock took a note for the “boot,” containing a provision excluding all express warranties, and thereafter entered into an otherwise valid and enforceable agreement with the maker of the note, agreeing that the maker should return one of the mules and he would exchange it for another animal, that if the mule died it should be considered as the original owner’s' loss, and that if the maker would feed the animal the original owner would pay the cost of feeding, and where the original owner refused to take back the animal when it was tendered and to exchange it for another, but the maker of the note-continued to feed it until the mule died, the agreement was not a nudum pactum, but was supported by the vendee’s promise to feed the animal as well as to restore it to the vendor. Dortch v. Bishop, 27 Ga. App. 720 (1) (109 S. E. 674).

5. “In all cases of a mistake of fact material to the contract, or other matter affected by it, if the party complaining applies within a reasonable time, equity will relievo.” Civil Code (1910), § 4850. “A city court has jurisdiction to entertain an equitable plea which is purely defensive in its nature, and which if sustained would result simply in a verdict finding generally in favor of the defendant, or reducing the amount of plaintiff’s recovery, when such reduction is not brought about by the exercise of any of the extraordinary powers of a court of equity, such as cancellation, reformation, equitable set-off, and the like.” “The plea which set forth that the amount sued for was larger than that really due, as a result of a mutual mistake of the parties, was sufficient as against’’ the motion to strike. Burnett v. Davis, 124 Ga. 541 (2), 543, 544 (52 S. E. 628). The defendant here set up that the parties had agreed that the amount for which- the note should be given was $325, and that the-plaintiff’s agent, in reading to him the amount, after he had stated that he could not read the paper in the absence of his glasses, stated that it was $325, whereas the amount was inserted as $350. Taking this allegation as a plea of, mutual mistake, it was sufficient. Taking it as a plea of fraud, under the rule stated, above in paragraph 2, the plaintiff’s agent misstating the amount after undertaking to inform the defendant of the same, it was sufficient.

Decided February 12, 1925.

Complaint; from city court of Baxley—Judge Speer. May 23, 1924.

H. L. Williams, for plaintiff in error.

V. E. Padgett, contra.

6. While, as to the allegations referred to in the first three divisions of the decision, the plea was without merit, in failing to set up a legal defense, it did set up a defense by the averments referred to in paragraphs 4 and 5. For this reason it was error to strike the plea in toto on motion of the plaintiff, and thereafter to enter judgment against the defendant.

Judgment reversed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14905.
    Martin v. Hamlet.
    Decided February 14, 1925.
    Action for breach of warranty; from Fulton superior court-judge Humphries. June 28, 1923.

      Claude E. Moore, Si. Clair Gibbs, for plaintiff.

      Etheridge, Sams .& Etheridge, for defendant.
   Jenkins, P. J.

Construing the plaintiff’s petition, as he himself construes it, as an action for a breach of warranty where the plaintiff has not actually surrendered physical possession to the holder of the paramount title, and following the ruling of the Supreme Court in answer to questions certified, held, that the trial judge did not err in requiring the plaintiff to amend so as to allege the correct measure of damages (Martin v. Hamlet, 159 Ga. 465, 126 S. E. 371); nor did the court err in requiring the plaintiff to amend by setting forth copies or the substance of the documents on which he relied to establish paramount title in another. Since the demurrers which were sustained were special in nature (although the one going merely to the measure of damages was designated by the demurrer itself and by the order of court as general), it would seem that the affirmance of the judgment of the court below should not operate as a bar to the further prosecution of th£ plaintiff’s action within the time allowed by law; but this question, not being before us, is not now adjudicated.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    15532.
    Stone v. Johnson.
    Decided February 14, 1925.
    Complaint; from city court of Baxley—Judge Speer. March 8, 1924. , - 1

      V. E. Padgett, for plaintiff.

      Wade II. Watson, for defendant.
   Stephens, J.

1. Where, in a suit to recover upon an alleged indebtedness for services performed under a contract, the only material issue is as to the amount contracted to be paid and therefore due under the contract, the plaintiff is entitled to recover whatever is due under the contract as established by the evidence, whether the contract as so established as to the amount due is in accordance with his contention or in accordance with the contention of the defendant.

2. It appearing by an admission in the plea of the defendant that, under his theory of the contract, he is indebted to the plaintiff in a certain sum, a verdict finding generally for the defendant is without evidence to support it.

3. A1 tender of money, although properly made, does not relieve the person tendering it from the obligation to make payment.

4. A plea by a defendant which alleges that he has paid the plaintiff all that he owes under the contract except a named amount, “which amount defendant tendered plaintiff before this suit was filed and still makes a continuing tender of . . to said plaintiff,” is a plea admitting an indebtedness to the plaintiff in such amount.

Judgment reversed.

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


text:
    15550.
    Sims v. Martin.
   Stephens, J.

1. Where, immediately after a collision by an automobile, the owner, who was driving it, exclaimed, “It is my fault, all my fault; I was going too fast; we have got insurance and will be glad to make settlement we think is' right,” the entire expression, including the reference to having insurance, if made as a part of the res geste o"f the transaction, as a spontaneous and unealculated expression, possesses probative value as tending to establish, by way of admission at the time of the collision, a negligent operation of the automobile as to speed. The realization by the owner of an automobile that he has insuz-ance against liability for damage caused by its operation might cause him to feel secure against responsibility for such damage, and cause him to operate the automobile negligently and regardless of consequences.

2: In this case the declaration was made immediately after the collision and while the person who had been knocked down in the street and injured as a result of the Collision was still lying there, and before the owner, who was driving, had got out of the automobile. The expression therefore was admissible as part of the res geste; and although the part of it with reference to insurance was expressly withdrawn by the court from the jury, it nevertheless in fact got to the jury, and, the jury being entitled to consider the complete declaration as tending to establish negligence on the part of the defendant, there could have been no error in refusing to declare a mistrial upon the ground that the jury had been prejudiced by the admission of such testimony. This does not contravene the rule laid down by some courts, that in a suit to recover impersonal injuries caused from the collision of an automobile any suggestion made in the presence of the jury at the instance of the plaintiff that the defendant is protected against responding in damages by liability insurance is highly prejudicial to the defendant and will require that a mistrial be declared. This latter rule is properly applied in cases in which such evidence has no probative value as respects any legitimate issrre in the case, and possibly where its probative value is so small when compared to its prejudicial effect that fairness and justice demand its exclusion. It is hardly properly applied where the defendant himself, as in the case under consideration, injects it into the case and makes it a part of the res gestse, and invests it with a probative value beneficial to the plaintiff.

?,. Where the petition in a suit to recover damages because of personal injuries sustained by the plaintiff as the result of being knocked down by an automobile is predicated on various alleged acts of negligence of the defendant, and the plea of the defendant amounts only to a general denial of the allegations in the petition, and therefore there are no complicated issues which require minute elaboration for the enlightenment of the jury, a charge by the court that the plaintiff’s right to recover is dependent upon proof of the negligence set out in the petition, and that there can be no recovery by him if his injuries were caused by his own negligence, sufficiently and fairly to the defendant states the contentions of the parties. This is true although the defendant in his plea alleges that such injuries as the plaintiff may have received were due to the plaintiff’s own carelessness and negligence, since such an allegation is merely an affirmative statement to the effect that the alleged injuries were not caused by the alleged acts of negligence of the defendant. Any further charge in this respect desired by the defendant should have been specially requested.

4. Excerpts from the charge of the court are not necessarily conflicting where one of them fully states the law applicable to a certain situation and the other does so only partially. In such a case the rule that where there are conflicting- portions of a charge and one contains an erroneous statement as to the law, and where it does not appear that the erroneous statement was expressly withdrawn from the jury, or that the jury was properly instructed as to the correct rule of law applicable, the charge is contradictory and the jury are not properly instructed in the law, does not apply. A charge that if “there is negligence by both parties, which is' concurrent and contributes to the injury, the plaintiff is not barred, but may recover damages reduced below full compensation in proportion to the amount of default attributable to him,” is not in conflict with a charge that “if both were at fault,, and the fault of both contributed to and caused this injury, if the fault of the plaintiff equals that of the defendant or was greater than that of the defendant, he can not recover.”

5. A request to charge which is adjusted. only -to certain phases of the evidence favorable to the party making the request, and which eliminates from the consideration of the jury any inference authorized from .such phases of the evidence favorable to the opposite party, is not properly adjusted to the evidence and the issues thereby presented. Requests by the defendant in this ease, to give certain instructions, which the court refused to give in the language requested, and which it is not necessary to quote, were subject to the above criticism and were properly refused. Moreover, the matters referred to therein were, fairly to the defendant, covered by the charge given.

6. In a suit of the kind indicated, in which the issue was simple and not complicated, a charge generally that a duty rests upon all persons to exercise ordinary care, and that there could be no recovery if the plaintiff was injured by his own negligence, instructed the jury in a manner that could not be misunderstood that a duty rested upon the plaintiff to exercise due care under all the circumstances; and it was not harmful to the defendant to refuse a request to charge that a duty rested upon both the plaintiff and the defendant, under a particular situation presented by the evidence, to exercise ordinary care to avoid a collision.

7. In such a suit, where there was evidence that the plaintiff, a few years previous to the occurrence upon which the right to recover was predicated, received certain personal injuries as a result of falling from an automobile, a failure of the court to charge specifically that in the case then being tried there could be no recovery for such former injuries was not harmful to the defendant, where the court charged that the plaintiff could only recover on the negligence alleged in the petition.

8. In a case such as the one under consideration there is no duty resting upon the plaintiff to negative his own negligence. The court therefore did not err in refusing a request to charge to this .effect. Great Cosmopolitan Shows v. Petty, 7 Ga. App. 236-7 (66 S. E. 624); Fisher Motor Car Co. v. Seymour, 9 Ga. App. 465 (71 S. E. 764).

9. That the plaintiff, when he saw the defendant’s automobile coming towards him, suddenly jumped in front of it and was injured does not conclusively and as a matter of law establish negligence on the part of the plaintiff, or that if negligent it was the proximate cause of his injury. The evidence authorized the finding that the defendant’s negligence contributed proximately to this situation.

10. There is no inconsistency or conflict between a legislative act limiting the speed of an automobile to 30 miles per hour in a city and an ordinance of the city limiting such speed to 15 or 8 miles' per hour under the same conditions and circumstances. The ordinance of a city penalizing a less speed than is penalized by the statute of the State is merely supplemental to the statute. The plaintiff may allege negligence either under the statute or under the ordinance, or under both.

11. Where the court specifically withdrew from the jury any evidence as to the defendant’s having liability insurance, a charge upon the law relative to admissions, to the effect that if the defendant made any admissions, they should be scanned with care, was not subject to objec: tion upon the ground that it was calculated to mislead the jury into a consideration of the rejected evidence as to liability insurance. Nor was it vague or confusing.

Decided February 14, 1925.

Action for damages; from Chatham superior court—Judge Meldrim. March 18, 1924.

Lawrence & Abrahams, for plaintiff in error.

O’Byrne, Hartridge, Wright & Brennan, contra.

12. Where various provisions of a certain statute of the State and a certain ordinance of a city were relied upon by the plaintiff in the pleadings and the evidence as being applicable to the case, a charge that if the defendant violated “a statute of the State” or “an ordinance of this city,” such violation would be negligence per se, was not subject to the objection that it was vague, indefinite, and prejudicial, in that it did not specifically define the ordinance referred to, and in that it did not limit the inquiry to a particular named ordinance. The jury must necessarily have understood that the inquii'y was limited to the provisions of the particular statute and to the provisions of the particular ordinance produced before them.

13. Certain language in the charge of the court, where reference is made to the amount of damages■ claimed by.the plaintiff, states fairly and correctly the contentions of the plaintiff in this respect, and leaves to the jury the determination as to the amount of damages recoverable, if any. It is not subject to the objection that it was not adjusted to the evidence, or that it confused the jury, or that it in effect expressed an opinion on the facts.

14. The petition sufficiently, in detail, set out all the essential facts upon which the allegations of negligence were based, and the allegations of the petition were not subject to the objection that they were conclusions of the pleader.

15. The petition set out a cause of action and was not subject to any of the demurrers interposed. The evidence authorized the verdict, and there is no merit in any of the grounds of the motion for a new trial.

Judgment affirmed.

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


text:
    15705.
    Integrity Mutual Casualty Co. et al. v. Jones et al.

   Stephens, J.

1. A laborer who is employed to assist in hauling logs upon an automobile from a swamp to his employer’s sawmill located elsewhere, and who is permitted by his employer to ride upon the truck when going to the mill from the swaihp for the purpose of bringing back logs, is in the discharge of his duties when so riding upon the truck; and where injured by falling from the truck, his injury arises out of and in the course of' his employment.

2. Although at the time of the injury such employee was riding at a dangerous place on the fender of the truck, where he had voluntarily placed himself after having been warned of the danger and although the employer had issued a rule to the effect that the employees riding upon the truck should not ride in such position, yet where it does not appear that such rule had been approved by the industrial commission, the employee is not barred from a recovery of compensation by reason of any breach by him of the rule, since such bar applies only where the rule has the approval of the commission. Ga. L. 1920, p. 167, sec. 14.

Decided February 14, 1925.

Appeal; from Laurens superior court—Judge Kent. May 31, 1924.

Harry L. Greene, McDaniel & Neely, for plaintiffs in error.

B. Earl Gamy, contra.

3. Where such employee, while riding' in such a position on the fender of the truck, was thrown off by the swerving of the truck, caused by the action of the driver, and was killed, although the employee had been ordered by the driver, with authority from the employer, not to ride there, the inference is authorized that his death was caused by negligence of himself or of his employer, and not by wilful misconduct on his part.

4. In an application by the wife of the laborer to recover compensation for his death the industrial commission was authorized to make an award of compensation.

Jtidgment affirmed.

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


text:
    15716.
    BRAZELL v. HEARN, administrator.
    1. If a promissory note is given by one person to another in payment or extinguishment of the debt of a third person, there is a valuable consideration which will support an action thereon by the payee, provided the third person was actually indebted. “On the other hand, the mere debt of another, without discharge, forbearance, or other new consideration, will not support the note of a stranger to the debt.” 8 C. J. 219, 220; Davis v. Tifl, 70 Ga. 53 (2); Jolvnson v. Rycrofl, 4 Ga. App. 547 (2 c) (61 S. E. 1052) ; Saul v. Southern Sealing Go., 6 Ga. App. 843, 847 (65 S. E. 1165), and cases cited. A valuable interest in the estate or assets of a deceased husband will support a note given by the widow to a creditor of the deceased; but if no assets are received from the estate, the note is without consideration. 8 G. J. 222. Mere love and affection, or a moral obligation alone to pay the debt of a deceased person who left no estate, will not Support a promissory note for the amount of the debt. McEVven V. Sloan, 56 Ga. 208; Loudermilk v. Loudermilk, 93 Ga. 444 (21 S. E. 77).
    2. The provision of the code which declares that a wife can not bind her separate estate for the debts of her husband does not affect the power of a widow to contract with reference to such debts after his death. Walker v. Walker, 139 Ga. 547 (7 a\ (77 S. E. 795) ; Mize v. Ptcuwldns, 54 Ga. 501 (1) ; Booker v. Small, 147 Ga. 566 (2) (94 S. E. 999). But the rule that the death of the husband relieves the wife from the disabilities of coverture, so that she may then contract as a feme sole with regard to the debts of her deceased husband, does not render inapplicable the rules stated above.

      3. “While it is true that a married woman who personally applies to a tradesmen for the purchase of groceries [and other necessaries], stating that she wishes to open an account in her own name, and directs the plaintiff to charge the goods to her, will be personally liable therefor, where in pursuance of such express understanding the goods are delivered and charged to her, . . still the husband is bound to support the wife, and where necessaries arc furnished to the wife in the absence of any such express agreement, the presumption is that she contracted for them in the right of her general agency for her husband, and that he, and not she, is liable. . . This is true even though the creditor may have himself intended to credit the wife and not the husband, unless it. be that such intention was expressly declared or communicated to the wife.” Ga. Grocery Co. v. Brunson, 24 Ga. App. 484 (101 S. E. 130); Civil Code (1910), §§ 2996, 2997; Rushmg v. Clancy, 92 Ga. 769, 771 (19 S. E. 711) ; Robinson v. McCommons, 24 Ga. App. 106 (2) (100 S. E. 43); Goodson v. Potoell, 9 Ga. App. 497 (71 S. E. 765) ; Morrison v. Evans, 31 Ga. App. 256 (120 S. E. 430).
    4. Where a husband opens an account with a merchant for the purchase of necessaries and other goods, the debt is his own, even though such goods may have been consumed in whole or in part by the wife. Likewise, where the husband, assuming to act as the agent of the wife, has the account opened and the goods charged in the name of the wife, the wife will not be held liable therefor, oven though the creditor may have charged the account and extended the credit solely in her name, unless it be shown that the husband was in fact authorized to act as such agent, or that the wife subsequently ratified his acts, either expressly, or impliedly by continuing to accept and enjoy the goods received by her with knowledge of his acts and of the merchant’s extension of credit to her, or by giving a note or other obligation for the indebtedness with full knowledge of the facts and circumstances. See Foster v. Jones, 78 Ga. 150 (1) (1 S. E. 275) ; Blackstone v. Widincamp, 145 Ga. 689 (89 S. E.. 745) ; Woochoard v.- Fuller, 145 Ga. 252 (5) (88 S. E. 974) ; Wheeler County Bank v. Hargroves, 148 Ga. 487 (97 S. E. 69) ; Bberhardt Machine Works v. Houser, 18 Ga. App. 35 (88 S. E. 751); Va.-Carolma Chemical Co. v. Wisenbaker, 18 Ga. App. 528 (89 S. E. 1053) ; Moore v. Sims, 24 Ga. App. 296 (1) (100 S. E. 647).
    5. Eor the reasons stated in the opinion, in which the general grounds and the special assignments of error with reference to the charge of the court and the admission of evidence are dealt with, the court erred in refusing a new trial to the defendant.
    Decided February 14, 1925.
    Complaint; from city court of Reidsville—Judge Cowart. May 20, 1924.
    The amended answer of the defendant set up that the note sued upon, for $820.48 principal, was executed by her “for the payment of an open account for goods and merchandise,” for which she “was not liable . . except for about $100 of said amount, which was purchased by her since the death of her deceased husband, which occurred on or about March 15, 1915, and that the balance of said account, having been contracted while her said husband was alive, and for goods and merchandise for the necessary support and maintenance of the family of her said husband, her said husband was alone liable for the payment of said account over and above said amount purchased by defendant since the death of her husband, . . and defendant says, therefore, that there was no consideration for the said note, so far as relates to her, for the said note of $820.48, for an amount of said note over and above said sum of about $100, and defendant here pleads said want of consideration” for the said difference, “and says she is not liable therefor.” The jury found for the plaintiff in the full amount. The defendant excepts to the refusal of a new trial.
    The testimony showed that the husband died on March 26, 1915, leaving no property; that only $66.98 of the amount included in the note, which was executed on April 13, 1922, represented goods purchased by the wife after the husband’s death; and that the entire account had been running since 1905. The plaintiff payee of the note testified, that the husband had no property, that “these goods were charged to and sold on the credit of” the wife; that “she sent for the goods;” that the reason he knew this was that “she sent orders part of the time, and the orders are in writing;” but it further appears that all such orders were subsequent to his death. The plaintiff testified that the defendant “knew in the lifetime of” the husband “that the account was charged to her, and there was no objection to it;” but he further swore, “I do not know of my own knowledge that she knew the goods were being charged to her; well, she ought to have known it,” since both her children and husband would come for them; “I have got evidence other than these orders that she sent for the goods;” “I don’t know that she got them, . . but it was carried to her house, and left there, I guess; I don’t know what went with it; her own children got it.” These “children” were not shown to be minors, the defendant 'testifying that she was 75 or 76. years old. The plaintiff further testified that at the time the defendant signed the $820.48 note, a statement showing the amount of the entire account as that sum was handed to her, and .that she made no objection; but it does not appear that she then knew that -the goods had been previously charged to her. . The defendant denied that she knew that the goods were bought in her name by the husband, testifying, “I don’t know whether he had the goods booked to me or not.” The suit was not only on the note for $820.48, but on four others for $75 each. The answer as amended coupled a plea of mental incapacity of the defendant at the time of executing the notes with the defense that the plaintiff, to obtain her signature on the $820.48 note, misstated the total indebtedness, by telling her that the note included both the previous open account and the other four notes.

      E. C. Collins, A. 8. Way, for plaintiff in error.
    P. M. Anderson, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

Under the ruling stated in the syllabus, and the rule that a-party’s testimony, where doubtful or contradictory, is to be taken most strongly against him, the plaintiff failed to show the agency of the husband, or any special contract with the defendant wife to become independently liable for the necessaries and goods charged to her account, or any subsequent express or implied ratification by her, during the life of the husband, of the acts of the husband and the plaintiff merchant, with any knowledge of the facts upon her part. Nor does such an implied ratification subsequent to the husband’s death appear from her act in signing the note sued upon, since it was not shown, by any sort of clear and unambiguous evidence, that she then had knowledge that her husband had assumed to contract for her, and that the plaintiff had charged the account in her name, and that that the plaintiff had charged the account in her name, and that she was executing the note for such a debt. If, on the other hand, the defendant executed the note in part to discharge the previous account contracted by her husband, with the understanding that the debt was his, the evidence fails to show a valuable consideration for the assumption of such debt,—either that her execution of the note had canceled, discharged, or balanced off the account of her husband, or had caused any forbearance by the credtior, or that she had received a new consideration, it being conceded that the husband left no estate. Except as to the $66.98 balance, contracted by the defendant herself' after her husband’s death, there was a want of consideration and liability, so far as the testimony discloses, and the verdict in excess of that amount on the $820.48 note was contrary to law, as without evidence to support it. See Smith v. Head, 75. Ga. 755 (2), 757; McCord v. Thompson, 131 Ga. 126, 128, 129 (61 S. E. 1121).

In ground 12 of the motion for a new trial exception is taken to an instruction that in determining whose debt the note was given to settle, “the jury may consider all the facts and circumstances surrounding the case; you may consider, in the first place, who was the debt charged to on the books, but 1 charge you, however, that merely charging a debt to a certain person on books of a merchant wouldn’t make that person liable for them, unless it was in truth and in fact the debt of the person to whom it was charged, but I say . you can consider the fact as to whom it was charged in determining whose debt it was originally.” It is contended that this was erroneous because a charge on the books to the defendant would not be any evidence to bind her, in the absence of proof that she made the entry or had knowledge thereof or acquiesced therein. The language quoted was error, likely to have confused the jury in determining whether the defendant had impliedly ratified the act of the husband in assuming to act as her agent, or the act of the creditor in extending credit and charging the account in her name, even if the evidence as to such a ratification were sufficient to have authorized a charge thereon. Under the rules stated in the 3d and 4th headnotes, the mere charging of the account would be irrelevant even as a circumstance in determining the issue as to whether the indebtedness on the account was that of the wife or that of the husband, in the absence of some evidence either that the wife originally authorized the acts of the husband and the creditor in charging the indebtedness to her, or that she subsequently, with knowledge of the facts, ratified such acts expressly or impliedly.

Exception is taken in ground 4 to the admission of the plaintiff’s testimony, over the objection that it was not the best evidence, that he had mailed to the defendant several times a statement of the account, showing that it was “for the full amount of the account,—$820.48.” There was no proof as to the proper stamping, address, and deposit in the mails of the communications referred to, so as to authorize a presumption of their receipt by the defendant, and render such testimony of evidentiary value on the question of implied ratification by the defendant. See Bankers Mutual Casualty Co. v. Peoples Bank, 127 Ga. 326 (2), 327 (56 S. E. 429); Burch v. Americus Grocery Co., 125 Ga. 153 (3), 158 (53 S. E. 1008); Rawleigh Medical Co. v. Burney, 22 Ga. App. 492 (1), 493 (96 S. E. 578); Lowenstein v. Johnston, 23 Ga. App. 261 (1) (98 S. E. 111). While this was not the ground of objection urged, the evidence was inadmissible under the particular exception presented, invoking the “best evidence” rule, in the absence of any proof that the original communications were unavailable. Moreover, there was no proof as to when the statements were sent, and if, as appears likely, they were sent long after the indebtedness was incurred, this could not of itself establish ratification. Hill v. Render, 33 Ga. App. 13 (5) (125 S. E. 79).

On the defense set up by the amended plea that the plaintiff, to obtain the defendant’s signature on the $820.48 note, misstated the amount of total previous indebtedness, by telling her that it included both the previous open account and four notes for $75 each, also included in this suit, the plaintiff denied having made such a statement. There was, however, testimony from the defendant and her daughter sufficient to raise an issue for the jury as to whether such a misrepresentation had been made, and as to whether the defendant had been in fact misled thereby by reason of her illness and long enfeebled condition and the consequent inability to know for herself the correct amount of indebtedness. The court charged as to other contentions of the parties and other issues; but failed to charge with reference to this contention and issue raised by the amended plea, as complained of in ground 9. Even in the absence of a written request, the failure to charge thereon was error.

To the question, “You stated Mrs. Brazell (defendant) sent for the goods herself, how do you know that?” the plaintiff answered, “She sent orders part of the time,” that those orders were “in writing,” and that he had some of the orders with him, but not all. The court admitted this evidence over the objection that the orders themselves were the best evidence as to their nature and contents. While the orders were not introduced, it later appeared from the testimony that they related solely to the portion of the account contracted after the death of the husband, as to which there was no dispute. Even though the 'testimony excepted to in the 5th ground was inadmissible, the admission was harmless to the defendant.

In ground 8 exception is taken to the admission of testimony, over the objection that there was higher and better evidence of the title, that “this property [referring to the land and place where movant lived] was all in your mother’s name.” It was shown, without objection, that the defendant had bought this land under a bond for title. The defendant herself testified, “What little property there was was all in my name; my husband didn’t have any property at all;” and there was other evidence of the same nature. The exception is therefore without merit.

Exception is taken, in ground 11, to the failure to charge (without a written request) upon a material issue in the case, that “if the evidence showed that a portion of the account for which the said note for $820.48 was given was for necessaries and supplies furnished to or obtained by the family of movant’s deceased husband while her said husband was in life, the presumption . . would be that movant’s husband was liable alone for the debt so contracted, and that the burden would then be upon the plaintiff to show that defendant, by special contract, made herself liable for the debt represented by said account.” There is no merit in the particular ground of exception taken. It was not required, without a written request, that the jury be instructed as to shifts in the burden of proof or of proceeding as developed under the evidence. Jackson v. Merritt Hardware Co., 26 Ga. App. 748 (107 S. E. 394). The charge of the court upon the ground of defense with reference to want of consideration for the portion of the note representing the account made by the husband fully covered the rule with reference to the primary liability of the husband for necessaries, in the absence of a contract by the wife. While it did not cover the rules as stated in the headnofes, there was no exception thereto. Moreover, the court charged that if the entire, note represented the defendant’s own indebtedness, she would be liable for the full amount, but that if any part was given in settlément of her husband’s previous debt, she would not be liable for such part. While, as above discussed, the evidence failed to show facts and circumstances under which the defendant might have been held liable, even though the jury might have found that part of the note was a settlement of her husband’s previous debt, the instruction in effect that under no circumstances would she be liable for such a part was more liberal' to the defendant than the law required.

The court charged as follows: “Now, there is some contention, 1 don’t think it is in the pleadings, but made to the jury, as to the statute of limitations; and I charge you that the statute of limitations runs against an open account in four years, but it does not begin to run so long as there are debits and credits, and the fact that an account is fifteen years old would not mean that the account was out of date, provided there were debits and credits appearing on the account, and I charge you, as a general rule, an open account does not run out of date and the statute does not begin to run so long as there are debits and credits.” Exception is taken in the 13th ground to this excerpt, because under the evidence the portion of the account contracted before the death of the husband, and which represented the larger part of the $820.48 note, was a simple open account, and not a mutual account, and the reference to the statute of limitations was erroneous; and because the pleadings raised no issue as to the statute of limitations, “the only reference to it being made by movant’s counsel in his argument to the jury as to the probability of movant signing said note for $820.48, if she had known that said note was intended as a note not only for the debt in part of her husband, but also for a debt barred by the statute of limitations;” and because the charge was “calculated to impress the jury with the belief that such a charge was an expression, an argument by the court, to refute the said argument made by movant’s counsel to the jury, and it was thus calculated to unduly prejudice the minds of the jury against movant’s cause.” The undisputed evidence showed that as to all of the note executed in 1922 except a $66.98 balance, the indebtedness was contracted on open account before the husband’s death in 1915, and that the entire account had been running since 1905. The evidence failed to show the dates -on which the various items since 1915 up to the signing of the note were contracted. But there was no proof as to any indebtedness ever having been owed by the plaintiff creditor either to the husband or to the wife. The statute of limitations bars actions on open account four years “after the right of action accrues.” Civil-Code (1910), § 4362. “In order to make such a mutual account as will prevent the statute of limitations from beginning to run except from the date of the last item thereof, there must be an indebtedness on both sides. Mere entries of credits of partial payments are not sufficient.” Civil Code, § 4363; Howard v. Blanchard, 29 Ga. App. 469 (116 S. E. 33). Mere partial payments of an existing indebtedness, and entries of credit by a creditor on such an open account, do not constitute a mutual account which will prevent the statute from running, and a charge applying the mutual accounts statute in a case merely of open account has been fyeld error. Brock v. Wildey, 125 Ga. 82 (1); Ford v. Clark, 72 Ga. 760; Liseur v. Hitson, 95 Ga. 527; Mobley v. Penderqrast, 8 Ga. App. 565 (1, 2) (70 S. E. 18).

“A strong moral obligation,” under the statute, is merely a “good consideration,” and not a “valuable” one such as will support an executory obligation. Civil Code, § 4243. While a new promise when in writing, “either in the party’s own handwriting or subscribed by him or some one authorized • by him” (Civil Code, § 4383), “revives or extends the original liability, it does not create a new one.”. Civil Code, § 4386. Construing these statutes, the Supreme Court has held that a new promise to pay a debt barred by the statute of limitations requires no additional consideration in order to constitute an effective revival of the original debt. Pittman v. Elder, 76 Ga. 371; Comer v. Allen, 72 Ga. 1 (4), 14, 15. “The old debt by virtue of the new promise is revived and the remedy thereon restored.” Shumate v. Ryan, 127 Ga. 118, 119 (56 S. E. 103). See also Turner v. Elliott, 127 Ga. 338, 341 (56 S. E. 434); Small v. Jones, 138 Ga. 521, 523 (75 S. E. 605); Ross v. Jordan, 62 Ga. 299 (1); Weatherly v. Hardman, 68 Ga. 592; the latter cases construing the law prior to the act of 1905 (p. 101), embodied in section 4384 of the Civil Code (1910), which now makes enforceable a promise to pay a debt discharged by bankruptcy, where made in writing. But the Supreme Court likewise has held that an executory “promise to pay a debt barred by the statute of limitations,” made voluntarily and without consideration, while it may effect a revival of the original debt, is itself a nudum pactum and unenforceable. Monroe v. Martin,. 137 Ga. 262, 263 (73 S. E. 341); Davis v. Morgan, 117 Ga. 504, 507 (43 S. E. 732). It is, however, the general rule that the benefit of a statute of limitations is a personal one, which the defendant may exercise, or waive by failing to plead or claim at the proper time. Strickland v. Jones, 131 Ga. 409, 415 (62 S. E. 322); Warren v. Powell, 122 Ga. 4 (49 S. E. 730). It is also the rule that where the court states a contention, not raised, by the pleadings, but properly insisted upon and'arising under evidence unobjected to in the course of the trial, and undertakes to state the legal principles applicable thereto, if the contention is vital, an inaccurate and prejudicial statement as to the lav will be reversible error. But mere argument of counsel to the; jury is not ordinarily to be designated as a contention of a party, and such a designation itself may in certain cases require a reversal. Scott v. Valdosta R. Co., 13 Ga. App. 65 (78 S. E. 784).

The instant suit seeks to recover, not on the revived account, but on the note for $820.48, and the note itself showed no bar in whole or in part by the statute; nor was there any demurrer, plea, or motion setting up any bar by the statute, either of the note or of the original.indebtedness, nor was there any plea or claim that the note was in whole or in part thus unenforceable as a nudum pactum. While the evidence showed that the account, unless revived by the note, except as to $66.98, would have b'een barred by the statute, and consequently as to the rest of the note the instrument itself Avas nudum pactum and unenforceable in itself (Avhatever might have been the effect of the new promise in reviving the original debt), the record fails to disclose that during the trial the defendant actually raised any such contentions, but on the other hand shows that the only point (raised during the argument to the jury) referring to the statute was indirectly in discussing the defense that the defendant Avould not have signed the note except for her mental incapacity, or for the plaintiff’s misrepresentations as to the amount and nature of the indebtedness. Although the instructions set forth were incorrect both as to the time and effect of the statute of limitations, since there was no pleading or actual contention claiming either the bar of the statute or that the note itself Avas by reason thereof in whole or larger part a nudum pactum, the inaccuracy could not have been prejudicial to the defendant.

On the other issue raised under the defendant’s pleadings and eAddence, that the defendant’s mental condition at the time of her signature of the note had been weakened by sickness, so that she was unable to understand the nature and consequences of her act, the evidence as to her mental condition was insufficient to show her contractual incapacity. On the issue as to AAdiether the plaintiff had misstated the amount of the indebtedness, and whether the new note included the previous notes, under conditions affecting the defendant’s health and preventing her from knowing or understanding the true amount, the verdict for the plaintiff was authorized, although not demanded. The exception relating to the failure of the court to charge on that contention under the pleading and evidence has been previously treated.

Where the mental condition of a person is the subject of inquiry, “the general reputation of such a person as to sanity may illustrate that issue.” Goss v. State, 14 Ga. App. 402 (1) (81 S. E. 247). Ground 6, excepting to the admission of evidence of this nature, was without merit.

The court did not err in excluding testimony, complained of in ground 7, sought to be elicited by the defendant from a physician, that, knowing her long sickness and confinement to her bed, and that she was “being dragged about the house in a chair,” he would not “want her to attend to any business” for him.

Even had the evidence been sufficient to raise such an issue, the court fully and fairly instructed the jury as to the rules of law applicable to mental incapacity, and that one must have “enough of mind and reason for a clear and full understanding of the nature and consequences of his act in making a contract” in order to have “sufficient mental capacity to make a contract.” The isolated extract from the charge on this subject, complained of in ground 10, if not wholly accurate within itself, was substantially correct when taken in connection with both the immediatety preceding and following context, where the rule for determining the defendant’s capacity under the evidence was elaborated and explained.

Under the rulings in the syllabus, for the reasons stated in the opinion, in the first paragraph and subdivisions (ft), (5), and (c) thereunder, it was error to overrule the defendant’s motion for a new trial.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15308.
    Davis v. Hardwick, Governor.
   Stephens, J.

1. The mere producing into open court by the surety of the principal in a recognizance bond at the hour and minute previously set by the judge as the time for imposing sentence after conviction, although accompanied, with the expression from the surety, directed to the judge: “Here he is [referring to the principal]; I have brought him back as you said,” does not show a compliance with the bond under which the surety was answerable for the. principal’s presence in court until after sentence is passed. Nor does ‘a compliance with such order of the court amount to a surrender of the principal by the surety. Williams v. Jenkins, 53 Ga. 167; Perkins v. Terrell, 1 Ga. App. 250 (58 S. E. 133); Andrews v. Hardwick, 29 Ga. App. 251 (114 S. E. 644).

Decided February 24, 1925.

Forfeiture of recognizance; from city court of Floyd county— Judge Bale. December 5, 1923.

Porter & Mebane, for plaintiff in error.

James Maddox, solicitor, contra.

2. It was therefore not error to direct a verdict for the plaintiff.

Judgment affvrmed.

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


text:
    15318.
    Barnes v. Snyder.
    Decided February 24, 1925.
    Certiorari ;• from Fulton superior court—Judge Humphries. December 7, 1923.
   Stephens, J.

1. A judgment against a bankrupt at the time of the filing of the petition in bankruptcy, notwithstanding there may be pending proceedings on appeal to set it aside, is, as provided in section 63(a) of the bankruptcy act, a fixed liability which may be proved and allowed in bankruptcy. 2 Collier on Bankruptcy (13th ed.), 1387-9, and eases there cited.

2. A lien arising by virtue of service of summons of garnishment issued upon a suit instituted against an insolvent defendant within four months prior to the filing of a petition in bankruptcy by or against the defendant, who was adjudged a bankrupt, is, under section 67, subsections c and f, null and void, since the existence and enforcement of such a lien by the plaintiff would work a preference. Where such garnishment has been dissolved and the fund received by the defendant, who is the principal on the dissolution bond, he may nevertheless obtain a perpetual stay of a judgment against him in behalf of the plaintiff upon the bond. See, in this connection, 2 Collier on Bankruptcy (13th ed.), 1581; Alvaton Mercantile Co. v. Caldiwll, 156 Ga. 317 (119 S. E. 25); National Surety Co. v. Medlock, 2 Ga. App. 665 (58 S. E. 1131); Morris Fertilizer Co. v. Jackson, 27 Ga. App. 567 (110 S. E. 219); Garden v. Crutchfield, 112 Ga. 274 (37 S. E. 368).

3. The foregoing facts being established without issue, the superior-court judge did not err in sustaining the certiorari brought by the defendant, excepting to a judgment of the municipal court denying a motion to stay the proceedings against the defendant on the dissolution bond.

Judgment affirmed.

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

Leo Budderth, H. C. Holbrook, for pMntiff in error.

James L. & Will Q. Moore, contra.


text:
    15347.
    Bynum v. Mayor and Aldermen of Savannah et al.

    Decided February 24, 1925.
    Action for damages; from Chatham superior court—Judge Meldrim. December 10, 1923.

      H. P. Cobb, I. C. Farthing, for plaintiff.

      F. P. Mclntire, Ulmer & Bright, for defendants.
   Stephens, J.

1. In a petition in a suit for personal injuries received-by the plaintiff while temporarily on property belonging to or in the control of the defendants an allegation which describes the property as being maintained by one of the defendants, a municipal corporation, for the purpose of “anchoring vessels and storing merchandise to be loaded thereon, for whicli a rental or storage charges are paid to and received by” the defendant, although it may allege that the property was known as “the municipal wharf,” is an allegation to the effect that the property was maintained for a restricted use and as a place of business only, and not for indiscriminate use by the public and persons coming thereon for a purpose not pertaining to such business. A person coming upon such wharf for the purpose of satisfying his own curiosity in observing ships is not there as a matter of right as an invitee, but is there as a mere trespasser or a licensee. Clardy v. So. Ry. Co., 112 Ga. 37 (37 S. E. 99); Jones v. Candler, 22 Ga. App. 717 (97 S. E. 112).

2. Where such a person, while upon the property for such purpose, is injured by some plank falling off the top of a stack of lumber maintained by one who has rented space upon the property from the city, and upon which stack of lumber others who are on the property for the same purpose have climbed, he can not for such injury recover against either the city or the tenant owning the lumber, unless the fall of the lumber and the consequent injury was caused by some wanton act or wilful misconduct upon the part of either the city or the tenant. Such an act is not shown by an allegation that five pieces of lumber fell upon him from the top of the stack of lumber and injured him, and that the stack had not been protected by stanchions or posts which would have securely - held the lumber in place.

3. A proclamation issued by the mayor of the city, declaring the day upon which the plaintiff was injured a holiday for the purpose of welcoming soldiers returning from overseas, and an invitation by the mayor to the public generally to participate in such welcome, can not be regarded as an invitation to the plaintiff to place himself upon the property described, for the purpose of observing such public demonstration of welcome.

4. The petition failed to set out a cause of action and was properly dismissed upon demurrer.

Judgment affirmed.

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


text:
    15358.
    Hearn, administrator, v. Weathers.
    Decided February 24, 1925.
    Complaint; from Tattnall superior court—Judge Sheppard. December 15, 1923.
    TF. II. Brewion, TF. T. Burhhalter, for plaintiff in error.

      P. M. Anderson, contra.
   Stephens, J.

1. Where, in a suit upon an account, the defendant, who was the administrator of the person against whom the indebtedness was claimed, had introduced evidence tending to establish a set-off, in which he admitted the correctness of the account sued on except so. far as the amount might be reduced by the set-off relied upon, error, if any, in admitting the account-book when offered as evidence for the plaintiff, prior to the admission of the above-mentioned evidence offered by the defendant, was rendered harmless by such subsequent admission of the evidence offered by the defendant.

2. Any error which, before the introduction of the above-mentioned testimony offered by the defendant, may have been committed in the admission of evidence tending to prove the genuineness of the account sued on by conversations or transactions between the plaintiff and the defendant’s intestate, was harmless by reason of the admission of the subsequent testimony offered by the defendant.

3. Since the only evidence in support of the set-off consisted of a written memorandum in the handwriting of the defendant’s intestate, found in the account-book in the possession of the intestate, showing various items of charges against the plaintiff for goods furnished and services rendered by the defendant to the .plaintiff, and since there was no evidence that such goods wore furnished or services rendered, and since the plaintiff in his testimony denied having any knowledge, until after he had filed suit, of the existence of any claim of set-off by the intestate, the jury was authorized to find against the set-off.

4. The verdict in favor of the plaintiff for the full.amount sued for was, under the entire evidence, authorized.

Judgment affirmed.

JenJcins, P. J., and Bell, J., concur.


text:
    15438.
    Griffin Banking Co. v. Macon National Bank.
   Stephens, J.

1. Where a pledgee redelivers the property to the pledgor for the special purpose of being sold by the pledgor for the pledgee’s benefit, the pledgor, when selling the property, acts only as the agent of the pledgee for sucli purpose; and while the title, to the property may pass to the purchaser, the funds derived from the sale belong to the pledgee, and the pledgor has no title thereto. See, in this connection, Eplan v. Wheat, 134 Ga. 511 (68 S. E. 78), 21 R. C. L. 656-7; Jones on Collateral Securities (3d ed.), §§ 43, 44.

2. Where another creditor of the pledgor had constructive notice of the pledgee’s title by virtue of a regularly executed and recorded bill of sale from the pledgor, conveying to the pledgee title to the-property as security for a debt, which title the pledgee did not in fact relinquish upon redelivery by him of the property to the pledgor for the purpose of being sold, such creditor of the pledgor could not assert any lien, as by garnishment, upon the proceeds of the sale of the property by the pledgor.

Decided February 24, 1925.

Garnishment and claim; from Fulton superior court—Judge Humphries. February 8, 1924.

Horace Russell, Watkins & Asbill, for plaintiff.

W. A. Sutherland, Jones,-Evins & Moore, for defendants.

3. A deed to secure a debt, conveying both realty and personalty, which describes part of the personalty conveyed as “all the . . canned goods located in the [grantor’s] plant as located above,” which location “above” . is a certain definitely described lot of land capable of identification and also conveyed for the purposes of the conveyance, contains a description sufficiently identifying the property to put third persons on notice. Clark v. Dodson Printers Supply Co., 137 Ga. 324 (73 S. E. 580); Thomas Furniture Co. v. T. & G. Furniture Co., 120 Ga. 879 (48 S. E. 333).

4. A verdict for the pledgee claiming the funds caught by garnishment served upon the purchaser by a creditor of the pledgor was properly directed.

Judgment affirmed.

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


text:
    15559.
    Southern Railway Company v. Perkins.
   Stephens, J.

1. The maintenance of an air-brake hose as a part of the train-brake system required on an interstate train of cars under the Federal safety-appliance act, which is defective in that a lock-pin belonging in a coupling has become old, rusty, and worn, and has completely dropped out and causes the hose connection to fly apart, is prohibited by the act. It is immaterial that the railroad, in equipping its train as respects its air-brake system in' compliance with the provisions of this act, went beyond the imperative provisions of the act as respects the number of cars so equipped. Such negligent condition of the air-brake system in a train, before it has started upon its journey in interstate commerce and which is made up and equipped with such brake-hose coupled and connected, is nevertheless a violation of the safety provisions of this act.

2. Whether or not an employee of the railroad, who is inspecting the air-brake system upon a train while it is not in motion and before starting upon its journey, is within the protection of this provision of the act, he may nevertheless maintain a suit under the Federal employer’s liability act, against the railroad, for any injury which can be legally attributable to such negligent defect. He has not assumed the risk of such negligence, since such negligence consists in the- violation of a statute enacted for the safety of the employees of the railroad.

Decided February 24, 1925.

Action fox damages; from city court of Atlanta—Judge Reid. March 24, 1924.

Certiorari was granted by the Supreme Court.

McDaniel & Neely, for plaintiff in error.

Hewlett & Dennis, contra.

3. The petition, which was brought under the Federal employer’s liability-act, by the injured employee against the railroad company, for the injuries thus sustained, set out a cause of action, and the demurrer thereto was properly overruled.

Judgment affirmed.

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


text:
    15617.
    Graves et al. v. Campbell, ordinary, for use, etc.
   Stephens, J.

1. A bond executed and payable to the ordinary of the county in a named sum, for the use and benefit of a named female and the principal obligor’s unborn child of which she is at the time pregnant, which bond recites that the female is pregnant as aforesaid, that she and the principal desire to become married to each other, thus legitimatizing the child, and that the principal desires to support and maintain her and the child, and is conditioned that the principal shall “in good faith discharge the duties of a husband and father to the said [named female] and her unborn child, and support, maintain, and educate said child until it arrives at age of fourteen years, and live with and discharge the duties of a husband to the said [named female] until legally excused from so doing henceforward,” does not upon its face indicate whether such bond is the .statutory bond required under section 379 of the Penal Code (1910), where there is a pending-prosecution for seduction, or the statutory bond required under section 1332 of the Penal Code (1910) in bastardy cases.

2. Where, in a suit to recover against the principal and the sureties upon such a bond, it does not appear from the petition whether the principal had been prosecuted for seduction or had been proceeded against for bastardy, the suit may nevertheless be maintained upon the bond as a common-law obligation only.

3. An allegation in the petition that the bond was executed when the principal was confined in the jail of the county “charged with a criminal offense” can not, even if sufficient to do so, which it is not, aid such deficiency in the petition, where such allegation is, upon demurrer, stricken from the petition. The petition as amended stands with such allegation eliminated.

4. In such a suit an allegation in the petition that the principal, after having married the female named, “persistently refused, and continues to refuse, to comply with the condition of said bond, and has therefore breached the same,” is insufficient as against a special demurrer to show wherein there has been a breach of any of the obligations named in the bond.

Decided February 24, 1925.

Action on bond; from Murray superior court—Judge Tarver. April 5, 1924. .

William E. & IF. Gordon Mann, for plaintiffs in error.

Maddox, McCamy cG McFarland, contra.

5. A marriage entered into subsequent to the execution of the bond, between the principal and the female beneficiary mentioned in the bond, will not abrogate the obligations of the bond when construed as a common-law obligation. What effect such a marriage would have upon either of the statutory bonds referred to is not decided.

G. Whether by proper allegations in -the petition a suit can be maintained upon the bond as a statutory bond under either one of the above-cited sections of the code is not decided.

7. The petition set out a cause of action upon the bond as a common-law obligation, but was subject to the special demurrer referred to in paragraph 4 of the syllabus above.

8. It not appearing, either from the allegations in the petition or from the evidence adduced upon the trial, that the bond sued on was the statutory bond required in bastardy proceedings, the only recovery permissible is the amount of the actual damage sustained as a result of the breach of the bond. Civil Code (1910), § 5940; Penal Code (1910), § 1336; Crew v. Hutcheson, 115 Ga. 511 (3) (42 S. E. 16). The evidence shows no more than that the principal deserted and failed to support the beneficiaries for a period of about six months, and is therefore insufficient to support a verdict for the plaintiff in the full amount of the penal sum of the bond. It was therefore error for the court to overrule the defendant’s motion for a new trial.

Judgment reversed.

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


author: AcEpnENS, J.

text:
    15640.
    Rowell et al. v. Fincher.
   AcEpnENS, J.

1. A sale of corporate stock by one stockholder to another is not complete without a delivery of the stock-certificate, unless by agreement the delivery is dispensed with. Civil Code (1910), § 4125; 14 C. J. 701.

2. Whether or not an interest in a partnership can be represented by a stock-certificate, yet where a suit is instituted to recover the purchase price of the plaintiff’s interest in a certain named partnership, which it is alleged is “represented by two shares of stock,” the purchaser may, in the absence of any proof that by agreement the delivery of the stock-certificate was dispensed with, successfully defend against the suit upon tlie ground that the stock was never delivered.

.3. Where such defense was pleaded and there was evidence to the effect that the stock has never been delivered, and there was no evidence that delivery had by agreement been dispensed with, it was error for the court to fail to submit this defense to the jury.

Decided February 24, 1925.

Complaint; from Haralson superior court—Judge Irwin. April 25, 1924.

M. J. Head, Walter Matthews, for plaintiffs in error.

Edwards & Edwards, contra.

Judgment reversed,

Jenkins, P. J., and Bell, J., eoneur.


text:
    15714.
    Smith v. Heath & Co. et al.

    Decided February 24, 1925.
    Complaint; from city court of Atlanta—judge, Reid. June 2, 1924.

      Little, Powell, Smith & Goldstein, for plaintiff in error.

      Underwood, Pomeroy & Haas, Philip Weltner, Earl Sims, contra.
   Stephens, J.

1. The fact that an obligor, as the maker of a promissory note, is relieved of the obligation by some fact arising after the suit is filed, which he may plead in avoidance of the obligation, does not render him any the less an obligor in the sense in which this term is used in the constitution of this State as codified in section 6541 of the Civil Code (1910), providing that suits against “joint obligors” may be tried in the county in which either of them resides.

2. In a suit on the obligation in the county in which such obligor resides, brought jointly against him and a nonresident joint obligor, the court lias’ jurisdiction as to the latter. Such jurisdiction is not ousted by the fact that the resident defendant may plead, as against his own liability, a discharge in bankruptcy. Daniel v. Browder-Manget Co., 13 Ga. App. 392 (79 S. E. 237); McKibben v. Fourth National Bank, 32 Ga. App. 222 (122 S. E. 891). This case is distinguishable from that of Williams v. Atlanta National Bank, 31 Ga. App. 212 (120 S. E. 658).

3. In a suit on a promissory note, against a maker and an indorser, as joint obligors, it was not error to overrule a motion of the nonresident defendant to stay the proceedings as to him pending the obtaining of a discharge in bankruptcy by the resident defendant, and enter judgment for the plaintiff against the nonresident defendant, who was in default.

Judgment affirmed.

Jenldns, P. J., and Bell, J., eoneur.


author: Stephens, J,

text:
    15723.
    Williams v. Madison County Bank.
   Stephens, J,

1. A mercantile partnership may sell its entire stock of goods and retire from active business and still preserve its partnership entity for purposes of liquidation; and where such a partnership did both, a notice that the “store” had been “sold out,” given by a partner to one of its creditors during the existence of the partnership as above indicated and before the creditor took a note executed in its name by another partner in renewal of a partnership debt, was insufficient as notice to the creditor of a dissolution of the partnership, even if the sale amounted to such a dissolution.

Decided February 24, 1925.

Complaint; from Madison superior court—Judge W. L. Hodges. May 10, 1934.

Berry T. Moseley, for plaintiff in error.

Clarence E. Adams, contra.

2. The partner not in fact executing such renewal note is nevertheless bound thereon in the absence of express notice to the creditor of objection by him to the execution of the renewal note. Bank of Covington v. Cannon, 133 Ga. 779 (67 S. E. 83); Civil Code (1910), §§ 3162, 3163, 3172, 3180.

3. In a suit by the creditor, on the note, against the partnership and both of the partners individually, where undisputed evidence establishes the facts stated above, a verdict against the partner who did not in fact join in' the execution of the note was properly directed.

Judgment affirmed.

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


text:
    15483.
    Davis v. Smiley.
   Stephens, J.

1. One who is engaged in construction work on a public highway and who is in control of the highway for the purpose of doing such work, and who, in furtherance of such work, erects a substantial barricade in the roadway for the purpose of closing the road to' public travel, and who continues to have control over the barricade while it remains in the roadway, is under a duty to maintain the barricade with due care and diligence to- avoid damage from its maintenance - to any one traveling along the road. This is true irrespective of whether there is any liability on the part of the county employing him. See, in this connection, Arnold v. Henry County, 81 Ga. 730 (8 S. E. 606).

2. A petition in a suit against the person responsible for the maintenance of the barricade, which alleges that the petitioner was traveling along the road at night in the dark in an automobile, and that, by reason of there being no lights upon the barricade or other warning to him of its existence in the road, he came suddenly upon it, and by reason of such facts was, from necessity, in order to avoid hitting the barricade, forced to swerve the automobile from the road, and, as a result thereof, the automobile ran into an embankment by the side of the road, to his damage, etc., contains an allegation of the petitioner’s' ignorance of the existence of the barricade in the road, and contains allegations from which it can be inferred as a fact that the damage sustained by him was caused by the defendant’s negligence.

3. Assuming that the petition, when properly construed, alleges negligent acts on the part of the petitioner, in the manner of the operation of the automobile at the time and place alleged, it is not conclusive, as a matter of law, that such negligence, when taken in connection with the alleged negligence of the defendant, was the proximate cause of the petitioner’s damage.

Decided February 25, 1925.

Action for damages; from Bibb superior court—Judge Malcolm D. Jones. February 9, 1924.

G. L. Bartlett, Bilis & Glaivson, for plaintiff in error.

B. Smythe Gambrell, Underwood, Pomeroy & Haas, Harris, Harris & Popper, contra.

4. A failure of the petition, when alleging that the tort arose about 400 yards from Mallory Station, between it and Atlanta, on a public highway near the tracks of the “A., B. & A. Railroad,” to allege that the tort occurred within the State of Georgia or within a county in the State is not such a defect as would render the petition subject to a general demurrer. See, in this connection, 13 Am. & Eng. Enc. -Law, 1060 et seq.

5. The petition set out a cause of action and was not subject to the general demurrer or to any of the special grounds of demurrer interposed.

Judgment affirmed.

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


text:
    15543.
    Black v. Chapman.
   Stephens, J.

1. The principle that where both parties have equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity of land sold .by the tract, where the land is described as so many aeres “more or less,” can not be apportioned, does not apply where the purchaser relies upon representations of the seller amounting to actual fraud and known by the seller to be false. See, in this connection, Emlen v. Roper, 133 Ga. 726 (66 S. E. 934); Kendall v. Wells, 126 Ga. 343 (55 S. E. 41); Finley v. Morris, 116 Ga. 758 (42 S. E. 1020). The decision in Tallent v. Crim, 19 Ga. App. 16 (90 S. E. 742), and decisions there cited, apply to cases of fraud other than that evidenced by a gross deficiency in the acreage of land sold by the tract.

2. Where the owner of improved farm land shows it to one who desires to purchase it for farming purposes, and the owner represents that the land contains 75 acres, points out two of the boundary lines, which are exceedingly long, and leads the prospective purchaser to believe that the other boundary lines are correspondingly long, when in fact the owner knows that the land does not contain 75 acres, and makes such representations and points out such boundaries for the purpose of wilfully and knowingly deceiving the prospective purchaser, and does so deceive him, and the latter, relying upon such representations, purchases the land, when the tract- in fact contains only about 44 acres, the purchaser may, under the Civil Code (1910), § 4122, obtain an apportionment of the purchase price on account of fraud.

Decided February 25, 1925.

Action lor damages; from Habersham superior court—Judge J. B. Jones. January 31, 1924.

W. 8. Erwin, Robert McMillan, for plaintiif in error.

Egbert Beall, Pemberton Cooley, contra.

3. A charge to the jury in this case, to the effect that if the defendant, who was the seller, had knowledge that there were less than 75 acres in the tract, and told the plaintiff, who was the purchaser, that the tract contained 75 acres, and the plaintiff relied upon that information and bought the property, believing that he was getting-75 acres, the jury could consider whether or not such conduct on the part of the defendant amounted to such fraud as would authorize the plaintiff to recover for any deficiency in the land sold, was not subject to exception upon the ground that the court failed to instruct the jury that if the plaintiff had equal opportunity of ascertaining the acreage or judging for himself as to the quantity of the land, and both acted in good faith, a recovery could not be had for any deficiency in the number of acres.

4. Where the court charged the jury that if nothing indicating the acreage was said by the seller to the purchaser, and if the purchaser bought the land, taking a deed to it, as containing 75 acres more or less, the expression “more or less” worild cover any deficiency which does not justify a suspicion of wilful deception or mistake equivalent thereto, and that if there was such a deficiency as would indicate a wilful deception, the purchaser would be entitled to recover therefor, such charge was not subject to the exception that it was equivalent to an instruction to the jury that if anything was said by the seller to the purchaser indicating the acreage, the seller would be liable in damages.

5. Conversations between the seller and the purchaser which tend to show that the land was sold by the acre, while irrelevant to establish a contract of sale by the acre and to change the effect of the deed, are nevertheless relevant as illustrating fraud. Estes v. Odum, 91 Ga. 000 (18 S. E. 355).

6. The purchaser is entitled to the value of his bargain; and it was therefore not error to exclude evidence to the effect that the acreage actually received was worth the purchase price.

7. The general rule being that tlie amount recoverable for such a deficiency is determinable by the proportion which the quantity represented bears to the quantity actually received, it is immaterial that the quantity of land actually received was more valuable in proportion than the adjoining land necessary to supply the deficiency; and such evidence was properly excluded. Bowen v. Mayo, 31 Ga. App. 575 (4) (121 S. E. 422).

8. Certain evidence objected to as immaterial was harmless to the defendant.

9. The petition set out a cause of action; the verdict found for the plaintiff was authorized by the evidence, and no error of law appears.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    15570.
    Carolina Portland Cement Company v. Roper-Strauss-Ferst Company.
   Stephens, J.

1. Where a purchaser has rejected a tender of delivery which under the terms of the contract he was not at the time bound to accept, and where he afterwards, by a valid agreement, waives his right to reject and agrees to accept the property, the latter agreement constitutes a novation of the original contract, in so far as it affects the particular property. The seller may, upon a violation by the purchaser of the latter agreement in refusing to accept the property, store the property for the purchaser’s benefit, and, after due notice to the purchaser, sell it and credit the proceeds of the sale on the contract price, and recover of the purchaser the difference.

2. Where in such a case the seller sought to recover from the purchaser not only upon the alleged new contract, but also to recover the contract price of other property tendered by the seller and actually accepted by the purchaser under the original contract, and where the rejected property which was the subject-matter of the alleged new contract, and some of the other property ordered and accepted under the original contract, had been shipped in six freight-cars, and where the purchaser contended that the six freight-cars were shipped prematurely, in violation of the terms of the original contract, and where the prtrehaser did not afterwards use any of the rejected property, but did use the property ordered and accepted which was shipped in one of the six freight-cars, a charge by' the court to the following effect was calculated to mislead the jury into the belief that an acceptance and use by the purchaser of that part of the property which it had actually ordered and accepted and which was shipped in one of the six freight-ears amounted to an acceptance of the other property, which the purchaser had rejected and the possession of which the seller had retained: “If the plaintiff shipped to the defendant six carloads which were not ordered out, the defendant would not be under any obligation to accept, under the terms of this contract, the tile so shipped; and that would be a breach of the plaintiff’s contract; but if the plaintiff did ship six cars of tile to the defendant, without it being ordered out under the terms of the contract, and the defendant (if you find it to be a fact) used any portion of this tile in the construction of the building referred to in the contract, or if the defendant agreed to accept the tile notwithstanding it may have been shipped without being ordered out, then the defendant would be liable to the plaintiff.”

3. If at the time of the execution of the original contract of sale the seller knew that the purchaser was under a contract to resell the property contracted to be purchased, damages resulting from a loss to the purchaser of the profits inhering in his contract of resale, caused by the seller’s breach of the original contract, would be recoverable. Civil Code (1910), § 4395; Ladd Lime & Stone Co. v. McDougald Construction Co., 29 Ga. App. 116 (2).

4. Where the original contract of sale provides that the property shall be shipped and delivered only when the purchaser directs, a shipment by the seller and a tender of delivery to the purchaser, when made prematurely and before the shipment has been directed by the purchaser, is not a shipment and tender by the seller in accordance with the terms of the contract. Although the shipment and tender of delivery be made prematurely and not in accordance with the provisions of the contract, yet the purchaser, having the right to demand delivery at any time during the continuance of the contract, may waive such premature tender of delivery and treat it as a performance of the contract by the seller in so far as respects the time of shipment and delivery. This the purchaser could do notwithstanding an actual rejection by him of the property and a refusal to accept delivery when the rejection might be justified on account of a nonconformity of the property, as to quality, with the provisions of the contract. This waiver may be asserted and relied upon at any time as against the seller, who is forever estopped from taking advantage of his own violation of the contract in making a premature shipment and delivery of the property. Where the nonconformity of the property as to quality with the terms of the contract constitutes a breach by the seller of the contract made in contemplation of the purchaser’s contract of resale, and prevents the purchaser from performing under his contract of resale, the purchaser may for such breach by the seller recover any damages sustained by him representing the loss of profits inhering to him in his contract of resale.

Decided February 25, 1925.

Complaint; from Fulton superior court—Judge Bell. February 16, 1924.

McDaniel & Neely, for plaintiff in error.

Etheridge, Sams & Etheridge, contra.

5. It was error to strike the defendant’s plea setting up a counterclaim, and also to charge the jury as indicated in paragraph 2 of the syllabus above. No other error of law appears.

Judgment reversed.

JenJdns, P. J., and Bell, J., concur.


text:
    15614.
    Whitestone Marble Co. v. Willingham Stone Co.
   Stephens, J.

1. In a suit in trover, where the evidence presented an issue of fact as to whether the person through whom the defendant acquired the property and through whom he claimed to have bought it had authority, as agent for the plaintiff, to sell the property, communications afterwards made from the plaintiff to the defendant, in which the plaintiff did not repudiate the act of the alleged agent, but in which he sought negotiations with the defendant solely for the purpose of settling the matter relative to the property in controversy by a payment from the defendant to the plaintiff of an amount to be mutually agreed upon by them as the value of the property, while possessing strong probative value as a ratification of the act of the alleged agent as constituting a sale of the property, and while strongly tending to establish the entire transaction as a sale, can not, although the plaintiff lmd never made any demand for a return of the property, be regarded as conclusively and as a matter of law establishing the transaction as a sale. Under the evidence the jury would have been authorized to find that there had been no sale, but that the title to the property was in the plaintiff, and that the property had been converted by the defendant. The court therefore erred in directing a verdict for the defendant.

Decided February 25, 1925.

Trover-; from Fulton superior court—Judge Bell. March 24, 1924.

Etheridge, Sams & Etheridge-, for plaintiff.

George F. Gober, for defendant.

2. A letter written to the defendant by a stranger to the transaction, as set out in ground 6 of the amendment to the motion for a new trial, narrating some of the incidents of the transaction, being hearsay, was improperly admitted in evidence.

3. Where the alleged agent had testified that he possessed authority from the plaintiff to sell certain property belonging to the plaintiff, which included the property which is the subject-matter of this litigation, and that he made a sale of the other property, which the plaintiff did not complain of, it was not error to admit the agent’s testimony as to such sale.

Judgment reversed.

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


text:
    15621.
    Georgia Mountain Orchards v. Jones & Stewart.
   Stephens, J.

1. Where a purchaser under a contract for the sale of personal property breaches the contract by a refusal to accept delivery thereunder, the seller may retain the property as his own, and may recover, as damages for such breach, the difference between the contract price and the market value of the property contracted for at the time and place for delivery. This is true although the seller actually sells the property in a foreign market at a price in advance of the market value at the place for delivery. The purchaser, having breached the contract, can not appropriate to his own benefit the ingenuity and business acumen of the seller in making a profit upon a sale of his own property in another market after incurring the risks and hazards incident thereto. Georgia Refining Co. v. Augusta Oil Co., 74 Ga. 497 (2).

2. Where the commodity sold was peaches to be delivered at Hollywood, Habersham county, Georgia, the price brought by the particular peaches when sold by the seller in New York or Philadelphia was insufficient, when not supplemented by other testimony, to establish their market value at the place for delivery in Habersham county. Besides, the invoice by which it was sought to establish their value, being made by a stranger to the litigation, was inadmissible, as being hearsay.

3. In a suit by the seller, where the petition as amended seeks to recover for an alleged breach of the contract by the purchaser in refusing to accept the property when tendered, and prays for damages in an amount alleged as being tbe difference between tbe contract price and tbe market value at tbe time and place for delivery, the plaintiff’s right, on his case as laid in the amount sued for, is not defeated upon proof of a subsequent resale of the property by the seller after its rejection by the purchaser, where it does not appear that the seller had in fact sold the property for the purchaser’s benefit after due notice to the purchaser of the seller’s intention so to do. Civil Code (1910), § 4131. An admission by the seller (as in a stricken allegation in the petition) that the property was resold by him as above indicated, and that his damage is the difference between the contract price and the price obtained by him upon the resale, is, where it nowhere appears that the seller had given to the purchaser the required notice of the seller’s intention to sell the property for the purchaser’s benefit, insufficient to establish as a fact that the seller had actually retained and sold the property for the purchaser’s benefit. See, in this connection, Rowland Co. v. Kell, 27 Ga. App. 107 (107 S. E. 602); Harris v. Vallee, 29 Ga. App. 769 (116 S. E. 642).

Decided February 25, 1925.

4. A contract for the sale of an entire crop of peaches of, a certain definite description, which contemplates a delivery in different quantities at different times, is an entire contract, and a rejection of a part of the peaches by the purchaser when tendered under the terms 'of the contract is a breach of the entire contract, and the seller is entitled to recover the damages sustained by him as a result of the entire breach. See, in this connection, Robson v. Hale, 139 Ga. 753 (78 S. E. 177); Southern Upholstering Co. v. Lieberman, 27 Ga. App. 703 (2) (109 S. E. 509).

5. It was harmless to the purchaser to exclude certain evidence by the person who aided in the packing of the peaches, that while packing the peaches he observed that some of them were affected with brown rot, since the evidence offered fails to show what percentage of the peaches being packed were affected with brown rot. Since the contract provided for a sale of “all the merchantable . . peaches” which were “free from rot,” etc., out of a certain orchard, evidence that some of the peaches packed and tendered were affected with rot and which did not show what percentage of the peaches were so affected, was insufficient to show that the entire carload of peaches tendered were to any substantial degree affected with rot; and especially is this true when it appears from the evidence that the purchaser had opened and inspected many of the crates tendered and found no such defect, and afterwards rejected the tendered peaches upon the sole ground that they were overripe and spray burned.

6. The petition as amended alleged the place of delivery and the market value at such place, and was not subject to the demurrer based upon the ground that such allegations did not appear in the petition.

7. The evidence authorized the verdict found for the plaintiff; and, applying tlie above rulings, no error of law appears.

Judgment affirmed.

Jenkins, P. J., a.nd Bell, J., concur.

Action for breach of contract; from Habersham superior court— Hammond Johnson, judge pro hac vice. March 8, 1924.

Application for certiorari was denied by the Supreme Court.

H. A. Wilkinson, I. E. Sullon, for plaintiff in error.

J. 0. Edwards & Son, Charters, Wheeler & Lilly, contra.


text:
    15659.
    Southeastern Express Co. v. Nightingale, executor.
   Stephens, J.

1. Declarations made by tlie driver of an automobile, after it liad collided with another automobile in front of a residence, to a person who, immediately upon hearing the impact of the collision, came out of the residence to the scene of the trouble, to the effect that the collision was caused by some trouble with the brakes of the car which the declarant was driving, and that he could not control his car to prevent it from hitting the other car, were, in a suit by the owner of the damaged car against the employer of the driver, to recover for damage resulting from the collision, properly admitted as part of the res gestee of the transaction, where it appeared that the declarations were made immediately after the collision and bore such a relation to the occurrence that they were spontaneous and uncalculatingly made and were free from afterthought.

2. Where the court, after having charged the jury that if the plaintiff’s negligence contributed to the injury there could be no recovery, charged them to the effect that the plaintiff would be entitled to recover upon showing that any act of negligence of the defendant contributed to the injury, the latter charge was not objectionable upon the ground that the court did not in the same connection charge as to the effect of the plaintiff’s negligence in having no tail-light upon the plaintiff’s automobile.

3. Without regard to the evidence as to a defect in the brakes of the automobile causing the collision, it was clearly inferable that the collision was caused by reason of the defendant’s automobile not being-under proper control by the driver; and the charge of the court based upon such a theory of the evidence was not error.

4. A charge that the measure of damages was the difference between the “price” of the automobile at the time it was damaged and its value afterwards was not objectionable in that the word “price” was erroneously used in place of the word “value,” when immediately after-wards the court used the word “value” to express the same idea as was expressed by the use of the word “price,” and elsewhere in the charge instructed the jury that in determining the measure of damages they should consider the value of the automobile at the time it was damaged.

5. Testimony as to the value of an automobile, by a witness who, it appears from the evidence, had dealt in automobiles for about ten years, was competent as opinion evidence as to value.

6. There being evidence to authorize the inference that the damage to the automobile as a result of a collision between it and the defendant’s automobile was in the amount found by the jury, and it being, under the evidence, a question for the jury as to what extent, if any, the plaintiff’s negligence contributed to the damage, the verdict can not be considered as excessive.

Decided February 25, 1925.

Action for damages; from city court of Brunswick—Judge Butts. April 4, 1924.

Application for certiorari was denied by the Supreme Court.

B. D. Header, for plaintiff in error. F. M. ScarleU, contra.

7. The evidence authorized the verdict rendered for the plaintiff, and no error of law appears.

Judgment affirmed.

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


text:
    14295.
    Wynne v. Southern Bell Telephone & Telegraph Co.
    Decided February 26, 1925.
    Action for damages; from city court of Atlanta—Judge Reid. January 16, 1923.
   Stephens, J.

1. Whatever duty may rest upon a court to take judicial notice that a certain “telephone system and every part thereof within the jurisdiction of the United States, including all equipment thereof and appurtenances thereto whatsoever and all materials and supplies,” were at a particular time under Federal control, a court can not take judicial notice that any particular physical property was a part of the equipment or appurtenances of a telephone system, etc., and was therefore at a particular time under Federal control, unless it appears that at that time such property was in fact under Federal control or was in fact a part of the equipment and appurtenances, etc., of a telephone system within the jurisdiction of the United States.

2. A stairway in a building in which a telephone company during the period of Federal control had an office under Federal control, to which office its patrons came to pay their telephone-service bills, and which stairway was used by such patrons for such purpose, and was inferentially used by the entire building, which building inferentially contained other offices, not shown to have been under Federal control, is not shown to have been essentially a telephone equipment or telephone appurtenance, and such stairway is not by such facts shown to have been actually under Federal control. A court therefore can not without further proof know from such facts that the stairway was in fact at the time under Federal control.

3. Applying the foregoing rulings and the rulings of the Supreme Court in answer to a certified question propounded in this case (159 Ga. 623, 126 S. E. 388), a petition against the telephone company by a person alleged to have been injured in a fall on a stairway caused by an alleged defect in the manner in which the stairway was maintained, set out a cause of action, and the general demurrer thereto should have been overruled.

Judgment reversed.

Bell, J., concurs. Jenkins, P. J., disqualified.

Application for certiorari was denied by the Supreme Court.

E. B. Blackburn, Hewlett & Dennis, for plaintiff.

McDaniel & Neely, W. 0. Wilson, for defendant.


text:
    15329.
    Johnson-Battle Lumber Co. v. The Emanuel Lumber Co.
    Decided February 25, 1925.
    Complaint; from Colquitt superior court—Judge W. E. Thomas. December 31, 1933.
   Stephens, J.

1. Where, after one half of the capital stock of a corporation, which belongs to one person, who owns the entire capital stock, is acquired by new stockholders, and all the new stockholders apply for articles of incorporation and become incorporated for the same objects and purposes under a charter creating a new corporation having in effect the same name, which takes over the entire assets and business of the old corporation as well as its stockholders, who become stockholders of the new corporation, and operates the new corporation in the same place and in the same manner in which the old corporation was operated, and becomes liable for the debts of the old corporation, the new corporation, by reason of such identity of name, objects, assets, and stockholders, is but a continuance of the old corporation, and the new corporation is liable for the debts and obligations of the old corporation. 14 (A) G. J. 1038; 7 R. C. L. 188.

2. In a suit by such a new corporation, the style of which was The Emanuel Lumber Company, to recover the unpaid purchase-money on a contract of sale entered into between it and the defendant, which contract arose out of an order sent by the defendant to the old corporation, Jut which was accepted and filled by the new corporation, the defendant could set off damages arising out of an alleged breach by the old corporation, the style of which was Emanuel Lumber Company, in failing to make deliveries under a contract of sale entered into between it and the defendant.

3. The contract of sale, whereby the sole stockholder of the old corporation transferred part of his interest therein, establishes no rights between the parties to the pending suit, and is therefore only incidentally and collaterally material to the suit. Permitting proof of the execution of such contract otherwise than by the testimony of the subscribing witnesses thereto was not error. Civil Code (1910), § 5833 (4); Prescott v. Fletcher, 133 Ga. 404 (3) (65 S. E. 877).

4. In such a suit, where the evidence authorized an inference that the defendant sustained damage as alleged in the set-off, and further authorized the inference that one corporation was but a continuance of the other, the jury were authorized to find for the defendant, and the verdict directed for the plaintiff was error.

Judgment reversed.

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

Hill & Gibson, for plaintiff in error.

E. K. Wilcox, contra.