text:
    15450.
    Scearce v. Mayor and Council of Gainesyille et al.

   Jenkins, P. J.

1. The general rule of law is that a municipal corporation is bound to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, by night as well as by day, and if it fail to do so, it is liable for damages for injuries sustained in consequence of such failure. A municipal corporation is liable for injuries caused by its neglect or omission to keep its streets and sidewalks in repair, and may be liable for those caused by defects occasioned by the wrongful acts of others. In the latter class of cases the foundation of the action is negligence. Mayor &c. of Atlanta v. Perdue, 53 Ga. 607, 608; Mayor &c. of Milledgeville v. Cooley, 55 Ga. 18 (1); Chapman v. Mayor &c. of Macon, 55 Ga. 566 (1), 568; City of Augusta v. Tharpe, 113 Ga. 152 (3) (38 S. E. 389).

2. “An owner of property abutting upon a street or highway is not, by virtue of being such owner, liable for defects in the street or highway. But this rule has no application where the owner of abutting property creates a defect in a street or highway or a nuisance therein. In the latter event he is liable, not because he owns the abutting property, but because he creates or maintains the thing from which injury results.” Ga. Ry. & Electric Co. v. Tompkins, 138 Ga. 596, 599 (2) (75 S. E. 664).

3. It is a well-established general rule that, “where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person,.the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages; and in such case a joint action against them can not be maintained.” Armstrong v. Southern Ry. Co., 29 Ga. App. 418 (116 S. E. 31); Schneider v. City Council of Augusta, 118 Ga. 610, 611 (45 S. E. 459); Ga. So. & Fla. Ry. Co. v. Corry, 149 Ga. 295, 301 (99 S. E. 881); City of Albany v. Brown, 17 Ga. App. 707 (88 S. E. 215); United Cigars Co. v. Ga. Ry. & Power Co., 27 Ga. App. 198 (107 S. E. 781); Brooks v. Ashburn, 9 Ga. 297 (3); Key v. Armour Fert. Works, 18 Ga. App. 472 (89 S. E. 593).' But it is also true that, even though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several combine naturally and directly to produoe a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred. 38 Cyc. 488-490; 22 L. R. A. 261; Aaron v. Coca-Cola Bottling Co., 143 Ga. 153, 155, 150 (84 S. E. 556); Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288, 289 (100 S. E. 713). Thus, where two concurrent causes naturally operate in causing an injury, there can be a recovery against both or either one of the responsible parties (Bonner v. Standard Oil Co., 22 Ga. App. 532, 535, 96 S. E. 573; Kelly v. Ga. Ry. & Power Co., 24 Ga. App. 439 (4), 444, 101 S. E. 401; Central of Ga. Ry. Co. v. Macon Ry. Co., 9 Ga. App. 628 (4), 71 S. E. 1076; Akin v. Brantley, 26 Ga. App. 326, 106 S. E. 214; Central of Ga. Ry. Co. v. Garrison, 12 Ga. App. 369, 77 S. E. 193; Barrett v. Mayor &c. of Savannah, 9 Ga. App. 644, 72 S. E. 49); and this is true although the duty owed to the complainant by both parties defendant may or may not have been the same. Gooch v. Ga. Marble Co., 151 Ga. 462 (107 S. E. 47); Cen. of Ga. Ry. Co. v. Wheat, 32 Ga. App. 151 (122 S. E. 794); Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (5) (116 S. E. 57); Byne v. Mayor &c. of Americas, 6 Ga. App. 48 (3) (64 S. E. 285). In the instant petition, brought jointly against a municipality and the owner of a building and basement adjoining and beneath a sidewalk, on account of a broken air-vent maintained by the owner in the sidewalk, the allegations sufficiently charged concurrent acts of negligence on the part of the defendants, naturally contributing to the injury, such as would support a joint action against both; especially is this true since the petition as amended specifically charges not only legally concurring acts of negligence, but actual and definite concert of action with reference thereto.

(a) The case of Schneider v. City of Augusta, 118 Ga. 610, 611 (45 S. E. 459), concerned the right of the city to exact contribution from the property owner after vouching him into court under the statute. Civil Code (1910), § 5821. As stated in the opinion in that case, the sole question was “whether, under the pleadings and the evidence, the city was a joint tort-feasor with the defendant (property owner), so as to prevent its claiming contribution from him in the judgment paid'by it to” the person injured. The only ruling in that case was to the effect that the status of joint tort-feasors was not such as would prevent the city from having the right of contribution over against the property owner. That the status of mere joint tort-feasor does not necessarily bar the right of contribution, see Central of Ga. Ry. Co. v. Macon Ry. & Lt. Co., 140 Ga. 309, 313-317 (78 S. E. 931); Central of Ga. Ry. Co. v. Swift & Co., 23 Ga. App. 346 (98 S. E. 256). However, it is xxnnecessaxy to detei'mine in this decision whether, under the pax-ticxxlar facts alleged by the petition, the defendant municipality, if it should be held liable to the plaintiff, would be entitled, under sectioxx 5821 of the Civil Code (1910), to a remedy over against -the defendant property owner as primarily responsible for the alleged injury. See, in this connection, W. & A. Railroad v. Atlanta, 74 Ga. 774 (2-6); Faith v. Atlanta, 78 Ga. 779 (4 S. E. 3); Raleigh R. Co. v. W. & A. R. Co., 6 Ga. App. 616, 617 (65 S. E. 586); Cen. of Ga. Ry. Co. v. Macon Ry. & Lt. Co., 9 Ga. App. 628 (2, 3, 4), 631-635 (71 S. E. 1076); Byne v. Mayor &c. of Americus, 6 Ga. App. 48, 50 (64 S. E. 285); Union Stock Yards Co. v. Chicago &c. R. Co., 196 U. S. 217 (25 Sup. Ct. 226) 49 Law ed. 453, 2 Ann. Cas. 525); Washington Gaslight Co. v. District of Columbia, 161 U. S. 316 (16 Sup. Ct. 564, 40 L. ed. 712).

4. “It is not a prerequisite to sxxit against a municipal corporatioix in this State, for injury to person or property, that the written notice required under the Civil Code (1910), § 910, should specify any amount of money claimed as damages.” Maryon v. City of Atlanta, 149 Ga. 35 (99 S. E. 116). The statute, Being “in derogation of common right” and subject to strict construction as against the municipality, “does not require absolute exactness of description, but simply that information as to the matters referred to may be given with sufficient definiteness to enable the city authorities to examine into the alleged injuries and determine whether the claim shall be adjusted without suit.” Langley v. Augusta, 118 Ga. 590 (11), 600 (45 S. E. 486, 98 Am. St. Rep. 133). “The amount, if stated, would not be binding upon the person injured in a subsequent suit for the.injury; for it has often been held by many courts of last resort that the plaintiff in such action could sue for a greater or less amount than that stated in the prior notice, and could recover for a larger or lesser amount.” ’ Mary on v. Oity of Atlanta, supra; 19 R. C. L. 333. The statute having been substantially complied with, and there being no material variance between the notice to the defendant municipality and the allegations of the petition as amended, those grounds of the demurrers which complain of alleged variances in the amounts and items of damage claimed and in the description of the injuries sustained are without merit.

Decided February 11, 1925.

Action for damages; from city court of Hall county—Judge Sloan.. February 21, 1924.

Application for certiorari was denied by the Supreme Court. The action was against a municipality and an individual jointly for damages on account of personal injuries. The petition alleged: that the plaintiff, while walking in the darkness along a sidewalk by the side of a building, owned by the individual defendant, fell “into a hole caused by broken tiles in the said sidewalk and broken air-vent into the basement of the building,” the broken tiles turning with him as he stepped thereon, so that he “partially fell into the said hole;” that this hole opening under the building was “about 24 inches wide and several feet deep, only partially covered, . . dangerous in character, unlighted, and without a barrier to protect foot-passengers, and that the said covering was not fastened.” It is further alleged that the municipality, under its charter, was “authorized to lay out streets and sidewalks . . and to keep the same in a reasonably safe condition for travel by the public,” and that the sidewalk in question had been thus previously laid out and opened to the- public. The averments of negligence were: that “the said municipal corporation and the said [individual property owner] were negligent in having such dangerous hole on and in the sidewalk and in the side of the building where individuals constantly passed;” that both defendants “were negligent in not having the said hole in a safe condition, because the said hole was not properly constructed and was of unsafe design, . . in not having notified the public of the condition of the said sidewalk and of the said hole, and in not guarding the same, and in not having inspected the same, and providing the same with lights or warning to foot-passengers on said sidewalk,” and “in leaving the said dangerous hole in the said sidewalk, in the following particulars, to wit, the tile blocks of said sidewalk should have been securely fastened and in a state of repair, and the said hole should have been covered by the said defendant [city], that the said [individual] defendant should have guarded and protected the said hole leading into the basement of the said . . building by a barrier or guard of some nature, and that both the said defendants were negligent.” An amendment set forth actual notice by the municipality of the defective condition,—that “several weeks before plaintiff was injured,” a named person, “one of the said council of said city and chairman of the committee on streets and sidewalks, notified . . the [defendant] owner of the property along which said sidewalk extended, and required him to remedy said dangerous and defective condition, some weeks before plaintiff was injured as set forth, . . whereupon said [individual defendant] told said [councilman] to have the city repair the sidewalk and remedy the defective and dangerous condition aforesaid, and that he, said [individual defendant] would pay the cost of the work, which said [councilman] agreed to for the city, but neither said city . . or said [individual defendant] did remedy the said defect, and plaintiff was injured in consequence.” The defendants demurred to the petition generally and specially, upon various grounds, including that of misjoinder. The trial judge sustained the demurrers and dismissed the petition, and the plaintiff excepted.

5. The court erred in dismissing the petition, on the demurrers.

Judgment reversed.

Stephens and Bell, JJ., concur.

E. B.'Dunlap, H, H. Perry, for plaintiff.

Dean & Wright, Hammond Johnson, for defendants.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    15451, 15492.
    Watson v. Kvaternik; and vice versa.

    Decided February 11, 1925.
    Motion to vacate service entry; from Baldwin superior court— Judge Park. February 9, 1924.

      Allen & Pottle, for plaintiff in error.

      Sibley & Sibley, contra.
   Stephens, J.

1. The judgment excepted to being a judgment overruling a motion of the defendant in a civil suit to vacate the service, upon the ground that it was void, this court has jurisdiction to review the judgment, since a judgment in accordance with the contention of the movant would have been a final disposition of the case. Civil Code (1910), § 6138; Ray v. Hicks, 146 Ga. 685 (92 S. E. 48). The motion to dismiss the bill of exceptions, therefore, is without merit.

2. A witness is exempt from civil process while in attendance upon court. Fidelity &c. Co. v. Everett, 97 Ga. 787 (25 S. E. 734). A witness when served with process while in attendance upon court may assert his privilege of exemption by a motion to vacate the service, filed in the court in which the suit is pending. See, in this connection, Thornton v. American Writing Machine Co., 83 Ga. 288 (9 S. E. 679, 20 Am. St. Rep. 320).

3. Since such a proceeding sets up a privilege of exemption only from service of the process, and therefore no issue as to the truth or the falsity of the return of the officer serving the process is involved, it is not essential to the jurisdiction of the court to entertain the motion that such officer be made a party thereto.

4. Where the person so served with process, after filing such motion to vacate, files a demurrer to the suit served upon him, the demurrer will not operate as a waiver of his right to assert his exemption from service by the motion already filed.

5. That the issues raised in the motion to vacate should be tried by a jury is not a ground for demurrer by the respondent to the motion.

6. The undisputed evidence establishes conclusively, as a matter of law, that the service perfected upon the movant was void, upon the ground that the movant was, under the circumstances, exempt therefrom, and the judgment of the trial court overruling the motion was without evidence to support it and contrary to law.

7. The above disposes of all of the exceptions insisted upon.

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

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


text:
    15462.
    Redpath Chautauquas Inc. v. Parks et al.

   Stephens, J.

1. An agreement whereby one of the joint obligors under a contract, without the knowledge or consent of the other joint obligors, is released from his obligations thereunder amounts to a release of the other obligors. Civil Code (1910.), § 4309; Powell v. Davis, 60 Ga. 70; Warthen v. Melton, 132 Ga. 113 (4) (63 S. E. 832, 131 Am. St. Rep. 184).

Decided February 11, 1925.

Complaint; from city court of Dawson—Judge Edwards. March 1, 1934.

See 39 Ga. App. 115.

Lippilt & Burl, for plaintiff.

R. R. Jones, H. A. Wilkinson, for defendants.

2. Such a contract of release is not precluded by a provision in the first contract that “no verbal or other agreements are valid unless incorporated ,in writing in this contract,” and that “any changes made in the above contract by any agent of the first party are made subject to the approval of” a named person described as. “manager.”

3. Notwithstanding a provision in the first contract that any changes made therein by any agent of the obligee “are made subject to the approval of” a named person described as “manager,” an agreement subsequently made,—as, for example, a release of one of the joint obligors as above indicated,—although made by an agent of the obligee who has no authority in fact to make such an agreement and who is a person other than the “manager” named in the first contract, and although not approved by such “manager,” may nevertheless, when ratified by the obligee, become a binding obligation between the parties and supersede any provision in the first contract.

4. A written" contract made in behalf of the obligee by one having no authority so to do, in consideration of a sum of money actually paid by one of the obligors, whereby the latter is released from liability under the contract, is nevertheless ratified and becomes a binding obligation between the obligor and the obligee upon receipt of the money and the retention of the same by the obligee with knowledge of the facts; and such knowledge is conclusively shown by the obligee’s possession of the executed contract of release.

5. After the ratification has taken effect, the act of the agent can not be disaffirmed or repudiated by the principal, as by an offer on the part of the principal to return the funds, the receipt of which by the agent the principal had accepted and thereby ratified.

6. In a suit on the first contract by the obligee against all of the obligors thereto, including the one released, the court properly directed a verdict for the defendants.

Judgment affirmed.

J enldns, P. J., and Bell, J., conew.


text:
    15475.
    Sutton v. Bank of Oglethorpe et al.

   Stephens, J.

1. The rule that the burden of proving that one is a laborer lies upon the one asserting a laborer’s lien does not apply where a judgment foreclosing a laborer’s lien is collaterally attacked by a stranger.

2. Where two judgment creditors are contending for a fund upon a money rule against the levying officer, and the claim of one of the judgment creditors is based upon a judgment foreclosing a laborer’s lien, and where the former flies a traverse denying that the one who had asserted the laborer’s lien was a laborer, the burden of proof, if a traverse lies in such a proceeding, is upon the creditor filing the traverse.

Decided February 11, 1925.

Money rule; from city court of Oglethorpe—Judge Harper presiding. ■ February 20, 1924.

Gilbert G. Robinson, for plaintiff in error.

John M. Greer, John B. Guerry, Joseph W. Popper, contra.

3. Where the evidence in support of such traverse is to the effect that the work performed by the alleged laborer was as a clerk in a mercantile store, in the discharge of such duties as selling merchandise, receiving goods from the depot, opening them and putting them on the shelf, dusting the goods, delivering goods to customers, filling cars with gasoline and oil, washing showcases and windows, removing spider-webs from the walls and ceiling, making boxes, shipping, and reshipping goods not acceptable, and doing work as a general “flunkey” around the store, having charge of the business when the proprietor was absent, showing and selling goods to customers, helping the proprietor straighten out the goods and marking the price thereon, helping with the books and assisting in posting them, figuring accounts due by customers and receiving payments from them, extending credit to customers, dealing with drummers or salesmen and sometimes buying goods from them, and it nowhere appearing from the evidence what amount of such work required “mental skill or business capacity” or involved the “exercise of . . intellectual faculties,” the evidence was insiifficient to support a finding that he was not a laborer; and therefore the judgment- finding against the traverse was as a matter of law demanded, and the granting of a new trial upon this issue was error. Oliver v. Macon Hdwe. Co., 98 Ca. 249 (25 S. E. 403, 58 Am. St. Rep. 300).

4. It appears without dispute that the judgment based upon the alleged laborer’s lien had priority as a matter of law over all other liens, including the mortgage lien of the bank of Oglethorpe; and a judgment establishing it as a first lien upon the fund was, as a matter of law, demanded, and such judgment was erroneously set aside upon a motion for a new trial. Baisden v. Holmes, 4 Ga. App. 122 (60 S. E. 1031); Civil Code (1910), § 3334.

5. It is doubtful whether the motion for a new trial, which was based on the general grounds in the regular form, and which did not specifically complain of the judgment on the traverse, raised any question for consideration other than the sufficiency of the evidence upon the priority of the liens; but since the granting of a new trial and the setting aside of the final judgment was erroneous for the reasons already stated, it is unnecessary to decide this latter question.

Judgment reversed.

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


author: Stephens,'J.

text:
    15486.
    Shafer v. Carson.
    Decided February 11, 1925.
    Complaint; from city court of Barnesville—Judge Eeclding. February 9, 1924.

      C. J. Lester, for plaintilf in error.

      Claude Christopher, contra.
   Stephens,'J.

1. Tlie only evidence of fraud alleged upon the part of the defendant as inducing the plaintiff to become a creditor of the defendant consists of false promises upon the part of the defendant to repay the indebtedness or perform some other act in the future, and does not consist of any false representation as to an existing state of facts; and therefore the evidence is insufficient to authorize an inference that the indebtedness sued on was not dischargeable in bankruptcy upon the ground of fraud, and the trial court erred in submitting the issue of fraud to the jury.

2. The allegations of the plaintiff’s petition as to fraud which will exempt the indebtedness sued upon from becoming discharged by the defendant’s bankruptcy, not being essential to the petition, but being matter by way of replication to the defendant’s plea of discharge in bankruptcy, are surplusage, and the court’s refusal to sustain the special demurrer thereto upon the ground of the insufficiency of the allegations was harmless to the defendant.

3. The evidence being undisputed that all of the amount sued for, with the exception of $60.15 which represents an indebtedness created after the date of the defendant’s adjudication in bankruptcy, was dischargeable in bankruptcy, the verdict found for the plaintiff in the full amount sued - for was without evidence to support it.

4. It not appearing that certain payments on the account, made by the defendant to the plaintiff after the latter had been adjudicated a bankrupt, were made by the debtor to be applied on any particular items of the account, they were presumably applied upon the oldest items, and are not properly set-offs against any of the indebtedness accruing after the adjudication in bankruptcy. Milford v. Shackelford, 17 Ga. App. 436 (87 S. E. 603).

5. The defendant having admitted the correctness of the amount sued for, the evidence demands a verdict for the plaintiff in the sum of $60.15, with interest, representing the items sued for not discharged by the defendant’s bankruptcy.

6. The verdict found not being authorized by the evidence, the order of the trial judge overruling the defendant’s motion for a new trial must be reversed; but direction is given that - should the plaintiff write off from the verdict all recovery in excess of $60.15, with interest thereon, at or before the time the judgment of this court is made the judgment of the trial court, the judgment will stand affirmed.

Judgment reversed, with direction.

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


text:
    15539.
    Winn v. Herring-Hall-Marvin Safe Co.
    Decided February 11, 1925.
    Trover; from Atkinson superior court—Judge Dickerson. December 3, 1923.

      B. T. Allen, Talmadge S. Winn, for plaintiff in error.

      Grantham & Roberts, contra.
   Stephens, J.

1. A retention-of-title contract for the sale of personalty, when not attested by an official witness, is not sufficiently probated upon the affidavit of the attesting witness and is not entitled to record when it does not appear from the affidavit or otherwise from the instrument itself that the instrument has been delivered. Civil Code (1910), §§ 3318, 3319, 3257, 3261; Rushin v. Ball, 11 Ga. 636 (56 Am. Dec. 436); Stanley v. Suggs, 23 Ga. 137; Allen v. Bolden, 32 Ga. 418.

2. The record of a conveyance not legally entitled to record is not constructive notice. Civil Code (1910), § 3262; Donaldson v. Thomason, 137 Ga. 848 (3) (74 S. E. 762).

3. Pacts in issue must be established by evidence having probative value. Failure to object to evidence having no probative value does not amount to a waiver of the right to insist upon the insufficiency of the evidence in this respect to establish an essential fact in issue.

4. An agreed statement of facts does not admit conclusions of law or of fact drawn therefrom. An admission in an agreed statement of facts that a retention-of-title contract which is the basis of the suit was recorded does not admit that it was legally entitled to record or that the record constituted constructive notice. Nor does an admission in an agreed statement of facts that one of the parties to the case was chargeable with such constructive notice as the law might imply from the record of an instrument amount to an admission that constructive notice existed in fact.

5. This being a suit in trover by the seller claiming title to personalty sold under a retention-of-title contract against one who had afterwards purchased the property from the original purchaser, and it appearing from undisputed evidence that the defendant was a bona fide purchaser for value, without either actual or constructive notice, the verdict and judgment rendered for the plaintiff was unsupported by evidence and unauthorized. The evidence demanded a verdict for the defendant.

Judgment reversed.

Jenltins, P. J., and Bell, J., concur.


author: Jenkins, P.

text:
    15616.
    Brown v. Johnson-Brown Company.
   Jenkins, P.

J. 1. “The mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party, where by amendment justice may be promoted.” Civil Code (1910), § 5709. Where, by an inadvertent clerical error, the date of filing in the superior court of the answer of the trial judge to a writ of certiorari was incorrectly written by the trial judge and signed by the clerk of the , superior court, the entry of filing could be corrected so as to speak the truth, and the testimony of the trial judge and of the clerk of the superior court, appearing voluntarily, was admissible to show the uncontroverted facts, without the filing of a traverse to the clerk’s entry of filing. Gress Lumber Co. v. Coody, 99 Ga. 775 (1), 776 (27 S. E. 169) Furr v. Bank of Fairmount, 139 Ga. 815 (78 S. E. 181); McDaniel v. Columbus Fertilizer Co., 109 Ga. 284 (34 S. E. 598).

2. Where the owner of a crop of peaches made with another a written agreement, providing: “I agree to let you sell my entire peach crop, consisting of approximately about eight (8) cars of Carmen, and about thirty (30) cars of Iiileys, and about fifteen cars of Georgia Belles, and about eighteen ears of Elbertas. I agree to pay you five cents per crate for sales made f. o. b. loading point, and you agree to sell f. o. b. loading point”—the contract was one not of sale, but of agency, and clothed the agent with implied authority to do whatever was proper, usual, and necessary, according to the nature and needs of the particular business as gathered from the agreement and surrounding circumstances of the transaction or from the established usages and customs of the trade, in selling the described fruit at the loading point from which it was to be shipped. 2 Corpus Juris, 576, 592, 595.

3. An express warranty made by an agent authorized to sell will bind his principal, where it is no more than what the law itself would imply, such as that the property is merchantable and reasonably suited to the use intended (Huguley v. Morris, 65 Ga. 667, 672; 2 C. J. 601), or where the warranty is only such as is usual under the established usages and customs of the trade, or where it is one which must be taken as reasonably necessary and incident to a proper carrying out of the purposes of the agency. Wise v. Mohawk Rubber Co., 23 Ga. App. 255 (98 S. E. 100); 2 C. J. 595. See also Turner Bros. v. Clarke, 143 Ga. 44 (2), 45 (84 S. E. 116); Turner v. Manley, 14 Ga. App. 215 (2) (80 S. E. 680); Echols v. Howard, 17 Ga. App. 49 (86 S. E. 91), where these rules were specifically applied to warranties by agents as to the soundness of animals in sales and trades of live stock.

4. Where the agent in the instant case, authorized to sell by the agreement quoted in paragraph 2 above, expressly warranted to purchasers of five cars of “Hiiey” peaches that they were “well colored, full baskets, standard carriers, cushion covers, peaches large size,” under the preceding rules the principal will be held bound by such warranty, where the nature of the agreement and transaction indicate that such warranty was necessary and proper in making particular sales from the “entire crop;” the right to warrant proper packing, to segregate superior from inferior fruit, and to warrant such superiority, in making particular sales being necessarily implied in the authority given, which gave the right to sell the “entire peach crop,” without fixing any specific selling price or prices. The rule might possibly be otherwise as to the right of separation and of express warranty as to superior qualities, had the contract fixed a Hat selling price or prices on the merchantable crop as it ran as a whole, unless there were proof as to the custom of the trade to make such warranties, or as to the consent or ratification thereof by the principal.

5. The city court having erroneously entered a judgment of nonsuit, the superior court properly sustained the certiorari and granted a new trial “upon the ground that the issues involved should have been submitted to the jury.”

Decided February 11, 1925.

Certiorari; from Houston superior court—Judge Malcolm D. Jones. April 9, 1924.

Jones, Park & Johnston, A. K. Lamar, for plaintiff in error.

Powers & Powers, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jenkins, P. J.

text:
    15623.
    PORTWOOD v. SHAFER.
    Decided February 11, 1925.
    Affidavit of illegality; from city court of Carrollton—Judge Hood. April 1, 1924.

      01 ark Ray, for plaintiff in error.

      Boykin & Boykin, contra.
   Jenkins, P. J.

1. Where a suit has been filed in a State court against one who is adjudicated a bankrupt, it is the better practice, pending the determination of his application for a discharge, to file in the State court a plea or motion suggesting the bankruptcy proceedings and asking a stay of the suit until the question of discharge has been finally determined in the bankruptcy court (Adams v. McClendon, 30 Ga. App. 559, 118 S. E. 497), and when the discharge is granted, then to plead it. But even if the suit is “not stayed and a judgment is entered before discharge, the discharge may be availed of as a bar to further remedies on the judgment.” 1 Collier on Bankruptcy (13th ed.), 641. Such a bankrupt, after discharge, when the discharge is pleaded, “is entitled to a perpetual stay of the execution on the judgment, although he did not before the rendition of the judgment ask for a stay of the proceedings in the State court. If the discharge of the bankrupt had been granted before the judgment was rendered, the ruling would be otherwise.” Strickland v. Brown, 19 Ga. App. 73 (1) (90 S. E. 1039), and cases cited; McLeod v. Mills, 29 Ga. App. 87 (3), 89 (113 S. E. 699). See also Peterson v. Calhoun, 137 Ga. 799 (74 S. E. 519). In McDougald v. Chattanooga Medicine Co., 10 Ga. App. 653 (73 S. E. 1089), relied on by the plaintiff, it appears that the defendant in that case moved to set aside the judgment as a “nullity,” when not only had he failed to file any suggestion of bankruptcy or motion to stay the suit, but his application for discharge had not yet been granted; and that case, under the pleadings and facts, is further distinguishable from the instant one.

2. Under the untraversed and agreed facts, as alleged in the defendant’s affidavit of illegality, duly setting up his discharge in bankruptcy from the plaintiff’s scheduled debt, which discharge was granted after the rendition of the judgment, and showing the plaintiff’s actual knowledge of the bankruptcy proceeding in time to participate therein, it was error for the judge, sitting without a jury, to overrule and strike the affidavit.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15624.
    Bozikis v. Anestos.
    Decided February 11, 1925.
    Levy and claim; from city court of Savannah—Judge Freeman. March 28, 1924.

      B. L. Golding, for plaintiff in error.

      E. A. McWhorter, contra.
   Stephens, J.

1. The vendor’s retention of personal property after an absolute sale to another is an indicium of a fraudulent sale. Perkins v. Patten, 10 Ga. 241; Smith v. McDonald, 25 Ga. 377; Willingham v. Smith, 48 Ga. 580.

2. The sale of personalty by a defendant pending an action against him is also an indicium of fraud. Colquitt v. Thomas, 8 Ca. 258; Barter v. Terrell, 54 Ga. 146.

3. Where personal property was sold on January 3 by a defendant in a pending suit on a note, and on January 24 a judgment in the suit was obtained against him, and on February 19 an execution thereon was levied upon the property in his possession, the inference is authorized that the property was sold pending litigation against him and that at the time of the sale he retained possession of the property; and where it could be inferred, from other evidence introduced, that the retention of possession by the defendant was not satisfactorily explained, the inference is authorized that the sale was made for the purpose of defrauding the plaintiff as a creditor of the vendor, and that the claimant was a .party to the fraud, and that therefore the sale was void as against the creditor. Civil Code (1910), §§ 3224 (2), 4109.

4. Where, after the levy of the execution upon the property, the vendee interposed a claim, and upon the trial of the issue thus formed evidence as above was adduced, the jury was authorized to find the property subject.

5. It appearing that the property was worth from $500 to $800, an award of damages on account of delay, in the sum of $150, against the claimant, which has the approval of the trial judge, will not by this court be held as a matter of law excessive.

Judgment affirmed.

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


text:
    15635.
    Morris v. Battey.
   Stephens, J.

1. Since the prosecution to an unsuccessful termination by the landlord of a summary proceeding to dispossess his tenant, where the tenant did not vacate the premises, constituted no interference with, or privation of, the tenant’s possession, it did not amount to a breach by the landlord of the implied covenant for quiet enjoyment. 36 C. J. 81.

2, Although the tenant, in defending against such proceedings, may have inourred considerable expense in obtaining bond to arrest the proceedings and attorney’s fees, and otherwise suffered considerable trouble and annoyance as a result of the institution of the proceedings, he is not remediless, but could recover in a tort action against the landlord for malicious use of legal process to the tenant’s damage, provided he could show that the landlord was actuated by malice and proceeded without probable cause in issuing the summary proceedings to dispossess. Slater v. Kimbro, 91 Ga. 217 (18 S. E. 296, 44 Am. St. Rep. 19).

Decided February 11, 1925.

Rehearing denied February 28, 1925.

Certiorari; from Fulton superior court—Judge Ellis. March 27, 1924.

Mitchell & Mitchell, for plaintiff.

Marie Bolding, B. B. Childress, for defendant.

3. In a suit by the landlord against the tenant to recover the rent, a plea of recoupment, filed by the defendant, alleging that the plaintiff had breached his covenant of quiet enjoyment by instituting a summary process to dispossess the tenant, which contained no allegation that the tenant was either actually or constructively evicted, set out no cause of action against the plaintiff, and the trial judge erred in overruling a demurrer to it.

4. The trial judge having erroneously overruled the plaintiff’s demurrer to the defendant’s plea of recoupment, the verdict and judgment after-wards rendered in favor of the defendant on the plea was contrary to law, and the judge of the superior court erred in not sustaining the certiorari sued out by the plaintiff.

Judgment reversed.

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


author: Jenkins, R. J.

text:
    15639.
    Faggart v. Rowe.
   Jenkins, R. J.

1. According to the allegations of the plaintiff’s petition and the disputed testimony offered in support thereof, the defendant was guilty of negligence per se-in violating a municipal ordinance of the city of Savannah, regulating the manner in which an automobile should make a turn to the left at an intersecting street. See O’Dell v. Wolcott, 14 Ga. App. 530 (3, 4), 537, 538 (81 S. E. 819). It is likewise true that, according to the disputed evidence offered for the defendant, the plaintiff was himself guilty of negligence per se in violating a statute prohibiting an automobile to approach “any intersecting highway at a greater speed than ten miles per hour.” (Ga. L. 1921, p. 256; Sheppard v. Johnson, 11 Ga. App. 280, 282, 283 (75 S. E. 348). This act includes city streets. See Carter v. State, 12 Ga. App. 430 (3) (78 S. E. 205); Hayes v. State, 11 Ga. App. 371 (6), 380 (75 S. E. 523); Ware v. Lamar, 16 Ga. App. 560, 565, 18 Ga. App. 673 (6) (90 S. E. 364); Moye v. Reddick, 20 Ga. App. 649 (3) (93 S. E. 256).

2. “The theory upon which an injured party is debarred of a right to recover when injured while engaged in the performance of an illegal . . act rests, not upon the ground that he is performing an illegal '. . act, either alone or jointly with the defendant, but upon the ground that his conduct is negligent and is the proximate cause of his injury. Even though negligence might be shown as a matter of law, the question of proximate cause may still be one for the jury.” Schofield v. Hatfield, 25 Ga. App. 513, 514 (103 S. E. 732); Moody v. Dubois, 29 Ga. App. 652 (116 S. E. 219); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 419, 420, 424 (91 S. E. 517); Davis v. Whitcomb, 30 Ga. App. 497, 501 (14) (118 S. E. 488).

Decided February 11, 1925.

Certiorari; from Chatham superior court—Judge Meldrim. April 9, 1924.

Robert L. Golding, I. O'. Farthing, for plaintiff in error.

William, R. Sanderson, contra.

3. Whether or not, in the instant ease, the defense that the plaintiff, as appears from the defendant’s evidence, was running in excess of ten miles per hour in approaching an intersection of streets should have been pleaded by the defendant (see O’Dowd v. Newnham, 13 Ga. App. 220 (6), 232, 80 S. E. 36), and, irrespective of what the trial judges of the municipal court may have found upon the disputed issue as to whether the plaintiff was himself violating the speed limit in approaching the crossing, in view of the plaintiff’s testimony as to the defendant’s making a left turn in violation of a city ordinance, the proximate cause of the plaintiff’s injury, and whether negligence of the plaintiff or of the defendant caused or contributed to the same, were questions of fact for determination by the trial court. The judgment for the plaintiff being authorized, and the superior-court judge having overruled the defendant’s certiorari, this court can not disturb the judgment.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15645.
    Maner, for use, etc., v. Clark-Stewart Company.
   Jenkins, P. J.

1. “A trustee in bankruptcy may, but need not, intervene as plaintiff in a suit brought by the bankrupt before the adjudication in bankruptcy. If no trustee is appointed, or if the bankrupt court does not consider it to the interest of the estate to permit the trustee to prosecute the suit previously brought by the bankrupt, the action does not thereby abate, nor is the bankrupt’s debtor discharged from liability pending the action. . . If the failure to elect or appoint a trustee in bankruptcy in any way injured the rights of creditors, it did not discharge the bankrupt’s debtor.” Griffin v. Mutual Life Ins. Co., 119 Ga. 664 (1, 2, 5) (46 S. E. 870). “After an adjudication in bankruptcy and before the appointment of a trustee the bankrupt has sufficient title in the property theretofore owned by him to authorize the institution and maintenance of a suit by him to protect the assets of the bankrupt estate. Until such appointment or election of a trustee the bankrupt has title,—defeasible, but sufficient to authorize the institution and maintenance of a suit on any cause of action otherwise possessed by him” (Wright v. Calhoun Nat. Bank, 31 Ga. App. 434, 120 S. E. 795), and this is true despite the fact that the trustee after appointment and qualification is vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, except as relates to property which is exempt. U. S. Bkr. Act, § 70 (a); 2 Collier on Bankruptcy (13th ed.), 1638, 1639, 1721. Where the record is silent, upon proof of adjudication in bankruptcy several months previous, “and that there were assets to be administered,” it will be presumed “that a trustee was duly elected and qualified” (Wright v. Calhoun Nat. Bank, sirpra); but where the record shows that there were no assets for a trustee to administer, this court will not act upon such a presumption. In the instant ease an amendment was offered and filed, without any exception thereto, whereby the plaintiff bankrupt continued the suit “for the use of” another. The defendant thereupon pleaded that the adjudication in bankruptcy of the plaintiff had divested the title of the plaintiff, that his petition setting up that he had no assets was false, and that it “would be a fraud on the creditors” of the plaintiff to allow a recovery. In the trial a written assignment of the chose in action sued on to the usee named in the amendment, dated on the same day that the voluntary petition in bankruptcy was filed, was offered. Actual delivery of this paper to the assignee was not proved otherwise than by showing its delivery to the plaintiff’s attorney; but an oral assignment of the claim some time previous to the bankruptcy was shown without dispute. Under the above rulings, and these facts showing that the assignee held at least an equitable if not a legal assignment, and the amendment making such assignee a party having been made without exception, it can not be said that he did not have such a title or right as usee as would entitle him to maintain the suit as against the defendant.

2. “Where the plaintiff bases his right to recover upon an express contract which is entire and indivisible, he can not recover unless he has performed all his obligations under the contract.” Macon Union Cooperative Asso. v. Chance, 21 Ga. App. 636 (3) (122 S. E. 66); Dolan v. Lifsey, 19 Ga. App. 518 (5) (91 S. E. 913).

3. After the first trial of this case in the municipal court, where a verdict was rendered for the plaintiff, the superior court, on certiorari, reversed the judgment and granted a new trial. This court, in affirming the judgment of the superior court, held: “Where a contract provides that a job shall be done by the use of specified materials, the owner for whom the work is to be done and the material is to be used is entitled to stand upon the express terms of the agreement; and the fact that other and different materials, which were to some extent substituted, may be shown to have'been just as good as those specified by the contract, or that it was usual and customary to thus make use of such other materials in good and workmanlike jobs of similar kind, would not be sufficient to show a substantial compliance with the terms of the contract.” Maner v. Clark-Stewart Co., 27 Ga. App. 553 (2) (109 S. E. 178). On a retrial in the municipal court a verdict was again rendered for the plaintiff; and the superior court again sustained the defendant’s certiorari and granted a new trial. The evidence was in substance the same as on the previous trial, with the exception of some additional proof for the plaintiff, not tending to show by any stronger evidence that the terms of the contract as made had been substantially complied with, but showing the quality and durableness of the work as actually done. As stated by counsel for the plaintiff in the briefs, “the only new feature of the ease is the change of the parties thereto.” A verdict for the defendant being demanded under the previous ruling, which, as respecting this point, has become the law of the case, it is unnecessary to define just what discretionary powers a superior court has in granting a second new trial on certiorari, where the evidence is merely conflicting and a question of law is not involved, after two successive verdicts have been rendered in favor of the opposite party. However, see in this connection: Civil Code (1910), §§ 6204, 6082, and rulings cited in notes, Park’s Code and Supp.; Loudermilk v. Stephens, 126 Ga. 782 (2), 784 (55 S. E. 956); Harlis v. Central of Ga. Ry. Co., 30 Ga. App. 720 (6, 7) (119 S. E. 349); Morgan v. Lamb, 16 Ga. App. 484 (1), 492 (85 S. E. 792); Miller v. Cen. of Ga. Ry. Co., 16 Ga. App. 855 (2), 858 (dissent) (87 S. E. 303); James v. John Flannery Co., 6 Ga. App. 811 (2), 816 (66 S. E. 153); Merchants & Miners Transp. Co. v. Corcoran, 4 Ga. App. 654 (2, 3), 659-661 (62 S. E. 130); Scribner v. Mutual Bldg. Co., 1 Ga. App. 527 (2), 528 (58 S. E. 240).

Decided February 11, 1925.

Rehearing denied February 25, 1925.

Certiorari; from Fulton superior court—Judge Bell. May 3, 1924.

Lawton Nalley, for plaintiff.

Madison Richardson, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15655.
    Wells v. State of Georgia.
   Jenkins, P. J.

The act prohibiting the transportation of intoxicating liquors, and subjecting to confiscation “vehicles and conveyances” thus used, applies in terms to such use “on any of the public roads or private ways of this State.” Park’s Code Supp. 1917, § 448 (oooo). While it is not vital, therefore, for the State in a confiscation proceeding to show such use of an automobile on a public road, or on its own motion to prove the manner and method of the establishment of the “public road” or “private way” (see Bugg v. Cook, 32 Ga. App. 116, 122 S. E. 714 (1)), still it is necessary for the State to show that the road in question constituted either a public highway or a private way wherein an easement or right over land existed for the use of one or more persons distinct from the owner. 3 Bouvier’s Law Dict. 2714; 3 Words & Phrases (N. S.) 1205. A private individual road over one’s own premises is not the same as a “private way” as recognized by the code (see Civil Code of 1910, § 807 et seq.) ; and proof merely that liquor was transported over “a road” does not bring the case within the purview of the statute. The petition of the State in the instant case alleged that the automobile was used in transporting liquor along a public highway; and while no exception is taken to any variance between the pleadings and proof as offered, the testimony of the State’s witness (admitted over objection which went merely to the effect that it did not show a compliance with the statute), that the liquor was hauled “west to the top of the mountain in a road which went to the top,” not only failed to show that it was a public highway, but failed to show that it was a private way within the meaning of the statute. Fpr this reason alone the verdict was without evidence to support it.

Decided February 11, 1925.

Confiscation; from Dade superior court—Judge Tarver. April o, 1924.

B. T. Brock, McClure, Hale McClure, for plaintiff in error.

J. M. Lang, solicitor-general, contra.

Judgment reversed.

Stephens and Bell, JJ., conowr.


text:
    15656.
    Cook v. Powell.
    Decided February 11, 1925.
    Trover; from Baker superior court—Judge Custer. March 13, 1924.

      W. I. Geer, P. Z. Geer, for plaintiff.

      Benton Odom, for defendant.
   Stephens, J.

1. Where a plaintiff in execution, who had surrendered the fi. fa. to the defendant in execution and had taken from him a deed to secure the indebtedness represented by the fi. fa., which deed contained a faulty description of the land sought to be conveyed as security for the debt, instituted a suit against the grantor and obtained a reformation of the deed as respecting the description of the land sought to be conveyed, and obtained a verdict and judgment against the grantor for the indebtedness represented by the deed, the grantee, by undertaking to reform the deed and obtaining a verdict and judgment against the grantor for the indebtedness represented by the deed, elected to stand upon his rights under the security deed, and not under the original fi. fa. which he had surrendered, and therefore waived the right, if he had any, by reason of any defect in the deed, to rescind the contract represented by the security deed and the surrender of the fi. fa., and to assert tine to the fi. fa. in the hands of the grantor.

2. In a suit in trover by the grantee against the grantor, to recover the fi. fa., where it appeared from undisputed evidence that the plaintiff afterwards elected to proceed against the defendant on the security deed as above indicated, and that the plaintiff thereby forfeited any right, title, or interest in the fi. fa., a verdict for the defendant was properly directed.

Judgment affirmed.

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


text:
    15687.
    Donalson, executor, v. Bank of Jakin.
   Jenkins, P. J.

1. “A judgment rendered against a party whose sole counsel is absent by express leave of the court is properly vacated and set aside when that fact is properly called to the attention of the court by a timely motion in writing.” McNeill v. Morgan, 8 Ga. App. 323, 324; Jones v. Patterson, 138 Ga. 862 (2) (76 S. E. 378); Clark v. Ramsey, 138 Ga. 726-728 (75 S. E. 1128); Howell v. Ware, 133 Ga. 674, 678 (75 S. E. 1112); Phillips v. Taber, 83 Ga. 565 (4), 571, 572 (10 S. E. 870) ; White County Bank v. Ellison, 19 Ga. App. 78, 79 (90 S. E. 1034). In the instant motion of a defendant, which is in the nature of a motion to vacate and set aside a verdict and judgment against him on a promissory note for principal, interest, and attorney’s fees, the judge certifies that the defendant, who was his own sole attorney at law, had prior to the term at which the judgment was rendered obtained from the judge “a leave of absence from said term-of the court.” The verified motion showing that the defendant had relied upon such express leave, that notwithstanding this a verdict and judgment were taken without his knowledge or consent, and that as soon as he knew of the judgment he filed his motion setting up these facts and his previous filing of a meritorious defense, it was error for the judge, hearing the motion in term time after 20-days notice served by rule nisi upon opposing counsel, to dismiss the motion, on demurrer. Under the particular facts alleged, and certified by the judge, the motion will be treated as in the nature of a motion for a new trial based upon extraordinary grounds, which, in the absence of laches or previous knowledge by the defendant of the verdict and judgment, it was unnecessary to file at the term at which the same were rendered. Civil Code (1910), §§ 6089, 0092. Whatever might have been the right of the defendant, if any, under the precedents cited, to proceed in equity to set aside such a verdict and judgment, as one rendered by accident or mistake, he was not precluded from filing the instant motion, showing such meritorious grounds. See Civil Code, § 5965; Gillespie v. Farkas, 19 Ga. App. 158 (91 S. E. 244).

2. In the pleadings no question is raised as to the failure of the movant to present a brief of the evidence, nor does the bill of exceptions or the judge’s certificate show that such a question was raised in the court below. Eor this. reason, and under the ruling in Adams v. Overland-Madison Co., 27 Ga. App. 531 (3) (109 S. E. 413), the failure to file such a brief with the motion in the instant case will not affect the movant’s rights in the reviewing court. Ga. L. 1911, p. 149, Park’s Code, § 6090 (a).

3. The motion, which was sworn to at the time of hearing, set up that the defendant “contends that he has a meritorious defense upon record, which he can substantiate by law and facts,” filed to the plaintiff’s suit on a promissory note. It is contended by the plaintiff that the defense was without merit, since the answer was unsworn and merely denied generally the particular paragraphs of the petition. The answer, however, expressly denied the allegation with regard to notice for attorney’s fees. Held: “The plea of a defendant denying liability under those stipulations of the contract which are unconditional must be verified, or it should be stricken; but a defendant’s denial of an alleged liability for attorney’s fees, entirely dependent upon the plaintiff’s averment that the plaintiff had given the defendant the requisite statutory notice, need not be verified, unless the petition is verified.” Monk v. National Bank of Tifton, 12 Ga. App. 253 (2), 256 (76 S. E. 278). The petition in the instant case being unsworn, and the denial of this averment raising an issue, the record showed a legal defense. Moreover, the unverified plea was amendable. White County Bank v. Ellison, supra. See also Moore v. American Nat. Bank, 156 Ga. 724 (120 S. E. 2), and eases cited.

Decided February 11, 1925.

Motion to set aside judgment, etc.; from city court of Blakely— Judge Gray. April 21, 1924.

Erie M. Donalson, for plaintiff in error.

Glessner & Collins, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Stephems, J.

text:
    15688.
    Popwell v. Taylor.
    Decided February 11, 1925.
    Complaint; from city court of Jesup—Judge Clark. April 30, 1924.

      Frank H. Harris, for plaintiff in error.

      W. B. Gibbs, Raymond Pierce, F. M. Scarlett, contra.
   Stephems, J.

1. Where in a suit upon an open account by a merchant, to recover the purchase price of goods furnished from time to time to the defendant, there is attached to the petition an itemized statement of the goods, describing each item charged by its generic term of description, giving the price at which each described item was sold and the date of sale, e. g. “July 1, 1919, grits .65c; bacon 2.35; pot’s .70c; hay .35c; flour 1.80;” etc., such statement, although the quantities of the articles charged,—as the weight or measure,—are not given, is nevertheless a bill of particulars, and such omissions, even if harmful to the defendant, will not authorize a nonsuit under the authority of rule 10 of the superior court (Civil Code (1910), § 6269). Besides, this rule has been superseded by’the pleading act of 1893 (Civil Code of 1910, § 5628). Moore v. Hendrix, 144 Ga. 648 (87 S. E. 915). Semble, that the defendant’s remedy would be by special demurrer. Reed v. Equitable Trust Co., 115 Ga. 780 (42 S. E. 102).

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

Judgment affirmed.

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


text:
    15701.
    EDENFIELD v. YOUMANS.
    The overruling of an extraordinary motion for a new trial, based on a juror’s relationship to one of the parties, will not be reversed, under the facts of this case, especially in view of the movant’s delay in filing the motion, and of his opportunities for knowing the relationship.
    Decided February 11, 1925.
    Extraordinary motion for new trial; from Emannel superior court—Judge Hardeman. May 8, 1924.

      Kirkland & Kirkland, F. H. Saff'old, for plaintiff in error.
    1. W. Rountree, contra.
   Jenkins, P. J.

1. “A jury composed of men who are not lawful men, men whose relationship to the parties renders them incompetent as jurors, can not render a lawful verdict,” and where' a party has not waived the incompetency expressly, or impliedly by failing to object thereto after knowledge of the same, the court, upon a proper timely motion, should set such a verdict aside. Ga. R. v. Cole, 73 Ga. 713; Moore v. Farmers Mut. Ins. Assn., 107 Ga. 199 (33 S. E. 65); Strickland v. State, 115 Ga. 261 (41 S. E. 713).

2. Motions for new trial based upon extraordinary grounds and made after the time prescribed by law for ordinary motions are not favored by the courts. Hays v. Westbrook, 96 Ga. 219 (22 S. E. 893). “Some good reason must be shown why the motion was not made during the term, which shall be judged of by the court,” after 20 day's notice given to the opposite party. Civil Code (1910), § 6092. “The facts asserted must have been unknown to the plaintiff in error or his counsel at the time of the first motion, and impossible to have been ascertained by the exercise of proper diligence.” Malone v. Hopkins, 49 Ga. 221. Although due diligence does not require a party, when furnished with a panel of jurors composed of persons otherwise competent to sit as jurors, to ascertain and call attention to the fact that a juror is disqualified by reason of his relationship to one of the parties, unless he knows or has a reasonable ground to suspect the same so that further inquiry should be made, or to make searching investigations out of court (Moore v. Farmers Mut. Ins. Assn., 107 Ga. 199, 209, 33 S. E. 65)., it is nevertheless required that he shall make his extraordinary motion “promptly on discovery of the grounds;” and where facts come within his knowledge following a trial, from which reasonable inquiry would develop full knowledge of the disqualification of a juror, due diligence requires that such an inquiry be made. Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (118 S. E. 467).

3. “The overruling of an extraordinary motion for a new trial will not be reversed unless the discretion of the trial judge has been abused,” nor “in the absence of a showing demanding the conclusion both that the movants exercised proper diligence in 'discovering the relationship of the juror . . and that after discovering it they acted with sufficient promptness in instituting their extraordinary motion.” Holder v. Farmers Exchange Bank, supra; Brown v. State, 141 Ga. 783 (1 (a)) (82 S. E. 238); Patterson v. Collier, 77 Ga. 292 (2, 3), 296 (3 S. E. 119, 296); Cox v. State, 19 Ga. App. 283, 291, 292 (91 S. E. 422). Tinder the particular facts of the instant case, as developed by the affidavits of the movant and the counter-affidavits of the respondent, especially in view of the lapse of time between the trial and the filing of the extraordinary motion, and the opportunities for close busi-. ness and personal connections of the persons in question, all within a limited territory, this court can not say that the superior-court judge abused his discretion in overruling the motion and in finding that the defendant movant had failed to exercise proper diligence in discovering the admitted relationship of the juror to the plaintiff in the original case and in thereafter filing the motion.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15713.
    COHEN v. PHIPPS.
    The evidence authorized a recovery of damages for injuries to the defendant’s tenant, caused by failure to repair the roof and plastering of the rented house after due notice from the tenant; and the amount of the verdict was not excessive.
    The charge of the court as to the law applicable in such a case was not subject to the exceptions taken.
    Decided February 11, 1925.
    Action for damages; from city court of Atlanta—Judge Eeid. May 24, 1924.

      Carl B. Copeland, G. N. Bynum, for plaintiff in error.

      Harwell, Fairman & Barrett, contra.
   Jenkins, P. J.

1. The jury found for the plaintiff in the sum of $2,500, and exception is taken to the verdict as excessive. “The question of damages being one for the jury, the courts should not interfere unless the damages found were so small or so excessive as to justify the inference of gross mistake or undue bias.” “An inference that the amount of damages in the present case is excessive is not justified by the evidence,” which here indicated definite physical 'injuries, considerable pain and suffering, and injury to the nervous system. Civil Code (1910), § 4399. Bibb Mfg. Co. v. Snow, 26 Ga. App. 504 (1), 506 (106 S. E. 612).

2. “There being no duty of inspection'on the part of the landlord for the purpose of discovering defects arising subsequent to the time of the lease, the landlord is not liable for injuries to his tenant resulting from patent or latent defects arising subsequent to the time of the lease, unless he had actual knowledge of them, or had been notified by the tenant of such defects, and had failed to make repairs in a reasonable time, and the tenant could not have avoided the injuries resulting therefrom, by the exercise of ordinary care on his own part” (McGee v. Hardacre, 27 Ga. App. 106 (2), 107 S. E. 563), but it is also the rule that, “when the landlord is notified that the premises are out of repair, it becomes his duty to inspect and investigate in order that he may make such repairs as the safety of the tenant requires. It follows, therefore, that when after such notice the landlord fails within a reasonable time to make the repairs, he is chargeable with notice of all the defects that a proper inspection would have disclosed.” Stack v. Harris, 111 Ga. 149, 151 (36 S. E. 615); Roach v. LeGree, 18 Ga. App. 250, 252 (89 S. E. 167); McGee v. Hardacre, supra (3). In the instant case the petition charged that “defendant had been notified personally and through its agent . . that said plastering [the fall of which caused the injuries sued for] was in need of repair, and defendant knew of the defective condition of said plastering and that same was in need of repair,” and that, “after knowledge of the defective condition of said plastering, defendant carelessly and negligently failed to repair said plastering.” The defendant excepts on the general grounds to the refusal of a new trial, and contends especially that these averments were unsupported by proof, and that “the evidence only showed that the defendant had been notified that the roof of the premises leaked.” The verdict for the plaintiff was, however, amply authorized under the evidence. The testimony for the plaintiff not only showed, by two witnesses, that prior to the lease the tenant had called the landlord’s personal attention both “to the leaks in the roof” and to “the spots on the ceiling in the sun parlor” where the plaster fell, and the landlord agreed to make repairs, but that in subsequent letters before the injury, written to the renting agent of the landlord by the tenant, and by such agent .to the landlord, attention was repeatedly called not only to leaks in the roof, which the jury were authorized to find caused the spotting, cracking, and falling of the ceiling in the sun parlor, but also particularly to leaks “in the sun parlor.”

3. Special exception is also taken to the charge of the court, stating the plaintiff’s contentious according to her pleadings,' and to an instruction stating in substance the rule of law above quoted, from Stack v. Harris, supra. The only ground of error claimed with reference to this instruction is that it was unauthorized by the evidence, and tended to confuse the jury, in that it authorized them to “infer that notice to the defendant landlord that the rooE was leaking and needed repair was also sufficient notice to the defendant that the plastering was defective and needed repair.” Notice as to the condition of the roof was undisputed; notice as to the defects in the plastering was disputed. The charge complained of did not compel a finding as a matter of law that notice as to the roof was equivalent to notice as to the defective plastering, but, in the language of the exception taken, merely authorized tire jury to infer that such was the case; and consequently the exception taken does not disclose any instruction contravening the rule stated in the Stack case.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15718.
    Augusta Motor Sales Co. v. King.
   Stephens, J.

1. The principal on a promissory note, against whom a judgment has been rendered in behalf of the payee in an action by the payee against both the principal and a surety, is not interested in sustaining a judgment therein rendered in behalf of the surety, and is therefore not a necessary party to a bill of exceptions brought by the payee, complaining of tlie judgment rendered in behalf of the surety. The bill of exceptions therefore will not be dismissed upon the ground that in omitting to make the principal a party it fails to make necessary parties. Civil Code (1010), § 6176; Pharr v. Eve, 17 Ga. App. 686 (87 S. E. 1098); Evans v. Williams, 29 Ga. App. 126 (113 S. E. 703).

Decided February 11, 1925.

Complaint; from Columbia superior court—Judge A. L. Franklin. May 27, 1924.

Callaway & Howard, John J. Jones, for plaintiff.

Wilmer D. Lanier, for defendant.

2. The evidence of the defendant, to the effect that he was indorser for his son, who was the maker of the notes sued on, that at the time he indorsed them he knew that his son was indebted to the plaintiff company in a certain amount as a balance due on the purchase price of an automobile, and that, as “the owner” of the plaintiff company was , related to him, he felt that it was his duty to assist his son in paying the amount due, and, at the request of the company’s attorney, indorsed the notes, was insufficient to support a plea that the defendant’s indorsement was obtained by fraud and duress, although it may appear also from his own testimony that when he indorsed the notes the company’s attorney informed him that the maker had given a mortgage to the company upon property which the maker did not have (evidently referring to certain personal property which, it appears elsewhere from the evidence, the maker had mortgaged to the plaintiff as security for the purchase-money of the automobile bought), and tnat the maker would be liable to prosecution for having done so, which representation was not true, and that because of said representation the defendant, not wishing his son to be prosecuted, indorsed the notes, but not of his own free will.

3. It not appearing from the evidence that at the time of the execution of the note sued on the defendant’s son, the maker of the notes, was in imminent or immediate danger of prosecution, or that he would in fact be prosecuted if the defendant failed to indorse the notes, but only that the maker “would be liable to prosecution,” the suggestion of the prosecution of the maker, made by counsel for the plaintiff) did not amount to a threat, and could not, under the circumstances, tend to coerce or restrain the will of the defendant, and consequently it could not be inferred that in indorsing the notes he was not acting of his own free will. Civil Code (1910), §§ 4116, 4255; Williams v. Stewart, 115 Ga. 864 (113 S. E. 703); Russell v. McCarty, 45 Ga. 197.

4. A verdict having been rendered for the defendant, and it being conceded by counsel for the defendant that the defense other-than that of fraud and duress in the procurement of the defendant’s indorsement to the notes is unsupported by the evidence, and it appearing, under the above rulings, that such defense of fraud and duress is without evidence to support it, the verdict found for the defendant was not legally authorized.

Judgment reversed.

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


text:
    15739.
    Brockman v. Rhodes et al.

   Jenkins, P. J.

1.. Where an order sustaining special .demurrers to specified paragraphs of a petition gave the plaintiff ten days to amend, and thereafter the court, on motion of the plaintiff, extended for ten additional days the time for amendment, and, three days after the expiration of that time, entered a final order and judgment, referring to the previous ruling and the failure to amend in accordance therewith, and adjudging “that the said ruling sustaining said demurrers to said paragraphs be and the same is hereby made final, and the said paragraphs are stricken from the petition,” and that “the said petition be and the same is hereby dismissed,” an exception to this final judgment is sufficient to question the rulings made upon the special demurrers and the final judgment of dismissal. The previous order will be taken as in the nature of an order nisi, neither dismissing the petition nor striking the paragraphs, but expressly providing for their amendment, the final order not being made until after the failure to amend, See Ga. Ry. & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300), and cases cited; Willingham, v. Glover, 28 Ga. App. 394, 395 (111 S. E. 206); Atlantic Refining Co. v. Peerson, 31 Ga. App. 281, 285, 286 (120 S. E. 652).

2. The 29th paragraph of the plaintiff tenant’s petition against the defendant landlords claimed certain described items as expended 'by him for labor and materials in repairing the leased premises, amounting to $1,860.65. These appear to have been incurred in connection with “laying new floor with tile blocks,” placing iron “beams on front of building,” putting brick in side of house, “building brick front and filling-in walls,” plastering, placing back and side partition in house, placing plumbing, sewer, and water-pipes and fixtures, repairing, regraveling, and repapering roof, putting sky-lights on roof, and papering walls and overhead ceiling. Plaintiff alleged that he incurred these items in reliance upon a “verbal contract '. . agreed to before, discussed at the time, and agreed subsequent to the making of the first written lease herein set out.” The alleged verbal contract as set out is as follows: that prior to the written lease the leased property was “in a dilapidated condition,” was “greatly in need of repairs, and was badly run down and was unsuited for business, or conducting the business that this plaintiff desired to run, the same being a merchant tailoring business;” that “your petitioner so stated to said defendant . . at said time the condition of said building, and that said [defendant] agreed with plaintiff that the condition of said building- as to need of repairs was great;” and that the said defendant “told this petitioner to go ahead and do anything- that he pleased, saying, ‘Go ahead and make any repairs you wish. You have been a tenant of ours heretofore, and you have always improved the property and returned it to us in good condition. My word is my bond. Whatever I say I will do; 1 will do it;” that petitioner stated to said defendant that he wished “a long lease,” but the defendant said “he would give him a written lease for two years;” and a written lease for two years from the time of removal of the preceding tenant was executed. The defendants demur to the paragraph claiming these items of damage, “upon the ground that the facts set out in the petition as a whole are insufficient to show that the items set out . . are recoverable against these, defendants, and therefore the said paragraph is irrelevant and immaterial.” Held: While it is the statutory rule that “the landlord must keep the premises in repair, and is liable for all substantial improvements placed upon them by his consent” (Civil Code of 1910, § 3699; see also Busby v. Marshall, 125 Ga. 645, 54 S. E. 646; Sikes v. Carter, 30 Ga. App. 539 (2-4), 118 S. E. 430; Dougherty v. Taylor & Norton Co., 5 Ga. App. 773 (1), 53 S. E. 672), it is also the rule that, “in the absence of an agreement so to do, the landlord is not bound to repair patent defects in a building, of the existence of which the tenant knew at the time the rent contract was entered into.” Aikin v. Perry, 119 Ga. 263 (3) (46 S. E. 93); Driver v. Maxwell, 56 Ga. 11 (2); White v. Montgomery, 58 Ga. 204 (1); Williams v. Jones, 26 Ga. App. 558 (1) (106 S. E. 616); Moore v. Rosser, 13 Ga. App. 392 (2) (79 S. E. 246). Since it appears that the repairs in question all arose from patent defects in the building, of which the tenant was fully aware at the time he accepted the lease and the premises, and that in the oral agreement the landlord, so far as the petition discloses, did not undertake to reimburse the tenant or become liable for the repairs, but merely consented for the tenant himself to make the repairs (the doing of which may have been an inducement for the making of the lease), the court properly sustained the special demurrer and struck this paragraph.

3. Where damages are claimed by a lessee on account of the failure of the lessor to have the premises ready for occupancy at the time fixed by the lease for the beginning of the tenancy, the plaintiff can not recover, as elements of damage, sums representing clerk hire and “the expense of paying” a manager employed to take charge of the business which the lessee had anticipated starting from the beginning of his occupancy, . where these items are not such as would have been reasonably anticipated by the parties; and there is no averment that the defendant lessors, at - the time of the execution of the lease or of the breach, had-any knowledge that the plaintiff lessee would incur or had been obliged to incur such expense. Christophulos Café Co. v. Phillips, 4 Ga. App. 819, 822 (62 S. E. 562); Albany Phosphate Co. v. Hugger, 4 Ga. App. 771 (3), 776 (62 S. E. 533); Firestone Tire & Rubber Co. v. Shore, 31 Ga. App. 644, 646 (121 S. E. 709).

4. The 38th paragraph of the petition, which is demurred to specially as irrelevant and immaterial, alleges that the plaintiff “personally superintended the work of repairing as herein set out, at great expense and loss of time to himself.” In so far as this averment may seek to add to the items claimed in' the 29th paragraph for repairing the leased premises, it was properly stricken for the reasons stated in the second division of this decision. In so far as it may seek to claim an independent item of damage, no amount is alleged.

5. The 40th and 41st paragraphs, relating to alleged repairs and improvements of the property as increasing the rental value from $40 to $150 per month, fail to state any definite item of damage, and, for the reasons stated in the first and second divisions of this decision, set forth no legal claim.

6. The trial court in its final order not only struck the paragraphs of the petition to which the demurrers were filed, but dismissed the petition, after having previously given the plaintiff opportunity to amend and after his failure to do so. Treating the demurrers as merely special, and as not attacking the vitals of the right of action, the dismissal of the petition was neither erroneous nor in contravention of good practice, since the plaintiff was given full opportunity to amend. See Willingham v. Glover, 28 Ga. App. 394, 395 (111 S. E. 206), and cases cited. Since the demurrers attacked each of the items of damage claimed, and such items were not recoverable, and since the petition sought no general or nominal damages, the dismissal of the entire petition was proper, although the trial court expressly withheld decision of the general demurrer. Firestone Tire & Rubber Co. v. Shore, supra; Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (96 S. E. 437).

Decided February 11, 1925.

Complaint; from Fulton-superior court—Judge Bell. May 2, 1924.

T. L. Lanford, B. B. Jackson, for plaintiff.

Little, Poviell, Smith & Goldstein, for defendants.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Broyles, O. J.

text:
    15670.
    Decatur County et al. v. Roberts.
    Decided February 12, 1925.
    Complaint; from Decatur superior court—Judge Eve presiding. May 12, 1924.

      H. G. Bell, for plaintiffs in error.

      T. S. Hawes, contra.
   Broyles, O. J.

Under the decision of the Supreme Court in this case, rendered January 14, 1925, reversing the judgment of this court rendered October 7, 1924 (32 Ga. App. 771, 124 S. E. 810), the board of commissioners of Decatur county had no authority to make the contract with the plaintiff under which he was employed to investigate unreturned property for taxation, and to have such property, when discovered, placed upon the tax-digest, so that the taxes due thereon could be collected through the regular channels, under which contract the plaintiff was to receive as compensation 25 per cent, of the taxes actually paid into the treasury of the county on all unreturned property discovered by him. See Decatur County v. Roberts, 159 Ga. 528 (126 S. E. 371). Under this ruling, the former judgment of this court in this ease, affirming the judgment of the trial court, is hereby vacated, and it is now adjudged that the trial court erred in overruling the demurrer to the petition and in thereafter rendering judgment for the plaintiff.

Judgment reversed.

Bloodworih, J., concurs. Luke, J., absent.


text:
    15311.
    Stedham v. Farmers State Bank.
    Decided February 12, 1925.
    Rehearing denied February 28, 1925.
    Complaint; from city court of Carrollton—Judge Hood. December 22, 1923.
   Stephens, J.

1. Where one was induced by the creditor of another to become surety upon a promissory note executed by the debtor under an agreement with the creditor, by the terms of which the creditor was to procure from the maker of the note a deed conveying certain land to the surety, as security against loss,, evidence tending to establish the contract, which was in parol, to the effect that if such person would become surety upon the note, the creditor would procure such deed and guarantee him against any loss by reason of “fixing up” a deed from the principal to the surety, and “have it recorded and guarantee him [the surety] that the deed was well worth the money, . . that the property was well worth the debt, and that [the surety] would suffer no loss by signing it,” and that “on that assurance [the surety] signed that note,” and evidence that the deed was actually procured by the creditor and recorded and delivered to the surety, authorizes the inference that by the terms of the agreement the creditor warranted and obligated itself to procure a deed properly and legally executed before the requisite number of witnesses, and such a deed as would be legally entitled to record, and that the creditor would actually have the deed recorded and delivered to the surety.

2. Such an agreement, although it may be established only by inferences drawn from the evidence, nevertheless contains an express warranty that the deed shall be of the kind and character contracted for. Upon this express warranty the surety to whom the deed was delivered would have a right to rely, and he would be under no duty to make any inspection of the deed or to exercise any diligence for the purpose of ascertaining whether the creditor had complied with such warranty. Means v. Suber, 115 Ga. 371 (41 S. E. 633); Cook v. Finch, 117 Ga. 541 (44 S. E. 95); Bennett v. Brown, 28 Ga. App. 256 (110 S. E. 745).

3. Where the deed was in fact defective by reason of having been executed in the presence of only one witness, but the defect was not actually known to the surety, and where the surety made no inspection of the deed, but where, by reason of such defective execution, the value of the security was lost to the surety, the surety would not be precluded, in a suit against him by the creditor, from defending upon the ground of the creditor’s breach of such express warranty. It was therefore error, in such a suit, where there was evidence to the above effect, to charge the jury that if the contention of the surety was true, “the burden would be on [him] to exercise ordinary care and'diligence as a prudent man to see that this deed was executed according to the terms or properly recorded and witnessed,” and “if he failed and neglected to do that, . . he would have contributed to his own injury, . . and could not complain at the action of the [creditor].”

Judgment reversed.

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

Application for certiorari was denied by the Supreme Court.

S. Holderness, for plaintiff in error.

Smith, Hammond & Smith, Boykin & Boykin, contra.


text:
    15362.
    Southern Pacific Co. v. DiCristina et al.

   Stephens, J.

1. Since a State may' in its own courts, where no domestic policy is violated, enforce rights established by the laws of other sovereignties, there is ordinarily no valid reason why such rights may not be enforced in the courts of such State under the attachment laws against a nonresident of the State. Where the right sought to bo thus enforced against a nonresident arises solely under an act of Congress, and thereby by virtue of Eederal authority, it may nevertheless be enforced in the State cortrt by attachment, unless in so doing, on account of the Eederal government having jurisdiction within the State and its valid laws being supreme therein, some Eederal policy is violated or some Eederal right secured to the nonresident is impaired or rendered inefficacious.

2. Where the right sought to be enforced in the State court by attachment upon the ground of the nonresidence of the defendant is .the right of a shipper in interstate commerce’to hold the initial carrier by virtue of the Carmack amendment to the interstate-commerce act liable for loss or damage to goods in transit by a connecting carrier, and the attachment is levied upon an empty freight-ear belonging to the carrier, found within the territorial jurisdiction of the State court, no Eederal policy is violated, nor is any unnecessary burden placed upon interstate commerce by the attachment and levy, and no right of the carrier which can be asserted in defense to a suit against it under such act of Congress can in any way be impaired or rendered ineffectual by the carrier’s being forced to defend as a defendant in the attachment proceedings. The only burden resting upon the defendant is the physical inconvenience of making a defense in a foreign jurisdiction, which inconvenience . attaches to all nonresidents whose property has been levied on by attachment. State v. Taylor (1923), 298 Mo. 474 (251 S. W. 383); Atchison &c. R. v. Wells (C. C. A.), 285 Fed. 369; contra: Pratt v. Denver &c. R., 284 Fed. 1007. See further in this connection: Southern Pacific Co. v. Crenshaw, 5 Ga. App. 675 (63 S. E. 865); Davis v. Cleveland &c. R., 217 U. S. 157, 179 (30 S. Ct. 463, 54 L. ed. 708, 27 L. R. A. (N. S.) 823, 18 Ann. Cas. 907); International Harvester Co. v. Commonwealth, 234 U. S. 579 (34 S. Ct. 944, 58 L. ed. 1479); Galveston &c. R. v. Wallace, 223 U. S. 481 (32 S. Ct. 205, 56 L. ed. 516).

3. This being a suit in attachment, where the plaintiffs sought to recover against a nonresident carrier for the loss of goods received by the carrier from the plaintiffs to be transported in interstate commerce, and where the liability therefor, if there was any, was fixed by the Carmack amendment to the interstate-commerce act, the motions made by the defendant to dismiss the attachment and the declaration in attachment, upon the ground that the court had no jurisdiction to proceed against the defendant in attachment as a nonresident of the State, were properly overruled.

Decided February 12, 1925.

Attachment; from Chatham superior court—Judge Meldrim. January 7, 1923.

Lawton & Cunningham, for plaintiff in error.

Joseph LL. Boss, contra.

Judgment affirmed.

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


text:
    15472.
    Sun-Maid Raisin Growers v. LaGrange Grocery Co.
    Decided February 12, 1925.
    Complaint; from city court of LaGrange—Judge Duke Davis. March 7, 1924.

      B. T. Moon, for plaintiff.

      L. B. Wyatt, for defendant.
   Stephens, J.

1. Where a contract for the sale and shipment of goods in less quantities than carload lots designates a particular point for delivery, but contains a provision that “Where goods are sold in less than carload quantities to be included in car for various buyers to be completed later, and said car is not completed within ten days of expiration of contract time of shipment, seller may ship goods in car to some point near by to destination, and the buyer shall then pay local freight from such point of final destination,” the shipper fails to establish a right under this provision of the contract to tender delivery at a point other than the point of destination named in the contract, where it does not appear that it was agreed that the goods contracted for were to be included in a car for various buyers.

2. In a suit by a shipper against a purchaser, to recover the purchase price of the goods contracted for, where it appeared that the goods had been delivered at some other point than the point of destination named in the contract, and it did not appear from an application of the above ruling that the delivery made was in accordance with the terms of the contract, a verdict for the defendant was properly directed.

Judgment affirmed.

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


author: Bell, J.

text:
    15544.
    Virginia-Carolina Chemical Co. v. Floyd.
    Decided February 12, 1925,
   Bell, J.

Under the instructions received by this court from the' Supreme Court in answer to questions certified (159 Ga. 311, 126 S. E. 378), there is no en-or in the judgment excepted to.

Judgment affirmed.

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

Levy and claim; from Randolph superior court—Judge Yeomans. March 7, 1924.

Application for certiorari was denied by the Supreme Court.

James W. Harris, Pope & Bonnet, for plaintiff.

H. A. Wilkinson, contra.


text:
    15556.
    Williams v. Equitable Credit Company Incorporated.
   Stephens, J.

1. Words that do not in themselves unequivocally convey a charge which may become libelous when falsely and maliciously published may nevertheless convey such a charge when the words are capable of being so understood and are so understood by the person to whom they are uttered. Words apparently innocent may convey such a charge when they are considered in connection with the innuendo and the circumstances surrounding their publication.

2. A written telegraphic message deposited with a telegraph company, which is directed to a chief of police and charges that “C. A. Williams care Colonel Bussell has removed mortgaged Ford touring car motor number seven seven six two two five five out of Bacon County without paying us stop please hold car. Equitable Credit Company Inc 314 P,” by reason of the fact that it was directed to a police officer and charged that C. A. Williams had removed mortgaged property out of Bacon county without paying the author of the telegram therefor, by innuendo charged the commission of the crime of wrongfully disposing of mortgaged property.

3. In a counterclaim by C. A. Williams when sued by the author of the telegram, the Equitable Credit Company Inc., wherein it was alleged that such charge was published of and concerning him by the author by depositing the same as a written message with the telegraph company, which transmitted the contents of the message to the chief of police of Waycross, Ga., to whom it was directed, thus publishing the charge to the employees of the telegraph company and to the chief of police of Waycross, Ga., who read the same, which charge was false and was' uttered by its author wilfully and maliciously and for the purpose of injuring the character of C. A. Williams and exposing him to hatred and contempt, a cause of action in favor of C. A. Williams for libel was set out against the author of the telegram, and such communication was not privileged. Civil Code (1910), § 4433, 4436, 4437; Holmes v. Clisby, 121 Ga. 241 (48 S. E. 934, 104 Am. St. Rep. 103). Such a charge, importing a crime, was actionable per se.

4. In a suit by the Equitable Credit Company Inc. against C. A. Williams, to foreclose a conditional-sale agreement covering the automobile purchased by the defendant from the plaintiff, a plea filed by the defendant, which alleged, by way of set-off or counterclaim, a libel on the defendant by the plaintiff by reason of the facts indicated above, and which alleged that the plaintiff was a nonresident of the State, set out a cause of action for libel in favor of the defendant against the plaintiff, and was maintainable in the suit by way of set-off or counterclaim. Such plea was improperly stricken on demurrer. Giles v. Bank of Southwestern Georgia, 102 Ga. 702 (29 S. E. 600).

Decided February 12, 1925.

Affidavit of illegality; from Bacon superior court—Judge Summerall. January 25, 1924.

Application for certiorari was denied by the Supreme Court.

E. 11. Williams, for plaintiff in error.

Herbert W. Wilson, Wilson & Benneii, contra.

5. An admission by the defendant that the facts alleged in the telegram were true, without an admission that he committed a crime as charged 'by innuendo in the telegram, does not amount to an admission by him of the truth of the charge.

Judgment reversed.

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


text:
    15558.
    Reese et al. v. Miller.
   Jenkins, P. J.

1. “Whore a certiorari from the municipal court of Atlanta is taken more than 30 days after the rendition of a verdict and judgment adverse to the petitioner, but within 30 days from the overruling of his motion for new trial, and exceptions are taken both to the verdict and judgment and to the order refusing a new trial, only the latter can be considered. If a petitioner desires to except to the verdict •and judgment, the certiorari must be brought within 30 days thereafter.” Long v. Burge, 33 Ga. App. 97 (122 S. E. 716); Louisville & Nashville R. Co. v. Lovelace, 24 Ga. App. 616 (101 S. E. 718); s. c. 26 Ga. App. 286 (1) (106 S. E. 6).

2. While it is true, with regard to writs of error, that “a general assignment of error, exceeding to a judgment overruling and denying a motion for a new trial, is sufficiently specific to bring under review all the grounds of error properly made in the motion,” without repeating such grounds in the bill of exceptions where they appear in due form in the record (Butler v. Hall, 7 Ga. App. 777, 68 S. E. 331; Rigell v. Sirmans, 123 Ga. 455, 51 S. E. 381; Crouch v. Spooner, 8 Ga. App. 626, 69 S. E. 1129), and that a similar rule is applicable to petitions for certiorari from judgments on motions for new trials, and while it is also true that an oral motion for new trial in the' municipal court of Atlanta is sufficient, a petition for certiorari, excepting to the overruling of such an oral motion for new trial, must, however, state plainly an‘d distinctly the grounds which were then and there urged; and where these do not • appear, a general exception to the overruling of the motion will not suffice. This is true even though the exceptions to the overruling of the motion for new trial may set forth alleged errors, such as that the verdict and judgment are without evidence to support them, and that the court erred in admitting certain evidence, in giving certain instructions to the jury, in making certain statements in their presence, and in allowing, during tlie trial, a certain amendment to the answer, where the petition for certiorari has failed to question in due time the verdict and judgment itself, and where the petition fails to indicate that the errors complained of were those urged in the motion for new trial, or what grounds were there urged. Citizens Banking Co. v. Paris, 119 Ga. 517 (46 S. E. 638); Holcomb v. Finch, 25 Ga. App. 261 (2) (103 S. E. 38); Freedman v. Bush, 30 Ga. App. 757 (119 S. E. 421); Green v. Patterson, 25 Ga. App. 374 (103 S. E. 437). See also Clay v. Smith, 108 Ga. 189 (2) (33 S. E. 963); Benning v. Horkan, 123 Ga. 454 (51 S. E. 333).

Decided February 12, 1925.

Certiorari; from Fulton superior court—Judge Ellis. February 13, 1934.

McNlreath & Scott, for plaintiffs.

Napier, Wright & Wood, J. N. Johnson, for defendant.

3. “Assignments of error and recitals of fact in a petition for certiorari not affirmatively verified in the answer can not be considered.” The answer of the judge of the municipal court of Atlanta should verify the grounds stated in the petition, or show what grounds were actually urged in the oral motion for new trial, to the refusal or grant of which the petitioner in certiorari excepts. Shirling v. Kermon, 119 Ga. 501 (2) (46 S. E. 630); Freedman v. Bush, supra; Moore v. Coleman, 28 Ga. App. 427 (111 S. E. 579).

4. “Since the presumptions are always in favor of the verdict and judgment, and the burden is upon him -who alleges error to show it, uncertainties or ambiguities in the answer to the writ of certiorari as made by the trial judge must be construed” favorably to a judgment refusing a new trial. New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (4) (116 S. E. 922).

5. In the instant case, so far as indicated by the petition for certiorari, there is nothing to show that the alleged errors or any of them were grounds of the oral motion for new trial, or what such grounds were. The only reference in the record is the 3d paragraph of the answer of the trial judge, as follows: “The assignments of error are not answered, because they require no answer by respondent. However, with reference to the assignments of error set out in paragraphs 5 and 6,” relating to alleged prejudicial statements made by the court in the presence of the jury, “respondent says they were not insisted upon by the movant in his oral motion for a new trial.” It is contended by the plaintiff in error that this should be construed as a verification of all other assignments in the petition; but since the exceptions in the petition are not alleged to have been grounds of the motion for new trial, and since uncertainties and ambiguities in the answer can not be resolved in favor of the petitioner, the bare negative reference to specified grounds as not having been urged can not be taken by implication as a verification and positive affirmation that other exceptions were actually urged. The superior court properly, on motion, dismissed the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15565.
    Ætna Casualty and Surety Company v. Leathers et al.

    Decided February 12, 1925.
    ■ Action on bond; from Clarke superior court—Judge Fortson. April 12, 1924.

      Bryan & Middlebroolcs, John A. Dunaway, for plaintiff in error.
   Stephens, J.

1, Where an indemnity bond in favor of a public body (as the City Council of Statesboro) as obligee, conditioned upon the faithful performance of “all work for which contract calls,” by one who has contracted with the obligee to do public work (as the building of a schoolhouse), does not by its terms purport to be for the use of any person “doing work or furnishing skill' . . or materials under or for the purpose of such contract,” and nowhere purports to be the statutory bond required of a contractor doing public work, as prescribed by the act approved August 19, 1916 (Ga. L. 1916, p. 94; Park’s Code Supp. 1922, § 389-c), it is not the statutory bond required of such contractors for the benefit of “persons doing work or furnishing skill . . or materials under or for the purpose of such contract,” named in the act. American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617); United Supply Co. v. U. S. Fidelity &c. Co., 32 Ga. App. 472 (123 S. E. 907).

2. A person who furnishes labor and material for the purpose of such a contract can not recover against the surety on the bond. It was there- . fore error to overrule the defendant’s demurrers.

Judgment reversed.

Jenlahis, P. J., and Bell, J., concur.