text:
    15065.
    Kaufman et al. v. Young et al.

   Bell, J.

1. Where real-estate brokers, suing the owners of realty alleged to have been listed with them for sale, alleged “that they secured a purchaser ready, willing and able to buy and on the terms on which the defendants placed the property with them for sale, and as they were authorized to sell, and they sold it to [a named person] on the terms and for the price they were authorized by defendants to sell;” and that, when they tendered to the owners in behalf of the purchaser the consideration asked, the owners became indebted to them in a stated sum as their commissions; and where the answer of the defendants denied these averments in toto, the plea was sufficient to include the defense that one of the prescribed terms of sale was that the purchaser at a certain time in the future should build at his own expense a party wall between the property to be sold and adjacent property to be retained by the owners, and that the alleged offer which the plaintiffs procured did not embrace such agreement. See Atlanta, Knoxville & Northern Ry. Co. v. Gardner, 122 Ga. 82 (7) (49 S. E. 818). The purpose of such defense was to disprove the plaintiff’s alleged cause of action. See Civil Code (1910), § 5636.

(a) The offer of a seller must be accepted by the purchaser unequivocally, unconditionally, and without variance of any sort. There must be mutual assent of the parties, and they must assent to the same thing in the same sense. Robinson v. Weller, 81 Ga. 704 (8 S. E. 447); Gray v. Lynn, 139 Ga. 294 (1) (77 S. E. 156).

2. A specific charge which is legal and adjusted to a distinct matter in issue and which may materially aid the jury should be given on proper and timely request, although in principle and in more general and abstract terms it may be covered by other instructions given by the court. Metropolitan R. Co. v. Johnson, 90 Ga. 501 (5) (16 S. E. 49); Crawford v. State, 117 Ga. 247 (4), 252 (43 S. E. 762).

3. The evidence in the instant case discloses without dispute that one of the terms of the listment was as stated in paragraph 1 above. One of the plaintiffs testified that this condition had been proposed by them in the submission of the property for sale, and was assented to by the alleged purchaser. The latter, however, was sworn as a witness for the defendants and testified: “I did not agree to build a wall at my expense. That was not a part of the agreement.” Under the issues as thus made, the written and timely request of the defendants, to charge that “if one of the terms was that the purchaser-was to build a wall, and the plaintiff neglected to get an agreement from the purchaser to build said wall, then the plaintiff could not recover,” was erroneously refused, the charge given not sufficiently submitting the defense, in view of the request. Eor this error, after verdict for the plaintiffs,' the court should have granted the defendants’ motion for a new trial.

4. Such defense was not waived by the defendants, if, as contended by them, they did not know, when they assented to the proposed sale, that the purchaser did not agree to build the party wall, and that they never knew of his failure so to agree until after the negotiations had failed of consummation and were altogether ended because of their withdrawal and refusal to make the sale, although they based their refusal solely upon another and different ground stated, — namely, the unauthorized inclusion by the brokers in their agreement with the purchaser of a stipulation providing for an easement in a stairway in the owners’ adjacent property. The defendants were not estopped to assert such a defense, under the rule laid down in the case of Fenn v. Ware, 100 Ga. 563 (28 S. E. 238), and others following it. The ratio decidendi of that case was that the defendant “should be treated as having waived other things then known io her which were not brought forward as grounds of objection until she was sued” (italics ours). See Drew v. Cone, 19 Ga. App. 706 (2) (91 S. E. 1068); Cowdery v. Greenlee, 126 Ga. 786 (1) (55 S. E. 918, 8 L. R. A. (N. S.) 137).

5. Furthermore, the rule which prevents one who has given a reason for his conduct and decision in a matter from placing his conduct upon another and different ground after litigation has begun is but an application of the principle of estoppel in pais, and applies only where his conduct has caused another to act respecting the matter, to the injury and detriment of the latter, and where the latter would be placed at an inequitable disadvantage should the former be allowed to rely upon a ground other than that urged as a reason for his conduct and decision in the matter. Civil Code (1910), §§ 5736, 5738; Hancock v. King, 133 Ga. 734 (2) (66 S. E. 949); Delaware Ins. Co. v. Penn Fire Ins. Co., 126 Ga. 380 (8) (55 S. E. 330, 7 Ann. Cases, 1134); Carter-Moss Lumber Co. v. Lomax, 30 Ga. App. 718; James F. Drew Co. v. Breedlove, Id. 722; 21 C. J. 1133; 10 R. C. L. 697. This rule is not in conflict with Tuggle v. Green, 150 Ga. 361 (104 S. E. 85), where the conduct there held to amount to an estoppel in pais placed the opposite party in a situation where he would have suffered an injury had the other party not been held estopped by his conduct. See the certified question on page 366. Union Brokerage Co. v. Beall Bros., 30 Ga. App. 748 (1) (119 S. E. 533).

6. A party will not be held to have waived a right without knowledge of it unless by his representations or conduct he has misled the other party and caused him to act, or to omit to act, to liis injury, and has thus become estopped. 27 R. C. L. 908, § 5; Upchurch v. Lewis, 53 Ga. 621 (2); Sharp v. Findley, 59 Ga. 723 (1); Daniel v. Wilson, 91 Ga. 238 (3) (18 S. E. 134); Rusk v. Hill, 117 Ga. 722 (8) (45 S. E. 42); Southern Mfg. Co. v. Moss Mfg. Co., 13 Ga. App. 847 (3) (81 S. E. 263).

7. There was no evidence whatever disputing the contentions of the defendants that they did not know until the negotiations had terminated that the purchaser had not agreed to the stipulation that he should build the party wall. The only issue upon this question was whether the purchaser had so agreed or not, the same being presented by the testimony of one of the plaintiffs, and that of the purchaser himself as a witness for the defendants. There was thus no evidence authorizing a charge in relation to a waiver so far as the same could have been understood by the jury as applying to the stipulation of the owners with reference to the building of the party wall. Nor was there evidence of a waiver by the defendants of a variance from the terms of the listment, which they contended had been made by the plaintiffs in agreeing that the purchaser should obtain an easement in the stairway. Upon this question the plaintiffs contended that the owners had consented, not expressly but impliedly, that the easement should be granted, basing the contention upon the ground that an offer which they had previously submitted from a different prospective purchaser included, as they claimed, a requirement of the grant of the easement, and that this offer was declined by the owners solely because of objection to the price. The defendants on the other hand contended that the subject of an easement had never been mentioned in the negotiations with any of the prospective purchasers, or with the plaintiffs, and that the giving of the easement was not within the terms of the listment. Thus, the issue was whether the owner had impliedly agreed to the grant of the easement as one of the terms of the listment. The proposed sale, after a first assent, was refused by them, because of the agreement by the brokers with the purchaser that this right should be granted. Construing the testimony of the only one of the plaintiff brokers who testified most strongly against them, as must be done, since the witness was a party to the case, and his evidence upon the particular point being at most vague and self-contradictory (Shepard v. Chappell, 29 Ga. App. 6 (2), 113 S. E. 23), the defendants did not know at the time they first agreed to make the sale that this right was to be extended, ttnless because they had impliedly consented to it in the negotiations ivith the previous prospective purchaser. The contentions thus made did not involve a waiver of a variance by the plaintiffs from the terms of the listment, but merely raised an issue as to what the terms were. The conclusion must follow that the several charges upon the subject of a waiver, as complained of in the motion of the defendants for a new trial, were unwarranted by the evidence.

Decided April 23, 1924.

Complaint; from city court of Columbus — Judge Tigner. September 25, Í923.

McGutchen, Bowden & Gaggstatter, for plaintiffs in error.

Hatcher & Hatcher, contra.

8. The general rule is that instructions by the court to the jury must be warranted by the evidence, and where instructions are given that are not warranted by the evidence, and are calculated to mislead and confuse the jury, the error requires a new trial. Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (2) (76 S. E. 387, Ann. Cas. 1914A, 880). The charges on the subject of waiver, as complained of in the instant ease, were calculated to mislead and confuse the jury, and constitute reversible error. The ease should have been submitted to the jury upon the two issues only: (1) Did the defendant owners authorize the brokers to offer an easement in the stairway? (2) Did the plaintiff brokers procure from the purchaser an agreement to build the party wall as stipulated?

9. The other requests to charge were sufficiently covered by the charge given, and their refusal was not error. If any of the other instructions to which exceptions are taken were incorrect, they were not harmful to the plaintiff in error.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Beix, J.

license: Public Domain

text:
    15068.
    Boyd, deputy sheriff, v. Crews et al.

   Beix, J.

This was an action by a deputy sheriff, as the levying officer, for the use or benefit of the plaintiff in a mortgage fi. fa. on a forthcoming ' bond given in a claim case, the property being a mule. The plaintiff in fi. fa. contended upon the trial; and offered evidence tending to show, that although, after the property had been found subject, the claimant delivered a certain mule to the sheriff at the time and place of sale as designated in the advertisement, the mule so delivered was not the one levied upon or claimed and for the forthcoming of which the claim bond had been given. The claimant had pleaded a delivery of the identical mule claimed, but offered no evidence. The evidence for the plaintiff in fi. fa. tended to establish further that the mule which the claimant had produced at the time and place of sale was actually sold by the sheriff in terms of the advertisement; that the plaintiff in fi. fa. at first participated in bidding, but, upon discovery that the mule was not the one levied upon or claimed, so notified the sheriff, and declined further to participate in the sale by bidding or otherwise. The claimant himself was the highest bidder, and paid to the sheriff the amount of his bid and received the mule back. The plaintiff in fi. fa. declined to receive any part of the proceeds of the sale, and they remained in the . hands of the sheriff at the time of the filing of the present action, having never been tendered back to the claimant. The claimant also pleaded estoppel. At the close of the plaintiff’s evidence the court directed a verdict in favor of the defendant, and this direction is assigned as error. Held:

1. “In a suit on a forthcoming bond given in a claim case, it is incumbent upon the plaintiff to show that the property has been found subject to the execution, and either that a demand for the property has been made and refused, or that it was not produced at the time and place of sale as designated by the advertisement. Stinson v. Hall, 54 Ga. 676.” Coursey v. Consolidated Naval Stores Co., 22 Ga. App. 538 (1) (96 S. E. 397).

2. An action of this sort may be brought in the name of the levying officer (Thompson v. O’Connor, 115 Ga. 120 (1), 41 S. E. 242), or in the name of the plaintiff in fi. fa. Hagedorn v. Powers, 22 Ga. App. 189 (1) (95 S. E. 749); Civil Code, § 13. In either case the plaintiff in execution is interested in the bond to the extent of the value of the property, if it does not exceed the amount of his judgment. Hart v. Thomas, 75 Ga. 529 (1). Even where the suit is instituted in the name of the levying officer, the plaintiff in execution is the real party at interest. Wortsman v. Wade, 77 Ga. 651 (4 Am. St. Rep. 102).

3. If the claimant has not delivered the identical property described in the claim bond at the time and place of sale, it would constitute no defense to an action upon the bond that he delivered some other property which the levying officer accepted. The act of the sheriff in receiving the wrong property was not the act of the plaintiff in fi. fa., unless the latter consented thereto or ratified it afterwards. Such conduct on the part of the sheriff, induced by the claimant, would not, without more, divest the interest of the plaintiff in fi. fa. in the bond. Compare King v. Castlen, 91 Ga. 488 (1) (18 S. E. 313); Rowland v. Page, 4 Ga. App. 269 (1) (61 S. E. 148); Arnold v. Rhodes, 26 Ga. App. 86 (3) (105 S. E. 453); Barnes v. Vandiver, 5 Ga. App. 162 (2) (62 S. E. 994); Redwine v. Street, 18 Ga. App. 77 (5) (89 S. E. 163); Houser v. Williams, 84 Ga. 601 (11 S. E. 129); Williams v. Houser, 90 Ga. 21 (15 S. E. 821). In. such a case the plaintiff in fi. fa. would be entitled to the remedy upon the bond, and was not required to proceed against the sheriff, irrespective of whether the latter remedy might have been available. Chesapeake Guano Co. v. Wilder, 85 Ga. 550 (11 S. E. 618); Reese v. Worsham, 110 Ga. 449 (1) (35 S. E. 680); United Glass Co. v. Chamlee, 135 Ga. 152 (2) (68 S. E. 796).

Decided April 23, 1924.

Action on bond; from city court of Carrollton — Judge Hood. September 7, 1923.

8. J. Boykin, Boykin & Boykin, for plaintiff.

Smith & Taylor, for defendants.

4. The fact that the plaintiff in fi. fa. bid upon the property would not amount to a ratification of the act of the sheriff in receiving from the claimant other property than that specified in the bond, if on discovering the facts the plaintiff notified the sheriff thereof and declined any further participation in the sale. There can be no ratification without knowledge. Dolvin, v. American Harrow Co., 125 Ga. 699 (5) (54 S. E. 706, 28 L. R. A. (N. S.) 785). If the plaintiff in fi. fa. further declined to receive any of the proceeds of the sale, and did not otherwise adopt or ratify the officer’s act, the fact that the proceeds of the sale remained in the hands of the levying officer, having never been tendered back to the claimant, would not estop the plaintiff in fi. fa. from instituting a suit on the bond, either in his own name or in the name of the levying officer for his benefit. Under such circumstances the holding of such proceeds by the officer would be a matter between the claimant and that officer, in which the plaintiff in fi. fa. would not be concerned, and which could not have the effect of depriving the plaintiff in fi. fa. of his right, if he chose, to use the name of the levying officer as plaintiff in the action upon the bond.

5. This being a claim bond, the sheriff or levying officer could not waive any of its terms so as to affect the interest therein of the plaintiff in fi. fa., without his consent. It is unnecessary to detei'mine whether the same would be true in the case of a replevy or forthcoming bond given by a defendant in fi. fa., which under the Civil Code (1910), § 6042, should relate to and have effect alone between the officer to whom it is given and the defendant in execution. But see King v. Castlen; Rowland v. Page, and Arnold v. Rhodes, cited in paragraph 3 above. The rights of the plaintiff in fi. fa. in the two classes of bonds are to some extent different. The distinction is pointed out in Wortsman v. Wade, supra. If any of the rulings made herein are not reconcilable with Webb v. Rehberg, 18 Ga. App. 537 (1) (90 S. E. 100), they are controlled in principle by the decisions of the Supreme Court cited herein.

6. It follows that the court erred in directing the verdict in favor of the claimant.

Judgment reversed.

Jenldns, P. J., and Stephens, J., concur.


author: Bell, J.

text:
    15080.
    REAVES v. COLUMBUS ELECTRIC & POWER CO.
    1. Where a person hires his servant to another for a particular employment, the servant, as to anything done in that particular employment, must he considered the servant of the person to whom he is hired, although he remains the general servant of the person hiring him to the other.
    2. While it is true that the testimony of a party who oilers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal, the same rule is not applicable against a party in the construction of the testimony of other witnesses. introduced by him.
    3. “When a witness testifies to facts 'incoherently or inconsistently, that circumstance goes to his credit, and if his testimony be very incoherent or inconsistent, it should be considered with great caution” by the jury (Evans v. Lipscomb, 31 Ga. 71 (2)); but this rule does not authorize the court to hold, as a matter of law, that the testimony of one not a party has no probative value merely because it is incoherent, inconsistent, or self-contradictory.
    4. It is “well settled in this State that a party may contradict his own witness by showing the truth to be different from what the witness testified. Skipper v. State, 59 Ga. 63; Oronan v. Roberts, 65 Ga. 678; Mc-Elmurray v. Turner, 86 Ga. 217.” Christian v. Macon Railway Co., 120 Ga. 314 (2), 317 (47 S. E. 923). “A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the ease from the opinion they entertain of all the evidence submitted for their consideration.” Sapping Ion v. Bell, 115 Ga. 856 (1) (42 S. E. 233).
    5. Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge.
    6. Under the above rulings the plaintiff’s evidence made a ease for submission to the jury, and the court committed error in awarding a nonsuit.
    Decided April 23, 1924.
    Action for damages; from Coweta superior court — Judge Roop. September 4, 1923.
    Application for certiorari was denied by the Supreme Court. This was an action by T. M. Reaves against the Columbus Electric & Power Company to recover damages for personal injuries. The case came to this court on exceptions to a nonsuit.
    The plaintiff alleged: that while riding in an automobile upon a public highway he was injured in a collision between the automobile and a wagon in the charge of the defendant’s servant; that the servant was driving a team of mules hitched to one wagon, and behind that wagon another was attached by means of a rope or chain; that the rear wagon was pulled behind the front one at a distance of approximately twenty feet;.that because the rear wagon was loosely, carelessly, and negligently hitched or tied to the front wagon, it failed to track directly behind the front one, but swerved back and forth, and that, as the vehicles were meeting, it swerved to its left and far beyond the center of the highway against the automobile in which the plaintiff was riding, causing the automobile to turn over, with the result that the plaintiff was injured. The principal question for determination by this court is whether the evidence would have authorized the inference that the driver of the team was the servant of the defendant at the time and place of the injury. The only evidence upon this question was the testimony of the driver himself, and was as follows:
    “My name is Horace Goodwin. I live out here at Mr. Hulette Potts in this county. On or about the 28th of last October I remember the Columbus Electric Power folks fixing its wires, and I was hauling for the Columbus Electric & Power Company, of Columbus. I was on the wagon the night there was a lady got killed and three white gentlemen got hurt. I was driving the front team. Two white gentlemen were on the front wagon with me. . . They were tramps, two white tramps. . . I answer I was going home to Mr. Hulette Potts. I stays down here on his place about three miles and a half, I reckon, from Newnan. There was nobody else on the front wagon except me and these two white tramps. The front wagon did not have any load except we three men, no load at all. The body had a flat on it, nothing but a fiat. The coupling was not full length. There was nothing else on the front wagon. It had a flat instead of a body on it. There was a flat on the hind wagon too. There was nobody on it. There was nothing but a flat on it. One of the men tied the hind wagon to the front wagon; I don’t know his name. He was working for the power company, the man that tied it. The man that tied this hind wagon on to the front wagon was working for the power company. I don’t know his name. He is here. In reply to the question, 'The man that tied this hind wagon onto the front wagon, was he the power company’s boss man that was bossing the work?’ I answer, he was going with us to show us where to put the wires. He showed them how to tie the wagon.” Q. “Two of them who were working for the power company tied the wagons together, tied the hind wagon to the front wagon?” A. “Yes, sir. Both of them were white men and both of them were working for the Columbus Electric Power Company.” “In reply to the question, ‘Who was the man that directed you or anybody else as to where to get the wire, where to put the wire and what to do with reference to fixing the wire for the Electric Power Company, I answer, he was going with us, I was hauling from Grantvilie some wire.” Q. “Who was it told you where to get the wire and what to do with the wire, and how to fix it?” A. “Them power men.” Q. “Two of them?” A. “Yes, sir.” Q. “Were they or not the same two that tied the hind wagon to the front one?” A. “It was one of those. Two of them were there. I was there at the wagon.” Q. “Now tell what these two men or either one of them said about tying the wagon behind to the front wagon.” A. “He showed how to tie it, and, after he got it tied, he told me I could go home. After he tied them he told me I could go home with them, and I left to go home. Didn’t anybody tell me to [go ?] the way I went.” “In reply to the question, ‘After these men tied that wagon on to the front wagon, where did they tell you to go, how come you to go?’ I answer they told me to carry the wagons in to Mr. Hulette Potts, and I was trying to do what these men told me to do at the time this accident happened. These two men that tied the hind wagon to the front wagon were the ones who ordered me what to do about the wire, where to get the wire, and where to put it with reference to doing this work for the power company. I obeyed their orders. I did everything that these two power company men instructed me to do.” Q. “Going as you did up the road at the time of the accident, were you or not obeying their instructions at the time?” A. “Yes, sir.” Q. “How many people work there for the power company?” A. “I had two with each wagon, run two wagons. I had four men. The other two men were along on the other wagon, the one I brought home. The other wagon left, and left us there pretty late.” Q. “Left you there with the two power company men?” A. “Yes, sir.” Q. “Then you had to do what these two power company men told you?” A. “Yes, sir. These power company men had me to haul wire from Grantvilie to Hogansville for the power company.” Q. “What did they do with it?” A. “I don’t know, sir.” Q. “Strung it on the poles?” A. “Yes, sir.” “In reply to the question as to who directed my movements and told me what I had to do, I answer, the fellow that was with me, the power company man. Every time we would go he would go with us and show us where to get the'wire and where to put it. When I was going up the road with those two wagons the lights of the automobile that collided with us were burning.”
    (On cross-examination.)
    “Mr. Hulette Potts hired me and he paid me. He had the right, and only he had the right, to discharge me. No man connected with the power company hired me. Mr. Hulette Potts had me hired. No man connected with the power company paid me. No man connected with the power company had the right to discharge me. I was working for Mr. Potts in hauling the wire for the power company. The power company only directed me where to place the wire, and they had nothing to do with my movements after I left after hauling wire, and I went wherever Mr. Potts told me after the hauling and carried the teams to whatever place he told me.” Q. “So that after you quit hauling wire for the power company, after you quit in the evening, you were under the instructions of Mr. Potts and did what he said?” A. “Yes, sir.” Q.„ “And you obeyed his orders exclusively?” A. “Yes, sir.” “In reply to the question as to what right the power company had to take me off as driver and put somebody else on Mr. Potts’ wagon as driven, I answer it didn’t have any right. It was on Saturday evening that the accident occurred. One of Mr. Hulette Potts’ mules got hurt down there on the other side of Grantville, and after the mule got hurt word was sent to Mr. Potts about it and he came down there.” Q. “And he instructed you to take those mules and carry them home?” A. “Yes, sir, that other boy he would carry the mules home, the one that got hurt, and he told me to take the other team and carry it home and tie the wagons together. I went on a little late that night. I hauled for the power company until night. It wasn’t quite night, it wasn’t dark when we got to G-rantville, the sun was about a quarter of an hour high.” “In reply to the question as to where I was working for the power company I answer, we went right near Hogansville, right at Hogansville, they turned to the right before getting to Hogansville.” “In reply to the question, ‘After you made the last load down there Saturday evening, were you going back any more?’ I answer, no, sir; he told me not to come back any more until he called Mr. Hulette.” Q. “You were discharged finally?” A. “Yes, sir, I was not t'o go back until Mr. Hulette told me.” Q. “After you left off hauling, the power company man discharged you for good, so far as you know?” A. “Yes, sir, he told me I need not come back unless Mr. Hulette told me. Mr. Hulette told me where to carry the teams after I was through working. I brought them home. He told me to bring them home. He instructed me that very day to bring them home that night. He told me where to carry them.”
    “In reply to the question, if, after I left Grantville coming up this way that Saturday evening, if I was then engaged in doing anything for the power company, I answer, no, sir, after I got off of the job I was coming home. I delivered the last load for the power company that evening about three o’clock, three or four. When I delivered the last load I was out to the right of Hogans-ville about five or six miles. It might have been further than that. I was not hauling anything for the power company when I got back to Grantville, I wasn’t hauling, I had made my last load.” “In reply to the question, ‘When you got back to Grantville, were you doing anything for the power company?’ I answer, no, sir, I was working until I come back to Grantville, and that is when I was told not to come back any more; they didn’t need me.” “In reply to the question as to what these men representing the power company said to me when I left off working down there, I answer, they just told me didn’t need me any more, and they would call up Mr. Hulette whenever they wanted me. They told me they didn’t need me any more unless they called up. They did not call up any more. . When I left there I was not doing anything for the power company; they discharged me and I was coming home. I wasn’t doing anything after I got to Grantville.” “In reply to. the question as to what services I was performing for the power company from Grantville up towards Newnan, I answer, not anything after they excused me down there. They excused me in Grantville. . . ” Q. “You were-at that time working for whom?” A. “For the power men, but I was going in home, they excused me in Grantville. At the time of this accident I was going in home. Mr. Hulette Potts was paying me at that time.” Q. “Who had the right at that time to discharge you, to turn you off?” A. “Them fellows, they turned me off that evening.” Q. “At the time of this accident, did they have any authority over you then?” A. “No, sir. Mr. Hulette Potts had been down there after the mule was hurt, he come down there after that and went on home, and he told me to bring the other wagon after the other mules got home. He told me where to carry them after I got through work, told me to bring them home, and I was obeying his orders at that time.” “In reply to the question as to how far was this place of this accident from where I had been working for the power company, I answer, I was on this side of Moreland when it happened.” “In reply to the question, 'You had been working that day for the power company near Hogansville?’ I answer, working in Grantville, getting wire from Grantville; it was some seven or eight miles. There was no power company man on the wagon when the accident happened. I was driving. I ivas employed by Mr. Hulette Potts.” “In reply to the question if I know that large stout man right here, if I ever saw him before, I answer, yes, I have seen him once, I don’t know him. He talked to me. I didn’t go behind the barn, but he did talk to me. He never offered me anything at all. . .”
    “In reply to the question, 'From the time you left the barn, Mr. Potts’ barn, and went with the power company to the place where these wires were to be hauled and fixed, from the time you left Mr. Potts’ barn for the day’s work until you came back to Mr. Potts’ barn that night, who told you what to do,’ I answer, the power company men.” “In reply to the question, 'What requirement, if any, did the power company men have for you leaving Mr. Potts’ barn at a certain time, getting down there a certain time and getting back to the barn a certain time ?’ I answer, yes, they told us to get there as early as we could, the power company men did.- He never did say what hour.” “In reply to the question as to about what hours I was expected to do this work for the power company, I answer the sun was about an hour high, a little after sunup.” - “In reply to the question as to what time I had to leave the barn to go to work that I had to do that day, I answer, I left home when the sun was about half hour high.” “In reply to the question as to what time did I leave the work to go back to the barn at night, I answer, we worked until sundown.” “In reply to the question, in order to get back to Mr. Potts, as to what time I left down there after sundown, I answer, sometimes we quit before sundown, after we made our last load, we had so many loads to make.” Q. “About sundown?” A. “Yes, sir, little before sundown. We kept the mules at home at night at the barn. I can’t give any idea as to how far that was from where we was doing the work. I don’t know as I have any idea as to how far the barn where we kept the mules was from Newnan. We left the barn in the morning before light.” Q. “Were your orders as to what hour you were to leave the barn from the power company ?” A. “No, sir, Mr. Hulette told us to come soon so we wouldn’t be so late down at the power company.” “In reply to the question as to what time the power company required us to begin work there, I answer, sometimes we would stay late before we got off.” “In reply to the question as to what time did the power company require us to be there to begin work, I answer, they did not say.” “In reply to the question as to what time did they allow me to quit down there, I answer, sometimes it was before sundown. It would take us more than about .an hour to go from the barn to the place where the work was done on the wire, about an hour to go and an hour to come back. We could get through soon by rushing the mules, but never did rush them.” Q. “After you left Mr. Hulette’s barn in the morning, who was it that gave jrou orders ?” A. “Mr. Hulette.” Q. “After you left his barn?” A. “The power company gave me orders.” Q. “After you left Mr. Hulette Potts’ barn in the morning until you got back to Mr. Hulette Potts’barn at night, who gave you all of your orders?” A. “The power men.” Q. “Anybody else?” A. “No, sir.” Q. “Nobody else?” A. “No, sir.”
    “In reply to the question, ‘When you were working for Mr. Hulette Potts, was Mr. Hulette Potts working at telegraphing, selling automobiles or farming?’ I answer, he was farming. That is all he did. He had good hands on his farm, and they plowed, ■ and sometimes they hoed cotton or anything else in the operation of the farm. He did not have any business in the line of stringing wires or working for a telegraph or telephone company. He did nothing like that. The work I did for Mr. Potts was working on the farm. I was a general farmhand for Mr. Potts. That is the only way that he hired me. That is the only sort of contract that I had with him, just general farming, general agent of his.” “'In reply to the question if I carried the teams to Mr. Potts’ barn every night or staid down there, I answer I carried them back there every night. The teams were not kept in a camp down there any time, down about Grantville or Moreland, brought them back every night. We didn’t camp anywhere but brought them back up here every night.”
    (Ee-cross examination.)
    “The power company gave me no orders before I reached the place where I worked for them.” “In reply to the question if they gave me any orders after I left the place where I worked for them, I answer, they told me to bring the wagon home. Mr. Potts told me too to bring the wagon home, and they told me to bring the wagon home.” “In reply to the question as to what direction did the power company men give me before I went to work in the morning and left that evening, I answer, they didn’t give any; they told me not to come back any more unless they called up Mr. Hulette, and I didn’t go back and the teams didn’t go back.” “In reply to the question, ‘While you were hauling for the power company, did they give you any orders before you reached the work or after you left the work?’ I answer, no, sir, they gave me orders after I got to the job. Those were the only orders they gave me and that was the direction to me as to where to place the wires.” (Ee-direct examination.) “In reply, to the question, ‘.I want to know who directed you to go with this wagon tied behind the other one up this road that you went, did Mr. Potts or did the power company, these two men that tied the wagon?’ I answer, Mr. Hulette told me to bring it on.” “In reply to the question, ‘After the wagon was tied, the hind wagon was tied to the front wagon, after that was done, who directed you. what to do?’ I answer, the power company. Mr. Potts was not there then.” (Ee-cross examination.) “In reply to the question as to what did they say, I answer they told me to carry the wagons home, told me they didn’t need me any more until they called up. That was what they told me.”

      Lawton Nalley, Terrell & Terrell, Post & Arnold, for plaintiff.

      F. TJ. Garrard, A. 8. Bradley, Sail & Jones, for defendant.
   Bell, J.

(After stating the foregoing facts.) We know nothing of the scope and terms of the agreement under which Mr. Potts let his servant Horace Goodwin to the defendant power company, except as revealed in the testimony of Goodwin himself. If we did, we might be able to hold, as a matter of law, whether he was to be treated as the servant of Potts or the servant of the defendant at the time and place in question, — that is, whether he was the servant of the defendant until he reached the situs of his general employment on Potts’s farm. He was the general servant of Potts as a farm laborer. It is well settled that “the fact that an employee is the general servant of one employer does not, as matter of law, prevent him from becoming the particular servant of another, who may become liable for his acts. And it is true as a general proposition that when one person lends his servant to another for a particular employment (or hires him), the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent (or hired), although he remains the general servant of the person who lent him (or hired him).” 18 R. C. L. 784. The real test by which to determine whether a person was acting as the servant of another at the time of the infliction of an injury by him is to ascertain whether at the particular time when the injury was inflicted he was subject to the other person’s orders and control, and was liable to be discharged from the particular employment for disobedience of orders or misconduct. Brown v. Smith, 86 Ga. 277 (12 S. E. 411, 22 Am. St. Rep. 456). “One person may be taken to have been the servant of another in respect of a given transaction, although he did not occupy that position for all purposes. In order to establish the relationship, it is merely necessary to show that he was a servant as regards the particular piece of work in which he was engaged at the time when he sustained or inflicted the injury complained of. . . The special master is alone liable to third persons for injuries caused by such wrongful acts as the special servant may commit in the course of his employment.” LaBatt on Master & Servant (2d ed.), § 52.

The above propositions were applied by this court in Greenberg v. Yarbrough, 26 Ga. App. 544 (106 S. E. 624), wherein it was ruled that “Where a person hires his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the person to whom he is hired, although he remains the general servant of the person who hired him.” As was said in that case, the principle of law is well defined. Is it applicable in the instant case ? The answer to this question must be determined according to the inference to be drawn from the testimony of the servant himself. While the jury would have been authorized to find from certain parts of his testimony that he was the servant of Potts, they could legitimately have inferred from other parts that he was the servant of the defendant.

The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Shepard v. Chappell, 29 Ga. App. 6 (2) (113 S. E. 23). This rule, however, is not applicable as against a party in the construction of the testimony of other witnesses introduced by him. While the Supreme Court has said that “when a witness testifies to facts incoherently or inconsistently, that circumstance goes to his credit, and if his testimony be very incoherent or inconsistent, it should be considered with great caution” (Evans v. Lipscomb, 31 Ga. 71 (2)), this rule relates to the province of the jury, and this court cannot say that the testimony of one not a party has no value merely because it is incoherent, inconsistent, or self-contradictory. “It was for the jury to determine whether the testimony of the witness was so vague, indefinite, and uncertain as to be worthless, or whether the testimony — though contradictory in some respects — possessed some degree of probative value.” O’Brien v. Ellarbee, 14 Ga. App. 333 (5) (80 S. E. 864). “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” Civil Code (1910), § 5883. See also Holcombe v. State, 5 Ga. App. 47 (6) (62 S. E. 647); Marshall v. Woodbury Banking Co., 8 Ga. App. 221 (68 S. E. 957); Borders v. City of Macon, 18 Ga. App. 333 (2) (89 S. E. 451). This court is without jurisdiction to adjudge that testimony is worthless because of the “witness’s manner of testifying.” Civil Code (1910), § 5732. See Shearman v. Stephens, 30 Ga. App. 509 (4) (118 S. E. 567).

It is true that hearsay evidence has no probative value, even if admitted (Eastlick v. Southern Railway Co., 116 Ga. 48, 42 S. E. 499), and consequently true also that where a witness testifies to certain facts upon his direct examination, but upon cross-examination shows that he has answered from hearsay and without any personal knowledge of the facts about which he testified, his testimony should be disregarded (Atlantic Coast Line R. Co. v. Col lins, 13 Ga. App. 759 (1), 79 S. E. 946); compare Evans v. Josephine Mills, 119 Ga. 448 (2), 46 S. E. 674; Evans v. Scofield’s Sons Co., 120 Ga. 961, 48 S. E. 358); but it is furthermore the rule that “where a witness testifies to a fact, the presumption is, in the absence- of anything to the contrary, that he is testifying from his own knowledge.” Shaw v. Jones, 133 Ga. 446 (3) (66 S. E. 240); Hearn v. Red Devil Co., 31 Ga. App. 84 (119 S. E. 469).

The testimony of the witness Goodwin does not affirmatively disclose that he was testifying from hearsay; and although in truth he may not have known anything as to whose servant he was, this court cannot say, as a matter of law, that he was not testifying from personal knowledge of the terms of the contract which he may have heard made, or from subsequent conversations between the contracting parties, or from the practice and course of dealing between them with respect to the direction and control of his labor. See New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786).

We conclude that it should not be held, as a matter of law, that Goodwin was not the servant of the defendant at the time and place of the plaintiffs injury, but that the question was one to be determined by the jury.

The witness, with more certainty than in some other particulars, testified that he was carrying the second wagon at the orders of representatives of the defendant under whom he worked, one of them either fastening this wagon or having it fastened in the manner complained of. He gave other testimony not quoted in the statement of facts, which, if true, would have shown that the averments of the plaintiff as to negligence were unfounded; but this still did not authorize the granting of a nonsuit, for the reason that the testimony of the plaintiff himself, together with that of other witnesses, would have warranted the inference of negligence as alleged.

It is “well settled in this State that a party may contradict his own witness by showing the truth to be different from what the witness testified. Skipper v. State, 59 Ga. 63; Cronan v. Roberts, 65 Ga. 678; McElmurray v. Turner, 86 Ga. 217.” Christian v. Macon Ry. Co., 120 Ga. 314 (2), 317 (47 S. E. 923). “While a party will not be permitted to impeach a witness called by him, by proof of general bad character, or by proof of contradictory statements, unless it appears that he has been entrapped by the witness, he is not bound, by calling the witness, to accept his testimony as true, but may prove by another witness a different state of facts.” Moultrie Repair Co. v. Hill, 120 Ga. 730 (3) (48 S. E. 143). See also Carter v. Carter, 7 Ga. App. 216 (66 S. E. 630). And see Sizer v. Melton, 129 Ga. 143 (3) (4) (58 S. E. 1055). “A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.” Sappington v. Bell, 115 Ga. 856 (1) (42 S. E. 233).

The plaintiff’s evidence was sufficient for the submission of his case to the jury, and the nonsuit was error. See Steinhauser v. Savannah &c. Ry. Co., 118 Ga. 195 (1) (44 S. E. 800).

Nothing herein ruled is in conflict with Coggin v. Central Railroad Co., 62 Ga. 685.

Judgment reversed.

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


text:
    15083.
    Central of Georgia Railway Co. v. Wheat.
   Bell, J.

This was an action in tort against a steam-railway company and a street-railway company for injuries alleged to have been received by the plaintiff in a collision between a train of the former and a car of the latter in which the plaintiff was riding as a passenger. The petition charged that each company was negligent in approaching the intersection of the respective tracks where the collision and injury occurred. The petition alleged further that the planitiff’s injuries were “due to, caused by, and the sole result of” the negligence of both companies, and this averment is not negatived by any of the more specific allegations. The steam-railway company excepted to the overruling of its general and special demurrers, but in this court insisted only upon the ground of demurrer that the petition contained a misjoinder of causes of action and of parties defendant. Held: The question presented for adjudication is controlled in principle adversely to the plaintiff in error by the decision of the Supreme Court in Gooch v. Georgia Marble Co., 151 Ga. 462 (107 S. E. 47), wherein it was ruled: “Where one suffers an injury as the result of the concurring negligence of two tort-feasors, the injured party may maintain a joint or several suit against the tort-feasors; and it will be sufficient to support a recovery in a joint suit if the negligence of both be a contributing cause, although the degree of care owed to the complainant by both parties defendant be not tlie same.” See Kelly v. Georgia Ry. & Power Co., 24 Ga. App. 439 (4) (101 S. E. 401); Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (5) (116 S. E. 57).

Decided April 23, 1924.

Action for damages; from Muscogee superior court — Judge Munro. September 28, 1923.

Arnold & Battle, for plaintiff in error.

McLaughlin & Foley, contra.

Judgment affirmed.

Jenhvns, P. J., and Stephens, J., concur.


text:
    15130.
    ANDERSON, CLAYTON & CO. v. MANGHAM.
    The authority of the defendants’ agent to make the contract sued upon was sufficiently alleged in the petition, as against the demurrers. The contract was not wanting in mutuality, or invalid for uncertainty, nor were the damages claimed too remote to be recovered. The court did not err in overruling the demurrer.
    Decided April 23, 1924.
    Action for breach of contract; from city court of Atlanta— Judge Reid. September 22, 1923.
    J. J. Mangham brought suit by attachment against Anderson, Clayton & Company, a partnership whose members were nonresidents of this State. His petition alleged:
    “3. That said defendants are engaged in the cotton business, that is, they buy and sell spot cotton, maintaining agencies in various parts of the south; and, among others, they maintain an office and agency in the city of Atlanta, county of Pulton, State of Georgia.
    “ (a) That said agency in Atlanta was, in the summer of 1921, in charge of W. L. Williams.

      “(b) That said W. L. Williams had authority and power to employ men to work for said Anderson, Clayton & Company in the territory assigned to him, which included the counties of Carroll, Douglas, and Haralson in the State of Georgia.
    “ (c) That one E. A. Namon was the agent in charge of the agency in Atlanta, previous' to the installation of said W. L. Williams with the same powers.
    “4. Plaintiff shows that he is a practical cotton man, having been engaged for a number of years in buying and selling spot cotton, with, the capacity to earn from eight to fifteen thousand dollars per year, which said facts were well known to defendants.
    “5. That in the summer of 1921 plaintiff took up with Mr. Namon the matter of contracting with defendants for the season of 1921 and 1922, beginning September 1 and ending May 1, for the purpose of purchasing cotton in the counties of Douglas, Carroll, and Haralson in the State of Georgia, having previously done business [with] defendants as their cotton buyer; whereupon said Namon referred him to W. L. Williams, his successor, and introduced him to said Williams.
    “6. Said Williams, as agent of defendants, stated to plaintiff that if plaintiff would employ a sufficient force of hands with which to handle the business, that he would contract with him for handling spot cotton in the territory above named, embracing the towns of Douglasville, Villa Rica, Temple, and Bremen on the Southern Railroad, Buchanan and Carrollton on the Central of Georgia Railroad, and Bowdon on the Bowdon Railroad, which said towns, in normal times, receive from 65,000 to 100,000 bales of cotton, and stated to plaintiff that it was the purpose of defendants to buy in said territory a minimum of 22,000 bales, [with] a maximum of practically the whole, and offered to give him $100 per month plus fifty cents per bale for all cotton purchased, requesting plaintiff to see if he could make the necessary arrangements. He also agreed to give plaintiff liberal limits that would enable him to meet all competition, stating that defendants wanted the cotton and were willing to pay the price needful to get it; also agreeing to pay the following expenses: plaintiff’s expenses in going from his office in Bremen to the office of defendants in Atlanta, for all telephone and telegraph messages from plaintiff to defendant. Plaintiff was to maintain an office at Bremen, Georgia.
    “ (a) Plaintiff stated to Williams that he would be able to meet- the requirements and would report to him in a few days; whereupon Williams told him to make the needful arrangements. Acting on this, plaintiff made a contract with the following cotton buyers to work for him in said territory and in said towns for the season of 1921-1922, to wit: Ralph Upshaw at $150 per month; Robert F. Driver at $100 per month, and Alvin Steed at $100 per month. He also employed two negro helpers, one at $15 per week and one at $10 per week, to work during said season, and h§ also bought a Ford car for the convenience of his employees, at an expense of $350, and reserved an office in his building in Bremen, Ga.
    “ (b) On or about the last of July or the 1st of August, 1921, plaintiff reported to said Williams what he had done, — that is, that he had reserved an office, contracted with the men above named for the season above specified, and had secured an automobile. He asked said Williams if he thought the equipment was sufficient, and Williams agreed that it was.
    •“7. On September 1, with the force he had employed, he opened his office and began work for defendants.
    “ (a) Cotton was exceedingly late in opening in said territory, and but little was done. However, plaintiff did the best he could, being vigilant in keeping up with all cotton coming into said towns in said territory at an expense to himself, as herein above set out.
    “8. That on September 16, 1921, defendants, in violation of their duty to him and of their contract with him, cancelled said contract and discharged plaintiff, to his injury and damage in the sum of $4,828.61, as will hereinafter be more fully detailed and particularized.”
    “10. Plaintiff alleges that it was contemplated between the parties at the time said contract was made, and it was a part of said contract, that he should buy a minimum of 22,000 bales of cotton; that in said territory for said season there was produced and marketed in said towns approximately the following number of bales: Carrollton, 20,000; Bowdon, 10,000; Tallapoosa, 4,000; Yilla Rica, 10,000; Temple, 5,000; Douglasville, 2,000; Buchanan, 2,000; Bremen, 3,500. He therefore alleges that there was a sufficient quantity marketed in said territory for him to have easily purchased said minimum with said equipment, he being a first-class cotton man, and the men employed by him being first-class cotton men and popular with the trade, and in failing to buy the same he was injured and damaged in the minimum sum of $11,000, besides his salary of $100 per month, making a total of $11,800, all by reason of the breach of said contract by defendants.”
    In paragraphs 11 and 12 the plaintiff alleges that his expense in the performance of the contract would have amounted to $4,300, and that after the breach he lessened his damage by earning $2,-671.67 in other employment, which sums, “deducted from the commission he would have received on the cotton he could have purchased, plus his salary, would leave the sum sued for, to wit: $4,828.61.”
    Paragraph 13 alleges that it was “contemplated between the parties that he would make a minimum of $11,800, with a good chance of making more; that he was worth as a cotton man the sum of $7,000 individually, and he alleges that he and his force were worth $11,800, as recognized by defendants, and that defendants would have paid him said sum for himself and force had he been willing to have accepted the same, but he believed that he could buy a larger amount of. cotton than the minimum fixed, thereby increasing his earnings; hence he chose to operate under a commission, rather than a straight salary basis.”
    Paragraphs 9 and 14, and other portions of paragraph 13, contain averments as to the expenses which the plaintiff incurred in making ready to perform the contract before its breach, and alleged that, in any view, the defendants are indebted to him in the amount of the expenses incurred. It appears that these averments are made for the purpose merely of holding the defendant liable for such expenses, in the event of an adjudication that he could not recover the commissions and salary. The petition further alleges the suing out of the attachment, service by garnishment, and the giving of a replevy bond by the defendant. Judgment was prayed for in the sum of $4,828.61, with interest.
    The defendants demurred generally to the petition; and demurred to paragraph 3 on the ground that it does not set out “how or in what manner W. L. Williams was authorized to make any contract, and the allegations as to the authority of the said W. L. Williams are mere conclusions of the pleader.” The demurrer was overruled and the defendants excepted.

      Albert B. Mayer, for plaintiffs in error.

      Sidney Holderness, Watkins, Bussell & AsbiTl, contra.
   Bell, J.

(After stating the foregoing facts.) “If a person imposes upon another the duties and responsibilities involving the management and control of a business, such person will be presumed to have authority to represent his employer in any matter within the scope of the business.” Pickens v. Thomas, 152 Ga. 648 (1), 650 (111 S. E. 27). Under the allegations of the petition that the defendants were nonresidents, engaged in buying and selling spot cotton, maintaining agencies in various parts of the South, including an office and agency in the city of Atlanta, and that the agent with whom the plaintiff dealt was in charge of this office, with.territory assigned to him, including certain counties in this State, he was a general agent, presumed to have authority to represent his employer in any matter within the scope of the business of buying and selling spot cotton in the territory named. Thus, as against a general demurrer, and especially in view of the averment that the agent “had authority and power to employ men for the defendant in the territory assigned to him,” the petition sufficiently disclosed that the alleged contract was made on behalf of the defendant by an authorized agent. Nor was there any merit in the special demurrer. “An averment that an agent was 'duly authorized5 to act for his principal is not objectionable as being a conclusion. 16 Enc. Pl. & Pr. 900.” Kiser Co. v. Padrick, 30 Ga. App. 642 (13) (118 S. E. 791).

It is contended further that the contract is unilateral. “The consent of the parties being essential to a contract, until each has assented to all the terms the contract is incomplete; until assented to, each party may withdraw his bid or proposition, unless a given time is agreed on in which the other party may assent.” Civil Code (1910), § 4230. It is also true that “An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it be unconditional and identical with the terms of the offer.” Monk v. McDaniel, 116 Ga. 108 (3) (42 S. E. 360). To constitute a contract, the offer must be accepted unequivocally and without variance of any sort (Gray v. Lynn, 139 Ga. 294, 77 S. E. 156; Dillin-Morris Co. v. Gillespie, 15 Ga. App. 210 (1), 82 S. E. 812); but an offer may contemplate acceptance by the doing of an act; and if the act be performed while the offer is in life, a binding contract is created, and the person making the offer must abide by its terms. Sheffield v. Whitfield, 6 Ga. App. 762 (2) (65 S. E. 807). “If the promisee, acting on the faith of the promise, within a reasonable time, does the thing which it was contemplated he should do, then the promisor is bound on the ground that the thing done is a sufficient and completed consideration.” Morrow v. Southern Express Co., 101 Ga. 810, 812 (28 S. E. 998). Measured by these rules, the contract set out in the declaration was not unilateral, or wanting in mutuality. It is shown in paragraph 6 that the defendants, by their agent, made the plaintiff an offer which was to be accepted by the plaintiff’s making “the needful arrangements” and that the plaintiff thereafter did accept the offer by doing the things specified. See Fontaine v. Baxley, 90 Ga. 416 (1), 425 (17 S. E. 1015).

With reference to the remaining contentions, the contract as alleged was not void for uncertainty, nor are the damages claimed too remote or speculative to be recovered, if proved as laid. Civil Code (1910), §§ 4402, 4394, 4395; Baldwin v. Marqueze, 91 Ga. 404 (3) (18 S. E. 309); American Agricultural Chemical Co. v. Rhodes, 139 Ga. 495 (1) (2) (3) (77 S. E. 582); Civil Code (1910), §§4216, 4222.

The court did not err in overruling either the general or the special demurrer.

Judgment affirmed.

JenJcins, P. J., and Stephens, J., concur.


text:
    15159.
    DAVID v. MARBUT-WILLIAMS LUMBER CO.
    1. It is a condition precedent to a materialman’s lien that an action for the recovery of the amount of the claim shall be commenced “within twelve months from the time the same shall become due.”
    2. Where a materialman brought suit on November 14, 1921, against a contractor and the owner of the real-estate improved, for a personal judgment against the contractor and the foreclosure of a lien against the realty, alleging that the claim for the materials matured in December, 1920, and the jury returned a verdict finding against the contractor “the sum of $1126.80, with interest from November 14, 1920, to date at 7 per cent, per annum, with a lien against the property,” a motion by the owner (not a motion for a new trial) “designed to prevent the entering of judgment . . setting up a li'en,” upon the ground that the finding of the jury as to interest adjudicated the- debt to have become due on November 14, 1920, or some day prior thereto, and thus that the filing of the action on November 14, 1921, was not within twelve months from the maturity of the claim, was properly overruled, the plaintiff having written off the interest allowed by the verdict for the period anterior to the alleged maturity. It was proper also to overrule a subsequent motion in arrest of judgment, based upon the same ground. The verdict presumably contained error (if any at all) only in respect to interest.
    Decided April 23, 1924.

      Lien foreclosure; from Fulton superior court — Judge Ellis. November 13, 1923.

      Slaton & Hoplcins, for plaintiff in error.

      George B. Rush, contra.
   Bell, J.

“Before a materialman’s lien for materials furnished to a contractor to improve the real estate of another can be foreclosed, there must be a judgment for the price of such materials in his favor, against the contractor, or the contractor must be sued concurrently with the owner of-the property improved, in the foreclosure proceedings.” Pike Lumber Co. v. Mitchell, 132 Ga. 675, 676 (64 S. E. 998, 26 L. R. A. (N. S.) 409). The materialman in the instant case adopted the “concurrent” proceeding. The petition was filed on November 14, 1921, and alleged, among other things, that it was brought within 12 months from the time the claim for the materials became due, — namely, in the previous December. The owner of the realty answered the suit and denied each of the plaintiff’s allegations, except as to her residence and her ownership of the realty. Upon the trial the jury returned a verdict finding for the plaintiff against the contractor “the sum of $1,126.80, with interest from Nov. 14, 1920, to date at 7 per cent, per annum,” with a lien therefor against the realty. The owner thereupon filed a motion, described by her counsel as one “designed to prevent the entering of judgment against her setting up a lien,” upon the ground that the finding of the jury as to interest adjudicated the debt to have become due on November 14, 1920, or some day prior thereto, and thus that the filing of the action on November 14, 1921, was not within twelve months from the maturity of the claim. The plaintiff wrote off the interest as allowed in the verdict, for the period anterior to the alleged maturity. The motion was thereupon overruled. After judgment was entered setting up the lien for the amount of the verdict less the interest written off, the owner moved in arrest of judgment, upon the identical grounds of the previous motion. She brings exceptions to the overruling of both motions.

It is a condition precedent to a materialman’s lien that an action for the recovery of the amount of the claim shall be commenced within twelve months from the time the same shall become due. Park’s Code, § 3353, subsection 2(a). Compare Lombard v. Trustees, 73 Ga. 322; Chamlee Lumber Co. v. Crichton, 136 Ga. 391 (71 S. E. 673); Massachusetts Bonding Co. v. Realty Trust Co., 142 Ga. 499, 596 (83 S. E. 210); Civil Code (1910), § 3365.

In computing a period of time, embracing months or years,, within which a party may exercise a right, the rule as laid down in the Civil Code, §4 (8), as to the computation of a number of days, does not apply (Peterson v. Georgia R. Co., 97 Ga. 798, 25 S. E. 370; Jones v. Kern, 101 Ga. 309 (1), 28 S. E. 850; Rusk v. Hill, 117 Ga. 722 (1), 45 S. E. 42); and in cases of tort both the day of the injury and the day of the filing of the suit must be counted in determining whether the action was filed within the period of limitation. Peterson v. Georgia R. Co., supra. See also Brown v. Emerson Brick Co., 15 Ga. App. 332 (83 S. E. 160); Texas Co. v. Davis, 157 Ga. 538 (122 S. E. 62).

Assuming, without deciding, that in this ease, if the claim for materials in fact became due on November 14, 1930, that day should be counted in computing the period of limitation, even though the claim was contractual (see Blitch v. Brewer, 83 Ga. 333, 9 S. E. 837; Hipp v. Fidelity Ins. Co., 128 Ga. 491 (4), 57 S. E. 892, 12 L. R. A. (N. S.) 319; Curtis v. College Park Lumber Co., 145 Ga. 601 (1) (4), 89 S. E. 860), then the srrit filed on November 14, 1931, would not have been brought within time. It would not result, however, that the court committed error in overruling either of the defendant’s motions.

Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity. Civil Code (1910), § 5937. Verdicts “should be construed so as to stand if practicable.” Mayor &c. of Macon v. Harris, 75 Ga. 761 (10). “The presumptions are in favor of the validity of the verdict of a jury.” Southern Railway Co. v. Oliver, 1 Ga. App. 734 (5) (58 S. E. 244). Where a verdict is ambiguous and susceptible of two constructions, one of which would uphold it, and one of which would defeat it, it “will not on this account be set aside, but will be given a construction which will uphold it.” Atlantic & Birmingham Ry. Co. v. Brown, 129 Ga. 622 (4) (59 S. E. 278). In this case no motion for a new trial was made. The action alleges that it was commenced within time. It is presumed that the court correctly charged the jury that the plaintiff could not have a lien unless this was so, and that the jury would not have rendered the verdict in favor of the lien at all unless they were satisfied and found it lo be true that the suit was commenced within the prescribed period of twelve months. The verdict necessarily includes such a finding. The presumption thereof, being of the very essence of the verdict in regard to the lien, will prevail over any presumption that might arise from the part as to interest to the effect that the action was not so commenced. Accordingly, the verdict is construed not as finding a different maturity date from that in the petition alleged, but merely as allowing the plaintiff more interest than’ he was entitled to recover. It must be conceded that the verdict contained error in one respect or the other, provided we should count the day of the maturity as a part of the limitation period; but from the proposition that error is never to be presumed, it must follow as a corollary that where an error in a verdict confessedly exists but it is uncertain whether it is such as would be fatal to the finding as a whole, or such as would merely invalidate' it as to some dependent part, the lesser error is the one to be presumed, and where the illegal part is definitely ascertainable, the error may be cured by striking off the illegal part. Huffman v. Carolina Portland Cement Co., 29 Ga. App. 439 (1) (116 S. E. 25). The inconsistency in the verdict should be harmonized or avoided if reasonably possible without destroying the whole. The plaintiff having written off the excess of interest, the judgment thereupon should stand. The verdict will thus be preserved in accordance with its “reasonable intendment.”

Judgment affirmed.

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


text:
    15231, 15232.
    McCollum v. Thomason (two cases).
   Bell, J.

1. Under the Civil Code, § 3823, a landowner dissatisfied with a line run and marked by processioners and a surveyor between him and a coterminus owner may file his protest thereto, specifying his objection and the true line as claimed by him, and the papers, including the protest, shall be returned to the superior court for trial. The verdict and the judgment shall be framed to meet the issue tried and decided. The issue in such a case is not necessarily confined to the question of whether the line as marked by the processioners should be sustained, but it is permissible for the protestant to obtain a verdict setting up the true line as declared in his protest, if the evidence shall so warrant. See Stewart v. Jackson, 144 Ga. 501 (3) (87 S. E. 656); Parrish v. Castleberry, 142 Ga. 115 (6) (82 S. E. 520); Norman v. Smith, 131 Ga. 69 (4), 74 (61 S. E. 1039); Robson v. Shelnutt, 122 Ga. 322 (50 S. E. 91); Civil Code (1910), §§ 4522, 5426.

2. In this processioning case the protestant specified his objection to the line marked by the processioners and the surveyor, and also set out what he contended was the true dividing line. No other issues were raised in the protest. The court instructed the jury as follows: (1) “Under the law, processioners with a surveyor can’t make a new line, but only reestablish and remark old lines. . . If you find that the proeessioners made a line where there has been no line before, made a new line . . , that would be an end to the case, and the form of your verdict would be. . , ‘We, the jury, find that the processioners made a new line,’ and on that I would dismiss the whole proceedings.” (2) “If you find that the processioners remarked a line that had-already been made , . . then find out whether or not that is the true line. . . In that event the form of your verdict would be, ‘We, the jury, find in favor of the line established by the processioners.’ ” (3) “If you find that the line established by the processioners is not the true line, but that the line claimed by protestant . . is the true line, then your finding would be, ‘We, the jury, find in favor of the line claimed by the protestant as the correct line.’, ” The jury found a verdict “in favor of the protestant.” Eeld: Verdicts are to be upheld if capable of legal intendment. They will be construed in the light of the pleadings, the issue made by the evidence, and the charge of the court. Tifton &c. Ry. Co. v. Butler, 4 Ga. App. 191 (2), 193 (60 S. E. 1087); Barbour v. State, 8 Ga. App. 27 (68 S. E. 458); McNeil v. McNeil, 147 Ga. 25 (3) (92 S. E. 644). Applying this ruling, the verdict in this case was properly construed by the trial judge as a finding in favor of the line alleged in the protest to be the true line, and it was not improper for the judge thereupon to enter a judgment or decree accordingly, provided the alleged true line was sufficiently definite.

3. Where in a processioning case the return of the processioners, with the plat made by the surveyor, described the line as run by them across lot of land number 180 in the 3d district of a named county, as follows: “ Commencing in the center of Brasstown creek, which commencing point is evidenced by a rock corner between the lands of L. A. Thomas, G. W. McCollum, and R. C. McCollum, standing on the west bank of said Brass-town creek; thence south 76.15 west 24 rods to a plainly marked white oak tree, marked as a center tree; thence south 76.45 west. 9 rods to a plainly marked white oak tree, marked as a center tree; thence south 80. west 42 rods and 15 links to a rock corner between said L. A. Thomas, Mrs. Emma Tatum, and R. C. McCollum,” and where the protest to such line described the true line as one “beginning at a hickory corner on the original line between lots Nos. 179 and 180 in the 3d land district and runs thence S. 82.15, 204 rods and 30 links, straight through said lot No. 180, to a post oak conditional corner on the original line between lots Nos. 180 and 181,” and alleged further “that said hickory and said post oak are and have been recognized and established as the corners for over seventy years and were so recognized by the said predecessor in title of the [coterminus owner], and this protestant has been in actual, peaceable, and uninterrupted possession of said land up to said straight line for a period of over twenty-seven years, and has cultivated same uninterruptedly for that period, [and that] said proeessioners refused to recognize said established post oak corner, but ran their line to a point some twenty rods below same and some twenty rods down on the lands of this protestant, which is the south half of said lot No. 180,” such allegation as to the “true line,” when considered in connection with the return of the proeessioners with the plat thereto annexed, which are a part of the record, are not too vague and uncertain to authorize a verdict and decree thereon, there being extrinsic proof of the physical existence of the termini marks in accordance with the allegations. Callaway v. Beauchamp, 147 Ga. 17 (2) (92 S. E. 538); McNeil v. McNeil, 147 Ga. 25 (2) (92 S. E. 644). If the corners are established and the lines not marked, a straight line as required by the plat should be run. Civil Code (1910), § 3820. Upon ascertaining the location of either terminus as alleged in the protest, the course of the line toward the other terminus being shown, the latter could be also determined. That is certain which may be made certain. In such a ease the line is sufficiently definite, where, as here, a key to the identification, is shown in the record. Price v. Gross, 148 Ga. 137 (2) (96 S. E. 4); Boyd v. Sanders, 148 Ga. 839 (1) (98 S. E. 490).

4. The verdict in favor of the protestant was not void because of the absence of any prayer in the protest that the alleged true line be found and decreed to be such. If such prayer ought to have been made, the omission might have been supplied by amendment, and the defect, being such as to be cured by verdict and judgment, was not a good ground of a subsequent motion for a new trial or of a motion in arrest of judgment. Civil Code (1910), § 5960; Fitzpatrick v. Paulding, 131 Ga. 693 (63 S. E. 213); Dinkler v. Baer, 92 Ga. 432 (1) (17 S. E. 953); Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579).

5. The evidence in this case did not demand a finding in favor of the line as run and marked by the proeessioners, nor was it conclusively established that previous owners of the adjoining tracts had by agreement fixed a different line from that alleged by the protestant to be the true line. The agreement relied on, which was in writing made in 1889,— after reciting that some of the marks were about to disappear by the death and decay of the timber, — stipulated that the parties thereto “agreed . . to set up rocks in their places, the first one to be set up at the conditional corner on the east end of said line in place of a hickory, . . and the next one down near the creek in place of a post oak, running west on said line.” Assuming that such agreement was sufficiently definite to be valid and that the parties to this case were in accord as to the location of the two stones referred to in the quoted stipulation as determinative of the course of the dividing line, there was evidence by a former county surveyor from which the jury were authorized to find that the line as claimed by the protestant coincided with the two points indicated. There was some evidence to support the verdict found in favor of the protestant.

6. Although it is not necessary under the law as it now exists for an owner of lands to apply to have the lines around his entire tract surveyed and marked anew in order to entitle him to the services of the proeessioners and the surveyor in marking a single line between him and any adjacent owner, the applicant was not harmed in this case by the fact that the court gave in charge that portion of the Civil Code, § 3818, which refers to the application for processioning by one “who desires the lines around his entire tract to be surveyed and marked anew;” nor is it cause for a new trial that the court charged also the provisions of the same section with reference to notice to all the owners of adjoining lands. This case arose upon an application to have a single line surveyed and marked anew as the dividing line between the parties to this case. No question was raised as to the sufficiency of the notice. The jury could not have been misled by the instructions referred to into a consideration of other issues than those involved.

Decided April 23, 1924.

Processioning; from White superior court — Judge J. B. Jones. October 8, 1923.

G. H. Edwards, J. G. Edwards, H. E. Edwards, for plaintiff.

McMillan & Enuin, for defendant.

7. “Civil Code § 3819, which declares that when the surveyor’s plat shall be certified as required, in all future disputes arising in reference to the boundary lines of the tract surveyed such plat shall be considered prima facie correct, is inapplicable to the issue before the court formed by a protest to the proeessioners’ return. But the giving of this section in charge was not prejudicial to the losing party, because in the trial of an issue formed by a protest the return of the proeessioners is to be deemed prima facie correct.” Georgia Talc Co. v. Cohutta Talc Co., 140 Ga. 245 (4) (78 S. E. 905). Nor was the giving of this section in charge to the jury cause for a new trial upon the ground as assigned that it is not the law “where only one line is processioned, as was done in this case, the plat being only prima facie correct as to the adjoining landowners to the land in dispute and surveyed by the proeessioners.”

8. In one of the special grounds of the motion for a new trial error is assigned upon the admission in evidence of a certain deed, upon the ground that it was not properly executed. Nothing is shown therein in reference to the deed except the date, the parties, and the witnesses. It does not appear what property was conveyed. “A ground of a motion for new trial, complaining of the admission of documentary evidence over stated objections, which does not set forth the document in form or substance, is incomplete, and fails to set forth any question for decision. Stewart v. Bank, 100 Ga. 496 (2), 501 (28 S. E. 249), Stewart v. Randall, 138 Ga. 796 (5), 797 (76 S. E. 352).” Callaway v. Beauchamp, 140 Ga. 207 (2) (78 S. E. 846).

9. Applying the foregoing rulings to the facts of this case, the trial judge properly overruled the motion to set aside the verdict and judgment, and did not abuse his discretion in overruling the motion' for a new trial.

Judgment affirmed.

Jenlcvns, P. J., and Stephens, J., concur.


text:
    15309.
    GOWER v. ROBERTS.
    Where the holder of a note containing a stipulation by the maker for the payment of attorney’s fees, in addition 'to principal and interest, places the note in the hands of an attorney at law for collection, under a contract by the terms of which the attorney is to collect it for the attorney’s fees therein provided for, and is to charge the holder nothing if the maker, in response to the notice to be given under the provisions of the Civil Code (1910), § 4252, should pay the note on or before the return day of the contemplated action thereon, and where, after the notice is duly given, suit is filed prior to the return day, and the plaintiff and the defendant on or before the return day enter into and execute an agreement that upon the payment of the accrued costs and the furnishing of additional security the plaintiff will cause the dismissal of the suit and extend the maturity of the note for 60 days thereafter, the agreement will preclude a recovery of the attorney’s fees in the action so instituted, either by the plaintiff himself or by the attorney prosecuting the suit in the name of his client for the recovery of such fees. The plaintiff himself not being entitled to recover such fees, neither is his attorney. The defendant having filed a special plea setting tip the facts stated above, and • the plea being indisputably established by the evidence, the court did not err in directing a verdict in favor of the plea and in denial of the right of the plaintiff’s attorney to a judgment for attorney’s fees.
    Decided April 23, 1924.
    Complaint; from Walton superior court — Judge Eortson. December 26, 1923.
    Application for certiorari was denied by the Supreme Court.

      Norman I. Miller, J. E. Fellcer., for plaintiff.

      B. L. & E. G. Cox, E. W. Bober Is, for defendant.
   Bell, J.

The only question in this case has reference to the right of an attorney at law to prosecute a suit solely for the purpose of recovering of the defendant the attorney’s fees stipulated in the note on which the action is based, where the defendant maker and the plaintiff holder, subsequently to the filing of the suit but prior to the return day, entered into an agreement which precludes a recovery of the principal and interest in the particular action, notice of the plaintiff’s intention to bring which was duly given under the Civil Code (1910), §4252, for the purpose of fixing a liability upon the defendant for such fees.

O. S. Gower, as payee, held a note of 0. Roberts, maker, containing a stipulation that the maker should pay “all costs of collection, including 10 per cent, attorney’s fees on principal and interest.” On January 4, 1921, the note being mature, it was placed for collection in the hands of J. H. Felker, an attorney, who received it under an agreement that he was to collect it for the attorney’s fees therein provided for, and that if the maker, in response to notice of suit, to be given under the Civil Code, § 4252, should pay the note before the return day, then the attorney was to charge the holder “nothing for the collection.” After notice was duly given to the defendant in terms of the above-mentioned code section, suit was filed upon the note prior to the return day of the February term, 1922, of the superior court, containing proper allegations for recovery of the principal, interest, and attorney’s fees. The defendant answered the suit, admitting the receipt of the notice, but pleading that he made a settlement with the plaintiff on the day preceding the return day, but after the suit had been filed, by the terms of which the plaintiff, in consideration of the payment of $6 as the accrued costs and the giving of additional security by the defendant, agreed to have the suit dismissed and to extend the maturity of the note for 60 days from January 30, the day of the settlement. The additional security was then given and an entry was made upon the note, setting forth the extension of its maturity. It appears that the plaintiff paid the costs to the clerk on the return day and instructed that officer to dismiss the suit. The plaintiff’s attorney, however, on being informed of this direction, questioned the right of his. client so to dispose of the case without his consent, and the defendant, in view of this contention, appeared at the return term and filed the plea for the purpose of combating the claim of the plaintiff’s attorney of the right to prosecute the suit for the purpose of recovering the attorney’s fees as provided in the note. The case went to trial solely upon this special plea. At the close of the evidence a verdict was directed in favor of the defendant. The plaintiff’s attorney, in the name of his client, filed a motion for a new trial, which was overruled, and in the same name a bill of exceptions is brought to this court for a review of the judgment overruling the motion. Several grounds of the motion complain of errors in the admission and rejection of evidence, but these we will not specifically refer to,'for the reason that we believe a decision upon the assignment complaining of the direction of a verdict will control the entire case, it being our opinion that, irrespective of the rulings complained of, other than the direction of the verdict, the result of the trial nevertheless should have been the same. The plea was established, without dispute, although it appears in the evidence that the note was not actually paid in whole or in part within the extension period, and part of it was not paid until long thereafter.

Such attorney’s fees as are recoverable by virtue of a stipulation in a note are in the nature of liquidated damages which inure to the benefit of the plaintiff, and are not a provision for the benefit of his attorney. Rylee v. Bank of Statham, 7 Ga. App. 489 (6) (67 S. E. 383); Carson v. Blair, 31 Ga. App. 60 (121 S. E. 517); Dublin Veneer Co. v. Chappell, 31 Ga. App. 700 (121 S. E. 866). Before a party can recover such fees, he must comply with the terms of the Civil Code, § 4252, and the defendant must fail to pay the debt on or before the return day, where the suit is filed prior thereto. There is no vested right to the attorney’s fees until all these conditions have been fulfilled. Valdosta &c. R. Co. v. Citizens Bank of Valdosta, 14 Ga. App. 329 (6) (80 S. E. 913). That there was a compliance with the code so far as the plaintiff or his attorney was concerned is not questioned. The real controversy, as the parties have presented it, is whether the agreement between the plaintiff and the defendant amounted to such a “payment” of the principal and interest as to defeat the recovery of attorney’s fees. The right thereto “is in the nature of a penalty which the law imposes upon the defendant for a failure to pay the debt by the return day of court.” Valdosta &c. R. Co. v. Citizens Bank of Valdosta, supra. The statute shows by its very language that it provides for an exception to the general public policy of this State, for it is declared therein that “obligations to pay attorney’s fees upon any note or other evidence of indebtedness, .in addition to the rate of interest specified therein, are void, and no court shall enforce such agreement,” except upon specified terms. These considerations impel a liberal construction of the ■statute in favor of the debtor, i. e., a strict construction against the creditor, and the word “payment,” as therein employed, should be understood as implying any action by the former which may satisfy the latter in reference to the subject-matter of the particular suit. Indeed, we think that the statute, in providing that the defendant, after notice given, can escape the payment of attorney’s fees only by the payment of the debt on or before the return day, has reference to his absolute right, without regard to the will of the plaintiff, and does not in any sense prohibit the debtor from making an agreement with the plaintiff in lieu of the actual payment. Where the plaintiff is willing not to exact “payment2’ as mentioned in the code, but takes something else that legally satisfies him, it is immaterial that the plaintiff’s attorney does not consent.

A case may be easily supposed wherein a party has caused a suit to be instituted upon a note which is doubtfully secured, but which he would prefer to remain at interest and withdrawn from suit if the security could be made ample. Where in such a case the debtor meets the plaintiff’s requirement on or before the return day, as to a suit filed prior thereto (Donovan v. Hogan, 8 Ga. App. 754 (2), 70 S. E. 153), he should be relieved of the payment of attorney’s fees to the same extent as if he had paid the debt in cash. To hold that where the parties have made such an agreement the defendant should nevertheless be bound for the attorney’s fees as stipulated in the note, upon a prosecution of the suit by the plaintiff’s attorney, would be to place a serious and unwarranted restraint upon the liberty of contract. The right to recover attorney’s fees must depend upon the right to recover the principal and interest, or the principal, or interest, as it existed upon the return day, or at the expiration of the time when the defendant might have removed his conditional liability for attorney’s fees by the satisfaction of the other indebtedness upon the note. Agreements may be legitimately imagined ad infinitum by which the defendant, without.money, may satisfy the note or obtain an extension for its payment, within the time allowed to him by the code section in reference to the collection of attorney’s fees under contract, and by which the absolute ripening of the conditional liability for attorney’s fees will be prevented. Any agreement they may make that is binding upon the plaintiff in relation thereto will bar an enforcement by the plaintiff’s attorney of the provision in the note for their payment.

When the plaintiff in this case, during the period within which the defendant might have paid the note without a liability for attorney’s fees, entered into the agreement with the defendant which made a recovery of the principal and interest in the present action impossible, he at the same time rendered the recovery of the fees impossible. This would be true whether the action should be prosecuted for their recovery by the plaintiff voluntarily or by his attorney in his name. Nor does it matter that the note may not have been paid within the period of the extension agreement. Under the settlement between the parties, the particular suit was discontinued, although the cause of action was not extinguished, and the discontinuance as to principal and interest necessarily included the dependent claim for attorney’s fees. If the plaintiff, instead of extending the old note, had upon the same date surrendered it for a renewal note due at 60 days, the defendant would clearly have been entitled to an abatement of the suit, not only as to principal and interest but as to attorney’s fees as well. We think that the facts as presented in the record could not but have the same effect.

The contract between the plaintiff and his attorney does not make the ease stronger from the standpoint of the latter, nor would his position lie strengthened by the fact that he surrendered the note to his client for the purpose only of obtaining additional security, and not for the purpose of such a settlement as the parties themselves made. The defendant’s liability for the attorney’s fees as stipulated in his note can only be fixed by the terms of the Civil Code, § 4252. No agreement between the plaintiff and his attorney with respect to the conditions of the attorney’s employment can place a greater burden upon the defendant than that which is imposed by the law and his obligation as contained in the note. The attorney, having agreed in effect that he should have only such fees for his services as might be recovered of the defendant upon the stipulation contained in the note, is limited in the present issue solely to the right of his client to a judgment for such fees. The client not being entitled thereto, neither is his attorney.

In holding that the adjustment between the parties was a sufficient compliance by the defendant with the terms of the Civil Code, § 4252, as to payment, to preclude a recovery for the attorney’s fees, we have not overlooked the principle that drafts, notes, and certified checks, and the like, are not payment until themselves paid, when there is no agreement that they are accepted as payment; nor are we unmindful of the ruling made by this court in Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (2) (70 S. E. 851), that the recovery of attorney’s fees could not be prevented by a tender of a certified cheek for the.principal and interest, even if timely made. Such a check could have been accepted as payment by the plaintiff himself, the parties so intending. In the case at bar, the parties did intend both an extension of the maturity of the note and a dismissal of the action. By the terms of the novation the plaintiff waived every right which he had in that action, and in order to recover anything upon the note a new suit would have been necessary.

This case is altogether different from those numerous cases in which it is held, under the Civil Code, § 3364, that after the filing of a suit no person, whether the litigant or not, can settle the suit, or the cause of action therein laid, so as to defeat the lien of the attorney for his fees, and that the attorney, notwithstanding any such settlement of the suit or the cause of action, has the right to prosecute the suit in the name of his client for the recovery of his fees. Such cases are founded upon the liability of the plaintiff to the attorney for the payment of his fees, for which he has a lien, upon the suit, judgment, or decree, with the identical right and power over the same “to enforce their liens, as their clients had or may have for the amount due thereon to them.” This right of lien provided to the attorney applies to the amount of the main cause of action in favor of his client, and does not contemplate an enlargement of the defendant's liability, although if the defendant, with notice of the suit, shall settle with the client, he may be subject to the payment of a part of the same liability twice. Such right of lien in the attorney does not extend to the attorney’s fees stipulated for in the promissory note, where the plaintiff himself may not recover the same. “While attorneys at law have the same right and power over suits brought in behalf of their clients to enforce their lien for fees as their clients have, and such suits may be prosecuted for the benefit of the attorn ey, having a lien, notwithstanding a settlement between the parties to the suit, made without the knowledge or consent of the attorney, still there can be no recovery in behalf of the attorney, unless the evidence is of such a character as would have authorized a recovery by the client if the suit were still proceeding for his benefit.” Atlanta Ry. & Power Co. v. Owens, 119 Ga. 833 (1) (47 S. E. 213).

The attorney in this case having no contract for the recovery of any fees except such as might be recovered of the defendant in addition to principal and interest, the case does not present facts making proper the application of the Civil Code, § 3364, or of any of the decisions of this court or of the Supreme Court founded upon this code section. If the attorney’s contract with his client had provided for a fee generally out of whatever sum the plaintiff might recover, he would have been entitled to prosecute the suit for the purpose of recovering his fee from the .defendant, notwithstanding the agreement between the parties with reference to the dismissal of the suit. In that case the defendant theoretically would not have been required to pay more than the amount of his fixed liability, although paying a part of it twice because of his failure to respect a lien of which he had notice. The attorney having restricted his claim for compensation to á contingent liability of the defendant, which the latter had the right to avoid by satisfying the plaintiff on or before the return day, he cannot hold the defendant liable when the defendant has exercised that right. This contingency was founded in the law, and the attorney’s agreement to perform the service upon the terms named was necessarily subject thereto.

But it is contended further by the complaining attorney that the adjustment between his client and the defendant was a collusive one, entered into for the very purpose of avoiding the payment by the defendant of the fees stipulated in the note; and that it “should not be countenanced by the law,” otherwise there would be nothing to prevent the plaintiff and the defendant from eliminating the attorney under any sort of a pretended “settlement,” in no sense a real payment. We think it is clear from what we have stated above that the plaintiff himself, in the face of the settlement, could not have prosecuted the suit for the purpose of subjecting the defendant to the payment of such fees, and that if the plaintiff cannot do so, neither can his attorney.

It appears that the defendant was seeking merely to exercise a right given him by the law to avoid the payment of attorney’s fees, if he could do so, by satisfying the plaintiff. So long as he acted within his rights, what he did was not invalidated merely because it may have occasioned loss to the plaintiff’s .attorney.

As stated at the outset, the attorney’s fees provided for in a promissory note, when recoverable, are in the nature of liquidated damages inuring to the benefit of the plaintiff, and are not a provision for the benefit of his attorney. It was said in the Rylee case, supra (see headnote 6), that “a plaintiff who has given the required notice entitling him to recover attorney’s fees may waive them by settling with the defendant in full, or by accepting payments thereon from the defendant, under an agreement or understanding not to insist on the liability created by the notice;” but we do not find it necessary to apply this ruling in the instant ease.

We think that the trial court was right in directing the verdict in favor of the defendant, and in thereafter overruling the motion for a new trial.

An attorney accepting a note for collection in which is a stipulation for the payment of attorney’s fees by the maker may, by a proper contract with his client, not limited as was the case here, amply protect himself against the possibility of a loss of all fees by a settlement between the parties, although such settlement might preclude a recovery upon the stipulation made in the note. We do not think that our decision should necessarily be followed by such hardships upon attorneys as the counsel for the plaintiff in error seem to apprehend, but regardless of any consideration of that character, our duty is to express the law as we find it, and this we have done according to our understanding.

Whether or not the attorney complaining in this case might have a right of action against his client is a matter not now for decision, and nothing said is intended to decide any such question. As to whether, if he has such right, the action should be upon an express or an implied contract, see Stephens v. Fulford, 153 Ga. 637 (1, 2) (112 S. E. 894).

Judgment affirmed.

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