author: Jenkins, P. J.

text:
    14310.
    English v. Poole, administratrix.
   Jenkins, P. J.

1. The Supreme Court, in transferring this bill of exceptions to this court, has in effect held that questions only of legal and not of equitable jurisdiction were involved in this partition proceeding, brought by one owning jointly or in common with another the chose in action or monies on deposit in a bank, represented by its cashier’s check made payable to the order of both parties.

2. The provision of section 5362 of the Civil Code (1910), in effect that the partitioners to whom a writ of partition is directed shall make their return thereon to the superior court within three months after the issuing of the writ, is directory rather than mandatory, and where, as here, it does not appear that the delay was caused by the plaintiff, or that any substantial right of the defendant has been prejudiced, a delay of approximately > three additional months will not nullify the writ or the return, so as to render it subject to general demurrer. See Perkins v. Norristown School District, 151 Ga. 414 (107 S. E. 42); Spencer v. City of Columbus, 150 Ga. 312 (103 S. E. 464).

3. “Upon application by any tenant in common, the superior court may , order partition as hereinafter provided.” Civil Code (19.10), § 3726. “Application may be made, and partition of personal property may be obtained, in the same manner and under the same regulations as are prescribed in this Code for obtaining partition of lands and tenements.” Civil Code (1910), § 5370; Roberson v. Bennett, 20 Ga. App. 590 (93 S. E. 297). “Wherever two or more persons, from any cause, are entitled to the possession, simultaneously, of any property in this State, a tenancy in common is created. Tenants in common may have unequal shares; they will be held to be equal unless the contrary appears.” Civil Code (1910), § 3723. A tenancy in common may exist in personalty as well as real property. Deal v. State, 14 Ga. App. 121, 130 (80 S. E. 537); Hale v. Hale, 28 Ga. App. 509 (111 S. E. 740); 7 R. C. L. 817. A draft or check signed by the cashier of a bank is a “primary obligation of the bank” (Bank of Statham v. National Bank of Athens, 143 Ga. 293, 84 S. E. 966; Holland v. Mutual Fert. Co., 8 Ga. App. 714 (3); 70 S. E. 151; 32 Cyc. 666, 667); and such a chose in action or the deposit represented thereby is personal property, of which the joint payees and common owners are tenants in common. The cashier’s check in the instant case, payable to the plaintiff and the defendant jointly, being personalty, and the owners thereof tenants in common, within the. broad language and meaning of the statutes relating to the ownership and partition of personalty, the petition for partition was not subject to the ground of general demurrer that it showed “on its face that the personal property described therein does not come within the purview of the law and is not susceptible to partition.” The novelty of the procedure, and the probable existence of other remedies to determine the title or rights of the parties in the fund, would not defeat the remedy here sought which is given by the statutes. See Civil Code (1910), § 5368.

4. “The general rule of law is, that when a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended that he has performed it, unless the contrary be shewn.” Mauldin v. Southern Shorthand University, 126 Ga. 681, 683 (55 S. E. 922). “The law presumes that every man, in his private and official character, does Ms duty, until the contrary is shewn.” Nicholson v. Spencer, 11 Ga. 607, 611; 10 R. C. L. 880, 881. This general rule, which is more often given application to the acts of public and judicial officers, has been applied to commissioners appointed to take testimony. It has been held that for such purpose they are officers of court, and “the presumption is that they performed their duty” by having the answers properly written. Scott v. McDaniel, 64 Ga. 780 (3), 782. Under a like presumption as to the official acts of the partitioners in the instant case, the omission of their return to “show on its face” their compliance with the provisions of section 5362 of the Civil Code (1910), that they should give “all the parties, if possible, at least eight days notice of the time of executing the writ,” did not render the writ and return subject to general demurrer. In Ralph v. Ward, 109 Ga. 363, 365 (34 S. E. 610), where a verbal notice was held sufficient, the court said that “there is no provision made for any return of such notice, or any entry thereof on any of the papers in the proceedings.” See also Greer v. Fergerson, 101 Ga. 552, 555. (30 S. E. 943); Wilson v. Garrick, 72 Ga. 660 (2 b), 664; Jones v. McCrary, 123 Ga. 282 (2) (51 S. E. 349); Huxford v. So. Pine Co., 124 Ga. 181, 187 (4) (52 S. E. 349); Loudermilk v. Stephens, 126 Ga. 782 (1), 784 (55 S. E. 956); City of Columbus v. Ogletree, 102 Ga. 299 (29 S. E. 749). It is unnecessary to determine whether the statutory provision is mandatory or directory. Actual failure to give such notice might in certain cases be a grave irregularity which would require the vacating of the return, particularly in a case of partition of realty, where the partitioners must select a surveyor and determine land lines, and where it is important that the parties should be personally present or represented. But in the instant proceeding, which is merely for the partition of personalty in the form of a chose in action evidenced by a cashier’s check, the duties of the partitioners involved no discretion, but were merely ministerial under the terms of the order and writ, the interlocutory judgment, after notice to the defendant, finding that the plaintiff and defendant were equally entitled to the fund, and the writ directing that the partitioners make an “equal partition and division” between the common owners, “they having each an equal interest in said check.” The notice provided by the statute after the issuance of the writ, at least in a proceeding of this particular character, is not jurisdictional. Where an application to partition lands or personalty is brought under sections 5358 or 5370 of the Civil Code (1910), and the 20-days notice of the intention to make application is given to other parties under section 5360, objecting parties may, under section 5363, appear either at the time of application or at the term next after the partitioners have made their return, and may then made their defenses and in the latter event, or if they desire to contest the return, have the issue tried by a special jury. There are two judgments of the superior court. The first, “adjudicating what are the respective interests of the parties . . . and appointing partitioners to divide the same and make return to the court, is interlocutory and does not finally dispose of the ease.” Berryman v. Haden, 112 Ga. 752 (3), 758 (38 S. E. 53). Unless there is a preliminary order of sale (Lochrane v. Equitable Loan Co., 122 Ga. 433 (1), 50 S. E. 372), there is no final judgment until the partitioners have made their division and filed their report in court, and the judgment of the court upon the merits of the case has been rendered. The return here showing that the partitioners were duly sworn as officers for the proper execution of the writ, and that they made a division of the property as required by the writ, and there being a presumption that their incidental duties were properly performed; and the defendant having made his defenses after the return of the writ, with a full opportunity to be heard, and the jury having found adversely to his contentions, the general ground of demurrer, that the ■ proceeding is fatally defective because it fails to show on its face notice as to the time of the execution of- the writ, is without merit.

5. An instruction to the jury, “You have heard the evidence here from the witness stand, and you get your facts that you consider from that stand and nowhere else, that is the place that you must get your evidence,” is reversible error where, in addition to the parol evidence, documents or other physical objects introduced have a material bearing on the issues presented to the jury. Hilton v. Sylvania R. Co., 8 Ga. App. 10 (2), 16 (68 S. E. 746); Myers v. State, 97 Ga. 76, 79 (11), 102 (25 S. E. 252); McLean v. Clark, 47 Ga. 66 (25), 72 (12); Bowden v. Achor, 95 Ga. 245 (11) (22 S. E. 254); Middleton v. State, 29 Ga. App. 375 (1) (115 S. E. 277). But where, as here, the only proof offered by the defendant additioixal to the parol evidence was the cashier’s check, which was the sixbject-niatter for partition, the existence of which was not in dispute and the amount and nature of which were clearly shown by the oral evidence and explained by the judge in his charge, the language excepted to cannot be taken as misleading to the jury or as in any wise prejudicing the rights of the defendant.

Decided February 9, 1924.

Partition; from Warren superior court—M. C. Barwick, judge pro hac vice. December 16, 1922.

Jud P. Wilhoit, for plaintiff in error.

E. P. & J. Cecil Davis, L. D. McGregor, contra.

6. Upon the issue as to whether the proper share of the plaintiff’s intestate in the monies represented by the cashier’s check was one half, as contended by her, or only one third of a portion of the proceeds included in the fund and one half of the remainder, as contended by the defendant, the evidence fully authorized the verdict for the plaintiff, and this court cannot interfere with the judgment denying to the defendant a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    14384.
    Gibson v. Mason.
   Jenkins, P. J.

1. Rulings of the trial court on a demurrer, on a motion to dismiss, or on motion for nonsuit, cannot be questioned by grounds contained in a motion for new trial. Waldrop v. Wolff, 114 Ga. 610 (3), 613 (40 S. E. 830); Equitable Securities Co. v. Worley, 108 Ga. 760 (33 S. E. 49); Bagwell v. Milam, 9 Ga. App. 315 (3), 319 (71 S. E. 864); Buchanan v. James, 134 Ga. 475 (3) (68 S. E. 72); Henderson v. Maysville Guano Co., 15 Ga. App. 69 (1) (82 S. E. 588).

2. “A judgment on demurrer, until reversed, concludes the pai'ties upon all questions necessarily involved in the decision of the points raised in the demux-rer.” Ga. Northern Ry. Co. v. Hutchins, 119 Ga. 504 (2) (46 S. E. 659); Turner v. Willingham, 148 Ga. 274 (1, 2) (96 S. E. 565). Where one suing as a daughter of a deceased intestate filed in the court of ordinary a petition to set aside as null and void the judgment of that court on the return of appraisers awarding a year’s support to the widow of the deceased, upon the ground that the widow had untruthfully and fraudulently stated in her application and to the appraisers that the deceased left no children, that this had affected the return, and that the amount returned was exoi-bitant, and where the defendant demurred generally and specially to the petition, upon the grounds that no cause of action was stated, that the published citation as made in tlie court of ordinary was tlie only notice to which the plaintiff was entitled, that it was immaterial whether or not the return of the appraisers was exorbitant, that the judgment upon the return of the appraisers was conclusive of all these questions, and that the court was without power to nullify or set aside such judgment, and where, in addition to such grounds, the defendant, by motion to dismiss the petition, set up that the time for filing objections to the return of the appraisers and for attacking the judgment of the court of ordinary making the return of the appraisers the judgment of the court was past and the defendant did not file exceptions pendente lite or a direct bill of exceptions to tlie orders overruling the demurrers and the motion to dismiss, but the present bill of exceptions to the order denying a new trial was brought by the defendant more than a year subsequent to such orders, the defendant was concluded by the rulings upon the questions necessarily involved in such decisions.

3. Filiation being established, the child is presumed to be legitimate until the contrary is shown; and this rule applies to every case where the question is at issue. If a former marriage is necessary to sustain the presumption, it will be assumed until contrary proof is given. 7 Corpus Juris, 940; 3 Ruling. Case Law, 725.

4. “Pedigree, including descent, relationship, birth, marriage, and death, may be proved either by the declarations of deceased persons related by blood or marriage, or by general repute in the family.” Civil Code (1910), § 5764. While general reputation in the community may establish the fact of marriage, where the issue is merely one of marriage vel non, and pedigree is not in question, yet matters of - pedigree cannot thus be proved or disproved. Thus, proof seeking indirectly to show that a child is illegitimate, by showing general reputation in the community that the father was a single man, was inadmissible. Lamar v. Allen, 108 Ga. 158 (3) (33 S. E. 958), 161; Wright v. Hicks, 15 Ga. 160 (1) (60 Am. D. 687); Harrison v. Odum, 148 Ga. 496 (96 S. E. 1038); Plummer v. State, 27 Ga. App. 185 (108 S. E. 128); Greenleaf on Evidence, §§ 134, 107.

(a) Irrespective of whether or not the testimony of a witness introduced by the defendant that a woman by the name of “Angeline,” whose last name the witness did not recall, at some uncertainly placed time had stated to the witness that a person other than the plaintiff’s father was her (“Angeline’s”) husband, would have been admissible, if it had been properly connected with other evidence, as tending to show that the alleged subsequent marriage of the plaintiff’s father with the plaintiff’s mother did not take place or was illegal, so as to render the plaintiff illegitimate (see Whigby v. Burnham, 135 Ga. 584 (3), 586, 69 S. E. 1114; McSein v. State, 120 Ga. 175, 176, 47 S. E. 544; Arnold v. State, 53 Ga. 574; Cook v. State, 11 Ga. 54, 56 Am. Dec. 410; Wood v. State, 62 Ga. 406), there was nothing to show directly or circumstantially that the woman thus referred to by the witness was the plaintiff’s mother. The plaintiff testified that she had heard her father speak of a marriage with the plaintiff’s mother, and that her father said the mother’s name was “Annie,” while the defendant testified that the mother’s name was “Angeline Taylor,” and a witness for the defendant testified as to a declaration by the father that the mother’s name was “Angeline,” the identity of such person as the “Angeline” mentioned in the testimony excluded was not established.

Decided February 9, 1924.

Appeal; from Fulton superior court—Judge Bell. February 12, 1923.

W. W. Gaines, for plaintiff in error.

Mitchell & Mitchell, contra.

(&) Under the rules stated, the special grounds of the defendant’s motion for new trial, excepting to rulings on the admissibility of evidence, were without merit.

5. Under the legal presumption of legitimacy, coupled with the evidence of witnesses that the plaintiff’s father had reared her as a member of his household and treated her the same as a legitimate daughter, and evidence of the plaintiff herself as to a declaration by the father that he was in fact married to the plaintiff’s mother at a stated place, thus establishing her legitimacy, and under further evidence, tending to show that the defendant, in her application for year’s support, had knowingly concealed the fact that the deceased was survived by the plaintiff as a legitimate child, and had stated to the appraisers that the deceased left no legal heirs other than herself, as his widow, and that this had actually controlled or materially affected the decision of one of the appraisers, the jury were authorized to find for the plaintiff.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    14499.
    William Alsberg & Co. Inc. v. Harper Manufacturing Company.
   Stephens, J.

1. The right of a seller, after a breach of contract of sale by a purchaser, to store and retain the property for the purchaser’s benefit and recover the contract price, as provided in the Civil Code (1910), §4131, is not waived by any abandoned attempt by the seller, before the breach, to comply with this provision of the section.

2. Where the seller in a contract for the sale of goods of a certain quantity and description offers to perform, by an offer to deliver to the purchaser certain goods which the seller has on hand answering the description in the contract, and, upon the purchaser’s rejection of the offer, the seller makes no effort to store the goods for the purchaser’s benefit, as is provided in the Civil Code (1910), §4131, but sells the identical goods to other customers, and where, after such rejection by the purchaser, it is mutually agreed between the parties to extend the time for performance by the seller to a definite date in. the future, and where the seller, upon the arrival of that date, offers to perform by offering to deliver the goods to the purchaser in accordance with the terms of the contract thus mutually changed and modified, the seller may, upon the purchaser’s refusal to accept delivery, thereby committing a breach of the contract as mutually modified, then store the goods for the benefit of the purchaser and recover of the latter the entire contract price.

Decided February 9, 1924.

Complaint; from city court of Moycl county—Judge Nunnally. March 8, 1923.

Willingham, Wright & Covington, for plaintiff.

Maddox, Lipscomb & Mattheivs, for defendant.

3. The fact that the seller, in undertaking to perform his obligation under the contract in its original state, set aside certain definite goods to be delivered to the purchaser cannot, after the time for performance of the contract has been mutually extended by agreement between the parties, be regarded as an election, after breach, to store and retain the property for the benefit of the purchaser, since such conduct on the seller’s part, even if it amounted to a setting aside of the property for the purchaser’s benefit, happened prior to the breach of the contract as mutually changed and modified.

4. The judgment awarding a nonsuit in a former trial on a petition by the same plaintiff against the same defendant, containing substantially the same allegations as in the present petition, adjudicated only the sufficiency of the evidence to sustain the petition in the former suit, and did not adjudicate the sufficiency of the allegations in the petition as respects a cause of action. Such judgment of nonsuit, therefore, constitutes no adjudication of the sufficiency of the present petition.

5. This being a suit by the seller to recover of the purchaser the entire contract price after having stored the property for the purchaser’s benefit, the petition, under the above rulings, set out a cause of action and was improperly dismissed on demurrer.

Judgment reversed.

Jenloins, P. J., and Bell, J., concur.


text:
    14529.
    Clark Cotton Co. v. Jones.
   Stephens, J.

1. Since title to property covered by a warehouse receipt which contains a provision to the effect that the property will be delivered to the holder of the receipt upon presentation of the receipt of the 'warehouseman is by a transfer of the receipt vested in the transferee, the receipt thus being quasi-negotiable, all stipulations therein which place obligations upon the warehouseman for the benefit of the owner of the property covered by the receipt inure to the benefit of any transferee who acquires title to the property by a transfer of the receipt. See, in this connection, Citizens Banking Co. v. Peacock, 103 Ga. 171, 180 (29 S. E. 752); Hagan v. Scottish Ins. Co., 186 U. S. 423, 426 (22 Sup. Ct. 862, 46 L. ed. 1229); Civil Code (1910), § 3528.

2. A provision in a warehouse receipt, covering cotton stored with the warehouseman, that the warehouseman “binds himself at all times to keep the cotton stored in its care insured for its full market value, and to pay to tlie'owner hereof the full market value of the cotton herein described to such an extent as it may be damaged by fire while in said company’s care,” constitutes a contract to insure with whomsoever may be the owner of the cotton as a transferee of the warehouse receipt. The warehouse receipt appearing to be an entire and complete contract, and the written contractual obligation by the warehouseman to insure the property covered by the receipt not being ambiguous, any custom in the community at variance therewith, such as that the warehouseman is not bound by such written contractual obligation unto a transferee of the warehouse receipt, nor is bound by such obligation unless the warehouse receipt is left in the warehouseman’s possession, proof of which rests in parol, cannot become a part of the contract. This evidence was properly excluded, although the plaintiff’s motion to strike the defendant’s plea setting up such a custom as a defense was overruled. Kelly v. Strouse, 116 Ga. 872 (2a) (43 S. E. 280).

Decided February 14, 1924.

3. The contract evidenced by the warehouse receipt is not invalid upon the ground that it lacks a consideration, since the cotton is received by the warehouseman on the condition named in the receipt that the cotton is “to be stored and held subject at all reasonable times to inspection by the owner and delivered upon surrender of this receipt properly endorsed and payment of accrued charges,” and the owner, by delivering the cotton and accepting the receipt, assents to this condition and therefore agrees to pay the warehouseman the storage charges in consideration of the warehouseman’s promise to store the cotton and to keep it insured as provided in the receipt.

4. In a suit by the transferee against the warehouseman, to recover upon the warehouse receipt for the loss of the cotton by fire while in the possession of the warehouseman, the liability of the defendant warehouseman to the plaintiff, under the receipt, for a failure to keep the cotton insured, is not defeated by reason of the fact that the plaintiff has recovered a loan from an insurance company of a sum of money representing the amount of the damage to the cotton covered by the warehouse receipt, which loan was made to the plaintiff by virtue of the terms of an insurance policy carried by the plaintiff upon cotton belonging to the plaintiff, providing that the policy should not cover cotton for which any bailee may be liable, but that tlie insurer, upon proof of loss of cotton in possession of the bailee, would advance to the insured the amount of the damage to the cotton as a loan, repayable only to the extent of any recovery by the insured from the bailee. Luckenbach v. McCahan, 248 U. S. 139 (39 Sup. Ct. 53).

5. Under the above rulings the trial judge did not err in directing a verdict for the plaintiff in an amount admitted by the defendant as representing the value of the cotton destroyed, and since the verdict as directed and rendered was as a matter of law demanded, it was error for the trial judge’s successor in office to grant a new trial to the defendant.

Judgment reversed.

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

Action for breach of contract; from Dooly superior court—Judge Crum. March 15, 1923.

Spalding, MacDougald & Sibley, Fulwood & Hargrett, for plaintiff. J. M. Busbee, for defendant.


text:
    14532.
    Rattray v. Banks.
   Stephens, J.

1. A beneficiary in a life-insurance policy, where the insured has reserved the right to change the beneficiary, has no vested interest, and an assignment of the policy by the insured to a creditor, for the purpose of securing an indebtedness of the insured which is less than the face value of the policy, amounts to a change of beneficiary pro tanto.

2. A consent by the beneficiary to the assignment is, since the beneficiary’s interest has thus been divested by the insured, unnecessary to the validity of the assignment, and where such beneficiary' is the wife of the insured, a consent by her to the assignment, since it conveys no interest, cannot amount to a transfer of the wife’s property in payment of her husband’s debt.

3. This ease is distinguishable from Smith v. Head, 75 Ga. 755, since it appears that in the latter case -the assignment was by the wife as beneficiary alone; and, it not appearing that there was any assignment or change of beneficiary by the insured, who was the husband, the assignment by the wife was necessarily void in so far as it conveyed her interest in the policy for the payment of her husband’s debt.

4. Where the assignment was made by the insured for the purpose of securing the transferee as indorser upon certain notes due by the insured to a bank, and the contract between the insured and the transferee as expressed in the assignment provided that the transferee should, in the event of the death of the insured, collect from the insurer the proceeds due under the policy, and, “after paying off all of said notes remaining unpaid, . . [the transferee should] . . turn over to [the insured] or his estate the amount received on said policy over and above the amount of said notes, interest, and expenses,” a reasonable attorney’s fee, if incurred by the transferee in collecting the amount due the insured under the policy, could be retained by the transferee after paying the principal and interest due on the notes.

5. This being a suit by the wife against the transferee to recover the amount retained by him out of the amount which He collected from, tlie insurer and which the transferee alleged he was entitled to retain by virtue of the provisions in the assignment, and the sums retained being only the principal and interest due on the indebtedness, plus $50 as expense incurred by the transferee in the payment of an ^attorney’s fee, and there being no dispute as to the correctness of the amount due as principal and interest, and the retention of the amount claimed by the defendant as attorney’s fee being contested only upon the ground • that it could not be retained under a proper construction of the contract, and not upon the ground that the expense was unreasonable or had not been incurred by the defendant, the verdict and judgment was supported by the evidence, and the court did not err in overruling the plaintiff’s motion for a new trial.

Decided February 9, 1924.

Complaint; from city court of Decatur—Judge Daley. March 3, 1933.

G. L. Redman, A. G. GorbeU, for plaintiff.

McRlrealh & Scoii, for defendant.

See in this connection: Civil Code, (1910), § 2498; Bilbro v. Jones, 102 Ga. 161 (21 S. E. 118); Nally v. Nally, 74 Ga. 669 (58 Am. R. 458); Grenville v. Crawford, 13 Ga. 355; Cohen v. Samuels, 245 U. S. 50 (38 Sup. Ct. 36); Cohn v. Malone, 248 U. S. 450 (39 Sup. Ct. 141).

Judgment reversed.

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


text:
    14554.
    Lester v. Rogers.
   Stephens, J.

1. A suit to recover a certain sum of money in an amount within the jurisdiction of the municipal court of Atlanta, although predicated upon so-called salary assignments which are invalid under the act of 1904 (Ga. L. 1904, p. 79, sec. 17; Civil Code (1910), §3465), because such assignments assign future and unearned salary, is within the jurisdiction of the municipal court of Atlanta, and, despite the invalidity of the assignments, the judgment is nevertheless a valid and legal one. A judgment rendered by a court of competent jurisdiction is until reversed and set aside valid and enforceable although the court in rendering it may have erred in adjusting the rights of the parties.

2. Although the rights of the holder of the assignment sued upon, which are in writing, do not appear to have been transferred or assigned to the plaintiff, this defect is not fatal to the validity of the suit or a judgment rendered therein, since the plaintiff’s right to recover by a valid transfer is a matter capable of proof, and such proof is permissible under the pleadings here, which is the same as is allowed in a justice’s court, as provided in section 36 of the act creating the municipal court of Atlanta (Ga. L. 1913, p. 145), although there is no petition filed containing any allegation as to the plaintiff’s title, but suit is commenced by a summons with copies of the salary assignments sued on attached.

3. Under section 46 of the act creating the municipal court of Atlanta, as amended by an act approved August 20, 1918 (Ga. L. 1918, p. 348), the judgment rendered without proof of the plaintiff’s case upon the defendant’s default is not illegal, since the suit is not one for unliquidated damages.

4. The contention of the defendant, that it appears from the copies of the written assignment attached to the plaintiff’s summons that, on account of the invalidity of some of the assignments, no valid cause of action is set out, and that for this reason the judgment rendered is invalid, is without merit. It appearing that one of the assignments sued on and attached to the summons is not invalid under the act of 1904, supra, or for any other reason, the plaintiff shows a cause of action; and the judgment rendered thereon, even though for a larger amount than the plaintiff was entitled to recover, is a valid judgment, and cannot be attacked for invalidity, upon a motion to set aside the judgment.

Decided February 9, 1924.

Certiorari; from Fulton superior court—Judge Bell. March 29, 1923.

Jackson & Echols, for plaintiff in error.

E. M. Habersham, W. I. Heyward, contra.

5. A judgment on default having been rendered against the defendant, the judge of the municipal court did not err in striking, on demurrer, the defendant’s motion to set aside the judgment, and the judge of the superior court did not err in overruling the defendant’s certiorari.

Judgment reversed.

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


text:
    14562.
    Williams v. Pilcher & Dillon.
   Jenkins, P. J.

1. In this action on open account for an alleged balance due for monies advanced to the defendant under his pledge of cotton stored with the plaintiffs as cotton factors, the correctness of the account was not disputed, but w7as in effect admitted in the defendant’s testimony. Under his plea of recoupment for damages on account of the alleged failure of the plaintiffs to sell the cotton according to his instructions before the market declined, the sole issues were whether and when the defendant gave the instructions claimed, and if so, whether the plaintiffs exercised proper diligence in endeavoring to make a sale. As to these issues the evidence was in dispute, and this court is powerless to interfere, on the general grounds, with the discretion of the trial judge in refusing the defendant a new trial.

2. In the only additional exception the defendant assigns error because the court, after charging the jury that “the burden is on the plaintiffs to make good their contentions, so far as they set up an affirmative right,—they must make out their case by a preponderance of the evidence, the superior weight of the evidence on the issues involved, before they can recover,” and after defining the meaning of “preponderance of the evidence,” gave this instruction: “When the defendant comes in and sets up a contract and seeks affirmative relief against the plaintiff, then I charge you, as to such cross-action upon his .part, the burden is on the defendant, Mr. Williams, to make that good, before you would be authorized to sustain him in that contention as against the plaintiff, and he must carry that burden by the same degree or weight of proof tliat the plaintiff carries theirs, that is by the preponderance of the evidence, the superior weight of the evidence, the greater weight of the evidence.” The alleged error in this charge is that the court, after stating that the plaintiffs must carry their burden by “a preponderance of the evidence, the superior weight of the evidence on the issues involved,” in explaining the defendant’s burden ini substantially the same words added the phrase, “the greater weight of the evidence;” and that this “was calculated to be misleading and confusing to the jury and lead them to believe that defendant must produce more proof and have greater weight of evidence to sustain his contentions and cross-action than was or would be required from the plaintiff to sustain his claim on the account sued on.” The language attacked can not properly be construed as subject to the criticism made. The fact that in the same connection the court, in elaborating and explaining what was meant by preponderance or superior weight of the evidence, defined it as “the greater weight of the evidence” could not reasonably have been received by the jury as meaning that greater proof was required of the defendant than of the plaintiff, especially since the court in the same immediate connection in terms told the jury that the defendant must carry his burden “by the same degree or weight of proof that the plaintiff carries theirs.”

3. The plaintiff in error, pending a decision on this writ of error from the refusal of a motion for new trial, has filed a motion that this court direct that the bill of exceptions here “be and stand as a bill of exceptions pendente lite” and remain of file in this court, and that the remaining record be transmitted to the clerk of the trial court “for the sole purpose of allowing the plaintiff in error to amend his original' motion with grounds of newly discovered evidence,” which it is alleged would require a finding in his favor, and that such evidence has heretofore been unknown to the movant and his counsel. There is no rule of practice authorizing such a retention of a bill of exceptions in this court as exceptions pendente lite here! In certain proper cases of a premature writ of error from a judgment which was not final, or where if judgment had been rendered in accordance with the contention of the losing party it would not have been final, leave has been granted to file the official copy of the bill of exceptions in the lower court as exceptions pendente lite there. Bacon v. Capital City Bank, 105 Ga. 700 (a) (31 S. E. 588); Clark v. Dallas Land Co., 141 Ga. 110 (a, b) (80 S. E. 556); Bozeman v. Ward-Truitt Co., 141 Ga. 45 (2) (80 S. E. 320); Carhart v. Mackle, 22 Ga. App. 520 (96 S. E. 591); Southern Moon Auto Co. v. Moon Motor Car Co., 29 Ga. App. 18 (114 S. E. 68). Any such rights as the movant might have to proceed in the lower court by an extraordinary motion for new trial, or an amendment in the nature of such, upon new grounds of newly discovered evidence, would not be lost by an adverse decision of this court as to the grounds set forth in the previous motion for new trial; nor would the lower court be deprived thereby of jurisdiction to exercise its discretion in entertaining the same. Civil Code (1910), §§ 6092, 6089; Central of Ga. Ry. Co. v. O’Kelley, 16 Ga. App. 594 (2 a) (85 S. E. 938), and cases cited; 18 Ga. App. 412 (89 S. E. 938); Rawlins v. Mitchell, 127 Ga. 24 (1) (55 S. E. 958); Frank v. State, 142 Ga. 617 (2) (83 S. E. 233); Brown v. State, 141 Ga. 783 (1), 786 (82 S. E. 238); Harris v. Roan, 119 Ga. 379 (1, 5, 6) (46 S. E. 433). See also, in this connection, Brinkley v. Buchanan, 55 Ga. 342, 343; Spann v. Clark, 47 Ga. 369, 377; Perry v. Gunby, 42 Ga. 41, 42; Perkins v. State, 126 Ga. 578 (55 S. E. 501); Blalock v. Waggoner, 82 Ca. 122 (8 S. E. 48). It is likewise unnecessary for the conservation of any rights which the movant might have in the premises that the record in this court be transmitted to the trial court. The original pleadings are there of file, and the trial judge would have access to the copy bill of exceptions, if it should be necessary to consider the brief of the evidence, the previous grounds of the motion for new trial, or anything therein contained.

Decided February 9, 1924.

Complaint, from Jefferson superior court—Judge Hardeman. January 6, 1923.

B. F. Walker, Boy V. Harris, for plaintiff in error.

M. G. Barwick, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14626.
    ROWLAND & ROWLAND v. KRAFT.
    Where the owner of certain property employs an agent at an agreed contingent price to procure from a designated person an obligation in writing, previously approved by the owner, whereby that person is to become bound to purchase the property and the owner is to become obligated to sell it at the price and on the terms stipulated by the instrument, and where the agent fully complies with the terms of his employment by forthwith presenting to the owner for his signature an instrument signed by the prospective purchaser, which instrument is in meaning precisely the same as the agreement previously approved by the owner, the agent is not to be deprived of his earned commission because of the fact that the form of the instrument contemplates that it is to be signed by the owner as well as by the purchaser, and the owner, without any fault on the part of the agent or the purchaser, fails to give binding effect to the contract of purchase and sale, by refusing to sign the proffered instrument.
    Decided February 9, 1924.
    Complaint; from city court of Savannah—Judge Freeman. March 14, 1923.
    The evidence would have authorized the jury to find that at some time previous to the transaction involved in this case the defendant listed for sale with the plaintiffs as brokers certain real estate in the city of Savannah for the price of $55,000; that the term of this contract of listment expired, but afterwards the defendant told the plaintiffs to continue to try to sell the property; that the plaintiffs interested in the purchase one Livingston, who authorized them to submit to the defendant an offer of $42,000; that the defendant thereupon had his own lawyers prepare a sales agreement at the latter price, which he authorized the plaintiffs to procure the proposed purchaser to sign, promising thereafter to consummate the trade, and to pay the plaintiffs $1000 for their services. The sales agreement thus furnished by the defendant to the plaintiffs provided, among its other terms, that $12,000 of the purchase price of $42,000 was to be paid in cash, and for the balance of the price the purchaser was to assume an indebtedness to the Penn Mutual Life Insurance Company—a loan of $30,000 on the property, which the purchaser was to pay at maturity. The form of this sales agreement contemplated the signature of both the purchaser and the owner. The evidence for the plaintiffs showed that Livingston signed this approved sales agreement, but that at the time of signing he interpolated in red ink, after the clause pertaining to the assumption of the existing loan, the following words, “said loan understood not to exceed 6% per cent, interest per year.” There was evidence for the plaintiffs that the owner had stated to them that the interest called for by the insurance company loan was 6% per cent., and that they reported this fact'to Livingston during the negotiations to sell. The sales agreement, after the interpolation indicated, was signed by Livingston and presented to the owner, who, after delaying action thereon for several days, refused to sign, and for this reason only the sale was not consummated. On the trial the judge granted the defendant’s motion for a nonsuit.

      Mclniire, Walsh & Bernstein, for plaintiffs.

      Lawrence & Abrahams, David 8. Atkinson, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) The two contentions insisted upon by defendant in error are: (1) that, since the form of the sales ticket, approved by the defendant and under which the plaintiffs were authorized to operate, provided within itself for a binding contract for the sale of land, and contemplated signature by the defendant as owner as well as by the purchaser, it could not become operative as a basis for the recovery of commissions until after it had been signed by the defendant; and (2) that the terms of the approved sales ticket had been so altered by the proposed purchaser at the time it was signed by him as to relieve the defendant from any obligation to the plaintiffs for commissions.

1. In cases involving an ordinary contract of brokerage “the broker’s commissions are earned when, during the agency, he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated.by the owner.” Civil Code (1910), § 3587. In this case, however, it appears from the evidence for the plaintiffs themselves that the defendant obligated himself to pay the commission only upon the condition that the plaintiffs would effect an actual binding agreement to purchase. Humphries v. Smith, 5 Ga. App. 340 (63 S. E. 248); Nutting v. Kennedy, 16 Ga. App. 569 (85 S. E. 767). More than this, the agreement between the defendant owner and the plaintiffs was that the purchaser was to become bound by the terms of a certain instrument, which had been prepared by the defendant’s attorney and approved by himself. The form of the instrument thus prepared and approved contemplated that it be signed both by the purchaser and by the defendant. The question is not whether in such a case the signature of the owner would be necessary in order for it to evidence a binding contract for the sale of realty. This manifestly would be answered in the affirmative. But the question is whether the agent is entitled to his commission for services rendered when he has done all that he is required to do under his agreement by securing the signature of a purchaser able to perform, offering to perform, and binding himself to perform the terms of the approved sales agreement. Where in such a case there is a failure to complete the sale through no fault of the agent or of the purchaser procured by him, but solely on account of the owner’s refusal to execute the agreement he had explicitly approved, we think the agent is entitled to his commission; that the owner would be liable to such an agent just as he would be to a broker under an ordinary contract of brokerage if he refuses to sell when presented with a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated. Kesler v. Stults, 15 Ga. App. 735 (84 S. E. 201).

2. No doctrine is better recognized than the rule which requires that in order for a contract to become binding by the acceptance of an offer, the acceptance must be unequivocal, unconditional, and without variance. The acceptance must be of the thing offered and as offered. Any variation amounts to nothing more than a counter-proposition. Monk v. McDaniel, 116 Ga. 108 (3) (42 S. E. 360); Larned v. Wentworth, 114 Ga. 208 (2) (39 S. E. 855); Van Winkle v. Harris, 137 Ga. 43 (72 S. E. 424). In a sense, this principle is applicable here, because the defendant is not liable for commissions unless the purchaser procured by the plaintiffs complied with the terms of the proposition which the plaintiff was authorized to make. In the case of Parker v. Stubbs, 139 Ga. 46 (76 S. E. 571.), it was held that, “where in a suit by a real-estate agent or broker, seeking to recover commissions from his principal on account of the procuring of a purchaser and the .refusal of the principal to consummate the sale, it appeared from the petition that the written agreement between the principal and the agent provided for the making of a sale on certain terms, and that the agent procured an offer to purchase on terms different in substantial particulars from those stated in such contract, which the principal declined, the petition was demurrable.” See also Winer v. Flournoy Realty Co., 27 Ga. App. 87 (2) (107 S. E. 398). Thus, if at the time the sales agreement was signed by the purchaser the interlineation by him operated in any way to actually alter the terms of the agreement which the defendant had authorized the plaintiffs to procure, then the defendant would not be liable. Under the terms of the sales agreement the buyer was to assume, as a part of the purchase -price, a certain definitely identified existing loan on the property in a stated amount and payable to a named party. The words- that the purchaser added in red ink to the sales agreement were as follows: “Said loan understood not to exceed 6% per cent, interest per year.” The undisputed evidence is that the loan referred to in the sales agreement and otherwise expressly described therein in fact bore 6% per cent, interest; and that the plaintiffs had been so informed by the defendant, and they had informed the purchaser accordingly pending the latter’s negotiations. Did such an interpolated statement of the -defendant’s understanding of an existing fact change in the slightest degree the terms of the agreement which the plaintiffs were actually authorized to procure? The original sale agreement referred to an actual, existing, definite loan, which the purchaser was to assume. That being certain which can be made certain, it follows that even the original agreement fixed and provided the amount of the interest payment which the purchaser was to assume—not directly, it is true, but by reference. An interpolation which directly assumes that to be true which is in fact the truth and capable of proof, and which is already stated with certainty, though by indirection, does not constitute a material alteration. It did not in any way or to any extent change the meaning of the contract from what it was to what it was not. See, in this connection, 1 Williston on Contracts, 136, § 78; Curtis Land & Loan Co. v. Interior Land Co., 137 Wis. 341 (118 N. W. 853, 129 Am. St. R. 1068); Morse v. Tillotson, 253 Fed. 340; Ryder v. Johnson, 153 Ala. 482 (45 So. 181); Bennett v. Cummings, 73 Kan. 647 (85 Pac. 755); Cavender v. Waddingham, 5 Mo. App. 457; Brown v. Norton, 50 Hun. 248 (2 N. Y. Supp. 869). According to the evidence for the plaintiffs, it appears that for an agreed contingent compensation they had been authorized by the defendant to procure from a particular person an obligation in writing, approved in form by the defendant, whereby that person was to become obligated to purchase certain property of the defendant at the price and on the terms therein indicated;.-and that the plaintiffs had fully complied with the terras of the proposal by forthwith presenting to the defendant for his own signature an obligation to purchase the property, which the purchaser signed, the terms of which, as has been already indicated, in no way varied from those which the defendant had approved; that there was a failure to consummate the contract of purchase and sale solely by reason of the defendant’s refusal to sign the obligation, and without any cause or fault on the part of plaintiffs or the purchaser procured by them. Since the jury could have accepted this version of the testimony, it was error to grant a nonsuit.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14722.
    Lewis et al. v. Citizens & Southern Bank.
   Stephens, J.

1. Section 3426 of the Civil Code (1919), which provides that a’ contract to pay interest in excess of seven per cent, must be in writing, applies only to a contract containing, an executory promise to pay such excess interest, and - does not apply to a contract where such excess interest has been actually paid and such payment has been accepted by tlie opposite party to the contract in consideration of the latter’s promise to extend the time of payment of the principal sum.

Decided February 9, 1924.

Complaint; from Polk superior court—Judge Irwin. May 26, 1923.

Certiorari was granted by the Supreme Court.

Mundy & Watkins, for plaintiffs in error.

Winfield P. J ones, W. E. Fielder, contra.

2. Where after the maturity of a note the debtor pays to the creditor a sum of money representing advance interest upon the principal at the rate of eight per cent, per annum for a definite period of time, in consideration of a promise by the creditor to extend the time of payment of the principal, this agreement, although not in writing, constitutes a valid contract between the parties, and, when made without the consent of the surety upon the note, operates to release and discharge the latter. Civil Code (1910), § 3543.

3. The ruling hero made is clearly distinguishable from that laid down in Ver Nooy v. Pitner, 17 Ga. App. 229. In that case there was no enforceable agreement between the principal debtor and the' creditor to extend the time of payment, but a voluntary indulgence of the debtor by the creditor, and acceptance from the debtor by the creditor from time to time of past-due interest.

4. In a suit by the creditor against the sureties, where such an alleged contract of renewal was pleaded by the defendants as a release, and the evidence authorized the inference that such a contract had been executed, an instruction to the'jui'y contrary to the principle above laid down was error, and the jury having found for the plaintiff, the court erred in overruling the defendants’ motion for a new trial.

Judgment reversed.

Jenlcins, P. J., and Bell, J., coneur.


text:
    14739.
    Tharp v. Central of Georgia Railway Co.
   Stephens, J.

1. An employee of a railroad company, while being carried to and from his place of work as a part of the contract of service, is regarded as a servant of the company, and not as a passenger. His status as such is not altered by the fact that his right to travel under his contract of service is evidenced by a so-called free pass, containing a stipulation printed thereon and assented to by him, that it is given by the company as a gratuity only, and upon the condition that he releases the company from all liability for injuries which may be received by him as a result of the company’s negligence while using this pass. See, in this connection, Southern Ry. Co. v. West, 4 Ga. App. 672 (62 S. E. 141); Beale & Wyman, Railroad Rate Regulation (1st ed.), § 153.

2. Since such an employee is not a person riding gratuitously and receiving transportation extended to him by the company as a favor and without consideration, the company cannot, in a suit by the employee for injuries received while riding to his work (which in the case under consideration was between two points within this State), defend upon the ground that the plaintiff when injured was riding upon a free pass which entitled the employee to transportation only between two points within this State, and that the defendant was for this reason not liable to him for any injuries caused as a result of the failure of the defendant to exercise due care.

Decided February 9, 1924.

Action for damages; from Fulton superior court—Judge Ellis. June 4,1923.

Certiorari was denied by tbe Supreme Court.

T. J. Leivis, T. L. Slappey, for plaintiff.

Little, Powell, Smith & Goldstein, for defendant.

3. This being a suit against the railroad company by a person injured while riding upon one of the defendant’s trains, and the evidence authorizing the inference that the plaintiff was at the time an employee under circumstances above indicated, and there being some evidence that the plaintiff’s injuries were received as a result of the failure of the defendant to exercise towards the plaintiff the degree of care legally due him under such circumstances, it was error to grant a nonsuit.

Judgment reversed.

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


author: Stephens, J. Bell, (1.,

text:
    14740.
    TYLER et al. v. UPCHURCH.
    An allegation in a suit for malicious prosecution, that upon the hearing of a criminal warrant by a magistrate, it was dismissed, and the prosecution “is now fully determined and ended,” sufficiently alleges that the prosecution has ended, as required by the Civil Code (1910), § 4446.
    Decided February 9, 1924.
    Action for malicious prosecution; from Fulton superior court —Judge Humphries. May 15, 1923.
    This is a suit to recover damages for an alleged malicious prosecution, the plaintiff alleging, that the defendants falsely, maliciously, and without probable cause procured the issuance of a criminal warrant by a judge of a municipal court, charging him with the offense of larceny after trust; that upon the hearing thereon by the judge of the municipal court the warrant was dismissed, and that “said prosecution is now fully determined and ended,” that the plaintiff has been damaged, etc.

      Westmoreland & Smith, Etheridge, Sams & Etheridge, B. E. Sullivan, for plaintiffs in error. IF. E. Terrell, contra.
   Stephens, J.

(After stating the foregoing facts.) While the dismissal of a criminal warrant by a municipal-court judge after a hearing thereon does not necessarily and in every case amount to an ending or an abandonment of the prosecution, so as to furnish the necessary-ground for a suit by the defendant for malicious prosecution, since the prosecutor may pursue the prosecution further (Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666), and while in a suit against the-prosecutor for malicious prosecution an allegation that the criminal warrant upon which the prosecution was instituted was dismissed by the court after a hearing thereon may not -amount to an allegation that the prosecution has ended, yet, where it is alleged in the petition that as a result of such dismissal “said prosecution is now fully determined and ended,” the latter allegation sufficiently alleges as a matter of fact that the prosecution has ended, and it is not necessary to allege further that the prosecution was abandoned by the prosecutor or that the prosecutor had no intention of further pursuing the prosecution. Where the petition otherwise alleges sufficient facts as a basis for a suit for malicious prosecution, as in the case under consideration, there is no error in overruling a general demurrer to the petition.

Judgment affirmed.

Jenkins, P. J., concurs. Bell, J., dissents.

Bell, (1.,

dissenting. The petition alleged that the defendants, with malice and without probable cause, procured a warrant to issue against the plaintiff for an offense charged to have been committed on the 15th day of December, 1921; that on that day he was brought before the magistrate by virtue of the warrant, and upon investigation the magistrate “adjudged him to be acquitted, and dismissed the aforesaid warrant, and such prosecution is now fully determined and ended.” The petition was filed on the following day, December 20, 1921. A general demurrer to the petition was overruled, and the defendants excepted.

Before an action -of this sort can be maintained the prosecution must have been ended. Civil Code (1910), § 4446. The prosecution is not necessarily terminated by the dismissal of the warrant by the magistrate. While it was alleged in the petition that the prosecution had been “fully determined and ended,” when the petition is construed, as it must be on demurrer, most strongly against the pleader, this averment, which is only a conclusion, appears to be deduced solely from the fact that the warrant was dismissed by tbe magistrate. The conclusion, therefore is not supported, the action having been commenced on the day following such dismissal. “If, upon the dismissal of the warrant and the discharge of the accused by the magistrate, the prosecutor had abandoned a further prosecution of the accused, or had delayed the same for such an unreasonable time as to lead the accused to believe that he had discontinued the prosecution, the action would lie.” Hartshorn v. Smith, 104 Ga. 235 (1), 237. The averments of the petition when measured by this rule do not show that the prosecution was ended, and the .demurrer should have been sustained. See Pickard v. Bridges, 7 Ga. App. 463 (67 S. E. 117). This view is not in conflict with anything decided either in Josey v. Cochran, 9 Ga. App. 656 (72 S. E. 42), or in Page v. Citizens Banking Co., 111 Ga. 73 (5) (36 S. E. 418, 51 L. R. A. 463, 78 Am. St. R. 144).

If the conclusion as to the termination of the prosecution had been alleged independently of other facts pleaded, it probably would have been sufficient, in the absence of a special demurrer, but appearing by the context to be solely .a deduction from the fact that the warrant had been dismissed on the preceding day, and this fact alone being insufficient to establish that the prosecution had ended, the conclusion of the pleader to that eifect can have no more weight than the pleaded fact on which it is predicated, and should, even on a general demurrer, be disregarded. See Banks v. Schofield’s Sons Co., 126 Ga. 667, 671 (55 S. E. 939).


text:
    14748.
    Clarke et al. v. Upchurch.
   Stephens, J.

1. The petition here alleging a cause of action for a breach of a contract and praying for an accounting by the defendant for the purpose of ascertaining the amount due by virtue of the alleged breach, and not alleging that the accounting sought is mutual, or that there was any fiduciary relation between the parties, but alleging only a duty on the part of one of the defendants to pay to the plaintiff a certain percentage on collections made by the defendant from third persons, the amount of which is within the defendant’s knowledge, the proceeding is one for an accounting at law and not for one in equity. Burress v. Montgomery, 148 Ga. 548 (97 S. E. 538). This court therefore has jurisdiction.

2. Where one of the parties to a contract has breached the same and failed to perform, to the damage of the other contracting party, the liability of the party breaching to respond to the other in damages is not dependent upon a demand to so respond, in the absence of any provision in tlie contract requiring such a demand as a condition precedent to liability. Civil Code (1910), §5512.

Decided February 9, 1924.

Complaint; from Fulton superior court—Judge Humphries. May 18, 1923.

Westmoreland & Smith, Etheridge, Sams & Etheridge, B. 11. Sullivan, for plaintiffs in error. W. H. Terrell, contra.

3. The demurrers interposed by the defendant having been overruled, and the plaintiffs insisting upon a reversal of the judgment overruling the demurrer, solely upon the ground that no such demand had been made upon the defendants, the judgment overruling the demurrer will be affirmed.

Judgment affirmed.

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


text:
    13615.
    Seymour v. Bank of Thomasville.
    Decided February 11, 1924.
    Complaint; from city court of Thomasville—Judge W. H. Hammond. April 3, 1922.

      J. E. Graigmiles, for plaintiff in error.

      Titus & Delete, contra.
   Jenkins, P. J.

1. “Under the rulings of the Supreme Court, made in response to questions certified to it by this court in this and other eases (Cone v. American, Surety Co., 154 Ga. 841 115 S. E. 481), the motion to dismiss the^bill of exceptions, because of lack of jurisdiction in this court to entertain it, is overruled.” Cooper Auto Co. v. Oxweld Acetylene Co., 29 Ga. App. 413 (1) (116 S. E. 30).

2. The additional ground of the motion to dismiss the writ of error, for the reason assigned that it excepts to and assigns error only upon the ruling sustaining the general demurrer to the defendant’s answer, and fails to assign error upon the final judgment for the plaintiff, is overruled, in view of the specific exception and assignment of error upon “the action of the court in permitting said judgment to be entered,” the judgment thus referred to being the final judgment in the ease.

3. Under the rulings of the Supreme Court in answer to the additional controlling questions certified to it by this court (Seymour v. Bank of Thomasville, 157 Ga. 99 (121 S. E. 578), it was error to sustain the general demurrer to the defendant’s amended plea and answer, and to enter judgment against him.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    13891.
    American Surety Company of New York v. Small Quarries Company.
    Decided February 11, 1924.
    Action on bond; from Bibb superior court—Judge Malcolm D. Jones. June 26, 1922.

      Robert W. Barnes, for plaintiff in error.

      Jones, Park & Johnston, contra.
   Jenkins, P. J.

Under the answer of the Supreme Court to the controlling question in this ease, certified to it by this court, it was error for the court below to overrule the general demurrer to the plaintiff’s petition as amended. American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617).

Judgment reversed.

Stephens amd Bell, JJ., concur.


text:
    14256.
    Van Treeck v. Travelers Insurance Company et al.

    Decided February 11, 1924.
    Appeal; from Chatham superior court—Judge Meldrim. January 8, 1923.

      Oliver & Oliver, for plaintiff.

      Lawrence & Abrahams, McDaniel & Neely, Harry L. Greene, for defendants.
   Jenkins, P. J.

1. Under the ruling of the Supreme Court in answer to the question certified to it by this court in this case (157 Ga. 204, 121 S. E. 215), tne employee seeking compensation under the workmen’s compensation act of 1920 did not fail to give sufficient notice of his injury to his employers.

2. The award of'the commissioner hearing the evidence, and its affirmance by the full industrial commission upon appeal by the insurance carrier, were authorized by the evidence, and it was error, on an appeal therefrom to the superior court under the terms of the act creating the commission, to set aside the award in favor of the employee and render judgment in favor of the defendants, upon the grounds that no written notice was given to the employers and that the order of the commission was contrary to law and without evidence to support it.

Judgment reversed.

Stephens cmd Bell, JJ., concur.


text:
    14239.
    Harrison v. Central Georgia Automotive Co.
   Stephens, J.

1. In an action in trover by the vendor to recover property sold under a retention-of-title contract, where the plaintiff sought a money verdict, and the value of the property was not in excess of the unpaid purchase-money, the plaintiff was under no obligation to account to the defendant for any of the purchase-money actually paid.

Decided February 22, 1924.

Rehearing denied March 1, 1924.

Trover; from city court of Macon—Judge Gunn. December 11, 1922.

Daisy L. Ohurchwell, for plaintiff in error.

Turpin & Lane, contra.

2. Where, before the filing of a trover suit, the defendant refused, on demand, to deliver the property to the plaintiff, but where an agreement was made between the parties at the time, by the terms of which the defendant deposited the property with a third person, where it was to remain until the defendant had made a payment upon the purchase price, and should not in the meantime be retaken by the defendant without the consent of the plaintiff, such action on the part of the defendant did not constitute either a delivery or a tender of the property to the plaintiff.

3. Where a sequestration of the plaintiff’s witnesses was requested by the defendant, the court did not abuse its discretion in allowing two officers of the plaintiff corporation to remain in the court-room during the trial.

4. Evidence of a witness that certain property was not stored anywhere, and had never been delivered into his possession or into the possession of the plaintiff, was evidence as to a fact, and was not subject to the objection tliat it was a conclusion of the witness.

5. It appearing without dispute that the title was in the plaintiff, and that the plaintiff had made a demand for the property, which demand was refused by the defendant, the court did not err in directing a verdict for the plaintiff, upon which judgment was entered for the amount of the proceeds of the property, realized from a “short-order sale” under the Civil Code (1910), §§ 5153, 6068, which sum was less than the undisputed balance due on the purchase-money as principal and interest.

6. The court did not err in sustaining certain demurrers to the defendant’s pleas, and in overruling the motion for a new trial.

Judgment affirmed.

Jenhims, P. J., and Bell, J., concur.


text:
    14257.
    Fender v. Lee County.
   Stephens, J.

1. The constitutional provision prohibiting the taking or damaging of private property for public purposes without just compensation (Civil Code of 1910, § 6388) carries with it by implication the right in the party seeking redress under that provision to bring suit against a county which has damaged his property for public purposes. Smith v. Floyd County, 85 Ga. 420 (11 S. E. 850); Harris County v. Brady, 115 Ga. 767 (42 S. E. 71).

2. The gravamen of the action consists of the taking or the damaging of the property, although the public receives no benefit, as a result of the taking or the damage, provided it was done for public purposes. It follows that where a county, in preparing to lay out a road across private property, cuts down trees on the property, thereby damaging the property, and thereafter abandons the project, and the damage to the property inures to no benefit of the county, the owner of the property may nevertheless recover of the county for the damage thus sustained.

Decided February 2, 1924.

Action for damages; from city court of Leesburg—Judge Martin. December 7, 1922.

Wallis & Fort, for plaintiff.

Robert'It. Forrester, for defendant.

3. This being a suit against a county to recover damages arising as above indicated, and the plaintiff being in possession of the property and having an equitable title therein subject to a deed to secure a debt made to another, the plaintiff has such an interest in the property as will entitle him to maintain a suit for damages thereto. City of Atlanta v. Callaway, 137 Ca. 495 (73 S. E. 736); Mack v. Augusta Belt Ry. Co., 28 Ga. App. 816 (113 S. E. 66).

4. The evidence authorized a recovery for the plaintiff and the court therefore erred in directing a verdict for the defendant.

Judgment reversed.

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


text:
    14262.
    PALMER v. SHIVER.
    The pendency of a suit to recover possession of personalty by possessory warrant is no ground for an abatement of a suit in trover between the same parties for the conversion of the same property.
    Decided February 22, 1924.
    Trover; from city court of Camilla—Judge Burson. December 4, 1922.

      J. D. Gardner, Charles Watt Jr., for plaintiff.
   Stephens, J.

'The defendant in trover pleaded as an abatement to the plaintiff’s suit the pendency of a suit by possessory warrant against him by the same plaintiff, to recover the possession of the property sued for, which plea, upon proof of the facts alleged therein, was sustained and the plaintiff’s suit dismissed.

“The office of a possessory warrant is to restore the possession of a chattel to a claimant from one who has obtained it by fraud, seduction, etc., or when the property has been taken without his consent. It deals with possession and not title.” Welborn v. Shirley, 65 Ga. 695. While one without title may, except as against the true owner or the person wrongfully deprived of possession, recover in trover the possession of personalty which has been wrongfully taken or withheld from him (Civil Code of 1910, §§ 4481-2-3; Burch v. Pedigo, 113 Ga. 1157, 39 S. E. 493, 54 L. R. A. 808; Mitchell v. Ga. & Ala. Ry., 111 Ga. 760, 36 S. E. 971, 51 L. R. A. 622; Groover v. Iler, 1 Ga. App. 77, 57 S. E. 906), and therefore may recover upon evidence authorizing a recovery under possessory warrant, he is not confined in his recovery to cases where the property has been carried away by fraud, violence, seduction, etc., and without his consent, as in the case of a suit to recover possession by possessory warrant.

Before the pendency of a former suit can be pleaded in abatement to' a subsequent suit between the same parties, the former suit must be for the same cause of action as in the subsequent suit (Civil Code of 1910, § 5678). A suit to recover by possessory warrant, being a cause of action solely to recover possession of property which has been carried away by fraud, violence, seduction, etc., without the consent of the plaintiff, and nothing but the right of possession being determinable therein, is not a suit upon the same cause of action as in trover, the latter action being for the recovery of title to the property or possession as against one who has wrongfully taken it or withholds it from the plaintiff. The trover action is broader and may be predicated upon an entirely different state of facts than is necessary to maintain an action to recover by possessory warrant. In fact the Civil Code (1910), § 5374, seems to contemplate that after the judgment has been rendered upon the trial of an issue formed upon a possessory warrant, the plaintiff may prosecute a suit in trover for the property. The trover action in this case seeks to recover upon the ground that the defendant is in possession of property belonging to the plaintiff which the defendant refuses to deliver to him. This is not the same cause of action as a possessory warrant. It was error to sustain the plea in abatement.

Judgment reversed.

Jenlcins, P. J., and Bell, J. concur.


text:
    14266.
    PILCHER & DILLON v. SMITH.
    1. Where a cotton factor violates instructions from his principal to sell cotton belonging to the principal, the failure of the principal to repudiate the acts of the agent within a reasonable time after knowledge thereof amounts to a ratification of the agent’s act in failing to sell as instructed.
    2. A witness may testify as to the state of the market in a particular locality respecting a certain commodity during a certain period, when his knowledge is derived solely from the receipt of daily market quotations of the locality during that period. Central Railroad &c. Co. v. Skellie, 86 Ga. 686 (12 S. E. 101).
    Decided February 22, 1924.
    Complaint; from Warren superior court—Miles W. Lewis, judge pro hac vice. December 23, 1922.
    Pilcher & Dillon brought suit against C. M. Smith to recover an amount alleged to be due for certain advances made to him by the plaintiffs upon his cotton in their possession as cotton factors. The plaintiffs credited the account with the amount realized from the sale of the cotton, which was less than the amount advanced to the defendant, and brought suit for the balance. The defendant denied the indebtedness, and alleged that on a certain date when the market in Augusta, where the cotton was located, had reached 46 cents per pound, he notified the plaintiffs to sell his cotton, if they could do so for 45 cents per pound; that his cotton at the time would have brought 45 cents per pound, but the plaintiffs failed to sell it as instructed. The defendant filed a counter-claim, alleging that the plaintiffs had violated his instructions to sell the cotton, to his damage in the amount of the difference between 45 cents per pound, the price which the cotton would have brought had it been sold as per his instructions, and 15 cents per pound, the price at which the cotton was afterwards sold. The plaintiffs filed an amendment or replication, to the effect that the defendant after-wards, when the same grade of cotton had declined to 21 cents per pound, agreed to place with the plaintiffs sufficient money to cover advances which they made to him, and that by reason of such conduct the defendant, who inferentially knew that the plaintiffs had not sold the cotton, was estopped from defending or claiming damages upon the ground that they had violated his instructions to sell the cotton at 45 cents per pound. There was evidence in 'support of the facts alleged in the plaintiff’s replication. There was evidence that the defendant was notified by the plaintiffs that he had not sold the cotton and that the defendant failed to disaffirm their act in thus disobeying the instructions, but promised to cover the advances by a payment of money to them. The court refused, on request, to instruct the jury that such conduct upon the part of the defendant constituted an estoppel, but instructed them that it would not amount to an estoppel as a matter of law, but that the jury would consider it, together with other evidence, in passing upon the question as to whether or not instructions were given to sell the cotton at 4-5 cents per pound. The jury found for the defendant damages in a certain sum. The plaintiffs filed a motion for a new trial and therein excepted to the charge given by the court and to the court’s refusal to charge as requested, and also objected to the exclusion of certain testimony as to the state of the market in Augusta at the time when it was alleged that the plaintiffs were instructed to sell his cotton. This motion the court overruled, and the plaintiffs excepted.

      R. W. Ware, L. D. McGregor, for plaintiffs.

      M. L. Fells, for defendant.
   Stephens, J.

(After stating the foregoing facts.) “A ratification may be expressed or implied from the acts or silence of the principal.” Civil Code (1910), § 3591. Where a cotton factor has disobeyed instructions, by refusing to sell cotton belonging to his principal, it is the duty of the principal upon being informed of the fact, either to affirm the act of the principal or to dissent therefrom. “The agent must act within the authority granted to him, reasonably interpreted; if he exceeds or violates his instructions, he does it at his own risk, the principal having the privilege of affirming or dissenting, as his interest may dictate.” Civil Code (1910), § 3576. Silence by one who is under a duty to speak will amount to a ratification. A factor who disobeys his instructions to sell may be considered as having purchased the property himself, and is liable to his principal for the amount for which the property would have sold had the factor obeyed his instructions. The principal can sue him and recover as upon an implied contract of purchase, or upon the theory of money had and received. The factor, under such circumstances, is entitled to retain the property as his own, and, if the market is declining, sell it at the earliest opportunity for his own benefit and thereby minimize his loss. The principal, therefore, upon ascertaining that the factor has violated his instructions to sell is under an imperative duty to speak. He can ratify the failure of his factor to sell as instructed and retain the cotton as his own, or he may dissent from the act of his agent in violating instructions and thereby place himself in the attitude of insisting that the transaction be treated as if the agent had followed instructions and sold the cotton. The agent then is responsible to him as if the agent had been the purchaser. The principal’s conduct, therefore, after he lias been informed of the conduct of the agent, necessarily aifects the agent’s rights in the matter. If the agent has become the purchaser of the cotton, it may be to his interest to sell it upon his own account. If he has not become the purchaser of the cotton, he is only a bailee subject to further-instructions from his principal. The principal’s silence and failure within a reasonable time to repudiate the agent’s act, therefore, necessarily amounts to a ratification of the agent’s act in violating instructions to sell, and he cannot afterwards hold the agent liable for any damage which the principal may have sustained by virtue of the agent’s conduct. The instruction of the court not being in accordance with the rulings herein made, and the jury having found for the defendant principal upon his counterclaim, the court erred in overruling the plaintiff’s motion for a new trial.

See, in this connection, Vinson v. Kinney, 30 Ga. App. 731 (119 S. E. 217); Mattehws v. Coe, 49 N. Y. 57; Field v. Farrington, 10 Wall. (U. S.) 141 (19 L. ed. 923); Douglass v. Kraft, 9 Calif. 562; Bray v. Gunn, 53 Ga. 144; McLendon v. Wilson, 52 Ga. 41 (2); Owsly v. Woolhopter, 14 Ga. 124; Palmer v. McNatt, 97 Ga. 435 (25 S. E. 406).

Judgment reversed.

Jenlcins, P. J., and Bell, J., concur.


text:
    14289.
    Foster v. Watkins Co.
   Stephens, J.

1. Lack of service upon a codefendant is matter for defense, and not ground for an affidavit of illegality. Murphy v. Smith, 16 Ga. App. 472 (85 S. E. 791).

2. The failure of the plaintiff or his attorney to sign a judgment where the law requires such signature is a mere irregularity and does not invalidate the judgment. Although such signature does not appear thereon, an execution issued thereon may be legally levied and such defect is not a ground for illegality. Pollard v. King, 62 Ga. 103 (5).

3. The ruling in Sloan v. Cooper, 54 Ga. 486 (3), which holds that “the decree not having been signed by the chancellor, the illegality to the execution based thereon, on that ground, was properly sustained,” is distinguishable from that in Pollard v. King, supra, and applied here, in that the judgment which is required to be entered and signed by an attorney or party to the case is a judgment entered upon the verdict of a jury, which has fixed the rights of the parties, and nothing remains to be done but the exercise of the purely ministerial duty of signing the judgment thereon, while a decree in chancery is a judicial act and involves the application of the law to facts ascertained.

Decided February 22, 1924.

Affidavit of illegality of execution; from Fulton superior court-judge Ellis. December 16, 1922.

Lowndes Calhoun, for plaintiff in error.

Watkins, Bussell & Asbill, contra.

4. The affidavit of illegality and the proffered amendment contained no valid ground, and the court did not err in rejecting the amendment and in dismissing the affidavit of illegality.

5. In view of the ruling in Sloan v. Cooper, supra, it cannot be said that the plaintiff in error is here prosecuting his case for the purpose of delay only, and the motion of the defendant in error for damages is denied.

Judgment affirmed.

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


text:
    14314.
    Croft et al. v. Colquitt County.
    Decided February 22, 1924.
    Complaint; from Colquitt superior court—Judge W. E. Thomas. January 17, 1923.

      H. H. Whelchel, for plaintiffs.
    P. Q. Bryan, for defendant.
   Stephens, J.

1. In a suit on quantum meruit, where it appears from the petition that the cause of action arises as a breach of an express contract, and that the plaintiff has received the consideration for which the services furnished by him and sued for were performed, it appears that the plaintiff has been paid.for his services, and he therefore cannot recover.

2. In a suit against a county by persons who had furnished services to the county, where it was agreed between the plaintiffs and the county commissioners, if the plaintiffs “would lay out the right of way and stump” a certain public road, that the county commissioners would work the road with the county chain-gang and the road-machine, and where, after the plaintiffs had “stumped approximately a mile of said road” at an expense of $150 to themselves, the commissioners “did send the chain-gang and road-machine and worked said road as they had promised,” the plaintiffs received the consideration promised for their services, and had no right of action against the county for the value of the services furnished by them.

3. The petition set out no cause of action- and was propery dismissed on demurrer.

Judgment affirmed.

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


text:
    14390.
    Morgan v. Weil Company.
    Decided February 22, 1924.
    Garnishment; from city court of Sylvania—Judge Evans. February 26, 1923.

      Boylcin & Hollingsworth, for plaintiff in error.

      J. S. Powell, contra.
   Stephens, J.

1. A sale of a stock of goods in bulk without a compliance with the requirements of the bulk-sales act of 1903 (Ga. L. 1903, p. 92; Civil Code of 1910, § 3228) conveys no title to the purchaser, as against the creditors of the vendor; and, although the purchaser may have paid to the vendor the purchase price therefor, the goods may, at the instance of the creditor of the vendor, be reached by garnishment as the vendor’s property, in the hands of the purchaser. Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 1 (62 S. E. 82).

2. An agent or representative whose duties are merely to sell goods for his principal and collect therefor has no apparent authority to release any one from an obligation due to the principal; and where the agent does not in fact have any such authority, any agreement to such effect made by the agent in behalf of his principal is not binding upon the principal. Civil Code (1910), § 3595; Kight v. Stephen Putney Shoe Co., 137 Ga. 493 (73 S. E. 740); Kaiser v. Hancock, 106 Ga. 217 (32 S. E. 123).

3. Knowledge of all the facts by the principal being essential to a ratification of acts done by an agent in the principal’s behalf, the principal’s acceptance of a note from a debtor, in settlement of the indebtedness, which the agent, with the knowledge of the principal, procured from the debtor for that purpose, does not amount to a ratification of an agreement made by the agent with one who, in violation of the bulk-sales act, fraudulently purchased a stock of goods belonging to the debtor, to release the purchaser from the obligations to the creditor imposed upon him by law by virtue of such fraudulent transaction, and to look to the debtor alone for payment.

4. Upon an issue tried upon the traverse of the answer of the garnishee, in a suit by the creditor against the debtor, where the purchaser of the goods in bulk from the debtor was garnishee, the plaintiff having obtained a judgment against the defendant, the plaintiff was, where the above stated facts appeared, without dispute, from the evidence^ entitled as a matter of law to recover against the garnishee, and the verdict found for the plaintiff was properly directed.

Judgment affirmed.

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


text:
    14419.
    Poythress v. Hagan Grocery Co.
   Stephens, J.

1. A charge that the plaintiff could recover interest when it was not sued for was not an expression of an opinion upon the facts, and could not prejudice the jury against the defendant. Such charge was error so far as it authorized a recovery beyond the amount sued for; and where the jury found interest in addition to the amount sued for, the writing off of the interest cured the error in the charge and in the verdict.

Decided February 22, 1924.

Action for breach of contract from city court of Savannah-Judge Freeman. February 14, 1923.

Ulmer & Bright, for plaintiff in error.

Oliver & Oliver, contra.

2. As to the alleged newly discovered evidence, that referred to in ground 14 of the motion for a new trial could have been discovered by the exercise of ordinary diligence prior to the trial, and that referred to in ground 13 was altogether impeaching in its character, and none of it was of such a nature as would likely produce a different result upon another trial.

3. The remaining grounds of the motion for a new trial, which contain exceptions to the charge and to remarks of the trial judge, and to rulings upon the admissibility of evidence, are without merit.

4. The evidence supports the verdict rendered for the plaintiff, and no error of law appears.

Judgment affirmed,.

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


text:
    14520.
    Towers v. City Land Company.
    Decided February 22, 1924.
    Rehearing denied March 1, 1924.
   Stephens, J.

1. The levy in this case having been made within seven years from the date of the issuance of the execution, and the plaintiff in execution having within seven years after the levy twice advertised the property for sale, but being prevented from enforcing his„execution, by various court proceedings instituted by the defendant in execution, a motion to dismiss the levy, upon the ground that the judgment upon which the execution had issued was dormant, made upon the hearing of an issue formed by an affidavit of illegality filed by the defendant in execution within seven years from the last advertisement, was properly overruled, and the proffered amendment to the affidavit of illegality, to the same effect, was properly disallowed. Although no entries were made upon any execution docket, the plaintiff’s conduct evinced a bona fide public effort to enforce his execution in the courts of the country at such times and periods that seven years did not elapse between such attemps. Craven v. Martin, 140 Ga. 651 (79 S. E. 568); Smith v. Zachry, 1 Ga. App. 344 (57 S. E. 1011); First National Bank of Bainbridge v. McCaskill, 27 Ga. App. 391 (108 S. E. 819).

2. No other errors assigned in the bill of exceptions are insisted upon by counsel for the plaintiff in error.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonewr.

Affidavit of illegality of execution; from Floyd superior court-judge Wright. January 23, 1923.

Henry Walker, for plaintiff in error.

Denny & Wright, contra.


text:
    14547.
    Reid v. Morrison
   Stephens, J.

1. Upon the trial of an issue formed upon a plea to the jurisdiction of the court, based upon the ground that at the time of the institution of the suit the defendant did not reside within the county, where it appeared from the issue as made by the evidence that proof establishing the defendant’s residence within the county at the time of the trial necessarily established his residence within the county at the time of the institution of the suit, thus establishing the jurisdiction of the court over him, a charge by the court to the effect that jurisdiction of the defendant attaches upon proof that at the time of the trial the defendant is a resident of the county, while inaccurate as an abstract statement of the law, was not error as applied to the issue upon trial, and therefore was harmless to the defendant.

(a) It being undisputed that the defendant and his family had before the institution of the suit moved into and occupied a residence within the jurisdiction of the court, and had since continued to occupy the residence, and was so doing at the time of the trial, but it being contended by the defendant that when he moved into the jurisdiction of the court he left his citizenship behind him, and that, while since then he had been living within the jurisdiction of the court and at the time of the trial was so living, his legal residence was in another county and without the jurisdiction of the court, and there being no evidence otherwise to the effect that the status as to the defendant’s legal residence had changed from the time he moved into the jurisdiction of the court and the time of .the trial, it necessarily follows that any inference which might be drawn that at the time of the trial the defendant’s legal residence was within the jurisdiction of the court carries with it the inference that at the time of the institution of the suit his legal residence was within the jurisdiction of the court.

2. That portion of the charge quoted from the Civil Code (1910), § 2181, which was based upon the hypothesis that the defendant had no family, while' not strictly applicable to the issues made by the evidence, was nevertheless harmless to the defendant.

3. The evidence clearly made, an issue as to whether the defendant resided indifferently at two places within the State, and also as to whether he habitually resided a portion of the year in one county and another portion in another, and the rules of law applicable to such issues were properly given in charge to the jury.

4. The evidence, taken in its entirety, authorized a finding that at the time of the institution of the suit the defendant resided within the jurisdiction of tlie court, and that therefore the court had jurisdiction over him.

5. A real-estate broker may contract, as a condition precedent to earning his commission, to procure a contract of sale, or his undertaking may be simply to procure a purchaser ready, willing, and able to buy, and who offers to buy, upon the terms stipulated by the owner. Civil Code (1910), § 3587; Wilmot v. Silverman, 26 Ga. App. 196 (105 S. E. 654); Humphries v. Smith, 5 Ga. App. 340 (63 S. E. 248).

6. A suit by the broker to recover his commissions alleged to be due is not a suit upon the contract of sale which he has procured between his principal, the owner of the land, and his customer, the purchaser, but is a suit upon the contract, either express or implied, between the broker and his principal to pay commissions for services performed by the broker in respect to selling or procuring a purchaser for the real estate.

7. In such a suit, however, the contract of sale and its terms may be material and relevant for the purpose of establishing the terms of the broker’s contract for commissions or other facts necessary to the broker’s right to recover.

8. The fact that the alleged contract of sale, for the procuring of which the broker is suing for commissions, purports upon its face to be a contract by the terms of which his principal is to purchase certain real

' estate from the customer procured, and, as part of the purchase price, to convey to the customer the real estate for the sale of which the broker is suing for his commission, and therefore is not a contract by the principal to sell the property which he listed with the broker, does not defeat the broker’s right to show that the contract thus procured by him was as between him and his principal, to all intents and purposes and in contemplation of his brokerage contract, a contract for the sale by his principal to the opposite party of the property contracted by the principal to be paid as part of the purchase-money for other property purchased by him.

9. In a suit against the principal by the broker to recover commissions, which was brought in two counts, each for the same amount, one count alleging a contract by which the broker was to procure a contract of sale between his principal and the purchaser, and the other count alleging that the plaintiff earned his commission under a brokerage contract by obtaining a customer ready, willing, and able to purchase the property, and who had actually offered to purchase upon the term stipulated by the owner, where the verdict found for the plaintiff is sustainable under the second count, it is immaterial that the evidence was insufficient to support a verdict under the first count by reason of the contract of sale necessary to support such verdict being for any reason invalid, as by an insufficient description therein of the land purported to be sold.

10. Any statement in the charge of the court which seems to be confusing and calculated to leave an impression that one count in the plaintiff’s petition was based upon a written contract, and the other count upon a contract not in writing, was not prejudicial to any rights of the defendant, and therefore furnished no ground for setting aside the verdict found for the plaintiff.

11. Since the verdict is maintainable under the second count, where the validity of the contract of sale is not essential to the plaintiff’s right to recover, a charge that the contract of sale alleged to have been procured by the plaintiff was required to be in writing, unless partly performed, was harmless to the defendant; and if such charge could be construed as containing an instruction that the contract for commissions sued upon was required to be in writing unless partly performed, it only placed an unnecessary burden upon the plaintiff, and therefore was not harmful to the defendant.

Decided February 22, 1924.

Complaint; from city court of Decatur—Judge Daley. March 3, 1923.

H. G. Holbrook, Branch & Howard, for plaintiff in error.

Hendrix & Buchanan, contra.

12. The court in the charge clearly instructed the jury that, if, by reason of the plaintiff having, in carrying out his contract with the defendant, acted also as agent for the other party to the sale contract and received a commission from such other party for his services in the transaction, the defendant would not be liable if he was at the time ignorant of such dual agency.

13. It'appearing without dispute from the evidence that the owner accepted the purchaser procured by the broker, there was no issue for submission to the jury as to whether such person was ready, willing, and able to buy, and actually offered to buy, upon the terms stipulated by. the owner; and any omission upon the part of the trial judge to submit this issue to the jury was not error.

14. The evidence authorized the inference that the defendant knew that the plaintiff had listed for sale, as agent, the property belonging to the other party to the sale contract and which the defendant offered to buy, and it was therefore clearly inferable that the defendant knew of the so-called dual agency.

15. The charge of the court, fairly to the defendant, submitted to the jury all of the issues in the case.

16. The evidence authorized the verdict found for the plaintiff, and no error of law appears.

Judgment affirmed.

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


text:
    14280.
    McKenzie v. Standard Oil Company et al.

   Stephens, J.

1. Where two defendants are sued jointly in a State court for damages for an alleged tort,—an act of negligence alleged to have been jointly committed by them,—one of the defendants may nevertheless, in a proper case made, remove the suit to the Federal court upon the ground of diverse citizenship, if the petition otherwise alleges a cause of action against him, predicated upon some individual act of his own as negligence. Despite the allegation as to joint negligence, the petition nevertheless contains a separable controversy, and is therefore removable. This ruling is upon the authority of the Supreme Court in Southern Ry. Co. v. Edwards, 115 Ga. 1022 (42 S. E. 375), which, is reconcilable with the principle of law laid down and applied in L. & N. R. Co. v. Roberts, 136 Ga. 270 (71 S. E. 425), and reiterated in A. C. L. R. Co. v. Renfroe, 27 Ga. App. 198 (107 S. E. 881), and A. C. L. R. Co. v. Williams, 27 Ga. App. 202 (107 S. E. 886), irrespective of the application of the same to the particular facts in the last two cases mentioned. See, in this connection, Southern Ry. Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191); Foster’s Federal Practice, § 541-i; C. & O. R. Co. v. Dixon, 179 U. S. 131 (21 Sup. Ct. 67, 45 L. ed. 121); Alabama &c. R. Co. v. Thompson, 200 U. S. 206 (26 Sup. Ct. 161, 50 L. ed. 441, 4 Ann. Cas. 1147).

Decided February 23, 1924.

Petition for removal of canse; from city court of Oglethorpe— Judge Greer. October 19, 1922.

John B. Guerry, Gilbert G. Robinson, for plaintiff.

J. J. Bull & Son, Spalding, MacDougald & Sibley, for defendant.

2. The petition in this case, which alleges that the plaintiff was injured by the alleged negligent act of one Hinton Turner, and of the Standard Oil Company acting through the same Hinton Turner as its agent, in negligently delivering to the plaintiff a very inflammable and dangerous substance known as gasoline, in lieu of kerosene which the plaintiff had ordered, and .which exploded, to the plaintiff’s injury, while he was using it in operating an engine upon his premises, believing that the substance was kerosene, nevertheless alleges a cause of action predicated upon the negligence of the Standard Oil Company, alone and independent of any negligence which the codefendant may have been guilty of when handling and delivering the gasoline, where it further alleges that such injury and damage to the plaintiff was caused by “the negligence and wrong of the defendants in selling" and causing to be sold and delivered to the plaintiff the alleged gasoline. The allegation that the act of negligence in selling the gasoline was the negligence of the “defendants” cannot be construed as meaning an act of the defendant Hinton Turner, since the petition expressly alleges that his duties were those of “agent in the driving of its [Standard Oil Company’s] trucks and wagons, and in the delivery of kerosene and other products in'which said company was'engaged in handling,” and therefore could not have participated in any alleged act of “selling” the gasoline which it is alleged occasioned the injury to the plaintiff.

3. The trial court therefore did not err in ordering the suit against the Standard Oil Company removed to the Federal court.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonew.