text:
    1209.
    FOURAKER v. THE STATE.
    1. Where a ground of a motion for a new trial based on newly discovered evidence is filed, and a counter-showing is made, so that a conflict arises as to the material facts upon which the ground is based, a reviewing court will not, except in a case of manifest abuse of discretion, reverse the finding of the trial judge.
    2. The admission of testimony favorable to the defendant affords him no ground for a new trial.
    3. The trial judge has a discretion to control the right of cross-examination within reasonable bounds, and an exercise of this discretion will not be controlled by a reviewing court, unless it is abused.
    4. Grounds of a motion for a new trial should be complete within themselves.
    5. The evidence, though somewhat weak and circumstantial, is, legally speaking, sufficient to support the verdict.
    Indictment for assault with intent to murder, from Clinch superior court — Judge Parker. April 25, 1908.
    Submitted June 30,
    Decided August 4, 1908.

      Townsend & Dame, for plaintiff in error.

      John W. Bennett, solicitor-general, contra.
   Russell, J.

The plaintiff in error excepts to the overruling of his motion for new trial. The motion was based in part upon the ground of newly discovered evidence. One M. C. Kite swore, by affidavit, that at the time of the shooting with which the defendant was charged, he was present and was looking at the defendant, and that the defendant was standing near a railroad crossing and within a few steps of him, and did not fire any shot or have any gun. The prosecutor was shot with a gun, and consequently the evidence of this witness would have been very material, and perhaps would have caused a different result upon another trial of the case, if believed. There were, however, affidavits introduced in behalf of the State, tending to show that the witness Kite was in a different town on the night of the shooting, and that therefore his testimony was false.

Upon the hearing of a motion for new trial, and in the consideration of a ground of the motion dependent upon newly discovered evidence, where affidavits are introduced supporting and disputing the ground of the motion, the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses. A reviewing court will not in any such, case control his discretion as to the comparative credibility of the witnesses who testified in support of the motion and those who swore to the contrary. We can not, therefore, in the present case say that the trial judge erred in be-' lieving Sturges, Cribb, Johnson, and Tomlinson, in preference to* the witness Kite. As we can not do this, we can not hold that the court erred in overruling the ground of the motion based upon newly discovered evidence.

Even if the court should not have permitted the prosecutor’s testimony with reference to what Swearingen said in apology to him, the error, if any, was harmless to the defendant. This testimony was: "I said, ‘You just come in here and tell me that you are sorry for what you said, and just wait until jmu are sober, and there will be nothing of this. Go ahead and get sober.’ He then turned around and said, ‘You are right. I will go.’ He then went off, both of them, and I did not see where they went.” This evidence was objected to by counsel for the defendant, upon the ground that it was inadmissible and immaterial, and not connected with the assault for which the defendant was being prosecuted. We think that the evidence shows pretty clearly that the defendant and Swearingen were together from the beginning of the quarrel between the prosecutor (Allen) and Swearingen, until after Swearingen was killed; and the entire difficulty may be considered as one transaction. But even if this were not the case, in no event could the evidence above quoted, which tended to show that Swearingen was inclined to be pacified, injure the defendant.

The exception that the court erred in permitting the solicitor-general to cross-examine a witness introduced by him is not well taken; because it was purely within the discretion of the court as to whether the State’s counsel should be permitted to lead the witness, or to cross-examine his own witness.

The 6th ground of the amended motion for new trial presents nothing for the consideration of this court. In that ground it is alleged that the court erred in overruling the defendant’s motion to declare a mistrial upon the grounds stated in the brief of evidence. The special reason why the court erred must be stated, and the specific error must be pointed out, in the motion for new trial itself, and this court can not look to the brief of evidence to ascertain the grounds of a motion for mistrial:

After a careful examination of the evidence, we find that the verdict of guilty is amply supported by the testimony. Swearingen (who was killed by Allen, the prosecutor) and the defendant, Fouraker, as it appears from the evidence, had been making threats and endeavoring to provoke a difficulty with Allen, but had gone away. Allen’s house had been shot into, and he had felt obliged to arm himself and take refuge in a darkened room. The conduct of the defendant and Swearingen, during the afternoon,. had been such as tended to terrify Allen, who not only knew both men well, but was familiar with their voices. Allen had left his darkened room and returned to his storeroom, which was lighted, and was preparing to close up, when two men, whom he took to be Fouraker and Swearingen, started up his steps. He saw Swearingen’s pistol and warned him to go back and lay down the pistol. As Swearingen would not grant this request, Allen, who had his gun leveled upon Swearingen, asked one Kilburn, who was in the store, to go around and get the pistol, and, just as he did so, Allen was shot by a gun from the outside, and almost immediately he fired his gun and Swearingen fell. From the circumstances testified to by all of the witnesses, no other inference could reasonably be drawn than that Fouraker was the man who shot Allen with a shotgun. Fouraker and Swearingen were together all of the afternoon, Foiiraker with a double-barrel shotgun, and Swearingen with a pistol. They were inseparable, and both of them discharged their weapons repeatedly. No one else was connected with Swearingen in his disorderly conduct and in his attacks upon Allen; and it seems plain, as testified by one of the witnesses who heard the remarks of some one who was with Swearingen, that it was the intention of the defendant to have Swearingen “raise a row,” whereupon he would do the killing. More than one witness swore to threats made by the defendant in connection with the prosecutor’s refusal to sell certain goods to Swearingen on credit.

The evidence being circumstantial, the jury might have been authorized to acquit the defendant, if the evidence had pointed to any one other than this defendant as the man who fired the shot; but in our opinion the jury could not reasonably entertain any other supposition than that the defendant was the person who shot Allen, nor were they authorized, under the law, to find this shooting to be any lesser offense than that of assault with intent to murder.

So far as the absence of the defendant during the trial is concerned, the point is not properly presented- for our consideration. It is not made one of the grounds of the motion for new trial,, and the only reference to the subject is in the brief of evidence,, of which it forms no proper part. Judgment affirmed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    1226.
    BUCK v. TIFTON MANUFACTURING COMPANY.
    A materialman who has furnished articles to a contractor for the improvement of the real estate of another can not maintain a separate. action at law against the landowner, until he has first obtained a judgment against the contractor.
    Foreclosure of lien, from city court of Tifton — Judge Eve. May 16, 1908.
    Submitted July 17,
    Decided August 4, 1908.

      J. B. Murrow, J. J. Murray, T. H. Parker, for plaintiff in error.

      Fulwood & Murray, contra.
   Powell, J.

The materialmen furnished articles to a contractor who was erecting a building for the landowner: The contractor lived in Colquitt county, the landowner in Tift. The materialmen brought suits, on the account against the contractor, and on the lien against the landowner, by separate simultaneous actions in the counties of their respective residences. The landowner demurred to the petition in the ease against him, on the ground that no prior judgment had been obtained against the contractor; the court overruled the demurrer, and the defendant excepts.

In the ease of Castleberry v. Johnston, 92 Ga. 499 (17 S. E. 772), the following language occurs: “According to the ruling of this court in Lombard v. The Trustees &c., 73 Ga. 322, the lien of a materialman for lumber furnished upon the employment of a contractor could not be foreclosed by a direct suit against the owner of the premises, without previously or concurrently suing the contractor to whom the lumber was furnished.” Looking to the decisions both prior and subsequent to the one quoted, we are satisfied that the word “concurrently” is here used as the equivalent of the phrase “in the same suit,” so far as actions strictly at law are concerned. Except in those cases where, by reason of the fact that both reside in the same county, the contractor and the landowner can be joined in the same suit, or where special reasons permit of recourse to a court of equity, the materialman should reduce his claim against the contractor to judgment before he sues upon it to establish a lien as against the landowner. The requirement of the Civil Code, §2804, par. 3, that suit to recover the claim must be commenced within twelve months, relates to the action against the contractor, and not to the subsequent proceeding against the landowner. Lombard v. Trustees, supra. The suit against the contractor is in personam, the one against the landowner is in rem. On the general subject, see Mauck v. Rosser, 126 Ga. 268, 274 (55 S. E. 32) ; Clayton v. Farrar Lumber Co., 119 Ga. 37 (45 S. E. 723); Philip Carey Mfg. Co. v. Viaduct Place, 1 Ga. App. 707, (58 S. E. 274). Judgment reversed.


author: Russell, J.

text:
    1234.
    COPPAGE v. THE STATE.
    1. The evidence upon the trial authorized the conviction of the plaintiff in error, and the newly discovered evidence being impeaching only, this court would not be authorized to hold that the trial judge erred in refusing a new trial.
    2. In criminal cases, where a defendant is found guilty of a felony but the jury recommends that he be punished as for a misdemeanor, it is within the jurisdiction of the trial judge to act upon such recommendation or to disregard it as he may deem proper. The exercise of this discretion will not be controlled where the sentence imposed does not exceed the limits provided by law.
    Indictment for larceny from house, from Cobb superior court— Judge Gober. May 1, 1908.
    Argued July 14,
    Decided August 4, 1908.

      H. B. Moss, for plaintiff in error.

      B. F. Simpson, solicitor-general, contra.
   Russell, J.

Fonzo Coppage was convicted of larceny from the house of money exceeding $50 in value, and the jury, in the verdict, recommended that he be punished as for a misdemeanor. One witness swore directly that he saw Coppage take the money in question from the desk in the pool-room of Baswell, the prosecutor. Other circumstances appeared from the testimony which would lead to the conclusion that one Evans was in some way interested in the theft, either as accessory before or after the fact. But the attempt to impeach the witness who swore that he saw the plaintiff in error take the money was not successful before the jury, and, as this evidence covers every phase of the case and authorized the conviction of the defendant, other matters become immaterial. The trial judge disregarded the recommendation of the jury to punish as for a misdemeanor, and sentenced him to five years in the penitentiary. A motion for new trial was made and overruled, and the plaintiff in error excepts to this judgment.

Outside of the contention that the verdict is contrary to the evidence and the law, the defendant relied, for a new trial, upon the ground of newly discovered evidence by which hesought to impeach the witness Brown, and attempts to show, by the record of the subsequent conviction of one Tom Evans, that he himself is innocent. The newly discovered testimony with reference to the witness Brown is impeaching only, if it amounts to anything at all, and the fact that Tom Evans may since have been convicted of theft of the same money on a separate indictment is of no moment in the consideration of the motion for new trial. Any point as to the quality and degree of participation of either of the defendants in the offense could have been raised upon the trial. If Coppage was the actual perpetrator of the crime, it is of no concern to him that Evans, though an accessory, was convicted also as principal in the first degree. It might have afforded ground of complaint for Evans, but none for Coppage. If the evidence in the present case had shown Coppage to be an accessory, we might hold a conviction unauthorized, but the evidence under review showed him, if he was guilty at all, to have been the principal thief.

It is insisted with great earnestness that the judge made a mistake in disregarding the recommendation of the jury, and in imposing upon the prisoner sentence as for a felony. It is entirely discretionary with a trial judge how much weight he will attach to the recommendation (which the jury is permitted to make as to certain felonies) that the defendant be punished as for a misdemeanor; and therefore, in such cases, if he decides to sentence as for a felony, he is remitted to the usual rule which allows him to impose any term of imprisonment which does not exceed that fixed by the statute. Nothing is better settled than that the discretion of the trial judge in fixing punishment can not be interfered with upon review, if the sentence imposed is within the limit provided by law for the particular offense.

Judgment affirmed.


text:
    653.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. COOK & LOCKETT.
    1. The issuing of a bill of lading by a carrier is only prima facie evidence of the receipt of the goods. If the bill of lading is issued prior to the time then goods are tendered to the carrier, it does not become effective until the goods are offered to the carrier in such a condition as that it should receive them.
    2. Under the rules of the railroad commission, as well as by general law, no railroad company is required to accept for carriage any goods, unless they are tendered in such condition that the transportation thereof is safe and practicable. The tender of a car-load of such commodities as, under the rules of the commission, are to be loaded by the shipper is not a good tender if the ear is unsafe.
    Action on contract, from city court of Albany — Judge Crosland. June 22, 1907.
    Argued November 12, 1907.
    Decided September 28, 1908.

      Wooten & Hofmayer, Cruger Westbrook, for plaintiff in error.

      Mann & Milner, contra.
   Russell, J.

Cook & Lockett recovered a verdict for $500, damages, against the Central of, Georgia Railway Company, for the non-delivery of a car-load, of barrel staves. The railway company’s motion for a new trial was overruled; and exception is taken to that judgment, as well as to certain anterior rulings to which objections were preserved by exceptions pendente lite. It appears from the evidence that Cook & Lockett, on October 6, 1906, obtained from an employee of the plaintiff in error, in the office of its agent at Albany, Georgia, a bill of lading for the transportation of a car-load of barrel staves from Albany to Century, Georgia, a station six miles from Albany, on the line of its railroad. The bill of lading was of standard form. This car-load of staves had been brought to Albany from Lockett’s mill by. the; Georgia Northern Railroad;- and, at the time of the issuance of th'e bill of lading by the Central of Georgia Railway Company, the car containing the staves was at the yard and in the possession of the Georgia Northern Railroad Company. Cook & Lockett had paid to the Georgia Northern the freight from Lockett’s mill to Albany, and the Georgia Northern had issued a trackage order for the delivery of the car to the Central of Georgia Railway. According to the evidence, a trackage order is issued by a railroad company to its yard-master to place a certain car on a siding or to deliver it to a connecting line. According to the evidence, Cook & Lockett being entitled to one “free movement” of the car after it arrived at its destination, the Georgia Northern was bound to deliver the car in question to the Central free of charge. The-paid freight bill of the Georgia Northern was delivered to the-agent of the Central at the time the bill of lading was issued, and the agent was informed by the shipper that the car was in. the possession of the Georgia Northern, and an order had been issued for it to be delivered to the Central. So far as appears from the-evidence, neither the shipper nor the agent of the Central had any knowledge or intimation that the car in possession of the'Georgia Northern was in any other than good condition for-shipment; and the evidence of the defendant’s agent, that the plaintiff was informed by him, at the time the bill of lading was. issued, that the car would go forward as soon as it was received, from its connection, is not controverted. In other words, it is clear, from the evidence, that the car had not been -accepted for shipment by the carrier at the time the bill of lading was issued. Evidence not disputed was introduced, showing the existence of a. local custom at Albany, among the different railroads entering-that city, under which, for the convenience of shippers, bills of' lading are issued, even though the proposed shipment is in the-possession of another railroad in the city, either upon proof that-a trackage order has been issued by the delivering line upon whose-tracks the car is supposed to be, or upon sufficient proof that a, car has been ordered delivered to a receiving carrier. The existence of this custom is due to the fact that otherwise the shipper-would have to go to the office of the receiving railroad perhaps, more than once "before the particular car for-which he sought a. bill of lading had passed inspection and had been delivered. It appears, from the evidence, that- the car in question was several times shifted upon the track which was usually used for delivery by the Georgia Northern to the Central, and each time it was rejected by the inspector acting in behalf of the Central, as being dangerous to life and property. The car was first marked or tagged as in bad order on October 4, and it was not shifted to the delivery track until October 11. At this time it had “condemnation” marked on it, and one end of the car was knocked out. After having been placed upon the transfer track on the 12th and 13th and refused by the Central, it appears to have been repaired by the Georgia Northern, so far as the end of the car was concerned; but when it was again shifted back on the transfer track, on the 15th and 16th, it was each time refused by the inspector, because the car had been knocked off the center plate, and, according to the testimony of the inspector, was in a more dangerous condition than when refused before. The evidence that at no time when the car was tendered to the Central Railway would the carriage of the car have been safe to human life and property was undisputed. The car was never accepted by the joint inspector, for carriage by the Central; it never left the Georgia Northern Railroad tracks or its posssession until October 17th, when, by the direction of the plaintiffs, it was placed by the Georgia Northern on its dray track and unloaded by the plaintiffs themselves. To rebut this testimony, the plaintiffs introduced evidence that the agent of the railroad more than once admitted that the car had been received and would be forwarded by the Centra! Railway. The plaintiffs testified that they went a'number of times to the freight office to find out about the car, and each time were assured that it would go forward by the next train. One of the plaintiffs testified that the agent in the freight office said that the car had been received and accepted and would go forward by the next train. This statement was denied by the agent in question.

The plaintiffs claim damages for the delay and failure to deliver caused by the defendant company’s breach of its contract, consisting of the following items: that they lost 100 barrels of crude turpentine, worth $500; that they were compelled to pay out to laborers, who were compelled to be idle by reason of the non-delivery of the staves, $375, and, for their expense in finally hauling the staves from Albany to Century, $16, making .a total of $891 of actual damages. The evidence disclosed that the still was closed for about six days, and that the plaintiffs bought 315 beer barrels in Albany, to replace the barrel staves; which it was estimated would make 450 barrels.

In our opinion, the verdict in favor of the plaintiffs was unwarranted, and the court erred in-not granting a new trial upon the defendant’s motion. It would subserve no useful purpose to discuss seriatim the very numerous exceptions contained in the motion for new trial. "We may say, in passing, that none of the exceptions as to the amendments allowed by the court are meritorious. The greater number of the amendments offered were made in response to special demurrers, but the court did not err in allowing the amplification of the plaintiffs’ petition, nor in allowing the damages claimed to be increased in the petition from $500’ to $1,000.

The controlling question in the case is, was there a delivery of the freight to the defendant carrier? We think the plaintiffs failed to show that the staves in question were ever accepted by the-carrier for shipment; and of course, that such was the case is an indispensable element in the case. It is true that a bill of lading in the standard form is introduced in evidence; but a bill of lading is not a contract of carriage; it is only prima facie evidence of the receipt of the goods. The bill of lading is subject to explanation, and when it is brought in question it may be shown that the goods described therein were not in fact received by the carrier. The evidence of the custom by which bills of lading are issued in. Albany in advance of actual delivery is of comparatively little importance, because the evidence is undisputed that the car in question was in fact never accepted for shipment by the Central of Georgia Kailway Company, and was never in proper condition to-be received by it. The refusal to accept the car in the condition, in which.it was shown by the undisputed testimony to have been was justified by rule 26 of the railroad commission, as follows:“No railroad company shall be required to accept for carriage any goods, unless the same shall be of such character and in such condition and so prepared for shipment as to render the transportation thereof reasonably" safe and practicable.” The. courts take-judicial cognizance of these rules. The evidence is undisputed that the condition of this ear was snch that its transportation was neither safe nor practicable. Had the shipment been less -than a car-load the duty might have devolved' upon the Central of Georgia to unload the staves from the unsuitable ear, but, under the rules of the railroad commission, car-load lots of barrel staves are to be loaded by the shipper, and, therefore, it was the duty either of the shippers themselves, or of the Georgia Northern Railroad, and not the duty of the Central of Georgia to have unloaded the contents of the wrecked car and to have loaded them into a safe car. We bear in mind that there was an issue as to whether the shipper was aware of the custom, and as to whether the custom attempted to be shown was more than purely local. But -regardless of the issuance of the bill of lading, we think it clear that the railroad was not required, after it became aware of the condition of the car, to endanger life and property by attempting to transport it. Judgment reversed.


author: Hill, C. J.

text:
    693.
    ORR STATIONERY COMPANY v. DR. BELL & LEE DRUG COMPANY.
    All misnomers in pleadings being amendable instanter, a suit by the Orr “Shoe” Company against the Dr. Bell & Lee “Shoe” Company, on an account made a part of the petition and -which shows that the real plaintiff was the Orr “Stationery” Company, and the real defendant the Dr. Bell & Lee “Drug” Company, is amendable by striking the word “Shoe” from the petition and inserting in lieu thereof the words “Stationery” and “Drug,” as descriptive of the parties.
    Complaint, from city court of Sylvester — Judge Park. July 22, 1907.
    Submitted November 26, 1907.
    Decided September 28, 1908.
    A suit on an account was brought, in which the petition described the plaintiff as Orr “Shoe” Company, and, in one paragraph, described the defendant as Dr. Bell & Lee “Shoe” Company, a firm composed of P. E. Bell and E. E. Lee, though in other paragraphs of the petition the. defendant was described as Dr. Bell & Lee “Drug” Company, composed of the same persons. As a part of the petition, the account which was the subject-matter of the suit'was stated to be the indebtedness of Dr. Bell & Lee “Drug” Company to the Orr “Stationery” Company. The account was itemized, showing articles of stationery sold by the Orr Stationery Company of Atlanta to Dr. Bell & Lee Drug Company of Sylvester, and this bill of particulars was sworn to by Chas. H. Orr “of the firm of Orr Stationery Company.” Process ran against the Dr. Bell & Lee Drug Company, and the partners thereof, and service was made accordingly. The petition, considered as a whole, left no room to doubt that the use of the word “Shoe” in the petition, descriptive of plaintiff and of defendant, was a palpable misnomer or clerical mistake. When the case was called, the plaintiff offered an amendment “striking from the second line of the introductory of the petition” the word “Shoe,” and inserting in lieu thereof the word “Stationery,” so that the misnomer in stating the name of the plaintiff should be corrected by changing the name “Orr Shoe Company” to that of “Orr Stationery Company,” and also striking from the petition the word “Shoe,” and inserting in lieu thereof the word “Drug,” so as to •correct the misnomer in stating the name of defendant firm, by •changing the name from “Dr. Bell & Lee Shoe Company” to that of “Dr. Bell & Lee Drug Company.” In support of the amendment, the affidavit of the attorney who prepared the petition was introduced without objection, reciting that the use of the word “Shoe,” descriptive of the plaintiff and of the defendant, was an inadvertent misnomer, and that the amendment gave the correct names of both plaintiff and defendant, and that they were the names intended to be used by the attorney in drawing the petition, and that the amendment was for the purpose of correcting the misnomer and giving the correct names of both plaintiff and defendant, as was intended by the original petition, and was not a scheme to substitute new parties. This amendment was objected to by the defendant, and the court sustained the objection, and on demurrer dismissed the petition. The exception to this ruling constitutes the only material assignment of error.

      Polhill & Foy, for plaintiff.

      Payton & Hay, for defendant.
   Hill, C. J.

(After stating the foregoing facts.)

The judgment of the court refusing to allow the amendment to the petition was erroneous. The suit was on an account which was a part of the petition, and this account clearly established the fact that the real plaintiff, and the intended plaintiff, was not the Orr “Shoe” Company, but the Orr “Stationery” Company,, and that the real and intended defendant was not the Dr. Bell & Lee “Shoe” Company, but was the Dr. Bell & Lee “Drug” Company. The use of the word “shoe,” therefore, .in the introductory-part of the petition was a manifest misnomer, — the unintentional adding ¿of a wrong word as a part of the names of both plaintiff' and defendant, and is equivalent to giving a wrong initial or-Christian name in pleading. This misnomer could have been properly corrected instanter, on motion of the plaintiff. The authority for this ruling is to be found in the Civil Code, §5102, which, in harmony with the practical purpose of legal investigation, sweeps-away all such technical quibbles in pleadings by declaring, that-“all misnomers, whether in the Christian name or surname, made-in writs, petitions, bills or other judicial proceedings on the civil side of the court, shall, on motion, be amended and corrected instanter, without working unnecessary delay to the party making the same.” The misnomer in the present case, when considered, in connection with the bill of particulars, was slight, and could not possibly have been misleading. Its correction by the plaintiff' could certainly do no harm to the defendant. The defendant knew who the real creditor was, if any, and it was unnecessary and unjust that the real creditor should have been delayed in the collection of his debt bj a misnomer which was patent to the debtor. It will be noted that the section of the code, supra, does not provide a remedy only for the instantaneous correction of slight misnomers in pleading, but declares that “all misnomers” in civil pleading are amendable; and in the case of Murphy v. Peabody, 63 Ga. 524, Justice Bleckley states that no case of misnomer is “too desperate to be healed.” “Certainly it is a wide miss to write-George Foster when the draftsman means Charles J., but such a blunder is only a misnomer, and the remedy is easy and instantaneous. The rule of amendment is as broad as the doctrine of universal salvation.” This liberal, practical, and common-sense enunciation of the great jurist has been uniformly followed by the-Supreme Court, and all such frivolous tactics of obstruction consigned to well-merited desuetude. Carey v. Cranston, 99 Ga. 77 (24 S. E. 869); Maddox v. Central Ry. Co., 110 Ga. 301 (34 S. E. 1036); Jarrett v. City Electric Ry. Co., 120 Ga. 472 (47 S. E. 927).

The foregoing ruling makes it unnecessary to pass upon any of the other assignments of error, or upon the motion to dismiss the writ of error, as all the other assignments and the motion to dismiss are based upon the assumed correctness of the judgment refusing to allow the amendment in question.

Judgment reversed.


text:
    809, 810.
    TAYLOR v. VIRGINIA-CAROLINA CHEMICAL COMPANY, and vice versa.

    In an action by a servant against a master, for personal injuries received through a dangerous condition in the place of employment, the petition should make it appear that the servant had neither actual nor constructive knowledge of the thing complained of. “As to this, the allegation that the servant/did not know’ of a defect is a statement of fact, and is sufficient as alleging actual lack of knowledge. Freedom from implied knowledge can be alleged in the form of a legal conclusion only when the facts set forth show such a state of circumstances as to relieve the plaintiff from such an imputation; otherwise the court will disregard the legal conclusion and give judgment on the facts actually stated.”
    Action for damages, from city court of Macon — Judge Hodges. September 16, 1907.
    Argued January 20,
    Decided September 28, 1908.

      Feagin & Urquhart, J. E. Hall, for plaintiff.

      N. E. & W. A. Harris, for defendant.
   Powell, J.

The main bill complains of the granting of a non-suit; the cross-bill of the overruling of demurrers, general and special, to the plaintiff’s petition. The cross-bill, containing an initial and controlling question, must, under the established rule, be first decided. There was no error in overruling the general demurrer, nor the special demurrers, excepting the one about to be noted. The plaintiff alleged, that while making his rounds as a watchman in the defendant’s plant, he stepped upon some sulphuric acid, negligently left on the floor in the path he was expected to walk, and he fell and received severe burns. The only allegation as to the plaintiff’s lack of knowledge as to the condition of the floor is contained in tbe following words: ."Petitioner says that be did not know of this fact, conld not have known of .it by tbe exercise of ordinary care, and did not have equal means with those of tbe master for knowing the fact.” The petition discloses no reason why the plaintiff could not see the acid on the floor and in his pathway. The facts alleged do not disclose any inferential reason why the danger was not obvious to him. The extract from the case of Cedartown Cotton Co. v. Miles, 2 Ga. App. 82 (58 S. E. 289), quoted in the headnote, is directly in point. The present petition differs from the one under review in the case of Southern States Cement Co. v. Helms, 2 Ga. App. 314 (58 S. E. 524), in that the circumstances there alleged inferentially negatived a lack of knowledge on the servant’s part, and the special demurrer there was itself imperfect. The plaintiff’s testimony explained how it happened that he did not see the acid or know of it, but his pleading did not. The special demurrer to this deficiency in the petition should have been sustained; and the. case will therefore be reversed on the cross-bill. Having reversed the case on the cross-bill, on a ruling on a demurrer, it follows that the main bill must be dismissed, and further discussion would be mere obiter. General Supply Co. v. Lawton, 131 Ga. 375 (62 S. E. 294). We have previously commented on "the apparent hardship which the rule sometimes works; but it is the rule.

Judgment reversed on the cross-hill of exceptions; main hill of exceptions dismissed.


text:
    860.
    SEABOARD AIR-LINE RAILWAY v. CHAPMAN.
    1. In viewing the conduct of an intoxicated person, for the purpose of determining his negligence or contributory negligence, the state of mind produced by the intoxication may be disregarded; for he will be judged as if the conduct occurred while he was in the possession of his normal mental capacity.
    2. The duty of a master to use ordinary care to keep his premises and to conduct his business in such manner that his servants may perform their duties in safety is but a phase of the broader and more anciently-recognized doctrine of the common law, that every person who expressly or impliedly invites another to come upon his premises or to use his instrumentalities is bound to use ordinary care to protect the invited person from injuiy.

      (a) It will not be presumed, or implied against a master, engaged in lawful business, that he invited his servants to come upon his premises or to use his instrumentalities for the purpose of committing crime, or that he should anticipate their doing so.
    (b) A servant who enters upon the premises of his master, not for the-lawful discharge of a duty, but for the purpose of violating the law, is entitled to no higher degree of protection from the master than an outsider under similar circumstances.
    (c) In North Carolina it is a misdemeanor for an intoxicated person to take charge of a locomotive as engineer. Therefore, in that State, an engineer who, while intoxicated, is attempting to get upon an engine to take charge of the same is not upon the premises of the railway company in the discharge of his duty, but is there attempting to commit a crime; and the company and its other servants do not owe him that degree of care which they owe to employees there in the line of duty,. • but owe him only that degree of care which they owe to other intruders.

      (d) A railway company, when sued by an engineer for injuries received by him in the State of North Carolina through the unsignaled moving of a locomotive which he was attempting to mount for the purpose of taking charge of it, may plead and prove, in defense to the action, that the engineer was intoxicated, and that the statutes of North Carolina make it a misdemeanor for an engineer to be in charge of a locomotive while intoxicated. This is true although the engineer was injured be.fore his attempt to get upon the engine and to take charge of it had proceeded far enough to render him amenable to prosecution under the statute.
    Action for damages, from, city court of Atlanta — -Judge Reid. November 13, 1907.
    Argued January 22,
    Decided September 28, 1908.
    Chapman was employed in the yards of the defendant at Hamlet, North Carolina, as a yard-engineer, and was what is known as an extra man; that is to say, he was not regularly assigned to any particular engine, but was used to fill vacancies caused by the absence of other engineers. For several days prior to the date on which he was hurt, he had been running a yard-engine, which was regularly operated by engineer Sanders, who was absent on account of sickness. On the morning in question Sanders had returned to work, and was engaged in operating the locomotive, but, by reason of his failure to register his return, according to the practice of the employees, the fact was unknown to Chapman, and he therefore went out, shortly after seven o’clock, to relieve the night-engineer and to take charge himself. He approached the locomotive "upon the fireman’s side, and, according to his contention, just as he -was in the act of mounting and as he was upon the steps, the engine was moved suddenly backward, without the ringing of bell or the giving of other audible signal, and he was thrown under the wheels of the engine. He did not see the engineer, and the engineer did not see him. A rule of the company required the bell to be rung before the engine was moved. The plaintiff pleaded and relied upon a statute of the State of North Carolina as follows: “Any servant or employee of any railroad company operating in this State, who shall suffer injury to his person, or the personal representative of any such servant or employee who shall have suffered death in the course of his service or employment with said company, by the negligence, carelessness, or ineompetency of any other servant, employee or agent of the company, or by any defect in the machinery, ways, or appliances of the company, shall be entitled to maintain, an action against such company;” and set up that he was in the line of his duty at the time he was hurt. The company denied negligence on the part of itself and its servants, and set up the plaintiff’s own lack of care. Numerous witnesses testified that the plaintiff was drunk, and even staggering, as he approached the engine^ he admitted that he had taken a drink before breakfast, but denied that he was in any way intoxicated. The issue as to this was sharply drawn.
    On the trial an amendment to the answer was offered, which the court refused to allow, in which the defendant pleaded, that, by a statute of North Carolina, “if any person shall, while in charge of a locomotive engine running upon the railroad of any such corporation, . . be intoxicated, he shall be guilty of a misdemeanor;” and that the plaintiff was intoxicated at the time he received his injuries, and was not entitled to recover damages.. The defendant offered this statute in evidence, and the court rejected ~it as irrelevant. The defendant offered in evidence, separately, the following rules of the company, which were excluded by the court. Eule 7: “The use of intoxicants, while on duty, is-prohibited. Their habitual use, or the frequenting of places where-they .are sold, is sufficient cause for dismissal.” Eule 19: “Intoxication, or the habitual use of intoxicating liquors by employees, is strictly forbidden, and will be sufficient cause for dismissal from the service of the company. Total abstinence in this particular, and in the use of opium or other narcotic drugs, is necessary to safety in operating the road, and employees in any capacity who-frequent gambling houses or places where liquor is sold will not be retained in the service. Employees will not be prevented from obtaining meals at hotels which maintain a bar, but are cautioned not to frequent such bar.”
    As to the plaintiff’s being intoxicated at the time of the injury, the court, in substance, instructed the jury that if they found that the plaintiff was intoxicated at the time he was injured, they might consider this fact in determining whether he was guilty of contributory negligence or a failure to exercise due care. The court further charged: “A man who voluntarily becomes intoxicated or drunk neither gains nor loses in his civil rights. The law requires that he be judged by the standard of every prudent man in sober normal condition, acting under the same or similar circumstances. In other words, the railway company in this case would not be excused, if it was negligent and caused injury to the plaintiff by its negligence, from liability, because the plaintiff was drunk, if he was drunk (and you settle that question for yourselves), provided the plaintiff was in the exercise of ordinary care; that is, just that care which every prudent man would have exercised under the same or similar circumstances. On the other hand, the plaintiff can not excuse himself, under the law, from 'the failure to exercise the care which every prudent man would have exercised under the same or similar circumstances, by the fact, if it was a fact, that he was intoxicated. In other words, gentlemen, the law, in the administration of civil rights, treats all people alike, and treats all people as normal, sober people, so far as this question of drunkenness is concerned; and, as I said in the beginning, the plaintiff neither gains nor loses by the simple fact, within itself, of being intoxicated or drunk, if he was; and you settle the question whether he was or not. The question is allowed to go to you to be considered on the proposition whether the plaintiff was in the exercise of ordinary care or not. If he was intoxicated or drunk, and failed to exercise that care which every prudent man would have exercised under the same or similar circumstances, he will have to take the consequences. His intoxication or drunkenness would not excuse him. On the other hand, if he did exercise the degree of care which every prudent man would have exercised under the same or similar circumstances, then, if he was drunk or intoxicated, that fact, within itself, would not bar his right of recovery.”

      It seems that in North Carolina slight fault on the part of the servant will not bar a recovery in an action against the master, but that only a dereliction gross enough to amount to a failure to exercise ordinary care and diligence will have this effect.

      Brown & Randolph, for plaintiff in error.

      Berner, Smith & Hastings, contra.
   Powell, J.

(After stating the facts as above.)

It must be kept in mind throughout this opinion that this cause of action arose in North Carolina, and the substantive rights of the parties are to be measured by the laws of that State. Thus, viewed, we find no error in the charge of the court as to the effect of the plaintiff’s intoxication, so far as the question of contributory negligence is concerned. In that State, it seems, the employee can recover from the employer for the negligence of a fellow servant, subject to the defense of contributory negligence, on the same terms as if the injured employee were a third person, on the premises by invitation or under other rightful circumstances. As to these things, each party owes to the other the duty of exercising ordinary care. That State and our own have the same rule as to the effect of a person’s intoxication, in the determination of the quantum of care expected of him. He must judge and act with the same skill and caution as if he were a sober person. Compare Rollestone v. Cassirer, 3 Ga. App. 161 (59 S. E. 442), with Smith v. Railroad Co., 114 N. C. 728 (19 S. E. 863, 25 L. R. A. 287).

It is our opinion, however, that the court erred in not allowing the defendant to plead and prove the North Carolina statute by which it is made a misdemeanor for any person to be in charge of a locomotive engine while intoxicated. Its relevancy to the case inheres in the question as to the defendant’s negligence, rather than in the question as to the plaintiff’s contributory negligence. The principal negligent act upon which the plaintiff relies for a recovery is, that an engineer of the defendant company put the engine in motion without causing the bell to be rung. To show that he was one of the persons to whom this duty of ringing the bell was due, the plaintiff alleged that at the time of the injury he was an employee, conducting himself within the line of his duty.Some such allegation was necessary on his part; for, although the rule required the .ringing of the bell, and although a failure to give this warning would, in a general and abstract sense, be neglect, still, unless the plaintiff was oiie of those persons for whose benefit this duty was required, the omission would not be actionable negligence as to him. “The plaintiff who has established the fact that a defendant has been guilty of doing what he ought not to-have done, or of not doing what he ought to have done, has. something further to do, in order to show a cause of action in his behalf; he must show not only that he has directly and proximately suffered injury therefrom, but also that he is so related to the duty and the neglect thereof that he has a right to complain. Therefore, although an act be negligent, it does not afford a given plaintiff a cause of action, unless it is negligent as to Mm.” Platt v. So. Photo Material Co., ante, 164 (60 S. E. 1071). It seems, sufficiently clear to justify the simple statement, without elaboration, that if the plaintiff in this case were a trespasser, and. without any invitation from the company attempted to mount the engine, and the engineer, without actual or constructive knowledge of .his presence, moved- the engine and hurt him, he could, not recover, although the bell was not rung. By alleging that he was an employee in the line of his duty when he approached the engine and attempted to mount it, the plaintiff shows a right to-be upon the premises, a right to be where he was, a right to claim, the usual warning before the engine was moved. Now, the defendant was entitled to show anything which would negative the plaintiff’s right to be where he was and would place him in the attitude of a trespasser; and it must be remembered that an employee, when not in the line of or in the discharge of some duty of his employment, stands in relation to the master and to the master’s other servants just as any other member of the general public would. Snowball v. Seaboard Ry., 130 Ga. 85 (60 S. E. 189); S., F. & W. Ry. Co. v. Flannagan, 82 Ga. 580 (10), (14 Am. St. R. 183, 9 S. E. 471). Now, if the plaintiff was intoxicated at the time of his injury and was trying to get upon the locomotive to take charge of it as engineer, he was not there in an effort to perform a-duty, but to violate the law; for to take charge of an engine while intoxicated is a crime in North Carolina. The law implies an invitation from, the master to the servant to enter and remain upon and to move about on his premises, and to handle, use, and be in range of his fools, appliances, and machinery, so far as necessary to the performance of the servant’s duty (indeed, it is out of this implied invitation, and the common-law principles regulating the duties of a landowner to invited persons upon his premises, that the courts have largely constructed that portion of our jurisprudence which relates to the duties of the master as to the servant’s safety while he is engaged in the work); but, prima facie at least, it will not be presumed that a master whose occupation is lawful invites a servant to come upon his premises or to use his instrumentalities to violate the law. Rollestone v. Cassirer, supra. If the plaintiff was intoxicated, the very moment he became so, every rule, usage, instruction, direction, or command of the master, given him while he was sober, by which he was authorized to enter upon the locomotive and to take charge of it, became immediately abrogated, and remained so until he became sober, or until the master, with knowledge of his drunkenness, gave him new authority. If he was intoxicated and came upon the company’s premises fox the purpose of violating the law, he was no longer an employee in the line of his duty, but was a mere trespasser, or quasi trespasser, and-entitled to no higher degree of care than any other person who might have attempted to climb upon the engine to violate any other criminal statute would have been. The necessary result of the court’s action was to deprive the railway company of this line, of defense.

In the most excellent brief filed for the defendant in error, and in the concise and pointed argument of his counsel, the insistence is made that any error in the rejection of this statute and of the rules of the company upon the subject of intoxication is harmless, because the court admitted to the jury all the evidence offered upon the subject of the plaintiff’s intoxication, and their verdict was, in effect, a finding that he was sober. Not so; for the jury might have found that, although the plaintiff was intoxicated, he managed to conduct himself on the particular occasion just as a sober, prudent man would have done, and that, despite his drunkenness, he did no negligent act; and in this event, under the charge of the court, he would have been entitled to recover. The statute of North Carolina, however, does not forbid merely the intoxicated engineer, who is not capable of exercising ordinary care and diligence, from taking charge of a locomotive; but, in wider terms, makes it a misdemeanor for any intoxicated person to do so. Under this statute intoxication, not conduct, is the criterion..

Since there is to be a new trial, we may acid that the court committed no error in excluding rule 7, referred to above, but should have admitted rule 19. This last-named rule is especially relevant in connection with the North Carolina statute on the same subject. Judgment reversed.

ON MOTION FOR REHEARING.

Counsel in the petition for rehearing make the point that in the original decision we considered the case as if the negligence were solely that of the engineer who moved the engine. They insist that the negligence consisted in the fireman’s failure to ring the bell. The petition is so worded as to rely upon the negligence of both these employees. Of course, the thing that hurt the plaintiff was the fact that the engineer moved the engine suddenly and before the usual warning had been given. The failure to ring the bell could not have hurt the plaintiff, but it did tend to relieve his own action, in getting on the engine at that particular moment, from an imputation of contributory negligence. We concede that it is true, as counsel insist, that the rule alleged to have been violated reads, “The engine bell must be rung before the engine is moved,” and not “the engine must not be moved until the bell is rung,” but it is our opinion that the one thing, of necessity, connotes the other.

Counsel insist that the fireman who participated in the alleged negligence had actual knowledge of the plaintiff’s presence at the time of his injury, and that through the fireman’s actual knowledge the engineer had constructive knowledge, and that in light of this knowledge of his presence, actual to the one servant and constructive to the other, they owed him ordinary care, even though lie was a trespasser. In our opinion, it is seldom that constructive knowledge of a trespasser’s presence is sufficient to raise a duty toward him; generally actual knowledge is required; no such constructive knowledge as is here asserted is sufficient. Besides, even if ordinary care and diligence ever becomes the true standard of the measure of duty owed a trespasser, it is to be remembered that the same conduct may fulfil this standard as to a person in the situation of a trespasser, and not fulfil it as to a person differently situated. As to how the quantum of ordinary diligence varies in cases of trespassers, see DeVane v. A. B. & A. R. Co., ante, 136 (60 S. E. 1079); Charleston Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064). The controlling error in the trial under review was that the court, by striking the defendant’s plea, shut off all inquiry into the question of the relative rights and duties of the respective parties to the transaction, as viewed from the standpoint that the plaintiff came to the engine to violate the law, and was. therefore a trespasser. Rehearing denied.


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    872.
    SMITH & SIMPSON LUMBER COMPANY v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.

    The allegations of the petition showing a suit to recover damages for breach of a public duty, the justice’s court was without jurisdiction.
    Certiorari, from Pulton superior court — Judge Pendleton. November 5, 1907.
    Argued February 4,
    Decided September 28, 1908.
    The Smith & Simpson Lumber Company brought suit in a justice’s court against the Louisville and Nashville Railroad Company and the Atlantic Coast Lin,e Railroad Company, lessees operating-the Georgia Railroad, to recover the sum of $11, “for breach of contract.” The plaintiffs allege in their petition, that on February 4, 1907, they shipped over defendants’ line one car-load of lumber, for delivery at Atlanta, Georgia,, for which shipment the regular-charges of transportation were paid; that the car of lumber arrived in Atlanta, over the Georgia Railroad, on February 20, 1907, and that on said last date, petitioners directed' the Georgia Railroad to deliver the car of lumber to the Central of Georgia Railway, a-connecting line, for delivery to the consignee; that the delivery of" the car-load of lumber as directed by petitioners was not made to-the Central of Georgia Railway until March 9, 1907, a period of eleven days, excluding all free time allowed by law and the -railroad commission; that storage rule 13 of the Georgia Railroad. Commission requires that all such deliveries shall be made within twenty-four hours after directions for delivery have been made, and provides that upon a violation of said rule, the railroad company at fault shall pay the consignee one dollar per day per car for each day of the continued infraction of the rule; and it is alleged that the delay of the Georgia Railroad in delivering the car off lumber to the Central of Georgia Kailway constituted a breach by the defendants of their contract to transport and delivet within due time, for which breach of contract petitioners were damaged in the sum of $11, “the measure of damage provided by the rule-of the railroad commission and by law.” It is further alleged, that on March 12, 1907, a written demand was made upon the defendants for payment of the claim of damages, and, the damages not having been paid, the defendants were duly cited to appear before-the railroad commission of Georgia to answer said claim for damages, and that the railroad commission, after considering the case,, certified that sufficient cause had not been shown to relieve the-Georgia Kailroad Company from the penalty of said claim. The-defendants filed in the justice’s court a plea to the jurisdiction, on the ground that the suit was one to recover a penalty or liquidated, damages prescribed by the railroad commission for a breach of public duty. The justice sustained the plea and dismissed the. suit; whereupon the plaintiffs presented to the judge of the superior court a petition for certiorari. The writ was sanctioned, but, at the hearing, the certiorari was overruled; and on this judgment error is assigned.

      Moore & Pomeroy, W. W. Hood, for plaintiffs.

      Philip H. Alston, for defendants.
   Hill, C. J.

(After stating the facts.)

The plaintiffs denominate the suit one for damages for breach, of contract, hut the allegations clearly show that the real character-of the suit is that of an action for damages arising from a breach of a public duty imposed upon the defendants by a rule of the railroad commission, and to recover the amount of damages fixed by the commission for the violation of the rule. The only measure-of damages set out is that fixed by the railroad commission for the violation of its rule. It is an elementary principle that the nature of an action is to be determined by its allegations, and not by the nomenclature of the plaintiff. Following the decision of this court in the case of Pennington v. Douglas, Augusta & Gulf Railway Co., 3 Ga. App. 665 (60 S. E. 485), we think the suit is clearly one for damages resulting fyom a breach of a public duty by the defendants. See also A., K. & N. Railway Co. v. Shippen, 126 Ga. 784 (55 S. E. 1031). Justices’ courts in this State have no jurisdiction of this class of cases. Civil Code, §4068. It therefore follows that the judgment overruling the certiorari must be affirmed. S., F. & W. Railway Co. v. Snider, 1 Ga. App. 14 (57 S. E. 898); Western Union Tel. Co. v. Cooper, 2 Ga. App. 376 (58 S. E. 517); A., K. & N. Railway Co. v. Shippen, supra.

Judgment affirmed.


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    873.
    Zuber v. Central of Georgia Railway Company.
    Certiorari, from Pulton superior court — Judge Pendleton. November 5, 1907.
    Argued February 4,
    Decided September 28, 1908.

      Moore & Pomeroy, W. W. Hood, for plaintiff.

      Lamar Rucker, for defendant.
   Hill, C. J.

This case is controlled by the decision of this court, this day rendered, in the case of Smith & Simpson Lumber Company v. Louisville & Nashville Railroad Company, ante.

Judgment affirmed.


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    884.
    FAIN & STAMPS v. ENNIS.
    1. To give in charge the law of implied warranty is not reversible error, where a purchaser relies on an express warranty which is merely coextensive with the warranty which the law implies.
    2. In the absence of an express agreement otherwise, the law fixes the weight of sweet potatoes at 55 pounds to the bushel.
    3. Grounds of a motion for new trial which complain of errors in the admission or rejection of testimony, but fail to set out the objections, if any, that were urged in the court below, will not be considered.
    4. The minor errors in the admission or rejection of testimony do not warrant a reversal of the judgment sustaining the verdict of the jury.
    Complaint, from city court of Atlanta — Judge Calboun. September 27, 1907.
    Argued February 4,
    Decided September 28, 1908.
    Ennis sued Fain & Stamps for $229.13, balance alleged to be due for sweet potatoes which he had sold to them. The defendants pleaded that the plaintiff sold the potatoes under an express warranty that they were sound, yellow yam, sweet potatoes, but that they were as a matter of fact very unsound and of a mixed variety. The evidence at the trial was very conflicting. The defendants’ contention that the potatoes were not yellow yams was not borne ont by the evidence; bnt there was evidence from which the jury conld have inferred that they were not sound. The verdict was in favor of the plaintiff. The defendants’ motion for a new trial was overruled, and they except.

      Moore & Pomeroy, for plaintiff in error.

      E. D. Thomas, Anderson, Felder, Rountree & Wilson, contra.
   Russell, J.

(After stating the foregoing facts.)

The controlling question in this case arises upon exceptions to the charge of the trial judge. The defense was the breach of an express warranty that the potatoes were sound. The judge charged the jury as follows, on the subject of warranties: “Now the law presumes there is an implied warranty in the sale of all articles. There is an implied warranty that the goods sold are merchantable and reasonably suited to the use intended; and so that is an implied warranty that Ennis made when he sold Fain & Stamps those potatoes, that they were merchantable and reasonably suited to the use intended. So, if you believe from the evidence in the case that they were merchantable and reasonably suited for the use intended at the time Ennis sold to Fain & Stamps, then you will find a verdict in his favor for what you think he is entitled to recover. If, on the, contrary, you believe those goods were not reasonably suited to the use intended and not merchantable, and that they were rotten potatoes, and when he bought them that they were rotten potatoes, then you will find for the defendants, Fain & Stamps. While that implied warranty is on all goods sold, still that implied warranty does not prevail upon the natural decay of goods otherwise sound. . . If you believe those potatoes were sound at the time of sale, but still they had been treated in such a way and were in such a condition that they were not merchantable, not reasonably .suited to the use intended, then you will find that way on that contention.” At the conclusion of this charge, the attorney for the defendants stated to the court, “We also contend there was an express warranty in the original transaction, in which the plaintiff warranted that, they were sound and merchantable potatoes;” whereupon the court said: “It is the same thing I charged. If he did not make any warranty at all, the implied warranty would be that they are reasonably suited to the uses intended; and if he made an express contract, it would be that they were reasonably suited to the use intended. So it is the same thing.”

The express warranty on which the defendants relied was that the potatoes were sound. This warranty was merely coextensive with the warranty which the law implied, and did not confer any greater rights on the purchaser than the law conferred without it. If Ennis had sold sweet potatoes to the defendants without any express warranty at all, the law would have implied a warranty that the potatoes were merchantable and reasonably suited to the uses intended, and that he knew of no latent defects undisclosed. Civil Code, §3555. Sweet potatoes which are unsound are not merchantable and would not be reasonabty suited to the uses intended in the present case. In the last analysis, therefore, the law governing this transaction, while inaptly stated, was not incorrectly given in charge to the jury, though the judge labeled it implied warranty, instead of express warranty. The substance of the law is the guide for the jury; its nomenclature may be disregarded. The error of the judge was therefore harmless. The decisions to which we are cited are not in point. They relate to cases in which the express and the implied warranty are not coextensive. See, however, Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 363 (58 S. E. 222), and Hawley Furnace Co. v. Van Winkle Works, ante, 85 (60 S. E. 1008), which review and explain the rule intended to be laid down in Johnson v. Latimer, 71 Ga. 470. The defense that the potatoes were not yellow yams is not supported by any evidence. The undisputed evidence as tó this is that there were about 12,000 pounds of white or mixed potatoes in the two car-loads, and that the parties had adjusted this by a reduction of ten cents a bushel in the price.

The price at which, the potatoes were sold was sixty cents a bushel. In calculating the amount of their verdict, the jury allowed 55 pounds to a bushel. There is no evidence, in the record, of any agreement between the plaintiff and the defendant as to the number of pounds to a bushel, governing this transaction. One of the witnesses stated, in the course of his testimony; that it required 60 pounds of these potatoes to make a bushel. He admitted, however, that he did not weigh the potatoes or see them weighed; and, therefore, the statement was hearsajr and without probative value. Moultrie Lumber Co. v. Driver Lumber Co., 122 Ga. 26 (49 S. E. 729); Suttles v. Sewell, 117 Ga. 216 (43 S. E. 486); Equitable Mtge. Co. v. Watson, 119 Ga. 282 (46 S. E. 440). In any event, in tbe absence of any agreement otherwise, the law declares the weight of sweet potatoes to be 55 pounds to the bushel. Political Code, §1634.

Some of the grounds of the motion for new trial complain of errors in ruling on the admission or exclusion of evidence. ’The 4th, 8th, and ,11th grounds do not state wherein the testimony was, objectionable, or upon what grounds it was urged to the court below that the evidence should be admitted or excluded. We are consequently without authority to consider these objections. Maynard v. Interstate B. & L. Asso., 112 Ga. 443 (37 S. E. 741); Giles v. Vandiver, 91 Ga. 193 (17 S. E. 115).

The record discloses a few minor errors in the admission and rejection of evidence, but none of them is, in our judgment, sufficiently grave to warrant the grant of a new trial.

Judgment affirmed.


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    902.
    STATE OF GEORGIA, for use, etc., v. WYNNE.
    Every petition for certiorari in a civil ease must, at the time of its filing in the office of the clerk of the superior court, be accompanied either by the prescribed pauper affidavit or the statutory certiorari bond, approved by the judicial officer before whom the case was tried in the first instance. The fact of the approval of the bond must appear upon the papers themselves. No subsequent action approving or ratifying the bond will save the certiorari from dismissal.
    Certiorari, from Dodge superior court — -Judge Martin. November 27, 1907.
    Submitted February 17,
    Decided September 28, 1908.

      J. P. Highsmith, for plaintiff. W. M. Clements, for defendant.
   Powell, J.

The point before us may be understood from the following statement quoted from the bill of exceptions: “Defendant in the certiorari proceedings moved to dismiss the petition for certiorari, on the ground that the certiorari bond did not appear to have been approved by the presiding justice in the court-below; which motion the court overruled. The court required that the following be here inserted: ‘The court ruling and. stating, that: ns the bond for certiorari had been executed before the justice of' the peace who tried the case, and the said justice of the peace who-tried the case having officially attested the bond as shown on the' face thereof, by the words “Executed in the presence of,” and followed by the official signature of said justice of the peace, andwhieh bond, so attested, had been left of file with the justice of the peace and by said justice had been sent up to the superior-court as a part of the record in the case, that this was tantamount to an approval of the bond by the justice of the peace, without' the formal word “approved” being written on the bond and signed by the justice of the peace.’”

In civil cases an approved certiorari bond (unless pauper affidavit is filed) must accompany the petition for certiorari when it is lodged in the office of the clerk of the superior court for filing; otherwise the clerk has no power to issue the writ, and the proceeding becomes nugatorjc Civil Code, §4639; Dykes v. Twiggs County, 115 Ga. 698 (42 S. E. 36). By the statute itself, the-bond is to be filed, with the petition for certiorari, in the office of the clerk of the superior court, and not with the magistrate whose decision is under review. If, therefore, the explanatory statement made by the judge in the bill of exceptions, that the bond was left on file with the justice of the peace and by him sent-up as a part of the record, is to be taken as true, a dismissal of the certiorari was demanded. The record seems to indicate,, however, that the bond was filed with the petition; and in cases-of co'nflict between the bill of exceptions and the record, as to-matters which form a part of the record, the latter controls. Adams v. Holland, 101 Ga. 45 (28 S. E. 434); Dismuke v. Trammell, 64 Ga. 428. The bond as it appears in the record is not approved; it is merely attested. Attestation and approval are entirely different things in law and in fact. Any attesting officer may legally witness such a bond; only the officer whose decision is to be reviewed has authority to approve it. Hester v. Keller, 74 Ga. 369. The bond, being unapproved at the date of its filing with the petition, was insufficient to authorize the clerk to issue the writ, and no subsequent approval, either express or implied,, could cure the deficiency. Dykes v. Twiggs County, supra. In criminal certiorari cases the rule is different. Brown v. State, 124 Ga. 411 (52 S. E. 745); Watson v. State, 85 Ga. 237 (11 S. E. 610). In the Brown case (on page 415 of the opinion) the Chief Justice points out that the practice in civil and criminal cases'differs in this respect. Whether we look to the record or to the. recitals of the hill of exceptions, the court erred .in not dismissing: the certiorari. Judgment reversed.


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    956.
    Thomason et al. v. Keeney.
    Action on bond, from city court of Atlanta- — Judge Reid. January 6, 1908.
    Argued February 24,
    Decided September 28, 1908.

      Dodd & Dodd, for plaintiffs in error.

      E. M. & G. F. Mitchell, contra.
   Hill, C. J.

1. A petition in a suit on a contractor’s bond executed as a. part of the contract and for the faithful performance thereof, which sets, forth in full the contract and bond, alleges specific breaches of the contract, resulting in damage to the plaintiff, Igives the items of damages, claimed, and contains allegations that the plaintiff obligee fully complied with all the terms and conditions of the bond, is good, as against, a general demurrer.

2. Where the facts recited in the declaration show performance on the part of the plaintiff, as obligee in a bond, of all its terms and conditions, a. general allegation of performance is unnecessary. 1 Chit. Pl. 535; Gould, PI. § 13.

3. A requirement in a contractor’s bond that the obligee shall give immediate notice to the surety of any default by the contractor is equivalent to a requirement of reasonable notice; and what is reasonable notice is. in each case a question of fact for the jury. Killian v. Georgia R. Co., 97 Ga. 728 (25 S. E. 384) ; Atlantic Compress Co. v. Young, 118 Ga. 868 (45 S. E. 677) ; Fidelity Co. v. Courtney, 186 U. S. 342 (22 Sup. Ct. 833, 46 L. ed. 1193) ; Fidelity Co. v. Robertson, 136 Ala. 379 (34 So. 933) ; 21 Cyc. 1733, 1734, and cit.

4. Where a contractor’s bond provides that “if the principals shall voluntarily abandon said contract, or be lawfully compelled by the obligee to cease operations thereunder, by-reason of their non-performance of any of its terms or conditions, then" the surety shall have the right, in its option, to assume the said contract and to sublet or complete the same,” a reasonable time should, be given to the surety, after the default of the contractor, in which to exercise' such option. What would be a reasonable time is a question to be determined by the jury, under the facts and circumstances of each particular ease.

Judgment affirmed.


text:
    960.
    MAYOR AND COUNCIL OF THE CITY OF BRUNSWICK v. ÆTNA INDEMNITY COMPANY.
    1. Erima facie tlie amount of money named in a bond conditioned for the faithful performance of the obligations of a contract is a penalty, and not liquidated damages; and a recovery in an action upon the bond will be limited to the amount of the actual damage sustained and proved.
    2. Where, to secure the performance of the terms of a contract, there is a stipulation for the payment of a fixed, unvarying sum, upon the breach of any of several promises of varying degrees of importance, especially where the damages for the breach of some of them would be easily ascertainable, the sum named will be construed to be a penalty.
    3. The designation of a conventional amount to be paid upon the breach of a contract will not be held to liquidate the damages, where it is apparent that it was not the intention of the parties that the obligor could escape further liability by paying that sum.
    Action on bond, from city court of Brunswick — Judge Gale. December 30, 1907.
    Argued February 25,
    Decided September 28, 1908.
    The Southern Electric Railway, Light & Water Companyj with the view of constructing and operating a number of public, utilities, including gas works, an electric-light plant, and an electric street-railway, at Brunswick, Georgia, began negotiations through one Neff, its agent, with the mayor and council of that city, for certain rights, permits, and franchises, including the use of the public streets, the fee to which was vested in the city. The city council, pursuant to the negotiations, passed an ordinance in which the desired franchises were granted, the conditions under which they were to be enjoyed were stipulated, and a number of covenants were imposed upon the grantees. Among other things, the grantees of the franchises were not to cut or molest any shade trees without special consent, were not to lay tracks except in certain portions of the street, were not to charge any passenger more than five cents for any continuous passage in any cars they might operate, were to grant transfers, were to permit policemen to ride free, were to obey all ordinances regulating the speed of cars, were to pay a proportionate part of street paving in certain cases, were to pay, as a franchise fee, a certain annual percentage of the gross earnings, were not to charge beyond a certain price for illuminating gas and electricity, were to supply a certain amount of water free to the city for the purpose of flushing sewers, were to buy an ex.isting gas and water plant if required by the city to do so, were to hold the city harmless from all damages by reason of injuries do person or property, caused by the laying of tracks, the making of excavations, etc., and were to pay any judgment which might be rendered against the city on any of these accounts, and were do pay any damage that might be done to public sewers, water .mains, etc. There is no distinct* covenant that the grantee shall ■exercise the franchises • granted, but it is provided, in section 8, that “the rights, powers, franchises, and privileges herein granted ■shall cease, determine, and be forever void, if the said Neif, his associates, successors, and assigns, fail to begin in good faith the construction of said street-railway system within four months from the ■date of the passage of this ordinance, and unless said Neif, his associates and assigns, shall, twelve months from such date, have constructed and in operation at least four miles of such electric street-railway system within the limits of said city, and the remainder, if any, within thirty-six months after such date.” Ample provision was made for the forfeiture of the different franchises by non-user or by failing to maintain the utilities contemplated. The •ordinance was conditioned that the rights and privileges granted should not pass to the grantees until they signified their acceptance in writing of the terms of the ordinance, in which event the ordinance should have not only the force of law, but also the effect of .a contract. It was further provided that within four months thereafter the grantees should file with the mayor and council “a bond in the penal sum of $10,000, assuring due and faithful performance of each and every covenant assumed to be performed by the .grantee herein.” The Southern Electric Railway, Light & Water Company filed its acceptance and gave the bond in the sum required, with the iEtná Indemnity Company as surety. The condition of the bond is “that whereas the mayor and council of the ■city of Brunswick, Georgia, on August 10, 1905, passed and adopted .an ordinance entitled ‘an ordinance to grant unto J. Ii. Neff, his associates, successors, and assigns, a right and franchise for the ■operation of a street-railway system, electric light, gas, and water plants in the city of Brunswick, Georgia, and for other purposes. and whereas said J. H. Neff has assigned and transferred to the •Southern Electric, Gas & Water Company, a corporation under the laws of the State of Maine, all his rights and privileges and franchises tinder said ordinance, a copy of which ordinance is attached hereto as a part hereof; now, therefore, if said the Southern Electric, Gas & Water Company, a corporation under the laws of the State of Maine, its successors and assigns, shall duly and faithfully perform each and every covenant assumed to be performed by the grantee in the aforesaid ordinance (except, however, that the aforesaid the Southern Electric, Gas & Water Company, its successors and assigns, shall be excused and relieved from the performance of any covenant or duty assumed under the terms of said franchises by the grantee,-his associates, successors, and assigns, where performance is prevented by pending litigation or any order, decree, or judgment of a court of competent jurisdiction), then this obligation to be void, otherwise to remain in full force and effect.”
    The mayor and council brought the present action against the" principal and surety in the bond, reciting the adoption of the ordinance, its acceptance by the Southern Electric, Gas & Water Company, and the giving of the bond in the terms mentioned above; also alleging that “among other things assumed to be done by the said J. H. Neff, his associates, successors, and assigns, in and under said ordinance and contract, and which became by his accejjtance of such ordinance a covenant and duty to be performed by him, his associates, successors, and assigns, as set out in said ordinance, was that covenant, as stated in section 8 of said ordinance, that said J. IT. Neff, his associates, successors and assigns, should begin in good faith the construction of said street-railway system, provided for in said ordinance, within four months from the date,of the passage of the ordinance, and that said Neff, his associates, successors, and assigns, should, twelve months from such date, have constructed and in operation at least four miles of such electric street-railway system within the limits of said city of Brunswick, and the remainder, if any, within thirty-six months, after such^date.” It is further alleged that without excuse, the grantees of vfche franchise have wholly neglected to build any and all of the street-railway. ' Another allegation of the petition is the following: “At the time of the giving of said bond, no actual damages were in contemplation of the parties thereto in case of any default on the part of said the Southern Electric, Gas & Water Company in the performance of any of the covenants or conditions in said ordinance expressed. "In fact, the actual damages sustained by petitioner by reason of the failure of said principal in said bond to carry out the terms of said ordinance are necessarily speculative and uncertain, if not absolutely incapable of proof, and such was known to be the case by the parties to the transaction when the bond was tendered and accepted, and therefore petitioner is entitled to recover from said defendants the full amount of said bond, to wit, ten thousand dollars, as stipulated damages for the breach thereof, with interest on said sum from the date of such- breach, and from the failure of said principal to perform the first covenant which he was bound to perform under said ordinance, to wit,- that of beginning in good faith the construction of said street-railway system in said city within four months after the passage of the ordinance.” It is further alleged that, without excuse, the grantees of the franchise have wholly neglected to build any and all of the street-railway.
    The iEtna Indemnity Company, the surety, filed a general demurrer, which the court sustained; and the city excepts.

      R. D. Meader, Francis H. Harris, for plaintiff.

      Carl F. Dodd, Dodd & Dodd, for defendant.
   Powell, J.

(After stating the facts.)

In our opinion, construing the ordinance as a whole, it did not contain any covenant on the part of the grantees to exercise the street-railway franchise, but merely gave them an option to enjoy the privileges granted, on condition that the work should progress to the extent indicated within the time limited. However, since the stress of the argument — and the case was well and ably argued here — fell upon the points as to whether the sum expressed in the bond -is liquidated damages or a penalty, and since we have come to the conclusion that upon the solution of this question the result will be the same, we have decided to rest our decision on this, rather than on the ground that the ordinance and contract between the parties did not create the covenant claimed.

It is conceded that the city has not sustained any actual damages of such nature as to be susceptible of proof and recovery in a court of law. The plaintiff rests its case, and of logical necessity must rest it, squarely upon the proposition that the sum specified in the bond is recoverable as liquidated damages, — as a sum estimated and fixed in advance by the parties, as representing fair and jnst compensation to the obligee for those damages which naturally would be sustained by a breach of the contract, but which would probably be so speculative, uncertain, remote, or difficult of calculation as to render an ordinary action inadequate or unavailable. The contention of the defendant, of course, is that the $10,000 is merely a penalty; that this sum is named not to liquidate any damages, but to represent the maximum amount for which the surety would be bound toward the indemnification of the obligee against those actually legally computable damages it might sustain from any breach of the contract.

We note a marked custom among the judges who have had occasion to deal with the question as to whether a sum so named is a penalty or liquidated damages, to begin the discussion with some statement to the effect that the construction of such contracts presents a question of most vexing and perplexing nature; and in conformity to the custom we may as well make the same remark. However, looking to the nature of the whole contract as" contained in the bond and the ordinance, and keeping in mind a few well-established rules of construction, we can not believe that it is seriously doubtful but that the amount specified in this contract is purely and solely the ordinary penalty usually found in bonds with conditions annexed. In the first place, section 21 of the ordinance, in requiring the bond, prescribes that it shall be im the “penal sum” of $10,000. This is evidentiary, though not controlling on the question. Sanders v. Carter, 91 Ga. 450 (17 S. E. 345).

Then, under the terms of the bond, the makers stand bound, in the sum named unless the principal therein “shall duly and faithfully perform each and every covenant assumed to be performed by the grantee in the aforesaid ordinance.” The rule is. well recognized that a stipulation for the payment of a definite, unvarying sum, on the breach of any of several promises of varying' degrees of importance, especially where the damages for the breach of some of them would be easily ascertainable, is to be construed as a penalty. Swift v. Crow, 17 Ga. 609; Wilhelm v. Eaves, 21 Or. 194 (27 Pac. 1053, 17 L. R. A. 297); Graham v. Bickham, 4 Dall. 143 (1 L. ed. 778, 1 Am. Dec. 328); Foley v. McKeegan, 4 Iowa 1 (66 Am. Dec. 107) ; Long v. Towl, 42 Mo. 545 (97 Am. Dec. 355). To quote from Bayley, J., in the case of Davis v. Penton, 6 Barn. & Cress. (13 E. C. L. R.) 216, “Where the sum which is to be a security for the performance of an agreement to do several acts will, in cases of breaches of the agreement, be, in some instances, too large and in others too small a compensation for the injury thereby occasioned, that sum is to be considered a penalty.” To the same effect are the oft-cited English cases of Kemble v. Farren, 6 Bing. 141 (3 M. & P. 425, 7 L. J. C. P. 258, 31 Rev. Rep. 366), and Horner v. Flintoff, 9 M. & W. 678. Looking to the writing before us, is it reasonable to presume that the-parties intended that the obligors of the bond were to be liable-for ten thousand' dollars if the principal therein cut a shade-tree-without permission, or refused to let a policeman ride free, or failed on some occasion to furnish the requisite amount of water to flush the sewers? And yet each and all of these are covenants assumed by the acceptance of the ordinance, and a failure as to-any of them would as completely breach the bond as a failure-to build and operate the street-railway within the time required.

Furthermore, where the stipulated sum which, by the agreement, is to be paid upon a breach of the contract is held to be a. liquidation of the damages and not a penalty, it becomes the maximum, as well as the minimum, sum that can be collected, no matter how greatly, certainly, and definitely the obligee has been damaged by the breach or breaches. Foote v. Maloney, 115 Ga. 985 (42 S. E. 413); Swift v. Powell, 44 Ga. 123. For example, under the present contract the grantees of the franchise covenanted to-indemnify the city against such claims for. damages as might, from time to time arise through acts of omission or commission in the exercise of the franchises. Now, if the amount to be recovered for each and every breach of the contract has been liquidated by the stipulation of the sum named, the obligors might be held liable for this amount for some minor violation, and thereafter could with impunity commit persistent, flagrant, and heavily damaging breaches without liability; in other words; could pay the ten thousand dollars and thereafter break the contract at will. They might leave excavations in the streets unguarded until the recoveries against the city by injured persons amounted to five times ten thousand dollars, might refuse to pay to the city the promised percentage of its gross earnings, might injure and damage the city’s existing sewers and water mains at will, and yet, having paid tbe sum stipulated and liquidated as covering each and every breach, they could suffer no further liability. This reductio ad absurdum finds a parallel in the case of Wilkinson v. Colley, 164 Pa. 35 (30 Atl. 286, 26 L. R. A. 115). The designation of a conventional amount will not be held to liquidate the damages, where it is apparent that it was not the intention of the parties that the obligor could escape further liability by paying that sum.

The foregoing canons of construction seem so clearly to control the present case as to render unnecessary any allusion to the doctrine that in cases of doubt the courts favor the construction which holds the stipulated sum to be a penalty, and limits the recovery to the amount of damage actually shown, rather than a liquidation of the damages. The court did not err in sustaining the demurrer.

Judgment affirmed.


text:
    1010.
    COKER et al., executors, v. OLIVER.
    1. Where an attorney at law has taken a claim for suit and collection on the terms that he is to have a certain percentage of the recovery for his services, and after judgment the client, without the consent of the attorney, takes from the debtor property in full settlement of the judgment, he becomes liable to the attorney for the full amount of the fee.
    2. In a suit to recover the fee from the client, evidence as to the real value of the property taken in payment of the judgment is immaterial.
    3. Communications to a person who is an attorney at law are not confidential and privileged from proof against the person making them, unless made to the attorney in his capacity as such. Mere casual personal conversations with the attorney are not privileged.
    4. The evidence authorized the judgment rendered.
    Complaint, from city court of Atlanta — Judge Reid. January 6, 1908.
    Argued March 13,
    Decided September 28, 1908.

      John L. Hopkins & Sons, for plaintiffs in error.

      C. D. Hill, D. K. Johnston, contra.
   Russell, J.

In 1897 E. M. Coker employed Oliver, as an attorney, to bring suit in Alabama against one Eeed, on two promissory notes. Oliver obtained judgment on -the notes in 1897. Numerous letters passed between Oliver and Coker with reference to the claim; and, while Oliver did not collect anything upon the judgment it appears that this was perhaps due to the fact that Eeed had no property standing in his own name upon which a fi.. fa. could be levied. In 1904 Coker purchased $15,000 in stock of a pecan corporation which Eeed was promoting, and paid for it with the judgment Oliver had obtained against Eeed, and $5,000 in cash. Oliver’s petition in the present ease alleged, that he sued the Eeed notes to judgment and obtained judgment for $5,450 principal, and $893.80 interest to the date of judgment; that Coker agreed to pay him ten per cent, of the amount of the judgment, principal and interest, when collected, for his services, and that about July 29, 1904, Coker settled the judgment directly with the defendant for the full face amount. Coker died before the case was reached for trial, and his executors, the present plaintiffs in error, were made parties in his stead. The gist of the answer is that Coker did not make such settlement of the judgment as would entitle Oliver to any fee. It is averred not only that Coker never collected any money from Eeed, but that he lost practically all of the $5,000 in cash that he put in the pecan-grove scheme. The defendant also pleaded the statute of limitations. Coker having died, and the plaintiff being therefore incompetent to testify as to his alleged contract of employment, one of the .questions raised by the record is whether the court erred in permitting one B. H. Hill, an attorney at law, to testify in reference to certain statements alleged to have been made to him by Coker. The objection urged to Mr. Hill’s testimony was that his information was derived from the relationship of attorney and client. The plaintiffs in error next insist that the court erred in excluding testimony tending to show that property or stock which Mr. Coker took in settlement of the judgment which Oliver had obtained was of no value at the time that it was obtained by Coker, and of no value at the time of the trial. The plaintiffs in error, having also moved for a new trial upon the ground of newly discovered evidence, contend that the court erred in not sustaining that ground of the motion. We shall consider these several grounds in their order.

The witness B. H. Hill was permitted to testify as follows: “I asked Coker if he had employed Oliver, and Coker said, ‘Yes, he took the case on the same terms that you declined,’ which was a contingent fee of ten per cent.” The same witness was permitted to testify also, “He (Coker) stated to me that Mr. Oliver accepted the case for collection on the terms I declined, — ten per cent, of whatever was collected, — on contingent fee." We find no error-in the admission of this testimony. The evidence- does not show that Mr. Hill, at the time of the conversation, was Mr. Coker’sattorney in any sense, or that he at that time intended to employ him as an attorney, or that the conversation was had with Mr. Hill. as an attorney, in contemplation of his employment. It is plain,, from the testimony, that the information that Mr. Hill obtained, was voluntarily given by Mr. Coker in a casual, friendly conversation. It can not be taken in any sense as a privileged communication, or as one which should be excluded upon the well-settled ground of sound public policy.

The court did not err in excluding the testimony sought to be elicited from the witness F. M. Coker Jr. The real value of the stock which Mr. Coker took in exchange for the judgment-diver had obtained in his behalf was irrelevant to the present issue. Oliver was not consulted, and had not consented to the exchange. Mr. Coker had the fight to deal with the debt due him by Eeed as he saw proper, provided his action did not defeat-Oliver’s right to collect and retain ten per cent, of the principal and interest of the judgment for his services as an attorney at-law. Hnless some act or omission on the part of his attorney,, in connection with the transfer, contributed to his loss, the attorney’s right would not in any wise be affected by the fact that the client preferred to take property instead of money, in settlement, of the fi. fa. the attorney had procured. Having placed the claim in the attorney’s hands for collection, Mr. Coker could not defeat-this right of the attorney; and if he saw proper to make a settlement with his debtor for less than the face value of the claim,, without the -attorney’s consent, the attorney would still be entitled to claim and to hold his client liable for ten per cent, of the face value of the judgment. If it would be relevant to show thatCoker had made a bad trade in disposing of the judgment in which the attorney had an interest to the extent of ten per cent, of the amount collected, for his services rendered, and that by reason of that fact the amount the attorney should receive must, be diminished, it would be equally relevant to show that in another instance the client, being a good trader, had gotten more for the-judgment than it was really worth, and, therefore, that the attorney was entitled to ten per cent, on a greater sum than the face of the judgment. Of course Coker could have shown that he had never collected anything, and in that event no liability whatever would have attached to him, under the evidence that the fee was dependent upon collection. But a client who has placed a claim in the-, hands of an attorney for collection, and who makes a settlement: of any kind of such claim with his debtor, without consulting his-attorney and obtaining his consent to the settlement, will be presumed to have collected the claim in full, or to have received such, a- settlement as was as satisfactory to him as payment in full. It: was, therefore, immaterial what was the value of the stock which Mr. Coker took in exchange for his judgment. He did not consult his attorney, Mr. Oliver. It is further to be presumed (as it. is not to be inferred that he would expect to diminish Mr. Oliver’s, compensation without his knowledge or consent) that Coker at that time considered the stock an equivalent for the full value of his judgment. Of course, if Coker had made no settlement and Oliver had collected nothing, Oliver would haye been entitled to no fee, contingent or otherwise; but just as it was not in the power of Oliver, without Coker’s consent, to make a settlement with Heed by which Coker would receive less than his ninety per cent, of the face value of his judgment,'so it was not within the power-of Coker, after having entrusted his claim to Oliver, and after Oliver, in pursuance of the contract, had obtained the judgment, to settle the claim in such a way that Oliver would receive less than his ten per cent, without his consent. Where the relation of attorney and client exists and the sole compensation of the attorney is to be a certain percentage of the claim or demand he is employed to collect, his right to that proportion of the entire demand: or claim is -as absolute as his client’s right to the amount from; which that per cent, is to be deducted. Of course, it is within the-power of the client, upon the failure of the attorney to perform services, or for negligence to. perform, to withdraw from the contract, which has already been broken by the attorney by non-per- • formance of his duties; but even in that event the attorney should' be notified that he has been discharged.

The newly discovered evidence comes within the rule of impeaching testimony, and, therefore, afforded no ground for new-trial. While it is insisted that it was not sought to impeach,, still-. this is the only effect of the testimony. Mr. Hill testified that he was not the attorney of Mr. Coker at the time of the conversation related by him. It was sought to show hy the letter that he was at that time Mr. Coker’s attorney. Furthermore, as the letter was all along in the possession of the defendant, we think that the court very properly held that this testimony could not be classified as such newly discovered evidence as requires the grant of a new trial.

We think that the evidence fully authorized the finding of the trial judge, to whom the caáe was submitted without the intervention of a jury. That Mr. Coker employed Mr. Oliver as an attorney, to collect the Eeed notes, under some kind of contract, is shown by the fact that Oliver, in the State of Alabama, had the notes .and obtained judgment upon them for Coker. Coker having died, Oliver’s mouth was closed; and he was prevented from testifying as to the nature of the contract or any communication which had passed between Coker and himself. The evidence of Mr. Hill was to the effect that at one time Mr. Coker had tried to get him to collect the notes upon a contingent fee of ten per cent, of the amount collected, but that he declined to make such a contract. Mr. Hill testified, however, that subsequently to his declining to take the notes, in the course of a casual conversation with Mr. Coker, the latter told him that he had employed Mr. Oliver to collect the notes upon the same terms that he, Hill, had declined. It appears that Eeed had no property standing in his own name, and that for that reason no immediate effort was made by Oliver to collect the judgment by levy, though the matter was the subject of continued correspondence between Coker and Oliver. At length, as appears from the correspondence, Oliver was about to have certain property levied upon as the property of Eeed, the defendant in fi. fa. Perhaps, due to this fact, Coker was able to effect a settlement with Eeed. At any rate, without the knowledge or consent of Oliver, Mr. Coker effected a settlement with Eeed, hy which he obtained $15,000 in stock of a pecan-grove corporation, in return for $5,000 in cash and the cancellation of his judgment obtained against Eeed. Presumably, Mr. Coker was of the opinion at that time that the stock in the corporation he was purchasing was of some value, fbr he invested $5,000 in cash in the enterprise. If the stock was of any value approaching par, he received full value for the judgment; because, in addition to the stock which he received for cash, he obtained $10,000 of additional stock in return for a judgment amounting to but little over $6,000. But whether it was a good trade or a bad trade, it was his settlement of the claim which had been placed in-the hands of the attorney for collection, — upon which the attorney, so far as the evidence discloses, had been as reasonably diligent as the circumstances would warrant, — and a settlement with reference to which the attorney was not consulted. The client could not be permitted, without clearer proof that the attorney had failed to discharge his duty, either to break or alter the contract previously made.

Judgment affirmed.

Hill, O. J., disqualified.