author: Bele, J.

text:
    14732.
    HARGROVE v. ARMOUR FERTILIZER WORKS.
    1. A mere general agency to conduct the business of farming will not include the power to execute on behalf of the principal a security deed upon a part of the farm to secure a renewal of past-due notes given by the agent for fertilizers used in the farming operations, nor will a written power of attorney couched in terms general and uncertain, though executed under seal, confer authority to execute on behalf of the principal a sealed note. “The principal cannot be thus bound without specific authority accompanying the execution of the contract.” Applying this ruling, the verdict found for the plaintiff on the first count was without evidence to support it.
    2. If duties and responsibilities involving the management and control of a business are imposed by a person upon another, the latter will be presumed to have authority to represent his employer in any matter within the scope of the business. Where such a business is that of farming, it may be held as a matter of law that the purchase of fertilizers on account, for use in the farming operations, is a matter within the scope of the business. Under this ruling the court did not err in giving the charge referred to in the second division of the opinion.

      (а) Apparently a verdict upon the second count, a quantum valebat, would have been authorized.
    (б) Eor the reasons stated in the first headnote and in the corresponding division of the opinion, the court erred in overruling the defendant’s motion for a new trial.
    Decided December 10, 1923.
    Complaint; from city court of Americus—Judge Harper. May 18, 1923.

      B. B. Jones, for plaintiff in error. D. II. Bedfearn, contra.
   Bele, J.

Armour Fertilizer Works sued S. J. Hargrove upon a promissory note, and has shown in his petition that the note was secured by a deed to certain described lands in Terrell county. There are two counts in the petition, the second being upon a quantum valebat. The jury returned a general verdict for the plaintiff upon the first count, and the court entered a general judgment for the amount sued for, with a special lien against the land. A motion for a new trial was filed by the defendant, which was refused, and he excepted.

The motion for a new trial contains- a number of special grounds, but our disposition of the case upon the general grounds will be controlling of all the special grounds save one assigning error upon an excerpt from the charge of the court.

The note sued on was signed, “S. J. Hargrove, by his attorney in fact, H. H. Hargrove.” The security deed was signed in like manner. Each instrument was under seal. The following power of attorney was offered in evidence by the plaintiff and admitted: “Georgia, Terrell county.

“Know all men by these presents that S. J. Hargrove has fully constituted, made, and appointed, and by these presents does make, constitute, and appoint H. H. Hargrove of Lee county, Georgia, my true and lawful attorney in fact, for me and in my name, place, and stead, to H. H. Hargrove giving and granting unto the said attorney full and complete power and authority in and about the ^premises, and generally to do and perform all and every act and acts, thing and things, device and devices, in the law whatsoever needful and necessary to be [done] in and about the premises, and for me and in my name to do, execute, and perform as largely and amply, to all intents and purposes, as I might do or could do were I personally present; hereby ratifying and confirming all that my said attorney or substitute shall lawfully do by virtue hereof. In witness whereof I have hereunto set my hand and seal, this the 11th day of December, 1917.

“(Signed) S. J. Hargrove (Seal).

“Signed, sealed and delivered in the presence of:

“Witnesses: M. J. Yeomans, Mrs. B. C. Perry, N. P. Terrell county, Georgia.”

It will be noticed that the power of attorney was executed under seal. It is contended by the plaintiff in error that this instrument did not confer any power to execute the note or the deed. The contention refers both to the subject-matter of the instruments and to the fact that they were executed purportedly under seal. The defendant in error replies by saying that the so-called power of attorney constitutes the grantee therein a general agent; that the power is not void, but merely ambiguous; that the ambiguity was explained by parol, and that the instrument, being itself under seal, was a sufficient authority for the execution of the sealed note and the security deed upon which the plaintiff’s verdict and judgment rest.

We concur most heartily in the suggestion that the instrument is both general and ambiguous. It is so replete with generality that the quality ceases to be a virtue. It lapses by excess into the vice of uncertainty and indefiniteness. Assuming, however, that the instrument is not void, but merely ambiguous, let us examine it in the light of the evidence admitted for the purpose of explaining the ambiguity. S. J. Hargrove, the defendant, about the time of the execution of the so-called power of attorney, was leaving for South America, to be gone for an indefinite period of time. He owned a farm in Lee county and one in Terrell county. He had returned, however, at the time of the trial, and he testified in his own behalf. His brother, H. H. Hargrove, was introduced as a witness for the plaintiff. It was inferable from the evidence of the two that the defendant desired his brother, Ii. II. Hargrove, to manage and operate the farms as a general agent during the defendant’s absence, though the defendant himself sought to show that the Lee-county farm was to be operated under a partnership relation between them. H. H. Hargrove assumed the control of both farms, operating the Lee-county farm in the name of his brother and leasing the Terrell-county farm to others. In 1919, as the representative of the defendant, he bought and used on the Lee-county farm several tons of fertilizer, but was unable to pay for it in full during the year, and renewed the balance of the indebtedness by a note. In 1920 other fertilizers were purchased for the same purpose, all used on the Lee-county farm, and settled for with notes due in the fall. Suit being threatened against S. J. Hargrove, all of the indebtedness was combined in the note sued on, to secure which the security deed was simultaneously executed.

Let us say, then, that the subject-matter of the power of attorney was the control and management of the farms, the one in Lee county and the other in Terrell. So considered, the instrument in our judgment is too general to warrant the execution of the security deed. This for two reasons. First: A power granted in general terms to another to conduct the business of farming will not include authority to sell the farm property, thus destroying both the business and the purpose of the agency. Clafin v. Continental Jersey Works, 85 Ga. 27 (3) (11 S. E. 721). The deed to secure debt was pregnant with such result. “A conveyance of real estate by a debtor to a creditor, under section 1969 of the code [Civil Code (1910), § 3306], is an alienation of the property, operates to pass the title to the premises conveyed, and is not a mere incumbrance thereon.” Phœnix Insurance Co. v. Asberry, 95 Ga. 792 (22 S. E. 717). Where land is conveyed under this code-section, the right of homestead is lost to the debtor and his family. Such a deed will support a recovery in ejectment. A title so acquired after four months is not divested by bankruptcy. Phœnix Insurance Co. v. Asberry, supra. If the debt is not paid at maturity, the grantee .is entitled to enter into the possession of the property and collect the rents and profits until a sufficiency has been received to satisfy the debt. Polhill v. Brown, 84 Ga. 338 (9) (10 S. E. 921); Gunter v. Smith, 113 Ga. 18 (3) (38 S. E. 374); Marshall v. Pierce, 136 Ga. 543 (1) (71 S. E. 893). The results of’such a conveyance by an agent or one holding a power of attorney- may be actually to surrender the possession of the property. An agent may not thus, by indirection “delegate his authority [to operate the farms] to another, unless specially empowered to do so.” Civil Code (1910), § 3571. An agent having only general powers cannot waive the right of homestead. Winkles v. Simpson Grocery Co., 138 Ga. 482 (1) (75 S. E. 640). And yet a security deed does this and more. We think that a power such as the agent or attorney in fact here undertook to exercise must, like the power to borrow money, be conferred in express terms, or be necessarily and inevitably inferred from the very nature of the agency actually created. Exchange Bank v. Thrower, 118 Ga. 433 (1) (45 S. E. 316).

A second reason why we think that the power to execute the deed was not conferred is the fact that it was executed under seal. While it is true that the power of attorney was under seal also, this fact alone was not enough. “The principal cannot be thus bound without specific authority accompanying the execution of the contract.” (Italics ours.) United Leather Co. v. Proudfil, 151 Ga. 403 (1), 405 (107 S. E. 327); Born v. Simmons, 111 Ga. 869 (36 S. E. 956); White v. Young, 122 Ga. 830 (1) (51 S. E. 28). A general, loose, uncertain and ambiguous instrument like the one here relied upon as a power of attorney cannot be construed into a grant of the power to execute a sealed instrument. Such authority must be express as to a particular transaction or class.

The defendant in error has suggested that it makes no difference whether the power of attorney authorized the execution of the deed to secure debt,—that the verdict and judgment are sufficiently supported by the note alone. This would be true but for the fact that what we have said with reference to the execution of the deed as a sealed instrument applies equally to the note. “The general words in the power must be construed with reference to the specified objects to be accomplished and limited by the recitals made in regard thereto.” Born v. Simmons, supra. “A formal power, of attorney, executed with deliberation, is subject to a strict construction. General terms in it are restricted to consistency with the controlling purpose, and will not extend the authority so as to add new and distinct powers different from the special powers expressly delegated.” White v. Young, supra. It would not do to apply the rules just quoted too rigidly to the instrument now under consideration, lest it be construed so as to have' no meaning or effect whatsoever. Indeed, we believe that with these rules applied, the power attempted to be conferred approaches zero as a limit. There is no grant of a particular power, with reference to which the general words may be considered. An instrument granting a power of attorney must be reasonably certain, or it will be inoperative. 21 R. C. L. 870, 52.

In view of what we have said, it is hardly necessary to add that in our opinion the verdict on the first count’was unauthorized.

We think the power of attorney, however, was admissible in evidence, but only as a circumstance, though decidedly a material one, in corroboration of the contention of the defendant in error that H. H. Hargrove was the-general agent of the defendant for the operation of the farms, and that all the evidence, as stated above, was sufficient to authorize an inference of such agency. The present inquiry does not involve the question of whether such an inference was demanded.

“If a person imposes upon another the duties and responsibilities involving the management and control of a business, such person will be presumed to have authority to represent his employer in any matter within the scope of the business.” Pickens Co. v. Thomas, 152 Ga. 648 (1), 650 (111 S. E. 27, 21 A. L. R. 1438). The purchase of fertilizers on account, to be used in the business of farming, may be said as a matter of law to be a transaction within the scope of the business. The court, therefore, in charging the jury that if they found such agency to exist, the plaintiff might recover, if the jury should find that the purchaser of fertilizers was “legitimately” within the scope of the agency, did not err for the reason assigned, namely, that before the plaintiff could recover, the jury should determine that such a transaction was “necessary” to the execution of the powers conferred. Apparently a verdict on the second count would have been warranted (Bacon v. Dannenberg Co., 24 Ga. App. 540 (5), 101 S. E. 699; Civil Code (1910), §5513), but this is not a question directly involved, since the verdict was predicated expressly on the first count.

For the reasons stated in the first division of this opinion, the court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    14752.
    Peyton v. Peyton.
    Decided December 10, 1923.
    Attachment; from city court of Monroe—Judge Felker. May 15, 1923.

      Orrin Roberts, R. W. Roberts, for plaintiff in error.

      A. C. Stone, J. C. Knox, contra.
   Bell, J.

1. Wliere an attachment was sued out by Tom Peyton Jr. against Tom Peyton Sr., and the attachment bond was executed by the fórmelas principal and P. T. Reynolds as security, but the name of the latter was inadvertently written also in the body of the bond as the obligee, where the name of the defendant in attachment should have appeared, it was not error for the court to allow the name of P. T. Reynolds in the body of the bond to be stricken and the name of the defendant Tom Peyton Sr. substituted therefor as the obligee, by amendment, the security consenting thereto. Civil Code (1910), § 5110; Long v. Hood, 46 Ga. 225 (2); Sutherlin v. Underwriter’s Agency, 53 Ga. 443 (1). Cf. Civil Code (1910), § 5707; Gelders v. Mathews, 6 Ga. App. 144 (64 S. E. 576); Sherman v. Morris, 17 Ga. App. 446 (1) (87 S. E. 709); Fine v. Frankel Clothing Co., 22 Ga. App. 404 (95 S. E. 1017); Lee v. Mills, 69 Ga. 740 (1); Smith v. Powell, 134 Ga. 356 (67 S. E. 936); Barley v. Horton, 149 Ga. 605 (1) (101 S. E. 680).

2. The evidence on the trial of the traverse of the grounds of the attachment and upon the main case was sufficient to authorize each verdict as rendered in favor of the plaintiff in attachment, and, no error of law appearing, the court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    14755.
    Lee v. Exchange National Bank of Fitzgerald.
   Bell, J.

1. Where the maker of a promissory note asserts, in defense to an action thereon, that he entrusted it to a third person to be delivered to the payee or plaintiff only upon the happening of a certain event, such defense is not sustained unless the defendant shows, among other things, that the event did not happen before the delivery of the note. He should, show not merely that the condition existed, but that it was violated. Automobile Battery Co. v. Geraghty, 30 Ga. App. 446 (7) (118 S. E. 412).

Decided December 10, 1923.

Complaint; from Irwin superior court—Judge Eve. June 8, 1923.

Exchange National Bank of Fitzgerald sued J. M. Lee, as maker, upon a note containing the following stipulation: “And to secure the prompt payment of this note, or any other indebtedness due or to become due, the Exchange National Bank of Fitzgerald, Georgia, or the holder of this note, undersigned being possessed of the legal right and title to make said deposit, hereby pledges the following collateral and property, which the undersigned affirms to be unincumbered: Stock certificate No. 142 attached hereto, representing five shares capital stock of the Citizens Bank, Ocilla, Georgia, par value $100.” The defendant pleaded: (1) that the note sued upon “was never delivered to the plaintiff by the defendant, nor did he authorize any person, firm or corporation to deliver said note to plaintiff, nor has he obtained any benefit or consideration whatsoever for said note,” and (2) “that there is a total lack-or want of consideration for said note, in that said defendant has received nothing for said note and has obtained no benefit whatsoever from it.” The note sued upon and the stock certificate transferred in blank in the name of “J. M. Lee” were introduced in evidence. The defendant testified: “When I signed this note and delivered it to Mr. Henderson we had the distinct understanding that this note was not to be used until the entire issue of the stock of the Citizens Bank,' which they were then seeking to sell, had been sold.” “I would have notice of the meeting, and at that time I could come in and transfer the stock, and it would then be attached to the note and then forwarded to the Exchange National Bank, and they would give me credit for it in their bank, and I could draw a check against it. I saw that stock one time in Colonel A. J. McDonald’s office. I did not authorize any person to deliver that note to the Exchange National Bank, and I got no benefit whatever from that note.” With reference to the transfer in his name which appeared upon the stock certificate the defendant testified: “Looking at this signature, c J. M. Lee,’ I would say I do not remember signing that, and that'is not my signature, I don’t believe. As near as I can say is that I don’t believe that is my signature. I have no recollection of ever seeing this certificate of stock.” It appeared, from uncontradicted evidence, that the Mr. Henderson referred to in the defendant’s testimony as the person to whom he delivered the note, and with whom he had all the transactions to which he testified, was an officer of the Citizens Bank of Ocilla, for whose stock the note was given, although the plaintiff was named therein as the payee. The plaintiff received the note from the Citizens Bank of Ocilla and credited that bank with the proceeds without knowledge of the defenses asserted. Neither the Citizens Bank of Ocilla nor Henderson was the agent of the plaintiff, the Exchange-National Bank of Fitzgerald.

2. The defense that the note sued on was a nude pact was in violation of the parol-evidence rule, the defendant having solemnly asserted in effect in the writing that he was the owner of the shares of stock therein described for which the note was given. It being alleged in the plea that the note was given for certain stock in the corporation, and there being no attack on the validity oí the stock, and the stipulation in the note precluding a denial that it was received by the maker of the note, allegations that the stock was worthless would not amount to an allegation that the note was nudum pactum. Carter v. Haralson, 146 Ga. 282 (1) (91 S. E. 88).

3. The consideration of the note was stock in the Citizens Bank of Ocilla, although the note was payable to the Exchange National Bank of Eitzgerald. “If there be a valid consideration for the promise it matters not from whom it is moved. The promisee may sustain his action though a stranger to the consideration.” Civil Code (1910), § 4249.

4. Applying the above rulings to the facts of the case, the court did not err in directing a verdict in favor of the plaintiff, nor in thereafter overruling the defendant’s motion for a new trial.

Judgment affirmed.

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

The stock for which the note was given appears to have been worthless, or 'practically so, at the time the suit was filed. Its value at the time of the execution of the note was not shown.

At the conclusion of the evidence a verdict was directed for the plaintiff. The defendant made a motion for a new trial, which was overruled, and he excepted.

Rogers & Rogers, for plaintiff in error.

A. J. & J. G. McDonald, contra.


author: Jenkins, P. J.

text:
    14756.
    Mays v. Hankinson & Hagler.
   Jenkins, P. J.

A rent note called for “40,000 lbs. of United States standard lint cotton.” On the trial of a distress warrant to collect an alleged balance due to the landlord, claimed to be owing partly by reason of a very small balance of cotton not delivered, but mainly by reason of the fact that most of the cotton actually delivered was of a grade below the basis of “middling,” and consequently of less value than the cotton 'to which he was entitled, proof was submitted, without objection, in explanation of the term “United States standard lint cotton,” as follows: “There are several grades in United States standard lint cotton. They run from strict good middling down to ordinary. The basis is usually middling; then strict middling, good middling, strict good middling and middling fair; and below middling is strict low middling, low middling, strict good ordinary, and good ordinary.” The plaintiff landlord offered evidence to show a custom among landlords and tenants to pay rent only in “middling” cotton where the rental contract provided for the delivery of a certain quantity of cotton, and the grade was not specified. He offered also to show an alleged “understanding” between this plaintiff and the defendants that “middling” cotton should be delivered under the terms of “ United States standard lint cotton.” This evidence was excluded, and the jury, by direction of the court, found in the plaintiff’s favor for an amount representing the value of the portion of the cotton undelivered, but against his contention that he was entitled to the difference in value between “middling” cotton and the grades below “middling” actually delivered. The plaintiff excepts to the exclusion of the testimony referred to. The contention of the defendant in error is that the only ambiguity in the contract consists in the meaning of the trade term “United States standard lint cotton,” and that the contract was complied with by a delivery of any cotton covered by the “United States standard” system of grading. Held:

1. “Words generally bear their usual and common signification; but technical words, or words of art, or used in a particular trade or business, will be construed, generally, to be used in reference to this peculiar meaning. The local usage or understanding of a word may be proved in order to arrive at the true meaning intended by the parties.” Civil Code (1910), §4268 (2); Daniel v. Maddox-Rucker Banking Co., 124 Ga. 1063 (2) (53 S. E. 573); Louisville &c. R. Co. v. Southern Flour Co., 136 Ga. 538 (2) (71 S. E. 884). The meaning of the term “United States standard lint cotton” was therefore subject to explanation by parol testimony. In this case its meaning was arrived at by undisputed testimony admitted without objection.

2. “Parol evidence is inadmissible to add to, take from, or vary a written contract. All the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract only is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.” Civil Code (1910), §4268 (1). In this case it appears manifest from the agreement that some particular grade, and not any grade, was in the mind of the contracting parties. Whether the cotton to be delivered measured up in kind to the unexpressed quality in the minds of the contracting parties was to be governed by the “United States standard” system of grading; but the provision which merely fixed the method and standard by which the grade of any quality of cotton could be arrived at did not indicate that the parties contemplated that the delivery of any possible grade would amount to a compliance with the terms of the agreement. Thus, while the contract indicates that some particular grade must have been in the minds of the parties, since a system or method of classification was provided whereby any quality of the commodity tendered could be classified according to an agreed standard, it does not speak the entire agreement, in that it fails to designate which grade the standard system of grading was to be applied to. The contract thus indicating on its face a lack of completeness in this respect, it is competent (where the statute of frauds is not involved) to supply such omission by explaining the consideration, where it can be done without contradicting any of the expressed terms of the agreement. Stewart v. Cook, 118 Ga. 541 (45 S. E. 398).

Decided December 10, 1923.

Distraint; from city court of Richmond county—Judge Black. June 8, 19.23.

William H. Flaming, for plaintiff.

Callaway & Howard, for defendants.

3. In the absence of any such parol understanding, a custom of the trade, if of such universal practice as would justify the conclusion that it must by implication have formed a part of the agreement, could be proved in aid of an otherwise incomplete or ambiguous writing. This rule does not authorize proof of a custom where it runs counter to or is inconsistent with an expressed provision of the agreement. Stamey v. Western Union Tel. Co., 92 Ga. 613, 616 (18 S. E. 1008, 44 Am. St. R. 95); Vardeman v. Penn. Mutual Life Ins. Co., 125 Ga. 117 (2), 120 (54 S. E. 66, 5 Ann. Cas. 221); Lowery Lock Co. v. Wright, 154 Ga. 867 (4) (115 S. E. 801). Thus, if the provision, which we have construed as indicating that some particular grade of cotton was' in the minds of the parties, and as merely providing a method or standard by which it could be ascertained with certainty whether or not the commodity as tendered did in fact do so, could be construed as providing that any possible quality according to the “United States standard” system of grading would satisfy the contract, then, under that construction, parol testimony would be inadmissible for the purpose of showing a contrary understanding or custom.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14864.
    Davis et al. v. Mitchell.
   Bell, J.

The evidence in this case was not such as to demand the verdict rendered, and the exceptions to the judgment granting to the losing party a new trial, it being the first grant, are controlled by the rule as laid down in the Civil Code, § 6204, that “the first grant of a new trial will not be disturbed [upon review] unless the plaintiff in error shows that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.”

Decided December 10, 1923.

Complaint] from city court of Leesburg—Judge Martin. June 15, 1923.

Bolert B. Forrester, for plaintiffs in error.

F. L. Forrester, contra.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., eoneur.


text:
    14907.
    General Motors Acceptance Corporation v. Bank of Valdosta.
    Decided December 10, 1923,
   Bell, J.

1. In a contest, under the provisions of the Civil Code (1910),

§ 5290, between two creditors holding junior and senior common-law judgments respectively against a common debtor, for the distribution of a fund within the power of the court under the process of garnishment, the court did not err in awarding the fund to the holder of the junior judgment, it appearing that, pending its suit, it had procured the garnishment to issue, that the process was served, and the garnishee’s indebtedness accrued, before the date of the senior judgment. The question was not merely who held the older judgment, but the perfected lien of the garnishment was also to be considered, and this, being first in date, was entitled to priority. Ga. L. 1901, p. 55 (Civil Code of 1910, § 5273); Citizens National Bank v. Dasher, 16 Ga. App. 33 (84 S. E. 482); Light v. Hunt, 17 Ga. App. 491 (2) (87 S. E. 763). The rule was different, however, before the passage of the act just cited. Garrard v. Moffett, 51 Ga. 94. This act does not appear to have been construed in Patterson v. Beck, 133 Ga. 701 (2) (66 S. E. 911).

2. So much of the “intervention” of the holder of the senior judgment as sought an award of the fund because of an alleged assignment to it of the policy of insurance upon which the indebtedness of the garnishee arose was in the nature of a claim, declaring the garnishee indebted to the claimant, and not to the common debtor, as the garnishee had alleged in its answer, and thus was fatally defective, for the reason (if not for others as well) that the claimant did not traverse the garnishee’s answer. Booth v. Brooke, 6 Ga. App. 299 (1) (64 S. E. 1103); Davis v. Pringle, 108 Ga. 93 (33 S. E. 815); Gordon v. Wilson, 99 Ga. 354 (1) (27 S. E. 762). Therefore, no issue in regard to the sufficiency of the assignment of the policy was made in the court below, and none arises here. The proceeding could only be treated as one to distribute according to priority, and not as a claim, and the judgment of the trial court, as stated in the preceding paragraph, was the only correct conclusion that could have been reached under the record.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eonour.

Garnishment; from city court of "Valdosta—J. G. Cranford, judge pro hac vice. June 30, 1923.

George D. Simpson, for plaintiff in error.

Franklin & Langdale, contra.


text:
    14932.
    BROWN v. ROACH, tax-collector.
    1. Where property sold under a common-law execution is subsequently levied upon for State, county, and school taxes due by the party as whose property it was sold, a claim to the property, interposed by the purchaser at the judicial sale, is not aided by the fact that the taxpayer was in possession of other property out- of which the tax fi. fas. might have been satisfied.
    2. Even if the State’s lien for taxes can in any case be divested except by payment, no reason was shown in this case against the application of the general rule that a sale of property under other process does not divest the lien of the State for taxes. A verdict was properly directed in favor of the tax fi. fa.
    Decided December 10, 1923.
    Levy and claim; from Evans superior court—Judge Sheppard. June 28, 1923.

      Daniel & Durrence, for plaintiff in error.

      B. M. Girardeau, contra.
   Bell, J.

The sheriff of Evans county made a levy upon property to satisfy tax fi. fas. for State, county, and school taxes issued by H. M. Roach, tax-collector. The property had previously been sold by the sheriff under a common-law fi. fa. against the taxpayer. B. E. Brown Sr., who was the purchaser at the prior sale, filed a claim, which he amended by alleging: (a) that at the time of the sale under the common-law execution the sheriff had the tax fi. fas. in his possession “for the purpose of collecting the taxes due thereon out of the proceeds” of the sale, which was more than sufficient for that purpose, but paid out all of such proceeds to other claims; and (5) that the property in question should not be subjected to a sale under the tax fi. fas., because of the existence of other specified property in the possession of the taxpayer, on which the fi. fas. could proceed. The latter allegation (&) was stricken for insufficiency. At the close of the evidence upon the trial a verdict was directed against the claimant. He has excepted to the overruling of his motion for a new trial. Error is also assigned upon exceptions pendente lite to the striking of part (b) of the amendment to the claim.

It indisputably appears by the evidence that the tax fi. fas. had been placed in the hands of the deputy sheriff before the sale of the property under the common-law execution, and were in the hands of this officer at the time of that sale, but not that they were placed in his hands for any other purpose than for levy and sale as provided in the Civil Code (1910), §1166. The proceeds of the sale had been paid by the sheriff to other claims as alleged, in which was included a debt of the defendant in fi. fa. which had not been reduced to a judgment. The property was shown, without dispute, to be subject to the lien of the tax fi. fas. unless such lien was divested by the facts stated above.

“Taxes shall be paid before any other debt, lien, or claim whatsoever, and the property returned or held at the time of giving in, or after, is always subject.” Civil Code (1910), § 1140. That the taxpayer was in possession of other property on which the tax fi. fas. could have been levied did not affect the State’s lien against the property in question.' Compare Wilson v. Boyd, 84 Ga. 34 (1) (10 S. E. 499). The court therefore did not err in its ruling upon the pleadings as indicated above.

The language of the decision of the Supreme Court in Patton v. Camp, 120 Ga. 936 (48 S. E. 361), that “the rule that the sale of property under a mortgage fi. fa. does not divest the lien for taxes is not applicable where the tax fi. fas. are'placed in the hands of the levying officer for the purpose of claiming the proceeds of such sale,” appears to be obiter. The question there involved was whether the sheriff, when selling property under a mortgage fi. fa., had the power to appropriate a sufficiency of the proceeds to satisfy tax fi. fas. in his hands, although the remainder would be insufficient to pay the mortgage debt, and although another piece of property of equal value, belonging to the taxpayer but subject to another mortgage in favor of a third person, was available, which it was claimed by the plaintiff in the mortgage fi. fa. should have been required to bear its pro rata of the taxes, the taxpayer and owner being insolvent. The case was a rule against the sheriff by the plaintiff in the mortgage- fi. fa. for the sum appropriated to the payment of the taxes, less the pro rata apportionable to the other piece of property. It was held that, the tax fi. fas. being a superior lien upon the property sold under the mortgage fi. fa., “the sheriff could do nothing else when all were placed in his hands than to pay oil the tax fi. fa. first.” Nevertheless, the facts presented in the instant record do not make a case within the language first above quoted from that decision.

Whether the authority to deposit tax fi. fas. with a claim for specific funds in the hands of the sheriff is in the tax-collector, or whether such control over fi. fas. once placed in his hands is vested in the sheriff himself, it does not appear that the tax fi. fas. were so handled in this case. However, it is doubted that any officer would have the authority, by such action, to transfer the lien of the State for taxes to a specific fund, and thus waive it as against the general property of the taxpayer; and it is questioned further whether the failure of the sheriff to obey such demand, if made by some other officer, could have the effect of relegating the State to a rule or other action against him for a neglect of duty. “It is a well-settled principle that the State cannot be estopped -from asserting its right, on account of negligence hr illegal conduct of its officers, and can only be estopped by legislative act or resolution.” Booth v. State, 131 Ga. 750 (3), 759 (63 S. E. 502). “Powers of all public officers are defined by law, and all persons must take notice thereof. The public cannot be estopped by the acts of any officer done in the exercise of a power not conferred.” Civil Code (1910), § 303.

While in the instant case the sheriff would undoubtedly have been authorized to appropriate a sufficiency of the proceeds of the sale under the common-law execution to satisfy the tax fi. fas., and such would seem to have been his duty, his neglect to do so under the facts stated above could not prejudice the right of the State to collect its taxes out of the property on which the lien rested. This ruling is not in conflict with anything said in Patton v. Camp, even though the fullest effect be given to the language there used, because the claimant did not show that the tax fi. fas. were deposited with the sheriff “for the purpose of claiming the proceeds of such sale.”

The purchaser must look for himself as to the title and soundness of all property sold under judicial process. Civil Code (1910), § 6054. No reason is shown why the general rule should not here prevail, that a sale of property under other process does not divest the lien of the State for taxes. Civil Code (1910), § 1141. Why could not the claimant purchase the tax fi. fas. and cause them to be levied upon the property which he claims should rightly as to him bear the burden? Civil Code (1910), §1145. The State’s lien against the property for the payment of the .taxes was not diverted to a cause of action against the sheriff. The court did not err in directing a verdict against the claimant, nor in thereafter overruling his motion for a new trial.

Judgment affirmed.

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


text:
    14937.
    PHILLIPS v. LINDSEY.
    1. In a suit to recover the agreed value of services rendered under a specified contract, where the plaintiff proves the contract and the performance of the services, a prima facie ease is made out and the burden is shifted. It then devolves upon the defendant to establish any facts which he may claim should diminish or defeat the plaintiff’s recovery as a result of his failure to comply with an independent covenant arising under the same contract.
    2. A trial judge in declaring that the party having the burden of evidence with regard to a particular fact has so discharged it that such burden, has been shifted to his opponent may properly consider the question as to which party has within his possession or control the more precise and conclusive knowledge as to the particular fact or facts in issue. Generally facts that are peculiarly within the knowledge of a party must be proved by him.
    3. An agreement by a creditor to receive less than the amount of his debt does not constitute an accord and satisfaction unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration. A compromise or mutual accord and satisfaction is binding on both parties (Civil Code of 1910, § 4330), but in order to render such agreement binding hefore it is actually executed, there must be a bona fide dispute or doubtful issues between the parties (the settlement of which would constitute a consideration) or some other consideration for such substituted contract.
    4. In this ease the only evidence introduced was the testimony of the plaintiff. This made out a prima facie case for a recovery, and it was error to direct a verdict for the defendant.
    Decided December 10, 1923.
    Complaint; from Floyd superior court—Judge Wright. July 10, 1923.
    G. C. Phillips brought a suit against E. E. Lindsey for the recovery of one half of designated commissions which the plaintiff alleged that he had earned under an agreement with the defendant to find a purchaser for a Packard automobile as to which the de■fendant was a dealer or agent. The plaintiff alleged that he procured a customer who bought the automobile for the sum of $2600 in cash and “the exchange of an old car to the defendant at a valuation of $600.” The defendant answered with a general denial of the plaintiff’s allegations.
    The plaintiff testified upon the trial to the making of the agreement as alleged in his petition and that he had procured a purchaser for the car in the person of a Mrs. O’Neill. He testified further: “I handled the whole thing, and I explained the Packard car to her, told her I thought it was all right; and she gave me that afternoon a check for $2600 and gave us a second-hand car at $600. I called Mr. Lindsay when she came back and asked him if he would take in the second-hand car at that price, and he agreed to it, and I then delivered him the check. It was about ten days before he delivered her the car; in fact he sold three cars from demonstrating that one. He has never paid me any commission. He said he was receiving fifteen per cent, commissions. I asked him for the commission. He said first he was going to pay me when he sold this car, and I says, all right; and it went on about 60 days, and I made demand on him and he says, c You ought to give me that prospect,’ and I told him I wasn’t doing business that way. Mr. Lindsey offered verbally to go fifty fifty out of the 15 % commission he was to receive. The car was to be sold for cash. It was not sold for cash, but he knew it was not; he agreed to take the old car in. The old car was discussed. We agreed on its value after Mrs. O’Neill came to my office. It is not true that the whole transaction was to be handled on a cash basis, and that I went back to Mr. Lindsey with the proposition of taking over this car at $600, and he told me he wouldn’t do it. I offered to take the new car at cost, plus $100, and take in-the old car, but didn’t have the cash at that time to handle the old car, but I could if he would take my note. He did not agree to handle my note, and I says, well, you go ahead and sell it, and if there is any loss I will bear my part, and it rocked on and he sold it. I mean to say that Mrs. O’Neill gave her check while the car was in Atlanta some ten days before its delivery. The car was not in Rome at that time.” “I had that' check payable to Mr. Lindsey, and I handed it to him myself. This proposition of sale, this second-hand car was an after consideration; he had already agreed to accept it at $600. Mr. Lindsey didn’t pay me anything for me to agree to share a part of the loss in this second-hand car. There was no consideration offered me by him for that,—to share the loss in this second-hand car. When lie came and offered me the car and me pay him $100, I didn’t have the money, and I says, ‘All right, you sell it, and whatever you sell it for, I’ll lose my pro rata.’ In other words I wiped out the old contract and made a new trade, but nothing was given me to let the new trade take the place of the old trade.” No other testimony was given. The court directed a verdict for the defendant, and the plaintiff excepted.

      Harris & Harris, for plaintiff. Denny & Wright, for defendant.
   Bell, J.

(After stating the foregoing facts.)

It is insisted on the part of the plaintiff in error that in no event should a verdict have been directed for the defendant, but that if the plaintiff did not prove his case as laid, a nonsuit would have been the proper disposition of the case. It is maintained further, however, that the evidence would have authorized a recovery and that the case should have been submitted to a jury. On the dther hand it is contended by the defendant in error that the plaintiff having failed to show whether a loss was sustained by the defendant in the sale of the second-hand car, no basis for a recovery was established in the proof, and that under the evidence adduced the verdict was properly directed for the defendant.

We are satisfied that the plaintiff did not disprove his case. If he merely failed to prove it the court should have granted a nonsuit instead of directing a verdict. But was the plaintiff entitled to go to the jury at all ? The defendant in error insists that the evidence of the plaintiff is equivocal and uncertain, and should be construed most strongly against him in reference to the time of the making of the agreement whereby he would share his part of the loss, presumably an equal part, sustained in the sale of the second-hand ear, and that when the evidence is so construed it would appear that this agreement was entered into before the new car was sold and was therefore a part of the original contract for a division of commissions. Assuming that this contention is well founded, we are nevertheless of the opinion that the plaintiff sufficiently carried the burden of evidence to avoid a nonsuit or other adverse direction by the court as a matter of law. The agreement to share the losses on the sale of the second-hand car did not nullify or supersede the contract for a division of the commissions on the sale of the new car. It was an independent obligation or covenant arising under the same contract, for a breach of which the defendant would have been entitled to a recoupment.

“Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.” Civil Code (1910), § 4350. “Recoupment may be pleaded in all actions ex contractu, where from any reason the plaintiff under the same contract is in good conscience liable to defendant. And in all cases where, under the laws of this State, recoupment may be pleaded, if the damages of the defendant shall exceed in amount those of the plaintiff, the defendant shall in such cases recover of the plaintiff the amount of such excess. Civil Code (1910), §4353.

If the plaintiff was not entitled to recover his full proportionate share of the commissions as originally agreed upon, the onus was upon the defendant to show that fact by way of defense. In a suit to recover the agreed value of services rendered under a specific contract, where the plaintiff proves the contract and the performance of the services, a prima facie case is made out, and the burden is shifted. It then devolves upon the defendant to establish any facts which he may claim should diminish or defeat the plaintiff’s recovery as a result of his failure to comply with an independent covenant arising under the same contract. Compare Gem Knitting Mills v. Empire Printing Co., 3 Ga. App. 709 (3) (60 S. E. 365).

Furthermore, whether there had been a loss on the sale of the second-hand car, in which both the parties should share, was a matter more logically within the knowledge of the defendant. “One who assumes the burden of proof is only required to carry the burden of evidence until his contention has been prima facie established. The position of the ‘burden of proof’ is determined by the pleadings, and as to this the burden of proof is unchanging; once imposed it remains. But the burden of testimony may be shifted and alternate between the parties according to the contingencies and crises of the trial. A trial judge, in declaring that the party haying the burden of evidence with regard to a particular fact has so discharged it that the burden of evidence has been shifted to his opponent, may properly consider the question as to which party has within his possession or control the more precise and conclusive knowledge as to the particular fact ox facts in issue. Generally, facts that are peculiarly within the knowledge of a party must be proved by him, and a judge may more promptly discharge a litigant from his burden of evidence either when knowledge as to the proposition is peculiarly within the power of his opponent, or where the proposition is a negative one.” Hyer v. Holmes, 12 Ga. App. 837 (3, 4) (79 S. E. 58).

Conceding therefore that the defendant in error is right in saying that the agreement for a division of losses on the old car should be treated as a part of the original contract, we think it was error on the part of the trial judge to direct a verdict in favor of the defendant at the close of the plaintiff’s evidence, and that it would even have been error to award a nonsuit.

Being of this view, we hardly think it necessary to go into a further contention of the plaintiff in error, opposite to that of the defendant in error last referred to, that the agreement to share any loss which might result in the sale of the old car was subsequent to the original undertaking and was a nudum pactum. We are of the opinion, however, that, in so far as appears from the evidence adduced, there was no consideration for the agreement in reference to such loss if it was in fact a new and distinct undertaking entered into after the new car had been sold and the check therefor with the old car at the agreed valuation of $600 had been accepted in payment.

If such agreement as to a sharing of the loss was thus subsequent it would of course not be binding without a consideration. “An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.” Civil Code (1910), §4329. A settlement or mutual accord and satisfaction is binding on both parties. Civil Code (1910), § 4330. But it does not appear as a matter of law that there was a bona fide dispute (Riley v. London Guaranty & Accident Co., 27 Ga. App. 686 (1 c), 109 S. E. 676), or that there were doubtful issues between the parties (Boswell v. Gillen, 131 Ga. 310 (4), 62 S. E. 187), the settlement of which would afford a sufficient consideration; and yet, if the evidence demanded the conclusion that the plaintiff’s obligation to share in the loss in the sale of the second-hand car was both subsequent and supported by a consideration, the burden of showing such loss, as we have seen, would still have devolved upon the defendant.

In any view of the evidence, it appeared that the agreement by which the plaintiff was to receive one half of the commissions on the sale of the new car was never abrogated. The testimony of the plaintiff made a prima facie case, and the opposite party should then have been required to defend.

It is unnecessary for us to determine whether the agreement for a share .of losses in the sale of the second-hand car should be considered under the evidence as a part of the original contract or as a subsequent new and distinct agreement, for in either event the case must go back. This question will likely be developed more clearly upon another trial, when it may be determined whether such agreement was binding under the rules herein expressed.

Judgment reversed.

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


author: Broyles, O. J.

text:
    15052.
    Yarborough v. The State.
    Decided December 13, 1923.
    Accusation of riot; from city court of Macon—-Judge Gunn. September 24, 1923.

      John P. Ross, IT. A. McClellan, E. F. Goodrum, for plaintiff in error.

      Roy IT. Moore, solicitor, contra.
   Broyles, O. J.

1. The sole assignment of error in the bill of exceptions sued out in this ease being upon the overruling of a demurrer 'to the accusation, and ,it appearing that after the submission of the case to this court the plaintiff in error was tried under the identical accusation involved in this case and was acquitted by the verdict of a jury, the questions raised in the present bill of exceptions have become moot and will not be passed upon by this court.

2. There is no provision of law, in criminal cases, for the taxing of costs against the State (Sigman v. Austin, 112 Ga. 570, 574, 37 S. E. 894), and, therefore, the contention of counsel for the plaintiff in error, that the costs incurred should be taxed against the State, is without merit.

Writ of error dismissed.

Bloodworlh, J., concurs. Lulce, J., absent.


author: Broyles, C. J.

text:
    15195.
    BATEMAN & BROTHERS et al. v. GUNN, judge.
    1. When a judge certifies a bill of exceptions in a case, he cannot thereafter certify another bill of exceptions for the same party and as to the same judgment. Perry v. Central Railroad, 74 Ga. 411 (3) ; Marshall V. Livingston, 77 Ga. 21 (5) ; Greer v. Holdridge, 86 Ga. 791 (13 S. E. 108) ; Beck cG Gregg Hardware Co. v. Crum, 127 Ga. 94 (56 S. E. 242) ; Pace v. Hm'ris, 9 Ga. App. 621 (70 S. E. 967). The instant case presents no exception to this ruling, because the first bill of exceptions (after it had been certified by the judge and filed in the office of the clerk of this court), by permission of this court was withdrawn by the plaintiff in error, and the second bill of exceptions was tendered to the judge within the time prescribed by law. See, in this connection, Williams v. Clarke, 70 Ga. 405.
    2. Under the above-stated ruling this court will not direct the trial judge to show cause why he should not be required to certify the second bill of exceptions.
    Decided December 18, 1923.
    Application for mandamus.
    Application for certiorari was denied by the Supreme Court.

      Oliver 0. Hancock, for the applicants.

      John B. L. Smith, Joseph LeOonte Smith, Grady 0. Harris, contra.
   Broyles, C. J.

This is a petition for mandamus to direct the judge of the trial court to show cause why he should not be required to sign a bill- of exceptions complaining of the same judgment which was complained of by the same party in a previous bill of exceptions, the previous bill of exceptions (after being certified and filed in the office of the clerk -of this court) having been withdrawn (by permission of this court) by the plaintiff in error before the second bill of exceptions was tendered to the judge— the tender being made within the time prescribed by law. Counsel for petitioner in his brief concedes “that when a trial judge certifies to one bill of exceptions, he loses his jurisdiction of the case until the higher tribunal disposes of the case one way or the other. It is likewise conceded that during this time the lower court has no jurisdiction whatsoever with reference to the case; but there is altogether a different situation, in so far as the jurisdiction of the lower court is concerned, when the higher court disposes of the case, either by withdrawal, dismissal, or otherwise. When this is done by the higher tribunal, then the case is remitted back to the lower court for action.” In other words, counsel contends that when a bill of exceptions is withdrawn or dismissed, there is no bill of exceptions pending, and the trial judge has authority to certify another bill of exceptions; and that the ruling that the judge has no authority to certify a second bill of exceptions is not applicable. We cannot agree with this contention, as it seems well settled by the decisions of the Supreme Court and of this court that where a judge has once certified a bill of exceptions in a case, he is without authority to certify another bill of exceptions for the same party and as to the same judgment. The fact that the first bill of exceptions may have been withdrawn or dismissed would not change the rule.

Mandamus nisi denied.

BloodworUh, J., concurs. Lulce, J., absent.


text:
    14503.
    Wilcox v. Wilcox.
   Bell, J.

1. Brokers in whose hands property is placed for sale, in order to earn commissions on account of the sale of such property, must either have sold it or have been the procuring cause of the sale. Doonan v. Ives, 73 Ga. 295 (1); Graves v. Hunnicutt, 8 Ga. App. 99 (68 S. E. 558).

2. Where property placed in the hands of a broker for sale is subsequently sold by the owner, the broker is entitled to the commission if he was the procuring cause of the sale, although .the sale was actually consummated by the owner. Hardin v. Stansel, 13 Ga. App. 22 (1) (78 S. E. 681); Case Threshing Machine Co. v. Binns, 23 Ga. App. 46 (3) (97 S. E. 443).

3. In determining whether a broker has earned his commission for procuring a purchaser, it is not necessary that his services shall have been the sole cause, but it is enough if the efforts of the broker, acting on the purchaser, are the efficient cause of his offer. Handley v. Shaffer, 177 Ala. 636, 648, 59 So. 286; Edwards v. Andrews, 24 Ga. App. 645 (1) (101 S. E. 775).

4. Although in the instant case it appears, without, dispute, that the purchaser had been interested by the principal in the property before the latter placed it in the hands of the broker, and that the purchaser would have bought it already except for his financial inability, unless he could sell certain property of his own, the testimony of the broker in regard to the services performed, and that when the property was listed with him he stated to the defendant that he believed he could sell it to this particular person, referred to above as the purchaser, to which, as was inferable from the evidence of the plaintiff, the defendant interposed no objection but tacitly agreed,—taken together with the testimony of the purchaser, admitted without objection (see Doonan v. Ives, supra; Washington v. Jordan, 28 Ga. App. 18, 109 S. E. 923), that the efforts of the plaintiff were the cause of his purchase, and that his prior negotiations with the owner had been terminated,—“were off,”—was sufficient to support tlie finding of tlie jury that efforts of the plaintiff were the procuring cause of tlie purchaser’s offer.

Decided October 11, 1923.

Complaint; from city court of Douglas—Judge Henson. March 3,1923.

McDonald & Willingham, for plaintiff in error.

Quincey & Bice, Levi O’Steen, contra.

(a) We rule as above without regard to any service by the plaintiff to the purchaser in selling the property of the latter, for an independent commission, by which the purchaser was rendered able to buy from the defendant.

5.,Irrespective of whether a broker who has procured a purchaser on terms named by his principal, who has consummated the sale in ignorance of the broker’s having found the purchaser or having induced him to make the purchase, is entitled to his commissions, when the broker “has had an opportunity to inform his principal of his efforts and the name of the purchaser, but has failed to so inform him” (see on this question, Doonan v. Ives, supra; Washington v. Jordan, 28 Ga. App. 18 (7), 109 S. E. 923; Indiana Fruit Co. v. Sandlin, 125 Ga. 222 (2); 9 C. J. 621, 100; 4 R. C. L. 321, 58 and citations), the inference was warranted by the evidence here that if the broker did not so inform his principal, he attempted in good faith to do so, and failed,—that he did not have an opportunity to inform his principal before the latter had consummated the sale, and that if the broker was authorized as claimed, no injury resulted to the defendant from the want of the information.

(a) Eurthermore, “a witness may be impeached by disproving the facts testified to by him” (see Civil Code of 1910, § 5580, which perhaps would not be inapplicable in any case where the testimony was in conflict, Southern Ry. Co. v. O’Bryan, 119 Ga. 147 (2), 150, 45 S. E. 1000); and, the testimony of the plaintiff and that of the defendant being shai'ply in conflict in regard to the making of the contract and in other material respects, the jury, having accepted the testimony of the former as to the other matters, could have disregarded the testimony of the latter that he was not so informed, when an opposite conclusion was warranted by the circumstantial proof,—namely, the fact, testified to by the plaintiff, that as soon as he had procured the purchaser he attempted to notify the defendant, but, on being informed by his wife over the telephone that her husband was not at home, requested her so to notify him upon his return, and the further fact that on the following day the defendant proceeded to close the deal, it not otherwise appearing how the defendant and the purchaser came together.

6. No error of law is complained of, and, while the case is exceedingly close upon its facts, this court cannot say that the verdict found for the plaintiff is unsupported by any evidence, nor, therefore, that the presiding judge abused his discretion in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


author: Luke, J.

text:
    14768.
    COMMERCIAL CREDIT COMPANY v. FRY.
    1. Where the principal files no defense to a suit on a promissory note, and there is some evidence to sustain the plea of the sureties that the note was void because given to prevent the prosecution of the principal for a felony, a verdict sustaining' the plea is good.
    2. There was no reversible error in the court’s charge or in the admission of evidence, and it was not error to overrule the motion for a new trial.
    Decided January 15, 1924.
    Adhered to on rehearing, February 25, 1924.
    Complaint; from city court of Albany—Judge Clayton Jones. June 6, 1923.
    Application for certiorari was denied by the Supreme Court.

      Milner & Farlcas, for plaintiff.

      Lippitt & Burl, J. W. Kieve, for defendants.
   Luke, J.

Commercial Credit Company sued W. C. Dunham, R. E. Crawford, E. A. Ery, and A. W. Wood on a $3000 promissory note, payable to “myself,” signed “W. C. Dunham,” and indorsed on the back by all of the foregoing parties. Dunham filed no defense. The other defendants pleaded: (1) that they signed as accommodation indorsers at the instance of Dunham, who was acting as the plaintiff’s agent'in obtaining their signatures; that Dunham indorsed and delivered the note to his principal, Commercial Credit Company; that this company furnished the sole consideration for the note, was really the original payee, and was not a bona fide transferee for value; (2) that the note was void, because it was not a completed contract, for the reason that it was indorsed upon the distinct agreement, known to the plaintiff, that other parties were to indorse it before it should become binding upon defendants, and that it was delivered without such additional signatures; (3) that the note was given in violation of section 329 of the Code (1910); (4) that the note was void because it was given in settlement of a threatened criminal prosecution for cheating and swindling, embezzlement, and larceny after trust. The trial resulted in a verdict for the defendants. The plaintiff’s motion for a new trial was overruled, and the movant excepted.

Since counsel for defendants in error specifically states that “the question of duress is not presented,” we will consider what we deem the controlling question in the case,—namely, was the note illegal for the reason that it was given for the prevention of a criminal prosecution? The plaintiff was engaged in lending money on business transactions,—“on invoices principally.” Dun-ham was engaged in the lumber business, and owes the plaintiff approximately $15,000. The exact nature of the transactions whereby this indebtedness arose is not stated. Mr. Mack was secretary of the plaintiff company. Messrs. Milner & Farkas were its attorneys at law. The note sued on was given as partial security for the large amount due the company by Dunham, and the defendants were accommodation indorsers on the $3000 note. Dunham swore in part as follows: “Mr. Mack said he was down' there to put the matter before the grand jury. He did not say that he wanted to adjust it. He didn’t specifically state what I had done, but that I had got some of their money that I didn’t have a right to use. I realize that I owed them money.” Mr. Fry testified as follows: “I had a conversation with Mr. Milnér, who is attorney for Commercial Credit Company and represented them at that time. . . . The substance of the conversation was that Dunham had misappropriated funds of the Commercial Credit Company; that he had misused some of the funds. This is the substance of the first conversation. . . Mr. Milner called me up Sunday before the Monday I indorsed the note. He told me that something had to be done,—Mr. Dunham had misappropriated these funds and the representative of the Commercial Credit Company was in town or on the way. He said something had to be done pretty quick. We talked about the grand jury being in ses'sion the next day. He told me that it would be in session. He did not tell me why something had to be done; he knew that I knew; we had talked it over enough, Mr. Milner and myself. Mr. Milner was attorney for Commercial Credit Company.”

’ As the foregoing testimony is very important to this case, we deem it proper to consider here the objections to it. They are as follows: “(a) Same was irrelevant and immaterial; (&) . . same was hearsay and therefore inadmissible; (c) . . whatever statement might have been made by Mr. Milner could not affect the rights of the plaintiff in the case unless it was shown that he was authorized to make such statements, and there was no evidence of any such authority; (d) . . the evidence shows that Mr. Milner was acting merely as attorney for the Commercial Credit Company in adjusting its affairs with Mr. Dunham, and was acting as a friend to Mr. Dunham in prevailing upon the Commercial Credit Company to accept his note.” We think the evidence in the case is sufficient to show that Mr. Milner was such an agent of the Commercial Credit Company as that the evidence objected to was binding on that company. Mr. Milner himself swore that he represented the company in handling the Dunham account, that he discussed the matter with Dunham, that there appeared to be some question about the regularity in which he had handled transactions, that he advised Dunham that if the matter could be adjusted there would be no criminal prosecution, if he could work out his settlement from a civil statement, and that if it constituted a crime, in his opinion it could be settled. Mr. Milner swore also that he went over the matter with Mr. Fry, told him what the situation was, did not want Dunham to get into trouble if it could be avoided, and that if a settlement was made Dunham would not be prosecuted, even though he had committed what otherwise would be a crime. It also appears from the evidence that no prosecution wp,s instituted against Mr. Dunham.

Of course it was not essential for the defendants to show that a prosecution had already begun. Godwin v. Crowell, 56 Ga. 566; Wheaton v. Ansley, 71 Ga. 35 (1). Where the defense involves suppression of a prosecution for felony, the party charged need not be shown to be actually guilty of the felony. “It is sufficient if there be an act of which he is charged to be guilty which is prima facie a felony.” Chandler v. Johnson, 39 Ga. 85. “(1) A negotiable promissory note given in whole or in part upon an agreement, express or implied, to settle or prevent a criminal prosecution is void, unless the case falls within some express statute authoring settlement. Civil Code (1910), §§ 4247, 4251; Small v. Williams, 87 Ga. 681 (5), 685 (13 S. E. 589). (2) If the consideration for the notes sued on was the suppression of a criminal prosecution, it is immaterial whether the suit is brought by a bona fide holder or not. Civil Code (1910), §4286; Jones v. Dannenberg Co., 112 Ga. 426 (37 S. E. 729, 52 L. R. A. 271). (3) Where a note was executed by one as principal and by another as surety, and the consideration therefor was illegal and immoral, but this fact was unknown to the s'uretj'' at the time of the execution and delivery of the note, the surety may nevertheless defend a suit thereon by showing that the note was in fact executed by the principal for such a consideration. Civil Code (1910), §§ 3538, 3539; Patterson v. Gibson, 81 Ga. 802 (10 S. E. 9, 12 Am. St. R. 356).” William Hester Marble Co. v. Walton, 22 Ga. App. 433 (96 S. E. 269). That it is the policy of our law that crime should be punished, and that an agreement to prevent a prosecution is abhorrent to that law and illegal, clearly appears from the able opinion of Justice Little in the case of Jones v. Dannenberg Co., 112 Ga. 426 (supra).

We are not unmindful of the fact that some of the decisions cited above involved cases where prosecution had already been instituted, and others where duress was under consideration, yet we think some of the principles enunciated therein are applicable to the case under consideration, and therefore deem it proper to advert to them. We are of the opinion that the evidence as a whole, in the light of the foregoing authorities, is sufficient to sustain the contention of the defendants that the contract sued on was illegal because its consideration was wholly or in part the suppression of a threatened prosecution for a felony. The judgment of the trial court in overruling the motion for a new trial is therefore sustained.

The judge’s charge as a whole was full and fair, and no reversible error is in it or in the court’s ruling on the admissibility of evidence.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    14779.
    MOORE v. SMITH.
    Decided January 15, 1924.
    Attachment; from city court of Atlanta—Judge Reid. May 4, 1923.
    The action was upon promissory notes which recited that they were for part of the purchase-money “for 22-45 Buick Touring Car Frame No. 753247-Motor No. 779432.” The defendant in his answer denied that the property sold to him was a “22-45 Buick ■ Touring Car,” and further pleaded as follows: The consideration of the notes sued on has partially failed, in that the defendant executed the said notes to evidence part purchase price of a certain automobile which the plaintiff represented and warranted to be a 1922 model Buick touring car, which representation and warranty the defendant acted upon and relied upon in buying the car for the agreed price of $1795; but the said car is not a 1922 model as represented and warranted, but is a 1921 model car, without the improved lighting fixtures and carburetor and other improved fixtures which are carried on the 1922 model Buick car, and is not as economical in operation as the 1922 model car, nor does it give the same service; all of which defects were unknown to the defendant at the time of purchase, and defendant alleges that the aforesaid defects greatly reduce the value of' said car. Defendant has already paid the plaintiff $1071.30 or other large sum, and by reason of the aforesaid defects the said car is not worth more than that sum. The defendant testified to facts alleged in the plea, and the difference in price between the 1921 model and the 1922 model, and that “there is an extra hot-air pipe on the ’22, which tends to greatly help in vaporizing the gas, makes it a good deal more economical; you get more power; a Buick talking point, it is 25 to 30 per cent cheaper in running, . the ’22.”
   Luke, J.

Where the defense to a suit is based solely upon partial failure of consideration, before a verdict can legally be rendered giving the defendant the benefit of that defense he must show the extent to which the consideration failed; the evidence must present sufficient data upon Which to base such a verdict. Hunnicutl Co. v. Kane, 21 Ga. App. 665 (94 S. E. 821). The evidence in the present case failing to disclose any specific damage to the defendant, who for several months before he made complaint used the automobile for which the notes sued on were given, there was no error in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

B. Q. Jachson, for plaintiff in error.

Horton Brothers, Anderson, Rountree & Crenshaw, contra.


text:
    14782.
    Wilson & Render v. Fuller.
   Luke, J.

1. The motion of defendant in error to dismiss the bill of exceptions, because no brief of evidence was filed within the time allowed by law, is without merit, for the reason that the question was not “first raised and insisted on before the trial judge.” Park’s Code, § 6090 (a).

2. Where suit was brought on a due bill as follows: “Due J. K. Puller, $300.00. On demand. Wilson & Render. 11/14/19,” and demand and refusal to pay were alleged, the petition was not subject to general demurrer on the ground that it failed to set out or disclose any cause of action against the defendant. Smith v. Ice Delivery Co., 8. Ga. App. 767 (4) (70 S. E. 195).

3. The evidence was ample to sustain the verdict for the plaintiff.

Decided January 15, 1924.

Complaint; from city court of LaG-range—Judge Duke Davis. May 21, 1923.

J. T. Thomasson, J. R. Terrell Jr., for plaintiffs in error.

L. B. Wyatt, Waller B. Branan, contra.

4. It not appearing to this court that the bill of exceptions was sued out for the purpose of delay only, the request of the defendant in error that he be awarded damages is denied.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., coneur.


text:
    14796.
    YELLOW CAB COMPANY v. ECHOLS.
    The evidence authorized a finding that the collision of the automobiles which resulted in the death of the plaintiff’s husband was caused by negligence of the defendant’s driver, and that the deceased was not chargeable with such negligence or want of ordinary care as would preclude a recovery.
    This court cannot hold that the amount of the verdict, as reduced by writing off a part, is excessive.
    No ground of the motion for a new trial requires a reversal of the judgment below.
    Decided January 15, 1924.
    Action for damages; from city court of Atlanta—Judge Eeid. June 2, 1923.
    Bessie Echols obtained a verdict against Yellow Cab Company in a suit for damages because of the alleged negligent homicide of her husband, Ealph Echols, who was killed on a street of the city of Atlanta by an automobile of the defendant, which struck a Ford truck in which he was riding. The defendant complains of the overruling of its motion for a new trial, wherein error is assigned substantially as follows:

      (a) Because the evidence does not authorize the verdict; and the amount of the verdict is excessive.
    (i>) Because the court erred in ruling that the following question, propounded by defendant’s counsel to one of the plaintiff’s witnesses: “Are you the same C. C. Echols who pleaded guilty in the criminal court of Atlanta on December 4, 1919, for driving while intoxicated,—driving an automobile ?” was inadmissible, and in not permitting the witness to answer it; defendant’s counsel stating to the court that he expected to introduce the indictment to which the witness pleaded guilty, and to show by the witness that he (the witness) was the person named in the indictment, and that at the time of the injury in question this witness was driving the car in which the plaintiffs husband was riding, and was in an intoxicated condition, and for this reason the plaintiffs husband was not in the exercise of ordinary care.

      (c) Because the court admitted, over objection, an ordinance of the City of Atlanta, the pertinent part of which was as follows: “Vehicles on streets running north and south have the right of way,” the objection being that the ordinance was too vague and uncertain and was unreasonable, and that it did not illustrate any issue in the case.
    (d) Because the court, in stating the contentions of the parties to the jury, failed to state one of the main contentions of the defendant (set out in this ground), and because the court erred in referring the jury to the pleadings, the court saying, “To get the allegations in specific detail, you can read these papers for yourself;” counsel for the movant contending that this instruction permitted the jury to consider allegations not supported by proof.

      (e) Because the court erred in failing to instruct the jury in form and substance as follows: “In that [?] it appears from the evidence adduced at the trial of this case that deceased's death was caused solely by his own negligence, conduct, or failure to exercise ordinary care, no recovery would be authorized under the law;” it being insisted that such a charge was applicable to one of the controlling issues in the case and was demanded by the pleadings and evidence.
    (/) Because the court erred in failing to instruct the jury as follows: “If it appears from the evidence adduced that plaintiffs husband's death was caused solely by the conduct of C. C. Echols, in his driving of said automobile truck, unmixed with any negligence of the defendant, no recovery would be authorized in this case;” the movant insisting that such charge was applicable to one of the controlling issues in the case.

      (g) Because the court erred in failing and refusing to instruct the jury as follows: “If you believe that Claude C. Echols and Balph Echols were negligent in a joint enterprise at the time Balph Echols was injured, then I charge you that any negligence on the part of Claude C. Echols, if you believe there was any such negligence on his part, in operating the Ford truck, will be imputable to Balph Echols, and if you believe further from the evidence that deceased would not have been killed but for the failure of Claude 0. Echols to exercise ordinary care in the operation of the Eord truck, as contended by defendant, then I charge you that plaintiff cannot recover;” the movant contending that such charge was substantially requested in writing; and movant insists that such charge was applicable to one of the controlling issues in the case.
    (h) Because the court erred in failing and refusing to give to the jury an instruction requested in writing, as follows: “It was the duty of plaintiff’s husband to exercise ordinary care to prevent injury to himself, and if you believe from the evidence he, in the exercise of ordinary care, should have looked to his right before proceeding into Fair street from behind a high wall, and that he failed to do so, and if you believe further from the evidence that had he so looked he would have seen the approaching yellow cab, and could have avoided the injuries to himself by getting out of the Ford truck or otherwise, then I charge you that the plaintiff cannot recover.”

      (i) Because the court erred in failing to charge the jury on the question of determining where the preponderance of the evidence lies, as follows: “The jury may also consider the number of witnesses, though the preponderance is not necessarily with the greater number;” it being insisted that, the judge having undertaken to give in charge the provision of the code as to determining where the preponderance of evidence lies (Civil Code, § 5732), should have given the entire code section; and it is insisted that a failure to do so was particularly harmful to the defendant because it had introduced more witnesses than the plaintiff did as to the actual occurrence resulting in the death of the plaintiff’s husband.

      (j) Because the court erred in charging the jury as follows: “So that in this case, if you believe that the driver of the yellow cab was approaching the intersection of these two streets at a greater rate of speed than ten miles per hour, that would be negligence per se.” Movant insists that this instruction was error for the reason that it was an expression of opinion on the part of the court that the defendant, through its driver, was guilty of negligence per se.

      (7c) Because the court erred in failing to charge the jury as follows: “If it appears, from the evidence adduced, that plaintiff’s husband was riding in a car driven by Claude C. Echols, at a rate of speed greater than ten miles per hour, as it approached the intersection of Boulevard and Fair streets, then this would be negligence per se, and, if they believe that the said plaintiff’s husband and Claude C. Echols were upon a joint enterprise, that such negligence of Claude C. Echols would be imputable to plaintiff’s husband.” It is insisted that such charge was applicable to one of the main and controlling issues in the case and was demanded by the pleadings and evidence.
    (7) Because the court erred in' failing to charge the jury as follows: “If you believe, from the evidence adduced in this case, that the driver of the automobile truck, Claude C. Echols, in which truck plaintiff’s deceased husband was riding, was approaching the intersection of these two streets at a greater rate of speed than ten miles an hour, then before the said C. C. Echols would have been guilty of negligence, as a matter of law, and if you further believe that the plaintiff’s deceased husband had knowledge of these facts and failed to disembark from said car, and failed to have requested the driver to desist or demanded that he be allowed to disembark, unless he was prevented from so doing, then the plaintiff would not be entitled to recover in this case;” it being insisted that such charge was applicable to one of the controlling issues in the case, and a failure so to charge was harmful.
    (to) Because the court erred in failing to instruct the jury as follows: “If it appears from the evidence adduced that at the time the deceased husband of plaintiff was sitting on the right-hand side of the front seat of said automobile truck while the same was being driven by his brother, C. 0. Echols, and that said driver approached or traversed said intersecting streets without having said automobile under immediate control, and did operate the same at a greater rate of speed than ten miles per hour, then it would be the duty of the plaintiff’s deceased husband, in the exercise of ordinary care, to have called the attention of the said driver to the situation and remonstrated with him, or, if necessary to his own safety, to leave the vehicle, and he was bound so to do in the. exercise of ordinary care;” it being insisted that such charge was applicable to the issues, and a failure to give it was harmful. (n) Because the court erred in failing to instruct the jury as follows: “If you believe, from the evidence adduced, that the plaintiffs husband and defendant were both at fault, and the plaintiff’s husband could not by ordinary care have avoided the consequence of defendant’s negligence, the plaintiff may recover, but the damages shall be diminished by you in proportion to the amount of fault attribritable to him, plaintiff’s husband.”
    (o) Because the court erred in charging the jury as follows: “There was an ordinance introduced, to the effect that vehicles must, go to the right, keep to the right. That is a traffic regulation of the city, and it is the duty of people to observe it, but it also must have a reasonable interpretation, and it must be interpreted in connection with the law of the State on the subject; and the law of the State on the subject, as to what is designated as the ‘rule of the road,’ is that drivers of vehicles shall keep to the right. It does not mean, either the State law. or the city law, that it is unlawful to drive on, the left side of the road or the street under any and all circumstances. It means that where the traffic conditions require, in the exercise of ordinary care, the drivers must keep to their own right. And just as I have instructed you with reference to the other ordinance, it is for you to determine whether, under the particular facts and circumstances of this case, the law required C. C. Echols to be driving on the right side of the street or not.” The movant insists that such charge was error for the reason the court permitted the jury to say whether or not the law required the truck in which the deceased was riding to be driven on the right-hand side of the street.

      (p) Because the court erred in charging the jury that “upon approaching any intersecting highway the operator of a motor-vehicle or motorcycle at all times shall have said vehicle under immediate control.” The movant insists that this was error for the reason that it was inapplicable to the issues in the case, and was not authorized by the pleadings and the evidence; that the petition did not allege, as a ground of negligence, that the driver of defendant’s yellow cab should at all times have had the yellow cab under immediate control as he approached intersecting streets.
    (q) Because the court erred in charging the jury as follows: “But if C. C. Echols was negligent in this particular or in any other, such negligence would not be imputable to Ealph Echols, unless Ralph. Echols, under the law which I have given you, had the right or the duty to interfere with the control of the' driver and influence the driver as to the manner in which the Ford truck should be driven.” The movant insists that such charge was error because it limited and restricted one of the controlling issues in the ease.
    (r) Because the court erred in charging the jury as follows: “And simply taking Ralph Echols home with his groceries and then intending to go from Ralph Echols’ home with his week-end groceries did not constitute a joint enterprise.” It is insisted that such charge was error for the reason that it was an expression of opinion on the part of the court that in the taking of Ralph Echols to his home with his week-end groceries, there was no "common or joint enterprise between Claude Echols and Ralph Echols.
    (s) Because the court erred in instructing the jury as follows: “Then you will look into the facts' of this case as disclosed to you by the evidence, and say whether the defendant’s servant was negligent or not in any or all of the particulars charged. The defendant denies that its servant was negligent in any of the particulars charged, but, under the instructions given you, you have now the question of whether the defendant’s chauffeur was negligent in these particulars, or any of them. If you find there was no negligence on the part of the defendant,—the defendant’s servant,—that would be an end to the case, I mean, in so far as these particulars are concerned, and the defendant would be entitled to a verdict.” It is insisted by the movant that this charge was error for the reason that it permitted the jury to go- outside of the facts of the case as disclosed to them by the evidence, and say that the defendant’s servant was negligent in some particular which was not charged.
    (i) Because the court erred in omitting to instruct the jury upon one of the main contentions of the defendant as follows: “Defendant contends that the automobile truck driven by Echols in which plaintiff’s husband was riding had no lights which were lighted, and that defendant’s servant driving the yellow cab could not see the approaching truck until it was too late to avoid the collision, and that, by the exercise of ordinary care, after the discovery of the truck, he' could not have avoided the same. If you believe from the evidence adduced to you this contention to be true, then the plaintiff could not recover in this case.” The movant insists that this failure to charge was error because the omitted charge was applicable to one of the controlling issues in the case.

      (u) Because the court erred in failing to instruct the jury as follows: “If it appears, from the evidence adduced, that, at the time of the accident resulting in the death of plaintiff’s husband, no negligence of defendant’s servant contributed to or caused the injury to plaintiff’s husband, the plaintiff could not be entitled to recover.” Movant insists that this charge was demanded by the pleadings and evidence:
    (v) Because the court charged the jury as follows: “It would be your duty to reduce the gross sum to its present cash value, which would be a less sum, a considerably less sum, and this you can do in any correct method of calculation, satisfactory to yourself, using in the calculation the seven per cent, basis, that being-the legal rate of interest in this State.” It is insisted by the movant that this charge did not cover the ground or point out to the jury what correct legal method they should use in making such calculation, and the jury did not understand how to arrive at the present cash value, as is more fully shown by the fact that the verdict was in excess of the actual cash value of the life of the deceased.
    The deceased was a grocery-store clerk, 25 years of age, earning $150 per month. The verdict was originally $22,500, but $5,000 was written off by the plaintiff.

      Bryan & Middlebroolcs, Hewlett & Dennis, for plaintiff in error.

      W. P. Goles, Underwood, Pomeroy & Haas, contra.
   Luke, J.

(After stating the foregoing facts.) The evidence amply authprized the verdict. Indeed, the jury were authorized to find that the servant of the Yellow Cab Company, at the time of the collision, was driving his car at the intersection of streets at the rate of from thirty to thirty-five miles an hour. This was the opinion of the driver in the Ford truck which was struck by the yellow cab. This was the testimony of a'’ police-officer when testifying as to the admission made by the driver of the cab shortly after the accident, and this was the testimony of one of the occupants of. the yellow cab at the time of the accident. The jury were authorized to find that the driver of the yellow cab, if any one, had the smell of whisky upon him at the time of the accident. One of the occupants of the cab testified that, upon getting into the cab prior to the accident, she observed the odor of whisky.

(a) The court did not err in rejecting evidence as complained of in the first or the second ground of the amendment to the motion for a new trial.

(5) The charge of the court, read in its entirety, is free from error. The contentions of both parties were fully and fairly stated, and correct legal rules for the guidance of the jury in their deliberations were given in the' charge. The alleged errors in isolated excerpts from the charge of the court are corrected by that which precedes or follows them. The excerpt from the charge of the court as to the measure of damages, when the entire charge upon this subject is considered, and in the light of the mortality tables which were in evidence, is all that the defendant could have expected. The charge upon the subject of preponderance of evidence was full and fair, when the whole of the charge upon this subject is read.

(c) We cannot say that the court erred in overruling the motion for a new trial upon any of the grounds of the motion for a new trial. We have examined carefully all the assignments of error, and for no reason pointed out do we find the success of the plaintiff in this case to be the result of legal error. Nor can we hold that the verdict was excessive, especially since the plaintiff voluntarily wrote off $5,000, thus reducing the amount of the recovery to $17,500.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    14816.
    Davis v. Virginia-Carolina Chemical Co.
   Luke, J.

1. Tlie agent of a corporation may testify as a witness in a ease to which the corporation is a party, concerning transactions between himself, in behalf of the corporation, and a person since deceased whose executor or administrator is the other party in the case. Ullman v. Brunswick Title Guarantee & Loan Co., 96 Ga. 625 (1) (24 S. E. 409); DeVane v. DeVane, 149 Ga. 783 (1) (102 S. E. 145); Hines v. Snell, 27 Ga. App. 92 (2) (107 S. E. 349).

2. There was evidence to warrant the jury in concluding that the purchase of the guano sued for was an original undertaking of the deceased.

Decided January 15, 1924.

Complaint; from city court of Reids ville—Judge Cowart. June 11, 1923.

H. E. Elders, for plaintiff in error.

Anderson & Trapnell, contra.

3. The amended motion for a new trial discloses no reversible error.

Judgment affirmed.

Broyles, G. J., and Blood-worth, J., concur.


author: Luke J.

text:
    14954.
    Jones, receiver, v. Central Investment Co.
    Decided January 15, 1924.
    Motion to set aside judgment; from city court of Richmond county—Judge Black. July 16, 1923.
    IF. Inman Gurry, for plaintiff in error.
    IF. P. Gongdon, Alexander & Lee, contra.
   Luke J.

Where the receiver appointed for a corporation moves to set aside a judgment rendered against the corporation by default prior to the receivership, basing the motion upon the ground that the corporate officer on whom service of the petition and process was perfected was insane at the time of the service, and this is denied in the respondent’s answer, and the evidence upon this issue is iii sharp conflict, and the judge of the lower court, sitting as trior, finds against the motion, his judgment, having some evidence to support it, will not be disturbed by this court.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.