text:
    14417.
    Hearn v. Red Devil Company.
    Decided October 11, 1923.
    Complaint; from city court of Valdosta—Judge Little. Febru- ' ary 15, 1923.

      Patterson & Copeland, for plaintiff in error.

      A. T. Woodward, Dan R. Bruce, contra.
   Bell, J.

Where a witness testifies to a fact, the presumption, in the absence of anything to the contrary, is that he is testifying from his own knowledge and recollection. Shaw v. Jones, 133 Ga. 446 (3) (66 S. E. 240); Flint River & Northeastern R. Co. v. Maples, 10 Ga. App. 573 (2) (73 S. E. 957); Atlanta Glass Co. v. Noizet, 88 Ga. 43 (2) (13 S. E. 833). Where a witness testifies to the weights of certain articles weighed by himself, and his testimony is based apparently upon his independent recollection, it is not rendered inadmissible merely because it may appear, without more, that he made a memorandum of the weights at the time, which is not produced. The evidence authorized the finding and judgment rendered by the judge, sitting without a jury, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    14492.
    Harvey v. Bartow County.
   Bell, J.

1. “On the trial of a case it is the duty of the court, with or without request, to charge the jury the law applicable to the substantial issues involved; and in the absence of sueii instruction the verdict will be set aside.” Pusser v. Thompson, 147 Ga. 60 (1) (92 S. E. 866).

2. Negligence is the failure to perform a duty of diligence toward one entitled thereto,, or to use that degree of care which is due to another, under the circumstances, by the party charged. Harden v. Georgia Railroad Co., 3 Ga. App. 344 (59 S. E. 1122); Powell v. Berry, 145 Ga. 696 (2) (89 S. E. 753, L. R. A. 1917A, 306).

Decided October 11, 1923.

Action for damages; from Bartow superior court—Judge Tarver. February 19, 1923.

Finley & Henson,AW. G. Henson, M. B. Fubanks, for plaintiff.

J. H. Wikle, Paul F. Akin, for defendant.'

3. In tlie trial of a case in which the plaintiff bases his right of action upon acts or omissions of the defendant, alleged to be negligent, but not negligent per se, the jury, being required to determine whether the acts constituted negligence as alleged; may not correctly do so by the standards of the law unless they are told by appropriate instructions what degree of care was due by the defendant. In the instant ease the plaintiff sued the county for injuries alleged to have resulted from the negligent construction and maintenance of a bridge and its necessary approaches. The court properly submitted to the jury the question ■ whether the acts complained of constituted negligence, but nowhere instructed them as to the duty of the county to exercise ordinary care to keep the bridge and its necessary approaches in a condition reasonably safe for use by the public in the ordinary modes of travel. See County of Tattnall v. Newton, 112 Ga. 779 (2) (38 S. E. 47); Howington v. Madison County, 126 Ga. 699 (2) (55 S. E. 941); Morgan County v. Glass, 139 Ga. 415 (4) (77 S. E. 583). Whether the county was negligent as claimed, and whether, if so, such negligence was the cause of the plaintiff’s damage, being issuable under the pleadings and the evidence, and the jury having found for the defendant, the omission to charge the jury as indicated, even without request, in regard to the standard of diligence due by the county, was reversible error. Compare Evans v. Nail, 1 Ga. App. 42 (1) (57 S. E. 1020); Virginia Bridge & Iron Co. v. Crafts, 2 Ga. App. 126 (1) (58 S. E. 322); Phenix Insurance Co. v. Hart, 112 Ga. 765 (1) (38 S. E. 67); Whelchel v. Gainesville & Dahlonega Electric Ry. Co., 116 Ga. 431 (3) (42 S. E. 776); Freeman v. Nashville, Chattanooga & St. Louis Ry. Co., 120 Ga. 469 (1) (47 S. E. 931); Atlanta, Knoxville & Northern Ry. Co. v. Gardner, 122 Ga. 82 (8) (49 S. E. 818).

(а) It is immaterial as against the above ruling that the omission could have been hurtful to the county, in that the jury might have held it liable for negligence less than a failure to exercise ordinary care. They did not find against the county, and it cannot be said that, in determining whether the county was negligent and in finding against the plaintiff, they did not do so on the assumption that the county owed to the plaintiff a lesser duty than ordinary care.

(b) This is not to hold that it is error to fail to define negligence (see Western Union Telegraph Co. v. Ford, 10 Ga. App. 606 (5), 74 S. E. 70; Wakefield v. Lee, 18 Ga. App. 648 (4), 90 S. E. 224), but that there was an omission of necessary instructions upon the law applicable to the issues involved.

4. For the reasons stated above, the court erred in overruling the plaintiff’s motion for a new trial. The other grounds of the motion are without merit.

Judgment reversed.

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


text:
    14500.
    DYKES v. PORTER.
    A deed or bill of sale, absolute on its face and accompanied with possession of the property, cannot be proved (at the instance of the parties) by parol evidence to be a mortgage only, unless fraud in its procurement is the issue to be tried. Civil Code (1910), § 3258. But a deed absolute in form may be shown to have been made to secure a debt where the maker remains in possession of the land conveyed. Mercer v. Morgan, 136 Ga. 632 (1) (71 S. E. 1075) ; Band v. Mallheios, 153 Ga. 75 (1) (111 S. E. 408). There was ample evidence to authorize the inferences implied in the verdict found for the plaintiff: (a) that the defendant was indebted to the plaintiff on an account as alleged in the petition; (i>) that a certain deed made and delivered by the defendant to the plaintiff was never “accompanied with possession of the property” in the plaintiff, but that the maker remained in possession of the land so conveyed; and (c) that the deed, though “absolute on its face,” was made merely as security for the debt mentioned above. While the evidence was in conflict as to each of these issues, the jury saw fit to resolve the dispute fn favor of the plaintiff. No error of law is complained of, and, the judge who tried the ease having approved the verdict, this court, as has often been ruled, is without authority to interfere.
    Decided October 11, 1923.
    Complaint; from Bleckley superior court—Judge Graham. March 3, 1923.

      J. M. BlecMey, H. E. Coates, for plaintiff in error.

      L. A. Whipple, C. A. Weddington, W. A. Wooten, contra.
   Bell, J.

This was an action on account by C. C. Porter against John W. Dykes for the recovery of $4,000,- alleged to have been secured by a deed to lands. A verdict was found for the plaintiff. The defendant excepted to the denial of his motion for a new trial.

It is undisputed that the plaintiff, on November 30, 1920, made a conveyance to Dykes, the defendant, of certain lands which were bargained at the agreed consideration of $15,000; that the lands were paid for in part by other real estate, conveyed to the plaintiff at a valuation of $7,000, and by a promissory note for the sum of $4,000. This left a balance -of $4,000 due to the plaintiff on the purchase-price of the lands first referred to. Thus far the parties are agreed. It was alleged in the suit that the item of $4>000 last mentioned above was due by the defendant and unpaid, representing the balance of the purchase-price of the lands first referred to; that to secure the payment of this item the defendant conveyed to the plaintiff a third tract of land, of which the defendant remained in possession, and that although the deed was absolute on its face, it was in fact merely a deed to secure debt. The plaintiff prayed to recover the $4,000, with interest, and for a special lien upon the land herein designated as the third tract.

The defendant contended that the conveyance of the third tract was in pursuance of an absolute bargain, at a valuation of $4,000, and in full payment of the balance due upon the lands procured by the defendant from the plaintiff. The defendant further claimed that such conveyance was accompanied by a surrender of the possession to the plaintiff of the lands in question, with the exception of the right of the defendant to remove certain timber. These contentions the plaintiff denied.

The disputed issues between the parties were therefore as stated in the headnote, upon each of which the evidence was in conflict. A verdict would have been authorized for either party, but the jury resolved the issues in favor of the plaintiff. No error of law is complained of. The judge who tried the case has approved the verdict by overruling the defendant’s motion for a new trial. In such a case, as has often been ruled, this court is without authority to interfere.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    14241.
    Shiell v. Davis, agent, etc.
   Jenkins, P. J.

1. Section 206 (a) of the Federal “transportation act” of February 28, 1920 (Fed. Stat. Ann., Supp. 1920, p. 77) provides that “Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal control act, or of the act of August 29, 1916) of such character as prior to Federal control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated within thirty days after the passage of this act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal statutes, but not later than two years from the date of the passage of this act, be brought in any court which but for Federal control would have had jurisdiction of the cause of action had it arisen against such carrier.” In an action filed against and served upon a railway corporation during the period of its control by the Federal director-general of railroads under the Federal control act of 1918 and previous legislation, or within two years subsequent to the date of the act quoted, for a cause of action arising during such control, a proper amendment making the Federal agent as designated by the President a party defendant could be filed and allowed even after the expiration of two years from the date of the act, since such an amendment would relate back to the time of filing the original suit. Akin v. Ordinary, 54 Ga. 59 (5); Sanders v. Allen, 135 Ga. 173 (1) (68 S. E. 1102); Robinson v. Cen. of Ga. Ry. Co., 150 Ga. 41 (3), 45 (102 S. E. 532), 25 Ga. App. 507 (104 S. E. 784); Hines v. Zellner, 25 Ga. App. 272 (103 S. E. 97); Rose v. Hines, 25 Ga. App. 791 (2) (104 S. E. 784); Byrd v. Hines, 26 Ga. App. 726 (106 S. E. 925). Where, however, such a suit, against the railway corporation as such, was filed and served on the railway corporation in November, 1921, after the period of Federal control under section 200 of the “transportation act” had terminated on March 1, 1920, for a cause of action arising during Federal control, and such an amendment was offered on May 23, 1922, both after control by the Federal director-general had terminated and after the railroad had been returned by the government to the original corporate owner, the cause of action arising during government control was maintainable against the government only by virtue of the provisions of the act of 1920; and where such amendment sought only to make defendant a named person as “director-general of railroads in charge of” the said railroad, without essential facts, either showing that such person was the designated agent of the president for the purpose of maintaining such suits, or otherwise indicating an intention to proceed against the agent designated by the President under that act, it was not a proper amendment, and the court did not err in striking the petition as thus sought to be amended.

2. Subdivision (b) of section 206 of the Federal “transportation act” of 1920 (Fed. Stat. Ann., Supp. 1920, p. 78) provides, with reference to service upon the designated agent of the President, as follows: “Process may be served upon any agent or officer of the carrier operating such railroad or system of transportation, if such agent or officer is authorized by law to be served with process in proceedings brought against such carrier, and if a contract has been made with such carrier by or through the President for the conduct of litigation arising out of operation during Federal control. If no such contract has been made, process may be served upon such agents or officers as may be designated by or through the President.' The agent designated by the President under subdivision (a) shall cause to be filed, upon the termination of Federal control, in the office of the clerk of each district court of the • United States, a statement naming all carriers with whom he has • contracted for the conduct' of- litigation arising out of operation during Federal control, and a'like' statement designating the agents or officers upon whom process may' be served i-n actions, suits, and proceedings arising in respect to railroads or systems of transportation with the owner of which no such contract has been made; and such statements shall be supplemented from- time to time, if additional contracts are made or other agents or officers appointed.” Where it was sought to amend a suit against a railway corporation, such as described above in paragraph 1, by making a named person, as “director-general of railroads in charge of” such railway, a party defendant, where á return of service thereon was made by the sheriff as follows: “I have this day served the defendant, James C. Davis, director-general of railroads in charge of the Seaboard Air-Line Railway Company, by handing a copy of the within petition, jirocess, and amendment to A. Sweerus, agent in charge of the office and place of business of defendant at Townsend, said county and State,” and where, in a trial of a traverse to such return, filed by the Eederal agent designated by the President (specially appearing for that purpose), it was shown by the undisputed evidence that, •while the person actually served was the agent of the railway corporation prior to Eederal control, and had been employed by the railroad administration during Eederal control, he had ceased to represent the railroad administration, and at the time of service was the agent (only of the original railway corporation, no proper service upon the Federal agent designated by the President was shown, even could the amendment, designating as a party defendant the “director-general of railroads in charge of” said railroad, be taken to have been properly brought against such Eederal agent. The trial judge, passing by consent on both the law and the facts, properly sustained the traverse.

Decided October 12, 1923.

Complaint; from McIntosh superior court—Judge Sheppard. December 5, 1922.

Tyson & Tyson, for plaintiff.

Conyers & Wilcox, for defendant.

Judgment affirmed.

Stephens and, Bell, JJ., eoneur.


text:
    14274.
    Atlanta, Birmingham & Atlantic Railway Company v. Whitehead.
   Jenkins, P. J.

In a suit for damages against a railway company on account of the burning of property adjacent to its line, while it is the rule that, upon it being shown by the plaintiff that the injury to his property was occasioned by sparks emitted from the defendant’s locomotive, a rebuttable presumption thereupon arises that the loss was caused by the alleged particular acts of negligence complained of (Central of Ga. Ry. Co. v. Trammell, 23 Ga. App. 25 (2), 97 S. E. 461), it is neverthe- . less true that the petition of the plaintiff must set forth and charge that the defendant was guilty of some specific act of negligence, consisting either in the use of some particularly mentioned defective and dangerous machinery, or in some specific act of negligence in the manner of operating the train, and that the negligence thus charged resulted in the loss complained of. Mere general allegations that the fire was caused by the careless and negligent operation of the train, without averring any particular causal defect in the machinery used, or any special lack of care in the operation of the train, while sufficient as against general demurrer, renders the petition subject to a timely special demurrer. Pierce v. Seaboard Air-Line Ry., 120 Ga. 230, 232 (47 S. E. 581); Kemp v. Cen. R. Co., 122 Ga. 559 (50 S. E. 465); Southern Ry. Co. v. Ryals, 123 Ga. 330 (1) (51 S. E. 428); Macon, Dublin & Savannah R. Co. v. Stewart, 120 Ga. 890 (1) (48 S. E. 354); Louisville & Nashville R. Co. v. Cody, 119 Ga. 371 (46 S. E. 429). In this ease, the special demurrer should have been sustained.

Decided October 12, 1923.

Action for damages; from Dooly superior court—Judge Gower. December 28, 1922.

The petition alleged negligence as follows: “The said defendant company set fire to the above-described houses by negligence and careless operation of a locomotive pulling a freight-train, by negligently allowing said engine to emit sparks therefrom, said sparks, on account of the negligence of said defendant company, its agents or employees, setting fire to said property, and each of the above five tenant houses were thereby totally destroyed.” In response to the defendant’s demurrer, setting up, among other grounds, that “there are no specific acts of negligence charged against the defendant,” the plaintiff amended, alleging that fire was discovered in the roof of one of the houses “soon after the said engine had left from the tracks of said company immediately west of said houses,” and that “at the time of the firing of said houses a strong wind was blowing from the northwest, and the freight-engine of said company was, for some time before the fire was discovered, drilling-cars on the side-track of said company, and immediately after said engine had departed the said fire was discovered in the top of one of said houses as aforesaid.” There is no other allegation of negligence.

Brandon & Hynds, Wall & Grantham, Woodward & Bedding-field, for plaintiff in error.

W. H. Lasseter, contra.

Where exceptions pendente lite are taken and preserved by the defendant to the improper overruling of such a special demurrer, the subsequent proceedings are rendered nugatory. So. Ry. Co. v. Pope, 129 Ga. 842 (3) (60 S. E. 157); So. Ga. Ry. Co. v. Ryals, 123 Ga. 330 (1), 332 (51 S. E. 428).

Judgment reversed.

Stephens, J., concurs. Bell, J., disqualified.


text:
    14279.
    Perry v. Lowry Company et al.

    Decided October 12, 1923.
    Garnishment; from city court of Atlanta—Judge Reid. December 16, 1922. .

      B. F. Woodruff, Randolph & Parlcer, for plaintiff in error.

      Etheridge, 8ams & Etheridge, contra.
   Jenkins, P. J.

1. Upon the trial of a traverse to an officer’s return of service, the entry of service “is to be taken as more than merely prima facie true; and in order to justify a finding against the return, the evidence should be the strongest of which the nature of the case will permit, and even then it will not be deemed sufficient unless it be, in the opinion of the jury, so explicit and convincing as to show clearly that the entry of service is false.” Cochran v. Whitworth, 21 Ga. App. 406, 407 (4) (94 S. E. 609).

2. The evidence of the officer making the return, to the effect that on going to defendant’s place of business and inquiring for him, he served the person answering to that name, that to the best of his knowledge and belief the defendant then in court was the same person then served, and that “since seeing him so often here, I am more satisfied now than I ever was that he is the man that I served,” authorized the jury to reject the evidence for the defendant that he was out of the State on the date of the service. Gray v. State, 6 Ga. App. 428 (4) (65 S. E. 191).

3. The special ground of the motion for new trial excepting to the admission of evidence, which was subsequently excluded by the court, is without merit. Buchanan v. State, 137 Ga. 774 (1) (74 S. E. 536); McLean v. Hattan, 127 Ga. 579 (1) (56 S. E. 643). The remaining grounds, excepting to the admission, on cross-examination, of certain other evidence as being irrelevant to the issue involved, show no error which might reasonably be taken as pi'ejudicial to the rights of the plaintiff in error, and consequently do not authorize a reversal.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14282.
    Hosch v. Smith et al.

   Jenkins, P. J.

The Supreme Court in transferring this case to this coui-t held: “This is a contest on a money rule, and involves competition between a mortgage fi. fa. based on the judgment of foreclosure of an unrecorded mortgage, and an execution based upon a judgment in attachment, the attachment having been levied after commencement of the suit to foreclose the mortgage and prior to the judgment absolute rendered in that case. Under the pleadings and the evidence no facts were involved which would entitle either party to equitable relief. The remedy is purely statutory.” Hosch v. Smith, 154 Ga. 789 (115 S. E. 646), citing Elmore v. So. Bk. & Trust Co., 150 Ga. 811 (105 S. E. 574). Thus, applying the established doctrine under the statutes, that “a junior lien by operation of law will take precedence of an older unrecorded mortgage lien, though actual notice” of the previous unrecorded lien be had by him who acquired the junior lien, it follows that the lien of the attachment, duly levied and prosecuted to a general and special judgment with a properly recorded execution, all prior to the time that judgment was obtained on the unrecorded mortgage, must be held superior to the right of the mortgage creditor. It was therefore error for the trial court, passing upon the law and the facts, to award the fund in question to the mortgagee. Cottrell v. Merchants Bank, 89 Ga. 508, 517 (15 S. E. 944), and cases cited; Civil Code (1910), §§ 5124, 3260; Richards v. Myers, 63 Ga. 763; Burke v. Anderson, 40 Ga. 535, 540, 541; So. Iron & Equipment Co. v. Voyles, 138 Ga. 258, 264 (75 S. E. 248, 41 L. R. A. (N. S.) 375, Ann. Cas. 1913D, 369); North v. Goebel, 138 Ga. 739 (76 S. E. 46); Cambridge Tile Co. v. Scaife, 137 Ga. 281 (2) (73 S. E. 492); Shaw v. Renfroe, 11 Ga. App. 807, 808 (76 S. E. 363); Phillips & Crew Co. v. Drake, 13 Ga. App. 764 (79 S. E. 952).

Decided October 12, 1923.

Money rule; from Hall superior court—Judge J. B. Jongs. February 19, 1922.

Hammond J ohnson, for plaintiff in error.

J. G. Collins, W. V. Lance, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14374.
    Turk v. Raymond Phonograph Company.
    Decided. October 12, 1923.
   Jenkins, P. J.

In this suit on open account for the purchase-price of certain phonographs, the court erred in directing a verdict for the plaintiff for the full amount sued for, since there was oral evidence offered by the defendant, from which the jury would have been authorized to find that there was a failure of consideration with reference to two of the three phonographs delivered by the plaintiff to the defendant, and that the defendant, as required by a provision in the correspondence expressing the sale agreement of the parties, had within the necessary ten days after receipt and attempted use of the machines notified the plaintiff that they wore unsatisfactory. Under a proper construction of this clause, providing that, “if after 10 days fair trial you are not satisfied, or the machines were not what they were represented to be, we will upon receipt of advice from jmu furnish shipping instructions, refunding you whatever you have paid,” it was not necessary for the defendant expressly to request the plaintiff to furnish shipping instructions; but a notification within the stipulated time that the machines were unsatisfactory would suffice, and place upon the vendor such onus, where the purchaser, after so rejecting the machines, held them subject to the vendor’s order. The remaining grounds of the defendant’s motion for new trial, involving questions not likely to recur on a succeeding trial, are not such as to require determination.

Judgment reversed.

Stephens and Bell, JJ., concur.

Complaint; from Taylor superior court—Judge Munro. February 2, 1923.

Gilbert G. Robinson, C. B. Marshall, for plaintiff in error.

Homer Beeland, contra.


author: Jenkins, P. J.,

text:
    14381.
    Terry v. Farmers Supply Company.
    Decided October 12, 1923.
    Complaint; from Randolph superior court—Judge Custer. January 20, 1923.

      G. W. Worrill, for plaintiff in error.

      J. TF. Harris, contra.
   Jenkins, P. J.,

The only grounds of the motion for new trial being that the verdict against the defendant is unauthorized by any evidence, because the account sued upon was not that of the defendant but that of another, and the verdict being fully supported by evidence tending to show that the liability was that of the defendant, under credit extended upon his express authority, this court cannot interfere with the action of the trial judge denying the motion for new trial. Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14389.
    Atlantic Paper & Pulp Corporation v. Williams.
   Jenkins, P. J.

1. In a suit on an alleged contract for salary, the plaintiff’s allegation that “on or about January 15, 1921,” he was employed “for the year 1921 at a salary of $250 per month,” was sufficient as showing how and when the salary was to be paid. In view of the plaintiff’s amendment, the defendant in its brief abandons the remaining grounds of special demurrer and the general demurrer to the petition.

2. By amplification of the general grounds of its motion for new trial, the defendant in its amended motion contends that the verdict for the plaintiff employee was contrary to law, as being without evidence to support it, because the plaintiff’s proof failed to show the existence of the yearly contract claimed, or that there had ever been a meeting of the minds of the parties “as to a contract for a definite and specific term,” and that such alleged contract was “lacking in mutuality of obligation because the plaintiff did not agree to remain in the employment of the defendant for any definite length of time.” The chief contention relates to the plaintiff’s testimony that he advised the defendant’s agent who employed him as to the contents of a letter received by him from a former employer offering him a position for the ensuing year, and asked the agent wliat he could count on for the coming year 1921, and that the agent advised him that the defendant would “do as much for” him as the former employer offered. It is contended that this evidence failed to make out a case. Complaint is also made in the briefs as to the sufficiency of proof relating to the contents of the letter in question, because the letter was not offered in evidence. No objection or exception, however, was taken to the admission of < the parol evidence. Under the plaintiff’s evidence, offered without objection, as to the contents of the letter, that the agent advised him the company “would accept this letter as a contract from the company for 1921,” and will “do the same thing as they will do,” and that “he then employed me by the year,” and further, that when the plaintiff asked whether he “could count on the job with him for 1921,” the agent replied, “we will do as much for you as the Tyler people will do, and we want you to stay with the company,” and under the additional evidence as to the acts and duties of the person employing the plaintiff, from which the jury were authorized to find that he was an authorized general agent of the defendant, and the evidence as to the plaintiff’s continuance in the employment until his discharge, from which the jury were authorized to find an implied acceptance, if not what was tantamount to an actual express acceptance of the terms of contract which; under the plaintiff’s evidence, he himself had proffered for the defendant’s acceptance, the verdict was fully authorized, and the general grounds of the motion for new trial as amplified are without merit.

Decided October 12, 1923.

Action for breach of contract; from Chatham superior court-judge Meldrim. February 16, 1923.

3. The court instructed the jury as follows: “He [referring to the plaintiff] says that he continued in the employment of the defendant from April 1st to January 1st, 9 months, at $250 per month, which would aggregate the sum of $2,250, and lie lias received during that time, from commissions on the sale of flour, $317.17; so his contention is, in dollars and cents, that the defendant 'owes him $1,932.83.” Error is assigned upon this charge, and it is contended that, since the- evidence showed that the plaintiff was discharged and performed no service for the defendant after April 1, 1921, the use of the language “continued in the employment” of the defendant after that date was misleading, confusing, and “tended to impress the jury with the idea that services of value had been performed by plaintiff for defendant for which he had never been paid.” Under the clearly defined issue raised by the pleadings and proof, by which the plaintiff sought the recovery solely of salary, not for services actually performed, but due on account of his discharge under his alleged yearly contract, and under the judge’s charge clearly stating the contentions with reference thereto, the language complained of, if slightly inapt, could not reasonably have misled the-jury, but must have been taken as palpably intended to mean that the plaintiff contended that his .contract of employment “continued” for the period stated, or that he legally “continued” as such employee under the contract.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Hitch, Denmark & Lovett, for plaintiff in error.

W. G. Warnell, Simon N. Gazan, contra.


text:
    14415.
    Gross v. Smith.
   Jenkins, P. J.

1. Under the law of this State a married woman cannot assume the debt of her husband, and no superficial appearance will be permitted to lead the court away from the true inwardness of the transaction. Thus, if the wife did not in fact purchase and was not to receive the machinery under the contract sued on, but the whole transaction was merely a colorable scheme or device by which the wife was induced by the plaintiff to assume the previous debt of the husband, without any consideration flowing to her, she would have the right to repudiate the entire illegal and void transaction, no matter by what device its true inwardness and purpose had been concealed. Simmons v. International Harvester Co., 22 Ga. App. 358, 359 (96 S. E. 9). But where the creditor, at the time a debt is created, really intends in good faith to extend the credit to the wife, and not to the husband, and the consideration 'of the property thus purchased passes legally and morally to the wife, and where the writings then executed are such as purport to bind her for the debt as her own, then, whatever may be the private understanding between the wife and the husband, in which the creditor is not concerned and in which he has no interest, as to the disposition by the wife of the property so received by her, the writings are to be treated as embracing the true substance of the contract. Nor does it matter in such ease that the negotiations leading to the purchase are in fact all had through the husband as her agent, where the transaction appears to be the bona fide and voluntary contract of the wife. Hull v. Sullivan, 63 Ga. 126 (1, 3), 134, 136, 137; Strickland v. Gray, 98 Ga. 667 (27 S. E. 155); McDonald v. Bluthenthal, 117 Ga. 120, 122, 123 (43 S. E. 422); Johnson v. Leffler Co., 112 Ga. 670 (50 S. E. 488); Schofield v. Jones, 85 Ga. 816, 819 (11 S. E. 1032); Nelms v. Keller, 103 Ga. 745 (30 S. E. 572); Gross v. Whiteley, 128 Ga. 79, 82 (57 S. E. 94); Third Nat. Bank of Columbus v. Poe, 5 Ga. App. 113 (62 S. E. 826); Longley v. Bank of Parrott, 19 Ga. App. 701 (92 S. E. 232).

2. Where a purchase-money note thus importing a legal and valid consideration is voluntarily and, in law, knowingly signed by a wife, she is bound by a stipulation therein expressly waiving all failure of consideration, and relieving the vendor of all guaranties. Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2) (94 S. E. 892); Case Threshing Machine Co. v. Broach, 137 Ga. 602 (1-3) (73 S. E. 1063); Pryor v. Ludden & Bates, 134 Ga. 288, 289-92 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Bond v. Perrin, 145 Ga. 200 (88 S. E. 954); Washington & Lincolnton R. Co. v. Southern Iron Co., 28 Ga. App. 684, 685 (1) (112 S. E. 905); Connell v. Newkirk-George Motor Co., 28 Ga. App. 382 (111 S. E. 749); Butler v. Citizens Bank, 28 Ga. App. 184 (2) (110 S. E. 501); Brooks v. Williams Mfg. Co., 29 Ga. App. 358 (115 S. E. 150).

Decided October 12, 1923.

Complaint; from city court of Sylvania—Judge Evans. February 13, 1923.

The action was upon two promissory notes, each embodying a mortgage upon an automobile, and one containing this clause: “I

hereby waive all failure of consideration, the said [vendor] making no guarantee.” An amendment to the petition alleged that “both notes were executed at the same time and covered the purchase-price of said automobile.” The defendant in her plea set up two defenses: (1) that the debt represented by the notes was that of her husband, who made the trade for the car with the plaintiff and the plaintiff’s agent for his own use and benefit, and after the making of the trade the said agent, with her husband, procured her to sign the notes, and that no consideration or benefit flowed or accrued to her; and (2) that her husband advised the plaintiff and said agent that he was purchasing the car for the purpose of vending medicine; that “they represented that said automobile was in first-class condition, that it was suitable for the purpose he desired;” and that, “relying upon these representations, he purchased same, and asked . . petitioner, his wife, to sign said notes;” that “these representations were false and fraudulent, that they were made for the purpose of deceiving this defendant and her husband, and they did actually deceive them into the giving of said notes, when in point of fact said automobile was wholly worthless” by reason of certain alleged defects; that these “defects were not apparent to this defendant or her husband, who were inexperienced in automobiles; but as soon as her husband attempted to use the car the defects developed;” that the car “was wholly unsuited for the purpose for which it was sold;” that upon discovering the defects the defendant and her husband promptly advised the plaintiff, who promised to “make it right,” but that he subsequently failed and refused to do so; and that they had tendered the car back to the plaintiff in as good condition as when sold, and continued such tender. The defendant assigns error on tbe order sustaining a general and special demurrer to this^plea and striking it, and to the final judgment entered for the plaintiff.

3. There being in the plea nothing to dispute the valid consideration imported by the written instrument, and the second ground of defense amounting to nothing more than an attempt to set up a breach of an express warranty, the court did not err in striking the plea on demurrer.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

E. 8. White, for plaintiff in error.

J. 8. Powell, contra.


text:
    14418.
    LaGrange Grocery Company v. City of LaGrange.
   Jenkins, P. J.

1. Liens for taxes due to a municipal corporation of the State “cover the property of taxpayers liable to tax from the time fixed by law for valuation of the same in each year until such taxes are paid,” and are superior to all other liens except for taxes due to the State or its counties. Civil Code (1910), §§ 3333, 3329 (1) ; Perteet v. Fricks, 9 Ga. App. 637 (71 S. E. 1121).

(a) Under section 26 of the charter of the City of LaGrange (Ga. L. 1901, 486), “any person owning or holding property of any kind in any capacity within the corporate limits of said city, on the first Wednesday in May in each year after the passage of this act, shall return the same for taxation under oath at any time from and after the first Wednesday in May and until the first Wednesday in July of each year.” Under section 28 of said charter (p. 488), where property “for any reason has not been assessed for taxation and taxes collected thereon, in any year then passed, the city tax-assessors may at any time assess said property for the said year or years;” and where no execution has been issued and such taxes are unpaid, “executions may issue at any time, based on said assessments.” In the instant case, under the agreed facts, the City of LaGrange was fully empowered to issue, on April 27, 1922, its execution for city taxes due for the years 1920 and 1921.

2. The lien of the City of LaGrange for its taxes upon property subject to valuation for taxation in 1920 and 1921 was superior to the title acquired by the purchaser at a sheriff’s sale made on the first Tuesday in March, 1922, under a levy based on a common-law execution, although such tax execution was not recorded. Analogous to the statutory rule governing liens of the State for taxes (Civil Code of 1910, § 1141; Wilson v. Boyd, 84 Ga. 34, 10 S. E. 499), the sale under the common-law execution did not divest the lien of the municipality for its due and unpaid taxes. Freeman v. Mayor Sc. of Atlanta, 66 Ga. 617 (1). The rule that, “where taxes have accrued upon lands belonging to the estate of an intestate while in the hands of his administrator to be administered, and by proper order of the court of ordinary he sells the lands, the tax lien thereon is divested and transferred to the fund realized from the sale,” is not applicable to the facts of this ease. Herrington v. Tolbert, 110 Ga. 528 (35 S. E. 687); Civil Code (1910), §§ 4029, 4000. Nor is the ruling in Patton v. Camp, 120 Ga. 936, 940 (48 S. E. 363), applicable, in which ease it was held 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.”

Decided October 12, 1923.

' Levy and claim; from Troup superior court—Judge Eoop. February 9, 1923.

The case was submitted to the trial judge upon the following agreed statement of facts: “On April 27, 1922, there was issued by the City of LaGrange a fi. fa. against T. W. White for the sum of $144.40, for taxes due the City of LaGrange, assessed for the years 1920 and 1921. Of this amount $73.15 was a balance due for the taxes for the year 1920, and $41.25 was for balance due of the taxes for the year 1921. The fi. fa. was not recorded in the clerk’s office. The fi. fa. was on April 27, 1922, by F. T. Eeed, marshal of the City of LaGrange, levied on one American Fountain Company soda-fount and marble counter, and three glass showcases, as the property of T. W. White, then situated in a store on the west side of court square in the City of LaGrange, occupied by T. W. White as a place of business. The said property was thereafter duly advertised for sale under said fi. fa. by the said marshal of the City of LaGrange, and prior to the sale the LaGrange Grocery Company filed a claim to said property, claiming that the property was not the property of T. W. White, but the property of the LaGrange Grocery Company, and gave bond as required by law. The claim of the LaGrange Grocery Company is based upon the fact that on the first Tuesday in March, 1922, the LaGrange Grocery Company purchased the property levied on, at a sheriff’s sale, without knowledge that the city taxes were not paid, this sale being made under a levy based on a common-law fi. fa. issued in the case of Jacobs’ Candy Company v. T. W. White & Company, issued from the city [court] of LaGrange. The LaGrange Grocery Company, having a mortgage on said property, placed a mortgage fi. fa. in the hands of the sheriff, and claimed the proceeds arising from the sale of said property as aforesaid; and said proceeds, less the court costs, were paid to the LaGrange Grocery Company, or credited by the LaGrange Grocery Company on its mortgage fi. fa.”

3. No question of laches properly arises in the instant case. Even if the claimant of the property, by purchase at the previous sale under the common-law execution, could be heard to raise the question of laches (Strickland v. Jones, 131 Ga. 490 (6) (62 S. E. 322), or of the failure of the city to observe the provisions in its alleged ordinance requiring it to give the owner of property 5-days notice prior to the issue of a tax execution, the alleged ordinance not appearing in the record, and the point being raised for the first time in the brief of counsel, the question cannot be considered. Collier v. Schoenberg, 26 Ga. App. 497 (3), 498 (106 S. E. 581); Southeastern Mut. Fire Ins. Co. v. Williams, 29 Ga. App. 236 (1) (114 S. E. 716).

4. The judge, passing upon the claim without the intervention of a jury; under the agreed statement of facts, correctly found the property subject to the city’s tax lien.

Judgment affirmed.

Stephens and Bell, JJ., concur.

L. B. Wyatt, Walter B. Branan, for plaintiff in error.

Lovejoy & Mayer, contra.


text:
    14506.
    Niemeyer v. Dougan, trustee.
   Bell, J.

1. Where demurrers to a petition were overruled on January 17, 1923, and where during the term of court convening thereafter a verdict and judgment were rendered for the plaintiff on March 13, 1923, exceptions to the overruling of the defendant’s demurrers, taken for the first time (no exceptions pendente lite being filed) in the bill of exceptions to the verdict and judgment, presented on March 28, 1923, were too late, and present no question for decision. Furthermore, the overruling of such of the demurrers as challenged the right or interest of the plaintiff in the cause of action, or otherwise went to the merits of the plaintiff’s ease, being unexcepted to, stands as an adjudication, under the law of the case, that the petition set forth a cause of action in the plaintiff. Where in such a case the allegations of the petition are established either by the evidence or the admissions of the defendant in his plea or otherwise, a verdict for the plaintiff is not illegal.

2. “If one purchases stock in a corporation and thereupon the company proceeds to do business upon the basis that he is a stockholder, and incurs indebtedness, such purchaser cannot, after insolvency of the company, obtain relief on the ground of fraudulent representations of an agent of the company in selling him the stock, as against creditors thus obtaining rights.” Empire Life Insurance Co. v. Brown, 145 Ga. 818 (2) (89 S. E. 1085).

3. While the act of August 17, 1912 (Ga. L. 1912, p. 153; Bark’s Code, §§ 4294 (a), 4294 (b) ), “requires that a note or other evidence of debt given for the purchase-price of stock in any incorporated company, sold by any peddler, agent, or traveling salesman or promoter, traveling for the purpose of making such sale, shall have expressed on its face the consideration thereof (not including sales after the original, purchase-price has been paid and the certificates of stock have been issued), it further declares that any person who may purchase any such note or evidence of debt ‘when the consideration is expressed in the face of the note or contract,’ shall take it subject to all the equities between the original parties. It follows that where a negotiable note is given for such stock, but does not express on its face the consideration, a bona fide purchaser for value before due and without notice fakes free from any defense by the maker on account of equities between the original parties.” Heard v. National Bank of Wilkes, 143 Ga. 48 (1) (84 S. E. 129).

Decided October 12, 1923.

Complaint; from city court of Savannah—Judge Freeman. March 13, 1923.

Frederick A. Tulen, for plaintiff in error.

Gignilliat & O’Neal, contra.

4. A note given for shares of stock in a corporation subject to the provisions of the act of 1913 (Ga. L. 1913, p. 117), known as the “blue sky law,” is not void because of a failure of the company to comply with the act, but voidable only, and is enforceable in the hands of an innocent purchaser taking before maturity. Evans Co. v. Bryson, 146 Ga. 278 (91 S. E. 71).

5. The rulings announced in the three preceding paragraphs are also applicable in favor of creditors who became such after the sale and purchase of the stock (see Gress v. Knight, 135 Ga. 60, 68 S. E. 834, 31 L. R. A. (N. S.) 900), and the only conclusion dcducible from the answer in the instant case,—an action on notes for the purchase-price of corporate stocks,—is that the transaction in which the notes were given was with a promoter of the corporation during the process of its organization, before it became a going concern, and therefore that the creditors, for whose benefit the trustee of the bankrupt corporation is suing, became such after the defendant had purchased the stock. See also Cosmopolitan Life Ins. Co. v. Sheats, 20 Ga. App. 622 (93 S. E. 507); Empire Life Ins. Co. v. Brown, supra.

6. The liability of the maker of a promissory note executed on June 21, 1920, was -not affected by the provisions of the subsequently enacted “Georgia securities law” approved August 17, 1920, or by any violation thereof by the payee. Civil Code (1910), § 6389.

7. Though demurrers special in nature are required to be filed at the first term (Smith v. Aultman, 30 Ga. App. 507, 118 S. E. 459; Civil Code (1910), § 5630), a party may at any time before verdict, either orally or in writing, move to strike the petition or the answer of the opposite party, on the ground that no cause of action or defense, as the case may be, is set forth. While in the instant case the paper filed by the plaintiff was called a demurrer, it contained general grounds which wore in the nature of a motion to strike the defendant’s answer, and it was not improper for the court so to treat it. Richmond & Danville R. Co. v. Mitchell, 95 Ga. 78 (1) (22 S. E. 124); Macon & Birmingham Ry. Co. v. Walton, 121 Ga. 275 (3) (48 S. E. 940); Henderson v. State, 123 Ga. 465 (51 S. E. 385). Such parts of the answer as were stricken being subject to the general grounds of the demurrer or motion, it is immaterial that other grounds thereof which objected to defebts of form in the parts of the answer so stricken were presented too late.

8. All of the answer being stricken except a plea of failure of consideration, and properly so, and there being no evidence in support of this plea, a verdict under the evidence was demanded for the plaintiff, and the court did not err in directing such a verdict.

Judgment affirmed.

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


text:
    14524.
    Anderson v. Etheridge.
    Decided October 12, 1923.
    Complaint; from Pulaski superior court—Judge Graham. March 3, 1923.

      n. JE. Coates, for plaintiff in error.

      Lawson & Ware, contra.
   Jenkins, P. J.

In this suit upon two cheeks, the sole issue was whether or not, under the testimony of the plaintiff and his witnesses, the consideration was the purchase of a rent note, or, under the testimony of the defendant, the compounding or settlement of a criminal prosecution against the defendant’s tenant, in contravention of section 329 of the Penal Code (1910). The exceptions in the defendant’s motion for new trial being limited to the general grounds, and the evidence being in conflict, this court is without power to reverse the ruling of the trial judge refusing to set aside the verdict and judgment.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14555.
    Webb v. Blake.
   Bell, J.

1. The delivery of personal property by a parent into the ex-, elusive possession of a child living separate from the parent creates a presumption of a .gift to the child. But this presumption may be rebutted by evidence of an actual contract of lending, or circumstances from which such a contract may be inferred. Civil Code (1910), § 4150.

2. This was an action of trover in the municipal court of Atlanta for the recovery of a diamond delivered by the plaintiff into the possession of her son in the year 1916, when he resided with her in Massachusetts, lie located in Georgia in 1918, bringing the diamond with him. In 1920 he became engaged to be married to the defendant, delivering to her the diamond under circumstances warranting the conclusion of a gift. She continued in possession of the diamond until 1922, when the plaintiff visited her son in Atlanta and learned for the first time that the diamond was in the possession of the defendant, or that her son had parted with it. In the meantime he and the defendant had each married, but not to. each other. The plaintiff made a demand on the defendant for the diamond, and, the demand being refused, instituted the present action. The defendant contended upon the trial that the plaintiff had given the ring to her son, and that through him the defendant had acquired title. The plaintiff testified by depositions that she did not deliver the ring to her son as a gift, but merely as a loan. Her testimony was not disputed or discredited either directly or by the proved circumstances. Whether this was also true of the evidence of her son, who testified in her behalf, is immaterial, although, be it said, His testimony corroborated the contentions of the plaintiff. Held, that, irrespective of the good faith of the defendant and of whether the plaintiff’s son had undertaken to convey to the defendant the absolute title, the presumption referred to in the above-mentioned code section was conclusively rebutted by the undisputed testimony of the plaintiff, showing that the diamond was hers, and that she had delivered it to her son as a loan and not as a gift. The verdict found for the defendant, therefore, was unauthorized. The judge of the superior court erred in overruling the certiorari. Gladden v. Dozier, 71 Ga. 380 (3); Georgia Railway & Power Co. v. Peck, 17 Ga. App. 652 (88 S. E. 33); National Bank of Tifton v. Piland, 22 Ga. App. 471 (1) (96 S. E. 341); Farkas v. Williams, 22 Ga. App. 686 (97 S. E. 89); Taylor v. Willams, 22 Ga. App. 723 (97 S. E. 101).

Decided October 12, 1923.

Certiorari; from Fulton superior court—Judge Bell. April 10, 1923.

Jaclcson & Echols, for plaintiff.

Key, McClelland & McClelland, for defendant.

Judgment reversed.

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


text:
    14561.
    New v. Quinn.
   Bell, J.

1. A tenant cannot dispute his landlord’s title or attorn to another claimant while in possession. He cannot change the character of his holding without the consent of his landlord, even after the expiration of the original rent period, until he surrenders the premises. This is true notwithstanding the person putting the tenant in possession may not have owned the land. Civil Code (1910), § 3698; Morgan v. Morgan, 65 Ga. 493 (3); Grizzle v. Gaddis, 75 Ga. 350 (3); Grizzard v. Roberts, 110 Ga. 41 (2) (35 S. E. 291); Johnson v. Thrower, 117 Ga. 1007 (3) (44 S. E. 846); Hodges v. Waters, 124 Ga. 229 (52 S. E. 161, 1 L. R. A. (N. S.) 1181, 110 Am. St. Rep. 166, 4 Ann. Cas. 106); Watters v. Hertz, 135 Ga. 804 (4) (70 S. E. 338); Bullard v. Hudson, 125 Ga. 393 (1) (54 S. E. 132).

2. An adjudication of the same subject-matter in issue in a former suit between the same parties by a court of competent jurisdiction is an estoppel against further litigation by either party of the questions so adjudicated. Civil Code (1910), §§ 4335, 4336.

3. The plaintiff Q. and another conveyed lands to Y. prior to June in the year 1913, Q., by parol, reserving the privilege of using, during the ginning season which commenced in that year, a certain ginhouse situated on the premises, without the payment of any rent. He so used the house during the seasons of 1913 and 1914. In 1915 he sold the machinery in the building to 3ST., and delivered the possession of the machinery and the building. N. was not required to pay rent to any one for the ginning season of 1915. In 1917 a distress warrant was issued against H. at the instance of Q. for the recovery of rent for 1916. A counter-affidavit was interposed by N. On the trial he denied liability, on the ground that he was the tenant of V., from whom, he contended, lie liad^ented for the year 1916 the lands on which the building was situated, and that he had paid V. the rent. The trial on that issue resulted in a verdict in favor of Q. A certiorari by N. was overruled without exception. In 1919 Q. procured a second distress warrant for recovery of rents alleged to be due him for the years 1917 and 1918, to which N. interposed another counter-affidavit. This made the case which is now under review. The defense of 1ST. was again that he was the tenant of V., he contending upon the trial that he had rented the entire premises from V. for the years 1917 and 1918. The evidence upon the trial was undisputed that the possession of the building had never been restored or tendered to Q. by N., whose occupancy had continued, and that Q. had not consented to an attornment to V. The court allowed an amendment to the affidavit upon which the distress warrant was issued, setting up the prior proceedings and the former adjudication. They were also admitted in evidence. The court directed the jury to find in favor of the relation of landlord and tenant, and submitted to them only the question of the amount of the rent. A verdict was found for the plaintiff for $96. The defendant’s motion for a new trial was overruled, and he excepted. No objection was made to the allowance of the above amendment at the time it was offered, but a motion to set aside the order allowing the amendment, on the ground that it was offered too late, was subsequently made and overruled. Exceptions pendente lite were taken to this ruling, and error is assigned thereon in the final bill of exceptions. See Alexander v. Chipstead, 152 Ga. 851 (1) (111 S. E. 552). Held:

(а) There was no error in allowing the amendment to the plaintiff’s affidavit, setting up matter in the nature of a former adjudication or estoppel. See Hill v. Cox, 151 Ga. 599 (2) (107 S. E. 850). That an amendment of this character, even to an answer, is not made at the first term, nor until the trial term, would be no reason for disallowing it. Whatever may appear in Merritt v. Bagwell, 70 Ga. 578 (3 a), to be in conflict with this statement is shown to be obiter, in Hill v. Cox, supra, which supersedes also Harrison v. Joiner, 24 Ga. App. 578 (2) (101 S. E. 763). Furthermore, without being pleaded, the proceedings referred to would have been admissible when offered by the plaintiff, in support of his allegation of the tenant relation.

(б) Regardless of the true relation originally existing between the parties, the former adjudication conclusively established that in 1916 the relation of landlord and tenant existed between them (compare Kennedy v. McCarthy, 73 Ga. 346), and no surrender of the premises being made by N. at any time, that relation continued, and N. could not at-torn to V., the latter having purchased prior to the entry of N. under Q. See Raines v. Hindman, 136 Ga. 450 (1) (71 S. E. 738, 38 L. R. A. (N. S.) 863, Ann. Cas. 1912C, 347); Stanley v. Stembridge, 140 Ga. 750 (3) (79 S. E. 842); Cohen v. Broughton, 54 Ga. 297 (2). There was no issue, therefore, to be determined, except the amount of the rent.

4. Where one enters into possession of the premises of another under the relation of a tenant, and no amount of compensation is agreed upon, the law will imply an undertaking to pay such as will be fair and reasonable, which may be collected by distress warrant sued out by the landlord on an affidavit setting forth and claiming a specific amount as rent due, the tenant having, of course, the right to controvert the amount of the claim by counter-affidavit, as may be done in other cases of distress warrants. Rome Railroad Co. v. Chattanooga &c. R. Co., 94 Ga. 422 (1) (21 S. E. 69); Taylor v. Coney, 101 Ga. 655, 658 (28 S. E. 974). This rule does not apply if the entry was not under the plaintiff or if the possession is adverse to him. Civil Code (1910), § 3692; Lenney v. Finley, 118 Ga. 718 (3) (45 S. E. 593); Atlanta &c. Ry. Co. v. McHan, 110 Ga. 543 (35 S. E. 634).

Decided October 12, 1923.

Appeal; from Gwinnett superior court—Judge Fortson. March 9, 1923.

N. L. Hutchins, for plaintiff in error.

O. A. Nix, contra.

5. It follows from the foregoing that the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. 'J., a/nd Stephens, J., eoneur.


author: Beix, J.

text:
    14591.
    Farmers Union Warehouse of Metter v. Boyd.
   Beix, J.

1. “The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs, as, when a man has been convicted of murder, and it afterwards appears that the supposed 'deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or whore there has been some providential cause, and eases of like character.” Harris v. Roan, 119 Ga. 379 (2) (46 S. E. 433); Norman v. Goode, 121 Ga. 449 (1) (49 S. E. 268).

2. Where a motion for a new trial, made at the term of the court at which the verdict complained of was rendered, was overruled, and the decision was affirmed by this court, to authorize a second motion the extraordinary state of facts relied upon in support of the motion must have been unknown to the movant and his counsel at the time of the first motion, and impossible to have been ascertained by the exercise of proper diligence for that purpose. Malone v. Hopkins, 49 Ga. 221 (1); Civil Code (1910), § 6086. This rule is applicable where the ground of the motion is the prohibited relationship of one of the jurors to the prevailing party or his attorney whose fee was contingent upon a recovery. Compare Merritt v. State, 152 Ga. 405 (6) (110 S. E. 60).

3. “A stricter rule is applied to extraordinary motions for new trial based on newly discovered evidence than to ordinary motions based on that ground. Norman v. Goode, 121 Ga. 449 (49 S. E. 268).” Jackson v. Williams, 149 Ga. 505 (2) (101 S. E. 116).

4. In the absence of a showing demanding the conclusion that the movant and its attorneys exercised proper diligence in discovering the relationship, as well as the fact that the fee of the attorney was contingent, the discretion of the trial judge in overruling the motion will not be controlled. Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (7) (118 S. E. 467).

Decided October 12, 1923.

Motion for new trial; from Candler superior court—Judge Hardeman. April 4, 1923.

J. L. Brown, Fred. T. Lanier, Kirkland & Kirkland, for plaintiff in error. W. H. Lanier, Beal & Benfroe, contra.

5. A bare recital in the affidavits of the movant and its counsel that the extraordinary state of facts could not have been known or discovered by the exercise of ordinary and reasonable diligence until after the overruling of the first motion is but a mere conclusion or opinion, without a disclosure of the facts upon which the same is based, and in such a case the trial judge is not bound as a matter of law to hold that the affiants exercised the required diligence. Evans v. Grier, 29 Ga. App. 426 (3) (115 S. E. 921), and cases cited. See also Holder v. Farmers Exchange Bank, supra. It was not deposed in any form that the discovery that the fee of the opposing counsel was contingent could not have been made earlier by ordinary diligence.

6. It follows from the above that the court did not err in overruling the extraordinary motion.

Judgment affirmed.

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


text:
    14609.
    HARALSON, adm’r, v. WHITE & CO.
    In the absence of a will so providing, the estate of a decedent is not liable for the funeral expenses of his widow, who had taken dower and a year’s' support.
    Decided October 12, 1923.
    Complaint; from Rockdale superior court—Judge Hutcheson. April 14, 1923.
    This was an action by White & Company against W. L. Haralson, as administrator de bonis non of the estate of J. H. Haralson, deceased, on an account for the funeral and burial expenses of Mrs. Mary A. Haralson, the widow of J. H. Haralson. By consent of the parties the ease was submitted to the presiding judge for determination on an agreed statement of facts, supplemented by evidence. To his judgment in favor of the plaintiff for the full amount sued for the defendant excepted.
    It was agreed: that J. H. Haralson died in the year 1915; that his widow, Mrs. Mary A. Haralson, for whose funeral expenses the present action was brought, died in 1921; that in her lifetime, she was assigned ■ a year’s support and also dower in her husband’s estate, of which she was administratrix; and that with the exception of the remainder interest in the dower lands, her husband’s estate had been fully administered prior to her death. The evidence introduced independently of the agreed statement was conflicting as to the value of the estate left by the wife, some witnesses placing it at several hundred dollars and others at less than $100; The stipulation showed further that the widow’s personal liabilities did not exceed $140; and that after her death an administrator de bonis non (the defendant in this case), in the person of one of her sons, was appointed on the estate of J. H. Haralson, deceased (presumably for the sole purpose of administering the reversion in the dower); and that “there is no contest in regard to the amount of the plaintiff’s claim [$351.05], the only difference between the parties being whether or not the dower is subject to her burial expenses.” The indebtedness sued for was incurred by another son of Mrs. Haralson, he at the time requesting the undertaker to charge the account to his father’s estate.

      W. G. Munday, J. II. McCalla, for plaintiff in error.

      G. B. Vaughn, contra.
   Bell, J.

(After stating the foregoing facts.)

After taking dower the wife had no further interest in the husband’s estate than year’s support. Farmers Banking Co. v. Key, 112 Ga. 301 (1) (37 S. E. 447); Truett v. Funderburk, 93 Ga. 686 (2) (20 S. E. 260). She had been allowed a year’s support, had been granted dower, and the estate of the husband, with the exception of the remainder interest in the dower, had been fully administered and distributed. The reversion of the dower was no part of her estate. The administrator de bonis non had control of no property in which she or her heirs had any interest, and under no theory would an action be maintainable against him for the funeral and burial expenses of the wife whose husband predeceased her. Section 2996 of the Civil Code (1910), binding the husband to support and maintain his wife and making her his agent for the purchase of suitable necessities for the use of herself and the family, and the law as laid down by the Supreme Court in Kenyon v. Brightwell, 120 Ga. 606 (3) (48 S. E. 124, 1 Ann. Cas. 169), and like cases, refer to the liability of living husbands and not of dead ones. “The funeral expenses of the decedent’s wife and family are sometimes made, by statute, a charge upon his estate, and they have been held to be payable out of his estate even in the absence of an express statutory provision where decedent and his wife and children perished in a common disaster.” 24 C. J. 308, § 928. There is no statute in Georgia making the estate of a deceased husband responsible for the funeral expenses of his widow, and unless Mr. Haralson had so provided in a will, the reversionary estate was not liable for this expense.

Judgment reversed.

J enlcins, P. J., and Stephens, J., concur.


text:
    14614.
    Casteel v. Allgood-Frey-Shaw Co.
    Decided October 12, 1923.
    Complaint; from Cobb superior court—Judge Blair. April 28, 1923.

      Herbert Clay, for plaintiff in error.

      B. T. Frey, Anderson & Roberts, contra.
   Bell, J.

1. A ground of a motion for a new trial assigning error on the action of the court in permitting a witness to answer a certain question, which does not disclose the answer objected to, presents no question for determination. Southern Ry. Co. v. Wright, 6 Ga. App. 175 (64 S. E. 703); Smith v. State, 119 Ga. 113 (46 S. E. 79); City of Moultrie v. Cook, 11 Ga. App. 649 (1) (75 S. E. 991).

2. Where on the trial of an action for the purchase-price of goods charged to the defendant but delivered to another the evidence makes a ease of sales wholly on the authority, written or verbal, of the defendant, and wholly on his credit, from first t'o last, he is an original debtor, and the law of promise to answer for the debt, default, or miscarriage of another is not applicable. McLendon v. Frost, 57 Ga. 448 (15). The defendant denied that he had given such authority, but the evidence was conflicting, and the jury were authorized to find against him on this issue. See Cordray v. James, 19 Ga. App. 156 (1) (91 S. E. 239).

3. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    14624.
    Wilburn v. Beasley.
   Bell, J.

A possessory warrant is not the proper means for the recovery of personal property, unless the .property was taken from the possession of the complaining party “by fraud, violence, seduction or other means,” or unless it, having disappeared without his consent, has been received or taken possession of, without lawful warrant or authority, by the person against whom the warrant issues. In order to maintain the proceeding it must be shown that the property was taken without the complaining party’s consent. Lotz v. Walker, 13 Ga. App. 329 (1) (2) (79 S. E. 169); Pearson v. Abell, 16 Ga. App. 634 (1) (85 S. E. 935); Owens v. Outlaw, 105 Ga. 477 (30 S. E. 427); Brown v. Todd, 124 Ga. 939 (1) (53 S. E. 678); Dennard v. Butler, 2 Ga. App. 198 (2) (58 S. E. 297); Copeland v. Lucas, 6 Ga. App. 6 (64 S. E. 113); Henderson v. De Medicis, 10 Ga. App. 190 (73 S. E. 27). In this case the plaintiff’s testimony showed that the defendant came into possession of the hog in question, together with her increase, under an agreement between them that the defendant was to “keep the sow and raise .on halves,”. and that by virtue of this contract the defendant had possession of the sow and her pigs at the time the possessory-warrant proceeding was instituted. Upon this testimony the magistrate before whom the case was tried, on timely motion made therefor, should have dismissed the warrant, and it was error instead to render judgment in favor of the plaintiff. It follows that the judge of the superior court erred in overruling the certiorari.

Decided October 12, 1923.

Certiorari; from Laurens superior court—Judge Kent. April 23, 1923.

Fred Eea, for plaintiff in error. W. A. Dumpier, contra.

As pointed out in Brown v. Todd, supra, this ease is distinguishable from Meredith v. Knott, 34 Ga. 222; Hillyer v. Brogden, 67 Ga. 24; Wynn v. Harrison, 111 Ga. 816 (36 S. E. 643); Sheriff v. Thompson, 116 Ga. 436 (42 S. E. 738), and cases following these authorities, in that “in those cases there was an agency, and possession by the agent was construed to be possession by the principal. Wrongful taking from the agent’s possession, or refusal on his part to deliver possession to his principal on demand, was held to be a tortious deprivation of the principal’s possession.”

Judgment reversed.

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


author: Broyles, O. J.

text:
    14766.
    Hull v. The State.
    Decided November 13, 1923.
    Conviction of stabbing; from city court of Bainbridge—Judge Spooner. June 4, 1923.

      Hartsfield c§ Conger, for plaintiff in error.
   Broyles, O. J.

The verdict was amply authorized by the evidence, and neither of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    14770.
    Hightower v. Gossett & Company.
    Decided November 13, 1923.
    Complaint; from city court of Griffin—Judge Darsey. April 28, 1923.

      J. Mallory Hunt, for plaintiff in error.

      B. F. McKnight, W. II. Beclc, contra.
   Broyles, O. J.

This is a suit upon an accepted written order to pay a

certain sum of money. The only legal defense set up in the defendant’s plea was that of failure of consideration, and the trial judge did not err in striking, on the plaintiff’s motion, the other portions of the plea.

The assignments of error other than the one dealt with above are not referred to in the brief of counsel for the plaintiff in error, and therefore are treated as abandoned.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    14778.
    Kalas v. Fay, executrix.
   Broyles, O. J.

1. The assignments of error in the bill of exceptions based upon the admission in evidence of a retention-of-title contract, and of certain promissory notes which represented the balance due on the purchase-price of the property to which the. plaintiff retained title, cannot be considered, since the documents or their contents are not disclosed, either by the assignments of error themselves or by any recitals in the petition for certiorari. A petition for certiorari alleging error must show error; and where the assignments of error therein are insufficient to accomplish this purpose, they do not present anything for consideration. Bell v. Evans, 19 Ga. App. 469 (2) (91 S. E. 787).

(a) For the same reason the assignment of error, that the trial court erred in refusing to admit in evidence a former trover suit to recover the same property, cannot be considered.

2. An assignment of error- based upon the refusal of the trial court to award a nonsuit will not be considered, where the case proceeded to verdict and judgment in favor of the plaintiff, and the defendant’s petition for certiorari complains that the judgment was contrary to law- and the evidence. Newman v. Colt Co., 28 Ga. App. 58 (2) (110 S. E. 321).

3. While the bringing of an action in bail-trover by a seller in a contract of conditional sale has the effect of rescinding the contract, and while the seller will not be entitled to recover until the retention-of-title contract and the notes representing the balance due on the purchase-price of the property sold are surrendered to the buyer or sufficiently accounted for, this does not mean that the seller must surrender the contract and the notes before filing his suit, but it is sufficient if a tender of the documents be made during the trial of the ease. Moultrie Repair Co. v. Hill, 120 Ga. 730, 732 (4) (48 S. E. 143). In the instant case the answer of the trial judge shows that such a tender was made.

Decided November 13, 1923.

Certiorari; from Fulton superior court—Judge Humphries. June 5, 1923.

Morris Maclcs, for plaintiff in error.

Billie B. Bush, contra.

4. Where an automobile is sold under a retention-of-title contract, and only a part of the purchase-money has been paid, the title remains in the seller, and he may, in an action of trover, recover the balance of the purchase-price, without first tendering back the amount paid by the buyer, such payment going in mitigation of damages. Guilford v. McKinley, 61 Ga. 230; Jones v. Snider, 99 Ga. 276 (25 S. E. 668).

5. In an action of bail-trover by a vendor against a vendee, where the vendor claims title based upon a contract reserving to himself title to the property until the purchase-money is paid, no demand by the vendor is necessary, where it appears that the vendee was in possession of the property at the time the suit was brought, and where he entered a plea denying the right of the plaintiff to recover the property. Civil Code, § 4483; Smith v. Commercial Credit Co., 28 Ga. App. 403 (1) (111 S. E. 821).

(a) “Where the defendant is in possession at the time suit is entered, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant disclaim title to the property.” Pearson v. Jones, 18 Ga. App. 448 (4 a) (89 S. E. 536), and citations. No such disclaimer of title was made by the defendant in the instant case.

6. Under the above rulings and the facts of the instant case, there is no merit in the contention of the plaintiff in error that the demurrer to the petition in trover should have been sustained, or that the judgment rendered against him in the trial court was contrary to law and the evidence. The judge of the superior, court did not err in overruling the certiorari.

Judgment affirmed.

Luke amd Bloodworlh, JJ., concur.


author: Broyles, C. J.

text:
    14781.
    Liberty Lumber Company v. Butler.
    Decided November 13, 1923.
    Action for trespass; from city court of Savannah—Judge Freeman. May 26, 1923.

      Lawrence & Abrahams, David S. Atlcinson, for plaintiff in error.

      J. Hartridge Smith, contra.
   Broyles, C. J.

1. The alleged newly discovered evidence is impeaching and cumulative, and is not of such a character as would probably cause a different verdict upon another trial of the case.

2. The verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Blood-worth, JJ., concur.


author: Bboyles, C. J.

text:
    14784.
    Turner v. Georgia-Alabama Coca-Cola Bottling Co.
    Decided November 13, 1923.
    Action for breach of contract; from city court of Greenville— Judge McGraw. June 6, 1923.
    Grounds 4 and 5 of the motion for a new trial are:
    (4) “Movant says the court erred in charging the jury as follows : ‘In passing on the question of whether or not the defendant was wrongfully discharged, if you find he was discharged by the defendant (remembering that the parties are at issue as to whether the discharge was made), you take all the evidence and circumstances and see if the plaintiff’s conduct toward the other employees and customers of the defendant was such as to annoy them, and by such annoyance prevent them from working for the defendant, or to keep them from trading or continuing business with the defendant, as is alleged by the defendant; and also look and see if the plaintiff failed to do the work or duties that he contracted to do; and if you find that his conduct was such as to annoy and prevent the defendant’s customers trading with the defendant, or if he was failing to do what he had contracted to do for the defendant, then the defendant could legally discharge the plaintiff.’ (a) This charge gives the defendant full benefit of having lawfully discharged the plaintiff, when in fact the defendant denies discharging the plaintiff, both in his answer and in testimony. (b) This charge is in error as it fails to state the principle of law that if plaintiff was discharged by the defendant, the burden would be on the defendant to show justification; and the court nowhere charged this principle, (c) It does not fully and fairly state the issues.”
    (5) “Movant says that the court erred in the following charge to the jury: ‘And I charge that where parties, in the course of the execution of a contract, depart from its terms and pay and receive money under such departure, before either can recover for failure to pursue the letter of the agreement reasonable notice must be given the other of the intention to rely on the exact terms of the agreement. Until such notice the departure is a quasi new agreement. So you look to the evidence and see if the plaintiff relied on his contract and gave proper notice, if he had made a contract to do special work and was put to do other work. If he relied on his contract to do special work and gave proper notice to the defendant, then he can recover under the rules I have already given you in charge. If he did not, if he failed to give reasonable notice to the defendant and went ahead in such a manner as to lead the defendant to believe that he did not rely on the letter of the original contract, then he could not recover.’ This charge is error as it was not the contention of plaintiff, and was inapplicable and confusing and misleading to the jury. Plaintiff’s whole suit is based on the fact and theory that he was discharged, and he denies that he quit because of any change in the work, and never claimed to have given the notice referred to in the charge complained of.” The defendant’s plea, after denying material allegations of the plaintiff’s petition, alleged: “5th. That soon after plaintiff began work at the plant at Manchester he became very disagreeable with all of the other employees at said plant, and his conduct was such that the other employees threatened to leave said plant on account of his conduct. 6th. Defendant then removed him from the plant where he was working and placed him upon the road to sell and deliver coca-cola and other soft drinks. He was disagreeable towards customers and came near having a fight with-several of them, and drove some of defendant’s customers away from him on account of his disagreeable conduct, yet defendant bore with all this and did not discharge him, though it had a perfect right to do so on account of his conduct. 7th. On or about the 13th day of March, 1919, plaintiff, without any just cause or reason, quit the employment of defendant, without giving defendant any notice of his intention to quit, and also at the same time withdrew from the service of defendant his son, Corbett Turner, forcing defendant to go out and employ other laborers to run its plant, at a loss to defendant in the sum of-dollars.” The plea contained additional allegations as to the irritability of the plaintiff, his ill treatment of coemployees, and his inability to “get along with the customers of defendant.”
   Bboyles, C. J.

This was a suit for the breach of a contract of employment, and the only issue raised by the pleadings was whether the plaintiff was discharged by the defendant, the plaintiff contending that he was wrongfully discharged, and the defendant contending that the plaintiff had not been discharged but had voluntarily quit his position. Under these facts it was reversible error for the court to charge as complained of in grounds 4 and 5 of the motion for a new trial. It follows that the court erred in overruling the motion for a new trial.

Judgment reversed.

Luhe and Bloodworth, JJ., concur.

The defendant’s president, M. A. Copeland, testified, that the plaintiff was high tempered and disagreeable to other employees of the defendant, and on several occasions cursed some of them, and was disagreeable to the defendant’s customers, and “a good many of them were threatening to quit” the defendant. The witness added: “I bore with all of this and tried to get on with him as best that I could. One morning in the office I was talking to him about the business and he grew very angry and threw his order book on the table and started out. I asked him what he meant by that. He said, cYou see what I have done. I have quit.’ He then walked out of the plant. I did not discharge him. He quit.” There was .other evidence to the same effect. The plaintiff testified that he was discharged, and did not quit the defendant’s service of his own motion; that he told Mr. Copeland that he was ready to live up to his contract and expected Mr. Copeland to let him live up to the contract and work it out.

Jones & Jones, for plaintiff. J. F. Hatchett, for defendant.


text:
    14785.
    Newman v. The State.
    Decided November 13, 1923.
    Indictment for forgery; from Appling superior court—Judge Highsmith. June 2, 1923.

      H. J. Hawrence, for plaintiff in error.

      Wade H. Watson, solicitor-general pro tern., contra.
   Broyles, C. J.

The defendant was indicted in two counts, for the offense of forgery and for the offense of knowingly littering a forged instrument, and was convicted of the latter offense. The evidence authorized the verdict, and, under all the particular facts of the case, no reversible error was committed upon the .trial. The overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14789.
    Levy v. Kiser Company.
   Broyles, O. J.

1. A discharge in bankruptcy does not release a bankrupt from liability for obtaining property by false and fraudulent representations. Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga. App. 299 (1) (68 S. E. 1077).

Decided November 13, 1923.

Complaint, from city court of Tifton—Judge J. H. Price. June 13, 1923.

C. A. Christian, R. D. Smith, for plaintiff in error.

Fulwood & Eargrett, contra.

2. In the instant case the plaintiff, in its original petition, sued upon an open account for goods alleged to have been sold to the defendant. The defendant’s answer, as amended, set up that subsequent to the filing of the petition he was adjudged a bankrupt, that the plaintiff’s claim was a debt provable in bankruptcy, and that the plaintiff filed its claim in the court of bankruptcy and accepted a check sent out by the disbursing officer of the bankruptcy court for the 25 per cent, composition offered by the defendant and approved by the court. After the allowance of this amendment to the answer the plaintiff amended its petition by alleging that the defendant had obtained the goods through false and fraudulent representations, and therefore that the defendant’s discharge in bankruptcy did not operate as a' discharge of the balance of the account sued for. The defendant interposed demurrers assorting that the plaintiff could not change a suit ex contractu into an action ex delicto, and that the plaintiff was pursuing inconsistent remedies for the same cause of action. Held: The court did not err in overruling the demurrers. See, in this connection, Orr Shoe Co. v. Upshaw, 13 Ga. App. 501 (79 S. E. 362); Brandt v. Klement, 20 Ga. App. 665 (93 S. E. 255). The cases cited and relied on by counsel for the plaintiff in error are distinguished from this ease by their facts.

Judgment affirmed.

Lulce and Bloodivorih, JJ., concur.


text:
    14795.
    JACKSON v. JEFFERSON LOAN SOCIETY.
    A recovery by the plaintiff in trover was unauthorized, since the evidence failed to • show that the plaintiff had the right of possession of the property in question when the suit was filed.
    Decided November 13, 1923.
    Certiorari; from Fulton superior court—Judge Bell. June 11, 1923.
    Application for certiorari was denied by the Supreme Court.

      R. R. Jackson, C. E. Moore, for plaintiff in error.

      Weliner, Cheatham & Sims, contra.
   Broyles, C. J.

The plaintiff brought an action in trover, alleging that the defendant was in possession of described personal property to which the plaintiff claimed the right of possession, and that the defendant refused to deliver the property to the plaintiff. Upon the trial the evidence failed to show that the plaintiff had the right of possession of the property in question when the suit was filed. The trial court, therefore, erred in rendering a judgment in favor of the plaintiff, and the judge of the superior court erred in overruling the certiorari sued out by the defendant. In view of this ruling it is unnecessary to consider assignments of error not dealt with therein.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    14798.
    Fain v. Pilcher & Booth.
    Decided November 13, 1923.
    Certiorari; from Thomas superior court—Judge W. E. Thomas. April 24, 1923.

      II. J. MacIntyre, for plaintiff in error.

      Boy Beigler, J. M. Austin, contra.
   Broyles, O. J.

1. “When the final determination of a ease tried in a justice’s court, and carried by certiorari to the superior court, does not depend upon any controlling question of law, and there are issues of fact involved, the superior court has no authority to render a final judgment therein, although it may clearly appear from the facts disclosed by the record that the verdict rendered in the lower court was without evidence to support it. Civil Code, § 4652 [§ 5201 of the Civil Code of 1910]; Bryan v. Central of Georgia Railway Co.,” 117 Ga. 827 (45 S. E. 72). Patterson v. Central of Ga. Ry. Co., 117 Ga. 827 (45 S. E. 250). See also State v. Johnson, 21 Ga. App. 320 (3) (94 S. E. 325).

2. Under the foregoing ruling and the facts of the instant case, the judge of the superior court correctly sustained the certiorari, but erred in rendering final judgment for the plaintiff in certiorari.

Judgment reversed.

Lulce and Bloodworth, JJ., ooneur.


text:
    14808.
    Jackson v. The State.
    Decided November 13, 1923.
    Accusation of possessing intoxicating liquor; from city court of LaGrange—Judge McGraw presiding. May 22, 1923.
   Broyles, C. J.

It not affirmatively appearing from the bill of exceptions or the record in the case that the bill of exceptions was tendered to the trial judge within twenty days of the overruling of the motion for a new trial, this court is without jurisdiction to pass upon the merits of the case.

Writ of error dismissed.

Lulce and Bloodworth, JJ., concur.

M. U. Mooty, Harry M. Breed, Judson Andrews, for plaintiff in error.

L. L. Meadors, solicitor, contra.


text:
    14811.
    Bruce et al. v. Hartford Fire Insurance Co.
    Decided November 13, 1923.
   Broyles, O. J.

1. Where a policy of fire insurance contains a stipulation that “unless otherwise provided by agreement, endorsed hereon or added hereto,” it “shall be void, if any change, other than by death of the assured, takes place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise,” and contains a stipulation that “unless otherwise provided by agreement, endorsed hereon or added hereto,” it “shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in -whole or in part by this policy,” and where it is expressly provided in the policy that it is made and accepted subject to such stipulations, “together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto; and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement, endorsed hereon or added hereto; and as to such provisions and conditions, no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached,” held, that notice from the assured to the local agents of the insurance company that he had sold and transferred the property covered by the policy, and a mere oral consent by such agents for the sale and transfer, and a mere oral promise by the agents that the policy would be transferred to the buyer of the property, and a mere oral permission by the agents for the assured to take out additional insurance upon the property, were not binding upon the company, and did not estop it from setting up, as a defense to an action upon the policy, that the assured, in violation of the terms and conditions of the policy, had in fact sold and transferred the property covered by the policy, and had in fact taken out additional inLuranee on the property. Lippman v. Ætna Ins. Co., 108 Ga. 391 (33 S. E. 897, 75 Am. St. Rep. 62); Beasley v. Phœnix Ins. Co., 140 Ga. 126 (78 S. E. 722); Nowell v. British-American Assurance Co., 17 Ga. App. 46 (85 S. E. 498); McAfee v. Dixie Fire Ins. Co., 18 Ga. App. 192 (89 S. E. 181); Long v. Hartford Fire Ins. Co., 25 Ga. App. 24 (102 S. E. 379).

2. Under the foregoing ruling the court did not err in dismissing the petition on general demurrer.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.

Action on fire-insurance policjr; from city court of LaGrange— Judge Duke Dayis. June 5, 1923.

L. L. Meadors, for plaintiffs.

Spalding, MacDougald & Sibley, Lovejoy & Mayer, for defendant.


text:
    14812.
    Bruce et al. v. Savannah Fire Insurance Co.
    Decided November 13, 1923.
    Description of case and names of counsel the same as in the next preceding case.
   Broyles, O. J.

1. Where a policy of fire insurance contains a stipulation that “unless otherwise provided by agreement endorsed hereon or added hereto,” it “shall be void if any change, other than by death of the insured, takes place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise,” and where it is expressly provided in the policy that it is made and accepted subject to such stipulation,” together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached,” held, that notice from the assured to the local agents of the insurance company that he had sold and transferred the property covered by the policy, and a mere oral consent by such agents for the sale and transfer, and a mere oral promise by the agents that the policy would be transferred to the buyer of the property, were not binding upon the company, and did not estop it from setting up, as a defense to an action upon the policy, that the assured, in violation of the terms and conditions of the policy, had in fact sold and transferred the property covered by the policy. Lippman v. Ætna Ins. Co., 108 Ga. 391 (33 S. E. 897, 75 Am. St. Rep. 627); Beasley v. Phoenix Ins. Co., 140 Ga. 126 (78 S. E. 722); Nowell v. British-Ameriean Assurance Co., 17 Ga. App. 46 (85 S. E. 498); McAfee v. Dixie Fire Ins. Co., 18 Ga. App. 192 (89 S. E. 181); Long v. Hartford Fire Ins. Co., 25 Ga. App. 24 (102 S. E. 379). The cases cited and relied upon by counsel for the plaintiff in error are distinguished by their facts from the ease at bar.

2. Under the foregoing ruling, the court did not err in dismissing the petition on general demurrer.

Judgment affirmed.

Luhe and Bloodworlh, JJ., concur.


text:
    14815.
    BRYANT v. ANDERSON.
    In a suit against a surgeon for damages for a personal injury alleged to have been caused by his malpractice, where the defense is that the injury was caused by the negligence of the plaintiff, and where the plaintiff makes out a prima facie case by showing that the injury was caused by want of due care, skill, or diligence on the part of the defendant, and does not, in making out his case, show any negligence on his own part, the burden is on the defendant to prove that negligence of the plaintiff caused or contributed to the injury.
    Decided November 13, 1923.
    Action for damages; from city court of Waynesboro—Judge W. H. Davis. June 8, 1923.
    N. V. Heath, for plaintiff in error.

      P. B. Lewis Jr., Joseph Law, contra.
   Broyles, C. J.

This was a suit against a physician and surgeon for damages for an injury alleged to have been caused by his malpractice in improperly setting a broken arm, and the burden was upon the plaintiff to show a want of due care, skill, or diligence on the part of the defendant, and also that the injury resulted from the want of such care, skill, or diligence. Georgia Northern Railway Co. v. Ingram, 114 Ga. 639 (1) (40 S. E. 708). The plaintiff carried the burden thus imposed upon him, and he was not required to prove further that the injury was not due to his own negligence. When a plaintiff in a suit sounding in tort (other than a suit by a servant against a master) proves his injury and that it was caused by the negligence of the defendant, he makes out a prima facie ease, and the burden is not upon him, as a part of his case, to show that by the exercise of proper diligence he could have prevented the injury, or that he did not contribute thereto by any negligence on his part. This is a matter of defense. City Council of Augusta v. Hudson, 88 Ga. 599, 606 (3) (15 S. E. 678); Jackson v. Merritt Hardware Co., 26 Ga. App. 747 (3 b) (107 S. E. 394). In such a case, “unless the plaintiff in making out his ease submits proof of his own negligence as the contributory cause of his injury, the burden is on the defendant to prove the plaintiff’s negligence, if such defense is made to the action.” W. & A. R. Co. v. Casteel, 138 Ga. 579, 580 (75 S. E. 609). Under the above-stated ruling, and the facts of the instant case, the court did not err in charging the. jury as complained of in the special grounds of the motion for a new trial. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14818.
    Savannah River Lumber Co. v. Smith.
    Decided November 13, 1923.
    Action for damages; from city court of Savannah—Judge Freeman. May 21, 1923.

      Milch, Denmark & Lovett, W. B. Sanderson, A. B. Bowe, for plaintiff in error.

      Robert L. Golding, contra.
   Bboyles, C. J.

The plaintiff having amended his petition to cure the defect pointed out by this court when the case was previously here (Savannah River Lumber Co. v. Smith, 28 Ga. App. 767, 113 S. E. 46), the court did not err in overruling the demurrer.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14855.
    Long v. The State.
    Decided November 13, 1923.
    Indictment for sale of liquor; from Gilmer superior court-judge Blair. June 9, 1923.

      John T. Dorsey, for plaintiff in error.

      John S. Wood, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and the special ground of the motion for a new trial is without merit.

Judgment affii'med.

Luke a/nd Bloodivorth, JJ., concur.


text:
    14876.
    Ray v. The State.
    Decided November 13, 1923.
    Rehearing denied December 5, 1923.
    Certiorari; from Fulton superior court—Judge Humphries. June 5, 1923.
   Bboyles, C. J.

The verdict was amply authorized by the evidence; and, while some errors were committed upon the trial, none of them, under the particular facts of the case, requires a new trial. The overruling of the certiorari was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Application for certiorari was denied by the Supreme Court.

Paul L. Lindsay, for plaintiff in error.

Boy Dorsey, solicitor, John A. Boykin, solicitor-general, E. A. Stephens, contra.


text:
    14952.
    Crossley v. The State.
    Decided November 13, 1923.
    Conviction of attempt to make intoxicating liquor; from DeKalb superior court—Judge Hutcheson. July 21, 1923.

      Branch & Howard, D. P. Phillips, for plaintiff in error.

      Olaude C. Smith, solicitor-general, contra.
   Broyles, O. J.

The motion for a new trial containing the usual general grounds only, and there being some evidence authorizing the verdict, the overruling of the motion was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14974.
    Womack v. The State.
    Decided November 13, 1923.
    Indictment for manufacture of liquor; from Floyd superior court—Judge Wright. August 17, 1923.

      M. B. Eubanks, for plaintiff in error.

      E. S. Taylor, solicitor-general, J. F. Kelly, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    14988.
    Nixon v. The State.
    Decided November 13, 1923.
    Indictment for having pistol at church; from Randolph superior court—Judge Custer presiding. July 28, 1923.

      Charles W. Worrill, for plaintiff in error.

      B. T. Castellow, solicitor-general, B. B. Arnold, contra.
   Broyles, O. J.

The verdict was demanded by the evidence, and the amendment to the motion for a new trial was without merit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14989.
    Nixon v. The State.

      Decided November 13, 1923.
    Indictment for carrying pistol; from Randolph superior court— Judge Custer presiding. July 28, 1923.

      Charles W. Worrill, for plaintiff in error.

      B. T. Castellow, solicitor-general, R. R. Arnold, contra.
   Broyles, C. J.

The verdict was demanded by the evidence, and the amendment to the motion for a new trial was without merit.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.