author: Bell, J.

text:
    15521.
    Kokomo Rubber Company v. Anderson.
    Appeal and Error, 4 C. J. p. 1247, n. 33 New.
    Decided April 20, 1926.
    Action for damages; from Fulton superior court—Judge Ellis. January 19, 1924.

      H. A. Etheridge, Little, Powell, Smith & Goldstein, for plaintiff in error.

      McDaniel-& Neely, Harry L. Greene, contra.
   Bell, J.

The Supreme Court having reversed the judgment of this court which reversed the judgment of the trial court (33 Ga. App. 241), the judgment of this court is vacated, and the opinion rendered in connection therewith is withdrawn. Under the decision and judgment of the Supreme Court, there was no merit in any of the grounds of the demurrer, nor of the motion for new trial (162 Ga., 132 S. E. 76).

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    16678.
    Willie v. Davis.
    New Trial, 29 Cye. p. 832, n. 60.
    Decided April 20, 1926.
   Bell, J.

The verdict in this ease was authorized by the evidence, and the court did not err in overruling the motion for new trial based upon the general grounds only.

Judgment affirmed.

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

Complaint; from city court of Louisville—Judge Barwick. June 15, 1925.

Roy V. Harris, for plaintiff in error. R. Q. Price, contra.


text:
    16689.
    SAUNDERS v. CROVATT.
    1. The evidence authorized the verdict.
    2. The charge complained of in the ninth ground of the motion for a new trial was erroneous as being without evidence to support it and also because it incorrectly instructed the jury that certain inferences would be authorized from certain facts, when such facts, even if established, would not have warranted either of the inferences stated. The court erred in overruling the motion for a new trial.
    Agency, 2 O. J. p. 954, n. 83; p. 967, n. 52.
    Trial, 38 Cyc. p. 1619, n. 37.
    Decided April 20, 1926.
    Appeal; from Chatham superior court—Judge Meldrim. May 14, 1925.

      R. L. Golding, for plaintiff in error. W. Q. Warnell, contra.
   Bell, J.

E. M. Crovatt brought suit upon an open account in the municipal court of Savannah against Charles J. Saunders, for repairs upon the defendant’s automobile. The case is here upon exceptions by the defendant to the overruling of his motion for a new trial, after a verdict in favor of the plaintiff upon a trial, on appeal, in the superior court of Chatham county. It appeared, from the evidence, that the repairs were made in Savannah, at the instance of the defendant’s minor brother, Albert Saunders, while the defendant, a traveling salesman, was in South Carolina. The principal question for determination by the jury was whether the act of the defendant’s brother was authorized, and, if not, whether it was subsequently ratified.

Without undertaking to review it in detail, we think the evidence was sufficient to support, but not to demand, the verdict in the plaintiff’s favor.

The account, which was for about $90, showed a credit of $25, representing a payment which the plaintiff claimed had been made by Albert Saunders on April 30, 1923. The defendant testified: “I have been in the having [habit?] of sending my brother money. I did not give my brother money to make this payment of $25. I do not remember whether I gave him any money along the time of April, 1923, or not. I do not know when this work was done. . . At this time my brother was a minor under age, and I do not know where he got the $25 to pay for this work.” There is no other evidence in regard to the money furnished by the defendant to his brother, and there is nothing to show for what purpose any money so furnished was to be used, or that the defendant had any knowledge of the particular use made by his minor brother of any particular money sent to him. The court instructed the jury as follows: “It is further contended that this brother, from time to time, let Albert Saunders have money, and that the $25 was paid by Albert Saunders, from money he got from his brother, for the payment on account of the work done on that car. If that were true,—if you find that to be the case, —then you would be authorized to find, in the first instance, that Albert Saunders was representing the brother, or, in the’second instance, that this defendant had ratified the act of the brother in taking the ear there to have the work done.” This charge is excepted to in the ninth ground of the motion for a new trial because there was no evidence to show that the $25 paid on the account by Albert Saunders was money that he had received from the defendant; and because the mere fact that Albert Saunders may have paid on the account money received from the defendant would not, without more, authorize the inference of a ratification. In our opinion these exceptions are well taken. It is true that the language of the above-quoted excerpt was followed immediately by the qualification, “but there can be no ratification unless it was done with the full knowledge of this defendant.” We still think, however, that the charge excepted to was error. The evidence was insufficient to show that the payment was made by Albert Saunders with money received by him from the defendant; and, even treating the evidence as sufficient for that purpose, if the defendant merely sent his brother money without instructions as to the use of it, the lone fact that the latter may have paid it on the account, with defendant’s knowledge, would be insufficient to authorize the inference either that Albert .Saunders was representing his brother in ordering the repairs, or that the defendant had ratified such act. The excerpt complained of was error, both because there was no evidence to support it and because the facts referred to, even if proved, would not, without more, have authorized either of the inferences stated.

Several other portions of' the court’s charge are assigned as error, and, while we do not say that in'all instances they were entirely accurate, no reversible error is pointed out in the particular exceptions taken. The matters complained of in special grounds 4 and 5 of the motion for a new trial are such as will not likely arise on another trial, and are not passed upon.

Judgment reversed.

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


text:
    16694.
    ROBINSON v. ODOM et al.

    1. “Ordinarily a promissory note contains only tlie maker’s obligation to pay. If the note does not purport to express tlie contract in pursuance of which it is executed, and that the contract rests in parol, its terms may be proved by parol. Pryor v. Ludden, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267). But where a tenant gives a rent note to his landlord, embracing and reciting a complete and certain agreement of the terms of the lease contract, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract.” Anthony Shoals Power Co. V. Fortson, 138 Ga. 460, 463 (75 S. E. 606).
    2. “Where the law requires that the contract, in order to be valid, shall be expressed in writing, the writing alone must be depended upon to ascertain the contract of the parties, and its ■ deficiencies can not be supplied by parol proof. Where the law does not require the agreement to be reduced to writing in order to render it valid, and it is insisted that the writing contains a complete agreement of the parties, it becomes a question of intention, as to whether or not the agreement has been integrated in the writing. In such a case, in order to allow parol evidence to be admitted to show other terms, it must appear, either from the contract itself or from the attendant circumstances, that the contract is incomplete and what is sought to be shown as additional terms neither conflicts with nor contradicts what is contained in the writing. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S.E.485, 81 Am. St. R. 128) ; Johnston v. Patterson, 86 Ga. 725 (13 S. E. 17) ; Depauw v. Kaiser, 77 Ga. 176 (3 S. E. 254). If the writing shows on its face a definite and complete contract between the parties, parol evidence will not be received to vary, modify, or contradict its terms. The rule does not apply to cases where the instrument shows incompleteness on its face, and parol evidence is allowed to show an agreement referable to the incompleteness when not inharmonious with the writing. The question in such cases is whether there is a vacuum to be filled. If the alleged omission of an important detail is lacking which can be supplied by legal presumption, the want' of express provision leaves no vacuum.” (Italics ours.) Pryor v. Ludden, supra.

      Contracts, 13 C. J. p. 603, n. 55.
    Evidence, 22 C. J. p. 1089, n. 31; p. 1131, n. 82; p. 1251, n. 31; p. 1252, n. 33; p. 1255, n. 52; p. 1290, n. 54, 55, 59.
    Rrauds, Statute of, 27 C. J. p. 217, n. 24; p. 375, n. 81.
    Landlord and Tenant. 35 C. J, p, 1045. n. 51: 36 C. J. p. 131, n, 27.

      3. In the case of landlord and tenant there is, in the absence of a stipulation to the contrary, an implied covenant on the part of the landlord that the premises are in a proper condition of repair and that he will keep them in such condition during the tenancy, except as to defects which were patent at the time of the renting. Whittle v. Webster, 55 Ga. 180; Lewis v. Chisholm, 68 Ga. 40 (4) ; Aikin v. Perry, 119 Ga. 263 (46 S. E. 93); Cox v. Loicney Go. of Ga., 35 Ga. App. 51 (132 S. E. 257). In view of the existence of such implied covenant and of the provisions of the note sued on, the paper purports on its face to show all the terms of a valid rent contract, and parol evidence of prior or contemporaneous representations or statements as to the condition of the premises was inadmissible to vary the written instrument. Wyehe v. Winship, 13 Ga. 208; Bond v. Perrin, 145 Ga. 200 (88 S. E. 954); Peeves Tractor & Implement Go. v. Barrow, 30 Ga. App. 420 (1) (118 S. E. 456) ; West v. Miller, 32 Ga. App. 199 (1) (122 8. E. 809) ; Pryor v. Ludden, supra. Such implied covenant as to the condition of the premises became by law a part of the written contract and -left no “vacuum” to be filled by the parol representation or warranty.

      (a) The defendant’s answer was fatally defective in so far as it sought to deny liability because of the alleged parol misrepresentation as to the condition of the premises.
    4. The defendant’s option to purchase the rented premises, as referred to in the answer, was a contract required by the statute of frauds to be in writing. Civil Code (1910), § 3222 (4); Lyons v. Bass, 108 Ga. 573 (1) (34 S. E. 721) ; 27 C. J. 217. Where a contract is of a kind required by the statute to be in writing, the presumption is that it was in writing. Allen v. Powell, 125 Ga. 438 (1) (54 S. E. 137); Kiser Go. v. Padrick, 30 Ga. App. 642 (1) (118 S. E. 791). There being nothing-in the answer to show otherwise, it is to be inferred therefrom that the option was in writing. If, while such option was in force, it was, by mutual agreement between the parties, surrendered to the maker in full satisfaction and discharge of the several rent notes including- the one in suit, the rent contract was effectually rescinded. A rescission of the contract by consent is a complete defense. Civil Code (1910), § 4304; Hoffman v. Pranhlvn Motor Gar Go., 32 Ga. App. 229 (5), 234 (122 S. E. 896), and cases cited.

      [a) The municipal court erred in striking the defendant’s answer and in thereafter rendering judgment in favor of the plaintiff, and the superior court erred in dismissing the certiorari.
    Decided April 20, 1926.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. June 17, 1925.

      E. F. Goodrum, for plaintiff in error.

      J. P. Burnett, contra.
   Bell, J.

W. W. & C. E. Odom filed suit in the municipal court of Macon against Carl Robinson upon a promissory note dated September, 1924, and due October 1, 1924, for $40. The note recited that it was given “for rent 111 Ninadel Ave.,” and contained the stipulation, “this note to be surrendered in case the property is rendered untenable [untenantable] by fire.” In the lower left-hand corner, opposite the maker's signature, were the words and figures “No. 1 Month of October, 1924.” It provided for the payment of interest after maturity at eight per cent, per annum and of attorney's fees, and contained a waiver of homestead. The defendant filed an answer, and then amended it. Thereafter the court sustained a general demurrer thereto, and, on the introduction of the note in evidence, directed a verdict for the plaintiff. The defendant’s certiorari was overruled and he excepted. The question for determination in this court is whether the answer as amended set forth any valid defense to the suit. The answer alleged, among other things, two sets of facts which we will enumerate as follows: (1) “That on or about September 3, 1924, plaintiff and defendant entered into a contract whereby plaintiff was to rent to defendant No. Ill Ninadel Drive, Macon, Ga., for one year from October 1, 1924, at $40.00 monthly, evidenced by rent notes, and plaintiff further contracted with defendant that should defendant within three months next after October 1, 1924, wish to purchase said premises, defendant might do so at the price of $4,200.00, and all rents paid plaintiff by defendant between October 1, 1924, and the election period or date within said ninety days period, should apply on said purchase price of $4,200.00;” that the plaintiff represented that the premises were properly and sufficiently equipped with a modern sanitary sewerage system adequate in every way to discharge the sewerage and garbage from the premises, whereas “same was connected up with a cesspool system of sewerage” and “was wholly inadequate, in that the construction of such cesspool sewerage connections, erected and maintained for the purpose of draining off such premises, would not carry off the sewerage from the premises, because same did not have the required and necessary outlet to drain the premises;” that the actual facts in regard to the sewerage system could only be determined and known by a personal inspection and use of the premises, and that the defendant was not apprized thereof until after the execution and delivery of the notes; that he never at any time occupied the premises, but ascertained the facts by personal inspection and from the tenant who was then in possession thereof; that the defendant thereupon notified the plaintiff that “under the circumstances said premises were unsatisfactory to him and to his family,” and, “as a result of the plaintiff’s said misrepresentations, the consideration of said note sued on has utterly and entirely failed.” (2) That the defendant, on discovering the facts, demanded a release from his contract and a surrender of the notes. The plaintiff refused such demand, but promised to “place said premises in a satisfactory condition.” Shortly thereafter the defendant brought one Burns to the plaintiff as a prospective purchaser. Plaintiff “then came to defendant and demanded the defendant’s option to purchase, . . in order that plaintiff might sell said premises to said Burns. Defendant surrendered his option to plaintiff with the further understanding that plaintiff was to return to defendant all his twelve rent notes running through September 30, 1925; which plaintiff never did. Defendant pleads said statement of facts as a complete release to said rental contract, and as a full defense to this action.” On the subsequent refusal of Burns to purchase because of the character and condition of the sewerage system, “plaintiff demanded rent of the defendant and refused to surrender up his rent notes.”

As we construe the answer, the allegations referred to in paragraph 1 of the above synopsis are not made as a plea of fraud, but are relied on merely for the purpose of showing a failure of consideration. In view of the written contract, the parol representation could not be pleaded; and, whether the allegations as to the character of the sewerage system and the defendant’s refusal to install a proper system could be construed as setting up a breach of the landlord’s implied covenant as to the condition of the premises, and whether a breach of such covenant before entry would justify the tenant’s refusal to enter and relieve him, are questions not raised by counsel for the plaintiff in error. See, in this connection, Barnes v. Strohecker, 17 Ga. 340; s. e. 21 Ga. 430; Epping v. Devanny, 28 Ga. 422; Lewis v. Chisholm, 68 Ga. 40 (4); Thompson v. Walker, 6 Ga. App. 82 (64 S. E. 336). Construing the answer as it is construed by the attorney for the plaintiff in error, its author, we conclude that no valid defense was pleaded by the allegations thereof as enumerated in paragraph 1 of the above statement. We entertain a different opinion, however, as to those stated in paragraph 2. If the option was in writing, as it is presumed to have been, its surrender was a sufficient consideration for the promise to return the notes, and the averments as made show a mutual rescission of the rent contract. This is a valid defense. The municipal court erred in striking the defendant’s answer, and the superior court erred in not sustaining the certiorari. It is unnecessary to add anything further to what is said in the head-notes.

Judgment reversed.

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


text:
    16697.
    FLOOD v. EMPIRE INVESTMENT COMPANY.
    1. The motion to amend the bill of exceptions from the record is granted.
    2. With the bill of exceptions amended, the assignment of error on the judgment “overruling” the certiorari was sufficient.
    3. Parol evidence is admissible to show that a purported assignment of salary is but a cover for a usurious loan, notwithstanding its recitals to the contrary.
    Assignments, 5 C. J. p. 870, n. 60.
    'Certiorari, 11 C. J. p. 163, n. 72; p. 181, n. 97.
    Evidence, 22 C. J. p. 1098, n. 90.
    Usury, 39 Cyc. p. 1054, n. 69.
    Decided April 20, 1926.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. June 17, 1925.
    The Empire Investment Company filed’ suit in the municipal court of Macon against H. T. Flood for damages for the conversion of certain money, to which the plaintiff claimed title by reason of an alleged assignment of salary. The action was similar in character to that which was upheld by this court in Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787 (124 S. E. 813). The purported assignment was as follows:
    “Macon, Ga., May 1st, 1924.
    “To C. of Ga. Ry. Co.: For value received I hereby sell and transfer to Empire Investment Company, doing business in the City of Macon, Ga., all of my right, title, and interest in and to $105 and 00 cents of my account for salary or wages already earned by me from the 15 day of April, 1924, to the 1 day of May, 1924, while in your employ, and you are hereby authorized and directed to pay the said Empire Investment Company the above-described moneys due me, the undersigned, and charge the same to my salary or wage account for the period above named, and accept this instrument as a receipt and voucher against me for the said sum, and when same shall have been paid by you in accordance herewith this writing shall be a complete release to you of any and all claims that I now have, or may hereafter have, against you for the particular moneys above named. This instrument when attached to cheek for $105.00 drawn by my said employer to my order shall be considered and accepted as my endorsement of said check to Empire Investment Company. This is an absolute and unconditional sale of said account, and is not a loan or advance of money; I am not a debtor to the purchaser; this is an original transaction and not a renewal or extension of any kind.
    “Witness my hand and seal the day and year above written.
    (Signed) H. T. Flood (L. S.)”
    '“Witness: W. J. Mathews.”
    The defendant filed his plea and answer, alleging, among other things, substantially the following: that the paper was not in fact an assignment, but was “a false and fraudulent writing, couched in its present text and language, for the sole and express purpose of evading the usury statutes of this State and in order to obtain usury of this defendant;” that the defendant obtained no money from the plaintiff at the time the instrument was executed, but that he had borrowed $40 and $60 (later combined as one loan of $100) from the plaintiff in 1922, and that notwithstanding he had made payments of the plaintiff’s usurious charges for the use of this money to the amount of $160, the plaintiff still claimed that he was indebted for the original principal, and that the writing in question was given as a renewal of that loan; that at that time he had already drawn his salary for the period mentioned, with the exception of $1.35, and that the plaintiff knew that this was true; that he had overpaid the debt, owed the plaintiff nothing, and had committed no conversion nor otherwise damaged the plaintiff as alleged. After the introduction of evidence on both sides, the court directed a verdict for the plaintiff for the amount sued for, and rendered judgment thereon.

      The defendant sued out certiorari, assigning error on the exclusion by the court of certain evidence and on the direction of the verdict and the rendition of the judgment. The judge of the superior court in due course passed an order saying that the certiorari was “overruled,” and the defendant excepted. The original bill of exceptions contained the following recital and assignment of error: “After argument by counsel for the parties, the court entered an order dismissing the petition for certiorari. To this ruling by the court, dismissing his petition, the plaintiff H. T. Mood then and there excepted and now excepts and assigns the same as error, upon the ground that said ruling was contrary to law, and says that said judge should then and there have sustained said petition for certiorari.” In the specification of the record to be brought up, the judgment of the superior court was described as one “overruling” the certiorari. Counsel for the plaintiff in error, conceiving that the bill of exceptions was incorrect in reciting that the certiorari was “dismissed,” and 'deeming also that the exception should have been to the “ruling by the court, overruling the certiorari,” instead of to the “ruling by the court dismissing” it, has moved to amend the bill throughout by substituting “overruling” for “dismissing” wherever this word appears. Counsel for defendant objects to the allowance of this amendment and says that this court should either affirm the judgment or dismiss the bill of exceptions, for confusion in the record or for insufficient assignment of error.

      B. F. Goodrum, for plaintiff in error.

      Luther Bloodworth, O. Q. Hancocic, R. D. Feagin, contra.
   Bell, J.

(After stating the foregoing facts.) We hardly think that the proposed amendment to the bill of exceptions is necessary. See Civil Code (1910), §§ 6183, 5205; Whitfield County v. Hogan, 17 Ga. App. 685 (87 S. E. 1087); Phelps v. Belle Isle, 29 Ga. App. 571 (5) (116 S. E. 217); Federal Life Ins. Co. v. Walton, 34 Ga. App. 694 (1) (131 S. E. 90); Gunn v. Wood, 99 Ga. 70 (24 S. E. 407). But whether so or not, the judgment excepted to having expressly said that the certiorari was “overruled,” the plaintiff in error, since he desires it, should be allowed to amend the bill of exceptions so as to make it conform with technical accuracy to the judgment. Practically the same thing was ruled in Hunnicutt Co. v. Kane, 21 Ga. App. 665 (1) (94 S. E. 821). See also Parks v. Johnson, 79 Ga. 567 (2) (5 S. E. 243); Ramey v. O’Byrne, 121 Ga. 516 (1) (49 S. E. 595); Civil Code (1910), § 6184.

2. With the bill of exceptions amended, there can be no doubt (if there ever was any) of the sufficiency of the assignment of error on the judgment on the certiorari. Meeks v. Carter, 5 Ga. App. 421 (63 S. E. 517) ; Buchman v. Rogers, 29 Ga. App. 62 (1) (113 S. E. 230); Chandler v. Reeves, 26 Ga. App. 167 (1) (105 S. E. 724); Phoenix Ins. Co. v. Gray, 107 Ga. 110 (1) (32 S. E. 948); Barker v. Marietta Guano Co., 112 Ga. 305 (1) (37 S. E. 379); Glenn v. Shearer, 44 Ga. 16 (3).

3. The complaints in the petition for certiorari that the court erred in not allowing the defendant to answer certain questions propounded by his own attorney are, for the most part, imperfect, because the court was not informed at the time what answer was expected. Griffin v. Henderson, 117 Ga. 382 (2-3) (43 S. E. 712); Smith v. Barr, 32 Ga. App. 53 (122 S. E. 626); Tinsley v. State, 32 Ga. App. 444 (2) (123 S. E. 622); Southern Ry. Co. v. Wright, 6 Ga. App. 172 (3) (64 S. E. 703). Error was perhaps sufficiently assigned on the exclusion of a certain document. But to pass over all exceptions to the exclusion of evidence, either oral or documentary, there was enough evidence admitted without objection to make an issue for the jury as to whether the defendant’s plea was true, and the court erred in directing the verdict. We have not set out the evidence and will not discuss it, because the principal difference between counsel seems to be on whether, in view of the stipulations of the writing, parol evidence was admissible to establish the defendant’s claim of a usurious loan, and because the case appears to have turned on this question both in the municipal court and in the superior court, each of them seemingly having agreed with counsel for the plaintiff that the answer to the question should be in the negative.

It is .a well settled rule that, in the absence of fraud, accident, or mistake, parol evidence is ordinarily inadmissible to vary the terms of a written contract. This, however, is not true where the contract out of which the suit arises is tainted with usury, and that fact is sought to be shown. In Brown v. Bonds, 125 Ga. 833, 838 (54 S. E. 933) the Supreme Court said: “If this instrument, which was signed by both.parties, correctly sets forth the agreement between them, then the two writings evidence a sale and conveyance of the land, with an option to the vendor to repurchase it within a designated period. Felton v. Grier, 109 Ga. 320. No mention is made of a loan. However, if a loan was in point of fact made, and these writings merely furnish the cloak of a usurious transaction, then the truth may be shown by parol.” And in Virginia-Carolina Chemical Co. v. Provident &c. Life Assurance Society, 126 Ga. 50 (6) (54 S. E. 929), it was held: “If a transaction is on its face usurious, it may he so declared as a matter of law. If on its face it is not usurious but is claimed to be a device to cover up the charging of usury, a question of fact as well as one of law is involved.” In Lytle v. Scottish American Mortgage Co., 122 Ga. 458 (6) (50 S. E. 402), it was ruled that “While a valid written contract can not be contradicted or varied by parol, it is competent by such evidence to show that the writing is but a cover for usury, penalty, or forfeiture,” and in the opinion it was said: “Nor does this mean that the vendee will be permitted to evade the rule that one can not by parol contradict or vary a valid written instrument. Civil Code, § 5201 [Civil Code of 1910, ■§ 5788]. Even parol testimony is admitted to enable one to show that a written instrument is not valid, but void. Civil'Code, § 5203 [Civil Code of 1910, § 5790]. It is always permissible to show that a paper is but a cover for usury, penalty, forfeiture, or other illegal advantage to one of the parties. For if the law did not sedulously disregard form and seek for" substance, nothing would be easier than its evasion by giving innocent names to prohibited acts.” In the very recent case of Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (132 S. E. 221), the Supreme Court, speaking through Mr. Chief Justice Bussell, said.: “The ingenuity of man has not devised a contrivance by which usury can be legalized, if it appears that the purpose of the scheme was to exact a larger profit for the use of the money actually advanced than eight per cent, per annum. In determining* whether the contract is usurious the substance of the transaction will be critically inspected and analyzed, for the name by which the transaction'is denominated is altogether immaterial if it appears that a loan of money was the foundation and basis of the agreement which is under consideration.” See also Fulwood v. Leitch, 7 Ga. App. 359 (66 S. E. 987); Kennedy v. Baggarley, 15 Ga. App. 811 (1) (84 S. E. 211); Haley v. Covington, 19 Ga. App. 782 (2) (92 S. E. 297); McDaniel v. Bank of Bethlehem, 22 Ga. App. 223, 233 (95 S. E. 724); Kelley v. Ramey, 25 Ga. App. 28 (102 S. E. 455); Dwelle v. Blackwood, 106 Ga. 486 (1) (32 S. E. 593); Rogers v. Blouenstein, 124 Ga. 501 (52 S. E. 617); Pope v. Marshall, 78 Ga. 635 (2) (4 S. E. 116); Baggett v. Trulock, 77 Ga. 369 (2) (3 S. E. 162); Jackson v. Johnson, 157 Ga. 189 (1) (121 S. E. 230); Ferrell v. Greenway, 157 Ga. 535 (2) (122 S. E. 198); McLamb v. Phillips, 34 Ga. App. 210 (129 S. E. 570).

The defense should not have been excluded on the ground that the written agreement was not subject to the parol attack for the purpose of showing that it was a mere scheme or device for the exaction of usury rather than what it purported to be. This ruling does not in any sense conflict with those decisions to the effect that an assignment of salary by an employee, when made bona fide for value, is a valid and enforceable agreement. See Covington v. Rosenbusch, 148 Ga. 459 (1) (97 S. E. 78); Central of Ga. Ry. Co. v. King, 137 Ga. 369 (73 S. E. 1093); King v. State, 136 Ga. 709 (71 S. E. 1093); Jackson v. Johnson, 157 Ga. 189 (2) (121 S. E. 230); Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787 (124 S. E. 813). The defense in the present case was to impeach the bona fides of the transaction, and was meritorious, if the jury believed it. We are not to be understood as holding that an assignment of salary even to secure a usurious debt would not be valid as to the principal. See Ga. L. 1916, p. 48; Park’s Code Supp. §§ 3438, 3438 (a); Jackson v. Johnson, supra. That question is not involved. The contention here is that the entire debt has been paid.

The superior court erred in not sustaining the certiorari.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    16701.
    HILL v. SHERRILL, administrator.
    It being provided in tlie note sued on that “this note is subject to credits of any amount which . . maker may expend for [the original payee], and is conditioned and not negotiable except to Mrs. M. E. Gachet,” .to whom the note was transferred by the payee, .and whose administrator was suing thereon, the court erred in holding that the maker was not entitled to be credited with payments made by him for the original payee, in extinguishment of debts of the latter, after notice to the maker that the note had been transferred to Mrs. Gachet. Under the above-quoted provision of the note the transferee took it subject to the condition that it could be thus satisfied.

      Bills and Notes, S C. J. p. 577, n. 29.

      Decided April 20, 1926.
    Rehearing denied May 15, 1926.
    Complaint; from Troup superior court—Judge Eoop. June I, 1935.

      E. T. Moon, Wathins & Asbill, Little, Powell, Smith & Gold-stein, for plaintiff in error.

      L. L. Meadors, W. Howell Morrow, contra.
   Jenkins, P. J.

The material portions of the instrument sued

on are as follows “On or before two years at option of maker and conditions stated, after date, I promise to pay to Harvey Collins or order four thousand nine hundred & 00/100 dollars, for value received, with interest from November 1, 1914, until paid, at 8% per annum, with all costs of collection, including 10% attorney’s fee. . . This note is subject to credits of any amount which B. H. Hill maker may expend for H. Collins, and is conditioned and not negotiable except to Mrs. M. F. Gachet.” A suit was instituted by the administrator of Mrs. Gachet for the entire amount mentioned in the instrument. Under the view of the law entertained by the trial court, a verdict for the plaintiff was sustained for the amount which had not been liquidated up to the time that the maker received notice of its assignment to Mrs. Gachet, although the evidence was uncontradicted that the maker had fully satisfied the terms of the instrument by subsequently discharging the debts owing by the payee in excess of the balance due on the instrument.

The meaning of the instrument, properly construed, is that the maker promises to pay $4900 to the payee (or to Mrs. Gachet if the instrument be assigned to her), or, if he saw proper, to the creditors of Collins in extinguishment of debts owing by him. In other words, the promise to the payee, as well as to the authorized assignee, was alike conditional and limited to such amount as the maker chose not to expend in extinguishment of the payee’s debts. Not being an unconditional promise to pay either to the payee or to the authorized assignee, but each standing in the same position by reason of the provision written into the instrument itself, the provisions of section 3653 of the Civil Code (1910) do not have application, and payments not to the payee but in ex-tinguishment of debts owing by him, as expressly authorized by the instrument sued on, should have been allowed as credits, even though such sums were expended after the maker had received notice of the transfer. This is true for the reason that the assignee took the instrument charged with the express provision that it could be thus satisfied, and the assignee took it according to its terms, and had no better status with respect to such privilege than the payee himself had.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16709.
    Howard v. Georgia Railway & Power Company.
    Appeal and Error, 4 O. J. p. 1052, n. 8.
    Negligence, 29 Cyc. p. 653, n. 20 New.
    Street Railroads, 36 Cyc. p. 1529, n. 10; p. 1626, n. 44; p. 1633, n. 87; p. 1635, n. 92; p. 1645, n. 36; p. 1648, n. 57.
    Trial, 38 Cyc. p. 1617, n. 27; p. 1693, n. 55; p. 1696, n. 64.
   Bell, J.

1. In this action to recover for injuries alleged to have been sustained by the plaintiff as a result of the defendant’s negligence when the plaintiff was riding in an automobile belonging to and driven by her husband, even though, under the evidence, the negligence, if any, on the part of the husband may not have been imputable to the wife, the latter was under a duty not to be negligent herself, and to exercise proper care for her own safety, and, under the evidence as adduced, it was for the jury to determine whether she should have been on the lookout for the street-car (w'ith which the automobile collided) or should have warned the driver, or what, if anything, she, as a reasonably prudent person, should have done under the circumstances. Sarman v. Seaboard Air Line Ry. Co., 33 Ga. App. 315 (1) (125 S. E. 891).

2. Assuming that the court committed error, in view of the evidence, in submitting to the jury the question of whether the neglect of the driver should be imputed to the plaintiff, and also in confusing the doctrine of imputable negligence with the rule of law requiring ordinary care of the plaintiff, since the excerpt from the court’s charge complained of on these grounds permitted the jury to impute the driver’s negligence to the plaintiff only in the event that they found that the plaintiff by the exercise of ordinary care could have avoided the consequences to herself of the defendant’s negligence, and since it is true that the plaintiff was not entitled to recover at all if she could by ordinary care have avoided the consequences of the defendant’s negligence and failed to do so, such errors in the charge, if existing, were harmless to the plaintiff. Collum v. Georgia Ry. & Electric Co., 140 Ga. 573 (2) (79 S. E. 475); Atlanta &c. R. Co. v. Gardner, 122 Ga. 82 (7) (49 S. E. 818).

3. Assuming also that the court erred, under the pleadings and evidence, in submitting the defense of unavoidable accident, since the charge upon this subject was such as to allow a consideration of such defense only upon condition that the jury found that the defendant was not negligent, and since the absence of any negligence by the defendant would have constituted a complete defense, the charge upon the subject of unavoidable accident was likewise harmless. “A charge that if the injury resulted from an accident, and neither party was at fault, there can be no recovery, is in the nature of an elaboration or additional statement of the proposition that the defendant is not liable if it is without fault.” Savannah Electric Co. v. Jackson, 132 Ga. 559 (4), 563 (64 S. E. 680).

4. In the absence of request, the court did not err in failing to charge the jury that the negligence of the plaintiff’s husband, the driver, could not, under the evidence, be imputed to the plaintiff, this being a collateral matter. Branch v. Bishop, 135 Ga. 110 (2) (68 S. E. 1021).

5. The charge that if the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, if the defendant was negligent (substantially the language of the Civil Code of 1910, § 4426), was not erroneous as impressing the juiy that the plaintiff was under a duty “to avoid the consequences of the defendant’s negligence, though such negligence was not known or apparent to her, or was reasonably to be apprehended by her, and that if' she didn’t avoid it she could not recover.” See, in this connection, Collum v. Georgia Ry. & El. Co., 140 Ga. 573 (2) (79 S. E. 475) ; Allanta &c. R. Co. v. Gardner, 122 Ga. 82 (7) (49 S. E. 818) ; Southern Ry. Co. v. Gore, 128 Ga. 627 (1) (58 S. E. 180) ; Louisville & N. R. Co. v. Ledford, 142 Ga. 770 (6) (83 S. E. 792) ; Southern Cotton Oil Co. v. Caleb, 143 Ga. 585 (1) (85 S. E. 707). If the plaintiff desired that the court’s charge should be amplified in conformity with the principles laid down in Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802), a request to charge should have been made accordingly.

6. The evidence (introduced without objection) being sufficient to authorize the instruction, “that if she [the plaintiff] herself, by exercising ordinary care could have avoided the consequences to herself of the defendant’s negligence, if there was such, she would not be entitled to recover,” the charge was not error as being unauthorized by the pleadings, where the defendant’s answer, if not originally broad enough for that purpose, could have been enlarged by amendment to include the defense referred to. Joseph Leibling Inc. v. Tabb & Co., 30 Ga. App. 38 (2) (116 S. E. 666) ; Jeter v. Davis, 33 Ga. App. 733, 736 (127 S. E. 898); Central R. & B. Co. v. Attaway, 90 Ga. 656 (1 ) (16 S. E. 956); Freeze v. White, 120 Ga. 446 (1) (47 S. E. 928).

7. Error is assigned upon the charge of the court to the effect that if the driver of the automobile was guilty of negligence, and if “his negligence was the proximate, producing cause of the collision,” the plaintiff could not recover. Plaintiff in error contends that the court should have charged that if the driver’s negligence was “the sole proximate, producing cause,” the plaintiff could not recover. While it is true that there may be more than one proximate cause of an injury, nevertheless, since the court in referring to proximate cause used the definite article “the,” the jury could not have been misled by the omission of the word “sole.” See O’Donnelly v. Stapler, 34 Ga. App. 637 (4) (131 S. E. 91); Hoffman v. Franklin Motor Car Co., 32 Ga. App. 229 (7), 237 (122 S. E. 896); Dunbar v. Davis, 32 Ga. App. 192 (122 S. E. 895).

Decided April 20, 1926.

Action for damages; from city court of Atlanta—Judge Reid. May 18, 1925.

Harwell, Fairman & Barrett, for plaintiff.

Colquitt & Conyers, for defendant.

8. Failure or refusal of the court to give a charge in regard to the allowance of damages for permanent injuries in a case of alleged negligence is not reversible error where the question of the right to recover for injuries not permanent was duly submitted and the jury found that the plaintiff was not entitled to recover at all. McBride v. Georgia Ry. & El. Co., 125 Ga. 515 (1) (54 S. E. 674) ; Binder v. Georgia Ry. & El. Co., 13 Ga. App. 381 (2) (79 S. E. 216); Jackson v. Goldin, 26 Ga. App. 283 (1) (107 S. E. 394); Jackson v. Merritt Hdwe. Co., 26 Ga. App. 747 (1) (107 S. E. 394); Cochran v. Anderson, 30 Ga. App. 427 (3) (118 S. E. 450) ; Sarman v. Seaboard Air Line Ry. Co., 33 Ga. App. 315 (6) (125 S. E. 891).

9. The court, in stating the contentions of the defendant, did not “so mix and mingle such contentions with the inferences and deductions of such party, in his own favor, from facts in evidence, as to present such contentions to the jury in the form of an argument” (Smith v. Hazlehurst, 122 Ga. 786, 50 S. E. 917), nor was the charge otherwise argumentative. If the contentions' of the parties were not stated with precisely the same fullness, there was no such disparity in this respect as to require a new trial.

10. While some of tlie extracts from the charge may not be absolutely free from criticism, no material or prejudicial error appears. The evidence authorized the verdict in favor of the defendant. The court did not err in overruling the plaintiff’s motion for a new trial.

Judgment affirmed.

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


text:
    16742.
    Burdette v. Davis.
    Appeal and Error, 4 C. J. p. 108, n. 22.
    Decided April 20, 1926.
   Bell, J.

In this action for a malicious use of legal process, the verdict found for the plaintiff was authorized, under the pleadings and the evidence, and the court did not err in overruling the general grounds of the defendant’s motion for a new trial.

The special grounds of the motion, not being referred to in the brief filed by the defendant’s counsel, are treated as abandoned.

Judgment affirmed.

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

Action for malicious use of process; from Fulton superior court —Judge Humphries. June 13, 1925.

Parker & Patterson, for plaintiff in error.

H. A. Allen, contra.


text:
    16745.
    PITCHFORD v. STODDARD et al.

    Under the allegations of the petition the defendants’ alleged wrong could not be said to be the proximate cause of the damage which the plaintiff claims to have suffered as a result thereof. The petition failed to state a cause of action, and was properly dismissed on demurrer.
    Torts, 38 Cye. p. 442, n. 88; p. 523, n. 14.

      Decided April 20, 1926.
    Action for damages; from Fulton superior court—Judge E. D. Thomas. June 3, 1925.
    The plaintiff, by her petition as amended, sought to recover of the defendants $100,000 as damages, and alleged the following: Plaintiff was the owner of an apartment house in the city of Atlanta, consisting of eighteen units, all of which were rented except two. One of these was occupied by the plaintiff, and the other had been promised to a prospective tenant, who had made a deposit thereon and had planned to move in. The defendants —two men and a woman (the wife of a third man)—were on February 9, 1924, detected and arrested while they “were closeted in petitioner’s apartment building, around a bottle of intoxicating liquor belonging to” one of them. Unit No. 7, where the defendants were arrested, had been occupied by one of the men and the woman clandestinely and for immoral purposes from the fall of 1923 until the date of their arrest, February 9, 1924. All three of the defendants were in the building at the particular time and place for the purpose of drinking whisky, and they did drink whisky, in violation of law. Because they were detected while so “closeted in a room of said apartment building surrounding and drinking the contents of a bottle of intoxicating liquor,” cases were docketed against them in the police court of the city of Atlanta “under the specific charge of occupying a ‘dive.’ ” On account of the nature and circumstances of the arrest and the prominence of the parties, the story of the arrest was published in practically all the newspapers of the south, and was read and talked about by the citizens of Atlanta and elsewhere. In the newspaper articles it was stated that the defendants were accused of occupying a “dive.” The plaintiff had no knowledge of the fact that the defendants, “were present in her apartment building with a bottle of whisky, and . . said whisky was brought into said apartment building without petitioner’s knowledge or consent.” The plaintiff’s house was not a “divé,” but “was a respectable and refined apartment building in the most fashionable location of the city, and had always been tenanted by cultured people of the most refined and best families of Atlanta’s exclusive social circles, and a most valuable piece of property.” The building was worth $110,000, and the loans, taxes, and insurance thereon were being paid by revenues received from tenants, and the rentals were sufficient to take care of all the expenses necessary for the conduct and operation of the building and to reduce the loans materially, and “in the course of time all loans would have been paid and petitioner would have owned the property in fee simple, free and unencumbered.” The plaintiff’s tenants, however, “on account of the publicity and notoriety of the building in which it was dubbed both in newspaper articles and in conversation as a ‘dive,’ moved out and left the building with only three or four units occupied.” Thereafter the revenues from the building were reduced below the amount necessary to pay the loans, interest, taxes, insurance, upkeep, and operating expenses, and the plaintiff’s creditors took possession of the property and sold it under an order of court at a forced sale, on November 10, 1924, and petitioner was “bereft of all her right, title, and interest in and to the same.” The unsavory publicity and notoriety given to plaintiff’s apartment building, which was her home, greatly humiliated and embarrassed her, and made her extremely nervous, and caused her to suffer great physical and mental anguish, which undermined her health. The chief of police would not have docketed against the defendants the charge that they were guilty of occupying a “dive” but for their conduct as above indicated. The defendants, “in going into the apartment building of petitioner in the way and manner that they did, and being found by the police surrounding a bottle of whisky, and being arrested in said apartment building, was the direct and proximate cause of petitioner’s injury and damage as. herein alleged.” The defendants “have by their acts and doings, as above set out, injured and damaged your petitioner in the sum of one hundred thousand dollars, for -which she asks judgment against said defendants, jointly and severally.”
    The court sustained general demurrers filed severally by the defendants, and the plaintiff excepted.

      Scott, HornbucMe & Moore, for plaintiff.

      Jones, Evins, Moore & Powers, Hewlett & Dennis, King, Spalding MacDougdld & Sibley, for defendants.
   Bell, J.

(After stating the foregoing facts.) The declaration in this case does not show a trespass upon the plaintiff’s property. Construing the allegations most strongly against her, as must be done on demurrer, it does not appear that the defendants were in the plaintiff’s building without her consent. The petition alleges that two of them had occupied unit No. 7 for some time immediately preceding their arrest, and that the plaintiff did not know that they were in the building with a bottle of liquor. It goes no further than to aver that the liquor was there without her knowledge or consent. But even if the petition should be construed as sufficiently averring that the plaintiff did not herself consent to the presence of the defendants in her building, it does not appear that one of her tenants did not consent thereto. There is nothing to show that the defendants were not in the building at the time of their arrest with the consent of some one having the right to permit them to be there. They committed no physical injury to the plaintiff’s property or to her person, and the only wrong complained of is that two of them had been occupying the place for immoral purposes, and that all of them were violating the prohibition law at the time of their detection and arrest. The gravamen of the complaint is that their conduct carised the chief of police to suppose that the place was a “dive,” whereas it was in truth a respectable and refined apartment building. The defend-

ants’ conduct could not be said in law to be the proximate cause of any of the damages sued for. Civil Code (1910), §§ 4509, 4510; Clark v. Gay, 112 Ga. 777 (38 S. E. 81); Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Adamson v. McEwen, 12 Ga. App. 509 (77 S. E. 591); Hines v. Evans, 25 Ga. App. 829 (105 S. E. 59). The court did not err in sustaining the demurrers and dismissing the petition.

Judgment affirmed.

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


text:
    16748.
    Studebaker Corporation of America v. Smith et al.

    Factors, 25 O. J. p. 366, n. 64 New; p. 404, n. 31.
    Decided April 20, 1926.
    Complaint; from Butts superior court—Judge Persons. June 24, 1925.
    STATEMENT OE EACTS BY JENKINS, t>. J.
    Certain wagons were consigned to the defendants in error by the Studebaker Corporation, under a contract, the 9th clause of which is as follows: “In case you neglect to comply with your undertakings herein, or sell or dispose of the merchandising business in which you are engaged, or if we exercise the right hereby given to terminate this contract because your handling goods of other manufacturers is done to our detriment (of which we shall be the sole judge), or if this contract is terminated by reason of your act or default, or if and when the goods consigned hereunder remain unsold, or sold and unremitted for, eight months from date of each invoice, and if we so elect, you will in such event immediately pay us the invoice price in cash for said goods, or return them to us, freight prepaid, to South Bend, Indiana, or elsewhere as we may direct (freights being equalized), free of all charges, in as good condition as when received, paying for damage to goods, if any, cancel yonr account for freight advanced, and pay us also a sum equal to ten per cent. (10%) of the invoice price of the goods returned, to cover the agreed natural depreciation while in your possession; provided, however, that in case we exercise the right hereby granted to revoke this contract at any time if in our opinion the exigencies of our business so demand, you will ship or transfer said unsold goods as we may direct, and we will pay you the freight- advanced upon said goods and waive all claim for natural depreciation; but you agree to pay us for all other damage to said goods while in your possession.” The agreement provides also that the contract “embodies our entire understanding, and can not be .modified except by writing duly executed by us at our general office in South Bend, Indiana.”
   Jenkins, P. J.

Under the provisions of the consignment contract, the consignor could take back the shipment within eight months from the invoice date, only by refunding the freight charges advanced by the consignee; but after the expiration of eight months from the date of the shipment the consignor could, without refunding the original freight charges advanced by the consignee, order the return or reshipment of the goods by prepaid or equalized freight, and would be further entitled to an agreed ten per cent, to cover depreciation. The record conelu-. sively shows that after the expiration of about two years from the date of the shipment the consignor exercised its option under the contract, by calling for a return of the goods, freight prepaid, plus ten per cent, agreed depreciation; that the consignees recognized that the consignor was exercising such option, and agreed in writing to respond in accordance with “the provisions of the consignment agreement.” Consequently, in a suit by the consignor for the ten per cent, agreed depreciation, plus reshipping freight charges, there could be no judgment in favor of the defendant consignee under the theory that the action of the consignor in ordering such reshipment amounted to a mere revocation of the agreement, and this is true even though a traveling representative of the consignor may have stated to the defendant consignee that the goods had been sold to another, f. o. b. the town of the consignee’s residence.

Judgment reversed.

Stephens and Bell, JJ., concur.

One of the defendants testified: “When those wagons were originally shipped to us from South Bend, we paid the freight,” amounting to $288.05.. He testified also that after the expiration of the eight-months period specified in article 9 of the contract, and after the wagons had remained in the hands of the consignee for about two years, the consignor “began to write us about taking those wagons away; there were no wagons selling in Butts county, or at Macon or at McDonough; we wanted to ship them away so we could get our money that we had tied up in them, and they kept writing and said they were going to ship them back and make us pay 10%, and we asked them to leave them there, and when we saw we could get our money and get our freight back we would turn them aloose, but they claimed they were not going to do that, and we wrote that letter and asked them to allow us to keep them until October, the fall of the year, and if there was any crop made around there, may be we could sell them.” The other defendant testified: “The Studebaker Company revoked the contract. We would not have let them have the wagons if they had not done it, because the contract said if they revoked it, they were to pay us the freight back from South Bend to Flovilla, and we were not to pay for any depreciation or anything to any one else. That man Lane came there and told us he wanted us to sign that agreement there, and I told him I was not going to do it, and he said ‘why won’t you do it?’ And I said, ‘You are revoking the contract, and I am not going to sign any agreement for you to sell the wagons anywhere in the United States if you want to and we have the freight to pay.’ I said, ‘You might sell them in San Francisco or Seattle, Washington, and I am not going to sign any such contract;’ and he-said he was going to sell them f. o. b. there. ‘You have no depreciation,’ he said. ‘He admitted in the presence of a witness there that there was no depreciation, that the wagons were as good as when they came from the factory, and he got mad because we would not sign the contract, and he went off down to the hotel and came back that afternoon and asked us to sign the contract. He said under his word he would sell the wagons f. o. b. Flovilla. I told him I could sell them in Macon; and I called up a man in Macon about them. I made an effort to sell the wagons. A man told me he would buy them in two months, if we would keep them there. After that was signed up and he came back to get the wagons, Lane told us he was to sell them f. o. b. We would not have let them have the wagons otherwise. We could have kept them there and sold them ourselves and got our freight back from South Bend, and we would not have had to sacrifice all of that money we paid out on freight. In other words, we shipped those wagons there and paid all that freight from South Bend, Indiana, and we were defrauded from getting one penny out of them, and the Studebaker Corporation did not lose one penny on shipping them from Indiana, and I don’t see how they ought to have any money out of us. I don’t think they should have any money out of us when they have not lost anything on us, not one penny. The wagons were shipped there in 1930. We kept them two years, good and dry.”

The issue submitted to the jury on the trial was whether the consignment contract had been revoked, or whether the plaintiff had exercised its option under the first part' of article 9 of the consignment agreement. The plaintiff introduced in evidence a letter addressed to plaintiff and signed by the defendants, dated January 19, 1933, as follows: “Beplying to your valued letter of the 11th inst. requesting that we send you check for $448.15 to cover 10 per cent, depreciation on your wagons, we beg to advise that we know that you all want to be as liberal with us as you can, and we are writing to ask that if we are to pay the depreciation, if we would not be entitled to the advance in price on the wagons. You will note that both shipments carried a 15 and 18 per cent. discount off the list price. This seems fair to us. If you are to make us pay the depreciation, then we would be entitled to the advance in price. In view of the fact that we are not responsible for the existing conditions and that it is no lack of effort to sell the wagons or anything on our part, we are writing to ask you to let us keep them until October 1st. By that time we can see what the fall sale is going to be, and if we do not sell them, we will ship them back to South Bend, or to your order by prepaid freight. In view of the fact that we have already paid the freight, we will lose the freight both ways, which will amount to a considerable sum. Then, too, may be the freight rate will be lower by that time. We are glad to store them for you, and would be glad if you would send your representative here and check the wagons again, and give us another chance to work them off. If you will exchange wheels for three and 2-1/2 inch tires, we believe we can sell them to sawmills in South Georgia or around here. We want to do the right thing always if we know it, and if you refer to your books you will see that we have always met our obligations, and our relations have always been pleasant. In fact we have on hand four or five buggies that we paid you for nearly two years ago, and in view of all this and conditions over which we have no control, we can not believe that you will be unreasonable with us. You asked for a financial statement, and we gladly sent it to you, and you can see from the statement that we haven’t any funds available. We assure you that we want to do anything fair to stay out of the courts, for we had rather take the money that we would have to pay out in costs and lawyers and apply it to our debts. We have never had but one case in court, and that was question of $300.00 salary. Although after five years we gained the case in the higher courts, it cost us at least that amount and the embarrassment and trouble. So please do not put the account into the hands of the courts, for we want to do anything fair and do everything possible to keep out. If we will agree to store and do our best to sell the wagons, won’t you let them stay here until October 1st? If on that date they remain unsold, we will without delay ship them back prepaid to you, and give you what profit we might have in them, and also lose the freight we have advanced. We will be glad if you will do this, for this will give us time to sell them, and you will make the sale of the wagons and we will get our money out of them. We assure you that we will sell them when any wagons axe sold we will not wait for the'trade to buy them here, but will sell them elsewhere. Dealers in several places have promised to figure with us when they were in the market again, and we keep in close touch with them. Please consider exchanging some of the wheels for wider tires and let us see what we can do. We will spend some money in advertising and try and reach the trade. In view of the whole situation, please let us know if you will not reconsider and let us keep them a little longer, if not until October 1st, and see if we can’t dispose of them. We assure you we are doing our best.”

The plaintiff introduced also a communication dated May 27, 1922, signed by the defendants and addressed to the plaintiff, as follows: “We hereby agree to transfer and or load and ship the Studebaker wagons on hand in our warehouse at Flovilla, Georgia, on your order. These wagons were shipped us by yon under the provisions of the consignment agreement dated August 24, 1917, and we agree to transfer and or reship them under the provisions of this consignment agreement, holding the wagons for you free of storage charges, and shipping by prepaid freight. These wagons represent shipments made on December 19, 1919, and August 11, 1920, and consist of the following: 24 No. 302 light south complete wagons with boxes, no seat or brake. 18 No. 303 medium south complete wagons with boxes, no seat or brake. All wagons equipped with regular tire, wide track, and coach tongue. We agree also to remit you covering the agreed natural depreciation of 10% as provided for in clause nine (9) of the consignment agreement referred to above, dated August 24, 1917.” It appears that the wagons were reshipped from Flovilla in September, 1922. The jury found for the defendants and allowed them by way of recoupment the $288.05 paid by them as original freight charges from South Bend, Indiana, to Flovilla.

H. M. Fletcher, for plaintiff.


text:
    16752.
    Pape v. Woolford Realty Company.
    Appeal and Error, 4 O. J. p. 679, n. 37.
    Bills and Notes, 8 0. J. p. 388, n. 63 New; p. 417, n. 92; p. 418, n. 3; p. 947, n. 79.
    Courts, 15 C. J. p. 987, n. 61.
    Dismissal and Nonsuit, 18 C. J. p. 1160, n. 48.
    Judgments, 34 C. J. p. 169, xx. 64; p. 173, n. 49; p. 176, n. 81; p. 188, n. 25.
    Pleading, 31 Cye. p. 203, n. 34 New; p. 619, n. 64.
   Bell, J.

1. Where a suit was brought in two counts upon two sex'ies of notes, and where, in answer to the second count, the defendant pleaded that the notes therein sued on had been given for a loan in the amount of the notes, but that at the closing of the loan the lender retained a certain surn as usury and delivered only the remainder to the defendant as the borrower', and that because of these facts the plaintiff was entitled to recover only the sum which the defendant had obtained, the plea went merely to the justice in part of the plaintiff’s demand, and did not set up a counter-demand against the plaintiff for anything. See Civil Code (1910), § 4339. The plea, therefore, was not a plea of set-off, within the meaning of section 4348 of the Civil Code (1910), which provides that after a plea of set-off is filed the plaintiff may not dismiss his action so as to interfere with the plea, except upon certain prescribed conditions. The court did not err in allowing the plaintiff to strike the second count of the petition, ixx this view it is unnecessary to determine whether the section of the code last mentioned could apply in any case where the suit is in several counts and the plaintiff does not seek to dismiss the entire action, but merely moves to strike one of the counts thereof, leaving the suit pending as to the other count or counts.

2. While some of the notes sued on in the first count depended for their matux'ity upon the maker’s default in the payment of another note of the same series, as to which default had been made, and also upon the holder’s election thereupon to declare the whole indebtedness due, the filing of the suit upon the entire series amounted to such election. Board of Education of Glynn County v. Day, 128 Ga. 156 (6) (57 S. E. 359). The filing of such suit being an undeniable fact, the defendant’s denial of the plaintiff’s allegation “that petitioner elects to declare all of said indebtedness now due and payable” raised no issue of fact for determination by the jury; nor did such denial constitute any valid objection that, as to some of the notes, the suit was prematurely brought. See Andrews Co. v. Dorsett, 29 Ga. App. 321 (115 S. E. 772) ; Walker v. Jenkins, 32 Ga. App. 238 (1) (123 S. E. 161), and cases cited. Under the record no question is presented as to whether the petition ought to have shown that the plaintiff had elected, before suit, to declare the whole indebtedness due. See, in this connection, Sheffield v. Johnson County Savings Bank, 2 Ga. App. 221 (4), 223 (58 S. E. 386) ; Blitch v. Brewer, 83 Ga. 333 (9 S. E. 837) ; Hipp v. Fidelity Mutual Life Insurance Co., 128 Ga. 491 (4) (57 S. E. 892, 12 L. R. A. (N. S.) 319).

3. Whether a mere option in the holder to accelerate the maturity of a series of notes because of nonpayment of interest, or other default, is waived or lost by failure to exercise it before tender of the amount actually due (see 8 C. J. 418), the right to exercise such option would not be affected by a tender that was not continuing and otherwise valid. Civil Code (1910), § 4322; Gray v. Angier, 62 Ga. 596. The tender alleged by the defendant in this case does not appear to have been continuing, and, whether it was sufficient in other respects or not, the plaintiff’s option to declare all the notes due was not lost by reason thereof. A tender after the exercise of the option, as after suit, would be immaterial as affecting the holder’s rights thereunder.

4. Where notes secured by a conveyance of land to the payee are transferred to another without a conveyance of the security, the transferee may proceed to collect the debt by obtaining judgment, and causing a levy to be made on the land after a reconveyance by the grantee; and the fact that the transferee does not hold the title to the security is no reason why he should not -be entitled to a judgment upon the notes. Clark v. Havard, 122 Ga. 273 (50 S. E. 108).

5. An indorsement or assignment of any bill, bond, or note, when it is sued on by the indorsee, need not be proved unless denied on oath. Civil Code (1910), § 4299.

6. Under the rulings in paragraphs 2, 3, 4, and 5 above, the answer to the first count failed to set forth a valid defense, and the court did not err in striking it. The suit then being in default, the plaintiff was entitled to take a verdict as if each and every allegation of the petition had been proved by evidence. Civil Code (1910), §§ 5539, 5662. Although it is true, as contended by counsel for plaintiff in error, that as to the notes which had not matured by their own terms the suit was not one upon unconditional contracts in writing (see Howard v. Wellham, 114 Ga. 934, 41 S. E. 62; Rodgers v. Caldwell, 112 Ga. 635, 37 S. E. 866), the direction of the verdict for the plaintiff was not for this reason violative of the provisions of the Civil Code (1910), § 6516. WJiile the judge may ordinarily have no authority to render judgment without the verdict of a jury, except in cases referred to in that section, this does not mean that, even in those cases where the verdict of a jury is necessary, the court may not direct it where it is demanded by the law and the facts.- Mitehell v. Allen, 110 Ga. 282 (2) (34 S. E. 851); Boaz v. Jackson, 105 Ga. 228 (31 S. E. 163); Western Union Tel. Co. v. Lark, 95 Ga. 806 (3) (23 S. E. 118) ; Methodist Episcopal Church South v. Dudley &c. Lumber Co., 137 Ga. 68 (4) (72 S. E. 480) ; Atkinson v. Olmstead, 140 Ga. 100 (4) (78 S. E. 720); Caldwell v. Freeman, 146 Ga. 469 (4) (91 S. E. 544); Anderson v. King, 19 Ga. App. 471 (1) (91 S. E. 788); Jelks v. Wesleyan College, 22 Ga. App. 465 (2) (96 S. E. 343) ; Parker v. Williams, 22 Ga. App. 730 (6) (97 S. E. 260) ; Civil Code (1910), § 5662.

7. Eurthermore, “under the act creating the city court of Atlanta, and the acts amendatory thereof, the judge has the power to try any case in which trial' by jury is not derfianded. Hence, where a petition is brought under the code procedure and is duly paragraphed, and the defendant has not answered, or his answer has been stricken, the judge may either direct a verdict in favor of the plaintiff, or himself enter up the judgment without the intervention of a jury.” Ford v. Wright, 9 Ga. App. 177 (2) (70 S. E. 965).

Decided April 20, 1926.

Rehearing denied June 18, 1926.

Complaint; from city court of Atlanta—Judge Eeid. July 7, 1925.

Application for certiorari was made to the Supreme Court.

W. A. James, Linion S. James, for plaintiff in error.

Madison Richardson, contra.

8. Tlie ruling made in tlie second division of tlie syllabus in Hayden v. Johnson, 59 Ga. 105, in view of subsequent legislation (see Ga. L. 1895, p. 45; Civil Code, § 5657), lias no application in the case at bar. Lenny v. Finley, 118 Ga. 427 (2) (45 S. E. 317).

9. The verdict and judgment appear to be for the correct amount, under the allegations of the petition, which were to be taken as true when the answer was stricken. This court can not adjudicate that the amount was excessive merely in view of certain alleged payments shown for the first time in the bill of exceptions.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    16716.
    Cochran v. Carter.
    Contracts, 13 C. J. p. 370, n. 25; p. 744, n. 90.
    Judgments, 34 C. J. p. 169, n. 64; p. 188, n. 25.
    Pleading, 31 Cye. p. 619, n. 64,
    Decided April 20, 1926.
    Complaint; from city court of Waycross—Judge Crawley. June 17, 1925.
    I. J. Bussell, for plaintiff in error.

      Blalock & Blalock, Charles E. Harper, M. M. Sessions, W. M. Reynolds, contra.
   Bell, J.

1. In a suit upon a written contract, in which the sole ground of defense was that the writing did not express the true agreement between the parties, where the defendant’s answer alleged that the defendant executed the contract without reading it, but failed to. show that he could not read and was for that reason imposed upon, or that the contract was signed under some emergency which exbused the failure to read, or that such failure was brought about by the fraud or artifice of the opposite party, the answer set forth no valid defense, and was properly stricken. Widincamp v. Patterson, 33 Ga. App. 483 (2) (127 S. E. 158), and cases cited.

2. The defendant’s answer having been properly stricken, the suit was then in default, and it being one in which the amount of the plaintiff’s claim was liquidated, the plaintiff was entitled to take a verdict as if each and every allegation of the petition had been proved by evidence. Civil Code (1910), §§ 5539, 5662; Pape v. Woolford Realty Co., 35 Ga. App. 284 (6) (134 S. E. 174).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    16762, 16794.
    Stephens v. Milikin; and vice versa.

    Bankruptcy, 7 C. J. p. 400, n. 23; p.-406, n. 60, 61.
    Fraud, 26 C. J. p. 1087, n. 43.
    Decided April 20, 1926.
    Complaint; from city court of Jesup—Judge Crawley presiding. July 30, 1925.

      James B. Thomas & Son, for plaintiff.

      Wilson, Bennett & Pedrick, for defendant.
   Bell, J.

1. It is not obtaining property by false pretenses or false representations, within the meaning of exception 2 of § 17a of the bankruptcy act of 1898 as amended, for a person by false pretenses or false representations to induce another to accept his note or due bill for money previously obtained. Carville v. Lane, 116 Me. 332 (101 Atl. 968) ; Rudstrom v. Sheridan, 122 Minn. 262 (142 N. W. 313).

2. Furthermore, in this case the only alleged fraud of which there was any proof consisted of a false promise on the part of the defendant thereafter to secure the debt by a mortgage and also by personal indorsements, or to do some other act in the future, and therefore did not constitute such fraud as would render the defendant’s discharge in bankruptcy inoperative as to such debt. Shafer v. Carson, 33 Ga. App. 418 (1) (126 S. E. 735). A false promise to perform an act in the future is not a false pretense or false representation. Meacham v. State, 7 Ga. App. 713 (1) (68 S. E. 52) ; Edge v. State, 114 Ga. 113 (1) (39 S. E. 889) ; Holton v. State, 109 Ga. 127 (1) (34 S. E. 358); McGhee v. State, 97 Ga. 199 (2) (22 S. E. 589).

3. Exception 4 of § 17a of the bankruptcy act, providing that a discharge shall not release the bankrupt from debts which were created by his defalcation while acting in a fiduciary capacity, does not apply to those trusts which are merely implied by law from the contract. Where partnership assets have been sold by one of the partners and the proceeds of the sale have been received by him for the partnership, he does not hold the money as a fiduciary of the other partner or partners within the meaning of the above-mentioned provision of the bankruptcy act. Hill v. Sheibley, 68 Ga. 556; White v. Morris Fertilizer Co., 31 Ga. App. 710 (2) (121 S. E. 704) ; Inge v. Stillwell, 88 Kan. 33 (127 Pac. 527, 42 L. R. A. (N. S.) 1093); American Agricultural Chemical Co. v. Berry, 110 Me. 528 (87 Atl. 218, 45 L. R. A. (N. S.) 1106); Noble v. Hammond, 129 U. S. 65 (32 L. ed. 612).

4. Upon application of the above-stated principles to the evidence in this case, in which the plaintiff assumed the burden of pleading and proving that the defendant’s discharge in bankruptcy was not effective as a release from the note and due bill sued on, the court did not err in granting a nonsuit.

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

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


text:
    16763.
    Moor v. Southern Pacific Company.
    Carriers, 10 C. J. p. 243, n. 71; p. 270, n. 20, 25; p. 276, n. 8; p. 281, n. 63, 66, 67; p. 282, n. 77; p. 283, n. 84.
    Decided April 20, 1926.
    Complaint; from Cobb superior court—Judge Blair. July 20, 1925.
    STATEMENT OF FACTS BY JENKINS, P. J.
    This was a suit by a railway company against a shipper, for freight charges on certain fruit trees consigned by the defendant at Marietta, Georgia, to Sonoma Seed Company at Santa Bosa, California. The defendant filed an answer denying liability, alleging that the plaintiff had not delivered the shipment as agreed, but had converted the goods by delivering them to some person other than the consignee, and he prayed judgment against the plaintiff in a sum alleged to have been the value of the goods. It appears that when the trees were received at the point of destination they were inspected by the horticultural commissioner of Sonoma county and condemned as being diseased. It appears, from the plaintiff’s evidence, that after such condemnation the plaintiff held the goods for twenty-eight days, and then, having no alternative, was forced by authority of law to deliver them to the said commissioner, by whom they were immediately burned. The plaintiff introduced testimony from the agent at the point of destination to the effect that the consignee was promptly notified of the arrival of the goods, and that the shipper was notified of his failure to accept delivery. The company failed, however, to show that it notified the shipper that the trees had been condemned by the legal authorities, or that under the law they would either have to be destroyed or shipped out of the State. The shipper testified that the first knowledge of their condemnation came to him in a certificate sent him by the horticultural commissioner, certifying that the trees had been inspected and condemned on their arrival twenty-eight days previously, and had been that day destroyed. This certificate stated that “in compliance with the State quarantine law, we gave the owners the option of either destroying or shipping out of the State. After a reasonable length of time (28 days) had expired and we were not given the authority to ship the consignment out, we destroyed it by burning.” Whether the “owner” thus referred to as having been thus notified was the shipper, or the consignee, does not otherwise appear, except that the shipper testified that he had not received any such notice. The judge directed a verdict against the plea of recoupment, and in the plaintiff’s favor in the amount of the freight charges sued for.
   Jenkins, P. J.

“If the consignee rejects the goods, the carrier’s liability as such ceases, and he becomes liable as warehouseman. As such warehouseman he is chargeable with the duty of notifying the consignor of the consignee’s refusal to accept the goods, and with the further duty of holding the same subject to the order of the consignor.” Alabama Great Southern R. Co. v. McKenzie, 139 Ga. 410, 411 (77 S. E. 647, 45 L. R. A. (N. S.) 18). If, while in the carrier’s custody as warehouseman, they are seized or condemned under process of law, the carrier is relieved from liability to the consignor for failure to carry out its agreement, provided it can show that it promptly notified the shipper of such interference and seizure under legal process, or that the shipper had actual notice thereof. In the absence of such notice or such knowledge, the mere seizure under valid process is not, however, sufficient to relieve the carrier from liability on account of delivering the goods to a person other than the consignee.

In this case the reference made in a copy letter to the contents of a previous letter had no probative value as going to show actual knowledge by the shipper of the seizure and condemnation of the goods.

Judgment reversed.

Stephens and Bell, JJ., concur.

Anderson & Roberts, for plaintiff in error.

J. Glenn Giles, contra.


text:
    16766.
    COLT COMPANY v. MALLORY.
    1. The breach of an express warranty in an executed contract of sale does not relieve the purchaser thereunder, but gives him a right to damages. Instructions contrary to this principle were erroneous.
    2. The evidence was not sufficient to authorize the verdict.
    Sales, 35 Cyc. p. 138, n. 44; p. 441, n. 82; p. 442, n. 91; p. 458, n'. 29 New; p. 465, n. 92; p. 470, n. 11.
    Trial, 38 Cyc. p. 1778, n. 73; p. 1779, n. 75, 76.
    Decided April 20, 1926.
    Complaint; from city court of Madison—Judge Lambert. August 14, 1925.

      B. W. Fortson, for plaintiff. Q. L. Williford, for defendant.
   Bell, J.

J. B. Colt Company filed suit in the city court of Madison against T. A. Mallory for $205 alleged to be due under a written contract of sale of certain personal property which the seller expressly warranted “to be a thoroughly galvanized steel acetylene generator, automatic in action, and of good material and workmanship.” The defendant pleaded among other things, that the apparatus was purchased of the plaintiff to be used as a home lighting plant, and was “not constructed of good material and . . was built or constructed in such an imperfect manner that it allowed a dangerous and inflammable gas', to wit, carbide gas, to escape into the house of the defendant, thereby endangering the health of the defendant and his family, and constituting a menace to his property, in that it rendered his house subject to and very liable to destruction by fire, which said gas tended by its nature and explosive qualities to produce,” and also “that the automatic action w;as not automatic as warranted and intended, that the workmanship on the automatic action part of said generator which controls the carbide gas was not good, in that it would not do the work in a proper manner, but permitted the carbide gas to escape in great- quantities, which was both a great expense in management and operation of said machine and also a great danger to fire and to the health of defendant, .' . thereby rendering said machine both useless and dangerous to the defendant.” The answer also alleged that in consequence of the defects the property was worthless. Thus the contention was that there had been a total failure of consideration. TJpon the trial the jury returned a verdict for the defendant. The plaintiff’s motion for a new trial was overruled, and the movant excepted.

If a sale of personal property has been executed, a breach of warranty will not annul it, but will give the purchaser a right to damages. Hutchinson Lumber Co. v. Dickerson, 127 Ga. 328 (3) (56 S. E. 491). The measure of damages in such a case ordinarily is the difference between the contract price of the goods ordered and the market price, at the time and place of delivery, of those delivered. Americus Grocery Co. v. Brackett, 119 Ga. 489 (5) (46 S. E. 657). The defendant’s plea of total failure of consideration was not sustained unless the evidence showed that the plant was totally worthless, and the burden of proof as to this issue was of course upon the defendant. Counsel for plaintiff in error takes the position that the defendant pleaded a breach of an express warranty only, and that the evidence failed to show such breach. We can not agree with this contention. Assuming that the evidence failed to show a breach of the express warranty that the generator was of good material and workmanship, and assuming also that the evidence established without dispute that it was automatic in action, we are of the opinion that the express warranty that the apparatus was automatic in action would not exclude an implied warranty that it would be reasonably safe and efficient in such automatic operation, within the purposes for which it was designed. John A. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 464 (83 S. E. 138, L. R. A. 1915B, 900); Mayor &c. of Savannah v. United States Fuel Corp., 29 Ga. App. 573 (116 S. E. 218); Clemons v. Farmers Hdwe. Co., 30 Ga. App. 317 (117 S. E. 672); Allen v. Floyd, 33 Ga. App. 531 (126 S. E. 878). The defendant’s answer may be fairly construed as alleging a breach of such implied warranty, and we think there was some evidence to sustain the allegation. We find no evidence in the record, however, to sustain the plea of total failure of consideration. The defendant testified to the imperfect operation of the device, but there was no evidence that it was worthless. The defendant testified that it was of no value to him in the condition it was in. This did not show that it was not of some value. Eor this reason the verdict in the defendant’s favor was unsupported. Colt Co. v. Wheeler, 31 Ga. App. 427 (4) (120 S. E. 792); Harmon v. Block, 32 Ga. App. 700 (2) (124 S. E. 548). As to the proof necessary to show a partial failure of consideration, see Kiser Co. v. Branan, 31 Ga. App. 241 (120 S. E. 427); Kiser Co. v. Mendel Department Store, 32 Ga. App. 194 (122 S. E. 794).

The plaintiff excepted also to certain portions of the court’s charge, upon the ground that they permitted the jury to find in the defendant’s favor on the theory of the breach of other express warranties than the one alleged in the answer to have been breached. When the charge is considered as a whole, the excerpts complained of are .not fairly subject to the criticism made; but since the sale was executed, it was error to instruct the jury that a breach of the warranty would relieve the defendant of the debt, and that “if there has been a breach of that express warranty, resulting in a loss to the defendant, then that would amount to a cancellation of that contract and the defendant would not be due to pay it, and you would find in favor of the defendant in this case.” See Civil Code (1910), § 4136; Hutcheson Lumber Co. v. Dickerson, supra.

The court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

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