text:
    15520.
    HELMER v. WILSON & COMPANY.
    Those parts of the pleading in which the defendant contended that there was no binding legal contract as declared upon by the plaintiff, because the plaintiff failed and refused to furnish, as' agreed, a formal written contract covering the sale of the butter in question, were properly stricken by the court, it appearing, from the allegations of the defendant’s cross-action, that he stood upon and affirmed the existence of the contract sued upon, and was demanding his legal rights under it. Pleadings are to be construed most strongly against the pleader, and “where a plea both admits and denies the execution of a contract which binds the pleader and the adverse party to mutual obligations, the admission, and not the denial, must prevail.”
    Where, in an executory contract of sale of merchandise, it is provided that the purchaser shall order out the merchandise from time to time, — all to be ordered and taken* out by a certain date, — the seller is not required, in the absence of an order, to deliver or tender to the purchaser, on the last day, the merchandise not ordered out.
    The evidence authorized the verdict for the plaintiff, and the court did not err in overruling the motion for a new trial.
    Decided June 10, 1924.
    Breach of contract; from Pulton superior court — Judge E. D. Thomas. February 7, 1934.
    Wilson & Company, a corporation, sued J. H. Helmer, trading as the Gate City Dairy Company, for breach of an alleged contract, evidenced by the following letters exchanged between the parties:
    Exhibit A.
    “Atlanta, Ga., July 14th, 1930.
    “Gate City Dairy Co., City.
    “Gentlemen: This will confirm sale to you of 600 tubs sweet butter at 57-%e per pound for July delivery with 1 -l/2c per pound additional carrying charges for each month thereafter, the entire amount to be delivered not later than November 31st. Contract will be forwarded for your signature within a few days.
    “Yours truly, Wilson & Company.”

      Exhibit B.
    “Gate City Dairy, 138 Edgewood Avenue, Atlanta, Ga., 7/15/30. “Wilson & Co., City.
    “Gentlemen: In reference to yours of the 14th, confirming sale of GOO tubs butter, you state in your letter the entire amount to be delivered not later than Nov. 1st, this is in error. It should read not later than Nov. 31st. Kindly change your record accordingly.
    “Yours truly, Gate City Dairy.”
    Exhibit C.
    “Atlanta, Ga., July 17, 1930.
    “Gate City Dairy Company, City.
    “Gentlemen: Answering your letter of July 15th, in which you call our attention to the fact that in our letter of the 14th we gave you until November 1st to take out 600 tubs sweet butter, whereas this should have read November 31st. This letter will serve to change the date of this to November 31st as requested, and also confirm our agreement for you to put up a deposit, of 5c per pound on this butter, said deposit to remain on deposit until the last lot of this butter is delivered and be deducted from invoice billing last lot. As agreed, it will be satisfactory for you to put up this deposit next Thursday, July 33d.
    “Yours truly, Wilson & Company.”
    In the petition it is alleged: that, pursuant to the terms of the contract, the defendant deposited with the plaintiff the sum of $1800; that of the 600 tubs of butter purchased by the defendant from the plaintiff 438 tubs were delivered to and received by the defendant, and that he paid for all of this butter except 35 tubs delivered on" November 33, 1930; that the defendant refused and declined to receive and accept the remaining 173 tubs of butter as he had contracted to do; that, after notifying the defendant, the plaintiff sold the remaining 173 tubs of butter in the open market; that the contract price of the 173 tubs of butter which the defendant declined to accept, plus the contract price of the 35 tubs of butter which the defendant received but failed to pay for, and certain storage charges, amounted to $7,870.65; that the sum received from the resale of the 173 tubs of butter which the defendant declined to accept, plus the defendant’s deposit of $1,800 and certain credits due the defendant for short weights and allowances, amounted to $6,919.81; and that the plaintiff was entitled -to recover from the defendant the difference between these amounts, to wit, $950.84.
    The defendant demurred to the petition, on the ground that it “does not show any contract between defendant and plaintiff, but shows that a contract was to be made but that it was never consummated.” To meet this demurrer, which the court sustained with leave to amend, the plaintiff -amended its petition as follows: “About the 15th day of July, 1920, petitioner and defendant entered into a parol contract for the sale of butter, petitioner notifying defendant that it would submit a special form of written contract to defendant some time later, but said contract was never executed, for the reason that petitioner and defendant reduced to writing, in the form of letters, the terms and conditions of their parol contract, and, pursuant to said letters, which are identified as exhibits ‘A,’ £B’ and ‘O’ of plaintiff’s original petition, defendant ordered sweet- butter from petitioner, and said orders were delivered by petitioner in accordance with the written contract evidenced by letters marked exhibit CA,’ TB’ and ‘C’ of plaintiff’s original petition.”
    The defendant filed an answer, in which he alleged, among other things, that, “lie deposited $1,800 with plaintiff, in good faith, in order to carry out a contemplated contract with plaintiff, but says that plaintiff failed and refused to prepare and execute the contract in accordance with their conversations and letters, though this defendant time and again demanded that plaintiff execute contract in accordance with its oral and written agreement;” and “that he bought and paid for a large amount of butter from plaintiff, but denies that any valid contract existed, because plaintiff failed and refused to execute said contract as agreed.” These allegations were, on written motion for plaintiff, stricken. By way of further answer the defendant filed a cross--action, or set-off, in which he alleged:

      “(a) This defendant deposited $1,800 with plaintiff July 22d, 1920, in order to secure the contract referred to in plaintiff’s letter of July 14th, 1920, but, inasmuch as plaintiff did. not consummate said contract, he is entitled to 7% interest on said amount from that date.
    “(5) Defendant paid plaintiff $187.90 too much, by reason of short weights on butter bought from plaintiff.

      “ (c) Defendant bought of plaintiff November 22d, 1920, butter amounting to $986.32.
    “ (d) Plaintiff is owing this defendant $1,043.58, as will be fully shown by statement hereto attached, marked ‘Exhibit A.’

      “(e) Defendant, for further answer, says: Even if there was a valid contract between plaintiff and this defendant as alleged by plaintiff, the same was breached by plaintiff, and defendant is in no way liable on same.
    “ (/) According to the contract as agreed upon and as was to be incorporated in the written agreement referred to in aforesaid letter of July 14th, 1920, said butter was to be delivered to defendant in Atlanta in such amounts as required by him from time to time, but all was to be delivered not later than November 31st, 1920.

      “(g) When plaintiff did not deliver said butter by December 1st, 1920, nor offer to deliver same, this defendant went to plaintiff and demanded said butter, plaintiff refused to deliver same, saying that it only had 23 tubs in Atlanta and would have to ship same in. Defendant told plaintiff that he had sold said butter for immediate delivery, and it would have to be delivered then or not at all, but plaintiff then and there refused to.make delivery of said butter.”
    Paragraph (a) of this cross-action, on written motion of plaintiff, was stricken.
    The defendant filed also the following amendment to his original answer:
    “1. Oar or about July 14, 1920, the plaintiff and the defendant entered into an oral agreement with reference to the sale and delivery of the butter involved in this case. Under this agreement plaintiff was to sell and deliver to defendant the butter set out iaa defendant’s answer heretofore filed. Said agreement provided that said butter was to be delivered at defendant’s place of business at 138 Edgewood Avenue, in the city of Atlanta. Said delivery was to be made by the plaintiff. The grade of the butter was to be what is known as 92 score. The dates on which the advances of l-i/2c per pound were to accrue and be chargeable against this defendant were not agreed upon, but were to be agreed upon later.
    “2. At said time it was the expressed intention of the parties, aaad it was the intention of this defendant, that all the terms of said oral agreement and all the terms under which said sale was to be made were to be reduced to writing and signed by both parties [as] a formal contract, as the evidence of the terms of their said agreement. It was the further intention of the parties to said agreement, and the intention of this defendant, that said agreement was not to be binding on them until the execution of said formal contract.
    “3. The letters of July 14th, July 15th, and July 17th, copies of which are attached to plaintiff’s petition, were not intended by the parties to be construed as said formal contract hereinbefore referred to, nor to take the place thereof, but it was the intention of the parties that said formal contract should be submitted by the plaintiff to the defendant, as stated in said letter dated July 14, 1920.
    “4. Under said agreement, the said formal contract was to be prepared by the plaintiff in duplicate, and signed by the plaintiff, and submitted to the' defendant, and the defendant was to sign the same, and one copy thereof was to be retained by the defendant and one copy to be held by the plaintiff. The plaintiff agreed to prepare and submit to the defendant said contract, as stated, and this is the contract referred to in said letter dated July 14, 1920.
    “5. After the sending and receipt of said letters this defendant immediately requested and demanded of the plaintiff that it comply with said agreement and submit to the defendant said formal contract, as promised in said oral agreement and in said letter of date July 14,1920, and the plaintiff repeatedly promised and agreed to prepare [and] deliver to this defendant said formal contract, but the plaintiff, having received defendant’s money, to wit, the sum of eighteen hundred dollars, failed and refused to do so, and thereby wilfully breached said agreement with this defendant.

      “6. Plaintiff by said promises led this defendant to believe that it would submit said formal contract, and defendant, relying upon said promises and believing that the plaintiff would fulfill the same, and for no other reason, made the said deposit of eighteen hundred dollars. Defendant further alleges that from time to time he demanded said formal contract, during the months of July, August, September, and October, and upon each demand made by the defendant the plaintiff agreed to furnish said formal contract, and, relying upon said promises and misled thereby, this defendant received from the plaintiff all the butter referred to in plaintiff’s petition and amendment thereto, and amounting to approximately 428 tubs, and during all said time this defendant was demanding said formal contract, and the plaintiff was promising this defendant that the same would be prepared and submitted to him, as agreed upon.

      “7. Defendant further says that during all the time he had any dealings with the plaintiff, and during all the time he was receiving said butter from the plaintiff, the plaintiff continued making said promises to deliver to him said formal contract, as it had agreed to do.
    “8. Defendant further says that the allegation in paragraph 1 of the amendment to plaintiff’s petition, filed on the 13th day of June, 1921, to wit, ‘Said contract was never executed, for the reason that petitioner and defendant reduced to writing, in the form of letters, the terms and conditions of their parol contract, and pursuant to said letters, which are identified as Exhibits A, B, and C of plaintiff’s original petition, defendant ordered sweet butter from petitioner, and said orders were delivered by petitioner in accordance with the written contract evidenced by letters marked Exhibits A, B, and C of plaintiff’s original petition,’ is not true, and that petitioner and defendant did not reduce their contract to writing in the form of letters referred to, and this defendant did not order butter from petitioner, and said orders were not delivered by petitioner in accordance with said letters, but whatever was done between the parties and by .this defendant was done upon the promise by the plaintiff, upon which this defendant relied, that said formal contract would be submitted by the plaintiff to this defendant as agreed upon, and not otherwise.”
    The plaintiff orally demurred to this amendment, upon the ground that the facts alleged therein were insufficient to constitute any legal defense to its cause of action. The court sustained the demurrer and struck the amendment. To all the adverse rulings upon his pleadings the defendant filed exceptions pendente lite. The case then proceeded to trial, resulting in a verdict for the plaintiff for the full amount sued for. The defendant made a motion for a new trial, which was overruled, and he sued out a bill of exceptions to this court, assigning error upon his exceptions pendente lite and upon the overruling of his motion for a new trial.

      Dorsey, Brewster, Howell & Heyman, Mark Bolding, for plaintiff in error.

      Walter S. Dillon, G. M. Lancaster, contra.
   Broyles, C. J.

(After stating the foregoing facts.)

1. The contention that the court erred in striking, on written motion, certain parts of the original plea and in sustaining the plaintiff’s oral demurrer to the amendment to the plea, is without merit. The facts alleged in the portions of the plea stricken and in the amendment were, in effect, that there was no binding legal contract as declared upon by the plaintiff, because the plaintiff had failed and refused to provide and furnish (as it had agreed to do in its letter of July 14, 1920) a formal or special written contract covering the sale of the butter in question. Such a defense might have .been good but for the fact that it affirmatively appears, from the allegations of the defendant’s cross-action, that he stood upon and affirmed the existence of the contract sued upon, since, in addition to admitting that he owed plaintiff $987.34 for butter ordered out and delivered under the terms of the contract, he alleged that he was entitled to recover of the plaintiff because the latter, “according to the contract as agreed upon,” was to deliver all of the butter purchased, “not later than November 31st, 1920,” and that “when plaintiff did not deliver said butter by December 1st, 1920, nor offer to deliver same, this defendant went to the plaintiff and demanded said butter.” These facts amounted to a solemn admission in judicio that there was a valid existing contract, and that the defendant was demanding his legal rights thereunder, notwithstanding the plaintiff had failed to furnish a formal written contract as it had agreed to do. As was said by this court in the ease of City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464 (65 S. E. 315), “pleadings are construed most strongly against the pleader, and where a plea both admits and denies the execution of a contract which binds the pleader and the adverse party to mutual obligations, the admission, and not the denial, must prevail.” See also, to the same effect, Williams Mfg. Co. v. Warner Refining Co., 125 Ga. 408, 411 (54 S. E. 95).

2. The main contention of the defendant, as presented by his motion for a new trial, is that the undisputed facts adduced upon the trial were legally insufficient to authorize a recovery by the plaintiff, because they indisputably showed that the plaintiff (and not the defendant) breached the contract, by failing to deliver or tender the remaining 172 tubs of butter on or before November 30, 1920, as it had contracted to do. We cannot agree with this contention. In addition to the terms of the contract as contained in the letters exchanged between the parties, quoted in the statement of facts, the evidence developed the following facts: The defendant was engaged in the manufacture of ice cream and purchased from the plaintiff a large quantity of sweet butter to be used by him in his business from time to time over a period of several months. The butter purchased was what is known as unsalted butter, and in order to preserve it a very low temperature was required. Neither the plaintiff nor the defendant had a suitable place to store the large quantity of butter purchased. In fact, when the contract was made, there was no place in Atlanta where a storage of this kind could be obtained. It was, therefore, agreed that the plaintiff should store the butter in Birmingham, the nearest point available for such storage. It was distinctly agreed that the defendant should order out, from week to week, the amount of butter required by him in the manufacture of ice cream. The defendant did actually order out a sufficient quantity of butter, from week to week, to meet the requirements of his business, until he had used all the butter purchased except 172 tubs, paying in full for all the butter used except the last shipment, made on November 22, 1920, which constituted 25 tubs of the value of $986.32.

Viewed in the light of these facts, we cannot hold that the evidence demanded a finding that the plaintiff breached the contract because it failed to deliver or tender on or before the 30th of November, 1920, the 172 tubs of butter not ordered out. Where, in an executory contract of sale, it is provided that the purchaser shall order out the merchandise from time to time, all to be ordered and taken out by a certain date, the seller is not required, in the absence of an order, to deliver or tender to the purchaser, on the last day, the merchandise not ordered out. In such a contract it is not obligatory on the part of the seller to deliver until the purchaser has ordered. See, in this connection, Lee v. Bewley-Darst Coal Co., 22 Ga. App. 693 (97 S. E. 99); Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524, 530 (96 S. E. 583); Gude v. Bailey Co., 4 Ga. App. 226 (61 S. E. 135); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (58 S. E. 200); Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609). The rule is clearly stated in the case of Scruggs v. Riddle, 171 Ala. 350 (54 So. 641), as follows: “Where a party to an executory contract of sale of goods has as-sinned the duty to do some precedent act upon which a subsequent act, looking to a consummation of the sale by the other party, depends, the former has not complied with his obligation until he performs, and the latter is not in default so long as the former has not performed, provided of course, there was or has been no waiver by the latter of performance by the former.”

Moreover, the evidence shows that about a week prior to November 30, 1920, one of the plaintiff’s agents, a Mr. Crowder, went to the defendant’s place of business and, finding that he was out, took up with a Mr. Goodrich, who was acting as manager of the defendant’s business, the question of the disposition of the 172 tubs of butter not ordered out. A plan was adopted by these representatives of the plaintiff and the defendant whereby the contract then in existence was to be carried into effect, it being agreed that the butter not ordered out was to be charged to the defendant’s account, but was to remain in storage in Birmingham; and, in order to save extra charges, it was to remain stored in the name of the plaintiff, and to be ordered out by the defendant from time to time as he "required it in his business. This plan was binding upon the defendant, and operated to extend the time in which the butter was to be ordered and taken out. See, in this connection, William Alsberg & Co. v. Harper Mfg. Co., 31 Ga. App. 586 (2) (121 S. E. 586). It is true that the conversation between Crowder and Goodrich in reference to this plan was objected to by the defendant, on the ground that there was no evidence showing that Goodrich had authority to bind the defendant in this respect; but there was no substantial merit in this objection, since the evidence shows that Goodrich signed the' only letter written by the Gate City Dairy Company which passed between the parties.and which consummated the sale, and two witnesses testified that Goodrich was manager, and one of them testified also that Goodrich transacted all the business for the Gate City Dairy Company. The defendant himself testified that when he- was out of town Goodrich acted as manager of the business.

3. The grounds of the motion for a new trial not disposed of by the foregoing rulings, when considered in the light of all of "the particular facts of the case and the charge of the court as a whole, are without substantial merit and do not require a reversal of the judgment below.

Judgment affirmed.

Lulce and Bloodworlh, JJ., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    15523.
    Tinsley v. The State.
    Decided June 10, 1924.
    Arson; from Fulton superior court — Judge Humphries. February 19, 1924.
    W. C. Tinsley was convicted under an indictment which charged him with having set fire to a dwelling house in which he and his wife resided and which he rented from the owner. In the first special ground of the motion for a new trial it is alleged that the court erred in admitting, over the objection that it was irrelevant, testimony set out therein, in which it was stated that at the time of the fire the furniture in the house “was diminished about one half at least” from what was there when the defendant moved into the house and up to sixty days before the fire. There was evidence that the defendant at the time of the fire had insurance on the furniture to the extent of $2,000. The second special ground of the motion was as follows: “2d. Movant objected to the following question asked of T. L. Jennings: 'Did you have any clauses in your policy which takes care of the situation where the title is retained to it ?’ Movant objected to this on the ground that it [was] irrelevant, which objection was overruled and testimony admitted, which ruling of the court was error, and new trial should be granted.” From the evidence it appears that T. L. Jennings was agent of the insurance company which issued the policy on the furniture.

      Gr. H. Cornwell, W. I. Heyward, for plaintiff in error.

      John A. Boylcin, solicitor-general, H. A. Stephens, R. II. Pharr, contra.
   Bloodworth, J.

1. Eor no reason assigned did the court err in admitting the testimony of which complaint is made in the 1st and 2d special grounds of the motion for a new trial.

2. The 3d special .ground of the motion for a new trial is that a certain question (set out) was asked and admitted by the court, the movant objecting to it on the ground that it was irrelevant. It does not appear that the question was answered or that the trial judge was apprised of what the answer would be. “An assignment of error based upon the refusal of the trial judge to permit an answar to a question presents no ground for review, unless the answer sought to be elicited is stated to him at the time of the ruling complained of.” Southern Ry. Co. v. Wright, 6 Ga. App. 172 (3) (64 S. E. 703). And see Anderson v. Savannah Press Publishing Co., 100 Ga. 454 (28 S. E. 216); Smith v. State, 119 Ga. 113 (46 S. E. 79).

3. There is sufficient evidence to support the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    15525.
    FARMERS HARDWARE COMPANY v. BEARDEN.
    Tlie county court had jurisdiction of an attachment for $81, made returnable to that court.
    Decided June 10, 1924.
    Appeal; from Putnam superior court — Judge Park. March 18, 1924.

      B. C. Jenlcins, for plaintiff.
    IF. T. Davidson, for defendant.
   Bloodworth, J.

An attachment for $81 was issued by a justice of the peace in Putnam county, and made returnable to the county court of that county. By consent the case was appealed to the superior court, where the levy was dismissed and the attachment quashed “on the ground that the attachment is made returnable to the county court, when, under section 5063 of the Civil Code, the attachment, being for less than one hundred dollars, should have been made returnable to some justice Court of this State, and, not having been made returnable to the justice court from which the attachment issued, or some other justice court of this State, the attachment is void.” It is true that section 5063 of the Civil Code of 1910 provides that “when the debt sworn to does not exceed the sum of one hundred dollars the attachment shall be made returnable to the next justice’s court of the district in which the debtor resides or last resided.” However, where the attachment is made returnable to' a county court, 'under the principle announced in Ferger Grain Co. v. Eatonton Milling &c. Co., 17 Ga. App. 170 (86 S. E. 401), and in Harper v. Tomblin, 127 Ga. 390, 391 (56 S. E. 433), the provisions of this section of the-code do not operate to vest exclusive jurisdiction in the justice’s court and divest the county court of the jurisdiction conferred upon it by section 4193 of the Civil Code of 1895 (§ 4775 (x) of Park’s Annotated Civil Code), which provides that “The jurisdiction of the county courts shall extend into the county town, district or districts, to all civil cases of contract or tort (save where exclusive jurisdiction is vested in the superior court) where the principal sum claimed in eases of contract or damages in cases' of tort does not exceed five hundred dollars; and over the remainder of the county, when the principal sum aforesaid does not exceed five hundred dollars nor is less than fifty dollars;” See Park’s Ann. Code, § 4775 (mm); Aycock v. Subers, 73 Ga. 807; So. Ry. Co. v. Wells, 103 Ga. 211 (29 S. E. 714); McDonald v. Vaughn, 130 Ga. 398, 399 (60 S. E. 1060); Dorough v. Morris, 21 Ga. App. 478 (94 S. E. 641); Napier Co. v. Brown, 23 Ga. App. 212 (98 S. E. 120); Branch v. Hewin, 29 Ga. App. 402, 403 (115 S. E. 500). Jurisdiction over such a case as this being by statute conferred on the county court, and the attachment in this case having been returned by the proper officer to the county court, the case was triable in that court.

Judgment reversed.

Broyles, G. J., and Dulce, J., concur.


author: Broyles, C. J.

text:
    15526.
    Roach v. Williams.
    Decided June 10, 1924.
    Action for damages; from city court of Savannah — Judge Freeman. February 20, 1924.

      Anderson, Gann & Gann, Mclntire, Walsh & Bernstein, for plaintiff in error. Paul Husillo, contra.
   Broyles, C. J.

1. All the special grounds of the motion for a new trial are based upon alleged errors in the charge of the court. When the excerpts complained of are considered in connection with the remainder of the charge and the facts of the case, none of them requires a reversal of the judgment below.

2. The verdict was authorized by the evidence and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bkoyles, O. J.

text:
    15528.
    Morrow v. The State.
    Decided June 10, 1924.
    Indictment for possession of liquor; from Gordon superior court —Judge Tarver. March 6, 1924.

      A. L. Henson, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Bkoyles, O. J.

The evidence authorized the verdict, and the motion for a new trial contained the usual general grounds only.

Judgment affirmed.

Luke and Bloockoorlh, JJ., concur.


author: Luke, J.

text:
    15529.
    Sellers v. The State.
    Decided June 10, 1924.
    Accusation of larceny; from city court of Baxley — Judge Speer. March 8, 1924.

      H. L. Williams, J. B. Moore, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Luke, J.

The evidence tending to establish the conviction of the defendant being wholly circumstantial, the failure of the judge to instruct the jury upon the law of circumstantial evidence, even in the absence of a timely and appropriate written request, was error requiring the grant of a new trial.

Judgment reversed.

Broyles, O. J., and Bloodioorth, J., concur.


text:
    15530.
    Hobbs v. Broad River Lumber Co.
    Decided June 10, 1924.
    Levy and claim; from city court of Lexington — Judge Cloud. February 18, 1924.
    The Broad Biyer Lumber Company interposed a claim to certain lumber levied upon under an execution issued on the foreclosure of a laborer’s lien of George Hobbs against W. A. Broach. On the trial the court, at the conclusion of the evidence, directed a verdict in favor of the claimant; to which the plaintiff excepted.
    The plaintiff testified that he was employed by W. A. Broach to saw lumber for him, and, at Burch’s direction, sawed the lumber in question; that it was cut from “the Mattox timber;” that he did not know whether the Broad River Lumber Company had any supervision over the work; that on the date on which the lumber was levied on, Broach was in possession; that “it was his property,” and that he (the witness) was not present when the sheriff levied on the lumber. J. W. Eubanks testified, that he was general manager and secretary and treasurer of the Broad River Lumber Company; that the lumber in question was purchased by that company on the stump, and the company hired W..A. Broach to cut and saw it into lumber for the company, and stack it, at so much per thousand feet, and did not employ Hobbs, the plaintiff, and did not pay him and had nothing to do with him; that the witness never saw him sawing or around the mill; that the company did not employ any of the labor and had nothing to do with hiring or paying for the labor, and that Broach did not have any interest in the timber or in the lumber; that he was only entitled to his pay under the contract for sawing it; that about $200 was due him at the time of the levy; that the timber and lumber were the property of the Broad River Lumber Compaq, and the company was in possession of the property at the time of the levy.
   Bloodworth, J.

Under the facts of this case and the ruling in Lanier v. Bailey, 120 Ga. 878 (1) (48 S. E. 324), the court did not err in directing a verdict for the claimant. See, in this connection, Williams v. Herrington, 12 Ga. App. 77 (1) (76 S. E. 757); Baughman Automobile Co. v. Emanuel, 137 Ga. 354 (73 S. E. 511, 38 L. R. A. (N. S.) 97).

Judgment affirmed.

Broyles, G. J., and Luhe, J., concur.

It was agreed in open court between the parties “that the claimant held the timber from which the lumber levied on was cut under a written contract from Mr. and Mrs. Mattox, and the lumber was the property of claimant.”

Hamilton McWhorter Jr., for plaintiff.

Irvin & Fortson, for defendant.


author: Bloodwokth, J.

text:
    15538.
    MOONEY v. THE STATE.
    The evidence was not sufficient to support a conviction of vagrancy.
    Decided June 10, 1924.
    Accusation of vagrancy; from city court of Floyd county — Judge Bale. April 4, 1924.
    O. E. Warren, a police officer of the City of Rome, testified in part as follows: Frank Mooney came back to Floyd county about six months ago. Prior to that time he had been in Alabama. When he came back to this county about six months ago he drove a taxicab for a few weeks for Charley Mendleshon, and for the last five months I have not seen him doing anything. I go along the street in front of Farrell Buffington’s place every day, and I have not seen him at work in Farrell Buffington’s place. I would say from my observation of the defendant, that he does not do enough work to make an honest living. He is an able-bodied man, and in my opinion about thirty years of age. He is a single man. He has no property of any kind from which he has an income. The record shows that several police officers “testified to practically the same state of facts as did C. E. Warren.” Farrell Buffington swore that the defendant, when he returned from Alabama, drove a taxicab for Charley Mendleshon, after which the witness hired him to work in a lunch-stand and to drive an automobile, that after beginning to work for the witness about “six months ago” he worked every week, with the exception of two weeks, when he made a trip to Alabama, and two dayS when he was ill, and that the witness paid him $12 per week for six months, except when ho was absent as above stated; that when the defendant was arrested he was “taken off his job when he was sweeping up the lunch-stand and the sidewalk;” that it required two people besides the witness himself to look after his restaurant, and that his brother and the defendant alternated in serving his customers, that when his brother was at work in the restaurant the defendant was free to go where he pleased, and that the defendant worked from eight to ten hours every day. The evidence of Buffington was corroborated by other witnesses.

      Porter & Mebane, for plaintiff in error,
    cited 3 Ga. App. 324; 5 Id. 494; 1 Id. 519 (1); 4 Id. 392; 23 Id. 10, 539; 110 Ga. 915; 119 Id. 428.

      James Maddox, solicitor, contra.
   Bloodwokth, J.

(After stating the foregoing facts.)

In Leonard v. State, 5 Ga. App. 494 (63 S. E. 530), Judge Bussell said: “Though numerous witnesses, whose testimony is uncontradicted, testified that they had not seen the defendant work, that he had no visible means of support, and that he was always loafing in idleness when they saw him (and all of these witnesses saw him frequently), this evidence, though true, must yield, in a prosecution for vagrancy, to positive evidence, not necessarily in conflict therewith, and equally uneontradicted, that the defendant had earned and had been paid an amount of money sufficient to maintain him honestly, though only in a meager style, even though he were capable of earning much more.” The ruling in that case is controlling in this, and the court erred in refusing a new trial. See Daniel v. State, 110 Ga. 915 (36 S. E. 393); Randall v. State, 23 Ga. App. 539 (99 S. E. 60).

Judgment reversed.

Broyles, G. J., and I Alice, J., concur.


text:
    15546.
    Collins v. State of Georgia.
    Decided June 10, 1924.
    Contempt; from Appling superior court — Judge Highsmith. March 13, 1924.

      V. B. PadgeLl, for plaintiff in error.

      Alvin V, Sellers, solicitor-general, contra.
   Broyles, C. J.

1. Where one indicted for a bailable offense has been arrested and has given bond for his appearance at the next term of the court, and fails to appear at that term, his bond can be forfeited, and he can be re-arrested on a new warrant; and he is not allowed to give bond more than twice for the same offense (Penal Code of* 1910, §§ 961, 959) ; but there is no law in this State authorizing his punishment for contempt of court for failing and refusing to appear in accordance with the terms of the bond.

2. Under the above ruling the court in this case erred in overruling the demurrer to the rule nisi requiring the defendant to show cause why ho should not be adjudged in contempt of court.

Judgment reversed.

Luke and Bloodwortii, JJ., concur.


author: Bloodwortii, J.

text:
    15569.
    Tapley v. The State.
    Decided June 10, 1924.
    Accusation of possession of liquor; from city court of Jesup — ■ Judge Clark. March 21, 1924.

      Thomas & Walker, James R. Thomas & Son, for plaintiff in error.

      W. B. Gills, solicitor, contra.
   Bloodwortii, J.

Where during the trial of a criminal case evidence is introduced which the defendant claims is untrue, and he makes a motion to continue the case until he can procure a witness whose evidence would contradict that, of the State’s witness, it is discretionary with the court whether the motion shall be granted or refused. This court cannot hold that in the case sub judice the trial judge abused his discretion in overruling the motion.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


author: Broyles, O. J.

text:
    15571.
    Long v. The State.
    Decided June 10, 1924.
   Broyles, O. J.

The motion for a new trial contained the usual general grounds only, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodwortii, JJ., concur.

Indictment for using opprobrious words; from Walton superior court — Judge Fortson. March 29, 1924.

Orrin Roberts, H. II. Chandler, for plaintiff in error.

W. 0. Dean, solicitor-general, contra.


text:
    15572.
    Long v. The State.
    Decided June 10, 1924.
    Rehearing denied July 15, 1924.
    Indictment for driving car while intoxicated; from Walton superior court — Judge Fortson. March 29, 1924.
    Application for certiorari was denied by the Supreme Court.
    The indictment charged Long with having operated “one Ford automobile, said automobile propelled by gasoline and being a motor-vehicle, upon the highway leading from Good Hope to Social Circle, said highway being a public highway, in said [Walton] county, while the said Long was then and there under the influence of intoxicating liquor and beverages.” The demurrer was on the grounds: (1) that no crime or violation of a valid law of this State is charged; (2) that no adequate description of the motor-vehicle is given; (3) that no adequate description of the highway is given; and (4) that the indictment does not follow the statute which makes it unlawful to operate a motor-vehicle upon any public street or highway “while under the influence of intoxicating liquors or drugs.”
    From the evidence it appeared that the defendant was seen driving a Ford automobile propelled by gasoline in the corporate limits of the town of Good Hope, “on the road from Good Hope to Social Circle,” in Walton county, when he was drunk and smelling of whisky; and it was testified that the road is a “public highway.” It was also testified that there was no record of this road in the records of public roads or in the minutes of the ordinary or of the commissioners of roads and revenues of Walton county; that the county “works this road” and had been working >it as long as witnesses forty and fifty years old could remember, and that it had never been known as a street. A witness for the defendant testified that for ten years he was mayor of the town of Good Hope,, and that during and since that time the road mentioned was’ one of the streets of the town and was worked by the town authorities as a street.
   Broyles, C. J.

1. The demurrer to the indictment was properly overruled.

2. The verdict was authorized by the evidence, and there is no substantial merit in the special grounds of the motion for a new trial.

Judgment affirmed.

Luhe and Bloodioorth, JJ., concur.

In the motion for a new trial it was alleged that the court erred in admitting the testimony of named witnesses that the road in question was “a public highway,” over objection based on the ground that the law requires a record of public roads, and parol testimony is not admissible to show that a road is a public highway. It was alleged also that the court erred in admitting testimony that the defendant was driving the automobile upon a road in the corporate limits of the town of Good Hope, the testimony being admitted over the objection that it was irrelevant because the indictment charged that the automobile was operated upon the public highway leading from Good Hope to Social Circle.

Cited by counsel for plaintiff in error: 108 Ga. 417; 110 Ga. 825; 121 Ga. 403; 141 Ga. 550; 9 Ga. App. 433-4; 27 Ga. App. 38.

E. E. Chandler, Orrin Roberts, for plaintiff in error.

W. 0. Dean, solicitor-general, contra.


text:
    15503.
    Bassett v. Mayor and Council of Madison.
    Decided June 11, 1924.
    Action for damages; from Morgan superior court — Judge Park. March 4, 1924.

      O. J. Tolnas, E. R. Lambert, for plaintiff.

      E. E. George, for defendant.
   Luke, J.

1. The court did not err in requiring the plaintiff to amend his petition to meet the demurrers, nor in allowing the defendant to-amend its answer over the objection that the answer was irrelevant and did not set up a legal defense.

2. The plaintiff having failed to prove his case as laid in his amended petition, the court did not err in awarding a nonsuit.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


author: Bloodwokti-i, J.

text:
    14020.
    Ryals v. Seaboard Air-Line Railway Co.
    Decided June 12, 1924.
    Action for damages; from city court of Americus — Judge Harper. September 15, 1922.

      Crum & Jones, Stephen Pace, for plaintiff.

      W. W. Dylces, for defendant.
   Bloodwokti-i, J.

“Under the provisions of the Civil Code (1910), I 5517, the vendor of an automobile who has retained title therein has a right as owner of the legal title, in the event of the injury or destruction of such automobile, to maintain an action for the tort, and is entitled to recover such damages as he may have sustained by reason of the injury or destruction of the personalty to which he has retained or holds title, provided the damages recovered do not exceed the balance of the purchase-price,- and it is not necessary to join the purchaser in the suit.” 158 Ga. 303.

Under this ruling made by the Supreme Court in answer to a question certified by this court, the judge of the trial court erred in sustaining the demurrer and dismissing the petition.

Judgment reversed.

Broyles, G. J., and Luke, J., oonour.


author: Stephens, J.

text:
    13870.
    Louisville & Nashville Railroad Co. et al. v. Dickson.
    Decided June 16, 1924.
    Action for damages; from city court of Monroe — Judge Felker. July 25, 1922.

      Miles 1L. Lewis, B. L. & H. G. Gox, for plaintiff in error.

      J. G. Knox, contra.
   Stephens, J.

Under the ruling of the Supreme Court in answer to a certified question propounded in this ease (158 Ga. 303, 123 S. E. 112), the plaintiff, as the holder of the legal title to the property alleged to have been damaged by the defendant, was entitled to recover. The petition otherwise setting out a cause of action in the plaintiff, the court properly overruled the demurrer to the petition.

Judgment affirmed.

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


text:
    14084.
    Martin v. Georgia Casualty Company.
   Stephens, J.

The judgment of this court reversing the superior court upon the general grounds (30 Ga. App. 712, 119 S. E. 337), having been reversed and held erroneous upon certiorari by the Supreme Court (157 Ga. 909, 122 S. E. 881), the judgment of reversal originally ren deved by this court must necessarily be vacated, and that part of the opinion of this court upon which the reversal is predicated must therefore be withdrawn. Since the record presents no other assignment of error for this court’s consideration, the judgment of the superior court must necessarily be affirmed.

Decided June 16, 1924.

Appeal; from Laurens superior court — Judge Kent. October 7, 1922.

Roger D. Flynt, Ira N. Eubanks, for plaintiff.

Brock, Sparks & Russell, J. E. Burch, for defendants.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    15328.
    Mattox, guardian, v. DeLoach.
   Jenkins, P. J.

1. “Under the law of processioning as it exists in this State, established lines and not new ones are to be fixed and determined; the location of I-ines, not as they ought to be, but as they actually exist, is to be sought.” Boyce v. Cook, 140 Ga. 360 (78 S. E. 1057); Bowen v. Jackson, 101 Ga. 817 (29 S. E. 40); Wheeler v. Thomas, 139 Ga. 598 (77 S. E. 817); Amos v. Parker, 88 Ga. 754 (16 S. E. 200); Cranford v. Wheeler, 111 Ga. 870 (36 S. E. 954); Walker v. Boyer, 121 Ga. 300 (48 S. E. 916); Cosby v. Reid, 21 Ga. App. 604 (94 S. E. 824); Elkins v. Merritt, 20 Ga. App. 737 (93 S. E. 236); Civil Code (1910), §§ 3817-19.

2. “Ancient or genuine landmarks, such as corner station or marked trees, shall control the course and distances called for by the survey.” Civil Code (1910), § 3820. Whether or not this principle would apply in a processioning proceeding between two owners claiming under a common grantor, where it appears that, at and before the execution of the deed to one of them (the plaintiff in error in this case), he together with the grantor, started at an admitted corner and went over, established, and physically marked the line now in dispute, although the deed made in pursuance of the agreed demarkation contains no reference to such physical marks, but describes the line merely as running “south” from such starting point, whereas the physical line as thus previously established ran south 30 degrees east (See Ingram v. Fisher, 70 Ga. 745, 746; O’Neal v. Ward, 148 Ga. 62 (3), 95 S. E. 709), still, since it is unquestionably true that “an unascertained or disputed boundary line between coterminous proprietors may be established, (1) by 'oral agreement, if the agreement be accompanied by actual possession to the agreed line, or is otherwise duly executed; or (2) by acquiescence for seven years by the acts or declarations of the owners of adjoining land, as provided in the Civil Code” (Osteen v. Wynn, 131 Ga. 209 (3 a), 62 S. E. 37, 127 Am. St. R. 212; Cleveland v. Treadwell, 68 Ga. 835 (3 a)), and since the record authorizes the conclusion that both the grantor, while still in possession of the adjoining premises, and the plaintiff in error, despite the description contained in the deed, subsequently recognized the line g,s thus previously marlcgd out and physically established as the true and correct boundary of their respective premises, and that both occupied their respective premises accordingly and that, including such recognition by the grantor’s successor in title to the adjoining premises, such acquiescence in such boundary continued for more than the statutory period (Civil Code of 1910, § 3821), the processioners were authorized to thus establish it, and the court did not err in overruling the protesting owner’s motion for a new trial.

Decided June 16, 1924.

Processioning; from Evans superior court — Judge Sheppard. November 10, 1923.

B. G. Collins, for plaintiff in error.

A. 8. Way, P. M. Anderson, Daniel & Durrence, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15342.
    Nelson v. Brannon.
   Jenkins, P. J.

1. The declarations of a defendant in ft. fa., made after the pendency of litigation, are inadmissible in the trial of a claim case (Civil Code of 1910, § 5776 (4)); but “declarations of the defendant in execution, made up to the time of the levy and while he was in possession, that he owned the property levied on, are admissible in evidence, if there is any evidence that he was in possession of the property at the time of the levy.” Smiley v. Padgett, 123 Ga. 39 (1), 40 (50 S. E. 927); Rutledge v. Hudson, 80 Ga. 267 (6), 271 (5 S. E. 93); Rountree v. Gaulden, 128 Ga. 737 (2), 741 (58 S. E. 346).

(a) “The execution, with the entry of the levy, was a part of the papers before the court even if not formally introduced in evidence, and the entry of the levy made by th'e sheriff on the execution recited that at the time of the levy the property levied upon was in the possession of the defendant in execution.” Bank of Southwestern Ga. v. Empire Life Ins. Co., 10 Ga. App. 320, 321 (73 S. E. 597); Manley v. McKenzie, 128 Ga. 347, 351 (57 S. E. 705). Possession by the defendant at the time of levy may be shown also by the express admission of the claimant at the trial, or impliedly from his assumption of the burden of proof which otherwise would rest upon the plaintiff in execution. Engram v. Bell, 147 Ga. 416 (94 S. E. 245); Dawson Consolidated Grocery Co. v. Hudson, 137 Ga. 846 (2), 847 (74 S. E. 796); Manley v. McKenzie, supra; Andrews v. Sims, 27 Ga. App. 338 (3) (108 S. E. 258). The sheriff’s return on the execution in the instant case recites that the defendant was in possession of the property in question at the time of the levy. While the record does not show that the claimant admitted possession by the defendant, expressly or by formally assuming the burden of proof, it appears from the brief of the evidence that he in effect assumed such burden by proceeding to offer testimony on the opening of the case, and thus impliedly admitted possession in the defendant in fi. fa. and a prima' facie case in the plaintiff. Nor was any testimony introduced tending to dispute such possession. The declarations of the defendant, made before levy and while, under certain evidence, lie was in possession, as to his ownership of the part of the crop in question and his attempt to mortgage the same, were thus admissible under the rule stated above in the first paragraph.

Decided June 16, 1924.

Levy and claim; from city court of Floyd county — Judge Bale. January 12, 1924.

James Maddox, for plaintiff in error.

Paul JJ. Doyal, contra.

2. While the evidence as to the ownership of the property claimed was sharply conflicting, the verdict finding the property subject was fully authorized, and, having- the approval of the trial judge, will not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15357.
    BRINSON v. TENNESSEE CHEMICAL COMPANY.
    As to authority to hold special terms of the court, the city court of Millen, under the act creating that court, was governed by the provisions of the Civil Code (1910), § 4876, authorizing judges of the superior courts to hold such terms.
    Decided June 16, 1924.
    Complaint; from city court of Millen — Judge Woodrum. December 21, 1923.

      A. 8. Anderson, for plaintiff in error. G. G. Delete, contra.
   Jenkins, P. J.

The only contention urged in the brief of plaintiff in error is that the city court of- Millen had no right to sit in the special term during which the judgment complained of was rendered, but that, under the act creating the court (Ga. L. 1912, p. 245), its sessions were limited to the regular terms therein provided for, which might be continued from day to day. Under the provisions of the Civil Code (1910), § 4876, the judges of the superior courts are “authorized to hold special terms of said courts for the trial of criminals, or-for the disposition of civil business, either or both, in any county of their circuits, at discretion, and to compel the attendance of grand or petit jurors either of a previous term, or to draw new jurors for the same, according to the laws now in force.” The act creating the city court of Millen (Ga. L. 1912, p. 248, sec. 4) provides that “the judge of said court shall have all the power and authority throughout his jurisdiction of judges of the superior courts, and all laws relating thereto and governing the judges of the superior courts shall apply to the judge of said city court so far as the same may apply except as herein provided.” Accordingly, there is no merit in the exception taken.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15360.
    Nashville, Chattanooga & St. Louis Railway v. Bass.
    Decided June 18, 1924.
    Action for damages; from Floyd superior court — Judge Wright. January 15, 1924.

      Tye, Peeples & Tye, Linton A. Dean, Lamar Gamp, for plaintiff in error.

      Porter & Mebane, contra.
   Jenkins, P. J.

1. As to the value of the property destroyed the plaintiff, in his testimony, stated, in reference to the first item, that his opinion as to value related to what he regarded as the “reasonable market value.” He did not repeat this' expression when, in immediate connection, he testified to the reasonable value of the other items. Insistence is made, under the general grounds of the motion for a new trial, that the verdict is contrary to law, as being without evidence to support it with respect to proof of the market value of this portion of the goods. Held: The reasonably construed meaning and intent of the testimony relating to the reasonable value of the latter items could be taken to have reference to reasonable market value, as had just been explained; especially so where (contrary to the procedure in Miller v. Luckey, 132 Ga. 581, 582 (2), 64 S. E. 658), no objection was made to the admission of the testimony. Moreover, “while the measure of damages is the market value of the property when lost, any evidence of value, including the purchase-price of the property, is admissible for the purpose of enabling the jury to find the market value.” Atlanta Baggage & Cab Co. v. Mizo, 4 Ga. App. 407 (2) (61 S. E. 844). In the instant case, as to almost every item there was additional testimony as to its cost, together with its condition or subsequent use, and there is no exception to the charge.of the court or to the failure to charge on the measure of damages.

2. The remaining grounds of the motion for a new trial, relative to the exclusion of testimony and the court’s refusal to charge, are without merit.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15364.
    Bank of Newborn v. Blue Diamond Coal Sales Company.
    Decided June 16, 1924.
    Complaint; from Newton superior court — Judge Hutcheson. December 15, 1923.
    IF. E. Key, Reuben M. Tuclc, for plaintiff in error.

      G. G. King, contra.
   Jenkins, P. J.

“A bank cannot, without incurring liability to the true owner, knowingly appropriate to the satisfaction of a debt due to it by another trust funds deposited with it by him after the creation of such debt.” American Trust & Banking Co. v. Boone, 102 Ga. 202 (1), 204 (29 S. E. 182, 66 Am. St. R. 167, 40 L. R. A. 250); Munnerlyn v. Augusta Bank, 88 Ga. 333, 337 (4), 338 (15 S. E. 467). There was evidence, although disputed, from which the jury in this case were authorized to find that the defendant bank, at the time the funds in question were deposited with it to his individual account by its debtor, had notice of the ownership or trust of the plaintiff; and, the defendant’s motion for a new trial being based on general grounds only, and the trial judge having, in the proper exercise of his discretion, refused a new trial, this court cannot interfere.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15372.
    DARSEY v. INSURANCE COMPANY OF NORTH AMERICA.
    Suspension of the insurer’s liability, under the terms of an insurance policy, while a premium note or an installment thereon was overdue and unpaid, was no defense to an action on the note.
    Decided June 16, 1924.
    Complaint; from city court of Cairo — Judge Rigsby. December 11, 1923.

      Jeff A. Pope, for plaintiff in error.
    IF. E. Duckworth, contra. ■
   Jenkins, P. J.

It is no defense, in an action to recover overdue installments on a note given 'for the premium of an insurance policy, to set up by way-of failure of consideration that, under an express condition in the policy and the note, liability under the policy was suspended while the note and installments thereon were overdue and unpaid, the policy providing that “the company may collect, by suit or otherwise, any past due notes or installments thereof, and a receipt from the said Atlanta office of the company for the payment of past dne notes or installments must be received by the assured before there can be a revival of the-policy, such revival to begin from the time’ of said payment, and in no ease to carry the insurance beyond the end of the original term of this policy.” Graham v. Maryland Life Ins. Co., 24 Ga. App. 695 (1) (102 S. E. 32); St. Paul Fire & Marine Ins. Co. v. Coleman, 6 Dakota 458 (43 N. W. 693, 6 L. R. A. 87); 33 Corpus Juris, 65, 66. In the case of Blackstock v. Jefferson Ins. Co., 23 Ga. App. 642 (99 S. E. 142), it was held that the policy was not in fact void, and the case was decided on that point alone, irrespective of what the rule might have been if the contention of the defendant on that question had been sustained. Moreover, the facts and questions there involved were dissimilar from those appearing here. In that case the question was whether the policy for'which the note was given was void ab initio, and no question was made by reason of the company’s suspension of the policy during the period of default; nor does it appear that the terms of the policy and the note provided for the recovery of premium notwithstanding such suspension. The court properly granted to the plaintiff insurance company a new trial, after erroneously directing a verdict for the defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15385.
    ADKINS et al. v. SALMON.
    A description of property in a'bail-trover petition as “one gray mare named Hanner,” of a stated value, “in possession” of the defendant,-was sufficient as against a general demurrer to the petition. Inadequate description of additional items would not render the petition subject to the general demurrer.
    Decided June 16, 1924.
    Trover; from Eloyd superior court — Judge Wright. February 1, 1924.

      Lenny & Wright, for plaintiffs in error.

      F. W. Copeland, contra.
   Jenkins, P. J.

1. In an action of bail-trover it is necessary that in the petition “the goods be described with such particularity as will enable the court to seize the chattels for which the action ’ is brought, and hold them for restitution in the event of final recovery by the plaintiff.” McElhannon v. Farmers Alliance Warehouse Co., 95 Ga. 670, 672 (22 S. E. 686); Gatlin v. Matthews, 16 Ga. App. 645 (85 S. E. 953).

2. “Pleading which is demurred to as a whole, if good in part, will stand, and the demurrer be overruled.” May v. Jones, 88 Ga. 308 (4), 312 (14 S. E. 552, 15 L. R. A. 637, 30 Am. St. R. 154); Lowe v. Burke, 79 Ga. 164 (2) (3 S. E. 449); Harris County v. Brady, 115 Ga. 767 (2) (42 S. E. 71); Medlock v. Aycock, 16 Ga. App. 813 (86 S. E. 455); Columbus Electric Co. v. Wheat, 32 Ga. App. 366 (123 S. E. 44). “A general demurrer should not prevail where any part of the petition is good.” Mayor &c. of Athens v. Smith, 111 Ga. 870 (2) (36 S. E. 955).

3. A description of property in a bail-trover petition as “one gray mare named Fanner,” of a stated value, and as “in possession” of the defendant, is sufficient as against a general demurrer to the petition. Lamar v. Coleman, 88 Ga. 417 (2) (14 S. E. 608); Beaty v. Sears, 132 Ga. 516 (64 S. E. 321); Nichols v. Hampton, 46 Ga. 256; Farkas v. Duncan, 94 Ga. 30 (20 S. E. 267); Reynolds v. Jones, 7 Ga. App. 123, 125 (66 S. E. 395); Denton v. Hannah, 12 Ga. App. 495 (6) (77 S. E. 672); Thomason v. Decatur County Bank, 28 Ga. App. 422 (1 a, 2) (111 S. E. 578); Reynolds v. Tifton Guano Co., 20 Ga. App. 49 (1), 50, 51 (92 S. E. 389); First Nat. Bank of Fitzgerald v. Spicer, 10 Ga. App. 503 (1 a) (73 S. E. 753).

4. The item referred to in the preceding paragraph having been described in the petition sufficiently to withstand the defendants’ general demurrer, the fact that the petition included other items, which may have been inadequately described and might have been stricken or required to be amended had there been a timely special demurrer thereto, would not invalidate the petition as a whole, and the court properly overruled the general demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15437.
    DAVIES v. WEST LUMBER COMPANY.
    1. The motor-vehicle act (Ga. L. 1921, pp. 256-258; Park’s Code Supp. § 828 a et seq.) “imposes certain statutory duties upon drivers of automobiles, with reference to persons and property using the highway in the ordinary course of travel. These are cumulative, and do not destroy the common-law duties of drivers of automobiles relatively to persons and property using the highway. The duty at common law of a driver of an automobile, relatively, to persons and property on the highway, is to exercise ordinary care to avoid injuring them. . . The standard of ordinary and reasonable care is invariable, such care being that of every prudent man. . . But the care of a prudent man varies according to the circumstances, dependent upon the degree of danger.” Giles v. Voiles, 144 Ga. 853 (1), 855 (88 S. E. 207) ; Central R. Go. v. Ryles, 84 Ga. 420 (11 S. E. 499) ; Central of Ga. Raj. Go. v. Hartley, 25 Ga. App. 110 (6) (103 S. E. 259) ; Fincher v. Davis, 27 Ga. App. 494 (5) (108 S. B. 905). But whatever the driver’s duty, in the exercise of the ordinary diligence required by law, may be as to manifesting especial alertness and precautions, when traversing a frequented city street, in anticipating and detecting the presence of pedestrians and avoiding injury to them, it is for the jury to apply the unvarying standard of ordinary care to the facts and exigencies of each particular case; and it would have been erroneous to charge in effect that an automobile driver must exercise extraordinary care in any such particular exigency. Giles v. Voiles, supra.
    2. In the instant action by a pedestrian, for damages on account of being struck by the defendant’s automobile, the court charged the jury that “if the defendant was negligent, as a matter of law in the manner just defined, but the plaintiff could by the use of ordinary care have 'avoided the consequences of that negligence after it was discovered, the plaintiff could not recover.” Exception is taken by the plaintiff upon the ground that “said charge eliminates all consideration on the part of the jury as to comparative negligence, and made it obligatory to them to render a verdict for the defendant, if they thought the plaintiff was guilty of any negligence at all,” and for the reason “that the doctrine of contributory negligence must be affirmatively pleaded, and the pleadings show that at no time did defendant affirmatively plead this doctrine.” Held:

    (a) If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. Civil Code (1910), § 4426. This rule is a different principle from what is known as the doctrine of comparative negligence. Amerieus &c. R. Co. v. Luekie, 87 Ga. 6 (13 S. E. 105). In the one ease the failure of the plaintiff to exercise ordinary care to avoid the consequences of the defendant’s negligence' as it had or should have become apparent precludes a recovery; while under the doctrine of comparative negligence a plaintiff can recover partial damages for injuries caused by the negligence of the defendant, notwithstanding his own fault (in degree less than that of the defendant, and short of a lack of ordinary care) might have contributed thereto. The plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows he could by ordinary • care, after the negligence of the defendant began or was existing, have avoided the consequences to himself of that negligence. 'Amerieus R. Co. v. Luekie, supra; Athens Ry. <£e. Oo. v. McKinney, 16 Ga. App. 741, 746 (86 S. E. 83). But if the plaintiff is not guilty of such negligence as will prevent a recovery, but is guilty of some negligence, the doctrine of diminution of damages may also be invoked. Bile Cotton Mills v. Grant, MO Ga. 727 (4 a) (79 S. E. 836, 48 L. R. A. (N. S.) 656). Under these rules, the court correctly charged the law of ordinary care ' imposed upon the defendant, and the rule of ordinary care devolving upon the plaintiff.
    (6) Where an instruction contains within itself a full and correct statement of a rule of law, an exception to it merely as being erroneous will not be construed as an exception to an omission to charge in the same connection a related but distinct rule of law. The plaintiff having alleged in his petition that he was “in the exercise of ordinary care,” and this averment having been denied in the plea and answer, the court properly and correctly charged the jury as to the rule of ordinaly care required of the plaintiff. The exception, being merely to the charge as given, cannot be taken as an exception to the failure to charge, in connection with this rule or elsewhere in the instructions, the separate and distinct principle of comparative negligence or diminution of damages. But even if the exception could be taken as complaining of this failure to charge, the omission would not afford ground for a new trial, the plaintiff having made no request for' such an instruction. Southern By. Co. v. Hooper, 110 Ga. 779 (36 S. E. 232) ; Savannah Blee. Co. v. Crawford, 130 Ga. 421 (60 S. E. 1056) ; Louisville &e. By. Co. v. Smith, 136 Ga. 455 (71 S. E. 774) ; Been v. Wheeler, 7 Ga. App. 507 (67 S. E. 212) ; Cen.‘of Ga. By. Co. v. Hill, 21 Ga. App. 231 (2), 233 (94 S. E. 50).
    3. Where the jury returned a verdict for the defendant, which under the charge of the court and the evidence necessarily must have been based upon a finding that' the defendant was not liable because free from negligence or because .of the plaintiff’s negligence, an instruction by the court that the jury in estimating damages should not consider injuries to the plaintiff’s “eyes and throat except as it bears upon the injury alleged in the petition,— nervousness, ” — even if erroneous in view of the omission in the petition of any reference thereto, cannot be held to have been harmful to the plaintiff. Jaelcson v. Merritt Hardware Co., 26 Ga. App. 747 (107 S. E. 394). '
    4. The verdict for the defendant, although not demanded, was authorized by the evidence.
    Decided June 16, 1924.
    Action for damages; from Fulton superior court — Judge Bell. February 1, 1934.

      O. N. Anderson, for plaintiff.

      Jones, Evins & Moore, for defendant.
   Jenkins, P. J.

It is contended by the plaintiff that the verdict for the defendant was unauthorized and contrary to law. The petition charged, as acts of negligence by the defendant, (1) the driving of the automobile truck at a reckless and unlawful speed of “approximately 30 miles per hour when crossing the sidewalk at one of the main thoroughfares of the city of Atlanta;” (3) “driving said truck” across such thoroughfare “without sounding some warning of its approach;” and (3) “driving to the right of an automobile which he was following when crossing said sidewalk, whereas he should have driven to the left of said automobile in compliance with the rules of traffic of the city of Atlanta.” As to the first charge of negligence the evidence was clearly in conflict, authorizing the verdict for the defendant, the defendant’s witnesses testifying to a lawful and reasonable speed. As to the second, there was likewise a jury question whether the injury resulted from the failure to sound a warning, from some other cause, or from the lack of ordinary care by the plaintiff, even if the ■ jury, in passing upon these questions, could properly have considered such failure to sound a warning, in view of the testimony of the plaintiff himself that he saw the automobile truck approaching even before he left the sidewalk to cross the street, near the center of which he was struck. The sounding of a signal of approach, under such circumstances, could hardly have added to the knowledge of the defendant. As to the act of the defendant in passing to the right, instead of to the left, of an automobile preceding the defendant’s truck and moving in the same direction, it appears from the plaintiff’s evidence that, after he stepped from the sidewalk of the street intersecting that along which the defendant’s truck and the car preceding it were approaching, he succeeded in passing the front car, when he was struck by the truck, which had passed the front car to the right.

It is contended that, under the rule stated in O’Dowd v. Newnham, 13 Ga. App. 220 (7), since, as in that case, “the automobile in question was suddenly turned from the course it was taking, whereby it collided with a pedestrian to whom no signal or warning was given,” and since, as the plaintiff contends, it appears “from undisputed evidence that the pedestrian was exercising due care,” this was sufficient to “exclude all idea of contributory negligence” on the part of the plaintiff. The ruling in that case, however, was not, as the plaintiff here contends, that the proof demanded a verdict for the plaintiff, but merely that it was “sufficient to authorize the jury to find that the negligence of the driver was the proximate cause of the injury;” and it was there further held that “it is for the jury to determine, from the evidence, in any case of a collision between an automobile and a pedestrian, whether it was the duty of the driver to have stopped the automobile, whbfher lie endeavored to do so, and whether the failure to stop in the particular case was due to negligence.” In the instant case there is no charge of negligence either in failing to have the car “under immediate control” in approaching a “person walking in the roadway,” or in not '“passing to the left side of the . . vehicle overtaken,” in conformity with the provisions of the motor-vehicle act, but the allegation is merely that, in passing the vehicle in front, the defendant’s driver “should have driven to the left of said automobile in compliance with the rules of traffic of the Cüy of Atlanta,.” (Italics ours.) No municipal ordinance was introduced, and this court is not empowered to take judicial cognizance of such an ordinance. Moreover, emergencies may arise when the failure to observe such a rule by the person driving to the wrong side might not amount to a failure to exercise ordinary care. See Athens Ry. &c. Co. v. McKinney, 16 Ga. App. 741, 744 (supra); Pacetti v. Cen. Ry. Co., 6 Ga. App. 97 (2), 98 (64 S. E. 302). As has been repeatedly held, questions of negligence, including contributory negligence, as well as the question as to what constituted the proximate cause of an injury, are all such questions as lie peculiarly within the province of the jury. In the instant case it appears, according to the evidence for the defendant, that the sudden stopping of the other car in front without warning required the defendant’:-’ driver to turn his car to the right in order to avoid a collision. On these questions as to the negligence of the defendant, the proximate cause of the injury, and the exercise of ordinary care by the plaintiff to avoid injury, while there was strong evidence which might have authorized a verdict for the plaintiff, such a verdict was not demanded.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15457.
    ARMISTEAD v. BEAVERS.
    1. A paper entitled “Statement and judgment,” prepared, by the police committee of the City of Atlanta, which recites that the police committee finds that James L. Beavers, chief of police of the City of Atlanta, is inefficient as chief of police in certain particulars set out in detail, and which further provides that a copy of the paper be served upon the said James L. Beavers, chief of police, calling upon him to phow cause on a certain date before the committee why “this statement” sliouid not be entered upon the minutes of the police committee “as the judgment of the police committee declaring him, the said James L. Beavers, chief of police of the City of Atlanta, inefficient for the reasons embodied in the foregoing statement,” and which “statement and judgment” is duly served upon the respondent, is a mere statement of charges against him, which he is given an opportunity to defend, and is not an adjudication of the charges against him, and therefore is not a final judgment. And since a certiorari lies only to a final judgment, the judge of the superior court erred in sustaining the certiorari brought by the respondent.
    ON MOTION FOR REHEARING.
    2. Where the plaintiff in error was the defendant in the court below, he is nevertheless a proper party plaintiff in error in this court when complaining of an adverse judgment against him, although he may not have been a proper party in the court below.
    3. This court cannot take judicial notice of the acts and doings of a subordinate governmental body, as the police committee of a city council.
    4. Query: Should a defendant in error who has made no appearance either by brief or by argument be allowed, after a reversal of the judgment, to file a motion for a rehearing?
    Decided June 16, 1924.
    Rehearing denied July 14, 1924.
    Certiorari; from Fulton superior court — Judge Ellis. January 26, 1924.
    Tbe police committee of the general council of the City of Atlanta caused to be served upon James L. Beavers, on February 10, 1923, a paper purporting to have been prepared upon the authority of the committee, which in part reads as follows:
    “City of Atlanta, Georgia. Statement and judgment. The police committee of the general council of said City of Atlanta, appointed by the mayor of the City of Atlanta, under the provisions of the charter amendments of 1922, for the purpose of exercising ‘full direction and control of officers and members of the police force, in conformity to existing laws and ordinances, and such as may be applicable to the subject/ by virtue of the right promulgated in section 416 of the City Code of 1910, and in the performance of the duty required of the police committee under section 2071 of the City Code of 1910, that: ‘The Board of Police Commissioners (the powers of which are now vested in the Police Committee) shall examine into the efficiency of the officers and members of the Department of Police, . . ’ and amendments thereto, does find, after careful investigation, and examination of his supervision of the police department, that James L. Beavers, chief of police of the City of Atlanta, is inefficient as said chief of police, said inefficiency being more specifically set forth as follows: [Various alleged charges of inefficiency upon the part of the said Beavers as chief of police are here set out.] The foregoing reasons being and showing inefficiency on the part of James L. Beavers, chief of police of the City of Atlanta, in the performance of the ministerial duties of the chief of police, as required under the rules and regulations of the department of police of the said city of Atlanta, it is ordered that this statement be signed by the clerk of the police committee of the general council, and a copy of the statement be served upon said James L. Beavers, chief of police of the City of Atlanta, at least five days before the next regular meeting of the police committee, to be held in the recorder’s court room, in the police barracks, on the 16th day of February, 1923, at 7:30 p. m., in the City of Atlanta, calling upon the said James L. Beavers, chief of police, to show cause before this committee why this statement should not be entered upon the minutes of the police committee as the judgment of the police committee declaring him, the said James L. Beavers, chief of police of the City of Atlanta, inefficient for the reasons embodied in the foregoing statement. James L. Wells, Secretary Police Committee. To Hon. James L. Beavers, Chief of Police, City of Atlanta, Ga. You are hereby required to appear and show cause before the police committee of the general council at its next regular meeting, to be held on the 16th day of Feby., 1923, in the recorder’s court room in the police barracks, in the City of Atlanta, Ga., why the foregoing statement should not be entered upon the minutes of the police committee as its judgment-, for the reasons stated in the foregoing statement. James L. Wells, Secy, of Police Committee, City of Atlanta, Ga. Ordered that F. C. Woodall, vice-chairman of police committee, serve a copy of the foregoing statement and order on Hon. James L. Beavers, chief of police of the City of Atlanta, at least five days before the next regular meeting of the police committee to be held in the recorder’s court room at police barracks, on the 16th day of Feby. 1923, at 7:30 p. m. and make a return of service. This 10th day of Feby. 1923. Jesse W. Armistead, Chairman Police Committee.”
    On February 15, 1923, the day before the respondent Beavers was- notified- and - required to appear and show, cause before the police committee of the general council “why the foregoing statement should not be entered upon the minutes of the police committee as its judgment for the reasons stated in the foregoing statement/’ he brought to the superior court of Fulton County his petition for certiorari, wherein he excepted to the action of the said police committee, upon the ground that the aforesaid paper amounted to a judgment against him upon the charges therein, and was illegal because rendered before he was notified of the charges and before he was given an opportunity to appear and defend. The certiorari was sanctioned, and on the hearing upon the petition and the answer before Hon. W. D. Ellis, judge of the superior court of Fulton county, the certiorari was sustained, the learned judge rendering an able opinion, in which it was said: “In the paper filed against the chief of police, citations from which have been heretofore made, a reasonable construction of it was, that it was an adjudication of these charges by the police committee, which it-was intended to put into effect if Beavers did not avail himself of the opportunity they gave him to come in and show that the charges made against him were without authority of law or without truth sufficient to convict him. The situation of the matter reverses the general order of things, and a reasonable construction of the matter was that the committee extended to Chief Beavers the opportunity to show his innocence. The burden of proof, however, was on the comihittee to establish the case against him by a preponderance of evidence, and the burden was not on him to show his innocence until there was evidence on the other side submitted against him which would have been legally sufficient to call for a defense on his part. In the opinion of the court this certiorari ought to be sustained, and the case is remanded to the police committee of the City of Atlanta, or its successors, with the ruling by the court as now made that the proceedings undertaken by the committee and put into effect were not in conformity with the requirements of the law, irrespective of the guilt or innocence of the chief of police. What the committee had the right to do was to bring charges against him and cite him to appear and answer, then to hear the case, both on the part of the City of Atlanta on the one side, represented by its police committee, and on the part of the defendant, James L. Beavers, chief of police. It is determined in this case that the police committee have power to cite the police officer to appear for trial, where the law authorizes such a trial, and it has the power, after proper citation has been issued, to proceed with the trial, and after this defendant has been served, as required by law, it is his privilege to appear and answer and defend himself.”

      8. G. Grane, for plaintiff in error. Spence & Spence, contra.
   Stephens, J.

(After stating the foregoing facts.) We cannot agree with the learned trial judge that the paper issued by the police committee and served upon James L. Beavers, chief of police of the City of Atlanta, was a final judgment against James L. Beavers and not rendered without a hearing, or an opportunity to be heard, upon the part of the respondent. The paper upon its face purports that it will not go into effect and will not become final as against the respondent until after February 16, 1923, upon which date the respondent was by its terms required to appear and show cause why the charges contained in the paper should not be made the judgment of the committee. It therefore does not purport to be a final judgment. While it does recite that the police committee “does find, after careful investigation, and examination of his supervision of the police department, that James L. Beavers, chief of police of the City of Atlanta) is inefficient as said chief of police,” such language amounts to no more than a charge of inefficiency upon the part of the respondent as chief of police of the City of Atlanta. It calls upon the respondent to show cause why the “statement should not be entered)upon the minutes of the police committee as the judgment of the police committee declaring him, the said James L. Beavers, chief of police of the City of Atlanta, inefficient for the reasons embodied in the foregoing statement,” and therefore plainly indicates that it was not the intention of the committee to pass any judgment against the respondent until he had been given an opportunity to defend against the charges. This is the language of a rule nisi; and while perhaps a rule nisi should not have been issued in this-case,- and while perhaps- the better procedure would have been for the committee to state the charges against the respondent and notify him to defend, we cannot hold that for this reason a final judgment has been issued against the respondent, or that the respondent has been deprived of his right to defend.

A certiorari lies only to a final judgment; and, since no final judgment is here excepted to, the petition for certiorari was prematurely brought, and was therefore improperly sustained.

That the language of the paper indicates that the police committee, in the event that the respondent did not appear and answer the charges contained in the paper, would have proceeded to render judgment against the respondent without the taking of testimony is anticipatory, and cannot aid this court in determining whether or not the committee, in preparing the paper excepted to, issued a final judgment. Whenever the committee does render a final judgment against the respondent, whether upon his failure to appear and answer or otherwise, without basing the same upon evidence regularly introduced, sustaining the charges, it will be time to pass upon the regularity of such procedure.

Judgment reversed.

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

ON MOTION ROE REHEARING.

The defendant in error moves for a rehearing upon the following grounds: (1) that the plaintiff in error was not a party to the judgment rendered in the lower court; (2) that this court has overlooked certain decisions of the Supreme Court of Georgia which the movant alleges establish the proposition that “no appeal or review by certiorari may be had at the instance of a tribunal, and no writ of error may be sued out by a court that is itself a party;” (3) that the alleged “Statement and judgment” sought to be reviewed by certiorari is no longer pending before the police committee of the general council of the City of Atlanta, and that for this reason the matter here pending has become moot.

Although the movant, as defendant in error, made no appearance, either by brief or argument, and therefore did not assist the court in arriving at its decision, and now for the first time presents to this court the questions raised in the motion for rehearing, this court, when the original opinion was written and the judgment of reversal was rendered, carefully considered all the grounds now relied upon by the defendant in error. This court at the time concluded that the case was one reviewable by this court, and that the plaintiff in error, since he was the defendant in certiorari to whom the writ of certiorari was directed and who answered the writ, and who therefore was necessarily the defendant in certiorari and a party to the judgment sustaining the certiorari, was necessarily a proper party before this court; but since the defendant in error invoked no ruling upon this question, this court assumed jurisdiction without rendering any opinion or stating any ruling thereon.

The contention that the question presented has beconie moot by reason of the action of the police committee of the general council o:f the City of Atlanta cannot be considered by this courts because it involves an issue of fact concerning which this court cannot take judicial notice; nor has it jurisdiction' to determine such an issue.

Where a losing party in this court has filed no brief, and made no argument, and therefore made no effort to assist the court in arriving at a decision, we question whether he' should be allowed, after an adverse judgment against him, to make a belated appearance by way of a motion for a rehearing. ■

Motion for a rehearing denied.

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


text:
    14385.
    Patterson v. Peoples Loan & Savings Co.
    Decided July 14, 1924.
    Levy and'claim; from Fulton superior court — Judge Bell. February 10, 1933.

      B. B. Blackburn, for plaintiff.

      Etheridge, Sams & Etheridge, contra.
   Stephens, J.

This ease is controlled by the answer of the Supreme Court to a certified question propounded by this court. 158 Ga. 503 (123 S. E. 704).

Judgment affirmed.

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


author: Bell, J.

text:
    14427.
    Lee v. Metropolitan Life Insurance Co.
    Decided July 14, 1924.
   Bell, J.

This case is controlled by the answers of the Supreme Court to questions certified. See Lee v. Metropolitan Life Ins. Co., 158 Ga. 517 (123 S. E. 737).

Judgment affirmed.

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

Action on life-insurance policy; from city court of Atlanta— Judge Eeid. January 31, 1923.

Key, McClelland & McClelland, for plaintiff.

Smith, Hammond & Smith, for defendant.


text:
    14858.
    Landrum v. Leachman.
   Stephens, J.

1. Where a note is executed by a married woman and her husband apparently as joint makers, the consideration for which is the payee’s sale of certain personalty, — as a farm tractor, — the use of which inures to the benefit of the wife, — -as where the tractor is utilized by the husband in cultivating a farm belonging to the wife from which she receives support, — the inference is authorized that the wife, in executing the note ostensibly as a maker, was such in reality, and that the obligation was an original undertaking by her and not one of suretyship. This is true though the husband alone negotiated the sale with the payee, and the wife was not present and took no part in the negotiations but signed the note afterwards at the instigation of the husband.

2. The conduct of the wife under the circumstances narrated above authorizes the further inference that she ratified the acts of the husband and thereby made him her agent in negotiating the sale.

3. In a suit by the payee on the note against the husband and the wife jointly, where the sole defense filed was by the wife and was to the effect that the execution of the note by her was as a surety only, and therefore void and not a binding obligation upon her, evidence of a conversation between the plaintiff and the husband but not in the presence of the wife, prior to the execution of the note and during the negotiation of the sale, to the effect that the payee, when asked by the husband if he would sell the tractor to the husband, responded that he would not do so, but would sell it to the wife, was properly admitted as against the wife, as evidence tending to prove that no contract was in fact made with the husband in his individual capacity, and was therefore relevant as cumulative of the main issue that the contract of sale was made with the wife.

4. Evidence to the effect that during the negotiations leading up to the sale the husband stated to the plaintiff that it was unnecessary for the plaintiff to have any dealings directly with the wife is as favorable to the contentions of the defendant as to those of the plaintiff, and its submission therefore was not harmful to the defendant.

5. An exception that the court erred in admitting “in evidence a tax-return identified by a witness” does not identify the evidence objected to with the particularity sufficient to constitute an intelligible ground of exception. Besides, it appears from the brief of the evidence that the only tax-return introduced was a return by the husband of land and agricultural implements belonging to the wife. Such evidence was relevant as a declaration by the husband tending to establish his general agency for the wife respecting her farm lands above referred to, and therefore was corroborative of other circumstances tending to establish such agency.

Decided July 14, 1924.

Complaint; from city court of Carters ville — Judge Townsend. June 11, 1923.

O. C. Pittman, for plaintiff in error.

Neel & Neel, contra.

6. In view of the above evidence and the inferences authorized therefrom, the positive evidence of the wife to the effect that she was no party to the sales contract, and that her husband in no wise acted as her agent when negotiating such sale, is not sufficient to demand a verdict in her favor.

7. The evidence authorized the verdict found for the plaintiff, and the verdict having been approved by the trial judge, and no error of law appearing, it will not be disturbed.

Judgment affirmed.

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


text:
    14924.
    United Supply Company et al. v. United States Fidelity & Guaranty Company.
    Decided July 14, 1924.
    Action on bond; from city court of Brunswick — E. D. Header, judge pro hac vice. July 18, 1923.

      Tyson & Tyson, F. M. Scarlett, Conyers & Wilcox, for plaintiff.

      Bennet, Twitty & Reese, for defendants.
   Stephens, J.

1. An indemnity bond in favor of a public board or body, as the board of education of McIntosh county, executed by one having a contract with the obligee for the erection of a school building, as principal, and by another as surety, conditioned for the faithful performance by the principal of the contract, which bond upon its face indemnifies the said board of education of McIntosh county only, and does not by its terms purport to be for the use of any person “doing work or furnishing skill, tools, machinery or materials under or for the purpose of such contract,” and which nowhere expressly purports to be tlie statutory bond required of a contractor for the doing of public work, as provided by the act approved August 19, 1916 (Ga. L.' 1916, p. 94), is not the statutory bond required of contractors for the benefit of such last-named persons under that act. American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617).

2. The petition in a suit against the surety by one furnishing materials for the erection of the school building for the public board therein referred to was properly dismissed on demurrer.

Judgment affirmed.

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


text:
    15031.
    AMERICAN AGRICULTURAL CHEMICAL COMPANY v. BANK OF MADISON.
    1. Where an affidavit to obtain the process of garnishment alleged that D was the agent of a named corporation, — A, the plaintiff in garnishment, —and the affidavit was signed A by D, it was not invalid as a mere purported affidavit of the corporation, but was the affidavit of the individual D.

      (a) The garnishment bond was not invalid as being without security because neither the name, nor a blank for the name, of the security appeared before the word “security” in the recital in the bond that A, “principal, and security” were bound, etc., or because the word “security” was not placed after the name of the party thereto who signed the bond apparently as security under the signature of the principal.
    2. The dissolution of a garnishment by bond does not relieve the garnishee from answering. In ease of such dissolution the garnishee must nevertheless answer, but, on answering, is discharged from liability, and the remedy of the plaintiff is on the bond.
    3. The court, having improperly rendered judgment discharging the garnishee without requiring him to answer, committed error in refusing the motion of the plaintiff, made during the term, to vacate the judgment.
    Decided July 14, 1924.
    Garnishment; from Morgan superior court — Judge Park. September 3, 1923.

      J. A. Mitchell, for plaintiff. E. W. ■Butler, for defendant.
   Bell, J.

Exception is taken to the refusal of the judge of the superior court to vacate an order discharging a garnishee from liability under a summons served upon it. It appears from the evidence introduced by the movant on the hearing of the motion that it had filed suit against one Head, returnable to the May term,' 1922, of Crawford superior court; that pending the suit process of garnishment was instituted in Morgan county and served upon the defendant in error bank in that county on April 11, 1922; that on April 20, 1922, Head filed in the clerk’s office of Crawford superior court a dissolution bond with a surety approved by the sheriff of that county; that judgment on the main suit was rendered in favor of the plaintiff in error against Head at the February term, 1923, of Crawford superior court; that at the March term, 1923, of Morgan superior court the defendant in error garnishee, without ever having filed its answer to the summons of garnishment, was discharged from liability thereunder, by virtue of the following order passed by the court, duly entitled in the cause: “It appearing to the court . . that a bond to dissolve garnishment as provided by section 5280 of the Civil Code of 1911, duly accepted and approved by the sheriff of Taliaferro county, was filed in the suit by the defendant, George Head, copy of which served on the garnishee, it is thereupon ordered by the court, that Bank of Madison, garnishee, be absolved from the process of garnishment served on it; and that said bank be and hereby is discharged in said matter without delay,” etc. On a motion to set aside this order of discharge, made at the sam.e term at which the order was entered, and upon which citation was issued and served, the judge refused to vacate the order of discharge. The record is silent as to the circumstances under which the order discharging the garnishee was taken, and the motion to vacate presents no reason why the plaintiff in error did not have its day in court when the order of discharge was granted. There was no motion for a new trial and no writ of error from the original judg- • ment of discharge, but it is only to the last judgment, denying the motion to vacate, that exception is taken.

An affidavit for garnishment which contains the following language, “In person before me, justice of the peace in and for the — district, G. M., of said county, came J. A. Davis, who on oath says that he is agent for the American Agricultural Chemical Co., and as such makes this affidavit, who on oath says that George Head is indebted to the American Agricultural Chemical Co.,” setting forth the amount and other essential facts, and'which is signed “American Chemical Co. by J. A. Davis,” was not invalid. It was not the affidavit of the corporation, but of the individual making the same as agent. Bennett v. Gray, 82 Ga. 592 (2), 595 (9 S. E. 469). Nor was the garnishment bond invalid as being given without a security, where it recited “We, the American Agricultural Chemical Co., principal, and security, are bound untó George Head in the sum of one thousand dollars” (setting forth the conditions), and was signed both by the plaintiff and by an individual as follows, “American Agr. Chemical Co. (Seal) by J. A. Davis. B.. M. Wilkinson (Seal).”

Subsequent to the passage of the act of 1885 (Ga. L. 1885-6, p. 96), partly embodied in sections 5280 and 5281 of the Civil Code (1910), the liability of a defendant and his surety under á bond given to dissolve a garnishment is conditioned upon the “payment of the judgment that shall be rendered on said garnishmentí” and “in case the garnishee fails or refuses to file the answer provided for in this section [5281], judgment by default may be entered against him for such an amount as may have been obtained by judgment against the defendant, which judgment may be enforced against the garnishee, notwithstanding a bond to dissolve the garnishment may have been filed by the defendant.” Since it thus appears that under the provisions of the said act a judgment against the garnishee is a condition precedent to a judgment on the bond given to dissolve the garnishment (Linder v. Benson, 78 Ga. 116; Whitehead v. Patterson, 88 Ga. 748, 16 S. E. 66; Small v. Mendel, 96 Ga. 532, 23 S. E. 834), the garnishee is not relieved from all liability growing out of the service of the summons merely 'because of the filing of a dissolution bond, but it is his duty to make answer under the summons, in order that the court may adjudicate what funds “would have been subject to the garnishment if it had not been dissolved,” so that judgment may be entered accordingly on the dissolution bond. Garden v. Crutchfield, 112 Ga. 274 (37 S. E. 368); Henry v. Lennox-Haldeman Co., 116 Ga. 9 (2) (42 S. E. 383). Since the giving of the dissolution bond by the defendant did not operate to relieve the garnishee from its duty to answer, it is unnecessary to decide whether or not the bond to dissolve the garnishment has been properly approved.

“Courts of record maintain full control over orders and judgments during the term at which they are made, and, in the exercise of a sound discretion, may revise or vacate the same, and such discretion will not be controlled by a court of review, unless manifestly abused. Such discretion, however, is not a,n arbitrary, but a legal discretion, or, as defined by Bouvier, ‘that part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is not controlled by fixed rules of law.’ Therefore, where a question of law alone is properly presented to the court for decision, no discretion is involved, but the point must be decided according to the law governing it.” Van Dyke v. Van Dyke, 120 Ga. 984, 986 (48 S. E. 380). Thus, as was held in the case just cited, where the question raised by the motion to vacate affords no ground for the exercise of the court’s discretion, but presents only a pure question of law, his decision upon the motion *to vacate may be brought to this court for review; and since it appears that the original judgment discharging the garnishee from liability was erroneous as a matter of law, the refusal of the court to vacate it on a proper motion made during the term at which it was rendered must be reversed.

Judgment reversed.

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