text:
    16052.
    City of Reynolds v. Carter.
    Decided August 20, 1925.
    Complaint; from Taylor superior court—Judge Munro. December 5, 1923.
    Application for certiorari was made to the Supreme Court.

      Jere M. Moore, C. B. Marshall, for plaintiff.

      Homer Beeland, G. W. Foy, for defendants.
   Stephens, J.

1. It appearing from the record that the only issue to be determined by the jury was the amount to be paid by the City of Reynolds .to the owners of certain waterworks property which the city had condemned for public purposes, and that by agreement between the parties the value of the property was to be determined as of a certain designated date, the court in its charge did not err in restricting the inquiry of the jury to this issue, and in stating that the value of the property was to be determined as of the date agreed upon.

2. An owner of property taken for public purposes is entitled to receive as compensation therefor its fair market value, and in addition a sum representing any consequential damage which may arise therefrom to remaining property of the owner not taken. Central Georgia Power Co. v. Mays, 137 Ga. 120 (72 S. E. 900). A charge to this effect is not subject to the objection that it fails to contain a rule by which the jury may arrive at the value of the property condemned.

3. An instruction by the court that the jury should be guided by the same rule that the law provides for the guidance of assessors in condemnation proceedings, and that “the assessors, or a majority of them, shall assess the value of the property taken . . and . . the consequential damages to the property not taken,” is not subject to the exception that the jury were instructed that a majority of them had the power to make a verdict.

4. Certain grounds of the motion for a new trial which except to certain transactions that happened in the presence of the jury present no question for determination, since it does not appear that any ruling was made or invoked thereon.

5. Certain other grounds of the motion for a new trial, which were not approved by the court, present no question for determination.

6. Certain alleged newly discovered evidence can not be considered, since there are no supporting affidavits as to the credibility of the person offering the evidence, and since no facts appear showing that such evidence could not have been ascertained by the movant or its attorneys by the exercise of ordinary diligence.

7. No error of law appears, and the amount of the verdict found for the owners of the property, as representing compensation due for the taking of and the damage to their property, was authorized by the evidence.

Judgment affirmed.

Jenloins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    16105.
    Blumberg v. Grant.
    Decided August 20, 1925.
    Certiorari; from Fulton superior court—Judge Bell. October 14, 1924.

      Chambers & Dickey, for plaintiff in error.

      McElreath & Scott, John M. Graham, contra.
   Stephens, J.

1. Where an uneontradicted fact testified to by a witness whom it is sought to impeach by disproof of other facts testified to by him is corroborated by other testimony, which, although hearsay and inadmissible, has been admitted without objection, and it nowhere appears in the record that such uncontradicted testimony was made a matter of issue, either upon the ground of the incredibility of the witness or otherwise, and where the trial judge instructs the jury that they are the judges of the credibility of witnesses sought to be impeached, a statement by the judge to the effect that the testimony, of the witness, as respects the matter not contradicted, is undisputed and is established as true, can not be regarded as prejudicial, as amounting to an endorsement by the judge of the credibility of the witness as respects the matters in controversy testified to.

2. In charging on the law as respects impeachment of witnesses, it is proper to omit an instruction that the jury must disregard the entire testimony of an uncorroborated witness who has been successfully impeached. Whether the testimony of such a witness should be disregarded is, where the witness has not sworn wilfully and knowingly false, a matter for the jury.

3. Where, upon the allegations appearing in a petition for certiorari, no reversible error appears, the dismissal of a traverse which seeks to establish the truth of the allegations in the petition, filed by the plaintiff in certiorari to the answer of the trial judge, is harmless to the plaintiff in certiorari.

4. This being a suit in trover to recover the value of a diamond ring stolen from the plaintiff and alleged to have been bought by the defendant from the thief, and the evidence being contradictory as to whether the defendant had converted the ring, the verdict found for the plaintiff was authorized, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins, P. J., and Bell, J., conewr.


text:
    16113.
    Woodall v. Bankers Trust & Audit Co.
   Stephens, J.

1. The transferee of a promissory note before maturity is presumably a holder in due course. Civil Code (1910), § 4288.

2. A failure to charge upon the burden of proof, in the absence of a request, is not error. Central of Ga. Ry. Co. v. Manchester Mfg. Co., 6 Ga. App. 254 (64 S. E. 1128); Brooks v. Griffin, 10 Ga. App. 497 (5) (73 S. E. 752).

Decided August 20, 1925.

Complaint; from city court of Barnesville—Judge Bedding. November 13, 1924.

C. J. Lester, for plaintiff in error.

Claude Christopher, contra.

3. In a suit upon a promissory note, by the transferee thereof, where none of the defenses mentioned in section 4286 of the Civil Code (1910) as being good against a transferee in due course is relied upon, it is not error to fail to give in charge to the jury this code section or the substance thereof.

4. The verdict found for the plaintiff was authorized.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    16128.
    Franklin v. Tanner.
    Decided August 20, 1925.
    Trover; from city court of Sandersville—Judge Goodwin. November 17, 1924.
   Stephens, J.

1. Since a creditor who has retained title to personalty to secure the indebtedness has an interest in the property only to the extent of the unpaid debt, and can only to that extent recover in trover for the conversion of the property against one who is not a wrongdoer but who has acquired the property by purchase from the debtor (Atlantic Coast Line R. Co. v. Gordon Co., 10 Ga. App. 311, 73 S. E. 594; Farmers & Merchants Bank v. Hamilton, 30 Ga. App. 194 (4), 117 S. E. 287), and since a landlord’s interest in the title to crops grown by his cropper is only to the extent of the value of the landlord’s portion of the crops, as well as of any indebtedness for advances made to the cropper (Civil Code (1910) § 3705; Way v. Bailey, 18 Ga. App. 57, 88 S. E. 799), it follows that a landlord, who has not settled with his cropper but has received only a part of the crops to which he is entitled and whose interest in the remaining crops is in an amount less than their value, can, in a trover suit for their conversion against a third person, who has acquired them by purchase from the cropper, recover only to the extent of the amount of his claim against the cropper. The court did not err in so instructing the jury.

2. This ruling is not in conflict with the case of Kirkland v. Wallace, 29 Ga. App. 238 (114 S. E. 649). There it was held that a landlord can maintain trover against a third person for a conversion of the property by purchase from the cropper, notwithstanding the bona fides of the transaction; but no question as to the amount of the plaintiff’s recovery was presented.

3. Other than an exception to the charge of the court, no error is insisted upon. The overruling of the plaintiff’s motion for a new trial will therefore be affirmed.

Judgment affirmed.

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

Evans & Evans, for plaintiff.

E. W. Jordan, for defendant.


author: Jenkins, P. J.

text:
    15824.
    Aspironal Laboratories Incorporated v. Rosenblatt.
   Jenkins, P. J.

1. Strictly speaking, a unilateral contract is one in ■which the obligation incurred rests upon only one of the contracting parties, for the reason that the consideration of the other party has already been fully executed; this, as distinguished from a bilateral contract, in which are embraced reciprocal duties and obligations; but the term unilateral is frequently and commonly employed to express a lack of mutuality.

2. The obligation of every bilateral contract, in order to be enforceable, must have the element of mutuality; and it is lacking when only one of the contracting parties is bound to perform and the agreement could not be enforced as against the other.

3. Where the contract is such as under the statute of frauds must be in writing in order to be binding, and there is nothing to take it out of the provisions of that statute, the writing, in order to evidence mutuality and consequently to be binding, must be “signed by the party sought to be charged therewith, or by some person by him lawfully authorized” (Civil Code, 1910, § 3222), and must also be signed or otherwise accepted by the opposite party. Generally speaking, “the object of a signature is to show mutuality or assent, but these facts may be shown in other ways.” 13 C. J. 305, § 128. Thus, where the person sought to be charged has signed, and acceptance by the opposite party can be inferred by part performance of an entire contract or otherwise, the agreement is not necessarily rendered inoperative by the fact that both have not signed (Linton v. Williams, 25 Ga. 391; Groover v. Warfield, 50 Ga. 644; Fraser v. Jarrett, 153 Ga. 441, 110 S. E. 483; Perry v. Paschal, 103 Ga. 134 (1), 137, 29 S. E. 703; Mendel v. Converse, 30 Ga. App. 549, 552 (10), 118 S. E. 586), unless the instrument itself, as a condition to the validity of the agreement, that requires that both shall sign; in which event, in the absence of such mutual signatures, the contract as such can not be enforced, but the parties can only be held liable according to its terms, to the extent that it has been actually executed. Atlanta Buggy Co. v. Hess Spring & Axle Co., 124 Ga. 338 (52 S. E. 613, 4 L. R. A. (N. S.) 431).

4. The contract here sued on related to an entire shipment and had been more than two thirds performed by each of the parties thereto. Consequently there could be no question that the agreement signed by the defendant had been accepted by the plaintiff. Nor does it lack mutuality because of the provision therein that the seller shall not be bound to “tender deliveries.” This provision, when construed with its context, does not mean that the seller need not deliver the goods contracted to be sold, but that if the buyer shall fail to order out the goods during the intervals specified by the agreement, the seller shall not be required to make tender thereof. Nor is the contract wanting in mutuality for the other reasons urged. While a contract may be “highly protective of the seller without a corresponding protection to the purchaser, it is not lacking in mutuality, and therefore not void upon its face. Where the essentials of a contract are present and no rule of law appears to have been transgressed, the courts are powerless to interfere merely because in the respect indicated the agreement may be a harsh one.” Palmer-Murphey Co. v. Kimbrough-Veazey Co., 29 Ga. App. 721, 722 (116 S. E. 542). The judge of the superior court did not err in sustaining the certiorari.

Decided August 30, 1925.

Certiorari; from Fulton superior court—Judge E. D. Thomas. July 3, 1924. ■

The contract in question provided as follows:

“New York, June 23, 1920.

“Samson Rosenblatt, 89 Fulton St. Sold to Aspironal Laboratories, Atlanta, G'a.

“In duplicate.

“The following goods subject to terms and conditions as stated below:

“Article: Menthol.

“Quantity: Ten cases (60 lbs. net each case).

“Price and terms: $8.00 (eight dollars per lb.) per pound. “Duty paid. F. 0. b. New York. Terms net ten days. “Packing: Standard.

“Shipments: Three eases to be shipped Sept. 1920.

“3 cases shipped.

“Four cases to be shipped Oct. 1920.

“4 eases 10/27/20.

“Three cases to be shipped Nov. 1920.

“Remarks. Payable in New York in U. S. coin or its currency equivalent. Seller reserves the right at its option either to cancel this contract or suspend further deliveries under it, in the event buyer fails to pay for any one delivery when same become due. Any quantity for which seller has not received shipping instructions at the expiration of time or times stipulated may at its option be cancelled. Seller shall not be bound to tender deliveries under this contract. Deliveries may be suspended, depending on any contingencies beyond the control of the seller, such as strike, lockout, fire, floods, accidents, war or the like, internal disorders, interference by civil or military authorities, a short supply of fuel or raw material, or other causes preventing the manufacture or shipment of the article. Any deliveries so suspended may, at option of seller, be delivered at the same rate of delivery, commencing after the period assigned to this contract, but seller shall in no way be liable to buyer for any loss caused by such postponement of delivery. This contract is subject' to any change in or construction of the tariff, and of revenue laws, or changes in cost of raw materials due to war or the like.

Judgment affirmed.

Stephens and Bell, JJ., coneur.

“Accepted:

“Per H. M. Alford, Pres. & Treas.”

There was a general demurrer to the plaintiff’s petition, on the ground that the alleged cause of action was based upon a void contract, or a unilateral contract. This ground was elaborated, and it was contended that the contract was unilateral and void because it was not signed by and accepted by the defendant; because it provides that the seller shall not be bound to tender deliveries under it; because it provides that at the option of the seller shipments may be suspended on account of certain things, including interference of “civil” authority (the courts for instance), and that further deliveries may at the “option” of seller be continued at the same rate; that the contract is void because it provides that it is subject to any change in the price of raw material; and that it is void because it is too vague and indefinite for the court to determine the rights of the parties under it. The judge of the municipal court dismissed the petition on this demurrer, and the judgment was reversed by the superior court, on certiorari.

W. J. Laney, for plaintiff in error.

Carl Lancaster, Walter McDaniel, contra.


text:
    15862.
    Keen v. New Amsterdam Casualty Company et al.

   Jenkins, P. J.

The claimant workman was employed by a partnership at a garage as an acetylene welder and automobile mechanic, at a stated-salary per week and so much per hour for extra work in the automobile line outside of welding. While he was engaged in the work of his employment and was asking instructions from one of his employers with reference to a job in the shop, a customer talking with this employer, and, -so far as indicated, without altercation or provocation other than because of irritation at the refusal of the employer to do, without further charge, additional work on a car, under a bill previously paid by the customer, drew a pistol, and, after the claimant workman had cried out a warning to his employer of the impending danger, and after the employer had started to drop or fall out of the way, shot at the employer and wounded him on the side of the head, and immediately fired at and wounded the claimant, and then shot at the other employer in the garage. The industrial commissioner hearing the case, and the full industrial commission on review, found for the claimant. The commission found that the assailant had no possible grudge against the claimant, and simply shot him after he had wounded the employer because he was standing close to him and because the claimant had made an exclamation when the assailant was about to shoot' the employer. The superior court, on appeal by the insurance carrier, reversed this award and adjudged that the claimant “did not receive his injuries as a result of his employment,” and that they “did not grow out of said employment as a proximate or contributory cause.” Held:

1. The Georgia workmen’s compensation act, in common with similar provisions in other jurisdictions, as originally enacted, allowed compensation for injuries only in ease of “accident arising out of and in the course of the employment,” and excluded “injury caused by a wilful act of a third person directed against an employee for reasons personal to such employee or because of his employment.” Ga. L. 1920, sec. (d), pp. 169, 170; 28 R. C. L. 796.

(а) Under the facts and circumstances disclosed by the record, the commission would not have been authorized to find even that the assault was directed against the claimant for reasons personal to him.

(б) Although the amendatory act of 1922, striking the words “or because of his employment,” was enacted subsequent to the date of the injury, the purpose of this amendment was merely to clarify by legislation what had already been made plain by judicial construction. The fact that the injury is the result of the wilful or criminal assault of a third person upon an employee while engaged in the work of his employment does not necessarily prevent the injury from being accidental, within the meaning of the compensation act; nor was the commission compelled to find, because of the fact of such employment, that the assailant, with knowledge thereof, was actually moved to commit the assault “because of his employment.” Under the facts and circumstances disclosed by the record, they were fully authorized to find that the injury to the claimant was occasioned, not because of the mere fact that such relationship of employer and employee existed, but by reason of his presence when the assault upon his employer was made, and especially on account of his acts and conduct in protecting the life of his employer and the interest of his employment. Pinkerton Detective Agency v. Walker, 157 Ga. 548, 553-555 (122 S. E. 202, 35 A. L. R. 557).

2. Under the facts and circumstances disclosed by the record, the commission was further authorized, if not compelled, to find (as seems to be conceded) that the injury arose “in the course of” the claimant’s employment, since it occurred at a time and place when and where he was not only engaged in the work of his employment in a legal sense, but when and where he was actually and actively engaged in the performance of his ordinary duties. 28 R. C. L. 801, § 91; 4 R. C. L. Supp. 1856, § 91. They were likewise authorized to find that the injury arose “out of” the employment. Because of the claimant’s presence ■ as an employee at the time and place the assault upon the employer was perpetrated on account of the conduct of the business, and especially because the assault upon the claimant might have been- occasioned by his proper and active intervention to protect the interest of the employment against a trespass arising out of its ordinary conduct and committed in his presence, including the life of his employer with whom the claimant was then and there personally engaged in the conduct of his duties, the commission was authorized to find that the injury to the claimant was such an occurrence as might have been reasonably contemplated by the employer as a risk naturally incident to the nature of the employment, or at least was such an injury as, after the event, might be seen to have had its origin in a risk connected with the business of the employment, and to have arisen out of and flowed from this source as a natural consequence. 1 Honnold on Workmen’s Compensation, 408, 409; in re McNichol, 215 Mass. 497 (102 N. E. 697, 1916A L. R. A. 306, 307); 28 R. C. L. 797; Pinkerton Detective Agency v. Walker, supra; 30 Ga. App. 91, 95 (117 S. E. 281). The rule would be and has been held to be different, under a variety of circumstances, where the assault upon the claimant was not incident to but was altogether casual to the employment, and did not have its origin in and naturally flow from the conduct of the business, or where, although the assault did originate in the course of the business, it was directed against the employer or a coemployee, and the claimant was not himself subjected to the risk as a natural incident to his presence and employment. Ga. Casualty Co. v. Martin, 157 Ga. 909, 910 (122 S. E. 881); Mitchinson v. Day, I K. B. 603; Murphy v. Berwick, 43 Ir. Law Times, 126; L. R. A. 1916A, 308-310, case notes. In these cases the assault was perpetrated either by robbers, drunken or insane persons, or by persons engaged in rowdyism or “horse-play,” whose acts did not originate in and were in no wise connected with the actual conduct of the business in which the claimant was employed, or else the claimant, although he might have been otherwise and elsewhere engaged in the master’s business, was not actually present when the assault growing out of the conduct of the business was made upon his employer or coemployee, so as to be naturally subjected to the risk of the initial assault, and did not afterwards participate therein in the line of his own duty and obligation as an employee. An injury is “due to the employment not only when the risk incurred is directly involved in the employment itself, but when involved in the general scope of the employment, or in an act performed by the employee in the general line of his duty to his employer, as where he attempts to save the life of or rescue a coemployee who is placed in danger while engaged in his employment.” 1 Honnold on Workmen’s Compensation, pp. 415, 416. Thus, if the original assault growing out of the conduct of the business had been perpetrated upon the claimant, himself during the course of his employment, it might properly have appeared, after the event, to have had its origin in a risk connected with the employment, and to have flowed from that source as a natural consequence; and the same rule should apply where the claimant employee, while engaged in the performance of his duties, is actually and properly present when an assault growing out of the conduct of the business is made upon his employer, and the claimant, on account of his presence as such employee and because of his actual and proper participation in the event, is included in the assault. See also Yume v. Knickerbocker Portland Cement Co. (N. Y.), 169 App. Div. 905 (153 N. Y. Supp. 1151); Rudder v. Ocean Shore R. Co., 1 Cal. I. A. C. Dec. 209; Craycroft v. Craycroft-Herrold Brick Co., 2 Cal. I. A. C. Dec. 654; State ex rel. Anseth v. Dist. Court (Minn.), 158 N. E. 713; Trim Joint Dist. School v. Kelly, 7 B. W. C. C. 274, H. L.; 1 Hoñnold on Workmen’s Compensation, 437, 438, and cases cited there and on pages 435, 439; 28 R. C. L. 808-811 and citations; 4 R. C. L. Supp., citations, pp. 1856, 1860-1863; 1 Schneider on Workmen’s Compensation Daw, 710-733 and citations.

Decided August 21, 1925.

Appeal; from Bibb superior court—Judge Mathews. July 31, 1924.

Application for certiorari was denied by. the Supreme Court.

B. JD. Feagin, J. F. Urquhart, for plaintiff.

Brock, Sparks & Bussell, for defendants.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15941.
    Guerney Heater Manufacturing Company v. Woods.
   Jenkins, P. J.

1. In order for a contract to be effected by correspondence, there must be a mutual assent of the parties by an absolute offer and an unconditional acceptance thereof. Whether or not, where the acceptance of an offer has not been absolute but conditional only, a subsequent elimination of the condition would create a contract, where at the same time a new and independent condition is simultaneously engrafted, it is unnecessary in the instant case to decide, since the elimination of the original condition was here effected only by the interposition of the ancillary condition. Thus, where an offer for the purchase of a commodity is accepted, “providing credit arrangements are satisfactory,” and the vendor, after such conditional acceptance and prior to any shipment of the goods, approves the order, freed of the condition as to the approval of credit, save that it is required that the goods shall be ordered out “within 4 months from date,” no unconditional acceptance of the original offer is shown.

2. The suit in this case being based and dependent upon the validity of an alleged original contract of purchase and sale, stripped of any condition relative to the time in which the goods should be ordered out, and it appearing from the undisputed documentary evidence that the only acceptance of the offer was based upon the condition that credit arrangements would be satisfactory, and it further appearing that, prior to ' any shipment of the goods, the credit arrangements of the vendee were approved with the expressed condition attached to the acceptance that the goods must be ordered out within four months, the verdict in favor of the plaintiff (the purchaser) was contrary to law, as being without evidence to support it.

Decided August 21, 1925.

Attachment; from Glynn superior court—Judge Highsmith. August 16, 1924.

Woods filed a declaration in attachment against Guerney Heater Manufacturing Company, a nonresident, claiming damages on account of its alleged breach of a contract entered into by correspondence. On July 22, 1922, the company’s representative wrote to Woods as follows: “I take pleasure in quoting you as follows on the material for the above operation (Brunswick School, Brunswick, Ga.) for the net sum of $3919.44” (the boilers and other heating apparatus being listed and described). On August 21 Woods wrote to the representative: “We close for boilers and radiation as per your letter of July 22, 1922, high school and auditorium, this city, $3919.00. Shipping instructions later. Beply.” On August 26, no reply having been made, he telegraphed to the representative: “Either accept or cancel our offer before 6 o’clock p. m. this date.” On August 30 the company telegraphed to Woods: “Will accept order Brunswick School at price quoted providing credit arrangements are satisfactory.” On August 31 Woods wrote to the company: “Please enter our order for boilers and radiation for high school and auditorium, this city, as per, your quotation of July 22nd, 1922 [describing the apparatus]. Can make satisfactory credit arrangements. Will mail shipping instructions later.” On September 7 the company wrote to Woods an acknowledgment of the order: “Ship to: Advice. Yia B. & A. O. S. S. Co. & A. C. L. via B. in C/L. When: Advice. (Listing and describing the apparatus.) Tag: High School & Auditorium, Brunswick, Ga. Acknowledgment: All goods shipped released at buyer’s risk. Terms 30 days net. We take pleasure in entering your order as above. If not correct in every detail, please advise at once. Should you wish to correspond with us concerning this order, be sure to refer to our stock number as given above, which will be appreciated by us and enable us to serve you more promptly. . . The completion of the details and directions for shipping are to be given within four months from date. In the event of noncompliance with these conditions, we reserve the rights of cancellation.” On April 17, 1923, Woods wrote to the company: “You will please order out for us within thirty days 2 boilers—48—12—S—6500 sq. ft. rated capacity each. Bright idea. Also at the same time the radiators as listed on the attached sheets, and marked first floor and second floor. Please route via B-A-OSS Co.-ACL.” On June'6 the company wrote to Woods: “This order was accepted, of course, subject to our usual terms, i.e., receiving shipping instructions within .the usual four months from date of order: This four months expired some time ago, and while we do not wish to be unreasonable, believe we are justified in revising our quotation, particularly due to the advance in the cost of manufacturing since that time. Mr. Starbuck states he wrote you regarding this order, but up to date has received.no reply. We would like very much to ship you this material if we can get together- on a price which will'be satisfactory to us both. Our suggestion would be to invoice the material based on our October sheets, which are considerably lower than those now effective, and still would allow us a small margin on the sale. Will you' kindly advise us in regard to the above at your early convenience, as no doubt this material will be required shortly, if the job has been going along as fast as expected.” On June 12 Woods telegraphed to the company: “Kegret your delay in reply to our order of April seventeenth. Please rush order based on October sheets as per your letter of June 7th.” The final telegram sent by Woods to the company was as follows: “The agreement as varied by acceptance of terms named in your letter June 7th simply changed the price of material only to $4149.00 instead of sum named in original quotation, leaving you obliged to pay full freight charges, and I must insist on your doing so accordingly. Authorize deduction of full freight and demurrage charges.”

3. In view of these rulings, it is unnecessary to determine the merits of the special exceptions taken to the charge of the court, or whether, in the form in which the exceptions were made, they could -properly be considered.

Judgment reversed.

Stephens and Bell, JJ., concur.

From undisputed evidence it appears that after the foregoing correspondence but before the final telegram from Woods, the company shipped the goods on draft with bill of lading attached, amounting to $744.40 more than the original quoted price, and that, in order to get the material, Woods paid the draft, and attached the proceeds in the hands of the bank before they could be remitted to the company. The jury returned a verdict for the plaintiff for $744.40 and interest. The court overruled the defendant’s motion for new trial, and the movant excepted.

W. 0. Little, Henry 0. Farr, for plaintiff in error.

Krauss & Strong, contra.


text:
    16032.
    LATIMORE v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al.

    1. The presumption of negligence arising against a railway company under section 2780 of the Civil Code (1910), on account of a tort committed by its agent and servant, does not arise until it has been shown that the act complained of was perpetrated by the servant in the conduct of the business of his employment.
    2. In the absence of any such presumption, and there being no evidence going to show as a matter of fact that the servant was acting for and engaged in the conduct of the master’s business in committing the homicide, the court did not err in granting a nonsuit.
    Decided August 21, 1925.
    Actiou for damages; from Warren superior court—Judge Shurley. October 7, 1924.

      B. W. Ware, C. FI. Sutton, for plaintiff.

      Miles W. Lewis, FI. P. & J. Cecil Davis, L. D. McGregor, M. L. Felts, for defendants.
   Jenkins, P. J.

The decedent for the value of whose life this suit was instituted was found dead from a pistol wound, in the railway-yards of the defendant companies and by the side of then-tracks, where he had been killed during the night. It appears from the record that a guard employed by the defendant companies to protect their property from depredations during a strike surrendered himself to the authorities as the perpetrator of the homicide. The petition alleges that the deceased was killed by the guard in a fit of temper, because the deceased had refused to obey promptly his command to vacate the defendants’ premises. There was no evidence that the deceased was attempting any depredation on the defendants’ property at the time of the homicide. The evidence shows that he was not a railway employee, and it does not appear that he had any connection with the strike. There was evidence that pedestrians' were in the habit of frequenting the right of way where the homicide occurred. A wrench was found lying near one of the hands of the decedent, and in the other hand was a half-burned cigarette. There was no evidence in support of the allegations of the petition as to how the homicide occurred, the record showing nothing whatever in that respect. The trial judge granted a nonsuit.

Section 2780 of the Civil Code (1910) provides as follows: “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” Thus, an injury or a homicide inflicted by a railway employee, not only while on duty as such, ■ but committed in the actual conduct of the business of his employment, renders the company presumptively liable; and this is true even though the employee may have exceeded his express or implied authority in the manner, means, or method employed in the performance of the duties of his employment. This rule must, however, be construed together with the general law as embodied in section 4413 of the Civil Code, which provides that, in order for the master to be liable for the tort of his servant, the injury must have been committed by the master's “command or in the prosecution and within the scope of his business,” and must have been “within the scope of the agent's employment.” Before the presumption of negligence against the company can arise with reference to the act complained of, it must first be shown that the act was the act of the company. Under the general law the burden rests on a plaintiff to prove his case, but under section 2780, when it is shown that the injury complained of was occasioned by the running of the defendant's train, or was the act of the company done by its servant while acting in the performance of the duties of his employment, a presumption of negligence arises against the company. But while section 2780 raises the presumption of negligence against the company for its own -acts and conduct by its agents in the performance of the duties of their employment, it does not further change the general law of dispensing with proof on the part of the plaintiff, by raising a further and additional presumption that a tort committed by one who was an employee was done for and on behalf of the company while acting for it in the performance of the duties of the employment. There being no evidence whatever as to how or in what manner the homicide occurred,—none that it was perpetrated by the servant in furtherance of his.duties owed to the master, or was in any way connected with the performance of such duties,—the presumption of negligence which would arise upon such proof does not obtain; and.the judge did not err in granting a nonsuit. See Civil Code (1910), § 4413; Columbus & Rome Ry. Co. v. Christian, 97 Ga. 56, 57 (25 S. E. 41); Ga. R. Co. v. Wood, 94 Ga. 124, 126 (21 S. E. 288, 47 Am. St. R. 146); Gray v. Ga. So. & Fla. Ry. Co., 20 Ga. App. 201 (1) (92 S. E. 961).

Judgment affirmed.

Bell, J., concurs.. Stephens, J., dissents.


text:
    16035.
    Claxton Bank v. Smith.
   Jenkins, P. J.

1. A person ordinarily is presumed to know the legal effect of an instrument that he has signed. Accordingly, where the maker of a collateralized note is in possession of a copy thereof, or where it fails to appear that the holder of the instrument employed deceitful or fraudulent means to prevent the maker from inspecting the original, and where no confidential relation exists between the maker and the creditor, the mere assertion by the holder of such a note, which does not contain a waiver of the thirty-days notice to sell the collateral as provided by law, that he has the right to immediately sell the property pledged, must be treated as a mere legal opinion or conclusion, and not as constituting legal fraud. Hill v. Sullivan, 63 Ga. 127 (2), 139; Clarke v. Ingram, 107 Ga. 565, 571 (33 S. E. 802) ; Hart v. Waldo, 117 Ga. 590, 591 (43 S. E. 998); Tolbert v. Caledonian Ins. Co., 101 Ga. 741 (28 S. E. 991); Whitehurst v. Mason, 140 Ga. 148, 153 (78 S. E. 938); Floyd v. Taylor Cotton Co., 26 Ga. App. 96 (105 S. E. 646), 26 C. J. 1207, 1208, 1210.

2. The portion of the evidence which was undisputed demanded a finding that the title to the collateral property passed to the plaintiff bank in part payment of the defendant’s previous past-due indebtedness at the time the note sued on was given for the remainder of said indebtedness, at which time the evidences of such prior indebtedness were marked satisfied, canceled, and surrendered. Consequently the ■defendant was not concerned as to when the collateral was sold, and was not entitled to tlie benefit of any possible enhancement in value, of the .surrendered collateral.

Decided August 21, 1925.

Complaint; from city court of Eeidsville—Judge Cowart. September 22, 1924.

STATEMENT OE FACTS BY JENKINS, P. J.

The bank sued the maker of a promissory note for $850 and interest. The defendant, by pleas as amended, set up: that the bank, when the note was given, held, under two notes and written contracts for a total indebtedness of some $28,000 principal and additional interest, 200 bales of sea-island cotton as collateral security; that on a stated day the bank demanded payment, insisting that it had the legal right to sell the cotton on that day, when the market price was 68 cents a pound, and that it would sell the cotton at that price on that day; that the statements as to the necessity and right of selling the cotton at that time, and that it would then be sold, were fraudulent, in that, under the law as to giving thirty days notice of sale, the bank had no such right; that it in fact held the cotton several weeks, and then sold it for 75 cents a pound; that the $850 note sued on was given in settlement of the old collateral notes for the difference between the indebtedness and 68 cents a pound, the then market price; that the relationship of the parties was confidential; and that by reason of such fraudulent misrepresentations, and the failure of the plaintiff to sell the cotton at the agreed time and price, and its subsequent sale at 75 cents a pound, plaintiff is not liable on the $850 note, but is entitled to the difference in the market price when actually sold by the bank, after deducting the amount of the note sued on. The plaintiff demurred both generally and specially to 'these allegations, as insufficient to show fraud or any legal defense, and preserved its exceptions pendente lite to the judgment overruling its demurrers. The jury found in favor of the defendant’s counterclaim for $3,-582.86 principal and $1,140.30 interest, and the plaintiff bank excepts to the overruling of its motion for new trial, based on the general grounds, alleged errors in the charge, and the alleged disqualifying relationship of certain jurors to the defendant and his counsel. The evidence of the bank’s witnesses was to the effect that, on the date on which the $850 note was executed, it was under.stood and agreed that the cotton collateral was being turned over by the defendant to the bank as its absolute property, to sell and deal with as it chose, on the basis of the then market price of 68 cents a pound; that on the faith of this agreement, the bank marked paid and surrendered to the defendant all of its $28,000 of notes and evidences of indebtedness, charged them off on its ledger, and took the $850 note from the defendant without security; that it made no agreement or promise as to when it would sell the cotton; and that the proposition as to the settlement and taking over the cotton by the bank was first made by the defendant. There was no evidence tending to support the averments of fraud or confidential relationship, unless it be the testimony of the defendant and his father that the bank’s officers at the time in question stated that it was necessary to sell the cotton on the date of the settlement, and that they had a legal right to sell the same, and would sell the same on that date at the then market price of 68 cents a pound. The defendant himself testified that, in closing the transaction, the bank surrendered to him the $28,000 of notes, which he later burned. While he denied the plaintiff’s testimony that he had proposed to the bank the taking over of the cotton as. their absolute property, and that he had so expressly agreed, he nowhere testified that there was any express agreement or understanding that he should retain any title or claim to the cotton, or that he merely gave to the bank the right of selling the collateral at 'that time without the legal notice required by law under the contract; and his evidence failed to negative the bank’s testimony that the transaction was closed by the bank’s actual taking over of the cotton as its property on a basis of 68 cents a pound, and by its cancellation and surrender of all evidences of the prior indebtedness, charging the same off on its books, and entering the cotton in regular course on its books as an asset of the bank; and failed to negative the physical testimony that the prior indebtedness was thus in fact charged off by the cancellation and surrender to the defendant of his notes. It appears that the defendant must have been in possession of copies of the collateral notes, since in a previous injunction suit brought by the defendant against the plaintiff relating to these prior contracts, a copy was attached to his petition. Nor is there any evidence going to indicate that the defendant was prevented from examining the original notes.

Judgment reversed.

Stephens and Bell, JJ., concur.

B. M. Girardeau, W. T. Burlchalier, J. T. Grice, for plaintiff.

A. 8. Way, TS. 0. Collins, P. M. Anderson, for defendant.


text:
    16047.
    Stevens Hardware Company v. Bank of Byromville.
   Jenkins, P. J.

In the instant action of trover, brought by a third person as purchaser at a judicial sale under a mortgage-foreclosure proceeding, against the transferee of an alleged contract of conditional sale, covering one Burroughs Booking or Posting Machine, it appears that the defendant relied only upon the sufficiency of constructive notice afforded by the record of the original contract of alleged conditional sale. This contract for reservation of title is in the form of an order, and reads in part as follows: “Please enter our order for 646 Burroughs Machine, stand required No.--•, style six forty six, No.which you agree to deliver to my or our address, transportation charges prepaid, for which we agree to pay” a specified amount. In the evidence, it was undisputed that the machine in question was “style 646,” that “all the bookkeeping machines [of the original vendor] have style No. 646, and each has a separate and distinct serial number,” and that the machine sued for was subsequently selected by the manufacturing vendor and furnished to the mortgagor in accordance with the order above referred to. The jury found for the defendant, and the trial court overruled the plaintiff’s motion for new trial, based on the general grounds and on the alleged erroneous admission in evidence of the original contract retaining title, on the ground that “the description of the property was too vague, . . general, and indefinite, and therefore it was not admissible as against an innocent purchaser.” Held:

1. While, under the rule of caveat emptor, a purchaser at a judicial sale succeeds only to the interest, estate, and rights of the parties to the proceeds of the sale, yet where he has paid his money upon the faith of proceedings regular on their face, had in a court of competent jurisdiction, and without actual or constructive notice of any defects therein or outstanding equities, he occupies the position of a purchaser in good faith for a valuable consideration, and is protected as such to the extent that he will not be affected by latent equities, whether by lien, incumbrance, trust, fraud or any other claim. Thus, he is entitled to the same protection under State recording statutes that is afforded by them to a purchaser at a private sale with reference to equities and instruments affecting the title. Equitable Loan & Security Co. v. Lewman, 124 Ga. 190 (3), 196, 197; Scarborough v. Holder, 127 Ga. 256 (3) ; 16 R. C. L. 139.

2. It is well settled that the rule requiring that a mortgage or conditional bill of sale shall “specify” the property on which it is to take effect does not require that the description shall serve to identify it without the aid of parol evidence, where the instrument indicates within itself some method by which the aid of extrinsic evidence in its aid can be limited. Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 330) ; Beaty v. Sears, 132 Ga. 516 (64 S. E. 321) ; Hicks v. Walker Bros. Co., 31 Ga. App. 395 (120 S. E. 694) ; Reynolds v. Tifton Guano Co., 20 Ga. App. 49, 50, 51 (92 S. E. 389). However, the rule recognized in the oases cited would not have application in a case, such as this, where the recorded instrument relied upon as a conditional sale does not in any wise purport to designate or even to refer to any particular property “sold and delivered” (Civil Code, 1910, § 3318), but consists merely of an executory offer to purchase any machine of the character and style mentioned, which the manufacturer might thereafter select and furnish, upon his acceptance of the offer to buy. Whether, as between the original parties to the resulting purchase and sale, the vendee would be estopped from disputing the vendor’s title to the property subsequently furnished, need not be decided, since that principle is not here involved. Here, the rights of a third party, acquiring title in good faith from the vendee, are protected, since the record of the alleged conditional sale shows on its face that not only was no particular property described, but that at the time the instrument was signed no particular property was in the minds of the parties, and that consequently no attempt was or could have been made by the instrument to specify or even refer to any particular property. The fact that parol evidence can be offered in aid of the description for the purpose of explaining the instrument by showing what particular property the parties had in mind, and was referred to by the instrument, does not mean, where the instrument shows on its face that the parties did not have any particular property in mind, and consequently the instrument does not purport to describe, specify, or even refer to any, that parol evidence can be used -of and by itself to particularize such property as might after-wards have been selected and become the subject-matter of a sale.

Decided August 21, 1925.

Complaint in trover; from Dooly superior court—Judge Crum. October 28, 1924.

Jule W. Felton, for plaintiff.

Henderson & Davis, for defendant.

Judgment reversed.

Stephens and Bell, JJ., eoneu/r.


text:
    16051.
    Barnesville Bank v. Ingram.
   Jenkins, P. J.

1. While the act of August 21, 1922, provides that “all crops, matured or unmatured, shall be and the same are hereby declared to be personalty,” this statute in terms declares that “nothing in this act shall be construed to permit levies on unmatured crops, but such levies and sales are expressly forbidden except as is now provided by law.” 6a. L. 1922, pp. 114, 115. Thus, as restricted by the provisions of section 6030 of the Civil Code of 1910, “immature crops can not be levied on separately from the land on which they are growing, except where the debtor absconds or removes from the county or State.” Scott v. Russell, 72 Ga. 35; Bagley v. Columbus So. Ry. Co., 98 Ga. 626, 637 (25 S. E. 638, 34 L. R. A. 286, 58 Am. St. R. 325). But it has been long well settled that, “when such crops have matured and ceased to draw sustenance from the land, they become personalty,” for the purpose of levy and sale. Hamilton v. State, 94 Ga. 770, 772 (94 S. E. 770). As to crops, such as cotton, which do not mature on the stalk at one time, but whose maturity is extended throughout the latter portion of the growing season, and where, in order to preserve that which has first matured, it is necessary to harvest it prior to the maturity of those portions of the crop which mature later, the rational construction of the statute would be, not that a levy must needs be deferred until the last gathering or remnant is ready to be harvested, and the bulk of the crop has been allowed to deteriorate, be wasted, or misapplied, but that the crop is subject to levy, and to be taken charge of by the levying officer to be gathered, whenever it has reached that stage of maturity when it is ready for harvesting to commence. The instant levy recites that it was made on “13 acres of cotton, more or less, in field,” and “25 acres of corn, more or less, in field.” The fodder was not levied on. The undisputed evidence showed that “at the time the levy was made,” on August 27, the defendant “was pulling fodder, and that there was two or three hundred pounds of cotton open in the field, but none had been picked; that when the levy was made” the defendant “ceased to pull the fodder for a few days, . . and that the rest of the fodder burned up.” The court held the levy as to both cotton and corn premature and void. Under the rules stated above, while the levy upon the crop of cotton was valid, the levy upon the corn, which it is conceded was immature, was void.

Decided August 21, 1925.

Levy and claim; from city court of Bamesville—Judge Bedding. October 29, 1924.

Dobbs & Barrett, for plaintiff.

B. H. Manry, Willingham, & Willingham,, contra.

2. The evidence did not demand as a matter of law a finding that the relationship between the claimant of the property and the defendant in fi. fa. was one of landlord and tenant, but authorized, although it did not demand, a finding by the judge, trying the issues by agreement without a jury, that the relation was one of landlord and cropper. See Almond v. Scott, 80 Ga. 95 (4 S. E. 892, 12 Am. St. R. 241); Marshall v. Avera, 30 Ga. App. 79, 80 (116 S. E. 662); Souter v. Cravy, 29 Ga. App. 557 (116 S. E. 231).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16059.
    GRAVES et al. v. COLQUITT COUNTY.
    To remove a cause from a State court to the United States court, under section 29 of the Judicial Code of the United States, written notice of the petition and bond for removal must be given to the adverse party before the filing of the petition; and where this requirement is not complied with, the United States court will not take jurisdiction of the petition. Where timely objection because of such noncompliance was made in the State court, and the petitioner for removal conceded that no such notice had been given, that court did not err in denying the petition.
    The word “vicinage,” in section 678 of the Civil Code (1910), which provides for the summoning of a jury of freeholders “from the vicinage,” to try before a justice of the peace the issue as to damage to a landowner from the laying of a new road through his land, means the neighborhood, or surrounding or adjoining district; and its extent does not depend upon an arbitrary rule of distance or topography, but varies according to the sparseness or density of settlement in country ór city districts. It was not error for the presiding justice to overrule the landowners’ challenge to the array and objections to the jurors on the ground that they had not been summoned “from the vicinage,” because they lived within the city limits of Moultrie, about two miles from the road and land in question; it appearing from the record that the city limits were only about a mile and a half from the land, that some of the jurors summoned lived within and some without the city limits, and that some of them owned land within a short distance of the proposed road and some owned land adjacent to the land of the complaining owners, although the jurors lived an average distance of two miles from the land and others might have been drawn who lived as near or nearer than those served.
    It appearing from the petition for certiorari, filed by the landowners and complaining of an award of $600 in their favor, as being “much less than the amount claimed by” them, that the evidence “was sufficient to support a verdict in- the amount rendered,” though it appeared also that it would support a verdict for “any amount up to $7500,” the judge of the superior court did not err in overruling the certiorari.
    Decided August 21, 1925.
    Certiorari; from Colquitt superior court—Judge W. E. Thomas. October 10,1924.

      Humphreys & DeLoache, for plaintiffs in error.

      P. Q. Bryan, contra. ■
   Jenkins, P. J.

1. Section 29 of the Judicial Code of the United States provides that the party desiring to remove a suit of the nature described from a State court to the district court of the United States “may make and file a petition, duly verified, in such suit in such State court . . for the removal of such suit into the district court to be held in the district where such suit is pending, and shall make and file therewith a bond. . . It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same.” 5 Fed. Stat. Ann. (2d ed.), 335 (U. S. Comp. Stat., § 1011). This provision as to the giving of notice is mandatory, and where objection to a failure to give it has not been waived but has been duly made, the courts of the United States will not take jurisdiction. Goins v. So. Pac. Co., 198 Fed. 432; Wanner v. Bissinger, 210 Fed. 96; Arthur v. Maryland Casualty Co., 216 Fed. 386; Loland v. N. W. Stevedore Co., 209 Fed. 626. While it is a well-recognized rule that, upon compliance with this section, removal becomes automatically accomplished (Home Life Ins. Co. v. Dunn, 19 Wall. 214, 22 L. ed. 68; Nat. Steamship Co. v. Tugman, 106 U. S. 118, 27 L. ed. 87; Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. ed. 870; N. Y. Mut. Life Ins. Co. v. Langley, 145 Fed. 415; Dull v. Hildreth, 183 Mass. 440, 67 N. E. 356), that the State courts determine only questions of law as to whether a case has been made “which, upon its face, shows that the petitioner can remove the case as a matter of right” (Removal Cases, 100 U. S. 457, 25 L. ed. 593; Stone v. S. C., 117 U. S. 430, 432, 6 S. Ct. 799, 29 L. ed. 962, 963), and that issues of fact affecting removability are to be raised and decided in the Federal courts upon motion to remand (Burlington R. Co. v. Dunn, 122 U. S. 513, 30 L. ed. 1159; Chesapeake & O. R. Co. v. Cockrell, 232 U. S. 146, 34 S. Ct. 278, 58 L. ed. 544; Shane v. Butte Electric R. Co., 150 Fed. 801; Donovan v. Wells, 169 Fed. 363, 94 C. C. A. 609, 22 L. R. A. (N. S.) 1250), it is also the rule-that, “since the right to remove is statutory, in order to effect a transfer of jurisdiction, all the requirements of the statute must be followed.” Babbitt v. Clark, 103 U. S. 606, 610 (26 L. ed. 507); U. S. v. Sessions, 205 Fed. 502, 504. Thus, where the party contesting removal desires to raise an issue of fact that he has not been served with the required written notice, it is the usual practice to do so in the Federal court upon a motion to remand after the removal; but where, as here, such a question has been raised in the State court and there is no issue of fact, but it is conceded by the petitioner for removal that notice was not given, the State court is not precluded from continuing to hold jurisdiction of the cause. See Kansas City Suburban Belt R. Co. v. Herman, 187 U. S. 63 (47 L. ed. 76); Mo. Pac. R. Co. v. Fitzgerald, 160 U. S. 556 (40 L. ed. 536); Kansas City R. Co. v. Daughtry, 138 U. S. 298 (11 S. Ct. 306, 34 L. ed. 963); Telluride Power Co. v. Rio Grande R. Co., 187 U. S. 569 (23 S. Ct. 178, 47 L. ed. 307). Objection being timely made, the court did' not err in denying the petition for removal, even though the objection was oral and not in writing. It is therefore unnecessary to determine whether or not the proceedings here, under sections 678 et seq. of the Civil Code (1910), for the assessment of damages before a justice of the peace and a jury of the vicinage, on account of the proposed laying out by the county of a new road through land of the petitioners, was a removable suit within the meaning of the Federal statutes. See, in this connection, City of Toccoa v. Marchbanks, 261 Fed. 684; Miss. & Rum River Boom Co. v. Patterson, 98 U. S. 403 (25 L. ed. 206); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239 (25 S. Ct. 251, 49 L. ed. 462).

2. In proceedings under section 678 of the Civil Code (1910), for the assessment of damage to a landowner on account of the proposed laying out of a new road by a county,'the statute requires that the sheriff shall summon, to try such question before a presiding justice of the peace, a jury of freeholders “from the vicinage.” The term “vicinage” means neighborhood, or surrounding or adjoining district; which depends upon no arbitrary rule of distance or topography, and varies in measure according to the sparseness or density of settlement in country or city districts. 3 Bouvier’s Law Diet. (3d ed.) 3401, 2331. The presiding justice of the peace did not err in overruling the landowners’ challenge to the array and objections to the jurors on the ground that they had not been summoned “from the vicinage” because the jurors lived within the city limits of Moultrie, Georgia, about two miles from the land and road in question; it appearing from the record that the city limits were only about a mile and a half from the lands, that some of the jurors summoned lived within and some without the city limits, and that, while they lived an average distance of two miles from the land, and other qualified jurors might have been drawn “who lived as near or nearer to said lands than those served,” yet no other attack upon their qualification was made, and several of the jurors actually “owned land within a, short distance of said proposed new.road, and . . some owned land adjacent to. tlie lands” of the complaining owners.

3. It appearing from the petition for certiorari itself, filed by the landowners and complaining of an award of $600 in their favor, that the evidence was “sufficient to support a verdict in the amount rendered, or in any amount up to $7500,” the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16112.
    Edmondson v. Boyd Lumber Company.
   Jenkins, P. J.

An owner of land sold the timber thereon under a contract containing the following provisions: “That in consideration of the total sum of $500, of which $250 has been paid . . and the balance to be paid when [the grantee], his heirs or assigns, first begin to cut the timber hereinafter described,” the grantor has “granted, bargained, sold, and conveyed . . all the timber on the following described tract of land, with the right to. cut and remove the same, said land being located” as described. “It is further agreed and understood that [the grantee], his heirs or assigns, shall have seven years from this date within which to cut and remove said timber above mentioned and described, but in the event the party of the second part fails to remove said timber within the time stipulated, then and in that event it is further agreed and understood that [the grantee] shall have such further and additional time as he desires within which to’ cut and remove said timber, from said land, and [the grantee] agrees to pay [the grantor], his heirs or assigns, ten cents per acre for each additional year or fractional part of a year required by him within which to cut and remove said timber.” Two years and ten months after the expiration of the seven-year period the transferee of the purchaser, without having paid or offered to pay the ten cents per acre for each additional year or fraction thereof, and, so far as the record indicates, without having otherwise expressly or impliedly manifested any intention of extending the seven-year period provided by the instrument, entered upon the premises and began to cut and remove the timber therefrom. Thereupon the successor in title to the land brought suit for damages, based upon two' counts, the’ first of which treated the provision as to additional time beyond the seven-year period as an option, which had expired by the failure of the defendant to extend the time by paying the required “ten cents per acre for each additional year or fractional part of a year,” and the second of which was based on the theory that the purchaser, under the instrument, did not take the timber in fee simple, but was entitled.to only a reasonable time beyond the seven-year period within which to cut and remove the same, and that under the facts alleged such time had expired. The trial court sustained the general and special demurrers to both the counts, attacking each as setting forth no cause of action, and particular paragraphs as being mere conclusions and setting forth no sufficient facts to show that the lease had expired, or that any action by the defendant was required to effect its extension. Held:

Decided August 21, 1925.

Action for damages; from city court of Cairo—Judge Bigsby. November 28, 1924.

M. L. Ledford, B. K. Wilcox, for plaintiff.

8. P. Cain, for defendant.

1. The.effect of the instrument quoted was to convey to the grantee the timber described, with the right to cut and remove the same within seven years from the date of the conveyance, and to give to the grantee an option for a yearly extension of such time, in consideration of the additional payment of ten cents per acre for each additional year or fractional part of a year as might be required by him within which to cut and remove the timber. Taylor v. West, 142 Ga. 193 (82 S. E. 518); Shaw v. Bray, 147 Ga. 567 (94 S. E. 1008) ; Starling v. Shaw, 150 Ga. 700 (105 S. E. 299). The seven-year period having expired, after which the title of the grantee would become divested unless he should elect to exercise his option to renew or extend the same from year to year for such period as he might “desire” and as might be “required” for the removal of the timber, and the grantee having neither paid nor tendered the agreed consideration, nor done any other act manifesting his election to exercise such option, until more than a year after the expiration of the seven-year period, the first count set forth a good cause of action, and it was error to dismiss the same on demurrer.

2. Under the preceding ruling, to the effect that the portion of the instrument relating to the extension of time in which the timber might be removed did not constitute a stipulation of sale such as the plaintiff might have enforced, but merely granted an additional option founded on a separate consideration, of which the defendant was privileged to avail himself from year to year so long as he might “desire” and as might be “required” in order to remove the timber, the judge did not err in sustaining the demurrer to the second count of the petition; and it is unnecessary to deal with the question as to whether the principle of a reasonable time would be involved were this portion of the agreement to be treated other than as an option. See, in this connection, McRae v. Stillwell, 111 Ga. 65, 69, 71 (36 S. E. 758; 55 L. R. A. 503).

Judgment affirmed in part and reversed in part.

Stephens and Bell, JJ., concur.


text:
    16132.
    Hutcheson v. Browning.
   Jenkins, P. J.

1. In defenses to actions in tort; “what does not amount to justification may be pleaded in extenuation and mitigation pf damages.” Civil Code (1910), § 4489. When the defendant has introduced testimony tending to sustain a plea of justification, “though it fails to make it out, the jury may take such testimony into consideration in mitigation of damages.” Henderson v. Fox, 80 Ga. 479 (2) (6 S. E. 164); Ransone v. Christian, 49 Ga. 491; Ivesler v. Coe, 33 Ga. App. 620 (127 S. E. 790, 792, 793); 5 Corpus Juris, 674 (§ 112).

2. Notwithstanding the apparent dictum in Wall v. State, 69 Ga. 766 (2), that the doctrine of reasonable fears “does not seem to apply to assault and battery,” it is the general rule, recognized in this State, that for the purpose of mitigating damages, as well as for justification, in a civil action, the jury are not limited merely to “opprobrious words, or abusive language,” used by the person assaulted (see Penal Code, § 103; Thompson v. Shelverton, 131 Ga. 714, 63 S. E. 220; Berkner v. Dannenberg, 116 Ga. 954, 963, 43 S. E. 463, 60 L. R. A. 559), but may consider the actions and conduct of the plaintiff at the time of the assault, with other facts, in determining if force, and what degree of force, on the part of the defendant was justified, and if not justified,, what, if any, effect should be given to such facts as in mitigation. See Dannenberg v. Berkner, 118 Ga. 885 (2, 3), 889, 890 (45 S. E. 682) ; 5 Corpus Juris, 677, 678 (§ 118), 674, note (a).

3. It is the duty of the trial court to charge upon all the vital and substantial issues and contentions raised by the pleadings and evidence; and it is error to omit to charge upon a main ground of defense, even without a request. City Electric Ry. Co. v. Shropshire, 101 Ga. 33 (1, 2), 37, 38 (28 S. E. 508) ; Cen. R. Co. v. Harris, 76 Ga. 501; Atlanta Ry. Co. v. Gaston, 118 Ga. 419 (45 S. E. 508).

4. Where the judge, in his charge to the jury, has correctly stated at length the contentions of the parties, a further instruction that “these pleadings will go out with you, and it will be your further privilege and duty to read them over, and ascertain just what they contain,” and that “if there are issues that I have not referred to, you ought to learn what these issues are from these pleadings when you go out,” will not furnish ground for a reversal of the judgment. Woodward v. Fuller, 145 Ga. 252 (1) (88 S. E. 974). It is also the general rule, that where the court has “instructed the jury that they would find the contentions of the parties set out in the pleadings,” such a “reference to the pleadings as containing such contentions will suffice, unless the special facts of the ease may require a formal statement of the actual issues in order to prevent possible misapprehension.” Jones v. McElroy, 134 Ga. 859 (3) (68 S. E. 857, 137 Am. St. R. 276); Cen. of Ga. Ry. Co. v. McKinney, 118 Ga. 535, 538 (45 S. E. 430) ; Port Wentworth Terminal Corp. v. Leavitt, 28 Ga. App. 82, 84 (110 S. E. 876). But where, as here, in an action for damages for an assault and battery on account of the defendant having struck the plaintiff with his hand, the defendant has pleaded as justification not only that the plaintiff at the time used opprobrious words and abusive language, but was standing “in an angry and threatening attitude in the immediate vicinity of this defendant, with a walking stick in his hand,” .that, “provoked and justified by such opprobrious words and abusive language, and justified by the threatening attitude of the plaintiff,” the defendant struck with his open hand, and that the defendant was justified “by reason of plaintiff’s conduct, and by the opprobrious words and abusive language used,” and where there was evidence tending to support both of these defenses, and to show that the plaintiff had drawn his stick upward with his hands, it was the duty of the court, in referring to such defenses and contentions, to avoid leaving upon the jury the impression that the defendant relied solely upon the defense of opprobrious words and abusive language as justification or in mitigation of damages.

(а) In referring to the contentions made in the pleadings, the court charged that the defendant contended that he was justified in the assault, “on account of certain opprobrious words or abusive language used by the plaintiff,” and, two sentences later, charged that they could look to the petition and answer “for a further statement of the claims in the petition and answer” and “a fuller statement of the ease than is given you by the court.” In charging later on the question of mitigation of damages, however, the court instructed the jury, “If you find that the defendant was not justified under the rule of law which I have given you in charge, you can also consider the opprobrious words or abusive language, if any were used, and, as I stated, you are the judges of what the facts are; you may consider any opprobrious words or abusive language which you may find to have been used, in mitigation of the plaintiff’s damages, if you find that he is entitled to damages,” and, after a further sentence generally defining the meaning of “mitigation,” charged, “You can consider all the facts and circumstances in the case,— any opprobrious words or abusive language, if any were used,—you would Consider them in relation to whether or not the defendant was justified; if you find that he was not, then you may consider the same, if you find that any were used in mitigation of any damages that you might assess.” Exception is taken to the omission of the court to refer to the defendant’s contentions that the plaintiff’s conduct, threatening manner, and raising of his stick, amounted to a justification of what the plaintiff did, and might be considered upon the question of mitigation. Eeld: Whether or not the first excerpt, in which the court, after referring solely to “opprobrious words” and “abusive language” as the defense made, told the jury that they might further look to the pleadings, could be taken, in and of itself, as prejudicially restricting the defenses made to the action, the second excerpt must have left upon the jury such an impression. Even though they were told that they might “consider all the facts and circumstances in the case,” this language was, in the same connection, limited and qualified by the words, “any opprobrious words or abusive language.”

(б) The impression left upon the jury on the issue of mitigation was likewise left by the instructions given on the question of justification, since the court in that connection limited the issue solely to “opprobrious words o.r abusive language,” without referring to the other defense either particularly or in general terms.

Decided August 21, 1925.

Action for damages; from city court of Polk county—Judge Tison. November 3, 1924.

E..S. Ault, for plaintiff in error.

John K. Davis, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    14872.
    Pike v. American Alliance Insurance Co.
    Decided September 1, 1925.
    Complaint; from city court of Atlanta—Judge Beid.- May 26, 1923.

      Etheridge, Sams & Etheridge, for plaintiff in error.

      Smith, Hammond & Smith, contra.
   Bell, J.

In this ease certain questions were certified to the Supreme Court, and answers thereto were duly received. 158 Ga. 686 (124 S. E. 161). Thereafter this court found that it needed instructions on certain additional questions involved, and was constrained to certify the ease again. 160 Ga. 755 (129 S. E. 53). The suit was brought by the insurance company upon a promissory note, and, after a verdict in favor of the plaintiff, the defendant made a motion for new trial, which was overruled, and he excepted. The facts touching the rights of the parties are sufficiently stated in-the questions certified. Under the rulings made by the Supreme Court in answer thereto, the verdict for the plaintiff was unauthorized, and the court erred in refusing the defendant’s motion for a new trial.

Judgment reversed.

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


text:
    15840.
    Macon Auto Company v. Domingos.
   Stephens, J.

1. A plea in the nature of a counterclaim, which alleges that the defendant, prior to a given date, had been employed by the plaintiff at a salary of fifty dollars a week, and that the plaintiff, through its authorized agent, on the date alleged, stated to the defendant that the plaintiff “could only pay him the sum of forty dollars per week for his services, but that the difference between the sum he was then getting, to wit, fifty dollars, and the sum which he would pay him, to wit, forty dollars per week, would be paid, that the reduction was only a temporary proposition until the company could get the money to pay full salaries,” that the plaintiff, through its autliorized agent, “has, at divers times since defendant’s salary was reduced as aforesaid, stated that the sums due on back salary would be caught up and paid, and that defendant did not, at the time plaintiff failed and refused to. pay him his salary as aforesaid, accede to the reduction of his salary or make any new contract and agreement to work for plaintiff other than for the sum of fifty dollars per week as aforesaid,” does not allege a contract by which the plaintiff is to pay the defendant fifty dollars a week, where ten dollars of such sum is held back weekly, to be paid to the defendant upon the happening of the contingency mentioned, but alleges a contract by the terms of which the defendant is to work for only forty dollars a week, with an additional promise upon the part of the plaintiff to pay the defendant an additional sum of ten dollars a week upon the happening of the contingency mentioned. Assuming that the allegations of the plea are susceptible of the former construction,- they are equally susceptible of the latter construction. Construing the plea, as must be done, most strongly against the pleader, it must be given the latter construction. Construing the plea most strongly against the pleader, the allegation therein that the defendant did not “make any new contract and agreement to work for plaintiff other than for the sum of fifty dollars per week as aforesaid” must be construed as an allegation that the contract was “as aforesaid,” to the effect that the defendant was employed to work for the plaintiff for the sum of forty dollars per week, with an additional promise upon the part of the plaintiff to pay the defendant an additional sum of ten dollars a week upon the happening of the contingency mentioned. This construction of the defendant’s plea is in accordance with the construction which the defendant himself places thereon, as is evidenced by other allegations in the plea, wherein the defendant alleges the happening of the contingency mentioned as a condition to the plaintiff’s obligation to pay the additional ten dollars a week.

2. Assuming (but not deciding) that the alleged contract itself is not void for uncertainty and indefiniteness, the contingency upon which depends the defendant’s right to recover the additional ten dollars per week being the ability of the plaintiff “to get the money to pay full salaries,” an allegation that thereafter, during a certain period, “there were net earnings made by the plaintiff in conducting its business aggregating three thousand dollars or other large sums,” is insufficient to show the plaintiff’s ability “to pay full salaries,” in that it does not appear therefrom that the plaintiff’s business was in such a condition, notwithstanding such net earnings, that it could pay full salaries.

3. This being a suit upon an account in the municipal court, where the defendant, in his plea, denies the correctness of the account sued upon, and in addition thereto files a plea in the nature of a counterclaim, the tri.al judge properly struck the defendant’s plea of counterclaim, upon demurrer thereto filed by the plaintiff.

4. It not appearing from the record what evidence, if any, was introduced in the trial court upon the issue raised by the defendant’s general denial of the allegations of the plaintiff’s petition after the defendant’s plea of counterclaim had been stricken, and the only alleged error insisted upon by the defendant in his petition for certiorari being that the judge of the municipal court erred in striking his plea of counterclaim, this court will conclude that the verdict and judgment rendered for the plaintiff in the municipal court in the amount sued for was, as a matter of law, demanded. Since the judge of the municipal court properly struck the defendant’s plea of counterclaim, the judge of the superior court erred in sustaining the certiorari.

Decided September 1, 1925.

Certiorari; from Bibb superior court—Judge Matthews. June 27, 1924.

Jones, Parle & Johnston, for plaintiff.

Walter DeFore, James G. Fstes, for defendant.

Judgment reversed.

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


text:
    15844.
    Southland Investment Co. v. City of Moultrie.
    Decided September 1, 1925.
    Affidavit of illegality of execution; from Colquitt superior court —Judge W. E. Thomas. July 21, 1924.

      '.Erie B. Askew, for plaintiff in error.

      P, Q. Bryan, Charters & Wheeler, contra.
   Stephens, J.

1. The following description of property, contained in an execution issued by a city for a paving assessment, which description is also contained in the levy, is sufficiently definite to identify the property: “One lot in block # 188 city lot No. - in the said city of Moultrie, said State and county, commencing at a point 363.7 feet from the S. E. corner of Eifth Ave. and Main Street N. and measuring and abutting 340.3 feet on the east side of Main Street N. between A. B. & A. Ry. street-and city limits, and running back its full width to A. B. & A. Ry. feet in a easterly direction.” Norman v. City of Moultrie, 157 Ga. 388 (121 S. E. 391).

2. A decrease in the market value of property abutting upon a street, by reason of the egress and ingress by vehicles to and from the street being made difficult as a result of a park fifteen and a half feet wide having been constructed and left in the middle of the street by the city simultaneously with the laying of the pavement, is not a damage to the property resulting from the laying of the pavement, but is a damage resulting solely from the construction and maintenance of the park in the middle of the street. Such damage therefore is not defensive matter to an execution issued against the property for the cost of the pavement. Draper v. City of Atlanta, 126 Ga. 649 (55 S. E. 929).

3. The affidavit of illegality filed to the execution issued by the city for the cost of the pavement set up no defense, and was properly stricken.

Judgment affirmed.

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


text:
    15919, 15920.
    Georgia Lumber Company et al. v. Thompson (two cases).
    Decided September 1, 1925.
    Lien foreclosures; from Glascock superior court—Judge Shurley. August 20, 1924.

      Richard Bowden, B. F. Walker, for plaintiff in error.

      E. P. & J. Cecil Davis, contra.
   Stephens, J.

1. Only defensive matter to a foreclosure of a lien on personalty being required in a counter-affidavit filed by the defendant under section 3366 (6) of the Civil Code (1910), such an affidavit, when made by the defendant’s agent, as provided in section 3607 of the Civil Code (1910), need not contain a sworn averment that the affiant is agent for the defendant. It is sufficient if such affidavit is in fact made by the defendant’s duly authorized agent, and where the affidavit purports on its face to be executed by such agent, the agency is presumed and the affidavit is prima facie valid. See, in this connection, New York Life Ins. Co. v. Rhodes, 4 Ga. App. 25 (60 S. E. 828); Georgia-Alabama Business College v. Constitution Publishing Co., 8 Ga. App. 348 (69 S. E. 34).

2. Where the defendant in such a -proceeding is the Georgia Lumber Company, a counter-affidavit filed by the defendant which recites, “Personally appeared . . Georgia Lumber Company, per Paul A. Bowden, its president, who on oath says,” etc., and which sets out defensive matter, and which is signed “Georgia Lumber Company, per Paul A. Bowden, Pres.,” and which contains a jurat that it is “sworn to and subscribed before me” upon a particular date, signed by an officer authorized to administer oaths, is the personal affidavit of Paul A. Bowden, who is presumably the president of the Georgia Lumber Company, presumably a corporation, and who therefore is authorized to make the affidavit. Civil Code (1910), § 5638; Bennett & Co. v. Gray, 82 Ga. 592 (9 S. E. 469) ; Silver Peak Mines v. Hanchett, 80 Fed. 990; American Agricultural Chemical Co. v. Bank of Madison, 32 Ga. App. 473 (123 S. E. 921) ; Greene v. Lombard, 33 Ga. App. 518 (126 S. E. 890).

3. The court erred in striking the defendant’s counter-affidavit in each ease.

Judgment reversed.

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


text:
    14521.
    Wallace, clerk, v. State of Georgia.
   Stephens, J.

1. A judge of the superior court may, by amendment, add to his official signature to any document letters descriptive of his office. Where a rule nisi has been issued, signed by Z. A. Littlejohn, “J. C. C. O.,” and made returnable to the superior court of Lee county, Georgia, which is in the southwestern circuit, he may thereafter amend the same by striking the letters “J. C. C. O.” and inserting in lieu thereof the words “judge of the superior court of southwestern circuit.”

2. The clerk of the superior court can not, by reason of any misconduct on his part in the discharge of the duties devolving on him as ex-officio clerk of a city court, be removed from office by the judge of the superior court, as is provided in section 4897 of the Civil Code (1910).

3. A petition to the superior court to remove the clerk of that court, which alleges as grounds for removal his failure to make a report of a certain sum of money, to wit, $1762.34, collected by him, and to pay it over to the treasurer of the county, as required by an act of the legislature approved August 18, 1917 (Ga. L. 1917, p. 295), and which alleges as an additional ground for removal that the clerk, in certain instances, failed to keep in proper condition the records of both the superior court and the city court, of which he was ex-officio clerk, although it may appear from the petition and exhibits that a certain part of the money collected was collected by him in his capacity of clerk of the city court, and although it may appear that certain of the records alleged to have been improperly kept were improperly kept by him as clerk of the city court, sets out sufficient grounds for his removal as clerk of the superior court.

4. Where the petition alleges that the acts of misconduct which are grounds for removal are illustrated in detail by a certain auditor’s report on file in the office of the clerk of the superior court (who is the defendant), and which is referred to in the petition as an exhibit, the charges are alleged with a degree of particularity sufficient to put the defendant on notice.

5. In such a suit, where the minute books, bills of indictment, and orders of disposition of cases as shown by the report of the auditor have been admitted in evidence, it is not error to admit the bench or issue dockets upon the ground that the defendant was charged with irregularity as respects their keeper.

6. In such a suit it is error to admit, over an objection that it is irrelevant, evidence as to the conduct of the defendant as respects the office of clerk of the city court.

7. Whether or not a suit to remove the clerk of the superior court upon the ground of misconduct in office is a criminal proceeding, and the defendant therein may be allowed to make a statement not under oath, a refusal by the court to allow him to make a statement is harmless to him when it appears that he voluntarily took the witness stand and gave testimony under oath.

8. Where, in such a suit to remove the clerk of the superior court, the petition contains five counts alleging grounds for removal, two of which counts contain charges of misconduct upon the part of the defendant as clerk of both the superior and the city courts, as stated in paragraph 3 above, and the other three of which counts contain charges of misconduct upon the part of the defendant solely in his capacity as clerk of the city court, a conviction under each and all of the counts is nevertheless illegal and unauthorized, except in so far as it may appear from the evidence that the defendant was necessarily found guilty of misconduct as clerk of the superior court.

9. This being a suit in the superior court to remove the clerk of that court upon the ground of alleged misconduct, both as clerk of the superior court and as ex-officio clerk of the city court, and it appearing from uncontradicted evidence that the defendant, as charged in count 1 of the petition, failed to account, as required by the act approved August 18, 1917, for a definite sum of money which had come into his possession as clerk of the superior court, to wit, $937.08, and also that the defendant, as clerk of the superior court, failed, as charged in count 2 of the petition, to transcribe on the minutes of the superior court eases finally disposed of on the dockets of that court, and committed errors in transcribing numbers and dates, the convictions under counts 1 and 2, in so far as they relate to his conduct as clerk of the superior court, were legally authorized.

Decided September 2, 1925.

Removal from office; from Lee superior court—Judge Custer presiding. December 9, 1922.

Wallis & Fort, for plaintiff in error.

Jitle Felton, solicitor-general, contra.

10. Count 4 is without evidence to support it.

11. The court, therefore, properly overruled the defendant’s motion for a new trial as respects counts 1 and 2, and erred in overruling the motion for a new trial as respects counts 3, 4 and 5.

12. Since the judgment removing the defendant from office was predicated upon the defendant’s having been convicted upon the five counts in the petition, and since the convictions under three of the counts are set aside, the judgment of removal is hereby set aside and the ease remanded to the superior court of Lee county, to be there disposed of according to law.

13. See the answers of the Supreme Court to certified questions in this case, 160 Ga. 570 (128 S. E. 759).

Judgment affirmed im, part and reversed in part.

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


text:
    15825, 15852.
    Whitley v. Jackson; and vice versa.

   Stephens, J.

1. Where a motion is made by counsel before- the chief judge of the municipal court of Atlanta to “check” or postpone for the day all cases in which counsel may be engaged, without naming or specifying any particular cases, upon the ground that counsel is actively engaged in a case then on trial in another court, it is not error for the judge to retain on the calendar and set for trial on that day a particular ease in which counsel may in fact be engaged, where this fact is not known to the judge and nowhere appears of record.

2. Since a discharge in bankruptcy must be specially pleaded in order to avail the bankrupt when sued upon an indebtedness dischargeable in bankruptcy, a bankrupt who is sued as principal upon a bond to dissolve a garnishment, and who fails in such suit to plead and prove his discharge in bankruptcy against the judgment upon which the garnishment was issued, can not except.to the verdict and judgment against him on the bond upon the ground that the judgment upon which the garnishment had issued was dischargeable in bankruptcy.

Decided September 2, 1925.

Certiorari; from Fulton superior court—Judge E. D. Thomas. June 12, 1924.

Harwell, Fairman & Barreit, Morris Maclcs, for plaintiff in error.

R. R. Jachson, T. L. Lanford, contra.

3. Where, in a petition for certiorari brought by a defendant against whom a judgment has been rendered in the municipal court of Atlanta upon a bond to dissolve a garnishment, the only assignments of enrolare, under the rulings above, without merit, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed on the main bill; cross-bill dismissed.

Jenláns, P. J., and Bell, J., concwr.


text:
    16026.
    Luke et al. v. Luke.
   Stephens, J.

1. The return to and filing in the court in which the main suit was instituted of the certified affidavit and bond for garnishment by the officer serving it, together with his return of service upon the garnishee thereon, as required under section 5278 of the Civil Code (1910), is sufficient to show the pendency of the garnishment proceedings in the county of the garnishee’s residence. See, in this connection, Atlanta & West Point R. Co. v. Farmers’ Exchange, 6 Ga. App. 405 (65 S. E. 165) ; Carr & Co. v. Roney, 118 Ga. 634 (45 S. E. 464).

2. An entry upon a bond given in a judicial proceeding, that it is “attested and approved” by the officer whose duty it is to approve the bond, is sufficient evidence of the bond’s approval by such officer.

3. A deputy sheriff of the municipal court of Macon has power to serve a summons of garnishment. Ga. L. 1913, p. 252.

4. This being a suit against the principal and surety upon a bond to dissolve a garnishment which had been served upon a garnishee in another County, as provided in section 5278 of the Civil Code (1910), .and it appearing without contradiction from the evidence that the certified copy of the affidavit and bond • for garnishment had been returned to the trial court and that judgment in the garnishment proceedings had been rendered against the garnishee, a verdict for the plaintiff in the amount of the judgment was properly directed.

5. The bond to dissolve the garnishment, being conditioned upon the payment of the judgment that shall be rendered upon the garnishment, the principal and the surety thereon are obligated to pay only the amount of the judgment against the garnishee, and are riot obligated to pay any sum awarded the garnishee as expense incurred in answering the garnishment. The judgment, in so far as it finds for the plaintiff against the principal and the surety upon the dissolution bond in the sum of ten dollars as costs incurred by the garnishee in answering tlie summons of garnishment, is excessive. The judgment is therefore affirmed with direction that this amount be written off.

Decided September 1, 1925.

Garnishment; from Berrien superior court—Judge Highsmith presiding. September 16, 1924.

J. D. Lovett, Hendricks & Hendriclcs, for plaintiffs in error.

J. A. Alexander, Franlclin & Langdale, contra.

Judgment affirmed., with direction.

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


text:
    16133.
    Bell House v. Wilkins et al.

    Decided September 1, 1925.
   Stephens, J.

1. A tenant’s covenant to keep the rented premises in repair absolves the landlord from his statutory duty to make repairs. .

2. A covenant to keep “the premises” in “repair” has reference to the condition of the premises as an entity, and not to the condition of any component part of the premises. It follows, therefore, that any upkeep, including, if necessary, an entire replacement of a component part of a building upon the rented premises—as, for instance, a furnace— which is necessary to a preservation of the premises in their entirety in the same condition as to tenantability as. they were in at the time of the execution of the lease, is a repair. Dougherty v. Taylor & Norton Co., 5 Ga. App. 773 (63 S. E. 928); Meyers v. Myrrell, 57 Ga. 516; Leominster Fuel Co. v. Scanlon, 243 Mass. 126 (137 N. E. 271, 24 A. L. R. 1459).

3. Where the rented premises consist of a dwelling house equipped with a furnace, which, during the term of the lease, has become so deteriorated and worn out and useless that its replacement with a new furnace is necessary, a , replacement with a new furnace is a repair, not of the furnace, but of the rented premises. The tenant’s covenant to keep “the premises” in “repair” absolves the landlord from any duty to replace the worn out and useless furnace with a new one.

4. In a suit by the landlord against the tenants to recover under the lease rent for a period of time after the tenants had, before the expiration of the lease, vacated the premises, it was error for the trial court to charge that the landlord’s failure to replace the old furnace with a new one constituted a constructive eviction and justified the act of the tenants in vacating the premises, and that such act terminated the lease.

5. The jury having found against the plaintiff’s right to recover rent for such period, the plaintiff’s certiorari, on account of such error in the charge of the trial judge, should have been sustained. The judge of the superior court, therefore, erred in overruling the certiorari.

Judgment reversed.

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

Certiorari; from Fulton superior court—Judge Humphries. November 14, 1924.

T. B. Higdon, for plaintiff.

Fuller & Bell, for defendants.


text:
    15866.
    Whitley v. Jackson.
   Stephens, J.

1. The affidavit required under section 5184 of the Civil Code (1910) in a petition for certiorari is not, when made by the at- • torney for the petitioner, invalid because the attorney makes affidavit that he himself verily believes that he, the attorney, has good cause for certiorari. An affidavit so made complies with the provisions of section 5184 of the Civil Code (1910). See, in this connection, Morrison v. Hilburn, 126 Ga. 114 (1) (54 S. E. 938).

2. A certificate to a petition for certiorari made by the judge whose judgment is the subject matter of complaint that “the petitioner for the writ of certiorari has paid all accrued costs to this date in the sum of $9.25” is sufficient as a compliance with section 5185 of the Civil Code (1910), which provides that before any writ of certiorari shall issue, the party applying for such writ shall “produce a certificate from the officer whose decision or judgment is the subject-matter of complaint, that all costs which may have accrued on the trial below have been paid.” Williams v. Shuler, 94 Ga. 660 (19 S. E. 981) ; Western & Atlantic R. Co. v. Carder, 120 Ga. 460 (47 S. E. 930). This case is distinguishable from the ease of Standard Gas Products Co. v. Vismor, 31 Ga. App. 418 (121 S. E. 854), in that the affidavit in that case was limited to the costs accruing in the “petition for certiorari.”

3. Where a judgment against a defendant has, on the defendant’s motion, been set aside and the plaintiff has tendered a petition for certiorari in which he excepts to the setting aside of the judgment, a certificate attached thereto as to the payment of costs, which describes the case in which all accrued costs have been paid as being that of the plaintiff against the defendant, is not invalid in that it does not describe the case as being that of the defendant, as movant, versus the plaintiff, as respondent. The certificate being attached to the petition for certiorari, despite any inaccuracy in the description of the case, if any, necessarily has reference to the court costs accrued in the proceeding in which the judgment excepted to in the petition for certiorari was rendered, namely, the motion to set aside the judgment, in which the defendant was movant and the plaintiff was respondent.

4. A defendant in certiorari being entitled only to written notice -of the sanction of the writ of certiorari and the time and place of hearing, as provided in section 5190 of the Civil Code (1910), and not to service of a copy of any of the proceedings, it is immaterial and is no ground for a dismissal of the certiorari that a copy of the proceedings, which was in fact served upon the defendant, showed as surety upon the certiorari bond a name different from that appearing as surety upon such bond as it appeared of record.

Decided September 2, 1925.

Rehearing denied September 16, 1925.

Certiorari; from Fulton superior court—Judge E. D. Thomas. July 25, 1924.

5. A garnishment may issue in the municipal court of Atlanta upon an affidavit “made before any officer authorized by law to administer oaths, including commercial notaries public.” Ga. L. 1913, pp. 145, 159. A notary public for the State at large being an “officer authorized by law to administer oaths,” a garnishment in the municipal court of Atlanta may issue upon an affidavit made before such officer. This ruling is not in conflict with Thompson v. Reynolds Auto Co., 31 Ga. App. 574 (121 S. E. 528). The garnishment in that case wa's not issued out of tlie municipal court of Atlanta but out of the city court of Eastman.

6. Affidavits and bonds for garnishment being amendable, any defects therein, such as an untrue allegation as to the time when the alleged judgment against the defendant recited in the affidavit was rendered and the execution of the bond by the attorney in the attorney’s own name for the plaintiff by name, instead of in the name of the plaintiff by the attorney, are amendable and are cured by verdict and judgment. Such defects are therefore not grounds for a motion to set aside the judgment rendered in the garnishment proceedings against the defendant and his surety upon the dissolution bond. Civil Code (1910), §§ 5706, 5707; Long v. Hood, 46 Ga. 225; Janes v. Tomlinson, 30 Ga. 540; Stovall v. Joiner, 10 Ga. App. 204 (73 S. E. 22) ; Peyton v. Peyton, 31 Ga. App. 470 (120 S. E. 689) ; Civil Code (1910), § 5960.

7. A judgment rendered against a defendant in garnishment and a surety upon a dissolution bond within a period of ten days after the filing of the answer by the garnishee is not for this reason invalid. Hirsch & Co. v. Lumbermen’s Supply & Equipment Co., 130 Ga. 555 (61 S. E. 225).

8. Since a person may pursue more than one remedy simultaneously, it is no ground for the setting aside of a judgment that there is pending in another court a proceeding, such as a petition for certiorari, by the defendant assigning error upon such judgment.

9. Since a discharge in bankruptcy must be specially pleaded, one who is sued as principal upon a bond to dissolve a garnishment issued upon a judgment against him can not, after verdict and judgment have been rendered against him upon the bond, attack the latter judgment upon a motion to set it aside on the ground that the original judgment against him on which the garnishment was issued was dischargeable in bankruptcy.

10. This being a petition for certiorari excepting to the sustaining by the judge of the municipal court of Atlanta of a motion made by the defendant to set aside a judgment, the judge of the superior court did not err in overruling the motion to dismiss the certiorari, and did not err in sustaining the certiorari and thereby adjudicating that the judge of the municipal court was in error in sustaining the motion to set aside the judgment.

Judgment affirmed.

Jenhins, P. J., and Bell, J., eoneur.

Morris Machs, for plaintiff in error.

B. B. Jachson, T. L. Lanford, contra.