text:
    15673.
    Joseph v. The State.
    Decided October 7, 1924.
    Indictment for larceny of hog; from Camden superior court— Judge Highsmith. April 25, 1924.
    Wingate testified, that he missed from his range a black, unmarked male hog, and that after he missed it he found Saul Joseph, the defendant, with the hog. He testified: “I heard some shooting and I came around the side of the swamp and around the field and saw a fellow with a horse and wagon, and I stopped and he saw me and stopped too. . . When I got down a little farther towards him he got his gun and went off, slipping this way, like he was after something. . . I came back to the wagon and the hog was covered up in the wagon with something, . . but the hog’s tail was sticking out, and . . Saul Joseph, the defendant, opened it. He was on the wagon. I says, ‘Saul, you have got my hog.’ He says, ‘No, sir; it’s my hog.’ I told him already it was mine. So he told me it was his hog, but it was mine. He might have had a hog like that. . . It belonged to me. . . This defendant claimed that the hog was his. He was in possession of the hog and carried it off. . . I suppose he stopped the wagon when he saw me as he was coming up that way. . . He said that he shot the hog. . . He lives about two miles from where I saw him, and it was on the hog range. . . Where I saw Saul was in the general direction of his house. The land I found him on, I believe, belongs to W. B. Simpson. I have lost hogs on my range before. Male hogs take a pretty wide range sometimes. There are plenty of black hogs on the range; they are very numerous. This hog was practically coal black. If it had any distinguishing marks about it I don’t remember them. . . There wasn’t a thing to distinguish this hog except that it was black. Saul Joseph was standing in the road when I saw him. . . I rode up to the wagon and asked him about the hog, and he uncovered it himself. I don’t remember whether I got down off my horse or not. . . I don’t think I turned the hog over in the wagon, but I know that the hog in the wagon was not spotted on the under side, because it was the black hog that belonged to me. . . Saul did not try to run off. He insisted that it was liis hog, and he took it right on off. I went one way and he went the other. I did not take a possessory warrant to get possession of it.” “I think it was on the 13th day of August of last year. . . There was a November term of the superior court here after that happened, but I don’t remember when I went before the grand jury. I may have taken out a warrant in January. . . 'I waited about prosecuting Saul for reasons best known to myself. Other people’s hogs run freely on the range with mine. I mark my hogs when I can get hold of them. This one was skittish and I could not get hold of him. I did not state that Saul did not have hogs in that range.”
   Luke, J.

Joseph was convicted upon an indictment charging him with the theft- of “one black male hog unmarked.” The evidence did not authorize the conviction.

Judgment reversed.

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

There was evidence that at the time referred to by Wingate the defendant had black hogs, some of them unmarked, and that he had an unmarked black male hog, “running open on the range.” The defendant, in his statement at the trial, denied his guilt, and said that the hog in question belonged to him.

Mclillreath & Willcerson, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.


source: Caselaw Access Project

author: Bloodworti-i, J.

license: Public Domain

text:
      15677.

    MORRIS-BELL CO. v. WALL.
    On the trial of tlie issue raised by an affidavit of illegality tlie question of title to tlie property levied on is not involved, and neithdr side can inject this issue into tlie case.
    An affidavit of illegality in which the defendant in execution avers that the property levied on is his property is not subject to dismissal on the ground that his testimony at the trial shows it to be the property of another, and that therefore the court has no jurisdiction of the case.
    The court did not err in overruling the motion to dismiss the affidavit of illegality.
    Decided October 7, 1924.
    Affidavit of illegality; from city court of Waynesboro — Judge W. H. Davis, April 39, 1934.

      H. C. Hatcher, G. C. Anderson, for plaintiff.

      E. V. Heath, for defendant.
   Bloodworti-i, J.

An execution in favor of Morris-Bell Company against T. H. Wall, indorser, was levied on described property, and Wall filed an affidavit of illegality on various grounds. On the trial the plaintiff in fi. fa. introduced its execution and rested; and the defendant in fi. fa., after testifying in regard to the allegations of his affidavit of illegality (which testimony is merely referred to' and not contained in the record), testified as follows: “1 do not own the land levied upon nor have any interest thereon. I do not claim title thereto. It belongs to my wife, and she has filed a claim thereto. I conveyed the land to her just before the judgment of Morris-Bell Company was obtained. The property was levied on under the judgment. She filed claim, and later I filed affidavit of illegality.” The bill of exceptions states that “all other evidence supporting the affidavit is omitted, because immaterial to the point raised in this bill of exceptions.” The plaintiff in fi. fa. moved to dismiss the affidavit of illegality, “upon the ground that the allegations in the affidavit of illegality and the evidence of the defendant T. H. Wall showed that the court did not have jurisdiction to try the same.” The motion to dismiss was overruled. To this ruling the plaintiff in fi. fa. excepted.

Counsel for the plaintiff in error contend in their -brief that the defendant had no legal right to file an affidavit of illegality, and that the court had no jurisdiction of the same, because the defendant had no title to the property levied upon. While the defendant testified that the property in question belonged to his wife, there was no allegation to this effect in the affidavit of illegality, — no allegation therein that he did not own the said property. In fact the closing words of the defendant’s affidavit are, “property of lids deponent”; and the sheriff’s entry of his levy refers to the property levied on as “the property of T. H. Wall.” There is nothing in the pleadings which deprived the court of jurisdiction, and the evidence as to the property belonging to defendant’s wife is irrelevant and immaterial, because the question of title to the property levied on is not involved. In the ease of Harris v. Woodard, 133 Ga. 112 (65 S. E. 650), the Supreme Court said: “A deed from the executor to one Hollinshead, conveying the land levied on, dated prior to the levy, was introduced by the plaintiff in execution, for the purpose, as disclosed by the argument here, of showing that the executor had no right, after he had thus disposed of the property, to interpose an affidavit of illegality to the levy. This evidence was irrelevant and immaterial. Upon the trial of an illegality case, the question of title to the property levied on is not involved', and neither side can inject this issue into the case. 'It was decided in Zachry v. Zachry, 68 Ga. 158, that the defendant in execution could not raise this issue in a ground of his illegality. In Moore v. O’Barr, 87 Ga. 205 (13 S. E. 464), the broader ruling was made, that upon the trial of an illegality case the title to the property levied on is not involved. . . Besides, the land was levied on as the property of the defendant in execution, the plaintiff was seeking to subject it as such, and it did not lie in his mouth to deny that the levy had been made upon property of the defendant” (italics ours). That case is parallel in principle to the one now under consideration. The fact that the plaintiff in execution, rather than defendant in execution, introduced the evidence as to title makes no difference, as “neither side can inject this issue into the case.” As a matter of fact the evidence as to the conveyance of the land to the defendant’s wife, in the case under consideration, was irrelevant, because title was not involved. The land was levied on as the property of the defendant in execution, the plaintiff was seeking to subject it as such, and it does not now lie in the mouth of the plaintiff to deny that the levy was made on the property of the defendant.

'It may be noted that the opinion of the Supreme Court in the Harris case, supra, relied upon by defendant in error, and the opinion in the ease of State v. Sallade, 111 Ga. 700 (36 S. E. 922), relied upon by plaintiff in error, were both written for the court by Justice Eish. In the last-named case, in which it was held that the court had no jurisdiction and that the affidavit of illegality should be dismissed, Sallade was the defendant in execution, and he alleged in his affidavit of illegality that the “execution was proceeding illegally upon the goods of the Price Company,” and “the Price Company gave a forthcoming bond.” The Supreme Court said in that case (p. 702) : “Considering the case as made by the execution, the levy, and the affidavit of illegality, copies of which appear in the record, we have a defendant in execution filing an affidavit of illegality upon the ground that the fi. fa. is wrongfully proceeding upon the property of another party.” In the case now under consideration there was no such allegation in the affidavit of illegality, but an express statement therein that the fi. fa. was wrongfully proceeding against the “property of this deponent,” the defendant in execution.

Under the record as it comes to us and the authorities herein cited, the court did not err in overruling the motion to dismiss the affidavit of illegality.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


author: Luke, J.

text:
    15681.
    MORGAN v. ATLANTA HUB COMPANY INCORPORATED.
    As to the defenses that the notes sued on were procured by duress, through threat of a criminal prosecution, and that there was a total failure of consideration, there was conflict in the evidence. The verdict was authorized by the evidence, and for no reason pointed out in the record did the court err in overruling the motion for a new -trial.
    Decided October 7, 1924.
    Complaint; from city court of Macon — Judge Jordan. May 9, 1924.

      B. D. Feagin, for plaintiff in error.

      Walter DeFore, James G. Fstes, contra.
   Luke, J.

Atlanta Hub Company sued Morgan upon certain promissory notes, and secured a verdict and judgment. Morgan pleaded that “said notes constituted no liability against this defendant at all, for th'e reason that they were wholly without consideration, and were given to suppress a threatened criminal prosecution, and were executed under duress.” The plea of duress was substantially as follows: Defendant was manager of the Atlanta store of plaintiff from May, 1919, until August, 1921, and he and two other employees, Millwood and Moore, carried keys to the store. Moore left about October, 1920, going to the plaintiff’s store in Alabama, where, after the execution by the defendant of the notes sued on, Moore was caught short in stock, and confessed to the plaintiff that he had been taking the stock in his charge and selling it and appropriating the money. Plaintiff inventoried its stock twice a year, on June 30, and December 31. It claimed that its inventory of December 31, 1920, showed a shortage of about $3,000, and demanded, through its office manager, E. J. Hall, that the defendant assume liability for one third of this amount. Defendant knew nothing about the shortage, was not responsible for it, and refused the plaintiff’s demand. Through the said Hall the plaintiff threatened that unless the defendant would assume responsibility for $1,000 of the shortage, he would be immediately arrested and prosecuted criminally for the alleged larceny, but that if he would execute the notes, he would be retained in the plaintiff’s employ, and would not be prosecuted criminally. The defendant was young, inexperienced in the courts, had a good reputation, and would have been done great injury by the prosecution, even had the charge been successfully defended. He was convinced that the plaintiff would have prosecuted him as it threatened, and he signed the notes solely to prevent the prosecution; and the fear engendered thereby amounted to legal duress. There was no prosecution, but after he had paid $75 on the notes he was discharged by the plaintiff, without cause on his part. Thereafter he ceased to pay on the notes and repudiated them.

Hpon the trial of the case the evidence as to duress was in sharp conflict, and the verdict resolved that conflict against the defendant. However, Morgan contends that his answer sets up two distinct defences, total failure of consideration and duress; that under the evidence it was at least a jury question as to whether he actually took any of the missing goods, Atlanta Hub Company having failed to prove-that he did; and that since he did not agree in writing to settle for the debt, default, or miscarriage of another, the judge’s repeated reference, in his charge, to duress, without referring in that connection to failure of consideration, practically eliminated the latter plea from the consideration of the jury; and that he -did not have a fair trial.

Having in mind the rule that pleadings are to be construed most strictly against the pleader, the writer entertains some doubt as to whether there was really a distinct plea of failure of consideration in the case. However, we will assume that there was a valid plea of total failure of consideration, and consider the case from that viewpoint. In this connection we deem it proper to mention some of the testimony of defendant. He swore: “I always denied liability for this shortage. It was the distinct understanding between me and Mr. Hall that I should be manager and responsible for this stock of goods when I was employed.” He further swore: “I don’t recall ever having signed any obligation or contract that made me personally responsible for any loss of stock from the store. I was under bond for shortage for any loss of stock from the store.” The defendant, in a letter written to E. J. Hall in April, 1921, said: “I am in receipt of yours of the 26th with reference to the shortage in my store. I really cannot say how much I really appreciate the consideration shown me in this decision. I appreciate fully the position the company was placed in, and realize that it is quite difficult to arrive at a conclusion under such circumstances. I agree with you that it is nothing but right that I should assume a portion of this shortage, and I think it is taxing the meaning of the wprd ‘fair’ to the limit when you cut my portion • down to $1,000.”

The court charged: “If you should believe, from a consideration of the evidence, that, when the shortage was discovered, neither the plaintiff .nor the defendant in good faith understood that there was any liability existing between them, or if you should believe that the plaintiff in the case in good faith knew or understood that there was no liability on the part of the defendant, — if you should believe. that to be the truth of the case, — the court charges you that defendant would not be liable, and he would be entitled to a v.erdict at your hands.”.

The jury’s verdict being a finding adverse to the plea of duress, and defendant having signed the notes sued on, and having, according to his own testimony, repudiated the notes only when he was discharged by the plaintiff, there was no reversible error in the charge of the court. For no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    15682.
    Bearden v. The State.
    Decided October 7, 1924.
    Indictment for larceny of cotton; from 'Whitfield superior court • — Judge Tarver. May 17, 1924.

      George G. Glenn, John G. Mitchell, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Luke, J.

The conviction not being wholly dependent upon circumstantial evidence, an assignment of error upon the ground that, without request, the court failed to charge the law of circumstantial evidence is without merit.

The evidence amply authorized the conviction, and the verdict has the approval of the trial judge. Eor none of the reasons assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur.


author: Bloodworth, J.

text:
    15684.
    Smith v. Muscogee Bank.
    Decided October 7, 1924.
    Complaint; from city court of Albany — Judge Clayton Jones. April 15, 1924.

      W. H. Beclcham, B. J. Bacon, for plaintiff in error.

      Lippitt & Burt, contra.
   Bloodworth, J.

Under the particular facts of this case, the trial judge did not err in refusing to open the default and vacate the judgment.

Judgment affirmed.

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


text:
    15695.
    Davis v. The State.
    Decided October 7, 1924.
    Indictment for larceny from house; from Bibb superior court — • Judge Malcolm D. Jones. May 17, 1924.

      Hubert Rawls, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra..
   Luke, J.

The evidence authorized the conviction. The special assignments of error attacking the charge of the court, when the charge is read in its entirety, shows no reversible error in overruling the motion for a new trial. Judgment affirmed.

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


text:
    15702.
    French v. The State.
    Decided October 7, 1924.
    Indictment for larceny; from Clay superior court — Judge Yeomans. May 24, 1924.

      Ben M. Turnipseed, for plaintiff in error.

      B. T. Casiellow, solicitor-general, R. R. Arnold, H. C. Hill, contra.
   Luke, J.

The conviction was authorized by the evidence. The special grounds of the motion for a new trial show no reversible error, and the court, approving the verdict of guilty, properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    15707.
    Shirley v. The State.
    Decided October 7, 1924.
   Luke, J.

“No judgment of a trial court in a criminal case shall be reversed by either the Supreme Court or the Court of Appeals for lack of proof of venue or of the time of the commission of the offence, save where the particular point has been specifically raised by a ground of the original or amended motion for a new trial.” Ga. L. 1911, p. 150.

(a) Plaintiff in error in his brief “presents only one question for determination, and that is whether or not the venue of the crime, of which the defendant was convicted, was properly established.”

(&) The question as to proof of venue not .having been raised by the motion for a new trial, and the evidence authorizing the defendant’s conviction, it was not error to overrule the motion.

Judgment affirmed.

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

Conviction of larceny of automobile; from Fulton superior court —Judge Humphries. May 27, 1924.

II. A. Allen, for plaintiff in error.

John A. Boylcin, solicitor-general, B. A. Stephens, Ralph II. Pharr, contra.


text:
    15731.
    Gilley v. The State.
    Decided October 7, 1924.
    Accusation of misdemeanor; from city court of Nashville — Judge W. E. Smith. June 7, 1924.
    From the evidence it appears that Joe Fletcher, whom it was alleged the defendant attempted to entice to leave his employer, was a cropper on the farm of Mrs. W. E. Gibbs in the year 1920. The husband of Mrs. Gibbs testified: “Some time about October 1, I saw C. 0. Gilley [the defendant] come out to my wife’s place in a car; there was another white man with him. He drove up to Joe Fletcher and some other hands on the place. He drove in and went up to where Pete Hailey’s family lived. In a little while he came back and stopped there where Joe Fletcher was, and I did not hear anything that they said.” Joe Fletcher testified: “Mr. C. 0. Gilley came out to this place [the farm of Mrs. Gibbs] about October 1, 1920, and stopped where I was with a crowd of the hands on the place. He asked the way to where Pete' Hailey’s folks lived. He went to where they lived. . . In a little while he came back and I met him in the road. There was a white man with him, and he stopped and asked me didn’t I want to go to Oklahoma. He said I could get $2.50 a hundred for cotton. I said I did not want to go, as I could not pick cotton. I am not a cotton-picker. I could get $1 to $1.25 here for picking cotton.” Another witness testified that he was present with Fletcher when the defendant inquired the way to where Pete Hailey’s folks lived, and that he did not say anything to Fletcher or the rest about going to Oklahoma, but that he (the witness) “was not there as he came back by.”. Another witness testified that at the time mentioned the defendant, after inquiring where Pete Hailey’s folks lived, said that Pete Hailey had sent them some money, to come to Oklahoma, but he did not say anything to “us” about going to Oklahoma. The defendant, in his statement at the trial, said: “Pete Hailey was living in Oklahoma and Ire wanted me to bring some money to his folks to come to Oklahoma. . . I got Homer Bolton to drive me out . . to where his family lived. I stopped where there was a bunch of negroes and asked where Pete Hailey lived. I did not say anything about going to Oklahoma. I carried the money up there, and when I came back I did not 'say anything to Joe Fletcher or anybody else about going to Oklahoma; and that is all I know about it.” There was other testimony, but none of it was as to an attempt by the defendant to entice Fletcher from the service of Mrs. Gibbs.
   Luke, J.

Gilley was convicted upon an accusation which charged him with enticing away and attempting to entice a laborer whc was under contract with his employer (Penal Code of 1910, § 125). The evidence was insufficient to authorize the conviction, and the court erred in overruling the motion for a new trial!

Judgment reversed.

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

C. A. Christian, W. D. Buie, for plaintiff in error,

cited: 122 Ga. 744; 27 Ga. App. 269; 2 Ga. App. 143-4.

Dewey Knight, solicitor, 12. A. Hendricks, contra,

cited: 4 Ga. App. 333; Penal Code (1910), § 125.


text:
    15737.
    Horne v. The State.
    Decided October 7, 1924.
    Accusation of misdemeanor; from city court of Americus — Judge Harper. May 20, 1924.
    The prosecutor, Jesse L. Davis, testified: “The defendant [Jake Horne] made a contract with me about'the 15th day of December, 1923, . . to do the work of a one-horse farm on my home place in the 15th district of Sumter county. He was to work about 30 acres and I was to furnish the land, mule, plow tools, and one half the fertilizers. Jake Horne was to receive one half of what he made, except the cottonseed. The contract was to begin January 1, 1924, and terminate when the crop was gathered. I saw the defendant about the first day of January, 1924. He didn’t seem to be suffering from any trouble. He was with Mr. Council in the road. They were riding. I advanced the defendant $25 in money on the strength of the contract I made with him, and carried him to Leslie and bought $19 worth of shoes for himself and family, and also let him have 25 gallons of syrup. I have suffered a loss of about $64 by his failure to perform his contract. The money and other things were advanced to the defendant in Sumter county, Georgia. The defendant and Mr. Council came to my home about the first of January. Mr. Council stated to me in the presence of the defendant that he would pay me $25 that Jake had gotten from me. I told him that I would not take that, that Jake owed me more than that. Mr. Council refused to pay any more than the $25. While we were talking the defendant called me off and told me that he wanted to pay me everything he owed me, but that he could only get Mr. Council to pay $25 now. Jake worked for Mr. Council in 1922; I moved him from Mr. Council’s place and he made a crop for me in 1923. I never told Jake to leave, but I did say if he would get up my money that it would be all right for him to go. Jake wanted to pay me, but he said he couldn’t get but $25. He said he tried to get it up, but that he could only get the $25.” No other testimony was introduced for the State.
   Luke, J.

Horne was convicted upon an accusation charging- a violation of the “labor-contract law” (Penal Code, §§ 715, 716). The evidence was not sufficient to show that at the time he entered into the alleged contract he had the intention to cheat and defraud the prosecutor, and with such intent procured an advance of money and other thing of value. It was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloódworlh, J., concur.

The defendant, in his statement at the trial, said: “I worked for Mr. Davis in 1923. I was going to work for him in 1924, but I bought an old automobile, paying $30 for it, and Mr. Davis said he didn’t want anybody to work for him that had an automobile. I got $25 from him and owed hinr some money. He told me I could leave if I could get anybody to pay what I owed. I told him I would try my best to get up the money I owed him; so I began looking around, trying to get somebody to advance me enough money to pay Mr. Davis. I went to a number of men, but could not get them to pay the amount I owed Mr; Davis. I finally got Mr. Barlow Council to agree to pay Mr. Davis $25, and he went with me on the first of January to pay Mr. Davis the amount. When we got there Mr. Davis refused to take the $25, so I went to work with Mr. Council. I never intended to beat Mr. Davis out-of his money, but tried my best to get it up. I dug stumps for him and paid him for the shoes and syrup that way, though I owed him the $25 that I got in money and some of last year’s crop. Before I left the place Mr. Davis was moving some other family in my house and I had to leave to look for somewhere to go. I thought it would be all right for me to leave if I got his money up. I told him all the time that I didn’t intend to beat him out of one cent, and I worked for several days trying to find some one to pay him for me, and finally got Mr. Council to pay the $25.” Council testified as to the offer of the $25 to Davis, and his refusal to accept it.

Wallis & Fort, for plaintiff in error.


text:
    15291.
    CALHOUN v. TEXLA OIL COMPANY.
    Under the facts of this ease it was no defense that the contract for the purchase of shares of stock was blank as to the number of shares.
    The court did not err in overruling the demurrer to the petition as amended, or in directing a verdict for the plaintiff.
    Decided October 9, 1924.
    Complaint; from city court of Atlanta — Judge Reid. November 16, 1923.
    Application for certiorari was denied by the Supreme Court.
    By amendment the petition alleged: (1) The consideration for which defendant promised to pay plaintiff, according to the terms of the note sued on, was the purchase of 250 shares of common capital stock of the Texla Oil Company of the par value of $10 each, fully paid and not assessable. The contract was taken on a printed blank, which was to have been filled out. By omission the blank which should have designated the number of shares was not filled out. (2) It was verbally understood, at the time, that the defendant, on his payment of the amount specified, should receive stock at the price of its par value, namely $10 per share, and that said contract should have designated 250 shares. Plaintiff, through its agent, had authority to fill in the words “two hundred and fifty,” but omitted to do so. (3) The consideration of the said promise to pay was the subscription to the original minimum capital stock, which, according to law, must be paid in the full amount of the par value of the stock, — that is, the original stock must be fully paid for; and this was contemplated by both parties to said contract; and plaintiff pleads the fact that it was presumed by both plaintiff and defendant that the law with respect to paying for the stock fully and in accordance with the par value would be complied with.
    The defendant demurred on the ground that no cause of action was set out, and by special demurrer contended that the first paragraph above was an effort to add to “a plain and unambiguous writing;” that this paragraph was insufficient also because it was not alleged when or why the blank space should have been filled out, or whose omission was complained of; that the second paragraph was insufficient because it failed to show between whom there was a verbal understanding, or why the contract should have designated 250 shares; and because it was not shown why the omission of the agent bound the defendant; that the third paragraph set forth a separate and distinct cause of action, that it set forth conclusions of the pleader, without facts to show what the original minimum capital stock was, or its par value, and that it was an attempt to vary a plain and unambiguous writing.
    In his plea the defendant contended that the city court of Atlanta was without jurisdiction of the cause; that only a court of equitable jurisdiction could lawfully pass upon the issues.
    On the trial the only evidence introduced, except the contract sued upon, was the testimony of the defendant. In his testimony he said: “The consideration for which I paid this money was shares of common and capital stock of the Texla Oil Company. I did not understand I was to get anything except a certain number of shares representing payment. . . I did not know how many shares I was to get; . . there was never anything discussed between me and Mr. Chambers as to how many shares, or what the par value of those shares was. I simply made subscription of so many dollars and cents. Mr. Chambers at that time was'treasurer and secretary of the Texla Oil Company. . . He filled that out. . . I thought I was getting par value when I signed that; there was no premium attached; there was no discount. It was my understanding I was getting stock at par value, but I did not know until yesterday whether I was getting 25 shares or 250 shares. . . I knew that I was buying $2500 worth of stock and would get $2500 worth of stock according to the par value. . . I think this subscription was taken in open stockholders’ meeting. . . It was signed at Mr. Chambers’ instance. . . I gave him a cheek for $833.33, the amount written on that paper. . . There was nothing said at that time about the amount of stock that I was to get, or the sale price of the stock. . . I did not get any stock at this time, when I signed that paper. I have not gotten' any since, under that contract, . . and they never offered any, and I don’t know whether I have ever asked for the stock, for which I have already paid. . . I was not an officer in the company, I was a director. . . About intending for the figures or words 250 to be inserted in the complaint [contract?], I did not intend for anything to go in there. I did not think anything about it at all; . . it was not discussed one way or the other. I did not give Chambers any authority to write it there. lie did not ask for any. He did not tell me he intended to put it in there.”

      Hewlett & Dennis, for plaintiff in error,
    cited: 244 Pa. 139 (90 Atl. 532); 125 Ga. 200; 145 Ga. 550; Civil Code (1910), §§ 4577, 4578, 4579; 44 Ga. 39 (3); 125 Ga. 98 (1); 131 Ga. 699; 65 Ga. 356 (3), 360; 120 Ga. 51 (3); 126 Ga. 385; 76 Ga. 755 (1 a); 5 Elliott, Contr., §§ 2365, 2366, 2370; 9 Ga. App. 123 (1); 114 Ga. 166; cases cited below distinguished; also 25 Ga. 383; 27 Ga. 54.

      Walter S. Dillon, G. M. Lancaster, contra,
    cited: 24 Ga. App. 808-9; 112 Ga. 210-12 (6, 7); 28 Ga. App. 688; 95 Ga. 652 (1); 91 Ga. 377 (2); 8 Ga. App. 577; 10 Ga. App. 350; 22 Ga. App. 210; 8 Ga. App. 727-8; 15 Ga. App. 63; 123 Ga. 201 (5); 9 Ga. App. 580.
   Luke, J.

Texla Oil Company sued Calhoun for a balance due of $1666.66 upon the following contract: “I hereby purchase ............shares of the common capital stock of the Texla Oil Company of the par value of $10.00 each, fully paid and non-assessable, for which I promise to pay'the said Texla Oil Company, or order, twenty-five hundred & 00/100 dollars. I enclose herewith $833.33 as one-third payment, and I promise to pay the balance, if any, in two equal installments, one and two months after date. This contract includes the entire agreement between the parties. As witness my hand and seal, this 21st day of May 1920. [Signed] Andrew Calhoun (L. S.)” The plaintiff alleged that the consideration of the contract was the purchase of 250 shares of its capital stock, and that where the contract was silent as to the number of shares, it was so by reason of a clerical oversight; that the promise to pay and the number of shares of stock sold were definite and positive. The defendant demurred generally and specially. The court overruled the demurrer.

The court properly overruled the demurrer /and since the evidence demanded a verdict for the plaintiff, the trial judge did not err in directing the jury so to find.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Ltjke, J.

text:
    15390.
    Atlanta Finance Company v. Lunsford.
   Ltjke, J.

1. Where an employee, in good faith and for a valuable consideration, sells, transfers, and assigns his title and right to possession of a stipulated amount of salary due him by his employer, and thereafter, in disregard of the rights of the transferee, collects the money thus transferred, a right of action arises in favor of the transferee against the employee. Central of Georgia Ry. Co. v. King, 137 Ga. 369 (1) (73 S. E. 632); Covington v. Rosenbusch, 148 Ga. 459 (1) (97 S. E. 78).

2. While in every ease an action of trover may lie in favor of the owner of personalty wrongfully converted by another to his own use, that action is not the owner’s sole remedy, /lie may at his election maintain trover, or sue for damages for the injury to or conversion of his property, or he may waive the tort and sue in implied assumpsit for the value of the chattel or chose in action so wrongfully converted. Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (1) (63 S. E. 270).

3. The nature of the action when brought is determined, not by the designation of the pleader, but by the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the quality of the remedy invoked. Pennington v. Douglas &c. Ry. Co., 3 Ga. App. 665 (2) (60 S. E. 485).

4. Where a petition sets out in minute detail "a right of action of the character first indicated above (paragraph 1), but .makes no effort to identify or describe the particular piece or pieces of money so received by the defendant, the suit is not to be construed as an action of trover simply because the prayer for process is preceded by allegations and a prayer touching the alleged cause of action as follows: “13. The defendant is in possesson of $55 in lawful money of the United States, the property of plaintiff, and of the value of $55, the possession of which is illegally and fraudulently held in the way and manner herein set out, and plaintiff has a right to possession of the same, and the said defendant refuses to turn over to plaintiff the said suin of money belonging to plaintiff, demand having been made on defendant to turn oyer to plaintiff said money on or about August 12th, 1923. 14. That said refusal of defendant to turn over and deliver to plaintiff the property herein described, and the retention of same by and for the defendant’s own use and benefit, constitute an action in damages to and conversion of personal property of plaintiff by defendant in the sum of $55 by the acts and doings of the defendant for the conversion of his personal property herein described, and prays judgment for the sum of $55 so converted.”

Decided October 9, 1924.

Certiorari; from Fulton superior court — Judge Ellis. January 30, 1924.

B. B. Jaclcson, T. L. Lanford, for plaintiff.

M. Herzberg, for defendant.

5. In view of the foregoing principles, the municipal court of Atlanta erroneously construed the plaintiff’s suit as an action of trover, and erroneously dismissed the petition for its failure to set out a “particular description of the money alleged to have been purchased.” The judgment of the superior court overruling the certiorari was accordingly erroneous.

Judgment reversed.

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


text:
    15402.
    MORRIS, next friend, v. FRUIT COMPANY.
    A truck-driver employed by the owner of the truck to deliver goods acts outside the scope of his employment when he, for his own pleasure and without the knowledge of his employer, invites another to ride on the truck; and the employer is not liable to the driver’s guest for injury caused by negligence of the driver.
    The petition did not set out a cause of action, and the court did not err in dismissing it.
    Decided October 9, 1924.
    Action for damages; from Floyd superior court — Judge Wright. February 9, 1924.

      Porter & Mebane, for plaintiff. G. I. Carey, for defendant.
   Bloodworth, J.

Willie Morris, a minor, sued the Fruit Company, located at Rome, Ga., for damages for injuries received by him when an automobile truck owned by the defendant and driven by a chauffeur on business for 'the defendant, and in which the plaintiff was riding as a guest of the driver, left the road and ran into a ditch, 'because, it was alleged, of negligence of the driver. General and special demurrers to the petition were filed. The demurrers were sustained and the petition dismissed, and the plaintiff excepted.

The petition fails to set out a cause of action, and the demurrers were properly sustained. The driver of a delivery-truck, employed to make deliveries of goods, acts outside of tbe scope, of bis employment where he, for companionship and for his own pleasure and without the knowledge of his employer, invites a friend to ride on the truck with him, and the employer is not liable for injuries to the guest of the driver, sustained from the negligence of the latter,, even though the negligence be wilful and wanton. The petition does not show that the plaintiff was invited to ride on the truck by the owner thereof or by anyone authorized by him to give the invitation, and fails to show that when the driver invited the plaintiff to ride thereon he was acting within the scope of his employment or in furtherance of his employer’s business. See sections 3593 and 4413 of the Civil Code of 1910; Rape v. Barker, 25 Ga. App. 362 (103 S. E. 171); Tate v. Atlantic Ice & Coal Corporation, 25 Ga. App. 797 (104 S. E. 913); Waller v. Southern Ice & Coal Co., 144 Ga. 695 (87 S. E. 888); Fielder v. Davison, 139 Ga. 509 (77 S. E. 618); Central of Ga. Ry. Co. v. Morris, 121 Ga. 484 (121 S. E. 693); McQueen v. Peoples’ Store Co., 97 Wash. 387 (166 Pac. 626); Hughes v. Murdoch Storage & Transfer Co., 269 Pa. 222 (112 Atl. 112); O’Leary v. Fash, 245 Mass. 122 (140 N. E. 282); Barker v. Dairymen’s Milk Products Co., 205 Ala. 470 (88 So. 588); Schulwitz v. Delta Lumber Co., 126 Mich. 559 (85 N. W. 1075); Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn. 688 (91 S. W. 199, 4 L. R. A. (N. S.) 804, 112 Am. St. R. 881); Dougherty v. Chicago, Milwaukee & St. Paul Ry. Co., 137 Iowa, 257, 258 (6) (114 N. W. 902, 14 L. R. A. (N. S.) 590, 126 Am. St. R. 282); Goldberg v. Borden’s Condensed Milk Co., 227 N. Y. 465 (125 N. E. 807); Zampella v. Fitzhenry, 97 N. J. L. 517, (117 Atl. 711).

Judgment affirmed.

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


text:
    15518.
    Hatten v. Central of Georgia Railway Co.
   Luke, J.

On the trial of an issue formed upon the traverse of an answer ■ to a summons of garnishment, the undisputed evidence showed that the garnishee was indebted to the defendant in the garnishment proceedings in the sum of $69.20, which was paid out by the garnishee on two “watch orders,” one executed before and the other after the service of the summons of garnishment. Conceding (but not deciding) that the amount paid out oh the first “watch order” was not subject to the garnishment, the amount paid out on the second “watch order,” under the facts of the case, was clearly subject to the garnishment, and the trial court therefore erred in deciding against the traverse. -Civil Code (1910), §,5273; Smith v. Pickett, 7 Ga. 104; Citizens Nat. Bank v. Dasher, 16 Ga. App. 33 (2).

Decided October 9, 1924.

Certiorari; from Bibb superior court — Judge Malcolm D. Jones. February 29, 1924.

J. P. Burnett, H. P. Strohecker, for plaintiff.

Turpin & Lane, for defendant.

Judgment reversed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    15524.
    Crosby v. Patterson.
    Decided October 9, 1924.
    Complaint; from city court of Baxley — Judge Speer. February 12, 1924.

      J. B. Moore, G. II. Parker, for plaintiff in error.

      V. B. Padgett, contra.
   Luke, J.

The suit upon a promissory note which, after describing a certain mule, recited that “this note and mortgage is given for the purchase price of the above-described property, which was bought by me after full inspection and without any warranty (express or implied), and without any reservation whatever.” The defendant admitted the contract as alleged, and pleaded total failure of consideration. By amendment she alleged that, upon discovering the mule’s worthlessness, she exchanged it with the plaintiff for another mule, which was also found to be worthless, and that she then returned it to the plaintiff and repossessed herself of the first mule, on the plaintiff’s promise, without consideration, to make another exchange; contending that such subsequent transactions amounted to a rescission of the original contract. The amended plea and answer was stricken, on oral motion, except as to the attorney’s fees sued for; and, the defendant having admitted the statutory notice and her liability for attorney’s fees “if liable for the principal and interest,” the court directed a verdict in favor of the plaintiff for the full amount of principal, interest and attorney’s fees sued for. Both rulings are assigned as error. Held: Neither ruling was erroneous. Purser v. Rountree, 142 Ga. 836 (83 S. E. 958).

Judgment affirmed.

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


text:
    15666.
    ATLANTIC COAST LINE RAILROAD COMPANY v. PETERS.
    Section 5202 of the Civil Code (1910), which provides for a new trial “if the justice . . before whom the case was tried die before answering the writ of certiorari served,” is not applicable to the facts of this case.
    It appearing that by inadvertence the word “denied,” instead of the word “dismissed,”, was used by the judge in his order disposing of the certiorari, it is directed that the order be corrected by substituting the word “dismissed” for the word “denied,” so as to conform to section 5201 of the Civil Code (1910).
    It not appearing that the writ of error was sued out for delay only, the motion for damages is denied.
    Decided October 9, 1924.
    Certiorari; from Seminole superior court — Judge Yeomans. February 25, 1924.

      Rich & Rawls, Pope & Bennel, for plaintiff in error.

      R. H. House, contra.
   Luke, J.

Plaintiff in error sued out its certiorari to review tlie adverse judgment rendered by a justice of the peace. At the October term, 1921, of the superior court an order was granted requiring the justice to amplify his answer. When the case was called in its order at the February term, 1922, the court ordered that the justice “make answer to said certiorari in terms of the law in such cases made and provided,” the order specifying fully what the justice’s answer should contain. It does not appear that the justice was served with either of these orders. When the case was called for trial at the February term,-1924, the certiorari papers had not been returned, the justice had not made any fuller answer as required by the order of 1922, he had died on April 25, 1923, and several terms of the superior court were held between the granting of the last order and his death. The judgment of the superior, court was that the certiorari be “denied.” The plaintiff in certiorari excepted, on the grounds: (1) Under section 5202 of the Civil Code (1910), the court should have ordered a new trial for the reason that the justice of the peace died before answering the certiorari. (2) The judgment was erroneous because it “denied” the certiorari, whereas it should have “dismissed” it.

1. Section 5202 of the Civil Code is not applicable to the facts here presented, since it applies in terms to a case where the justice of the peace died “before answering the writ of certiorari;” and the court committed no error in failing to order a new trial of the case.

2. The court below is directed to correct its order of February 25, 1924, so as to conform to the requirements of the Civil Code (1910), § 5201, by substituting therein the word “dismissed” for the word “denied;” this in keeping with the judge’s note attached to his certificate, stating that by inadvertence, the word “denied” was written for the word “dismissed.”

3. It does not appear from the record in this case that the writ of error was sued out for delay only, and the motion for damages under section 6213 of the Civil Code (1910) is denied.

Judgment affirmed, with direction.

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


text:
    15720.
    BEDSOLE v. THE STATE.
    Improper argument of counsel for the prosecution is not cause for a new trial in this case, the verdict being demanded by the evidence.
    Decided October 9, 1924.
    Accusation of violating liquor law; from' city court of Fort Gaines — Judge Turnipseed. June 9, 1924.
    From the 3d special ground of the motion for a new trial it appears that the solicitor of the city court, in his argument to the jury, said: “The defendant has made no statement in this matter; he does not deny that he solicited orders for liquor. He could have gone up there on the stand and denied it.” The defendant’s counsel objected to this argument and moved for a mistrial, and asked that the solicitor be rebuked. The court overruled this motion and charged the jury on the subject as follows: “In all criminal trials the defendant has a right to make or not make to the court and jury a statement in his behalf. If the defendant sees fit to make no statement, he is acting within his rights, and such failure should not be considered against him.”

      E. B. King, for plaintiff in error.
    P. G. King, solicitor, contra.
   Luke, J.

1. The 3d special ground of the motion for a new trial alleges error because of improper remarks of the solicitor-general in his argument to the jury; and counsel for plaintiff in error, in support of this ground, cites the cases of Minor v. State, 120 Ga. 490 (48 S. E. 189), and Cæsar v. State, 125 Ga. 6 (53 S. E. 815). The case under consideration differs from the cases cited, in that the evidence in this ease absolutely demanded the verdict returned; and therefore the improper argument of the solicitor-general could not and did not injure the defendant’s cause. See Hagar v. State, 71 Ga. 167, and citations.

2. The other grounds of the motion are without merit, and the judgment is

Affirmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Bell, J.

text:
      15712.

    BAILEY v. GEORGIA RAILWAY AND POWER CO.
    1. “A railway company lias the right to make reasonable rules and regulations prohibiting passengers from occupying positions on its cars considered to be dangerous, except at their own risk; but when, notwithstanding such rules, passengers are permitted, and in some instances required, to occupy such positions, the company is still under the duty to exercise extraordinary care and diligence for their safety.”
    2. It appeared that the plaintiff was a passenger upon one of the defendant railway company’s street-ears, and that- while riding, with the ■company’s knowledge and consent, upon the steps thereof, he was injured in a collision between the street-car and an automobile. The evidence was such as to make it a jury question as to whether the railway company was negligent in not providing the plaintiff with a safe place in which to ride, in failing to observe the automobile approaching the path of the street-ear, and in failing to stop the street-car, in time to avoid the collision.
    3. It cannot be said as a matter of law that one who is injured while riding in such a position as a passenger upon a street-car is so negligent as. to be barred from recovering for negligence of the railway company, unless, under the peculiar conditions, the danger is so obviously great that no one of ordinary prudence would subject himself thereto.

      (a) The court committed error in granting the judgment of nonsuit.
    4. The court erred also in allowing a witness to testify as a mere conclusion, over appropriate objection by the plaintiff, that “the accident was unavoidable.”
    Decided October 16, 1924.
    Action for damages; from Fulton superior court — Judge Humphries. March 20, 1934.

      Parker & Patterson, Wayne Allen, for plaintiff.

      Colquitt & Oonyers, for defendant.
   Bell, J.

George Bailey brought suit against the Georgia Railway and Power Company for damages on account of personal injuries alleged to have been caused to .him by its negligence while he was riding as a passenger upon one of its street-cars. The case is here upon exceptions to the grant of a nonsuit.

'The plaintiff alleged: that on July 5, 1920, he boarded the defendant’s car in the city of Atlanta at a station known as Campbellton Road, and paid his fare to the city of East Point; that the car was so crowded that he could not go inside, and it was necessary for him to stand on the steps; that he was in this position when he paid his fare, and that the conductor knew that he was so riding. “He was standing on the rear right-hand step.” The street-railway tracks ran north and south, occupying the east side of a public road, and “there is a concrete pavement on the road west of said street-car tracks, about twenty feet wide and extending up to within about eighteen inches of the street-car rail; and all of the traffic except the street-cars is over that portion of the road which is paved with concrete.” (Italics ours.) As the street-car proceeded south it approached an automobile traveling in a northerly direction, driven by one H. R. Williams. The right-hand wheels of the automobile were running between the concrete pavement and the street-car rails, 'where there was a deep ditch or rut, out of which the driver was unable to steer the automobile, and both the streetcar and the automobile kept running in the direction of each other until they collided. When the collision occurred the automobile struck the plaintiff’s feet and knocked them off the steps, on which he was still standing, and as a result the plaintiff suffered described injuries.

Referring to the specifications of negligence in their inverse order, it is alleged that the railway company was negligent, (1) in failing “to provide a safe place for plaintiff to ride when it accepted him as a passenger, as it was said defendant’s duty to do, and that said defendant accepted plaintiff as a passenger knowing said car was already ovércrowded, and forced plaintiff to ride on said steps;” (2) “in that the agents of said company in charge of said car failed to observe said automobile approaching on the tracks, and not bringing said street-car to a stop and avoiding said collision;” (3) in that the defendant allowed “the road-bed which was occupied by its tracks to become in a bad condition; that the ditch or rut which was alongside the street-car rail in which said automobile was running was caused by the defective ties under the rails of said tracks; that said ties had become decayed and were in a dilapidated condition, and as a result of said defective condition of said ties the road-bed at that place had sunk in and a deep ditch or rut caused thereby between the car rail and the concrete pavement; that the defendant H. E. Williams could not' steer his said automobile out of said rut and drive by said street-car without colliding with the same; that had said rut not been there, which was caused by the negligence of said Georgia Eailway and Power Company, said Williams- could have steered said automobile from the path of said car and passed it without colliding with the same; that the condition of said ties and said street was well known to said Georgia Eailway and Power Company, or by the. exercise of ordinary care it should have known of the same.”

The evidence developed, without dispute, that shortly before Williams met the street-car he observed an automobile that stopped on the west side of the pavement, which was about thirty feet in width, and that two other automobiles were traveling south at a rapid rate of speed, apparently racing, which he was about to meet at a point alongside the standing automobile, and to which he deemed it necessary to give room. These two. vehicles were, of course, traveling in the same direction with the street-car, approaching it from the rear. It seems that Williams alone had knowledge of the dangerous condition of the traffic upon the pavement, and steered off it at the particular time for his own safety. The plaintiff established that he was a passenger riding upon the street-car in the position alleged. He testified that the car was crowded, so that he could not go inside, and that the conductor knew where he was riding. He was talking to the conductor immediately before the collision. His back was toward the traveled portion of the public road, and he was holding to a rod attached to the street-car. It is unquestioned that he was struck and injured by the automobile. He knew nothing himself of the cause of the collision.

The evidence, next to be referred to was not undisputed in all points, but the jury could have believed it in preference to' the testimony at variance therewith. One of the passengers, James Callahan, testified that the street-cars extend about to the edge of the pavement; that there were ruts “all along there in different places” between the pavement and the street-car track; that he could not say “how far the street-car ran after the collision occurred, but it moved on some feet after it hit before it stopped; after the collision occurred the street-car and the automobile just separated, both of them running just a little bit. The street-car was one of these long ones.” Williams, the driver of the automobile, testified that as he was forced off the pavement on the side next to the railway track, the wheels of his automobile got into a groove about four or five inches deep, and that he was unable to get them out before the collision. He placed the distance between the pavement and the street-car rails af about eighteen inches. He testified that his automobile was “standing still at the time of the contact.” Other testimony of this witness was as follows: “At the time when I saw the street-car and the automobile were about to collide, at the time of the collision, I had room to swerve to my left and miss the street-car; there wasn’t anything else in my way to prevent it except that I couldn’t turn out, because I was in that groove, in a rut. . . When the street-car was going south and I was going north, I going about ten or twelve miles an hour and it going about fifteen or twenty, on the general and regular schedule, that would make an aggregate speed of thirty-two miles an hour; and at about that time there were two automobiles coming racing from town, meeting me, and to avoid these two racing automobiles I had to cut to my right a little, and when I did I dropped down off the edge of the concrete pavement, and in that position, before the street-car could stop, or before I could get out of the way, this side-swipe collision happened. I couldn’t get back on the road. At the time the wheel of the automobile dropped off the concrete paving the street-car and I were about as close together, I should say, as from here to the banisters, may be a little further, about thirty or forty feet, something like that.” The automobile was a Ford.

Frank Wilson, who was also a passenger' upon the street-car, testified that he was sitting on the front platform with his feet on the step, and that at the time of the collision “the street-car could not have been going very fast;” it was “just crawling along there;” it did not run more than a car-length after the automobile hit it.

“A railway company has the right to make reasonable rules and regulations prohibiting passengers from occupying positions on its cars considered to be dangerous, except at their own risk; but when, notwithstanding such rules, passengers are permitted, and in some instances required, to occupy such positions, the company is still under the duty to exercise extraordinary care and diligence for their safety.” Augusta Railway & Electric Co. v. Smith, 121 Ga. 29 (1) (48 S. E. 681). See also Southern Railway Co. v. Nappier, 138 Ga. 31 (2) (74 S. E. 778). The care which the defendant owed to the plaintiff was to be exercised with reference to the position on the car which, with the knowledge and consent of the company, the plaintiff occupied. The defendant’s duty, however, extended only to the protection of the plaintiff from dangers which were natural and probable, or which in the exercise of extraordinary diligence it should reasonably have anticipated or foreseen. Gillespie v. Andrews, 27 Ga. App. 509 (1) (108 S. E. 906). Assuming, without deciding, that it was the duty of the railroad company to maintain in a condition fit for travel that part of the public road between the concrete pavement and its track, and that the unfit condition thereof should be attributed to the defendant as negligence (Georgia Railway & Power Co. v. City of Atlanta, 153 Ga. 335, 113 S. E. 420), we do not think that the negligence of the defendant in this respect could be said to be the proximate cause of the plaintiff’s injury. The averment in the petition that “all of the traffic except the street-ears is over that portion of the road which is paved with concrete” precludes any contention on the part of the'plaintiff that the railway company Should have anticipated that an automobile would be traveling off the pavement and in the ditch or rut between the pavement and the street-car track, either by the driver’s choice or because of the unusual condition of the vehicular traffic which made the same necessary in the particular case. Even conceding, therefore, that the railway company was negligent in not maintaining suitably to traffic that part of the road between its track and the pavement, its negligence in this respect could not be said to be a cause proximately contributing to the plaintiff’s injury. The plaintiff is bound by the case which he makes in his petition. See New Zealand Ins. Co. v. Brewer, 29 Ga. App. 773 (116 S. E. 922).

The case should be considered, we think, just as if the automobile had gotten to that side of the road, and, for some other reason than the ditch or rut (as for instance a broken wheel), the driver was unable to steer it back to the pavement.

As indicated in the preceding division, there could be no recovery upon the specification of negligence designated above as number 3-. We are of the opinion, however, that with respect to the other allegations thereof the evidence was such as to entitle the plaintiff to go to the jury. It is inferable that the agents of the railway company knew of the ditch or rut in that portion of the road over which its street-cars regularly passed, and also that the motorman, in the exercise of proper care, should have seen the automobile actually in the path of his car. We do not hold that the agents of the railway company should have anticipated that the automobile would leave the pavement and come within the range of the street car; but it certainly cannot be said that the defendant was without a duty to keep a lookout directly ahead of the streetcar and to see the automobile after it once got in the street-car’s way. The witness Williams testified that when the automobile got-off the pavement the distance to the street-car. was thirty or forty feet, and that the automobile was traveling ten or twelve- miles per hour and the street-car fifteen or twenty. The jury were authorized to find in accordance with the version of his testimony most favorable to the plaintiff. They could have believed that the automobile was traveling at ten miles and the street-car at fifteen miles per hour, and that they were forty feet apart when the one got in front of the other. To this should be added the length of the streetcar (which was “one of these long ones”), because the plaintiff was standing upon the steps at the opposite end óf the street-car from the automobile. A calculation will show that an object moving at the speed of twenty-five miles per hour (this being the minimum aggregate speed of the two vehicles, according to one construction which the jury could have placed upon the evidence) moves thirty six and two-thirds feet per second. But when we remember that the automobile itself, according to the same witness, had stopped before the contact, and also that one of the witnesses testified that the street-car was merely “crawling,” we think that it was a jury question as to whether the street-car could not, in propet diligence, have been stopped before the plaintiff at the rear end thereof was brought into contact with the automobile, even though it might not have been possible to avoid the collision between the automobile and the front end of the street-car. One witness testified that the contact between the two was just to the rear of the front right-hand steps, and that the automobile scraped on down to the back steps.

We conclude that the jury in their exclusive province would have been authorized to find that the defendant was negligent in failing to provide the plaintiff a safe place in which to ride, and in failing to observe the approaching autoiaobile, and in not bringing the street-car to a stop in time to avoid the collision between the automobile and that part of the street-car where the plaintiff was situated. See Collins v. Augusta-Aiken Ry. Corp., 13 Ga. App. 124 (1) (78 S. E. 944); Cordray v. Savannah Electric Co., 5 Ga. App. 625 (63 S. E. 710); Cowart v. Savannah Electric Co., 5 Ga. App. 664 (1) (63 S. E. 804).

It cannot be said as a matter of law that the plaintiff’s presence upon the steps was such negligence as would preclude a recovery. Ordinarily, the question as to whether such conduct is negligence is one for the jury, and should not be determined by the court as a matter of law unless the danger is so obviously great that no person of ordinary prudence would voluntarily subject himself thereto. Augusta Southern R. Co. v. Snider, 118 Ga. 146 (44 S. E. 1005); Central of Georgia R. Co. v. Forehand, 128 Ga. 547 (1) (58 S. E. 44); Myrick v. Macon Railway & Light Co., 6 Ga. App. 38 (1) (64 S. E. 296). We conclude that the court committed error in granting the nonsuit.

The court erred also, as assigned, in permitting the witness Williams to testify, over appropriate objection by the plaintiff, that “the accident was unavoidable.” This was a mere conclusion, which was to be drawn or not by the jury, according to the opinion which they entertained of the facts and circumstances in evidence. Macon &c. R. Co. v. Stewart, 125 Ga. 88 (1) (54 S. E. 197). This error would have been harmless, however, if the other evidence, as a matter of law, had failed to show that the plaintiff was entitled to recover.

Judgment reversed.

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


text:
    15554.
    BANK OF COMMERCE v. KNOWLES et al.

    1. Tlie inability of tlie vendor of land to make title according to liis contract will give tlie vendee a cause of action for a breach of the contract, and justify him in refusing to make payments of the purchase price and in asserting a want or failure of consideration, as to any notes executed therefor in the hands of a holder with notice.
    2. Any circumstance which would place a prudent man upon his guard, in purchasing negotiable paper, is sufficient to constitute notice to a purchaser of such paper before it is due.

      (а) But notice to the holder of a note, at the time he acquired it from the payee, that it was given for the purchase price of lands which the payee had contracted to sell to the makers, and that the payee was not at that time the owner of the lands in fee simple, but held them merely by virtue of a bond for title, would not, without more, be sufficient to place the holder, as a prudent person, upon his guard in purchasing the paper.
    (б) The holder of a note is presumed to be suchubona fide and for value; if either fact is negatived by proof, the defendants are let into all their defenses. Neither fact was negatived by the evidence in this case.
    (c) The verdict found in favor of the defendants was, therefore, urn authorized.
    3. There being no evidence that the plaintiff acquired the note sued on with notice of the defense asserted, certain parts of the charge of the court, excepted to in the motion for a new trial, were unwarranted by evidence. For the reasons stated in this and the preceding paragraph, and the corresponding divisions of the opinion, the court erred in overruling the plaintiff’s motion for a new trial.
    Decided October 18, 1921.
    Complaint; from Floyd superior court — -Judge Wright. April 10, 1924.

      Porter & Mebane, Denny & Wright, for plaintiff.
    Maddox, Matthews & Owens, for defendants.
   Bell, J.

This was an action by the Bank of Commerce of Summerville against the makers, F. M. Formby and W. A. Knowles, upon a promissory note payable to and indorsed by W. B. Medlin. The defendants pleaded want and failure of consideration, alleging in substance that the note was one of a series which the defendants were to execute to the payee for the purchase price of certain lands, in pursuance of the sale of which the payee, Medlin, had signed a bond for title and the defendants had signed the note sued on and others; that before the transaction was closed, however, a mistake in the amounts of the other notes had been discovered, and that the transaction by agreement was to be held in abeyance until the mistake could be corrected; that in the meantime the note sued on remained in the possession of the payee, though not subject to negotiation; that pending this agreement, the defendants discovered that the payee had no title to the property and was so involved that he would never be able to make title in accordance with the bond, and that for this reason the corrections in the other notes were never made and the contract of sale was never completed. In regard to the inability of the payee to comply with his agreement to sell, it was set up, among other things, that he himself had never owned the lands except as the obligee in a bond for title; that he had executed and delivered a mortgage upon the property to one person, and in addition had transferred and assigned to some other person his bond for title. The defendants further alleged that the payee nevertheless violated his agreement not to transfer the note, and that the plaintiff acquired it with notice of the facts. A verdict was found in favor of the defendants, and the bank has excepted to the overruling of its motion for a new trial.

The inability of a vendor of land to make title according to his contract will give the vendee a cause of action for a breach of the contract, and justify him in refusing to make payments of the purchase price, and in asserting a want or failure of consideration when sued by the vendor or a holder with notice upon any notes executed therefor. Lightfoot v. Brower, 133 Ga. 766 (1), 767 (66 S. E. 1094). The vendee has the right to rely upon the contract obligation of the vendor and demand compliance with' the contract, although the vendee knew or ought to have known that the vendor did not own the title at the time the contract was entered into. Foute v. Elder, 109 Ga. 713 (2) (35 S. E. 118); Smith v. Eason, 46 Ga. 316 (2). There is possibly an exception to this rule where the title is in the vendor’s wife and the vendee has knowledge of that fact. McMillan v. Wilcox, 12 Ga. App. 721 (78 S. E. 270). We can see no reason for this exception, however, unless it is because of the provision of the code that “no contract of sale by a wife as to her separate estate with her husband . . shall be valid, unless the same is allowed by order of the superior court.” Civil Code (1910), § 3009. It may be true that in such case the vendee should know that the ability of the vendor to execute title might be impossible. “Impossible, immoral, and illegal conditions are void, and are binding upon no one.” Civil Code (1910), § 4225. It is unnecessary, however, for the purpose of this case, to determine the soundness of the decision in McMillan v. Wilcox, supra.

If the purchaser seeks to recover damages for an alleged breach of a contract for .the sale of lands, the general rule is that he must tender payment, unless it is waived. Smith v. Tatum, 140 Ga. 719 (2) (79 S. E. 775). But such tender is unnecessary where it is shown that it would have been useless. Pearson v. Horne, 139 Ga. 453 (3) (77 S. E. 387); Burkhalter v. Roach, 142 Ga. 344 (2) (82 S. E. 1059); Turman v. Smarr, 145 Ga. 312 (2) (89 S. E. 214).

Without setting it forth, there was some evidence in this case to authorize a finding in favor of the defendants’ contentions that the vendor, who was the payee of the note sued on, not only did not have title to the property contracted to be sold, but also that he was so involved that he never would have been able to acquire title or to place himself in a situation where he could comply with his contract,

We think, however, that there was no sufficient proof that the bank took with notice that the consideration had failed or would necessarily fail. In Adams v. Hatfield, 17 Ga. App. 680 (2) (87 S. E. 1099), this court said that failure of consideration may be pleaded “where the holder of the note, when he purchased it, knew what the consideration was, and had notice, express or implied, that it probably would fail.” We held in Prater v. Baughman, 24 Ga. App. 298 (100 S. E. 647), that the indorsee of a note based upon an executory consideration is protected against a plea of failure of consideration, where he “had no notice, constructive or otherwise, that the consideration would fail.” And in Reece v. Citizens Bank of Roswell, 22 Ga. App. 519 (96 S. E. 452), the rule was laid down that in such a case “the question is not whether the circumstances were such as might reasonably put the indorsee upon notice that the consideration could fail, but whether they were sufficient to put him on notice [that] it must fail or actually had failed.” These decisions, while differing in the language used, are each declaratory of the same principle.

Whether then known to any one, it must have been true at the time the plaintifE took the note that the consideration would necessarily fail; else the defense could never have accrued.

The probability that the consideration would fail, as referred to in Adams v. Hatfield, supra, is not an ingredient of the ultimate defense, but rather of the notice the holder must have had when he purchased. The true rule in this State is: “Any circumstances which would place a prudent man upon his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due.” Civil Code (1910), § 4291; Phillips v. Loyd, 83 Ga. 536 (1) (10 S. E. 232); Fidelity Trust Co. v. Mays, 142 Ga. 821 (1) (83 S. E. 961). As said in the case last cited, it is analogous to the equitable rule that notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found that such inquiry might have led. Civil Code (1910), § 4530. The decisions of our courts as to what is sufficient to put a purchaser of negotiable paper upon notice of the equities or defenses between the original parties are but applications of the principles of these two code-sections, though the expressions may not be always the same in the different cases. Claflin v. Duncan, 74 Ga. 348; Montgomery v. Hunt, 93 Ga. 438 (21 S. E. 59); Montgomery v. Hunt, 99 Ga. 499 (4) (27 S. E. 701); 108 Ga. 240; Hudson v. Best, 104 Ga. 131 (3) (30 S. E. 688); Spiller-Beall Co. v. Hirsch, 18 Ga. App. 450 (8) (89 S. E. 587); State Banking Co. v. Morgan, 30 Ga. App. 430 (118 S. E. 415). See also the cases cited above in this division of the opinion.

The plaintiff bank purchased the note through its cashier, Mr. Bitting. The defendant Knowles testified as follows: “When I was there three days after the sale I saw Mr. Bitting. I had been in conversation with Mr. Shropshire at his office, and, as I came from his office over to Cleghorn’s store, I met Mr. Bitting about half way, and Mr. Bitting says, Now are you getting on 'with this trade of Medlin’s; have you got the papers fixed up in it?’ Anri I says, No, we haven’t got the papers,fixed up, and it looks like he is not going to be able to fix them up.’ I says, Nr. Medlin is thoroughly involved and Mr. Shropshire is working on it now.’ I told him I had found that Medlin owed near about all the property was worth, and only held the bond for title, and hadn’t produced that, hadn’t produced the bond for title, but I understood he held the bond for title. . . I never did talk with Mr. Bitting any other time except the time I mentioned between the Cleghorn store and the court-house. I don’t think I had any conversation with him except that one conversation before the suit was brought, and I stated all that was said that day. . . He spoke to me about this matter. He didn’t say anything about having bought this note. It wasn’t mentioned; it was only two or three days after the sale. I told him that day that it looked like Medlin had no title and the sale would fall through. I never told him that before. I never had any conversation with him before. I didn’t tell him anything the day of the sale.” Another witness testified that the plaintiff’s cashier Bitting knew that Medlin only held a bond for title. Except as stated, there was no other proof that the bank had any notice, when it acquired the note, that the consideration had failed or would fail.

Notice merely that the vendor did not have title, but claimed only by a bond for title, was not sufficient to put the bank, as a prudent person, upon its guard. This, without more, did not foreshadow as a probability that the vendor would breach his contract by failing to acquire title at the time it should be conveyed, or that he would not be able, within the period of the contract, to cause the title to be conveyed to the purchasers. This identical question was decided in Prater v. Baughman, supra, as is shown by the facts in the record of file.

It is common knowledge that many persons execute contracts in the form of bonds for title and otherwise, obligating themselves to convey titles to land upon the payment of the purchase price in the future, when they do not at the time hold the property in fee simple, but expect to acquire it on or before the maturity of the sale contract. The presumption would be that such a contract would be carried out in good faith, and the consideration for notes given for the purchase price.would be performed by the conveyance of title as stipulated, and a purchaser of such a note would have the right to rely upon such expectation if he had no other notice except that the vendor, — -the payee in the note — was a holder merely under a bond for title. See Seigel v. Chicago Trust & Savings Bank (Ill.), 7 L. R. A. 537; Miller v. Ottaway (Mich.), 8 L. R. A. 428. See also 3 R. C. L. 1067, § 273.

In the case at bar the plaintiff’s cashier was informed by Knowles, one of the defendants, “that it looked like Medlin had no title and the sale would fall through.” If this had been all of the evidence upon the question of notice, and there was nothing to place the bank off its guard, a jury would probably have been authorized to find that the bank, in later purchasing the note, took it with notice and subject to any defense existing in favor of the defendants against the original payee. See Hudson v. Best, 104 Ga. 131 (3) (30 S. E. 688).

The note in question was dated September 29, 1920. That was the day of the sale, which was at auction. The conversation between Knowles and Bitting, the cashier, took place about three days thereafter. The bank acquired the note for value some twelve to fifteen days later. It was due January 1, 1921. If Knowles had imparted to Bitting the information that this note had been executed and was in the possession of Medlin, but that the completion of the transaction was in abeyance, this with the other facts testified to by him would have presented an entirely different situation. Whether in those circumstances the bank might have been charged with notice is clearly not a question for decision under the record. Bitting was merely told that the papers had not been fixed up, and that it looked like Medlin was not “going to be able to fix them up.” This note “was not mentioned.” When Medlin thereafter produced the note at the bank and offered to negotiate it, the cashier was authorized to assume that the conditions discussed with Knowles no longer existed, that the papers had been subsequently “fixed up,” and that the transaction with reference to the contract of sale had been satisfactorily closed. The fact that the note bore date prior to the conversation between Knowles and Bitting does not alter the case, because Bitting, as a prudent person, was warranted also in assuming either that the note had been antedated to correspond with the actual day of the sale, or that, if signed upon the day of its date, it was delivered subsequently to the conversation referred to, upon a satisfactory adjustment of the differences between Medlin and the defendants. Thus, while a part of the information received by Bitting from Knowles would probably have been sufficient, if standing alone, to charge the bank with notice, or to place the bank, as a prudent person, upon its guard, it was'not so when considered with the further statements by Knowles in the same connection that the papers had not been “fixed up.” The statements last referred to tended equally to put the bank off its guard hs to the note later offered for negotiation.

We conclude that the evidence did not authorize the inference that the bank, in purchasing the note, had notice of the defense asserted. The holder of a note is presumed to be such bona fide and for value. If either fact is negatived by proof, the defendants are let in to their defenses. Civil Code (1910), § 4388. Neither fact was negatived in this case, and the verdict found for the defendants was-without evidence to support it.

In view of what is said above, it is unnecessary to discuss in detail the several grounds of the amended motion for a new trial. The 1st, 3d, 3d and 4th grounds of the amendment thereto were but amplifications of the general grounds. We hold that the defendants failed to establish their defense solely for the reasons stated in the preceding division of this opinion. Grounds 5 and 6 assign error upon certain parts of the charge of the court, submitting to the jury the question of notice. These instructions were in accordance with the code and the decisions upon that subject, and were not erroneous for any reason assigned, except that they were unwarranted by the evidence. These assignments are sustained. There was no error hurtful to the plaintiff in either of the charges excepted to in the two remaining grounds of the motion. The court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

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


author: BARNES, Presiding Judge.

text:
    A12A1731.
    SHANE v. THE STATE.
    (739 SE2d 9)
   BARNES, Presiding Judge.

James Edward Shane appeals the trial court’s grant of an entry of nolle prosequi, arguing that the trial court erred in failing to grant his motion to quash the indictment against him instead. Because we find no abuse of discretion, we affirm.

Shane was indicted on four counts of aggravated child molestation and two counts of child molestation. The indictment alleged that he committed the criminal acts between June 1, 2010 and May 25, 2011, and Shane moved to quash it, arguing that the State was capable of narrowing the date range but had made no effort to do so. At a hearing on the motion to quash, the State conceded that Shane had been incarcerated for several months during this time period and stated that a grand jury had reindicted Shane that morning with a narrower date range. The State asked the court not to rule immediately on the motion to quash and allow it instead to present a nolle prosequi that afternoon or the next day, so that Shane would not be released from bond. The State also noted that if the court quashed the indictment and a problem arose to cause the second indictment also to be quashed, the State would be unable to reindict Shane. Later that day, the trial court consented to the entry of nolle prosequi “based on the language of Layman v. State, 280 Ga. 794 [(631 SE2d 107)] (2006) since there is no allegation or evidence of abuse by the State.”

Shane argues that under State v. Dempsey, 290 Ga. 763 (727 SE2d 670) (2012), the trial court should have granted his meritorious motion to quash instead of consenting to the entry of a nolle prosequi.

Decided February 26, 2013.

Whitmer & Law, George H. Law III, for appellant.

In Dempsey, the trial court denied the defendant’s motion to quash because it was not filed before the indictment was returned, and did not show that he was without actual or constructive knowledge that the grand jury was composed illegally. Id. at 765. The State reindicted Dempsey and moved for an order of nolle prosequi on the first indictment. Id. The trial court consented to the nolle prosequi, then Dempsey successfully moved to quash the second indictment. Id. He appealed the trial court’s denial of his first motion to quash because if it had been granted, upon the grant of the second motion to quash, the State could not have reindicted him a third time under OCGA § 17-7-53.1. The Supreme Court agreed with Dempsey on appeal that the trial court should have granted his motion to quash the first indictment because that grand jury had been illegally composed, and under OCGA § 17-7-110, the motion hadbeen timely filed. Id. at 766.

In this case, Shane argues that the trial court erred in failing to grant his motion to quash and instead allowing the State to enter a nolle prosequi, because “if an indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment is subject to a special demurrer.” State v. Layman, 279 Ga. 340, 341 (613 SE2d 639) (2005). But the Supreme Court reversed the trial court in Dempsey because the trial court made a legal error when it denied the motion to quash based on when the motion was filed. Here, the trial court made no legal error, but simply deferred ruling on the motion until the State submitted its nolle prosequi order.

“The trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of OCGA § 17-7-53.1.” State v. Lejeune, 276 Ga. 179, 184 (4) (576 SE2d 888) (2003). The fact that Shane’s motion to quash was pending when the nolle prosequi was entered “does not change the analysis.” Layman, 280 Ga. at 795. Accordingly, the trial court did not abuse its discretion in this case.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

Lee Darragh, District Attorney, Hugh M. Hamilton, Wanda L. Vance, Assistant District Attorneys, for appellee.

       Pursuant to OCGA § 17-7-53.1, “If, upon the return of two ‘true bills’ of indictments ... by a grand jury on the same offense,... the indictments... are quashed for the second time,... such actions shall be a bar to any future prosecution of such defendant for the offense. . . .”

       “All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”


author: Branch, Judge.

text:
    A12A1793.
    BOLEN v. THE STATE.
    (739 SE2d 11)
   Branch, Judge.

Tyrone Bolen appeals his judgment of conviction and sentence of misdemeanor possession of marijuana, obstruction, and failure to have lights on a bicycle. He contends the trial court erred by denying • his motion to suppress.

The State has the burden of proving that a search was lawful. State v. Hammond, 313 Ga. App. 882, 883-884 (723 SE2d 89) (2012). On appeal of the denial of a motion to suppress, we construe the facts in favor of the trial court’s findings, uphold the court’s findings unless clearly erroneous, and review de novo the trial court’s application of the law to the facts. Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011); Herrera v. State, 288 Ga. 231, 233 (2) (702 SE2d 854) (2010).

The evidence presented at the hearing on the motion to suppress shows that at 6:19 p.m. on February 3, 2012, as it was “starting to get dark,” two officers for the City of Waycross were riding in their marked patrol car when they saw Bolen riding a bicycle on the street without any headlights. The officers stopped, got out of the car, and approached Bolen from behind. As they did, they saw Bolen look back and then start to shove something into a bag that was attached to the front handlebars, leaving part of the object protruding from the bag. The officers could not, however, tell what the object was and therefore did not suspect it contained contraband at that time. Officer Chance then told Bolen that he had stopped him because his bicycle did not have headlights, and Chance obtained Bolen’s name, date of birth and other information while Officer Tatum checked Bolen’s license to see if there were any outstanding warrants. Chance then asked for permission to search Bolen’s person, to which Bolen consented. Chance did not find anything illegal.

Chance then asked if he could look in the bag on the handlebars. Bolen said no but got nervous and started shaking, and he started trying to stuff the protruding object further into the bicycle bag. As Bolen did so, Tatum “reached for [Bolen’s] hand for my safety and Officer Chance’s,” and, at that point, with the aid of a flashlight that Tatum was holding with his other hand, both Chance and Tatum saw a green, leafy substance inside a plastic bag that was inside the bag attached to the handlebars, which they believed to be and later proved to be marijuana. Tatum told Bolen that he was under arrest and tried to put Bolen’s hand behind his back. When Bolen broke away and moved toward Chance, Tatum dropped the flashlight and reached for his taser. Bolen fled but was soon caught and arrested. On the ground next to the bicycle, the officers also found a cigarette box containing marijuana.

Bolen’s testimony conflicted with the officers’ in several ways. He testified that Chance never said anything about a bicycle light. He admitted that the manner in which the officers approached him made him nervous. He testified that the officers came very close to him and asked him if he had any guns. Bolen denied having guns but then, in response to a request, consented to a search of his person. The officers searched him as he was straddling his bicycle and even made him take off his shoes without getting off of the bicycle. When Bolen started to reach in his pocket to get his identification, the officers said to stop and then told him to put his hands on the bicycle; one officer then took Bolen’s license out of his pocket. After Bolen denied consent to search the bag, Chance tased him while he still had his hands on the handlebars. Bolen testified that at one point Chance tried to reach for the bag but that he — Bolen — put his hand over it and said no, “you cannot search my bag.” He denied, however, reaching into the bag. He testified that both officers tased him when they caught him after he fled. Bolen admitted possession of the marijuana found in the bag attached to the handlebars, as well as the marijuana found in the cigarette box.

“ ‘There are at least three types of police-citizen encounters: verbal communications that involve no coercion or detention; brief stops or seizures that must be accompanied by a reasonable suspicion; and arrests, which can be supported only by probable cause.’ ” (Citation and punctuation omitted.) In the Interest of D. H., 285 Ga. 51, 53 (2) (673 SE2d 191) (2009). For a “brief stop or seizure” to be valid, “an officer must identify specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity.” Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). Here, the officers testified that they saw Bolen riding his bicycle after dark without a headlight. Thus, the officers had articulable suspicion to believe that Bolen was operating his bicycle in violation of OCGA § 40-6-296 (a), which requires that bicycles “in use at nighttime shall be equipped with a light on the front.” See, e.g., Hammond, 313 Ga. App. at 886 (officer had authority to conduct tier-two stop on cyclist, in part because the cyclist was riding without a required headlight). Thus the stop itself was proper. At that point, the officers were “permitted to expand the detention into unrelated offenses. The officer may question the motorist about anything and may ask for consent to search, as long as the questioning does not unreasonably prolong the detention.” (Footnote omitted.) Hayes v. State, 292 Ga. App. 724, 728 (2) (665 SE2d 422) (2008). See also Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006) (“The Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer questions the driver or occupants of a vehicle and requests consent to conduct a search.”).

Decided February 26, 2013.

Bryant H. Bower, Jr., for appellant.

Joseph R. Johnson, Jr., Solicitor-General, for appellee.

Next, there was an issue of fact as to whether Chance asked for consent to search the bag and whether Bolen’s own actions revealed the marijuana in the bicycle bag to the officers. The trial court specifically recognized that there was an issue of fact about Bolen’s hand movement toward the bag: the officers testified that Bolen reached into it in an attempt to further secure what was protruding, whereas Bolen testified that he was reaching to cover up the bag as a part of refusing consent to search the bag. At the conclusion of the bench trial, the trial court denied the motion to suppress without explanation, which we must construe as resolving the facts in favor of the officers. See, e.g., Tune v. State, 286 Ga. App. 32, 33 (648 SE2d 423) (2007) (facts to be construed in favor of trial court decision even when trial court offered no explanation for decision). We therefore conclude that the court found that Chance asked for consent to search and that Bolen reached into the bag and thereby exposed the contents to the officers, for which finding there was evidentiary support. At that point, the marijuana was in plain view. Accordingly, the officers were authorized to seize it and arrest Bolen. Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994) (officers authorized to seize bag of marijuana in plain view protruding from defendant’s pocket). We find no error.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.