text:
    17320.
    BANK OF BULLOCHVILLE v. RIEHLE.
    1. In this action upon a note for purchase-money of land, the defendant’s answer, as amended, when considered on general demurrer only, constituted a valid plea of damage by material misrepresentations as to the location of the boundaries of the tract sold.
    2. The evidence, however, failed to sustain the plea or to prove any other lawful defense, and the finding of the court without a jury, in favor of a partial abatement of tlic puveliaso-money, was contrary to tlie evidence and without evidence to support it.

      Deeds, 18 O. J. p. 260, n. 38.
    Fixtures, 26 C. J. p. 676, n. 21.
    Pleading, 31 Cyc. p, 306, n. 1.
    Vendor and Purchaser, 39 Oye. p. 1959, n. 26; p. 1973, n. 28.

      Decided February 26, 1927.
    Complaint; from city court of Greenville — Judge Tuggle presiding. March 22, 1926.

      N. F. Culpepper, R. A. McGraiu, for plaintiff.

      Terrell & Terrell, for defendant.
   Bell, J.

The Bank of Bullochville brought suit upon a promissory note against H. C. Biehle, the maker. The defendant filed an answer and several times amended it, the plaintiff at all times demurring. The plaintiff’s demurrers were overruled, and, the case having gone to trial before the judge without a jury upon the issues as made by the answer as amended, and the trial having resulted partially in favor of the defendant, and the plaintiff’s motion for a new trial having been overruled, the plaintiff excepted. The chief burden of the plaintiff’s demurrers was the general insistence that the answer set forth no valid defense. Various allegations of the so-called special demurrers were but amplifications of this contention. One of the special demurrers criticized the answer because it set forth no definite or correct measure of damage, but the demurrer as to this point, having failed to point out any proper or correct measure, was not better than the answer. Such other grounds of special demurrer as might at some stage have been meritorious were sufficiently met by amendments to the answer. Thus, the only question for determination on the exceptions to the overruling of the demurrers is whether the court erred in not sustaining the general demurrers, or, in other words, 'whether the answer set forth any defense. ■ The answer as amended alleged: The note had been executed for- part of the purchase-money of certain real property to which the plaintiff executed and delivered to the defendant a bond for title. Although -the defendant’s original contract to purchase was made with one W. B. Butts, the obligations of the latter were assumed by the plaintiff bank, so that the bank, and not Butts, issued to the defendant the bond for title. In that instrument it was recited that the defendant had paid the sum of $2,000, and it was stipulated that upon payment of the further sum of $3,000, as evidenced by the defendant’s note payable to the bank, the bank would make to the defendant good and sufficient title to the following property in this State: “A certain tract or parcel of land situated, lying and being in the town of Bullochville, Meriwether county, and described as follows: the entire coffin manufacturing plant of the Bullochville Casket Company, together with all buildings connected therewith and all machinery and materials now owned by said company and plant. The said manufacturing plant is located in said State and county and in said town- and district, and "the same included all of town lot 5 and lot 6 in block D of the town of Bullochville, and containing one acre more or less, all of which is bounded as follows: north by the right of way of A. B. & A. By., east by land of Mrs. Ida May Brooks, south by Broad st., west by lands of B. H. M. Guano Co.” A part of this property, namely, a certain line of'Water-pipe and a concrete tank, a portion of one building, all of another building, and the dry kiln were situated on the lands of others, who had respectively demanded of the defendant that he surrender possession thereof. Lot 5 is also in the possession of another, while the defendant is in possession of lot 6 only. “The difference in the value of the property he is in possession of and the other property herein referred to which is claimed by the parties hereinabove mentioned who have outstanding paramount titles to same is the sum of $3,000, and he therefore seeks an abatement in the purchase-price in the sum of $3,000.” The defendant did not at any time think or suspect that any part of the buildings or of the machinery was on any other land than lots 5 and 6, but, in good faith relying upon representations made to the defendant “by the said W. B. Butts and the said plaintiff” that such buildings and appurtenances were so situated, he entered into the contract of purchase and accepted the bond for title. “Said W. B.’ Butts and plaintiff represented that all of the plant and said buildings were on the land sold defendant, which representations were fraudulent and a fraud [was] perpetrated on defendant.” One of the amendments to the answer shows that the lots, while sold as numbers 5 and 6, were intended as numbers 6 and 7. The defendant purchased the property believing from the plaintiff’s representations that all of the buildings were situated on these lots (6 and 7), to which the plaintiff delivered possession to the defendant. The defendant purchased the property as a plant and factory for the manufacture of coffins, and, because certain of the buildings and appurtenances are situated on the property of others, he is damaged in the sum of $4,500, in that it would cost this amount to remove the buildings and locate them upon the lots purchased, in. a manner suitable to the business, such removal being necessary to enable the defendant to carry on the business of manufacturing caskets. This alleged damage being in excess of the amount of the note sued on, the amended prayer of the answer was to recover of the plaintiff the, excess. In a final amendment to the answer the defendant alleged, “that the said W. B. Butts pointed out and described all the buildings and plant purchased from him by defendant as being on the land described in said bond for title; that the contract and agreement made and entered into by and between the defendant and the said W. B. Butts including an inventory of the property, all of which is attached, and the entire contract was taken over by the plaintiff in this case, the Bank of Bullochville, and the said Butts’ agreement and contract including said inventory, and all of said representations made by said Butts were known, assumed, and taken over by said bank when and at the same time said bond for title was executed by said bank to said defendant; and the said Butts and the said bank were acting in concert and together in the making and executing said bond from the bank to said defendant, and each well knew the acts and conduct of the other and participated in and ratified all of said representations, acts, and conduct as set forth in defendant’s answer and amendment thereto, and both the said Butts and the said bank well knew that the said bank could not make this defendant good and sufficient title to all the property that defendant was put in possession of by plaintiff under its said bond for title.” The contract and inventory referred to as being attached to the amendment quoted above do not appear from the record in this court to have been so attached.

While the answer as first drawn alleged that the defendant purchased lots 5 and 6 and was not in possession nor able to obtain possession of lot 5, it appeared from allegations made by amendment that the defendant, being in possession of lots 6 and 7, was not complaining of his want of possession of lot 5, and that he was in peaceful possession of all of the property which he claimed the plaintiff was obligated to convey to him, including all buildings and appurtenances.

There is no contention that the defendant, with the exception of the houses, the pipe line, and the concrete tank (all of these, except where otherwise stated, to be hereinafter referred to as houses or buildings), failed to acquire all of the property that he bargained for. The complaint is that the houses, or a part of them, which the plaintiff contracted to. convey to the defendant should, according to representations, have been situated on lots •6 and 7, whereas they were located on lands belonging to other persons, and for that reason plaintiff can not make good title thereto. In other words, the answer makes no complaint that the plaintiff was to convey to the defendant any land except the two lots and the buildings that were thereon or that should have been thereon. The defendant may have intended to plead the loss of these buildings, considered as a part of the land, through a defect of title, and to claim a reduction of price according to the relative value of the “land” lost, under the provisions of section 4124 of the Civil Code (1910). Assuming that such was the pleader’s purpose, there was a complete failure to show any dam-, age recoverable under this section. The only allegation which could have been designed to state any damage resulting from the loss of a part of the land from defect of title was that the difference between the value of the property of which the defendant is in possession and the value of the property of which he is not in possession is $3,000. In this averment there is absolutely no hint of the value of the buildings alleged to have been lost, nor is there anything here to show any damage whatever, either by the correct measure or by a wrong measure. However, the allegations that the buildings were represented to be situated on lots 6 and 7 when they were located elsewhere is the same as averring that the boundaries of these lots were represented as being so located as to include the buildings, and the answer as a whole constituted a valid plea of material misrepresentations made by the bank through Butts as its representative, as to the location of the boundaries of the land bargained for, and thus as to the extent and contents of the tract sold. On the question of whether the defendant, in alleging the cost of removing the buildings, set forth the correct measure of damage, it is only necessary to say that the mere fact that the defendant may have claimed the wrong measure would not render the answer subject to general demurrer. Smith Co. v. Strickland Cotton Mills, 6 Ga. App. 522 (65 S. E. 320); Baxley Tie Co. v. Simpson, 1 Ga. App. 670 (57 S. E. 1090); Harley Hardware Co. v. Lafond Co., 28 Ga. App. 584 (4) (112 S. E. 394); Ford v. Fargason, 120 Ga. 708 (6) (48 S. E. 180); Civil Code (1910), § 4633. It follows that the exceptions to the overruling of the general demurrer invoked no decision as to what is the correct measure of damage. Furthermore, in view of what we shall say later on, we do not think the question can become pertinent in this case. It certainly can not, under the present record. But see, in this connection, Smith v. Kilpatrick, 79 Ga. 410 (2) (7 S. E. 258); Folsom v. Howell, 94 Ga. 112 (2) (21 S. E. 136); Briesenick v. Dimond, 35 Ga. App. 668 (6) (134 S. E. 350); Mayor &c. of Savannah v. Spalding Construction Co., 29 Ga. App. 792 (116 S. E. 346); and, as to duty to reduce damage, Civil Code (1910), § 4398; Athens Mfg. Co. v. Rucker, 80 Ga. 291 (4) 4 S. E. 885); Holbrook v. Norcross, 121 Ga. 319 (2) (48 S. E. 922); Jeter v. Davis, 33 Ga. App. 733 (127 S. E. 898). While, as we have seen above, the defendant’s first attempt at alleging damage was wholly futile, we can not make such ruling with regard to the answer as a whole, in view of the allegations as to damage in the sum of $4,500 as set out.

Our conclusion that the answer constitutes a valid plea of material misrepresentations as to the location of the boundaries of the land sold is deemed not to be in conflict with the rule as stated in Black v. Walker, 98 Ga. 31 (26 S. E. 477), notwithstanding it affirmatively appears that the defendant was in possession of all the property which he claims the plaintiff was obligated to convey. If the rule laid down in that case can have any application to a plea of misrepresentation of boundary lines, the requirements of such rule were satisfied in the present case, the plea having sufficiently alleged actual moral fraud (Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799 (2), 43 S. E. 79), although it is not always necessary to allege such actual fraud in a claim of damage by misrepresentations as to the location of boundaries. Civil Code (1910), § 4623; Allison v. Nunn, 34 Ga. App. 561 (130 S. E. 364), and cit. Even if it could be said that without such allegation the plea in this case would have been fatally defective under the doctrine of the Black case, supra, yet, since the allegation was here in fact made, the case would seem to fall within one of the exceptions to the rule enunciated in that case. In our opinion, the court did not err in overruling the general demurrers to the defendant’s answer as amended. See, .in this connection, James v. Elliott, 44 Ga. 237; Smith v. Kilpatrick, 79 Ga. 410 (2) (7 S. E. 258); Folsom v. Howell, supra; McCrary v. Pritchard, 119 Ga. 876 (7) (47 S. E. 341); Edenfield v. Rountree, 33 Ga. App. 444 (126 S. E. 731).

Our conclusion as stated above is necessarily predicated upon the allegation, among others, that the plaintifE bank knew, participated in, and ratified all the representations of W. B. Butts as set forth in the answer and the amendments thereto, and acted in concert with him in such matters. According to the plea, it was only through Butts that the bank made any representations as to the location of the boundaries. We find that the case as made by the evidence is entirely different from that made by the pleadings. According to the. evidence, the defendant’s original contract of purchase was made with Butts, from whom the defendant was later to have a bond for title. Butts, however, was indebted to the bank, and the bank held title to the property as security for the debt. To avoid a circuity and to liquidate the debt in part, it was agreed among all parties concerned that the defendant’s note of $3,000 for deferred payment should be made payable to the bank, and should be accepted by the bank in discharge to that extent of the obligations of Butts, and that the bank would execute to the defendant a bond for title to the property. This agreement was carried out by the execution of the papers accordingly. There is nothing to show that the bank had any other connection whatever with the transaction. If representations were made by Butts as to the location of the boundaries, they were made during the original negotiations and not in behalf of the bank. He was not at any time the agent of the bank, and, so far as appears, the bank had no knowledge of any such representations, at the time it executed the bond for title. The bank was not-bound by the previous statements of Butts merely because it held title to the property to secure an indebtedness by Butts and agreed to execute and did execute the bond for title in pursuance of the previous contract between Butts and the defendant. Weaver v. Stoner, 114 Ga. 165 (39 S. E. 874). It follows that the defendant utterly failed to establish his plea of damage by misrepresentations as to the location of the boundaries of the property sold. Perhaps we could with propriety conclude the case here; but, since in our opinion the character and effect of the defendant’s testimony and the absence of any evidence of misrepresentations to which the bank was a party render applicable other principles of law under which the result attained in the lower court was wrong, we will examine the case further in the light of such principles.

The defendant testified: “I made the trade with my brother, which was confirmed by Mr. Butts. My brother was acting as agent for Mr. Butts. I did not know where the north boundary line was located. That line pointed out to me as being the true line between the right of way and this property that I bought, lots 6 and 7, was a siding running along by the side of these buildings. That was pointed out as my line by my brother, O. A. Riehle. I am in possession of all buildings, and they belong to me when I pay the bank the money. I don’t anticipate any trouble to that from the railroad company, the title to them is mine, the only thing is to move them off if they order them to be moved.” “I am in possession of each and every building that was sold to me by Mr. Butts.” “The land that I am now in possession of is bounded just as it is bounded in this bond for title, this bond here, north by the right of way of the A., B. & A. railroad.” “I don’t make any claims to lot No. 5. . . I am in possession of lot No. 6 and lot No. 7.” “I did not buy any property except the property known as the property of the Bullochville Casket & Manufacturing Company.” “Butts gave me possession of all of the plant and all of the buildings which are on this inventory, that is, all the ground and all the property listed on this inventory” (a list of all property involved in the sale, which list was furnished to the defendant at or prior to his original contract with Butts). “I am operating this property just as it was turned over to me by Butts.” “I told Butts that I was unwilling for him or the bank to move the property off of the right of way.” “I am going to move as soon as I am pleased to do so. I am not going to be pleased to do so until this is settled. The plans I have made about moving the buildings off the right of way, I have had a man to figure and give me the cost of moving them. I paid him money for making the estimate. I had no contract with him to move. I can not say that I contemplate making a contract with him or anybody else to move. I refuse to say whether I have the remotest idea of paying $4,000 to get this property removed. 1 can not say I contemplate moving.”

Counsel for the defendant, in their brief, make the contention, among others, that under the terms of the bond for title the bank was obligated to convey not only the two lots specifically mentioned and described, but certain buildings elsewhere located, including the “land” upon which they had been erected, and that although the bank may be in position to give title to the buildings, it can not make title to the lands on which they are situated, except as to those buildings or parts of buildings which are located on the two lots specified. It appears that the court below decided the case upon this theory. Whether or not this be the proper construction of the contract and one that may be urged under the plea as framed (compare 18 C. J. 760, § 216; 26 C. J. 676, § 39; 2 Devlin on Deeds, 2298; Powers v. Harris, 68 Ala. 409; Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. 580; Hood v. Whitwell, 120 N. Y. Supp. 372, 66 Misc. 49; Wilson v. Wightman, 36 App. Div. 41, 55 N. Y. Supp. 806; Warren v. Blake, 54 Me. 276, 89 Am. D. 748), since it appears from undisputed evidence that the defendant continued in peaceful possession of all of the property described in the bond, and since the plea of damage by misrepresentation of the location of the boundaries was unsupported, and since there was nothing to show fraud, insolvency, or nonresidence on the part of the bank, or other facts to justify an equitable interference with the carrying out of the contract, the rule declared in Blach v. Wallcer, supra, becomes operative. In that case the Supreme Court said: “The maker of promissory notes given for the purchase of land of which such maker holds undisturbed possession under a bond from the vendor, conditioned to make to the former a good and sufficient title to the land upon payment of the notes, can neither voluntarily rescind the contract of purchase nor defeat the collection of the notes, upon the ground that the vendor has not in fact a good title to the land in question, without showing clearly that there is a paramount outstanding title against the vendor, and also proving fraud upon his part, or that he is insolvent, or a nonresident, or else proving other facts which would authorize equitable interference with the carrying out of the contract as made.” See further, in this connection, McGehee v. Jones, 10 Ga. 127; Mallard v. Allred, 106 Ga, 503 (32 S. E. 588); Couch v. Crane, 142 Ga. 22 (9) (82 S. E. 459); Henderson v. Fields, 143 Ga. 547 (85 S. E. 741; Newton v. Bowen, 146 Ga. 524 (91 S. E. 684); Reeves v. Lasseter, 29 Ga. App. 490 (115 S. E. 925); Reid v. McCune, 30 Ga. App. 49 (116 S. E. 554).

We think the judgment of the court below was wrong for a further reason, — and there may be yet others which we do not mention. As we have seen above, the only damage alleged in the plea consisted of the cost and expense of removing the buildings and of placing them upon the two lots described, such removal, according to the plea, being necessary in order to enable the defendant to carry on the business of manufacturing caskets. These averments with respect to damage were not sustained by the evidence. The defendant saw the buildings and knew their situation and relative positions when he entered into the contract of purchase. His present sole complaint is that they are located on the lands of others. However, he is enjoying the use of them and they are serving the purposes for which he bought them. With the exception of the pipe line and the concrete tank, used for the purpose of supplying water, there is nothing to show that the defendant’s eviction from any of the property by the true owner is imminent or will be ever attempted. Save as to the property referred to in the exception just stated, the railway company is the only person by whom the defendant could be molested, the plaintiff having purchased the lands on which all the other buildings in question were located. The defendant’s testimony shows that he is not expecting any trouble from the railway company, and all the damage which the trial court allowed to him in abatement of the purchase-money related to the prospective cost of removing the buildings from the property of that company; whereas the only inference deducible from the defendant’s testimony is that he does not contemplate having to remove the buildings, or removing them, at any time. Under his own testimony the only damage for which he attempts to assert claim has not been sustained and may never be sustained, and is therefore too remote and speculative to be the basis of a recovery, whether arising from, fraud or from breach of contract. Civil Code (1910), §§ 4395, 4394, 4502, 4508, 4509, 4510.

Since the defendant, under the evidence, was not entitled to any abatement or recoupment whatever, and may never be, it is unnecessary to determine what would be the correct measure of damage if any right to damages had been shown. This is what we meant when stating in the first division that the question of the correct measure of damage is not presented by the present record.

Whether or not the defendant may have a cause of action against some other person is a question with which we are not now concerned. In the present case the evidence established neither the defense pleaded nor any other defense under the law.

From what we have said, it is unnecessary to deal with the several special grounds of the motion for a new trial. However,, under the rulings herein made, a number of them were well taken. The finding by the trial judge, acting without a jury, to the effect that the defendant was entitled to an abatement of the purchase-money to the extent of $2,000, was contrary to the evidence and without evidence to support it, and the general grounds of the plaintiff’s motion for a new trial should have been sustained.

We have carefully examined the decision of the Supreme Court in Riehle v. Bank of Bullochville, 158 Ga. 171 (123 S. E. 124), in which case the present defendant excepted to the judgment of the superior court refusing an injunction against the prosecution of the instant case in the city court, and nothing which we hold herein is contrary to anything decided in that case.

Judgment reversed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    17332.
    SMITH BROTHERS COMPANY v. CHARLESTON & WESTERN CAROLINA RAILWAY COMPANY.
    One who acts as agent for another in receiving from a railway carrier a shipment of goods is not liable to the carrier for the amount of freight due in case of aii undercharge, in the absence of facts justifying an estoppel by which he should be prevented from showing such agency. Under this principle the defendants in this ease were not liable for the undercharge sued for. The verdict in the plaintiff’s favor was unauthorized and must be set aside.
    Decided February 26, 1927.
    Complaint; from Richmond superior court — Judge A. L. Franklin. March 19, 1926.

      Callaway & Howard, for plaintiff in error.

      Cumming & Harper, contra.
    Carriers, 10 C. J. p. 445, n. 15; p. 446, n. 31; p. 447, n. 42.
   Bell, J.

Charleston & Western Carolina Bailway Company brought suit against Smith Brothers Company to recover the_ amount of freight charges due after payment of an undercharge. The court directed a verdict in favor of the plaintiff and the defendants have brought the case here by direct exceptions. The assignments of error do not raise the question as to whether there were issues of fact which should have been submitted to the jury, but seek reversal solely upon the ground that the verdict was unauthorized under the pleadings and the evidence. See Gilliard v. Johnston, 161 Ga. 17 (129 S. E. 434). These were the facts: Cooperative Eederée de Quebec was the owner and shipper of a carload of hay, delivered to Montreal Bailway Company at St. Aime, Quebec, Canada, under a bill of lading issued by that company calling for delivery to the order of the shipper, notify J. J. Langley, at Plum Branch, South Carolina. The bill of lading was indorsed by .the shipper to Bank Dhochelaca, and by the latter indorsed to the order of the Merchants National Bank of Baltimore. It contained the following provisions: “It is mutually agreed, as to each carrier of all or any of said goods over all or any portion of said route to destination, and as to each party at any time interested in all or any of said goods, that every service to be performed hereunder shall be subject to all conditions herein contained and which are agreed to by the shipper and accepted for himself and his assigns. The surrender of the original order bill of lading properly indorsed shall be required before the delivery of the goods. Inspection of the goods covered by the bill will not be permitted unless provided by law or unless permission is indorsed on the original bill of lading or given in writing by the shipper.” “The owner or consignee shall pay the freight and average, if any, and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.”

Langley refused the shipment on its arrival at Plum Branch, and the car containing it remained there for several days on demur-rage. The original bill of lading, having been acquired by Southeastern Molasses & Hay Company, of Columbia, South Carolina, was surrendered by that company to the Charleston & Western Carolina Company, the plaintiff, for a reconsignment of the shipment, which was made under a new bill of lading issued by that railway company, at Plum Branch, in which Cooperative Federée de Quebec was again the consignor, and under which delivery was to be made .to the order of the consignor, notify Lamb & Hollingsworth, Augusta, Georgia. This bill of lading contained the same conditions as those in the first bill above quoted. Lamb & Hollingsworth were merchant brokers in Augusta, Georgia, and Southeastern Molasses Company notified them of such shipment of hay to Augusta. Lamb & Hollingsworth sold the hay to Smith Brothers, the present defendants, for $392, — “that was the total amount Smith Brothers were to pay.” The Molasses Company had notified Lamb & Hollingsworth of having drawn on them “for the full gross amount through the bank with instructions to the bank -to accept as cash in part payment of this draft the expense bill.” The railway company had given notice to Lamb & Hollingsworth, from its office at Augusta, Georgia, that the freight due on the shipment was $182.95. This notice was given before the sale to Smith Brothers and was “turned over” to them by Lamb & Hollingsworth, “along with the original memorandum invoice of the shippers.” Under the agreement between Lamb & Hollingsworth and Smith Brothers the latter were to pay the freight and present the receipted freight bill “to the bank as a part payment and pay the bank the balance of the draft.” The shipment, on its arrival at Augusta, had been stored in a public warehouse, operated by another, who delivered it from the warehouse to Smith Brothers. The bank that handled the draft and the bill of lading received payment from Smith Brothers, “in a receipted freight bill of $182.95, and the balance of $209.05 by their check.” Smith Brothers paid to the railway company the amount of freight demanded. It later developed that the sum paid was $80.19 less than the amount due, and this difference is the subject-matter of the present suit.

In our opinion the defendants were not liable, and the verdict and judgment should be set aside. It has been stated broadly in many decisions, some of them by the courts of this< State, that a common carrier may collect freight charges on goods either from the consignor or consignee unless it has entered into a special contract binding itself to collect the charges from one of them only. Seaboard Air-Line Ry. Co. v. Montgomery, 28 Ga. App. 639 (112 S. E. 652); Southern Cotton Oil Co. v. So. Ry. Co., 147 Ga. 646 (95 S. E. 251). As to. interstate shipments this rule would seem to require some modification, in view of the decision of the Supreme Court of the United States in Louisville & Nashville R. Co. v. Central Iron &c. Co., 265 U. S. 59 (44 Sup. Ct. 441, 68 L. ed. 900). In that case the Supreme Court said: “Where the payment is deferred, the contract may provide that the shipper agrees absolutely to pay the charges; or it may provide that he shall pay if the consignee does not pay the charges demanded upon delivery of the goods. Or the carrier may accept the goods for shipment solely on the account of the consignee; and knowing that the shipper is acting merely as agent for the consignee, may contract that only the latter shall be liable for the freight charges. Or both the consignee and shipper may be liable. Nor does delivery of goods to the carrier necessarily import, under the general law, an absolute promise by the shipper to pay the freight charges. . . To ascertain what contract was entered into we look primarily to the bills of lading, bearing in mind that the instrument serves both as a receipt and a contract. . . Ordinarily, the person from whom the goods are received assumes the obligation to pay the freight charges; and his obligation is ordinarily a primary one. This is true even where the bill of lading contains a provision imposing liability upon the consignee. For the shipper is presumably the consignor; the transportation ordered by him is presumably on his own behalf; and a promise by him to pay therefor is inferred as a promise to pay for goods is implied, when one orders them from a dealer. It may be shown by the bill of lading or 'otherwise that the shipper of the goods was not acting as owner; that this fact was known by the carrier; that the parties intended not only that the consignee should assume an obligation to pay the freight charges, but that the shipper should not assume any liability whatsoever therefor, or that he should assume only a secondary liability.” In that case it was ruled that “To enforce payment oE freight charges by a shipper only secondarily liable, the carrier must first make effort to collect from those primarily liable.” But the doctrine was still adhered to, as laid down in Pittsburg &c. R. Co. v. Fink, 250 U. S. 577 (40 Sup. Ct. 27, 63 L. ed. 1151), that “A consignee by accepting the shipment becomes liable as a matter of law for the full amount of the tariff charges, whether they are demanded at the time of delivery or not.”

In St. Louis Railway Co. v. Republic Box Co., 12 Fed. (2d series), 441, decided by Judge Hutcheson of the southern district of Texas, the Box Company delivered to a railway company for shipment to East St. Louis, on bills of lading declaring the railway company the shipper and the Eastside Packing Company the consignee. There was no testimony as to the ownership of the freight. The Box Company gave to the joint agent of the receiving carrier and other companies, in charge of the freight office of such companies, having general authority to control the routing of shipments, instructions to “ship cars over the Gulf, Colorado & Santa Fé Company at a rate of 32-% cents.” The legal rate on the route taken was 65 cents per hundred, whereas by a different route the correct rate would have been only 32-% cents. This rate only was charged. It was later discovered that 65 cents should have been collected. The question was whether the Box Company was liable for the difference. In the opinion in that case the court said, “But it is also true that courts will not literally enforce rates where the individual circumstances of the particular case make it certain that the invocation of the principle is an absurdity; for while it must be admitted that the theory of uniformity has made it very difficult to do justice in the individual case, the Supreme Court did, in St. Louis R. Co. v. Spring River Stone Co., 236 U. S. 718, find itself able to apply, reason in the application of the rule, and in L. & N. R. Co. v. Central Iron &c. Co., 265 U. S. 70 [supra], announce a rule for the application of the principle which will go far toward relieving shippers of the burden now unreasonably imposed upon them to know the tariff better than railroad agents do, while compelling railroad companies and their agents to exercise ordinary care and good faith in quoting and applying rates, or to abide the consequences of their failure to do so. If, as a result of this decision, these questions of undercharge will be disposed of as they should have been from the beginning, with an eye as much to the practical injustice of the particular case as to the sanctity of the general rule, the business of shipping freight will not be as perilous to the shipper as it has been, and a rule against discrimination designed to protect shippers will not be, as it has often been in the past, a sword to destroy them.” A similar case to that from which we have just quoted is Cincinnati R. Co. v. Beveridge, 8 Fed. (2d) 372. See also Davis v. Akron Co., 296 Fed. 675. We may concede in the present case, however, that the defendants would be liable if they were consignees. Indeed, under tbe authorities, there seems to be no escape from this view. We think, though, that all the decisions to the effect that consignees who accept the goods are liable for the freight, even in cases of undercharges, where both the agent of the carrier and the consignee are ignorant in fact of .the correct rate, should be distinguished from a case like the present, in which the person receiving the shipment can not, in our view, be regarded as a consignee. The uniform bills of lading act of August -29, 1916, defines a consignee as the person named in the bill of lading as the one to whom delivery of the goods is to be made, and the holder of the bill of lading as one who has both actual possession of the bill and a right of property therein. Central of Ga. Ry. Co. v. Evans, 35 Ga. App. 438 (134 S. E. 122). Under the facts appearing, it would seem incorrect to regard the defendants either as consignees or as holders. Differently from either, they were mere agents of Lamb & Hollingsworth, the order notify consignee. See Seaboard Air-Line Ry. Co. v. Luke, 19 Ga. App. 100, 103 (90 S. E. 1041). They did not buy hay to be shipped, nor hay in transit, nor did they buy a bill of lading. The hay was at the time in Augusta, stored in a warehouse by and for the benefit of the plaintiff railway company. The defendants were buying hay delivered in Augusta. If more than the purchase price had been demanded of them as a freight charge, they could have refused to accept the goods, because under their contract with Lamb & Hollingsworth they bought the carload of hay for a fixed price.

Counsel for the defendant refer to the clause of the bill of lading that “The owner or consignee shall pay the freight . . before delivery,” and say that the defendants were owners of the shipment when it was delivered. Irrespective of what may be the effect of the quoted clause as between the carrier and the consignee (N. Y. Central R. Co. v. Ross Lumber Co., 234 N. Y. 261, 137 N. E. 324, 24 A. L. R. 1160), we can not agree that the defendants were owners in accepting the freight from the carrier’s warehouseman. As was said above, they were buying hay delivered, and it took delivery, either actual or constructive, to make them owners. Civil Code (1910), § 4125.

In L. & N. R. Co. v. Sloss-Sheffield Co., 269 U. S. 217 (46 Sup. Ct. 73, 70 L. ed. 242), the facts, as summarized in the 8th headnote, were as follows: “A manufacturer sold and shipped pig iron f. o. b. destination, to buyers named as consignees in straight bills of lading; the iron was invoiced and charged on the seller’s books at the full delivered price, and the consignees physically paid the freight upon acceptance of delivery; the sales contracts, unknown to the carrier, declared the price to be based on the existing freight rate (specifying it) and provided: that the buyers should have the benefit of any decline, but must pay any advance in the freight rate, that the freight should be paid in cash and the balance of the price 30 days from average date of monthly deliveries, and that the seller would not be liable for any overcharge in freight when correct rate was expressed in the bill of lading.” The freight rates proving excessive, the consignor brought suit against the railway company for a reparation to the amount of the excess. The Supreme Court held that the action by him was maintainable, and said that the consignee or purchaser, in paying the freight, acted solely as the consignor’s agent. While the court in that case was not dealing with a question of liability such as we have here, yet, under facts bearing a similitude^ to those of the present case, the court recognized that the consignee was the consignor’s agent. The consignee in that case doubtless could have been held liable for an undercharge in freight if it had existed, notwithstanding the principle of agency. That decision, however, supports our conclusion in the present case, to the effect that the defendants were agents for Lamb & Hollingsworth. Since they received the goods merely as such agents and were not, as in the Schloss-Sheffield case, parties to the bill of lading, they were not liable for the undercharge. But it is said that the carrier had no knowledge of such agency and dealt with the defendants as owners and consignees, and should not be affected by such undisclosed relationship to the order notify consignee. N. Y. Central R. Co. v. York & Whitney Co., 256 U. S. 406 (41 Sup. Ct. 509, 65 L. ed. 1016); Union Pacific R. Co. v. American Smelting &c. Co., 202 Fed. 720 (121 C. C. A. 182). While it is true that, the plaintiff could not be estopped, though the defendants might be, there is no ground for estopping them merely in the fact that the carrier did not know to deal with them as agents of Lamb & Hollingsworth. It has in no way altered its position by reason of such fact. Its agent’s failure to collect the' correct freight was not because of confidence in the reliability and willingness of the defendants to pay, but because he misconceived the correct amount to be collected. The same thing would have happened if either cooperative Federée de Quebec, or Southeastern Molasses Company, or Lamb & Hollingsworth had called for and accepted the shipment. We may, for the purpose of this case, concede that some one is liable to the plaintiff for the amount of the freight sued for in this case. The plaintiff’s right and duty to collect the correct freight from some one, though absolute, does not necessarily mean that they should collect it from the person to whom they delivered the goods. If that were true, every drayman, porter, employee, or servant who calls for and receives the goods for another would himself become liable for the freight charges. This would be stretching the law into an absurdity. Much has been said about the release of the-carrier’s lien. This lien is released to the owner, and not to one acting for him. The defendants’ paying the freight was merely in partial discharge of their liability to Lamb ■& Hollingsworth for the purchase-money of the hay, the subject-matter of the contract. As already stated, the evidence shows they , did not buy the bill of lading. It was not indorsed by the “notify consignee,” and was delivered to the defendants only for surrender to the carrier on behalf of the consignee or holder in conclusion of the transaction between those parties. In nothing we have said have we intended to intimate that any particular person, not a party in this record, is liable for the charge. 'There are several persons connected with the shipment, from any one of whom the defendant might possibly be entitled to exact payment. What we hold is, there is no liability against the present defendants.

Judgment reversed.

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


text:
    17413.
    AMERICAN MUTUAL LIABILITY INSURANCE CO. et al. v. HARDY, for use, etc.
    1. It can not be said that the industrial commission failed to make any findings of fact in this case, or that the facts found do not support the award of compensation.
    2. There was sufficient evidence to authorize the conclusion that the injury and death of the employee arose out of and in the course of his employment.

      Workmen’s Compensation Acts, — C. J. p. 115, n. 37; p. 122-, n. 40; p. 124, n. 61.

      3. Rule 26 of the industrial commission, laying down the conditions upon which the full commission will hear evidence on review, is to be enforced or relaxed in the discretion of the commission, without interference by the courts. Eor no reason urged was the award -of compensation illegal. The superior court did not err in denying the appeal.
    Decided February 26, 1927.
    Appeal; from Fulton superior court — Judge Humphries. April 9, 1926. .

      McDaniel & Neely, Harry L. Greene, for plaintiffs in error.

      Shackelford & Shackelford, contra.
   Bell, J.

This case is here upon exceptions to a judgment of the superior court of Fulton county denying an appeal from an award of compensation to the dependents of Harry Hardy, a 17-year-old boy, who, for about five weeks prior to his death, had been employed by Atlanta Woolen Mills as a weaver, on the third floor of his employer’s factory. On April 20, 1925, at about (either a few minutes before or just after) the end of the lunch hour, he was discovered pinned between the elevator and the fourth floor (or the overhead ceiling of the next room below) of the four-story building, with his stomach or chest against the edge of the elevator floor, his face downward, and with the remainder of his body hanging outside the elevator and over the shaft. There was no eyewitness to the accident, and the decedent made no statement before dying, as to how he happened to be on the elevator or thus to get caught in it. There was a regular elevator operator, but there was evidence that other employees would on occasion run the elevator themselves when the regular operator was absent, if they were in need of material for their work, but all were expressly warned never to ,use the elevator under any other circumstances. The elevator was a freight elevator, not intended for passenger service, although it was shown in the evidence that employees would sometimes use it, in the absence of the regular operator, merely to' avoid climbing the stairs. The supply room was on the second'floor, and from that place only did the decedent procure materials needed in his work on the third floor. The second floor was level with the ground, in the front of the building, while the first floor was level with the ground in the rear. When work was suspended for the lunch hour the elevator was left at the second floor. No one accounts for it from that time until it was discovered in the stationary position just below tbe fourth floor with the decedent hanging from it, injured. The decedent had never been known to use the elevator, or to attempt to do so, by himself. There is no evidence that he even understood how to operate it. It seems that he was not using it at this time for the purpose of conveying materials. There was no material on it. 'The elevator was situated some fifteen or more feet from the stairway, and the entrance thereto from each floor was through a gate which was kept closed except when opened to admit freight or passengers. So far as appears, it would have been more convenient and more expeditious for the decedent to have gone up the one flight of stairs from the second floor to the third floor than to have undertaken to go up on the elevator. Five minutes before the close of the lunch hour a whistle was blown as a notice that work time was near. Then, at the expiration of that period, a like signal was blown at which all employees were supposed to begin work. There was some evidence to the effect that the decedent was a little late in returning to his work, and had not entered the building at the second whistle, but was “hurrying to get there.”

On the original hearing before one commissioner, compensation was denied. Thereafter the claimant, having obtained a review before the full commission, asked to submit additional evidence. This request was granted, though over the objection of the employer and the insurance carrier. After thus hearing additional testimony and considering it with that which had previously been taken by the sole commissioner, the full commission made the following award: “There is some conflict in the evidence as to the time that the deceased returned to the premises of the employer to begin his work on the' afternoon of the day in question. Although there was a rule against the employees using the elevator unless the elevator man was running it, and then only when getting materials for work, this rule was not enforced. There is evidence that employees ran the elevator themselves when for some reason the regular operator was not at his post. The deceased was not acting without the scope of his employment in using the elevator. He met his death by being crushed between the elevator and the top floor of the building. In the light of all of the evidence the deceased was where he might reasonably be supposed to be. The natural inference is that the accident arose out of and in the course of his employment, and the commission so finds.” In the appeal to the superior court the only grounds of attack on the award which need be stated were: the facts found by the industrial commission do not support the order or decree of compensation; there is not sufficient competent evidence in the record to warrant the making of the award or decree complained of; the order or decree of the commission granting compensation is contrary to law, for various reasons alleged, having relation to the character and sufficiency of the evidence, and because the commission erred in permitting additional evidence to be introduced in violation of rule 26.

Counsel for the plaintiff in error, in their brief, say that this court should reverse the judgment of the court below upon the following grounds: (1) Because there has been no finding of the facts by the commission, or because the facts found do not support the award. (2) Because the inferences which are to be made the basis of the award of the. commission are not properly founded upon proven facts. (3) Because the commission erred in admitting the additional evidence in the hearing before the full commission, contrary to rule 26.

It is true, we held in Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (119 S. E. 39), that the commission should malee a statement of its findings and file the same with the record. We said also in that case that “it is not enough to state, merely as a conclusion, in the language of the statute, that the injury is found to have arisen out of and in the course of the employment.” This was not to hold, however, that it is improper for the commission to give its conclusion in the language of the statute, where the findings of fact as stated are sufficient to justify such conclusion. What we meant in that case was that a mere statement that the commission finds that the injury arose out of and in the course of the employment is not such a finding of fact as would justify an award, when it stands unsupported by any other findings of fact to justify it as a conclusion. We think this is the rule to be deduced from the authorities cited in that case. We can not sustain the contention that the commission made no finding of fact, or that the facts found do not support the order or decree awarding compensation.

Nor can we concur in the proposition that the inferences which are made the basis of the award are not properly founded upon proved facts, that is, that there is not sufficient competent evidence in the record to warrant the commission in making the award or decree complained of. The commission was authorized to find that the decedent was late in returning to his work, and, being in a hurry, sought to ride from one floor to another, in order to reach the room where he was employed, and was in some way injured as a result of his using the elevator for such purpose. It is quite true that it seems, from the evidence, that he could have gone up the stairway more conveniently and also more expeditiously, but the fact that he might possibly have made a bad calculation on this point does not necessarily rebut the other inference. The decedent’s body was hanging from the elevator at the ceiling of the room in which he worked. The rule against the use of the elevator by employees for the purpose stated was not necessarily 'one having reference to the scope of the employment, to the extent of excluding the master and servant relation; and, there being nothing to show that it had been approved by the industrial commission, its violation would not bar compensation. The case is a close one upon its facts, but we can not say, as a matter of law, that the commission was not warranted in disposing of the case upon the hypothesis referred to, nor therefore that they acted without evidence in concluding that the injury and death arose out of and in the course of the employment. U. S. Fidelity & Guaranty Co. v. Hall, 34 Ga. App. 307 (2) (129 S. E. 305); Maryland Casualty Co. v. England, 160 Ga. 810 (129 S. E. 75); New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786).

Eule 26 of the industrial commission follows section 6086 of the Civil Code (1910), relating to newly discovered evidence as a ground for a new trial. In Southeastern Express Co. v. Edmondson, supra, this court assumed that the discretion of the full commission in admitting or refusing to admit additional evidence, or to rehear the evidence, might in a proper case be reviewed. All that we then held upon the subject was that there was no abuse of the discretion in the refusal to hear evidence in that case. We now hold there was no abuse of discretion in the present case in hearing additional evidence. In other words, the commission’s rule 36 will be enforced or relaxed within the discretion of the commission, without interference by the courts.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    17514.
    CITY OF WINDER v. WOOD.
    1. Upon tlie trial of an issue as to the amount of depreciation, if any, in the value of property as a result of the change in the grade of an adjacent street, the court did not err in admitting, over objection that it was irrelevant and immaterial, testimony of a witness to the effect that, after such change in grade, he refused to purchase the property at a certain reduction from the price at which he had previously sold the property, where it appeared from the record that the witness, in giving this testimony, intended to express his present opinion as to the depreciation in the value of the property, and must have been so understood by the jury. Furthermore, even if the testimony was inadmissible as claimed, its admission was not cause for a new trial, under all the facts appearing.
    2. Although the plaintiff’s lot was not level, but inclined from the front to the opposite boundary, and although the surface of a part of 'the lot was below the level of the street before the grade of the street was changed, testimony as to the amount of the cost of filling in the property and of raising the surface of the entire lot to the level of the street as changed was not irrelevant.
    3. In this action against a municipality to recover for damage to the plaintiff as a result of the change in the grade of an adjacent street, the court erred in refusing to charge the jury that if such change was made in connection with and was a necessary incident to the paving of the street as done by the city, the plaintiff would not be entitled to recover, if the property was by reason of such paving benefited or caused to be enhanced in value in an amount greater than the amount of the damage resulting to it by reason of such change in the grade of the street. The requested instruction was authorized by the pleadings and the evidence, was pertinent and applicable, and the proposition stated therein was not presented in the charge given. Because of the refusal to give such charge, a new trial should have been granted.
    4. The general grounds of the motion for a new trial are not insisted upon. There is no merit in the other grounds.
    Decided February 26, 1927.
    Damages; irom Barrow superior court — Judge Stark. May 17, 1936.
    Appeal and Error, 4 G. J. p. 982, n. 44, 45.
    Eminent Domain, 20 O. J. p. 751, n. 78; p. 752, n. 81; p. 817, n. 70; p. 819, n. 76; p. 1202, n. 72; p. 1214, n. 8.
    New Trial, 29 Oye. p. 780, n. 49; p. 782, n. 54.
    Trial, 38 Gyc. p. 1718, n. 25; p. 1719, n. 26.

      Joseph T). Quillian, for plaintiff in error.

      G. D. Boss, Bichard B. Bussell Jr., contra.
   Bell, J.

Mrs. Annie C. Wood brought an action against the City of Winder to recover damages alleged to have been sustained by her by reason of a change in the grade of the street adjacent to her residence. The city, after changing the grade of this street, paved it; the grade was raised in fact in connection with the paving project. The city’s answer to the suit was a general denial. The jury found a verdict in favor of the plaintiff for $800, and the defendant has excepted to the overruling of its motion for a new trial.

The first special ground of the motion for a new trial complains that the court erred in admitting the following testimony of Dr. Boss, a witness for the plaintiff: “I refused it [referring to the property in question] at $1,500 reduction;” this testimony having been duly objected to upon the ground that it was irrelevant and immaterial in the solution of the question at issue. Testimony that a person refused to purchase property at a given price would ordinarily have no probative value on the question of the worth of the property; but in the present case the witness himself was testifying as to what, in his judgment, was the reduction of the market value of the property as a result of the change in the grade of the street, and it is clear from the record that the part of his testimony above quoted was intended to express his present opinion as to the amount of such reduction, and that it was so understood by the jury. The witness had been interrogated as to what it would cost to raise the surface of the plaintiff’s lot by filling in. The witness testified that several years previously he sold the property to Mrs. Wood at the price of $4,000, the fair market value of the property at that time. His testimony as objected to appears in the following connection in the brief of evidence : “I am not familiar with what it would take to elevate that house, to put in the grading to bring it up to the level as it was before the repair about the porch. My estimate in refusing to buy — well, I refused it at $1,500 reduction. She offered for $1,-500 less afterward. That offer of Mrs. Wood’s was made in 1923, about two years ago.” Almost immediately thereafter the witness further testified: “I would want more than $1,500 difference between the value of the property now and in 1923, with the pavement in front of the property.” It thus appears from the context that the witness was of the opinion that the defendant actually had reduced the market value of the property $1,500, and that the testimony objected to amounted to no more than a statement that he was of the same opinion at the time of some previous negotiation between him and the plaintiff with reference to a purchase of the property. The court did not err in admitting the testimony. But even assuming error, we could hardly say that it was harmful, in view of all the facts appearing. There is no cause for a new trial in the ground of the motion here dealt with.

The second ground of the amendment to the motion for a new trial assigns as error the admission of the following testimony of Edgar Jackson, a witness for the plaintiff: “It would take an enormous amount of dirt to fill in the whole lot level with the sidewalk. The reasonable market value of hauling the dirt in there and filling in a lot 50 by 130 feet to a level of the street in front of the house, that would be four feet, and would cost $1,500 or $2,000.” The objection urged to this testimony was that it was irrelevant and immaterial because the other evidence showed that no part of the plaintiff’s lot except the front yard had ever been as high as the sidewalk, and because it was incompetent to show the cost of raising the level of the entire lot to the new level of the street when the rear of the lot had not so conformed to the grade of the street before it was changed. There is no merit in this ground of the motion for new trial. In City Council of Augusta v. Schrameck, 96 Ga. 426 (23 S. E. 400, 51 Am. St. R. 146), the Supreme Court held: “The measure of damages to abutting property, caused by raising the grade of a street, is the difference between the market value of the property before and after the improvement; and upon the trial of an action to recover such damages, it is competent to give in evidence the necessity of filling in the lot-and raising the buildings thereon, with the probable cost of such work, not as furnishing a reason for allowance of such cost as an independent item of special damage, but as a circumstance throwing light upon the general question of the diminution of market value.” To the same effect see Mayor &c. of Macon v. Daley, 2 Ga. App. 355 (4) (58 S. E. 540), and cit. The testimony showed with reasonable certainty the degree of the incline of the plaintiff’s lot. from the front to its opposite boundary, and the topographical relation of the entire lot to the old grade of the street. Notwithstanding the testimony related to the expense of causing the lot to occupy a different relation to the new grade of the street from that which it had occupied toward the level of the street originally, it was not without some relevancy as affording a basis of computation by which the jury could determine the cost of filling in the lot to the extent of raising the surface of all its parts to the same relation which had existed between such surfaces and the original street 'level, this cost to be considered as a fact or circumstance illustrating the general question of market value.

A further reason why we think the court did not err in refusing to sustain the ground of the motion for a new trial now under consideration is that similar testimony was admitted during the trial without any objection thereto. Daughtry v. Savannah &c. R. Co., 1 Ga. App. 393 (3) (58 S. E. 230); Cochran v. Meeks, 25 Ga. App. 61 (2) (102 S. E. 550); Hurt v. Atlanta, 100 Ga. 274 (4) (28 S. E. 65).

In two other special grounds of the motion for a new trial the city contends that the court committed error in refusing to give to the jury certain charges, duly requested in writing, one of which was as follows: “If you find from the evidence that there was a change made in the street in front of the plaintiff’s property described in her petition, by the defendant or under its authority, and that such change made in the grade of the street was incident to and necessary in the paving of the street in front of the plaintiff’s property, and that the plaintiff’s property was, by reason of said paving being done, benefited or caused to enhance in value in an amount greater than the amount of damage resulting to it by reason of such change in the grade of the street being made, the plaintiff would not be entitled to recover any damages against the defendant by reason of the change of the grade of said street.”

Since the two requests to charge raised substantially the same questions, it is necessary to deal specifically only with that ground of the motion which complains of the court’s refusal to give the charge above quoted.

The contention of counsel for the plaintiff is that the requested charges were not authorized either by the pleadings or the evidence, and that even if this is not true, the propositions stated therein were fully and fairly presented in the charge given. We can not concur in the position taken by counsel for the plaintiff. The measure of damages in a case of this sort is the difference between the market value of the property before and after the change in the grade. City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426 (2) (87 S. E. 698), and cit. Although the plaintiff’s property may have been injured, no damage has been sustained by the' plaintiff if, after the change in the grade of the street, “independently of all other causes, the market value of the lot was as much as, or more than, it was before the work was done.” Hurt v. Atlanta, supra. Paragraph 2 of the plaintiff’s petition alleged that the defendant had injured and damaged the plaintiff in the sum of $1,500 by reason of facts “herein set forth.” This averment was denied by the defendant in its answer. The defendant also, denied all other allegations of the plaintiff, either as to damage to the property or as to loss and damage sustained by the plaintiff. In this state of the pleadings, the answer was broad enough to raise an issue as to whether the value of the property had been increased by reason of the improvement. “In determining the question of market value, the jury necessarily would have to consider consequential enhancement as well as consequential damages.” Mayor &c. of Macon v. Daley, supra. See also, in this connection, Atlanta, Knoxville &c. Ry. Co. v. Gardner, 122 Ga. 82 (7) (49 S. E. 818). The brief of evidence discloses the following testimony bearing upon the question of whether there was -any increase in the value of the property as a result of the change in the grade of the street: G. A. Johns, sworn for the plaintiff, testified that “the paving is worth something to that property.” W. T. Applebee testified: “I knew this property before it was paved and graded. It did not depreciate any in value. . It is worth more now.” John II. Maynard testified: “I don’t think it [referring to the property] is damaged at all. I think the paving has increased its value.” E. E. Delaperriere testified: “I think this property is worth several hundred dollars more since the paving.” Questions of value are. peculiarly for determination by the jury where there is any data in the evidence upon which they may legitimately reach a conclusion. We can not hold, as a matter of law, that there was no data before the jury in the instant case upon which they might have predicated a finding that the value of the property was enhanced by the change in the grade of the street and the paving. Kraft v. Rowland, 33 Ga. App. 806 (3) (128 S. E. 812).

We liave carefully examined the charge of the court and can not agree that the propositions set forth in the city’s request to charge were anywhere given in charge to the jury.

“A specific charge which is legal and adjusted to a distinct matter in issue, involving the right of the plaintiff to recover, and which may materially aid the jury, should be given as requested, although in principle and in more general and abstract terms it may be covered by other instructions given by the court. Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49).” Elberton R. Co. v. Thornton, 32 Ga. App. 259 (4) (122 S. E. 795).

We think the request to charge embodied a correct principle of law. If the change in the grade of the street was a necessary incident to the paving of the street, and if both together constituted one entire project, then the city was not limited in its right of offset merely to appreciation in the value of the property resulting from the change in the grade of the street, but was entitled to credit as well for any enhancement in the value due to the laying of the pavement. This conclusion seems to follow from the decisions of the Supreme Court in Nelson v. Atlanta, 138 Ga. 252 (3) (75 S. E. 245), and in Muecke v. Macon, 34 Ga. App. 744 (131 S. E. 124). It is our opinion that the able trial judge committed error in refusing to. charge the jury as requested, and that for this reason he should have granted a new trial.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    17587.
    ALLIANCE INSURANCE COMPANY v. WILLIAMSON.
    1. If there was error in the charge of the court complained of, as to the title which would enable the plaintiff to recover on the fire-insurance policy sued on, tlie error was harmless, in view of the evidence.
    2. A fraudulent award may be attacked in a court of law; and the petition was not subject to demurrer on the ground that, being an effort to set aside as void an appraisement made in accordance with the terms of the contract of insurance, and such a proceeding being equitable in its nature, the city court had no jurisdiction to grant such relief.

      Appeal and Error, 4 C. J. p. 1029, n. 30.
    Arbitration and Award, 5 O. J. p. 68, n. 82; p. 69, n. 87; p. 109, n. 95.
    Courts, 15 C. J. p. 986, n. 60; p. 987, n. 87.
    Eire Insurance, 26 C. J. p. 20, n. 24; p.. 32, n. 63; p. 470, n. 85 New; p. 577, n. 6, 7; p. 579, n. 23.
    Pleading, 31 Cyc. p. T28, n. 75.

      3. Since, in such a common-law appraisement as the one attacked in this case, the law does not require that the appraisers be sworn, and since neither in the stipulations in the policy providing for appraisement of the loss nor in the agreement to appraise is such a requirement mad^, the charge of the court, that the award would not be binding if either of the arbitrators or the umpire failed to take an oath, would necessitate a new trial but for the fact that it was rendered harmless, for reasons appearing in the next division.of the decision.
    4. The award was void because of. the unauthorized substitution of another person as umpire in the place of the one who was originally selected by the appraisers and who signified his acceptance of the appointment by taking the oath.' The evidence introduced for the purpose of showing that the plaintiff had not agreed to such substitution was relevant, to show a lack of ratification of the illegal substitution.
    5. The rule, that where an agreement for appraisal of the loss is made by the parties to a contract of insurance, a legal completion of the appraisal and a valid award thereunder become a condition precedent to a recovery by the assured, does not apply so as to entitle the insurer to insist upon an additional appraisement, where it is shown that the insurer, by fraudulent conduct, has breached the agreement for appraisement.
    6. Such a demand as is required by the Civil Code (1910), § 2549, in order for the insured to recover damages in addition to the loss, is not shown by the evidence in this ease, and the verdict for such damages was unauthorized. The judgment overruling the defendant’s motion for a new trial is affirmed on condition that such damages be written off.
    Decided February 26, 1927.
    Complaint on fire policy; from city court of Richmond county— Judge Black. June 18, 1926.
    Applications for certiorari were made to tlie Supreme Court.

      Smith, Hammond & Smith, Hull, Barrett & Willingham, for plaintiff in error.

      W. Inman Curry, Pierce Brothers, contra.
   Jenkins, P. J.

The policy of automobile fire-insurance sued on, on which the plaintiff obtained a judgment for $1,500 as the amount of the loss, and $315 damages, contained the following provisions: “The entire policy shall be void unless otherwise provided by agreement in writing added hereto, if the interest of the assured in the subject of this insurance be other than unconditional and sole ownership. Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or . damage to any property insured hereunder while encumbered by any lien or mortgage.” It appears from the record that the plaintiff, C. D. H. Williamson, in good faith, acquired his title from Troy Williamson, who had purchased the property at a judicial sale. It appears that Moody, the person against whom the judicial proceeding was directed, had purchased the property from Chapman Motors Company, which retained the title thereto to secure a portion of the purchase price due by Moody; After a judgment setting up a lien in favor of Troy Williamson against the property had been rendered, and the property levied upon, a claim was filed by Chapman Motors Company, which claim was dismissed by the court, and the property was thereafter sold under the levy and judgment referred to, without renewal of the claim. At the trial of the instant case the defendant offered in evidence the title-retention contract referred to, and two of the past-due purchase-money notes signed by Moody, but did not purport to be the owner thereof, and offered no proof as to the source from which the notes and contract were obtained, whether from Moody or Chapman Motors Company, or as to who purported to be the owner thereof. The defendant excepts to the following charge of the court: “Under the terms of the policy Mr. Williamson had to be the sole and unconditional owner of the automobile that was destroyed, and if you find from the evidence that he was not the sole and unconditional owner of the automobile that was destroyed by fire, then I charge you he would not be entitled to recover. If you find from the evidence that Mr. Troy Williamson purchased the car at a sheriff’s salé in this county, and the validity of the sale was not questioned by the Chapman Motors Company, the persons that sold the car, or by Mr. Moody, the original purchaser, and that Mr. Troy Williamson sold the car to the plaintiff, then the plaintiff has such title as will entitle him to recover in this case, provided you find he is otherwise entitled to recover.”

While, under the law of the code, an insurable interest is defined as “some interest in the property or event insured,” and a “slight or contingent interest is sufficient, whether legal or equitable” (Civil Code of 1910, § 2472), such an insurable interest is not to be taken as synonymous with the sole and unconditional ownership required by the terms of the policy; nor does the rule as to an insurable interest dispense with the contractual requirement as to liens upon the property constituting the subject-matter of the risk. It appears to be the general rule that when the. subject-matter of insurance is personal property, and the vendee is in possession under a conditional contract of sale, the title to remain in the vendor until the conditions are performed, the vendee is not the sole and unconditional owner. 7 Ann. Cas. 499; 38 A. L. R., 186, 200; 14 R. C. L. 258, § 234 et seq.; Williamson v. Orient Ins. Co., 100 Ga. 791 (28 S. E. 914); Conyers v. Yorkshire Ins. Co., 30 Ga. App. 6 (117 S. E. 102). Whether or not the rule just stated would have application where the contract of purchase as entered into by the insured is for the sole and unconditional ownership of the property, but where the insurer makes it to appear that there is an outstanding purchase-money note given under a conditional-sale contract against some antecedent owner, it is not necessary to determine; nor is it necessary to determine whether the charge complained of must be accounted erroneous for the reason that the original owner referred to did not necessarily estop himself by his conduct from claiming title to the property after permitting it to be sold without renewing his claim (see McLennan v. Graham, 106 Ga. 211, 32 S. E. 118; Lawless v. Orr, 122 Ga. 276, 50 S. E. 85); this being true for the reason that the burden rests upon the defendant of showing that the plaintiff was not the sole and unconditional owner of the property possessed by him and covered by the terms of the policy (Giles v. Citizens Ins. Co., 32 Ga. App. 207, 122, S. E. 890); and since the past-due notes were not introduced in evidence by the defendant as belonging to it, and since it failed to show from what source this bare possession had been acquired, whether from Chapman or Moody, and since such bare possession by the defendant company of such past-due instruments, without any sort of proof that they were in fact outstanding, raised no presumption of their nonpayment, the burden resting upon the defendant was not met. If the defendant had claimed to be the owner and holder of the notes, the rule would be otherwise, and a presumption of their nonpayment would arise. Liddell v. Wright, 72 Ga. 899; Brantley v. Merchants & Farmers Bank, 22 Ga. App. 667 (97 S. E. 109); Hale v. Hale, 34 Ga. App. 314 (129 S. E. 445). Accordingly, any error in the charge complained of was harmless to the defendant.

The policy of insurance sued on provided as follows: “In case the assured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser.' The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the assured or this company, such umpire shall be selected by a judge of a court of record in the county and State in which the property insured was located at time of loss. The appraisers shall then appraise the loss and damage, stating separately sound value and loss or damage to each item; and failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with this company shall determine the amount of sound value and loss or damage. Each appraiser shall be paid by the party selecting him, and the expenses of appraisal and umpire shall be paid by the parties equally.” It appears from an amendment to the petition that under an agreement entered upon by the insured and by the insurance company, the question of the amount of the loss was submitted for appraisement, and that a finding was made, establishing the amount of the loss at the sum of $450. The petition alleged that the award was fraudulently procured, in that the appraiser selected by the defendant and the umpire selected by the appraisers were interested and biased, and were selected for the purpose of procuring a fraudulent award against the interests of the plaintiff. It is alleged in the petition that the purported umpire signing the award had fraud-, ulently procured the temporary absence of the real umpire originally selected, by the appraisers, for the purpose of having himself appointed in his stead, and for the purpose of agreeing with the contentions of the appraiser selected by the defendant, and that the appraisal thus consummated by the vote of the substituted umpire was fraudulent and not binding upon the plaintiff. The defendant demurred to the petition as amended, upon the ground that it was in substance an effort to set aside and declare void the appraisement made in accordance with the terms of the contract of insurance, and that, such a proceeding to annul being equitable in its, nature, the city court had no jurisdiction to grant such relief. The demurrer was overruled, and to this action exceptions were taken pendente lite. “In this State, parties may obtain the same relief against an award in a court of law as in a court of equity.” Atlanta & Richmond R. Co. v. Mangham, 49 Ga. 266, 268; Eberhardt v. Federal Ins. Co., 14 Ga. App. 340 (80 S. E. 856).

The amendment sets forth, as an additional reason why such an award was not binding upon the plaintiff, that the umpire thus substituted was never sworn before proceeding to act as such. Exception is taken to the following charge of the court: “The arbitration agreement in this case is binding upon the parties and is the limit of the authority of the arbitrators, and if the arbitration agreement provided- that the arbitrators and umpire should first take an oath before entering upon the discharge of their duties, or if it was contemplated by said agreement that they should take such an oath, and if you should further believe from the evidence that either of said arbitrators or umpire failed to take the oath provided for and made an award not under oath, then I charge you that such an award would not be binding upon the parties to this case.” Since in such a common-law appraisement the law does not require that the appraisers be sworn, and since neither under the stipulations in the policy providing for appraisement of the loss nor under the agreement to appraise is such a requirement made, the instruction was possibly misleading, and therefore erroneous, and but for the fact that it was rendered harmless, for the reasons set forth in the next division of the syllabus, would necessitate a new trial.

Since, under the above-quoted provisions of the policy and the agreement for appraisement entered into by the parties, the appraisers designated were authorized to select an umpire, and it appears that they exercised that authority, and the umpire so selected signified his acceptance of the appointment by taking the oath, thus becoming a member of the appraisal body, in the absence of a refusal on the part of the umpire to proceed with the appraisal, or his incapacity to do so, thus creating a vacancy in his office, the appraisers were without authority to substitute another person as umpire in his stead, and any award participated in and controlled by the vote of such substituted umpire was necessarily void. The evidence objected to by the defendant, introduced for the purpose of showing that the plaintiff had not agreed to such substitution, was relevant to show a lack of ratification of such illegal substitution.

The defendant does not set up as a ground of defense the inability of the plaintiff to sue on the policy prior to the consummation of a legal appraisement of the loss. It is the general rule that the defendant is not entitled to the benefit of any defense which should be made by his answer and as to which his answer is silent. Harrell v. Blount, 112 Ga. 711 (2) (38 S. E. 56); Kiser v. Westbrook, 33 Ga. App. 208 (125 S. E. 774). But, irrespective of any such rule, the rule announced by this court in Insurance Company of North America v. Folds, 35 Ga. App. 720 (135 S. E. 107), to the effect that where an agreement for the appraisal of the loss sustained is entered into by the parties to the contract of insurance, the legal completion of the appraisal and a valid award thereunder become a condition precedent to a recovery by the insured, would not have application so as to entitle the defendant to insist upon a further and additional appraisement, where it has been shown that the defendant has by its own fraudulent charge breached its agreement to appraise. The evidence upon the issue of fraud is such that this court does not feel authorized to interfere with the findings of the jury upon that issue, and the judgment in favor of the plaintiff can not be set aside for any of the reasons assigned.

It is urged that the award of damages included in the judgment against the defendant under section 2549 of the Civil Code was not authorized by the allegations of the plaintiff’s petition or by the proof submitted. This section provides: “The several insurance companies of this State, and foreign insurance companies doing business in this State, in all cases when a loss occurs, and they refuse to pay the same within sixty days after a demand shall have been made by the holder of the policy on which said loss occurred, shall be liable to pay the holder of said policy, in addition to the loss, not more than twenty-five per cent, on the liability of said company for said loss; also, all reasonable attorney’s fees for the prosecution of the case against said company: provided, it shall be made to appear to the jury trying the same that the refusal of the company to pay said loss was in bad faith.” The provision for damages, being in the nature of a penalty, must be strictly construed, and in order for damages to be authorized it must appear that the company, in bad faith, refused to pay the claim within sixty days after a demand had been made. In the case of New Zealand Fire Insurance Co. v. Brewer, 29 Ga. App. 773 (8) (116 S. E. 922), it was held that “under the provisions of section 2549 of the Civil Code (1910), the liability of the insurer for attorney’s fees and damages could not accrue until.the lapse of sixty days from tlie date of a demand made when there was a right to demand,” citing Lester v. Piedmont &c. Ins. Co., 55 Ga. 476 (4); Ancient Order United Workmen v. Brown, 112 Ga. 545 (3) (37 S. E. 890). In the Lester case the Supreme Court said: “The Code, section 2850 [2549], makes the forfeiture depend on refusal for sixty days after demand. The demand ought, therefore, to be averred as taking place at a time when the plaintiif had a right to exact present payment, and the declaration should show that refusal, in bad faith, was made and persisted in for sixty days. There is no demand, in direct terms, averred in this declaration; and the only application for payment alleged is that which took place at the time of submitting proof of death, etc., and that was before the plaintiif had a right to make absolute demand for payment; for the company, according to the terms of the policy, could defer payment for ninety days, or perhaps eighty-nine days, after receiving the stipulated proofs.”

In the instant case it appears from the petition that the fire occurred on December 18, 1922; that proof of loss was submitted within sixty days thereafter, on February 16, 1923, and that after a refusal, on February 17, 1923, to pay tlie loss, suit was instituted on April 18, 1923. It thus appears that while the plaintiif might have properly instituted suit after sixty days from the filing -of the proof of loss on February 16, in order to recover damages it must appear that after the right to. exact present payment had accrued, a demand was made and payment persistently refused, in bad faith, for another sixty days. The suit having been instituted, however, prior to such persistent refusal to respond to any demand made at a time when a demand for present payment could be properly made, the award of damages is unauthorized and should be stricken from the judgment.

Counsel for the defendant in error assumes the attitude that “the employing of an adjuster, the attempt to agree on the loss by the insured and the adjuster, the agreement of appraisal, the selection of appraisers and an umpire, and the actual making of a fraudulent award, is ample evidence of a demand having been made upon the insurance company for payment under the policy.” It does not appear from the petition that any demand, as such, was ever made, but even if the facts and circumstances mentioned could be taken as equivalent to impliedly alleging a demand, the matters referred to could not be taken as meeting the requirements of the penal statute, since they took place at a time when the plaintiff had no “right to exact present payment.” Even though it should be assumed that such conduct of the parties with reference to the arbitration could be taken as dispensing with the-necessity, for a subsequent proof of loss (Civil Code of 1910, § 2490), and even though, as stated, the allegations relating to such conduct could possibly be strained into the equivalent of an allegation of a demand for payment, it could not be such a valid demand as contemplated by section 2549 of the code, since the transactions only went to establish the amount of the loss sustained, as preparatory to a subsequent valid demand at a time when present payment could be exacted.

Since the recovery of damages was unauthorized, but the verdict and judgment were not otherwise illegal for any of the reasons urged, the judgment overruling the motion for a new trial is affirmed, upon condition that the plaintiff will write off the recovery as to damages at the time the remittitur is made the judgment of the court below; otherwise the judgment will be reversed.

Judgment affirmed on condition.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    16880.
    Thompson et al v. Georgia Railway & Power Company.
    Decided February 28, 1927.
    Appeal and Error, 4 C. J. p. 1213, n. 83; p. 1215, n. 85; p. 1221, n. 58; p. 1224, n. 6; p. 1229, n. 1 New.
   Stephens, J.

1. In view of the answer to certified questions propounded to the Supreme Court in this ease, the trial court did not err in striking from the petition certain parties plaintiff and in thereafter dismissing the petition as to the remaining plaintiff. See Thompson v. Georgia Railway & Power Co., 163 Ga. 598 (136 S. E. 895).

2. It is hereby directed that, at the time the judgment of this court is made the judgment of the court below, the minor plaintiff, Clarence Thompson, be permitted to amend the petition, subject to demurrer as amended, by alleging that, at the time of his mother’s death, he was in fact dependent upon her for support. Dellinger v. Elm City Cotton Mills, 26 Ga. App. 780 (107 S. E. 264). The grant of this permission is not to be construed as a ruling that the petition as thus amended would give a right of action to such minor child.

Judgment affirmed, wilh direction.

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

Action ior damages; from Fulton superior court — Judge E. D. Thomas. • September 23, 1925.

Reuben R. & Lowry Arnold, R. B. Blackburn, for plaintiffs.

Colquitt & Conyers, for defendant.