author: Bull, J.

text:
    14635.
    MARTIN v. McAFEE & COMPANY.
    1. This suit was against J. M. McAfee & Company, a firm composed of J. M. McAfee and other persons to the plaintiff unknown. In the bill of exceptions brought by the plaintiff to the sustaining of a general demurrer to the petition the partnership was not made a defendant in error, but the sole defendant in error made therein was J. M. McAfee, The attorney who represented the partnership in the court below acknowledged service of the bill of exceptions generally, without reservation or exception. A motion to dismiss tne bill of exceptions was made because of the failure of the plaintiff in error to make the partnership a defendant in error. The plaintiff in error, however, having moved to amend the bill of exceptions so as to make the partnership a party, this motion under the facts is one that should be granted. Consistently, the motion to dismiss should be denied.
    2. In an action for damages for alleged negligence of the defendant in a case like the present it is not necessary for the plaintiff to negative by affirmative allegations any negligence on his part. This is a matter of defense, and in such a case the petition in this respect will be good unless the pleaded facts affirmatively show that the injuries were the result of the plaintiff’s own negligence or failure to exercise ordinary care.

      (а) Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them on demurrer, except in plain and indisputable cases; and in the exercise of this function the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. It is only where it clearly appears from the petition that the negligence charged against the defendant was not the proximate and effective cause of the injury that the court may upon general demurrer, as a matter of law, so determine.
    (б) Applying these rulings, the court erred in sustaining the general demurrer and dismissing the petition.
    3. Where.a demurrer to a petition contains grounds both general and special, and the trial judge, without specifying the grounds or basis of its decision, passes a general order sustaining- the demurrer and dismissing the petition, the judgment will be treated as sustaining the entire demurrer upon all grounds, ana me special as well as the general grounds must be considered on review if the petition is not subject to the latter; but where, as in this case, it appears ruat the judgment of dismissal was based solely upon the' general grounds, - e special grounds will not be considered, but will be leio to subsequent determination by the trial court.
    Decided February 27, 1924.
    Action for damages; from Cherokee superior court—Judge Blair. April 27, 1923.
    J. L. Martin brought an action for damages against J. M. McAfee & Company, a firm composed of “J. M. McAfee and other persons unknown to petitioner.” The plaintiff alleged that as he was driving a team of mules hitched to a wagon on a certain public street in the town of Canton, Georgia, he was injured by reason of the negligence of the defendants' servant, in operating the defendants' delivery truck, in the scope of his employment, when he and the plaintiff met upon the highway. It is alleged that the plaintiff was descending a long, steep, curved hill upon which vehicles cannot pass each other with safety except at certain points; that when he reached one of these places he looked ahead to see if any vehicle was approaching, in order that if so he might wait where there was space enough to pass, but the way appearing clear he proceeded; that the next point at which vehicles might pass was at the foot of the hill, but that before reaching the same he was approached, from the direction in which he was going, by the defendants’ servant, driving the truck, “who could have and should have seen plaintiff and his team before he [the driver of the truck] passed the point in the street at the foot of the slope;” at the point where the parties thus met there was a bluff or descent from six to twenty feet deep on the plaintiff’s right, and a high embankment on his left, “so that both vehicles could not remain in the street and pass;” “that although defendants’ driver saw plaintiff’s predicament, he continued to approach the plaintiff at a rate of speed of about fifteen miles per hour as if plaintiff and his team were not there, . . and plaintiff’s team, in order to avoid being struck, . . was forced to the right, over said bluff, drawing the right wheels of plaintiff’s wagon over same.” “Plaintiff was riding on the back of the running gear of his wagon so that when the right wheels of same were drawn over the edge of said bluff his right leg was pinned under the coupling pole of said wagon, the weight of said wagon was upon plaintiff’s right leg and the right wheels of [the] wagon were suspended over the edge of the bluff.” “When said wagon was forced upon plaintiff’s leg he was thrown into such a position that he could not manage his team, and was entirely helpless to keep them from dragging said wagon over his leg.” The petition thus alleges the manner in which the plaintiff received the injuries for which he sues, the same being described. It is alleged that the plaintiff’s injuries “were due to the negligence of the defendant and defendant’s servant and agent, . . and that said negligence consisted of the following : (a) It is shown that said defendant was negligent in employing and using said Sam Stancil to drive said delivery truck, in that he is so young, inexperienced and reckless in drivipg same. (5) That said defendant was negligent in that said driver failed to stop at the passage place at the foot of said slope, and in not stopping at said point so that plaintiff could proceed and safely pass defendant’s delivery truck-at said point, (c) That said defendant was negligent because said driver drove [said] automobile at a high rate of speed,—that of approximately 15 miles per hour,— and in failing to have said automobile under immediate control in approaching plaintiff and his team and wagon, and said negligence was in violation of the laws of this State, (d) That said defendant was negligent in that said driver drove said automobile truck at a greater rate of speed than ten miles per hour while traversing said street where same curved, and at a point on same where there was a bluff and descent from same, and by so doing he was operating said vehicle in violation of the laws of this State, (e) That said defendant was negligent in that said driver failed to drive said vehicle at such a rate of speed as was reasonably safe when he approached plaintiff’s said team and wagon, and in failing to stop said vehicle before forcing plaintiff’s team out of the street, and said negligence was in violation of the laws of this State. (/) That said defendant was negligent in that said driver, failed to reduce the speed of said vehicle when he approached said dangerous place on said street where plaintiff was located, and that said negligence was in violation of the laws of this State. (g) That said defendant was negligent in that said driver failed to stop said vehicle when said wagon of plaintiff was drawn over said embankment, so that plaintiff’s team would not have continued to draw said wagon over plaintiff’s leg. Said negligence was in violation of the laws of this State.”
    The defendant partnership filed general and special demurrers. The trial judge, without passing upon the special demurrers, sustained the general demurrer, and the plaintiff excepted.
    In the bill of exceptions the partnership as such was not made a party, but J. M. McAfee was made the only defendant in error. A motion was made to dismiss the bill of exceptions because the part-' nership was not made a party defendant in error. The plaintiff in error, however, has moved to amend the bill of exceptions by adding, after the name J. M. McAfee, the words “and Company,” so as thus to make the partnership a defendant in error. The attorney who acknowledged service of the original bill of exceptions represented the partnership in the court below, and his acknowledgment was general, without reservation or exception.

      Broolc'e & Henderson, for plaintiff.

      H. W. Coleman, for defendants.
   Bull, J.

(After stating the foregoing facts.) “Where a bill of exceptions which can be identified as excepting to a specific judgment is served upon counsel of record in the case, such service shall be held to bind all parties whom said counsel represented in the trial court. Where counsel acknowledges service upon a bill of exceptions, such acknowledgment shall be held to be a complete waiver of all defects in the service which the counsel signing it is legally competent to waive, whether such signing is done before or after the signing of the writ of error, unless counsel in the entry of acknowledgment distinctly and specifically states that it is not to be construed as waiving some particular defect then pointed out by him. If such acknowledgment of service is properly entitled in the cause, it need not be physically attached to the bill of exceptions.” Park’s Annotated Code (1914), § 6164 (a); Ga. L. 1911, p. 149. Where an acknowledgment of service has been procured as provided in the section quoted, the bill of exceptions may be amended in the reviewing court by making any person a party defendant in error to the case who is bound by such service, although such person may not have been named in the bill of exceptions. Park’s Annotated Code (1914), § 6164 (b); Ga. L. 1911, p. 149.

In this case the attorney who represented the partnership in the court below acknowledged service of the bill of exceptions generally,' without reservation or exception. The partnership being thus bound by this acknowledgment of service, the motion of the plaintiff in error to make it a party defendant in error is one that may be properly entertained, and is granted. Consistently the motion to dismiss is denied. See Edwards v. Wall, 153 Ga. 776 (5) (113 S. E. 190); Thompson v. Simmons, 139 Ga. 845 (2) (78 S. E. 419); Coleman v. Board of Education, 136 Ga. 844 (3) (73 S. E. 159); Hayes v. Hayes, 137 Ga. 363 (73 S. E. 659); Toole v. Geer, 12 Ga. App. 409 (77 S. E. 368); Parrish v. Adams, 22 Ga. App. 170 (95 S. E. 749); Cleland v. Bennett, 24 Ga. App. 683 (102 S. E. 39).

Without such service upon the partnership, however, it would seem that the defect as to parties defendant in error could not be cured by amendment unless the partnership should “waive service and agree that said case may be heard.” Civil Code (1910), § 6160 (3); Marietta Paper Mfg. Co. v. Fox, 64 Ga. 450; Craig v. Webb, 70 Ga. 188 (3); Sears v. Jeffords, 119 Ga. 821, 823 (47 S. E. 186); Bullard v. Wynn, 134 Ga. 636 (68 S. E. 439); Carter v. Davidson, 138 Ga. 317 (75 S. E. 155). As to making parties plaintiff in error by amendment see Crossley v. Leslie, 130 Ga. 783 (3) (61 S. E. 851, 14 Ann. Cas. 703).

While the want of a necessary party defendant in error in the bill of exceptions is a matter affecting jurisdiction (Teasley v. Cordell, 153 Ga. 397 (2), 112 S. E. 287), the omission to give the court jurisdiction in the pleadings is amendable in an otherwise proper case where the facts necessary to jurisdiction actually existed at the time the proceeding was brought. Civil Code (1910), § 5691. Compare Sloan v. Smith, 30 Ga. App. 591 (2) (116 S. E. 200). The ruling made in this decision is without reference to the difference between counsel as to whether the motion to dismiss the* bill of exceptions was served upon the attorneys for the plaintiff in error.

The petition undoubtedly alleges negligence on the part of the defendant’s servant while acting within the scope of his employment. It further alleges that the plaintiff’s injuries were due thereto. In a case of this character it is not necessary for the plaintiff to negative by affirmative allegations any negligence on his part. This is a matter of defense, and in such a case the petition in this respect will be good unless the facts pleaded affirmatively show that the injuries were the result of the plaintiff’s own negligence or want of ordinary care. Hardwick v. Figgers, 26 Ga. App. 494 (2) (106 S. E. 738); Atlantic Coast Line R. Co. v. Wildman, 29 Ga. App. 745 (4) (116 S. E. 858); Fisher Motor Car Co. v. Seymour, 9 Ga. App. 465 (71 S. E. 764). Even assuming that the petition may disclose some negligence on the part of the plaintiff, it does not appear th'erefrom, as a matter of law, that this and not the negligence of the defendant was the cause of his injury.

Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them on demurrer, except in plain and indisputable cases; and in the exercise of this function the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. It is only where it clearly appears from the petition that the negligence charged against the defendant was not the proximate and effective cause of the injury that the court may upon general demurrer, as a matter of law, so determine. Larkin v. Andrews, 27 Ga. App. 685 (109 S. E. 518); Columbus Railroad Co. v. Moore, 29 Ga. App. 79 (113 S. E. 820); Jones v. Tanner, 26 Ga. App. 140 (105 S. E. 705). It was held by this court in Nixon v. Williams, 25 Ga. App. 594 (2), (3) (103 S. E. 880), that “where the plaintiff was driving a horse attached to a buggy, along a public highway, and the horse became frightened by the operation of an approaching automobile of the defendant and fell into a ditch and was injured, the act of a third person in the buggy with the plaintiff, in grabbing the lines and attempting to control the frightened horse, which pulled the horse into the ditch where he was injured, was not necessarily the legal cause of the injury;” and that “whether the operation of the defendant’s automobile in frightening the horse, or the grabbing of the lines by the third person, was the legal cause of the injury to the horse, and whether or not the defendant was negligent, were issues for the jury.” The rulings in Schofield v. Hatfield, 25 Ga. App. 513 (103 S. E. 732), and Moody v. DuBois, 29 Ga. App. 652 (116 S. E. 219), were similar. In like manner we hold in the case at bar that the questions of negligence or diligence, and of contributory negligence and proximate cause, as presented by the petition, were questions to be answered by the jury. It was therefore error to sustain the general demurrer. See Dabbs v. Rome Railway & Light Co., 8 Ga. App. 350 (1), (3) (69 S. E. 38); Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 (70 S. E. 203).

Where the judgment of the trial court sustaining a demurrer which contains both general and special grounds is expressly limited to the general grounds, or from its language may be so construed, the special grounds will not be considered upon review, but will be left to subsequent determination by the trial court. Willingham v. Glover, 28 Ga. App. 394 (111 S. E. 206). The rule is otherwise, however, where a general order of dismissal is rendered, in which it does not appear that the general grounds only were passed upon. In that case the judgment will be treated as sustaining the entire demurrer upon all its grounds, and the special as well as the general grounds must be considered upon review, if the petition is not subject to the latter. Willingham v. Glover, supra; Price v. Ketchum, 29 Ga. App. 179, 182 (115 S. E. 32). The trial judge in this case having passed only upon the general grounds of the demurrer, the special grounds will be left for his future determination.

Judgment reversed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    14754.
    Kelley v. Pafford.
    Decided February 27, 1924.
    Certiorari; from Berrien superior court—Judge Dickerson. September 4, 1922.

      Story & Story, for plaintiff in error.
   Stephens, J.

1. The judgment overruling the certiorari, which was rendered in vacation, without an order passed in term time setting the hearing, and without compliance with the provisions of section 4853 of the Civil Code (1910), was void. Lott v. Wood, 135 Ga. 821 (70 S. E. 661).

2. The bill of exceptions brought by the defendant in certiorari, excepting to the rendition of the judgment in vacation, upon the ground of its invalidity, will not be dismissed; but since the judge of the superior court erred in taking jurisdiction, the judgment will be reversed. Walker v. Banks, 65 Ga. 20 (1); Pope v. Jones, 79 Ga. 487 (2) (4 S. E. 860); McDonald v. Farmers Supply Co., 143 Ga. 552 (2) (85 S. E. 861); Walker v. Turner, 58 Ga. 114; Jinks v. State, 115 Ga. 243 (41 S. E. 580).

Judgment reversed.

Jenkms, P. J., and Bell, J., concur.


text:
    14764.
    White & Hamilton Lumber Co. v. Lynch.
   Stephens, J.

1. A contract for the sale of lumber, which provides that the seller is to sell to the purchaser all the lumber which the seller saws on certain described premises at $20 per thousand feet, the seller guaranteeing to cut not less than 75,000 feet per month for a period of 18 months, to be sawed into certain agreed dimensions and afterwards stacked in a specified manner, and which provides that the purchaser is to buy from- the seller all the lumber cut as aforesaid, the purchaser agreeing to inspect the lumber so sawed, every two weeks, and to accept and pay therefor at the time, according to the contract price, is an entire contract for the sawing and delivery by the seller to the purchaser of the lumber contracted for.

2. Where in such a case the purchaser breached the contract by refusing to accept delivery of any lumber cut, sawed, stacked, and tendered in accordance with the terms of the contract, the breach amounted to a breach of the entire contract and relieved the seller from further performance. DeLoach v. Smith, 83 Ga. 665 (10 S. E. 436); Southern Upholstering Co. v. Lieberman, 27 Ga. App. 703 (109 S. E. 509).

3. The seller’s measure of damage resulting from the purchaser’s breach is, as to the lumber cut and tendered under the terms of the contract, the difference between the contract price and the. market price at the time and place of delivery (Matthews v. American Textile Co., 23 Ga. App. 675, 99 S. E. 308; Southern Upholstering Co. v. Lieberman, supra, and cases there cited), and as to the remainder of the lumber which the seller, after the purchaser’s breach, failed to cut and tender, the seller’s measure of damage is the difference between the contract price and what it would have cost him to perform his obligations under the contract, including whatever it would have cost him to purchase the timber. See, in this connection, Roehm v. Horst, 178 U. S. 1, 20 (20 Sup. Ct. 780, 144 L. ed. 953); Hinckley v. Pittsburg etc. Co., 121 U. S. 264, 274 (7 Sup. Ct. 875, 30 L. ed. 967); U. S. v Behan, 110 U. S. 338 (4 Sup. Ct. 81, 28 L. ed. 168); Delker Co. v. Hess Co., 138 Fed. 647, 652 (71 C. C. A. 97); Kingman v. Western Mfg. Co., 92 Fed. 486 (34 C. C. A. 489); Sizer v. Melton, 129 Ga. 143, 152 (58 S. E. 1055).

Decided February 27, 1924.

4. In a suit by the seller against the purchaser to recover damages for such an alleged breach of contract by the seller, a charge to the jury that as to the lumber actually cut and sawed under the terms of the contract the plaintiff’s measure of damages was the difference between the contract price and “the amount he was compelled to sell it at” was error harmful to the defendant, and a verdict finding for the plaintiff in an amount which includes damages for the lumber actually cut must be set aside.

5. Assuming that the plaintiff committed the first breach of the contract by failing to stack, in accordance with the terms of the contract, 20,000 feet of lumber actually cut from the premises, and therefore exonerated the defendant in thereafter refusing to perform, the verdict found for the plaintiff cannot upon this ground be set aside as being contrary to law and without evidence to support it, since such alleged breach of the contract by the plaintiff was not pleaded by the defendant as a defense.

6. The evidence authorized the inference that the seller, in tendering to the purchaser the installment of lumber actually sawed and stacked, had, in so doing, fully complied with all the terms and obligations of the contract. It follows, therefore, that the defendant’s refusal to accept amounted to a breach of the entire contract.

7. The testimony of the plaintiff as to the value of the timber per thousand feet on the stump, .and as to the expense per thousand feet incurred by him in sawing the timber into lumber, furnished sufficient data as to the expense necessary to comply with his obligations under the contract, had he performed by cutting and sawing the balance of the timber contracted for.

8. A contract under seal may be modified by a subsequent agreement in parol; and the authority of the agent of one of the contracting parties making the modification is not required to be under seal. The agent of the purchaser, therefore, although his authority as agent was not under seal, could nevertheless waive any failure on the part of the seller in tendering the lumber to comply with any of the stipulations of the contract.

9. Judgment is reversed, with direction that it shall stand affirmed if the plaintiff in the court below will, before or at the time the judgment of this court is made the judgment of the court below, write off the verdict an amount equivalent to $5 per thousand feet upon 38,892 feet of lumber actually saweu and stacked; which will cure the error indicated in paragraph 4 of the syllabus.

Judgment reversed, with direction.

Jenldns, P. J., and Bell, J., concur.

Breach of contract, from Taliaferro superior court—Judge Shurley. May 28, 1923.

Certiorari was granted by the Supreme Court.

Hatues Cloud, Alvin G. Goluche, for plaintiff in error.

I. 8. Peebles, J. A. Mitchell, contra.


author: Stephens, J. Pee Cueiam.

text:
    14362.
    WILKES LUMBER CO. v. SEABOARD AIR-LINE RAILWAY CO.
    Decided February 28 1924.
    Rehearing denied March 1, 1924.
    Action for damages; from Mclntosb superior court—Judge Sheppard. Eebruary 3, 1923.
    Application for certiorari was denied by the Supreme Court.

      Tyson & Tyson, for plaintiff.

      Conyers & Wilcox, for defendant.
   Stephens, J.

1. Damage to property of another, caused, by fire spreading from a burning box-car belonging to a railroad company, the car catching fire, through the carelessness of the employees of the company, from an overheated stove inside the car, which box-car was used by the employees for camping or housing purposes and was located on one of the company’s side-tracks adjacent to the property damaged, was damage caused by a person in the employment and service of the railroad company, and there was a presumption of negligence against the railroad company as provided in the Civil Code (1910), § 2780. See, in this connection, Talmadge v. Central of Ga. Ry. Co., 125 Ga. 400 (54 S. E. 128). In a suit by the owner of the property against the railroad company to recover for its loss by fire alleged to have been caused by such negligence it was error for the court to charge the jury that there was no presumption of negligence against the defendant, but that the burden was upon the plaintiff to prove such negligence.

2. Evidence that the owner of the property damaged had contracted to sell it at a certain price has no probative value in establishing its market value at the time it was damaged, where it does not appear at what time the contract of sale was made. The judge therefore properly excluded such testimony.

3. No other error appears.

Judgment reversed.

Jenloins, P. J., and Bell, J., eonour.

ON MOTION ROE EEHEARING.

Pee Cueiam.

The decision of the Supreme Court in Talmadge v. Central of Ga. Ry. Co., 125 Ga. 400 (3), does not vary the general rule as set forth in the syllabus, that where the negligent act of an employee of the company is alleged as the cause of damage, the negligence will be presumed on proof that the damage was caused by such act. It is the general rule that in such a case the plaintiff can only recover upon the grounds of negligence set forth in the petition. In the Talmadge case there was no claim that the damage was caused by a fire being negligently kindled or guarded, but the sole contention of negligence was laid in the condition of the car, considering the place, purpose and circumstances of its use. If in the Talmadge case it had been contended as in this case that the fire which caused the damage had resulted from a negligent act of an employee, the plaintiff would have been entitled to the presumption of negligence as alleged upon proof of the employee’s act and its causal connection with the damage. In the instant case the evidence, which was in keeping with the allegations of the petition, authorized the inference that the damage was caused by the negligent acts of the defendant’s employees in overheating a stove inside the ear, and the plaintiff’s contention of negligence did not depend upon the condition of the car itself.

We are speaking only of the inference which the jury under the evidence were authorized to draw, and not of any inference which they were compelled to draw. We do not, of course, intimate any opinion as to whether the finding of the jury was or was not erroneous'in fact. Our ruling is limited to the proposition that the court erred in its charge in denying to the plaintiff the benefit of the presumption of negligence.


text:
    14368.
    Dublin Veneer Co. et al. v. Chappell & Burch.
   Stephens, J.

I. An obligation in a promissory note to pay attorney’s fees is for the benefit of the payee or the holder of the note and is not for the benefit of the attorney at law representing the plaintiff in a suit to recover upon the note.

2. Where an attorney at law contracted with the payee .of a promissory note to collect it by suit or otherwise, and it was agreed between the attorney and his client that the attorney’s compensation for his services should be the amount collected out of the maker as attorney’s fees stipulated in the note, and where the attorney obtained a judgment upon the note, in which his client was plaintiff and tne maker of the note was defendant, which judgment did not include any amount as attorney’s fees, any agreement thereafter made with the maker of the note, by the terms of which the maker agreed to “pay said attorney’s fees although no judgment had been rendered rüerefor,” even if valid and enforceable, nevertheless inured to the benefit of the payee or holder of the note, and not to the benefit of the attorney.

Decided February 28, 1924.

Complaint; from city court of Dublin—Judge Sturgis. February 24, 1923.

Larsen & Croclcett, for plaintiffs in error.

W. C. Davis, contra.

3. A suit by the attorney against the maker to recover on such a contract was therefore not maintainable, and the court erred in not dismissing the petition.

Judgment reversed.

JenJdns, P. J., cmd Bell, J., concur.


author: Jenkins, P. J.

text:
    14425.
    MONTGOMERY v. BERRY.
    The parties being at issue as to the right to increase the storage charges on the defendant’s coRon to the rate for which the warehouseman was suing, and the evidence being in conflict as to what was the contract in regard to the rate, the court erred in directing a verdict against tne defendant for the amount sued for.
    Decided February 28, 1924.
    Complaint; from Floyd superior court-judge Wright. January 24, 1923.

      Porter & Mebane, for plaintiff in error.

      Paul H. Doyal, contra.
   Jenkins, P. J.

1. “A contract with a warehouseman may contain an express provision as to the charges and expenses which the bailor is to pay, in which case the contract will govern as to the amount, the items, and the time of payment. In the absence of a special contract, where goods are received by a warehouseman for storage in the usual course of business, there is an implied contract on the part of the bailor to pay the customary charges for storage and expenses, or such reasonable charges as warehousemen of like capacity and facility are entitled to. . . Where the depositor knows the charges of the warehouseman, he cannot refuse to pay'on the ground that they are unreasonable.” 40 Cyc. 450, 451; Dixon v. Central Ry. Co., 110 Ga. 173, 185 (35 S. E. 369).

2. In this suit for storage charges the plaintiff warehouseman testified that there was no express agreement as to the price of storage at the time when the cotton was stored, nor any understanding as to the price of storage remaining the same until delivery of the cotton. There was no evidence as to any custom among ware-housemen not to increase the charges on cotton already stored, such as was offered in Garmany v. Rust, 35 Ga. 109, 110, 113, and in Bush v. Cowart, 30 Ga. App. 138 (117 S. E. 104), which latter case is now pending in the Supreme Court on certiorari. The plaintiff therefore contends that after having given to the defendant customer written notice that he would increase the storage rates to the amounts claimed, he was legally entitled to make such a proper increase. The defendant and his employee, however, both testified in effect that at the time of placing the cotton in storage there was an express written contract made with the plaintiff as to the exact storage price a bale per month, that this agreed charge “was to remain in force until the cotton was delivered,” and that the amount thus due was “to be paid when we presented the receipts and called for the cotton.” Under the plaintiff’s evidence, he had the right to make the increase as claimed, which he testified was proper and customary, after notice to the defendant, regardless of whether or not the subsequent conversation between the plaintiff and defendant could or could not be taken as showing an implied consent by the defendant to such increase; and under this view of the evidence, the defendant, having permitted his cotton to remain in the warehouse after the plaintiff had requested him to remove it if the increase was not satisfactory, would be liable for the amount claimed. However, under the evidence of the defendant as to an express contract covering the storage price until called for by him, the plaintiff had no right to increase such agreed charges on the cotton thus placed until it was called for or delivered, in the absence of some new express or implied contract between the parties with reference thereto. The evidence for the defendant showed that he expressly protested against the increase, by reminding the warehouseman of his previous alleged contract, at the same time that the plaintiff warehouseman told him to remove the cotton if the increase was not satisfactory. Had the jury accepted the evidence for the defendant, a verdict in his favor would have been authorized. The evidence as to the main point in issue,—that is as to what the contract of storage actually was,—being thus in conflict, it was error to direct a verdict for the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14508.
    Collier v. Duckett.
    Decided February 28, 1924.
    Action for damages; from city court of Atlanta—Judge Eeid. March 31, 1933.

      L. G. & J. L. Hopkins, for plaintiff in error.

      B. B. Blackburn, contra.
   Stephens, J.

1. Where steps to a house on rented premises were not in a broken condition, but were apparently whole and safe for the use intended, an occupant injured by reason of the steps breaking while being used is not conclusively presumed to nave knowledge of the unsafe condition of the steps by reason of the fact that six months prior to the injury the occupant stated to the landlord that the steps were “old, worn out, and in bad repair,” when the landlord at the time, after receiving such notice and inspecting the premises, notified the occupant that the steps were in good condition and did not need repair and would last for a long time. The person injured, therefore, was not, in using the steps, guilty of such contributory negligence as would bar a recovery against the landlord for an injury sustained.

2. An inspection of the steps by the landlord six months prior to the time of the injury might have revealed such a defective condition in the

_ steps as might render them unsafe for use at the time of the injury, and the landlord’s failure to repair the steps after such inspection and after having been notified that the steps were old and worn out, may have amounted to negligence proximately contributing to the injury.

3. The petition as amended in the suit of the person injured against the landlord to recover for alleged injuries thus sustained set out a cause of action and the demurrer thereto was properly overruled.

Judgment affirmed.

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


text:
    14545.
    Napier v. Bank of LaFayette.
    Decided February 28, 1924.
   Stephens, J.

1. A written transfer by the payee of a promissory note in which title to personalty is reserved as security for the payment of the note carries with it a transfer to the transferee of the title to the property. This is true although the indorsement is in blank. Jordan Mercantile Co. v. Brooks, 149 Ga. 157 (99 S. E. 289); Hooper v. Bank of Hiawassee, 29 Ga. App. 459 (116 S. E. 32).

2. This being a suit by such a transferee against the maker, to recover in trover the personalty referred to, and the defendant having set up in his plea a failure of consideration, and it appearing that he was in possession of the property at the commencement of the action, no demand was necessary. Civil Code (1910), § 4483; Muse v. Wright, 103 Ga. 783 (30 S. E. 662).

Judgment affirmed.

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

Trover; from Catoosa superior court—Judge Tarver. February 24, 1923.

McClure & McClure, W. D. Mann, for plaintiff in error.

Norman Shattuclc, Rosser & Shaw, contra.


text:
    14638.
    Brunswick-Balke-Collender Co. v. Bailey.
    Decided February 28, 1924.
    Certiorari; from Fulton superior court—Judge Bell. March 26, 1023. ' ,

      C. M. Lancaster, W. S. Dillon, for plaintiff in error.
    ' Troutman & Troutman, contra.
   Stephens, J.

1. Where a city elevates a street abutting on rented premises, and thereby causes the premises to be flooded with water from the street, rendering the premises untenantable by reason of the water flowing into a house thereon, the landlord’s duty to keep the premises in repair does not obligate him to build, a retaining wall to exclude the water, or to make any other improvement thereon for such purpose. The landlord’s duty to repair does not obligate him to remove from the premises any water, mud, or other debris accumulating thereon as a result of the altered condition of the street. Any untenantable condition forcing the tenant to vacate, caused by the water, being the result of a casualty beyond the landlord’s control, does not relieve the tenant from his obligation to pay the rent contracted to be paid.

2. In a suit by the landlord to recover against the tenant for unpaid rent for a period during the term but after the tenant had vacated the premises, where the tenant defended upon the ground that the contract had been terminated by the failure of the landlord to keep the premises in repair, where the above facts appeared from undisputed evidence, and the tenancy was admitted, and the amount of the rent unpaid was undisputed, a verdict was properly directed for the plaintiff, in the amount sued for; and the judge of the superior court did not err in overruling the defendant’s certiorari.

Judgment affirmed.

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


text:
    14717, 14718.
    Savannah River Lumber Co. v. Strickland; and vice versa.

   Stephens, J.

1. Where timber is sold at a certain price upon the stump, the purchaser, after having cut it, is bound under the contract to pay for it although he left it upon the premises of the seller.

2. Where the seller afterwards, in ignorance of the identity of the timber, purchases it from another, to whom the original purchaser has abandoned it, the original purchaser is not thereby relieved of his obligation to pay the seller for it. See, in this connection, Tharp v. Anderson, 31 Ga. 293; Spiers v. Hubbard, 12 Ga. App. 276 (78 S. E. 136).

Decided February 28, 1924.

Complaint; from city court of Jesup—Judge Clark. May 1, 1923.

Thomas & Wallcer, for plaintiff in error in main bill.

James R. Thomas & 8on, contra.

3. Where in such case the purchaser of the timber brought suit against the seller to recover the amount of an alleged indebtedness claimed to have arisen out of another contractual obligation between the parties, and the seller filed a set-off against the purchaser, to recover the contract price for the timber, and the undisputed evidence showed the above facts, a finding in favor of the purchaser on the set-off was without evidence to support it, and the verdict finding generally for the plaintiff was unauthorized, and the court erred in overruling the defendant’s motion for a new trial.

3. The original order granted on the defendant’s motion for a new trial having provided that the movant should have until the final hearing to prepare and present for approval a brief of the evidence, the motion of the plaintiff as respondent, made at the hearing of the motion for a new trial, to dismiss the motion for a new trial, upon the ground that the brief of evidence had not been presented for approval within the time required by law, was without merit.

Judgment reversed on the main bill of exceptions; judgment affirmed on the cross-bill.

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


text:
    14726, 14802.
    Ashcraft-Wilkinson Co. v. First National Bank of Madison et al.; and vice versa.

   Stephens, J.

1. An affidavit for garnishment against an administrator, which omits the allegation that the defendant is insolvent, or is a non.resident, as required by the Civil Code (1910), § 5304, in such proceedings, is amendable, under section 5706 of the Civil Code (1910). Stovall v. Joiner, 10 Ga. App. 204 (73 S. E. 22).

2. Where another person, having issued summons of garnishment against the same garnishee, arising out of a suit pending by him against the same defendant, returnable to the same term of court, dismisses his suit, together with the garnishment proceedings, and takes from the defendant an assignment of the fund sought to be garnished, thus attempting to defeat the garnishment instituted by the first plaintiff and thereby obtain a greater amount than the second plaintiff would have obtained by a participation in the fund brought into court by virtue of the first garnishment, such second plaintiff, although he had by a dismissal of his garnishment forfeited his right to participate in a distribution of the fund, cannot be held to have acted to his injury, and the first plaintiff is therefore not estopped from amending his affidavit for garnishment. Stovall v. Joiner, supra. Having given up a small advantage in an effort to obtain a bettor one, the second plaintiif cannot in equity and good conscience claim to have been placed at a disadvantage by an amendment to the original affidavit of the first plaintiff, allowed and filed, curing the original defect and supplying the necessary allegations as to the insolvency of the defendant.

Decided February 28, 1924.

Claim; from city court of Madison— Judge Lambert. May 5, 1923.

Application for certiorari was made to the Supreme Court.

Walter Merritt, for plaintiff.

Williford & Buhe, contra.

3. The first plaintiif having amended his affidavit for garnishment as above indicated, and having by service of a summons of garnishment caught funds in the hands of the garnishee executors belonging to the defendant, subject to the assignment of the funds by the defendant to the second plaintiif, who, after having dismissed his garnishment, had interposed a claim to the fund, and the latter, as claimant, carrying the burden of proof, not having offered evidence to show that the assignment of the funds to him antedated the date of the service of the summons of garnishment, the trial judge erred in awarding the funds to the claimant.

4. The court erred in awarding attorney’s fees to the garnishee, and also to the plaintiif, out of the funds.

Judgment reversed on both bills of exceptions.

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


text:
    14751.
    Braswell v. Braswell & Son.
   Stephens, J.

1. Prior to August 21, 1922, growing crops ungathered passed as part of the realty, and a bona fide purchaser of the land for value without notice of the existence of a mortgage upon the growing crops acquired title to the crops.

2. A statement to a purchaser that there was in existence a mortgage upon the property purchased, when no such mortgage existed, does not constitute notice of a mortgage afterwards created upon the property before the sale.

3. The evidence admitted and objected to as set out in the first ground of the amendment to the motion for a new trial, being an extrajudicial statement of the witness, and such statement not being impeaching in character and not having been made in the presence of one of the parties to the case, is irrelevant and immaterial, and was therefore improperly admitted.

4. This being an issue formed upon a claim filed to property levied on under a mortgage foreclosure, and it appearing from undisputed evidence that the claimant was a bona fide purchaser for value, without notice of the mortgage, the verdict for the plaintiif in fi. fa., finding the property subject, was unauthorized, and the court erred in overruling the claimant’s motion for a new trial.

Decided February 28, 1934.

Levy and claim; from city court of Monroe—Judge Felker. May 16, 1923.

R. L. & H. G. Cox, E. W. Roberts, for plaintiff in error.

A. G. Stone, Orrin Roberts, contra.

Judgment reversed.

Jenkins, P. J., and Bell, J.,'conow.


author: Stepiiews, J.

text:
    14249, 14250.
    Pacific Mutual Life Insurance Company v. Caraker; and vice versa.

   Stepiiews, J.

1. Upon a breach of an executory contract for services to be performed on commission, the ascertainable profits therein inuring to the benefit of the innocent party may be recovered; but where such profits are incapable of definite ascertainment, an alternative remedy for the breach is the recovery, by the party aggrieved, of the necessary and legitimate expenses authorized by the contract or in contemplation of the parties at the time of its execution and incurred by him in preparing to perform, less the value of materials on hand; or, where there has been part performance, such expenses, together with reasonable compensation for services rendered, which are part of the expenses, less the profits which have already been collected as a result of such part performance, are recoverable. U. S. v. Behan, 110 U. S. 338 (4 Sup. Ct. 81, 28 L. ed. 168); Kingman v. Western Mfg. Co., 92 Fed. 486 (34 C. C. A. 489); Worthington v. Gwin, 119 Ala. 44 (24 So. 739, 43 L. R. A. 382).

2. Where the innocent party has partly performed the contract and has earned and collected profits thereunder which were necessarily earned as a result of the expenditures made by him in performing the contract, he cannot recover both the expenses thus incurred and the profits thus earned, but may recover such expenses, together with reasonable compensation for the services rendered, by accounting to the opposite party for the earnings which have thus already accrued as a result of his services and expenditures.

3. The expenses incurred in preparing to perform the contract necessarily include only expenditures for which the defendant received nothing of value in return but which were incurred by him in performing under the contract.

4. In a suit for a breach of the contract these alternative remedies may be . joined in separate counts, and tlie plaintiff may recover upon either count as tlie evidence adduced may authorize.

5. An allegation in the petition that the plaintiff performed the contractual obligation resting upon him to establish agencies and subagencies throughout the territory sufficiently alleges such a part performance of the contract (which was not in writing) as would take the contract without the statute of frauds.

6. Where the contract sued upon provides that the plaintiff shall for a period of two years act as general agent for the defendant, an insurance company, in certain designated territory, in soliciting accident and health insurance policies for the defendant, for winch services the plaintiff is to receive a stipulated commission out of the premiums collected on such policies, and that the plaintiff shall establish at his own expense special agencies and subagencies throughout the territory covered by the contract, the plaintiff may, after complying with the terms of the contract, maintain a suit thereon because of the defendant’s breach in discharging the plaintiff and preventing the performance by him of the contract before the expiration of the period during which the contract was to run, and, as damages resulting from the breach, may recover either his profits inhering in the unperformed contract, or, in the event the profits cannot be ascertained with such certainty as to be recoverable, may, by relinquishing all profits earned, recover the actual expenses incurred by him, together with reasonable compensation for services rendered, in establishing and maintaining agencies and subagencies throughout the territory in the performance of the duty resting upon him under the contract.

7. The profits inhering in the contract, and which are recoverable if definitely ascertainable, are, in the contract sued on, necessarily such as would arise out of premiums from policies which the plaintiff might have renewed during the period of the contract, and tlie count in the petition which alleges such profits as the plaintiff’s measure of damages for a breach of the contract was not subject to demurrer upon the ground that such alleged damages were not legally recoverable, and the court did not err in overruling such demurrer.

8. The plaintiff having alleged the proper measure of damages in a certain sum, such damages are legally recoverable, and, it not appearing from the petition that such damages are impossible of ascertainment, the facts essential to their establishment are matters of proof.

9. The count in the petition which alleges the plaintiff’s damages as being the amount expended by him in establishing agencies and sub-agencies in accordance with the obligation resting upon him under the contract, and also the value of services rendered, alleges an amount which is legally recoverable, after deducting the net profits which the petition alleges the plaintiff has earned and received under the contract ($4,385), and was not subject to demurrer upon the ground that such alleged damages were not legally recoverable; and the court erred in sustaining such demurrer and in striking this count from the petition.

10. It appearing, however, from the.petition that the plaintiff had received his commissions out of all premiums collected, he cannot recover the full value of services performed as alleged in the last-mentioned count in the petition.

See in this connection, Tygart v. Albritton, 5 Ga. App. 412 (63 S. E. 521); Webster v. Beau, 77 Wash. 444 (137 Pac. 1013, 51 L. R. A. (N. S.) 81); also notes in 51 L. R. A. (N. S.) 84, 89; 24 L. R. A. 231; 5 L. R. A. (N. S.) 439; 3 Willston on Contracts, § 1341; Civil Code (1910), § 4402; Roberts v. Glass, 112 Ga. 456 (37 S. E. 704).

Decided February 29, 1924.

Action for breach of contract; from city court of Atlanta—Judge Keid. January 2, 1923.

Little, Powell, Smith & Goldstein, for plaintiff in error in main bill of exceptions.

Spalding, MacDougald & Sibley, contra.

Judgment affirmed on the main bill of exceptions, and reversed on the cross-bill.

Jenlcims, P. J., and Bell, J., concur.


text:
    14400.
    Jones v. Schacter.
   Stephens, J.

1. In a suit by a landlord against a tenant to recover rent, a plea of res judicata filed by the tenant, alleging that in a former suit between the parties, wherein the tenant was plaintiff and the landlord was defendant, the rights of the parties arising under the contract sued on had been adjudicated, either under the petition there filed by the former plaintiff or under a set-off there filed by the former defendant, is not supported by the evidence, where the pleadings in the former trial, introduced in evidence, show that the former plaintiff’s petition and the former defendant’s set-off were each

* upon open account, and where it does not appear from the pleadings in the former suit or from any evidence adduced at the former trial that in either the former plaintiff’s petition or the former defendant’s plea of set-off any issue was sought to be inquired into or was actually inquired into under any contract of rental. The fact that on the former trial the presiding judge did, at the request of the then defendant (the present plaintiff), give in charge to the jury certain principles of law respecting the duty of a landlord to keep rented premises in repair and respecting his liability for improvements placed thereon by his consent, is not sufficient to show that the rights of the parties under any rent contract 'were actually inquired into and adjudicated on the former trial, since, in the absence of any evidence in the present case as to what evidence was introduced upon the former trial, it does not appear that such charge was pertinent and material to any issue there presented.

2. Evidence on the trial of the pending case that the obligations adjudicated in the former case arose out of the contract of rental li.ere sued on is not evidence of what issues were actually‘made in the evidence on the former trial.

3. While it is true that if the matter in the pending case was not in fact litigated in the former suit, yet if it could and should under the rules of pleading have been there adjudicated, it is res judicata, and while a suit on open account may be maintained to enforce a right arising under an express contract when the plaintiff has performed his obligations under the contract and the only unperformed obligation by tlie defendant is his obligation to respond by payment (which in the present case does not appear), a suit on quantum meruit or open account cannot by amendment be converted into a suit upon an express contract. Tumlin v. Bass Furnace Co., 93 Ga. 594 (2) (20 S. E. 44); Alabama Construction Co. v. Continental Car Co. 131 Ga. 365 (5) (62 S. E. 160).

Decided February 29, 1924.

Rehearing denied March 1, 1924.

Certiorari; from Fulton superior court—Judge Humphries. February 13, 1923.

Myron Herzberg, Morris Machs, for plaintiff in error.

Hewlett & Dennis, contra.

4. It therefore does not appear that the obligations arising under the contract of rental here sued on could by amendment have been adjudicated in the former litigation; and since it does not appear that they were in fact adjudicated in the former litigation, the adjudication of the former suit is not res judicata as to the rights and obligations arising under the contract sued on in the pending ease. Civil Code (1910), § 4336; Hoffman v. Summerford, 28 Ga. App. 247 (111 S. E. 68).

5. The defendant’s plea of res judicata being without evidence to support it, and it appearing from undisputed evidence that the amount of rent sued for was due by the defendant to the plaintiff, the judge of the municipal court properly directed a verdict for the plaintiff, and the judge of the superior court did not err in refusing to sanction the defendant’s petition for certiorari.

Judgment affirmed.

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


author: Stephens, J. Jenkins, P. J.,

text:
    14630, 14688.
    White et al. v. Morris Fertilizer Company; and vice versa.

   Stephens, J.

1. Where goods are placed on consignment by the owner with his agent, to be sold by the agent to customers for the owner’s benefit at prices fixed in the contract of consignment, and the goods are “disposed of” by the agent and the “proceeds” of the goods are used by the agent in his business and lost, without the knowledge or consent of the owner, this does not constitute a wilful and malicious injury to the property, and the liability of the agent to the owner, arising therefrom, is not exempt from discharge in bankruptcy under exception 2 of § 17 a of the bankruptcy act of 1898 as amended. See 1 Collier on «Bankruptcy (13th ed.), 636.

2. The agent’s relationship to the principal, not being that of a trustee arising out of an express trust, but being that of a fiduciary relationship implied from a contract, which was one of bailment, the agent is not acting in such a fiduciary capacity as would exempt his liability from discharge in bankruptcy under exception 4 of § 17 a of the bankruptcy act.

3. There is no evidence whatsoever that the property was obtained by the agent by virtue of any false pretense or false representation, and therefore the liability is not exempt from discharge in bankruptcy on account of fraud under exception 2 of § 17 a of the bankruptcy act.

Decided February 29, 1924.

Complaint; from Madison superior court—Judge W. L. Hodges. April 28, 1923.

Application for certiorari was denied by the Supreme Court.

Gordon & Gordon, Horace & Franlc Holden, for plaintiffs in error. Z. B. Rogers, J. L. Mayson, contra.

4. The suit being upon a promissory note given for the purchase price of the goods consigned, in which the defendant filed a plea of discharge in bankruptcy, a judgment sustaining the plea was demanded and the judgment for the plaintiff was without evidence to support it. See, in this connection, 7 C. J. 398; 42 L. R. A. (N. S.) 1093; Ford v. Blackshear Mfg. Co., 140 Ga. 670 (79 S. E. 576); Moody v. Muscogee Mfg. Co., 134 Ga. 721 (68 S. E. 604, 20 Ann. Cas. 301); Walker v. Capital City Gro. Co., 28 Ga. App. 531 (112 S. E. 157).

5. The suit being upon promissory notes, and therefore an action ex contractu, and not a tort action for a wilful and malicious injury to property, is it such a claim as is exempt from discharge in bankruptcy under exception 2 of section 17 a of the bankrupt act of 1898 as amended ?

6. Also, did not acceptance by the creditor of a note in payment of the goods change the nature of any fiduciary relationship, if any existed, prior to the acceptance of the note, and create the relationship of ordinary debtor and creditor, and a debt dischargeable in bankruptcy? See Coleman v. Davies, 45 Ga. 490; Lawton v. Fish, 51 Ga. 647 (1); 42 L. R. A. (N. S.) 1093, note.

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

Bell, J., concurs. Jenkins, P. J., dissents on main hill, and concurs on cross-hill.

Jenkins, P. J.,

dissenting. Upon tbe essential question involved in the main bill of exceptions I respectfully differ with my colleagues. Section 17 a (2) of the bankruptcy act as amended provides that “a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as . . are liabilities . . for wilful and malicious injuries to the . . property of another.” “In order to come within that meaning as a judgment for a wilful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so that «without it the action could not be maintained. . . Malice, in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.” Tinker v. Colwell, 193 U. S. 473, 485, 486. • Whatever the earlier diversity of view, the question seems now settled by the rulings in Covington v. Rosenbusch, 148 Ga. 459, and in McIntyre v. Kavanaugh, 242 U. S. 138. In those cases it was held that one who, without authority of the owner, deliberately converts to his own use the property of another “is guilty of a wilful and malicious injury to property, within the meaning of the bankrupt act, sec. 17 (2) as amended . ., and consequently his liability is not released by a discharge in bankruptcy.” In the instant ease it was admitted in the agreed statement of facts that the fertilizer for which the note sued on was given was delivered under an express written consignment contract, by which the defendants as agents were to deliver back unsold material, the proceeds of the property sold, and all evidences of debt therefor, the title to all of which remained in the plaintiff; that the defendants disposed of all of this property and returned nothing to the plaintiffs, but that the proceeds were “used in the defendants’ business and lost and without the permission or consent of plaintiffs.” This was not a mere technical conversion, such as was controlling in Walker v. Capital City Grocery Co., 28 Ga. App. 531, but was a conversion such as falls within the statute. In my opinion the trial court properly ruled, under this provision of the bankrupt apt, that the bankrupt’s discharge was ineffective.


author: Stephens, J. Bell, J.,

text:
    14634.
    LEWIS v. CITY OF MOULTRIE.
   Stephens, J.

1. A written notice to a municipal corporation of the intention of a person injured to bring 'suit against it at a certain term of court, to recover for alleged injuries, is a presentation in writing of such claim to the governing authority of the municipal corporation for adjustment, as required by the Civil Code (1910), § 910. This is a substantial compliance with the statute and gives the notice required.

2. A service upon the municipal corporation of a verbatim copy of the petition which the person injured intends to file in a suit against it, which states the time, place, and extent of the injuries complained of, accompanied by a letter from the plaintiff’s attorneys to the clerk of the municipal corporation, reciting the name of the case and stating that “we inclose herewith claim in the above-stated matter as required by law,” is, under the above ruling, sufficient as a presentation of the claim for adjustment.

3. In a suit against the city, by the person injured, where it appeared that a written notice as above indicated had within due time been served upon the municipal corporation, and where the evidence otherwise authorized a verdict for the plaintiff, the trial judge erred in rejecting evidence tending to establish the notice and in awarding a nonsuit.

Decided February 29, 1924.

Action for damages; from Colquitt superior court—Judge W. E. Thomas. April 3, 1923.

Application for certiorari was denied by the Supreme Court.

Bowling, Aslcew & Whelchel, for plaintiff.

P. Q. Bryan, for defendant.

4. The decision in the case of City of Tallapoosa v. Brook, 138 Ga. 622 (75 S. E. 644), is not authority to the contrary, since it does not appear from the facts there narrated that the notice was served upon the governing authorities of the municipal corporation. It is there held that such a notice as above described, when directed to and served upon the mayor, was “not such a presentation of the claim or demand to the governing authorities for adjustment as to meet the requirements of the statute.”

Judgment reversed.

Jenkins, P. J., concurs. Bell, J., dissents.

Bell, J.,

dissenting. I respectfully differ with my colleagues in the construction of the decision of the Supreme Court in City of Tallapoosa v. Brock, 138 Ga. 622 (2). I think that the ruling in that case had reference not only to the sufficiency of the presentation, but also to the form of the claim, and that it is controlling upon the proposition that the writings in this case did not constitute such a “claim” as the law requires to be presented. I am therefore of the opinion that the nonsuit was proper.


text:
    14641.
    New York Life Insurance Co. v. Wright, insurance commissioner.
   Stephens, J.

J. All “premiums” and “gross receipts” of insurance companies doing business in this State, which are subject to taxation under the general tax act of 1918 (Ga. L. 1918, p. 43, § 6, on p. ¡73), as amended by the act of 1919 (Ga. L. 1919, p. 45, § 2, on p. 54), include, as applied to life-insurance companies, the actual maximum table rate of premium which the policyholder is, under his contract of insurance, required to pay to the insurance company, and which obligation is discharged by the policyholder either by a payment in full to the company or by a partial payment thereon, supplemented by a credit made thereon by the company of any so-called “dividend” which has accrued to the policyholder, although such “dividend” may be an amount which had been collected from the policyholder as part payment of a former premium on the policy, but which was in fact a surplus collected over an amount which had been afterwards ascertained as being a sufficient premium for carrying the policy for the period for which such payment had been made, and which was money belonging to the policyholder and returnable to him.

Decided February 29, 1924.

Complaint; from Fulton superior court—Judge Bell. April 18, 1923.

Application for certiorari was denied b}r the Supreme Court.-

Bryan & Middlebrooks, for plaintiff.

George M. Napier, attorney-general, Seward M. Smith, assistant attorney-general, for defendant.

2. The word “premiums,” as used in the act, is to be given the construction placed upon it by ordinary usage and in accordance with its apparent meaning when used in insurance policies, and which is placed upon it by agents of insurance companies in dealing with the public, which includes the maximum table rate premium stipulated in the policy, the payment of which the company can exact as a condition precedent to keeping the policy in life, and which in fact it does exact when the insured's obligation to pay it is discharged by the company crediting the payment with the so-called “dividend.” This construction of the word is demanded by the language of the act, which taxes “all premiums in money or otherwise received” by insurance companies.

3. “Gross receipts,” as used in the act, include the actual cash collected by the company on obligations from its policyholders, together with money in the hands of the company due the policyholders which is credited by the company upon the indebtedness. It cannot be assumed that the legislature, in using the words “gross receipts,” intended to distinguish between money actually received by the insurance company from its policyholders and “dividends” or other funds in the hands of the insurance company due the policyholder and which the insurance company retained and applied upon an indebtedness due it from its policyholders. Besides, the expression is used in apposition to “all premiums in money or otherwise received,” and must therefore necessarily be construed as having the same meaning as the latter. .

4. A tax paid by a life-insurance company to the comptroller-general of the State of Georgia upon such an excess amount collected from its policyholders in the State of Georgia was legally due the State, and the petition in a suit by the life-insurance company against the comptroller-general, seeking to recover an amount so paid to the comptroller-general, was properly dismissed on demurrer.

Judgment affirmed.

Jenlcms, P. J., and Bell, J., eonewr.


text:
    14709.
    Murphey v. Northeastern Construction Company.
    Decided February 29, 1924.
    Attachment; from city court of Richmond county—Judge Black. May 1, 1923.

      I. S. Peebles Jr., for plaintiff. H. G. Howard, for defendant.
   Stephens, J.

1. Where a purchaser has breached a contract to produce and sell, the seller’s measure of damage, where he has not produced the articles contracted to be sold, is the difference between the contract price and what it would have cost the seller to perform his obligations under the contract. See, in this connection, Civil Code (1910), §§ 4395, 4402; Steinhauer v. Thompson, 16 Ga. App. 470 (85 S. E. 677); Mims v. Betts, 9 Ga. App. 718 (72 S. E. 271); U. S. v. Behan, 110 U. S. 338 (4 Sup. Ct. 81, 28 L. ed. 168); Worthington v. Gwin, 119 Ala. 44 (24 So. 739, 43 L. R. A. 382); Kingman v. Western Mfg. Co., 92 Fed. 486 (34 C. C. A. 489).

2. Where the seller has contracted to procure and deliver to another a certain amount of stone and sand at a designated price, and the latter has wrongfully prevented the performance of the contract by refusing to accept any of the material contracted for, and the innocent party has not procured the sand and stone, but has incurred the expense of hiring teams for the purpose of hauling and delivering the materials contracted for, and such teams have, through no lack of diligence upon the part of such innocent party, remained idle during the time of their employment, and he has received nothing of value in return therefor, and such expense is a total loss to him, this expense may, in addition to the profits inhering in the contract, be recovered. .

3. An allegation in the petition, that the expense of hiring has been contracted for, is a sufficient allegation of an expense incurred, even though the hiring has not been paid for. An incurred obligation to pay will be considered as an expense incurred, and presumably will be paid. This, prima facie, is an expense that has been incurred, but the presumption may be rebutted by proof.

4. While ordinarily the first item of damage would be the difference between the contract price and the value of the commodity sold, at the time and place of delivery, yet where the materials had no market value and could not be resold at the time and place of delivery, the damage may be measured by the difference between the contract price and what it would have cost him to perform. Wallace v. Tumlin, 42 Ga. 462 (4); Southwestern R. Co. v. Rowan, 43 Ga. 411; Bryan v. Southwestern R. Co., 41 Ga. 71.

5. This being a suit by the innocent party against the other contracting party for damages for failure to perform as above indicated, and it appearing that the petition set out a good contract and a breach, and prayed for damages capable of definite ascertainment under the facts alleged in the petition, and legally recoverable under the above rulings, the court erred m sustaining the general and special demurrers interposed thereto.

Judgment reversed.

Jenlcins, P. J., a/nd Bell, J., concur.


text:
    14416.
    Georgia Southern & Florida Railway Co. v. Shiver.
    Decided March 1, 1924.
    Action for damages; from city court of Valdosta—Judge Little. March 1, 1923.

      J. E. Hall, C. J. Bloch, Patterson & Copeland, for plaintiff in error. E. K. Wilcox, Taylor & Spurlin, contra.
   Stephens, J.

1. Where the evidence presented the issue of comparative negligence, and the judge instructed the jury the rule in reference thereto, but thereafter charged them in such a way as to deprive the defendant of the benefit of that rule, the latter charge was error.

2. Where the court instructed the jury that a railroad company is liable for damage done to personal property by the running of its trains or locomotives, and that where such damage is done the presumption is against the company, it was not harmful to the defendant for the court in this connection to fail to instruct the jury that such liability was dependent upon the failure of the company to show that its agents had exercised ordinary and reasonable care and diligence, the court elsewhere in the charge clearly and fully instructing the jury that such presumption was not conclusive against the company, but was subject to rebuttal by the company making it to appear that its agents had exercised ordinary care and diligence.

3. The court properly instructed the jury that the plaintiff could not recover unless the negligence of the defendant was the proximate causé of the damage.

4. There being no evidence from which the jury could have inferred that the plaintiff’s damage was caused by his consent, it was not error for the court to fail to charge tne jury that the plaintiff could not recover if he consented to the injury.

5. The court clearly charged the jury that damages for pain and suffering were to be determined solely by the enlightened consciences of an impartial jury; and the charge is not subject to the exception that the jury was instructed that this rule was applicable to damages other than to pain and suffering.

6. The charge is not subject to the exception that the court expressed an opinion upon the facts.

Judgment reversed.

Jenhins, P. J., and Bell, J., concur.


text:
    14556.
    MASSACHUSETTS BONDING & INSURANCE CO. et al. v. UNITED STATES CONSERVATION CO.
    1. Where no property of the defendant in attachment is seized either by a direct levy or by garnishment issued on the attachment, there is no attachment, and therefore the defendant in attachment cannot recover on the statutory bond given by the plaintiff under section 5057 of the Civil Code (1910).

      2. A recovery upon the bond is limited to damages sustained and costs incurred in consequence of the attachment suit,—that is, the suit which is created by the levy,—which includes expense and costs incurred in defending against the attachment, but does not include any expense or costs incurred in defending or prosecuting any ancillary issue to which the defendant in attachment is not a party, or in adjusting and handling his business so as to prevent its being interfered with by any additional levies. Where no levy is made, and there is therefore no attachment suit, no recovery on the bond can be had for any expense or costs incurred by the defendant in attachment in voluntarily appearing and filing an answer and in defending the suit as at common law.
    3. It being essential to the right of recovery on the attachment bond that the property actually seized under the attachment belong to the defendant in attachment, the record in the attachment proceeding is not, in a suit to recover on the bond, conclusive ás to the title to property actually seized or levied upon. The true status as to the ' title of the property seized may be shown.
    4. Where the local agents for the defendant in attachment made declarations within the scope of their authority, in representing the defendant in attachment in matters pertaining to the pending litigation, or such declarations were made at the instigation of the defendant in attachment through an authorized attorney at law of the latter, contained in an answer to a summons of garnishment issuing on the attachment and served upon the agents, or contained in a claim filed by the agents to funds caught in the hands of another garnishee,- by garnishment issuing on the attachment, or contained in a traverse to the answer of such other garnishee, or elsewhere, which were all to the effect that the funds caught by garnishment in the hands of the other garnishee, and which the latter in its answer had alleged to be the property of the defendant in attachment, were not in fact the funds of the defendant in attachment, but belonged to the claimant, the declarations were relevant and admissible in evidence as declarations binding upon the principal, made by the agent when acting within the scope of the agent’s authority. In a subsequent suit by the principal to recover upon the attachment bond, such declarations were relevant and admissible in evidence as admissions against the principal that the funds caught by garnishment were not in fact the property of the defendant in attachment, and the exclusion of such evidence was error.
    5. Any admission which the defendant in attachment may have made in his plea filed in the attachment suit, not germane to a matter then in issue, is not conclusive against him as an admission in judicio, and does not amount to an estoppel in a subsequent suit by him against the plaintiff in attachment to recover on the bond.
    6. Whatever legal defense, if any, may have been set out in the defendant’s plea, which was stricken on demurrer, having been fully put in issue by the petition and the answer, the striking of the defendant’s plea on demurrer was harmless.
    Decided February 28, 1924.
    Action on bond; from city court of Atlanta—Judge Eeid. March 31, 1923.

      Upon a bond executed under section 5057 of^the Civil Code (1910), as the basis for the issuance of an attachment, suit for damages because of the attachment was brought by the United States Conservation Company against Allen, as principal, and the Massachusetts Bonding Company as surety. The petition alleges, among other things: that the defendant Allen sued out an attachment against the plaintiff, giving the statutory bond required; that upon the attachment summons of garnishment was served, and a certain sum of money belonging to the plaintiff was caught in the Fulton National Bank; that Allen, as plaintiff in attachment, failed to recover in the attachment suit, and that thereby the plaintiff was damaged, etc.; that the bond was thereby breached, thus rendering the plaintiff in attachment and his surety liable for the damages thus sustained. The defendants in their answer denied generally the allegations of the petition, but by amendment they alleged that no property belonging to the plaintiff was seized under the attachment; that the plaintiff, in filing an answer in the attachment proceedings, did so voluntarily, and not as the result of any seizure of the plaintiff’s property under the attachment, thus converting the action into one as at common law, and that any expense incurred by the plaintiff in defending the suit by reason of the appearance thus made was not a result of the issuance of the attachment or of any seizure of the plaintiff’s property, but was solely the result of the plaintiff’s voluntary appearance and pleading in the case; that the answer of the plaintiff as defendant to the declaration in attachment amounted to a denial that any property of the plaintiff had been seized by the attachment, which denial constituted an admission in judicio, and that the plaintiff was by reason of such denial estopped from now alleging that its property had been seized under the attachment. The answer contained allegations to the effect that the funds in the Fulton National Bank, which the plaintiff in his petition alleged were caught by the garnishment, were claimed by a third person at the instance of the plaintiff, and that for this reason the plaintiff is estopped from now asserting that the funds in the bank when caught by the garnishment were the funds of the plaintiff. This amendment was demurred to by the plaintiff generally, upon the ground that the matters pleaded therein constituted no defense to the suit; and was demurred to specially upon the ground that the allegation as to the effect of the answer filed in the attachment proceedings was a mere conclusion of the pleader. These demurrers were sustained and the amendment stricken and dismissed. The trial of the case resulted in a verdict for the plaintiff. The defendants, after preserving exceptions pendente lite to the order sustaining the demurrers to the amendment to the plea, moved for a new trial upon the general grounds and various special grounds, among them being exceptions to the exclusion of certain evidence offered by the defendants, tending to establish as a fact that the property seized under the attachment was not in fact the property of the defendant in attachment. The motion was overruled, and the defendants, in their bill of exceptions, assign error on the exceptions pendente lite and upon the judgment overruling their motion for a new trial.

      Dodd & Dodd, Spalding, MacDougald & Sibley, for plaintiffs in error.

      Jones, Bvins & Moore, L. G. & J. L. Hopkins, contra.
   Stephens, J.

(After stating the foregoing facts.)

One against whom an attachment is sought, although none of his property has been actually seized by a levy, may sustain serious financial damage as a result of the mere pendency of the initiatory process created by the filing of the affidavit and bond for attachment. It does not follow, however, that for such he can recover upon the statutory bond required of the plaintiff in attachment under the Civil Code (1910), § 5057. The liability upon the bond arises out of a contractual relationship, and is limited by the terms of the contract. The bond permits a recovery of compensatory damages only, and does not permit a recovery of punitive or exemplary damages. Fourth National Bank v. Mayer, 96 Ga. 728 (24 S. E. 453). The latter are necessarily recoverable outside of the bond, and are therefore recoverable only in an action ex delicto. The suing out of an attachment or garnishment, or procuring the issuance of a summons of garnishment, where such proceedings are not instituted maliciously or for the purpose of injuring the person proceeded against, is a perfectly legitimate use of a legal process, and any damage resulting therefrom, unless arising under the statutory bond, is necessarily damnum absque injuria. .While the mere pendency of an attachment, pregnant with the potential issuance of a summons of garnishment from time to time, may constitute a standing menace to the defendant, and may operate as a restraint upon the legitimate activity of his business, irrespective of any seizure of the defendant’s property, it does not follow that damages on this account are in all cases legally recoverable. Before a litigant who resorts to the issuance of the process of garnishment and causes a service of summons of garnishment upon a supposed debtor of the defendant can be held liable ex delicto for any damage resulting therefrom, where no property is seized under the attachment, it must appear that he wilfully and maliciously intended to injure the defendant, or that he knew or ought to have known that no property would be caught by the garnishment and that the service of garnishment would result disastrously to the defendant,—as by causing him the loss of his banking facilities, or a loss of his employment with the garnishee, or other damage. King v. Yarbray, 136 Ga,. 212 (71 S. E. 131). The pendency of an ordinary common-law suit may act as a standing menace to the defendant and cause him irreparable damage for which he cannot recover. Upon such a suit summons of garnishment may be issued from time to time, and yet no right of action would exist for any menacing effect which the pendency of such a suit, with the possibility of garnishment thereon, would have upon the defendant.

The bond here sued upon, being the statutory bond required of the plaintiff in attachment under the Civil Code (1910), § 5057, is conditioned to pay to the defendant in attachment “all damages that he may sustain and also all costs that may be incurred by him in consequence of suing out the attachment in the event the plaintiff shall fail to recover in said case.” “Said case” necessarily is the attachment case, and there can be no attachment case in the absence of a levy or a seizure of property by garnishment. Albright v. Pacific Selling Co., 126 Ga. 498 (55 S. E. 251); Baker v. Altman, 107 Ga. 399, 341 (31 S. E. 432, 73 Am. St. Rep, 132); McFarland v. McFarland, 151 Ga. 9 (105 S. E. 596). It certainly cannot refer to the common-law suit, which would exist by virtue of personal service on the defendant, in the absence of any property being attached. It is not the policy of the law to give a right of action to a defendant for any damage which he may suffer as a result of an ordinary suit instituted against him, where the institution of the suit is not maliciously done or the process of the courts abused. We therefore conclude that, under the statutory bond required of the plaintiff in attachment, the defendant cannot recover of the principal and surety thereon for damage other than such as proximately results from the seizure of the defendant’s property under the attachment. See, in this connection, Fourth National Bank v. Mayer, supra; Mass. Bonding &c. Co. v. U. S. Conservation Co., 29 Ga. App. 80 (114 S. E. 62); Flournoy v. Lyon, 10 Ala. 308; Campbell v. Chamberlain, 10 Iowa 337; Frost v. Jordan, 37 Minn. 544 (36 N. W. 113).

Where property is once attached and the defendant files an appearance, he may recover on the bond any expense by way of attorney’s fees for defending the suit in the event that the plaintiff fails to recover in the attachment. Oakes v. Smith, 121 Ga. 317 (48 S. E. 959); Fourth Natl. Bank v. Mayer, supra. That in the suit thus defended the plaintiff sued for a larger amount than the value of the property attached is immaterial. The defendant, however, can recover the expense of defending only against the attachment. He cannot recover any expense which he might have incurred in behalf of another; as, for instance, a claimant of the property seized, or in resisting a traverse to the answer of the garnishee, to which he is no party unless he has dissolved the garnishment; nor can he recover any expense incurred in so adjusting his business as to defeat the attaching of his funds.

In a suit by the defendant in attachment against the plaintiff in attachment and, his surety, to recover upon the bond, it is a complete defense that the property seized under the attachment, by garnishment or otherwise, was not in fact the property of the defendant in attachment. As the right of the defendant in attachment is to recover only for the actual damage -sustained as a result of the issuance of the attachment, the truth concerning the ownership of the property seized by the attachment may be inquired into and relied upon by the plaintiff in attachment and his surety, in a suit -upon the bond. As the bond is conditioned to pay the damages sustained by the defendant in attachment in consequence of suing out the attachment, or levying upon property of the defendant in attachment, the true status of the ownership will determine the rights of the parties under the bond. This being true, the plaintiff in attachment and the surety may, when defending a suit under the bond, go behind the face of the record in the attachment proceedings, if the record shows that property belonging to the defendant in attachment was seized, and establish the true facts. The title to the property seized under an attachment is not, as between the plaintiff in attachment and the defendant in attachment, a matter of inquiry in the attachment case. If the defendant's property is not levied upon, the defendant has nothing to complain of. If the property levied on is not the property of the defendant in attachment, this fact, so far as respects the attachment suit, is of no concern to the plaintiff. He is concerned therein only so far as he may be answerable to another person for trespass in causing the levy. The record in the attachment case, therefore, cannot, in a suit for damages on the bond by the defendant in attachment against the plaintiff in attachment, establish anything as to the true title to the property attached. Had the plaintiff in attachment obtained a* judgment against the property levied upon or against the garnishee, the judgment would not in fact establish, as a matter of law, that the property levied on or caught by garnishment was the property of -the defendant in attachment. On the other hand, if the record shows that the property attached did not belong to the defendant in attachment, the defendant could nevertheless show that it was his property which was in fact attached, and that by virtue of such attachment he was damaged. Suppose that the property levied upon -was in fact the property of the defendant's wife. Although the entry of the levjdng officer may be to the effect that the property belonged to the husband, yet the plaintiff in attachment, in defending a suit for damages on the attachment bond, instituted by the husband,, could nevertheless defend upon the ground that the property actually seized under the attachment and levied on was not the property of the husband, but was the property of the wife, and that therefore the husband was not damaged by the seizure. And in- the present case, should it be established that the property seized was in fact the property of the claimant, the defendant in attachment was not damaged, because its property was not seized.

The answer of the garnishee as amended is to the effect that a certain sum of money on deposit with the garnishee “represented a balance on deposit in an account carried with garnishee under the following name and style: ‘Special account, H. S. Conservation Company by ¥m. Butlerthat checks drawn on this account would have to be drawn with checks bearing the following signature: ‘Special account, H. S. Conservation Company by ¥m. Butler.''' This answer upon its face is insufficient to set up title to the funds in the United States Conservation Company, the defendant in attachment, bnt indicates that the United States Conservation Company is not in control of the funds and is therefore not the owner thereof, but that a stranger, Wm. Butler, has some interest in the funds and has authority to withdraw them. This answer is insufficient to authorize a judgment against the garnishee, based upon a judgment against the United States Conservation Company as defendant. King v. Carhart, 18 Ga. 650, 657; Small v. Mendel, 96 Ga. 532 (20 S. E. 500).

Any admissions which the defendant in attachment, now the plaintiff in the suit on the bond, may have made, either directly or indirectly by its conduct, to the effect that the property seized under the attachment was not its property but was the property of a stranger to the attachment suit, are relevant and admissible in the suit on the bond, now pending, as tending to disprove the contention of the plaintiff in the suit on the attachment bond, that the property attached had belonged to the plaintiff. Any efforts made by the defendant in attachment to relieve the funds from seizure under the attachment,—as by instigating a third person to file a claim to the funds, or by procuring the garnishee to file an equivocal answer as to the ownership of the funds caught by garnishment and which would not authorize a judgment against the garnishee,—are, when established by competent evidence in a suit by the defendant in attachment against the plaintiff, to recover on the attachment bond, relevant as an admission by the defendant in attachment, tending to disprove that title to the property seized was in the defendant in attachment. The trial judge improperly excluded such evidence when offered by the defendant, and the defendant therefore is entitled to a new trial.

An admission in the pleadings in a former litigation between the same parties, in a matter not in issue and not germane to the issue, is admissible in the present suit, not as an admission in judicio, but as an extrajudicial admission; and its probative value is for the jury. It is immaterial that such admission, when made by the defendant in the former suit, frightened or bluffed the plaintiff into abandoning his suit and suffering a disadvantage in the present suit. It will not work as an estoppel unless the plaintiff in attachment acted to his injury or to the benefit of the defendant in attachment.

Judgment reversed.

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


author: Bloodworth, J.

text:
    14674.
    HAYS et al. v. EDWARDS, administrator.
    1. The ground, of the motion for a new trial based on the exclusion of evidence “of the financial condition of the defendant A. N. Hays at the time of the execution of the note sued on” is not in proper form for consideration. “In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.” Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712). Moreover,'the record shows that evidence was admitted as to the financial condition of A. N. Hays.
    2. For no reason assigned did the court err in directing a verdict for the plaintiff against A. N. Hays and A. S. Hays. Under' the facts of the ease the court erred in directing- a verdict against W. M. and J. P. Hays.
    Decided March 6, 1924.
    Complaint; from Newton superior court—Judge Hutcheson. April 14, 1923.
    A. N. Hays was indebted to T. J. Edwards, and on February 28, 1914, gave to Edwards a note for $845.71, payable January 27, 1915, with interest at eight per cent, per annum from January 27, 1914. The note was signed also by A. S., J. P., and W. M. Hays. No interest thereon was paid prior to May 10, 1919, on which date A. N. Hays gave to Edwards a note for $420.67, due December 1, 1919, containing the recital: “This note given for interest on note held by T. J. Edwards for $845.71, dated Feb. 28, 1914.” Edwards brought suit on the original note, returnable to the January term. 1922, of Newton superior court. A. N. Hays made no defense. A. S., J. P., and W. M. Hays filed a plea in which they alleged that they were sureties on the note sued on, and further pleaded that “after said defendants signed said note as security, the said T. J. Edwards accepted a note for [from] defendant A. N. Hays, the principal of said note, for the sum of $420.67 as interest on said note, without the knowledge or consent of these defendants, and subsequently paid some $220 of said interest note, and indulgence [was] given the defendant A. N Hays for twelve months in consideration of said interest note and the payment thereon, and the indulgence granted by plaintiff was such an act as would injure defendants and increase their risk as such sureties and thereby discharge them.” Upon the trial of the ease, after the evidence was all submitted, the court directed a verdict against all the defendants. A motion for a new trial was made.by the sureties. The motion was overruled, and they excepted.

      J. B. Irwin, for plaintiff in error.

      A. D. Meador, contra.
   Bloodworth, J.

(After stating the foregoing facts.) Only the second headnote needs elaboration.

A. N. Hays, the principal, filed no defense, admits his liability, and is not complaining of the judgment against him. A. S. Hays, one of the sureties, ratified the taking of the interest note by making a payment thereon. On the trial of the case the plaintiff swore: “Mr. Steve Hays (A. S.) paid me the money; paid it out of his own hand; yes, sir, and said he would pay the balance if Alf (A. N.) did not pay it. Alf has not paid me a cent on that note.” Plaintiff also swore: “Steve Hays paid me two hundred and twenty odd dollars, and promised to pay the other if Alf did not pay it. He didn’t object to this interest note being given. He knew about it.” A. S. Hays testified: “I did malee a payment, and got a receipt for it.” This payment by A. S. Hays on the interest note was a ratification by him of the giving of the note by A. N. Hays and its acceptance by Edwards, and he is bound by it.

Were W. M. and J. P. Hays discharged by the plaintiff accepting the interest note? In order for a surety to be discharged because of increasing his risk by the extension of time granted to the principal without his consent, three things are necessary: (1) At the time the indulgence is granted the owner and holder must know that the surety was such; (2) there must be a sufficient consideration;-(3) the indulgence.must be for a definite period. “It makes no difference for how short a period the time is extended, . . that period' must be fixed.” Bunn v. Commercial Bank, 98 Ga. 650 (26 S. E. 64). We will discuss the above propositions in the order named.

The evidence clearly shows that the plaintiff knew, when W. M. and J. P. Hays signed the note, that they did so as sureties. It also shows that neither of these two sureties knew anything of the interest note being given when it was executed, and that they never agreed to it or ratified it in any way.

Was there a consideration for the indulgence granted to the principal? Mr. A. N. Hays swore that the payee of the interest note, Mr. Edwards, “extended the time in consideration of him giving this interest note.” A calculation of the interest on the original note at eight per cent, from January 27, 1914, the date from which it bears interest, to December 1, 1919, the date of the maturity of the interest note, will show that the amount of the interest note is more than the legal interest to that .time would be. It will be noted that the interest note was given some time after the maturity of the principal note. The acceptance of the interest note by the plaintiff amounted to a payment of the interest embodied therein. If we treat this note as embracing interest only to the date of the maturity of the note, then it is for more than the legal interest, is usurious, and the legal effect of taking this note would be to discharge the surety. The headnote in Knight v. Hawkins, 93 Ga. 709 (20 S. E. 266), is as follows: “Where the.holder of a past-due promissory note, in consideration of the prepayment in advance of usurious interest by the maker, extends the time of payment without the knowledge or consent of the surety, the latter is discharged, the creditor, at the time of granting the indulgence, knowing the fact of suretyship.” In Camp v. Howell, 37 Ga. 319, Judge Walker said: “The plaintiff contracted to give time in consideration of the promise of legal interest on his debt, and the usurious interest promised to be paid him; and this, without the consent of the surety, discharged the surety. The case of Stallings v. Johnson, 27 Ga. R. 564, fully sustains the court below in holding that the contract to give time was sufficient to discharge the surety; provided, the plaintiff, at the time of making it, knew that Camp was surety.” See also Owens v, Palmour, 99 Ga. 92 (24 S. E. 859); Clark v. Brice, 64 Ga. 486 (2). If we treat this note as embracing only legal interest, it would pay the interest on the original note beyond its maturity, and this would be interest in advance. In the Knight case, supra, it was said: “Even the prepayment in advance of legal interest on a debt is of itself sufficient to work the discharge of a surety. 2 Brandt, Suretyship, § 352. The precise question made in the case at bar was decided by this court in the case of Scott v. Saffold, 37 Ga. 384, in which it was held, under similar facts, that the surety was discharged. Again, in Randolph v. Fleming, 59 Ga. 776, it was held that where, after a note became due, interest was accepted by the payee from the makers for a short period in advance, a contract for indulgence arose by implication, and an indorser on the note was discharged. See also Parmelee v. Williams, 72 Ga. 42.” “After the note became due, interest was accepted by the payee from the makers for a short period in advance. In the absence of express stipulation (and none took place) a contract for indulgence arose by implication, and the indorser was thus discharged.” See also Tanner v. Gude, 100 Ga. 157 (27 S. E. 938).

Was the indulgence for a definite period? Yes, until December 1, 1919, the date of the maturity of the interest note. In Randolph v. Fleming, 59 Ga. 777 (2), the Supreme Court held: “Prepay-' ment and acceptance of interest to a given time, on a note past due, is evidence of a contract for indulgence until the time has expired; and if no stipulation to the contrary appears, an unconditional contract will arise by implication.” “No stipulation to the contrary appears” in the note which we are discussing. In Scott v. Saffold, 37 Ga. 391, it is said: -“The very idea of payment in advance presupposes that delay of the payment of the principal is to be given for the time. The payment of the interest is the consideration for an agreement implied from the transaction itself if not distinctly expressed, to give time on the principal. The general rule is that the reception of interest in advance upon a note is prima facie evidence of a binding contract to forbear and delay the time of payment; and no suit can be maintained against the maker during the period for which the interest has been paid, unless the right to sue be reserved by the agreement of the parties.” Prom the foregoing it will be seen that the payee of the original note not only tied his own hands and could not sue before the maturity of the interest note, but also placed the sureties where they could not themselves pay the original note and bring suit thereon; thus depriving them of a right which they would otherwise have. This is such conduct on the part of the principal as discharges the sureties W. M. and J. P. Hays.

Judgment affirmed as to A. N. and A. 8. Hays; reversed as to IF. M. and J. P. Hays.

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