text:
    18195.
    Watkins Company v. Rivers et al.

    Estoppel, 21 O. J. p. 1150, n. 89; p. 1152, n. 95; p. 1251, n. 90; p. 1253, n. 98, 99.
    Principal and Surety, 32 Cye. p. 69, n. 86 New; p. 139, n. 63.
   Jenkins, P. J.

1. Where, as in the instant case, all the testimony, including that offered by the plaintiff, conclusively establishes that the contract sued on was not executed by the defendant sureties, no recovery can be had thereon as against them unless it should appear that they had, by their conduct, estopped themselves from denying the execution and binding force of the contract. .

Decided December 17, 1927.

Complaint; from Mitcbell superior court—Judge Custer. May 10, 1927,

2. While ordinarily an estoppel will not result from mere silence, yet where a person remains silent under circumstances which make it his duty to speak, the principal of equitable estoppel may thereafter be invoked by one who has thus been led to act to his injury so as to prevent the one remaining silent from asserting the truth which he, by his silence, has denied. Accordingly, where, as here, persons sued as sureties on the obligation of another receive notice from the obligee of the receipt and acceptance of the contract of suretyship», and the circumstances are such as the jury might have found would charge such sureties with notice that the obligee in the contract was about to make advances of goods on the faith of their signatures as sureties, the latter can not, after .remaining silent while such advances were knowingly permitted to be made, thereafter assert that they did not execute the contract. See, in this connection, Colquitt v. Smith, 76 Ga. 709; Strauss v. Denton, 140 Miss. 745; Civil Code (1910), §§ 4419, 5736.

3. It was competent for the defendants to explain their failure to deny having- signed the contract, and also to explain why certain letters recognizing his liability were later written by one of them to the plaintiff company, by offering testimony going to show that they had at one time executed with the principal obligor in the contract sued on another contract, similar to the one sued on, which contract had been returned unaccepted, and that they believed the plaintiff, in its notice, had reference to such previous agreement. Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (21) (12 S. E. 18). Accordingly, in the event the jury found that the defendants, when notified of their acceptance as sureties, were cognizant that the plaintiff contemplated making advances to the principal debtor on the faith thereof, the proof of the execution of such former contract could properly be considered by the jury in determining whether the circumstances surrounding the admitted silence of the defendant sureties was such as would prevent them from being estopped thereby. .

4. Where, as in the instant case, the proof of any such former similar contract was contradicted by the testimony of the plaintiff’s officers and agents to the effect that the contract sued on embodied the only agreement which had ever been entered upon between the plaintiff company and the principal obligor thereon, as well as the defendant sureties, and -where the defendants’ evidence with reference to its execution and return, and whether it had been returned at the time the letters to and from the plaintiff were written, is altogether vague and indefinite, the issues of fact made by the testimony upon that subject should have been submitted to the jury for determination, and it was error to direct a verdict in favor of the defendant sureties upon the theory that rrnder all the proved facts and circumstances the jury could not have found that they were estopped to deny the execution of the agreement sued on.

Judgment reversed.

Stephens and Bell, JJ., concur.

Statement oe eacts by Jenkins, P. J.

■ The J. R. Watkins Gompany brought suit against C. A. Ostean as principal, and C. H. Smith and J. C. Rivers as sureties, for the price of goods alleged to have been furnished to Ostean under a written contract executed between the plaintiff company and the defendants. Ostean filed no defense, and Smith and Rivers pleaded non est factum. The plaintiff’s officers testified that “there was never any other or different agreement between the plaintiff and the defendant than the agreement plaintiff’s exhibit 1 (the contract sued on) during the period covered by it, there was never any other different business connection or relationship between the plaintiff and the defendants than that which was created by and which existed under the contract marked plaintiff’s exhibit .1 during the period covered by it.” They further testified that the plaintiff company had no officer, agent, or representative or place of business in the State of Georgia during the year 1923, or at any other time, and that the defendant Ostean was never authorized to do any business for the plaintiff. They further testified that the contract sued on, dated December 25, 1923, was received in due course of business, and that the defendant sureties were notified by registered mail of its receipt and acceptance, the letters written by the plaintiff to each of the defendant sureties under date of January 19, 1924, being as follows: “We are pleased to inform you that we have received and accepted the contract of Mr. C. A. Ostean which you signed as surety.” It appears that these letters were mailed to Smith and Rivers by registered mail, and were received and receipted for by them, the registry receipts being returned to the plaintiff and introduced in evidence by it. The account sued on showed that all the goods were shipped after the unanswered letters had been sent to the defendants, and all except the first shipment was made after more than ample time had elapsed for the defendants to have replied to the letters. The persons whose names appeared as subscribing witnesses to the contract sued on were sworn for the plaintiff, and each of them testified that he did not sign the contract as a witness thereto, that the signature appearing thereon as his signature as such witness was not genuine, and that the signatures of the defendant sureties thereon did not appear to be genuine, but that, on the contrary, all the signatures on the contract of both sureties and witnesses appeared to have been signed by the same person. The defendant sureties each denied the execution of the contract sued on. They further testified, and offered other evidence going to show, that at some time they had each, at the request of Ostean, signed a contract similar to the one sued on, with the defendant Ostean as principal and a third additional surety; that that contract was returned, and they did not thereafter sign any other contract or authorize anyone else to do so for them. This testimony was objected to on the ground that it appeared that the plaintiff had not authorized Ostean to obtain such a contract, and was not bound by anything he did with reference thereto. The objection was overruled, and this ruling is assigned as error. It does not appear, from the testimony of either of the defendant sureties, to whom the first contract was returned, or how they obtained knowledge of its return, or when it was returned, or whether in fact it was ever received by the plaintiff. The defendant Smith testified, that he received the letter offered by the plaintiff advising him of the receipt and acceptance of a contract with Ostean which he signed as surety; that he thought the letter had reference to the similar contract which he did sign but which was returned, and that he did not deem it necessary to reply to the letter. The defendant Rivers testified to the receipt of the letter of acknowledgment, and that he thought it had reference to the contract actually signed. He further testified that a letter written by him to the plaintiff, dated October 29, 1924, in which inquiry was made as to the status of Ostean’s account, and in which he said, “wish you would let me know at once, as I signed contract,” and various other letters written by him in which he made reference to a contract signed by himself as surety and promised to undertake to pay plaintiff the amount due thereon, all of which were put in evidence by the plaintiff, had reference to the contract which he actually did sign; that “there were two contracts, one contract was signed by 0. H. Smith, J. 0. Rivers, and R. E. L. Culpepper; that contract was delivered up by them and returned. That was the only contract I knew anything about, and that was the contract that I thought they were referring to when they sent me this registered letter.”

At the conclusion of the evidence the court directed a verdict for the plaintiff as against the defendant Ostean and in favor of the defendant sureties. The plaintiff now excepts to this ruling, and assigns error on the admission of testimony with reference to the former contract. It is contended by the plaintiff that the evidence raises an issue of fact, which should have been submitted to the jury, as to whether the defendant sureties in fact executed the contract sued on; and that even if the evidence was insufficient to go to the jury on that question, the jury should have been permitted to determine whether the defendant sureties had es-topped themselves to deny the execution of the agreement. The defendants contend that the proof shows, without dispute, that they did not execute the contract sued on, and there is no evidence which would warrant a finding that they were estopped to deny its execution.

T. Glenn Borough, for plaintiff.

Gardner, Gardner & Crow, Charles Watt Jr., for defendants.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    18201.
    Brooke v. Fouts.
    Appeal and Error, 4 O. J. p. 649, n. 36.
    Bills and Notes, 8 C. J. p. 879, n. 58; p. 1004, n. 89.
    Judgments, 34 C. J. p. 293, n. 76, 77, 79.
   Jenkins, P. J.

Fouts sued Brooke on a past due, unindorsed, and unconditional promissory note, attaching a copy to his petition and alleging that the defendant executed the note to him, and failed and refused to pay it. Verdict and judgment by default were rendered against the defendant, and at the same term he filed a motion to set the judgment aside, based upon the ground that the petition set forth no cause of action, in that it was not alleged that the defendant was indebted to the plaintiff on the note. Held:

1. A motion to set aside a judgment will lie for any defect not amendable which appears on the face of the record or pleadings (Civil Code of 1910, § 5957), but since a verdict cures any defect which might have been corrected by amendment, even though it could be assumed that the plaintiff could have been required to amend his petition so as to allege specifically and in terms that the defendant was indebted to him as the payee on the unconditional, unindorsed, and unpaid promise to pay, the petition did not fail to set forth a cause of action, it being the general rule that the payee of a note is presumed to continue in its ownership. Hobbs v. Citizens Bank, 32 Ga. App. 522 (4) (124 S. E. 72). See also Strickland v. Citizens National Bank, 15 Ga. App. 464 (83 S. E. 883).

Decided December 17, 1927.

Motion to set aside judgment; from Milton superior court-judge Fo-rtson presiding. April 9, 1927.

J. P. Brooke, pro se.

II. M. Broadwell, Mozley & Gann, contra.

2. There being no merit in the motion to set aside the judgment, it is unnecessary to pass upon any other question raised by the record.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    18213.
    SOUTHERN CRUSHED STONE & GRANITE CO. v. DORN.
    1. In a suit on a check, after verdict in favor of the defendant on sufficient evidence admitted without objection, defects in the defendant’s plea which were amendable and which were in no way previously brought into question will afford no ground for a motion for a new trial by the plaintiff.
    2. In a suit upon an unpaid cheek, bearing upon its face a notation that it is in full of an indebtedness due to the plaintiff by the defendant, it was permissible to prove by parol evidence that the defendant, at the time of giving the check, was not indebted to the plaintiff in any sum and that the check was a nude pact. The consideration for the check, being stated merely by way of recital, was open to inquiry without a violation of the parol-evidence rule.

      (a) Moreover, in the present case the recital was contradictory of another notation on the same check, and it was permissible to explain the ambiguity and remove the uncertainty by parol evidence of the actual intention of the parties.
    3. A main contractor engaged by the State highway department of South Carolina to build a road in that State is not liable for the price of materials furnished solely upon the credit of another, whom he procured to construct a part of the road as an independent subcontractor.

      (a) “When one person has sold and delivered goods to another, and the detriments and benefits which constituted the consideration of the contract between them have been suffered and received, and the transaction has thus become fixed as to the reciprocal liabilities, a contract by a third person, not originally bound, to pay the debt thus already preexisting and incurred by the purchaser, is nudum pactum, unless supported by some new consideration.”
    4. In a suit upon a check the defendant is not estopped to rely upon a plea of want of consideration because, at the beginning of the trial, he admits a prima facie case in favor of the plaintiff. There was no error in refusing a new trial.

      Bills and Notes, 8 C. J. p. 1045, n. 78.
    Contracts, 13 C. J. p. 703, n. 88; p. 704, n. 91.
    Estoppel, 21 C. J. p. 1224, n. 25.
    Evidence, 22 O. J. p. 1164, n. 74; p. 1165, n. 77; p. 1197, n. 38.
    New Trial, 29 Cyc. p. 761, n. 5, 8.

      Decided December 17, 1927.
    Complaint; from Richmond superior court—Judge A. L..Franklin. May 14, 1927.

      John J. Jones, for plaintiff.

      Hammond & Kennedy, for defendant.
   Bell, J.

Southern Crushed Stone & Granite Company, the payee, brought suit against N. M. Dorn, the drawer, upon a cheek, a copy of which was attached to the petition, and which with the entries thereon was as follows:

“The Bank of Saluda, Saluda, S. C., September 16, 1925.

“Pay to the order of Southern Crushed Stone- Co. $225.00— two hundred twenty-ñve and no/100 dollars.

[Signed] N. M. Dorn.”

[Notations on check]

“This check is in full of what I am due you for material on road project S 569-a, Saluda Co.

“In full of material bought of you by Bramlett & Rozier that was used on road project S 569-a, Saluda Co., S. C. The balance due you by Rozier & Bramlett went to bridge contract and their bond good for balance due you by them.”

[Endorsements on check]

“In full of amount due us by N. M. Dorn on project S 569-a, Saluda Co., S. C., for material used on said project by Rozier & Bramlett and we will look to Rozier & Bramlett for balance due on their a/c to us under their bond. [Signed] Southern Crushed Stone Co., by P. P. Blalock Jr.

“Payee must sign on line above.”

The petition set forth the cause of action in orderly and distinct paragraphs, numbered consecutively, and in paragraph 3 alleged that the check was given in payment for road material “delivered to the defendant” for use on a certain road project in Saluda county, South Carolina. The defendant made no specific answer to any paragraph of the plaintiff’s petition, and pleaded only “that the check or contract sued upon was without consideration moving to, this defendant or to any other person, nor was there any consideration moving from,the-plaintiff in this case for the issuance of said check and that it was a voluntary act on the part of this defendant for which he is in nowise liable.” The jury trying the case returned a verdict in favor of the defendant, and the plaintiff has excepted to the refusal of its motion for a new trial. The motion as first filed, containing the usual general grounds, was amended by the addition of other grounds, but these were mere amplifications of the original grounds.

The only evidence upon the trial was the testimony of the defendant, which was in substance as follows: The defendant had a contract with the State highway department of South Carolina to build a certain road, for the consideration of about $45,000. He sublet to Rozier & Bramlett the contract for the culverts and pipe lines. The subcontract, amounting to something like $10,-000, was approved by the State highway department. ■ After the completion of the road, the defendant had a settlement with the highway department, after which he had in his hands approximately $2200, less 10 per cent, which was due by him to Rozier & Bramlett. Several bills for materials furnished to Rozier & Bramlett to be used by them in the execution of their subcontract were presented to defendant for payment and he undertook to prorate the amount in his hands to the various creditors of the subcontractors. The plaintiff’s claim amounted to $700. The defendant made and tendered to the plaintiff the check sued on, saying “the money is over there for you; I am just trying to protect you people.” Upon the plaintiff’s agent insisting upon payment in full, the defendant further said, “Bud, let me tell you something, if you don’t take that money, I am going to pay another man here that wants his money. I can not wait on you. I am going to settle up with this fellow; I have business somewhere else.” This conversation took place in September. The plaintiff’s agent, though protesting, physically received the check at that time. The defendant heard nothing more of the matter until the following April, when the check was presented for payment. In the meantime, the money in the defendant’s hands belonging to the subcontractors had been paid to one of their other creditors. The plaintiff’s debt, as a matter of fact, was for materials actually used in the construction of the road which was the subject-matter of the defendant’s general contract with the highway department; but it was the obligation of Rozier & Bramlett to furnish the particular materials under their subcontract, and the defendant'“had nothing to do with it.” The defendant further testified: “At the time I gave this check I had the money in bank; it was not mine, I was trying to divide it up among Bozier & Bramlett’s creditors; they are from everywhere; I don’t know and couldn’t say that these people [the plaintiff] lost any hold that they had on Bozier & Bramlett or anyone else from my giving them this cheek; I shouldn’t think that they gave up any rights on account of this that I know of; they didn’t have any to give up.”

The first question for determination is whether the plaintiff was entitled to a verdict on the pleadings. Where a plaintiff, in drafting his petition, complies with the requirements of section 5539 of the Civil Code^ (1910), allegations not answered are to be taken as true (see also Civil Code (1910), § 5635), and although the defendant may in a single paragraph deny any or all of the allegations, he is not allowed to file a mere general denial commonly known as the plea of general issue. Civil Code (1910), § 5634. The defendant in the present case, while failing to answer the several paragraphs of the plaintiff’s petition, did not rely merely upon a plea of the general issue. He undertook to set forth the distinct defense that the check was without consideration; and the plea, being inconsistent with paragraph 3 of the petition to the effect that the cheek was given for materials “delivered to the defendant,” amounted to an implied denial of that averment. It constituted enough to amend by and could have been perfected if any ruling as to its sufficiency had been invoked. In such a case, where the plaintiff suffers a trial to be had upon the merits without demurring or asking for a directed verdict, or otherwise calling the plea into question, and where the jury trying the case return a general verdict in favor of the defendant on evidence admitted without objection and sufficient to establish the defense claimed, the verdict will not be set aside merely because of the imperfections in the plea. Napier v. Strong, 19 Ga. App. 401 (91 S. E. 579). Otherwise where the plea presents nothing except the general issue. Midland Ry. v. Webb, 20 Ga. App. 237 (92 S. E. 972). The rule to which we have just referred will apply in the defendant’s favor in this ease, both to save him from the consequences of his failure to make answer to paragraph 3 of the petition and also to cure any defects in the plea, considered as a plea of want of consideration. This implies, of course, that the plea, had objection been raised thereto, could have been amended to meet the objection. It has several times been rule.d in effect that where the defendant is in the attitude of both admitting and denying an allegation of the plaintiff's petition, the admission, and not the denial, must prevail; but in each of the cases to which our attention has been called in which this principle was held applicable, the plaintiff, in some appropriate manner, brought the plea under construction before verdict. See Burns v. Condon, 108 Ga. 794 (33 S. E. 907); Williams Mfg. Co. v. Warner Sugar Co., 125 Ga. 408, 411 (54 S. E. 95); Bedingfield v. Bates Adv. Co., 2 Ga. App. 107 (2) (58 S. E. 320); City of Moultrie v. Schofield Co., 6 Ga. App. 464 (65 S. E. 315). Counsel for the plaintiff in error contends that even aside from the failure of the defendant to answer the allegations of the petition, the plea was insufficient as a plea of want of consideration; but since the plea was at least amendable and was not demurred to, it is unnecessary to determine what might have been its fate under other circumstances. But see Porter Fertilizer Co. v. Brewer, 36 Ga. App. 329 (2) (136 S. E. 477).

What we have said ’in the preceding division assumes both that the writings contained in the cheek were not such that they could not be contradicted or varied.by parol testimony and that the evidence was sufficient to show a want of consideration. As to the first of these questions, we think the first notation that the check was in full of what the defendant was due for materials on a certain road project was a statement of the consideration merely by way of recital. Where the consideration in a written contract is stated in .such a way as to make it one of the terms of the agreement between the parties, a different consideration can not be shpwn by parol; but where the consideration is stated merely as a recital of fact, it is open to inquiry. We think the latter rule is applicable in this case, and that it was permissible for the defendant to plead and prove that the instrument sued on was a nude pact. See Young v. Young, 150 Ga. 515 (104 S. E. 149), and cit. Moreover, there seems to be an inconsistency .between the first and the second notations as they appear upon the face of the check; the one implying a debt of the defendant and the other inclicating a debt of Eozier & Bramlett, the' subcontractors, both, however, referring to the same debt. In this view, the writings, when considered as a whole, were contradictory and ambiguous, and parol evidence was admissible to explain the contradiction and remove the ambiguity by proving the true intention of the parties. Cable Co. v. McFeeley, 7 Ga. App. 435 (66 S. E. 1103); McCalla v. McCalla, 48 Ga. 503 (2); Earle v. Sayre, 99 Ga. 617 (2) (25 S. E. 943); Ga. Iron &c. Co. v. Ocean Accident &c. Co., 133 Ga. 326 (65 S. E. 775); Civil Code (1910), §§ 4268 (1), 5789.

The defendant's testimony authorized the inference that Eozier & Bramlett were independent contractors and that the materials were furnished to them solely upon their credit, so that the case falls within the principle ruled in United Painting &c. Co. v. Dunn, 137 Ga. 307 (73 S. E. 492). In that case it was held that a contractor engaged by the owner to erect a building and having the duty of furnishing the materials was in no sense the agent of the owner, and that the owner was not liable to a creditor of the contractor for the price of materials sold to him for use in the construction of the building. While the defendant here had money in his hands belonging to Eozier & Bramlett, it was not placed with him for the purpose of paying the creditors of this firm. His sole liability was to Eozier & Bramlett, whose money he held, and his undertaking to- pay it to others was purely voluntary. A promise to pay a pre-existing debt of another, without any detriment or inconvenience to the creditor or any benefit to the debtor or the promisor in consequence of the undertaking, is a nudum pactum. Davis v. Tift, 70 Ga. 52 (2); Wright v. Threatt, 146 Ga. 778 (92 S. E. 640, L. R. A. 19180, 541); Soul v. Southern Seating &c. Co., 6 Ga. App. 843 (65 S. E. 1065). The giving of this check caused no loss, detriment, or inconvenience to the plaintiff, and no benefit was secured either to the defendant or to Eozier & Bramlett. The notations on the check would have become binding on the plaintiff as a contract only upon its indorsing the check and collecting the money thereon. This was the clear intention of the parties. Russell v. Smith, 97 Ga. 287 (23 S. E. 5). Under the evidence, the jury were authorized to find in favor of the plea of want of consideration. This case is to be distinguished from Ledbetter v. McGhees, 84 Ga. 227 (10 S. E. 727), in which the person sought to be held had received the money from the subcontractor for the specific purpose of paying it to the plaintiff, under a contract between all three that he would do so.

The verdict in the defendant’s favor is not unwarranted or illegal merely because the defendant, at the beginning of the trial, admitted a prima facie case in favor of the plaintiff and claimed, and was granted, the right to open and conclude. This was not an admission that the check was based upon a valuable consideration. The check, being a negotiable instrument, imported a consideration, and the plaintiff would have made out a prima facie case by introducing the check in evidence and showing presentation and non-payment. Purcell v. Armour Packing Co., 4 Ga. App. 253 (3) (61 S. E. 138); Hobbs V. Citizens Bank of Wrens, 32 Ga. App. 522 (3) (124 S. E. 72). The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    18222.
    WESTERN & ATLANTIC RAILROAD v. MEISTER.
    1. In a suit for damages under the Federal employer’s liability act, where the facts set forth in the petition are sufficient to show a violation by the defendant of the act of April 14, 1910, requiring that all' cars be equipped with efficient hand-brakes, the plaintiff will not be prevented from claiming damages for a violation thereof, merely because of a statement in the petition that he is suing under the original safety-appliance act and the amendment of 1903.
    2. In such a case, where the allegations and the proof are sufficient to authorize the inference of a violation by the defendant of the act of Congress of April 14, 1910, requiring that all cars shall be equipped with efficient hand-brakes, it is unnecessary to a recovery that the plaintiff should show either what rule or regulation, if any, the'interstate-com- ' merce commission may have made as to the number, dimensions, location, and manner of application of such appliances and that the same had not been complied with, or that the commission had made no rule or regulation upon the subject.
    3. Where the issue in such a suit is whether the plaintiff’s injuries were caused by a violation by the defendant of a statute enacted for the safety of employees, no question of the defendant’s negligence or diligence is involved, and in such a ease it is improper to admit evidence that the appliance complained of is of a type in common use by other railroads.

      Master and Servant, 39 C. J. p. 320, n. 24;, p. 380, n. 23; p. 385, n. 52; p. 386, n. 53, 55; p. 937, n. 79; p. 938, n. 81; p. 1071, n. 63; p. 1072, n. 65.

      4. In the trial of a case under the Federal employer’s liability act, where the inquiry under the evidence is whether a car of the defendant railroad company was equipped with efficient hand-brakes, that a particular mechanical arrangement pertaining to the brakes had the approval of the interstate-commerce commission could neither be held by the court as a matter of law nor found by the jury as a matter of fact, where the inference of such approval must depend solely upon the circumstances that the arrangement has for a number of years been in common use on the various railroads of the country and that the interstate-commerce commission has made no rule or regulation concerning it.
    5. The evidence authorized the verdict and no error of law was committed. The court did not err in refusing a new trial.
    Decided December 17, 1927.
    Damages; from city court of Atlanta—Judge Dorsey. April 23, 1927.

      Tye, Peeples & Tye, for plaintiff in error.

      Glarke & Glarke, contra.
   Bell, J.

J. R. Meister brought suit under the Federal employer’s liability act of April 22, 1908, against the Western & Atlantic Railroad to recover for injuries received by him while employed by the defendant as a switchman, both he and his employer being engaged at the time in interstate commerce. In his petition he alleged that his duties required him to ride upon freight-ears, and, while so doing, to put on and take off brakes, and that on a certain occasion it became necessary for him to go upon and apply the brakes of one of- a train of freight-ears which were being moved on tracks in.the city of Atlanta, and that “while applying the brakes to lessen the speed of said freight-cars, the brake-chain which connects with brake-staff where your petitioner had his hands applying said brakes, the chains which connect the brake-rod and the brake-staff was loose and disconnected, which caused your petitioner, while applying the brakes, to lose his balance, there being no resistance when he undertook to apply the brakes, but a giving way of the brake-staff, which threw your petitioner from the top of said box-car to the ground below, and permanently injuring him.” Paragraph 10 of the petition was as’follows: “Your petitioner brings this suit under what is known as the safety-appliance act and amendments of 1903 thereto, a part of the Federal employer’s act passed by Congress and made a Federal law for employees who are injured under the facts and circumstances on this case.” The defendant made answer and went to trial upon the merits without demurring or otherwise challenging the petition. The jury returned a verdict in favor of the plaintiff for $6,500, after which the defendant made a motion for a new trial, which motion the court refused, and the defendant excepted.

For brevity and convenience, we will refer to the parties according to their position in the court below. In various separate assignments in its motion for a new trial the defendant excepted to the verdict and to a number of excerpts from the charge of the court, and also to the refusal of a request to charge, upon the common ground that the plaintiff expressly limited his right of recovery to an alleged violation of the safety-appliance act of 1893, as amended by the act of 1903, and that inasmuch as the only pertinent safety appliance statute is the act of April 14, 1910, which provides that all cars must be equipped with “efficient hand-brakes,” and which was not alleged to have been violated, the plaintiff should not have recovered, and the court should not have submitted any question of whether there was a violation of this act. The defendant’s general contention in this aspect of the case may be best illustrated by stating the substance of ground 2, which is typical of other grounds, of the motion for a new trial. The defendant, in that ground of the motion, assigned error upon the following charge: “In this case there is no contention but that the safety-appliance act of Congress is applicable. It is not denied by the defendant but the defendant does deny any liability to the plaintiff. The safety-appliance act says that all cars must be equipped with appliances provided for in the act, and, so far as applicable to this case, the law required of the defendant that the car in question must be equipped with efficient hand-brakes, that is workable handbrakes.” The exceptions to this charge are: (1) that the petition contained no allegation of a violation of the act of 1910, and made no reference whatever to the provision thereof that all ears should be equipped with efficient hand-brakes; and (2) the statement in the charge, “there is no contention but that the safety-appliance act of Congress is applicable,” was erroneous and misleading, because the defendant did contend that the provision of the statute mentioned, which was treated by the court as being “the safety-appliance act of Congress,” was not applicable, since “it had not been pleaded by the plaintiff nor any violation of any provision thereof been alleged.” The defendant’s position, as we understand it, is not that the plaintiff failed to allege or prove facts warranting the inference that the act of 1910 was not complied with, but that the petition, in view of paragraph 10, should be construed as eliminating any such question. We can not agree with this contention. In Gainesville Midland Ry. v. Vandiver, 141 Ga. 350 (80 S. E. 997), the Supreme Court said: “In pleading a cause of action, where a domestic statute or that of the United States is relied on, it is unnecessary to incorporate in the pleadings a statement of the law upon which the cause of action is based. If it is incorporated, the. reference thereto may be stricken as surplusage.” Again, in Youmans v. Ga. & Fla. Ry. Co., 142 Ga. 781 (83 S. E. 784), it was evident from the allegations of the petition that the pleader contemplated bringing his action under the Civil Code (1910), §§ 2774, 2775, as codified from the act of August 22, 1907 (Ga. L. 1907, p. 84). The Supreme Court held that if the suit should be treated solely as an action for a breach of the duty specified in these code sections, it failed to show any right of recovery; but that since the petition alleged facts sufficient to constitute a cause of action under the common law, as enlarged by statute, the allegations relating to the duty and liability under the code sections first mentioned would be irrelevant, and would in no way affect the plaintiff’s case. In the opinion it was said: “But the mere fact that the pleader may have referred to those sections [§§ 2774, 2775], and have undertaken to hold the company liable under them, would not be cause to dismiss the plaintiff’s action, if the petition alleged facts which, under- the statutes or common law, would suffice as a basis for an action. In such cases the proper law will be applied to the substance of the allegations, and those allegations which relate only to the inapplicable statutes will be treated as surplus-age.” In order for a party in a suit in this State to assert a right under a foreign statute, the statute must be pleaded, but not so when either a local or a Federal law is relied on. The courts of this State will take notice net only of our own laws but of the acts of Congress as well, and so, in order to claim a right under an act of Congress, it is not necessary that the plaintiff should say that he is suing under the act, nor that he should otherwise mention it. It is sufficient if the facts alleged disclose a cause of action under the provisions of the statute. Thus, in this case, the statement in the' petition that the plaintiff is suing under “what is known as the safety-appliance act and amendment of 1903” will be disregarded. Stafford v. Norfolk &c. Co., 202 Fed. 605; Kelly v. Chesapeake &c. Co., 201 Fed. 602; Ullrich v. N. Y. &c. R. Co., 193 Fed. 768; Rowlands v. Chicago &c. R. Co., 149 Wis. 51 (135 N. W. 156, Ann. Cas. 1916E, 714); St. Louis &c. R. Co. v. Hesterly, 98 Ark. 240 (135 S. W. 875).

Section 2 of the act of 1910, so far as it may be applicable to the case under consideration, merely provides that all cars shall, be equipped with efficient hand-brakes, without any specification as to what would be necessary to constitute a compliance with this requirement. Section 3 provides as follows: “That within six months from the passage of this act the interstate commerce commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section 2 of this act, . . and shall give notice of such designation to all common carriers subject to the provisions of this, act by such means as the commission may deem proper, and thereafter said number, location, dimensions, and manner of application as designated by said commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this act, unless changed by order of said interstate commerce commission, to be made after full hearing and for good cause shown; and failure to comply with any such requirement of the interstate commerce commission shall be subject to a like penalty as failure to comply with any requirement of this act: provided, that the interstate commerce commission may, upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this section, with respect to the equipment of cars actually in service upon the date of the passage of this act.” In ground 6 of the motion.for a new trial the defendant contended that the verdict was contrary to law and to the evidence, and was unsupported by the evidence, because there was no evidence as to what requirements had been made by the interstate-commerce commission under section 3 as to the “number, dimensions, location, and manner of application of the appliances” required by section 2, and because it was not shown by the evidence what requirement of the commission as to handbrakes had been violated by the defendant, nor that the commission had made no requirement in reference to such appliance. In this connection it was insisted that even if it be proper to treat the case as an action for a violation of the act of 1910, it was incumbent upon the plaintiff to show the failure on the part of the defendant to observe the requirements of the interstate-commerce commission made in pursuance of section 3 of this act. We can not agree that it was necessary for the plaintiff to allege and prove the violation of any rule of the interstate-commerce commission. The authority granted to that tribunal under the provisions above quoted conferred no power to dispense with a compliance with the statute as to the equipment of cars with efficient hand-brakes. IJpon this point it was sufficient to allege and' prove that the particular car was not so equipped. The plaintiff’s right to recover depended upon proof of a violation of the statute, and not of a rule of the interstate-commerce commission. While it is the duty of the interstate-commerce commission not only to provide for standardization, but also to enforce the provisions of the act (see section 6), a compliance with its orders would not necessarily be a compliance with the statute. The observance of reasonable regulations promulgated by that authority would in every ease be the minimum of what the railroad should do within the law, but might not be the maximum. The commission could not require less than “efficient hand-brakes.” Ill. Central E. Co. v. Williams, 242 N. S. 462 (37 Sup. Ct. 128, 61 L. ed. 437).

There was evidence tending to show that among the parts of the particular hand-brake which the plaintiff was attempting to manipulate were the usual brake-staff extending perpendicularly at the end of the ear, with the brake-wheel at the top of it, and a brake-rod passing laterally under the car and connected with the brake-staff by means of a chain. The chain was securely fastened to the brake-staff, upon which it would wind on the turning of the brake-wheel. At the other end of the chain, a link of it engaged a hook in the shape of the letter “ J” on the outer extremity'of the brake-rod. On the occasion in question the chain had in some way become disconnected from the hook and was dangling, a fact which was unknown to the plaintiff, and when he undertook to apply the brake by turning the brake-wheel, it gave little or no resistance to the force which would have been necessary to accomplish the operation intended. The result was that he lost his balance and fell to the ground and was injured. It was not shown that any of the mechanisms comprising the brake were broken or out of repair, and the sole question at issue was whether the manner of the connection between the chain and the brake-rod was compatible with the standard of efficiency enjoined by the statute. This connection, as we have seen, was by an engagement between the hook and a link of the chain. There was testimony from ^ several witnesses tending to show that, in the movement of cars having brakes and appurtenances of the type herein described, the chain would slip out of the hook occasionally. While this was an infrequent occurrence, it would at" times happen and might be expected. This resume of the evidence, or some part of it, will be material in the consideration of each of the remaining questions to be decided.

The defendant contends that the court committed error in rejecting evidence offered by it for the purpose of showing that a majority of the cars in the service of other railroads of the country are equipped with the “J,” or “open,” style of hook, as a connection between the chain and the brake-rod; that all companies have at least some cars equipped with this kind of handbrake, and that, in the general railroad industry, it is a standard appliance. There was no error in rejecting this evidence. Proof of what was- generally done by other railroad companies could have had absolutely no bearing upon the case unless to illustrate the question of the defendant's diligence of want of negligence in making,! use "of the particular appliance; whereat if this appliance was not efficient within the meaning of the statute, the defendant's liability would not depend upon any question of its diligence or negligence respecting the matter. The duties imposed by the statutes which have been enacted by Congress for the safety of employees are absolute, and it is not an ingredient of a cause of action in favor of an employee for injury resulting from a violation thereof that the railroad had not exercised prudence toward complying with the law. In Spokane &c. R. Co. v. Campbell, 241 U. S. 497 (36 Sup. Ct. 683, 60 L. ed. 1125), the Supreme Court of the United States said: “It is insisted that there was no evideuce that the provision of the safety-appliance act respecting train brakes was violated. It is, of course, settled, that if the equipment was in fact defective, or out of repair, the question whether this was attributable to the company’s negligence is immaterial.” See also St. Louis &c. R. Co. v. Taylor, 210 U. S. 281, 294 (28 Sup. Ct. 616, 52 L. ed. 1061, 1067); Chicago &c. E. Co. v. U. S., 220 U. S. 559, 575 (31 Sup. Ct. 612, 55 L. ed. 582, 588); Texas &c. E. Co. v. Rigsby, 241 U. S. 33, 43 (36 Sup. Ct. 482, 60 L. ed. 874, 878); and compare Lime-Cola Co. v. Atlanta & West Point R. Co., 34 Ga. App. 103 (128 S. E. 226). The sole inquiry under the evidence was whether the railroad company had complied with the law, and this issue was to be settled only by a determination of the question of whether its car was equipped with an efficient hand-brake. So we are of the opinion that the court did not err in excluding the evidence referred to. See further, in this connection, Baltimore &c. R. Co. v. Groeger, 266 U. S. 521 (45 Sup. Ct. 169, 69 L. ed. 419).

The defendant offered evidence also to show that, although the interstate-commerce commission had dealt with the matter of hand-brakes and had prescribed the design of the brake-chain and the manner of connecting the chain to the brake-staff, it had made no ruling or regulation either condemning or approving the connection between the chain and the brake-rod by means of link and open hook. The court excluded this evidence, and this ruling is made the subject of one of the grounds of the motion for a new trial. It is argued that many years have elapsed since the matter was, by the act of 1910, committed to the commission for determination, and that the fact of the commission’s having taken no action regarding it during this period would at least have authorized the inference of the commission’s approval. While it is true that the interstate-commerce commission is the tribunal to which has been entrusted the enforcement of the safety-appliance acts, and that where the commission has actually entered a given field its construction of the pertinent provisions of the statute will be persuasive upon the courts, we are of the opinion that its mere failure to pass upon a matter within its jurisdiction should not be taken as an implied approval of something it might either have approved or have condemned. Even if, in this view, we are in error, it would seem that the express or implied construction of that authority would not be matter for submission to a jury, but would be referable only to the courts for their consideration in interpreting the law. City of Columbus v. Ogletree, 102 Ga, 293 (29 S. E. 749); City Council of Augusta v. Augusta &c. Ry. & Electric Corp., 150 Ga. 524 (104 S. E. 505). In Great Northern Ry. Co. v. Donaldson, 246 U. S. 121 (38 Sup. Ct. 2.30, 62 L. ed. 616), an action for injury from a violation of the Federal boiler-inspection act, the Supreme Court of the United States said: “Nor can we agree with the contention of the plaintiff in error that, so long as the large button-head had not been disapproved by the government inspector, such fact is conclusive of the sufficiency of the type in use. We find nothing in the boiler-inspection act to warrant the conclusion that there is no liability for an unsafe locomotive, in view of the provisions of section 2 of the act, because some particular feature of construction, which has been found unsafe, has not been disapproved by the Federal boiler inspector.” True, this was not to hold that the fact that the button-head had not been disapproved by the proper governmental agency might not be evidentiary of the sufficiency of this accessory. On the other hand, it was not to rule that a failure to condemn should be taken as an approval. Assuming that the rules and regulations of the interstate-commerce commission may be submitted to the jury for their consideration as questions of fact, it is our opinion that such a practice should not be permitted where the railroad is claiming an inference of its implied approval of a given appliance merely from the fact that the commission has failed for any period to promulgate any order or regulation concerning it. It seems that this case should be distinguished from Davis v. Manry, 266 U. S. 401 (45 Sup. Ct. 163, 69 L. ed. 350). That case involved the question of whether the statutory requirement that all cars having ladders should be equipped with grab-irons on their roofs at the tops of such ladders should" be held applicable to tenders. The interstate-commerce commission had made a regulation, the effect of which was to construe the statute as not applying to tenders. The sole question for determination was whether a tender should be regarded as a car having a roof, and the commission had made, a decision of that question. In the present case there has been no specification by the commission as to what would be a proper connection between the chain and the brake-rod as parts of a hand-brake.

However, since there is nothing either in the statute or in any rule of the interstate-commerce commission forbidding the link and hook connection, the mere fact that it was used would not amount to an infringement of the law, provided that with it the brake was still efficient. The use of such connection would be a proper matter for consideration, with the other facts of the case, in determining the question of the liability of the railroad company, but could not be made the sole ground of liability. If, from the character of this connection and the manner of its operation, it appeared, as a matter of fact, that the brake was not efficient, the plaintiff was entitled to a finding that the safety-appliance act had been violated. While the burden was on the plaintiff to prove a violation of the act by the defendant, he was not bound to show that any particular contrivance was necessary to make the brake efficient. Conversely, where the interstate-commerce commission had not made any specification as to the connection between the particular parts of the device, the defendant was at liberty to employ any arrangement that would prove efficient in the eyes of the law. Baltimore &c. R. Co. v. Groeger, supra. The Federal statutes enacted for the safety of employees are to be liberally construed “to relieve trainmen of the labor and dange'r involved in the use of hand-brakes to control the speed of trains and to promote the safety of trains and of persons and property thereon.” N. Y. Central R. Co. v. U. S., 265 U. S. 41. It is our opinion that the court did not err in refusing to allow proof that the interstate-commerce commission had not disapproved the connection between the chain*and the brake-rod by means of the open hook as explained above. Our conclusion would be the same if the evidence referred to in both this and the preceding division should be considered as having been offered together, and even though it might be said that the evidence was offered only for the consideration of the court in the construction of the statute or in determining whether it would give judgment as a matter of law that the statute was complied with. In this view, no question arises as to what effect should have been given either by tlie court or by the jury to the commission^ approval of the particular mechanism, if the fact of such approval had been duly established.

In ruling as above, we have dealt with the question of the admissibility of the evidence on its merits as it has been presented by counsel for the railroad without passing upon the propriety of the method by which the defendant attempted to make the proof which the court declined to allow. But is it not true that the evidence which the defendant brought was secondary and inferior and subject to be excluded as a violation of the best-evidence rule ? The defendant’s mechanical engineer was interrogated as to whether he was “familiar with the requirements of the interstate-commerce commission with reference to these brakes,” to which he replied: “Yes, sir, it is n.y duty to see that those requirements are complied with by our road.” To a further question he answered, “They have never prescribed any design or details of the hand-brakes, brake-rod, in its connection to the chain.” He was then asked if a certain paper exhibited by counsel and designated as “plate A” covered “what they have prescribed.” This paper was a print containing words, -figures, and drawings, and purported to relate to car hand-brakes, but it was in no way certified and was not shown to have been a part of any authorized publication of the commission. The witness testified: “This plate CA’ prescribes the design of brake-staff, brake-staff chain, and the manner of connecting the chain to the brake-staff, giving the size of the bolt and the manner in which it is to be secured, and gives the size of the link on the chain which is to connect to the hand-brake and the requirement as to the link. . . There is no requirement whatever specified how-that link is to be fastened to the hand-brake rod.” The defendant offered no other evidence as to what the commission had done or not done in respect of the contrivance in controversy. It would seem that the proffered evidence was incompetent even if the same facts might have been admissible if established in some other way. See Robinson v. Baltimore &c. R. Co., 222 U. S. 506 (32 Sup. Ct. 114, 56 L. ed. 288); Hill v. Allanta, 125 Ga. 697 (2) (54 S. E. 354, 5 Ann. Cas. 614).

The evidence authorized the verdict, "and no error of law was committed. The court did -not err in refusing a. new trial.

Judgment affirmed.

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


text:
    18240.
    HALL v. JEFFREYS-McELREATH COMPANY.
    1 A person who is entitled to a lien other than a mortgage on the personal property of another may foreclose the lien in any county in which the property is situated, and the execution based upon the foreclosure affidavit may be issued in the same county.
    2. Where the defendant resides in another county and pleads to the jurisdiction, and also files a counter-affidavit, if the plea to the jurisdiction be sustained the court may then transfer the case to the proper court of the county of the defendant’s residence, for trial upon the issue formed by the counter-affidavit.
    3. In the present case, after proceedings as indicated in the two foregoing paragraphs, the court to which the case had been transferred erred in not allowing the plaintiff to amend the affidavit of foreclosure so as to allege that property belonging to' the defendant and subject to the plaintiff’s lien was situated in. the county in which the proceedings were originally instituted, and erred further in dismissing the case.
    Liens, 37 C. J. p. 343, n. 96.
    Statutes, 36 Oye. p. 1081, n. 55; p. 1166, n. 93;. p. 1168, n. 10.
    Venue, 40 Oye. p. 128, n. 51; p: 178, n. 99.
    Decided December 17, 1927.
    Lien foreclosure; from Bibb superior court—Judge Malcolm D. Jones. April 20, 1927.

      G, G. Croclcett, Martin, Martin & Snow, for plaintiff.
    Jones, Jones & Johnston, for defendant.
   Bell, J.

J. A. Hall foreclosed a laborer’s lien in- Laurens county, of which the defendant, Jeffreys-McElreath Company, was alleged to be a resident. The execution was levied on lumber at the defendant’s sawmill in that county, where the plaintiff worked. The execution which was issued by the clerk of the superior court of Laurens county was made returnable, and was returned, to that court. The defendant filed a counter-affidavit, and also a plea to the jurisdiction, claiming that it resided in Bibb county and was suable in that county only. This plea being sustained by the evidence upon the trial, the court, on motion of the plaintiff, transferred the case to the superior court of Bibb county. In that court the defendant moved to dismiss the proceeding upon the ground that the execution could be issued only in the county of the defendant’s residence; whereupon the plaintiff offered an amendment to the affidavit of foreclosure, alleging that at the time of the original foreclosure the defendant had property in Laurens county, consisting of the product of the plaintiff’s labor and the sawmill at which he worked. The court refused to allow this amendment and sustained the defendant’s motion to dismiss, and the plaintiff excepted.

Counsel for the defendant concede that it was proper for the plaintiff to make the affidavit of foreclosure before any officer authorized to administer an oath, but contend that it was not proper for the affidavit to be filed with the clerk of the superior court of Laurens county, or for the execution to issue from any court other than a court of the county of the defendant’s residence, which was Bibb county, notwithstanding the defendant may have owned property in Laurens county. The contention of counsel for plaintiff is that the foreclosure could be made and that the execution could be issued in any county in which the defendant had property, although the law required that the case be transferred to the county of the defendant’s residence for trial upon the counter-affidavit.

In our opinion the court erred in not allowing the amendmenand in dismissing the case. In Tharpe v. Foster, 52 Ga. 79, Tharpe foreclosed a laborer’s lien against Foster and had the execution based thereon levied on cotton situated in Bibb county. The affidavit of foreclosure was made and the execution was issued in that county. The defendant filed a counter-affidavit, setting up, among other things, a want of jurisdiction in Bibb superior court, on the ground that the defendant was a resident of Morgan county. On an agreed statement of facts the trial court sustained the defense and ordered the foreclosure and execution both to be set aside. The Supreme Court said that the main question was whether the process could issue in another county than that of the defendant’s residence, and proceeded to answer it -as follows: “Tl>e act of March 16th, 1870, is silent on this point. We do not think there is any constitutional difficulty in the way of suing it out in another county. Section 12, article 5 of the constitution, after reciting where equity cases, cases involving titles to land, etc., shall be tried, says, all other cases shall be tried in the county where the defendant resides. With this provision in all the constitutions, it has been held that an attachment can be issued by an officer of one county and returned to the courts of another: 36 Ga. 597; Code, §§ 3265, 3269, 3272. The act of 1869, Code, § 4082, declares that ‘any person who may have rent due, may, by himself, his agent or attorney make application to any justice of the peace within the county where his debtor may reside, or where his property may be found, and obtain from such justice a distress warrant.’ If an issue be made,' it is provided that it shall be c returned to the court having cognizance thereof. ’ Would not this be a court in .the county of the defendant’s residence? So in the case of foreclosure of mortgages on personal property. The affidavit may be made before any officer of the State authorized to administer oaths, which shall be filed in the office of the clerk of the superior court of the county where the mortgagor resides or did reside at the date of the mortgage, if not a resident of the State, and such clerk shall issue the execution. It is true in the case of a mortgage the final process is to issue in the county of the defendant’s residence; for in such eases it is not the officer administering the affidavit who issues the execution. But in eases of attachments the process which is levied, and the distress warrants, by which the property may both be levied .on and sold, may issue out of the county of the residence of the defendant. In this case, the laborer claimed his lien on cotton, the product of his labor, then in Bibb county, and the process was levied on the cotton. The defendant resided in Morgan county. Section 1990 of the Code says, the person prosecuting such lien, either for himself or as guardian, etc., must, by himself, agent or attorney, make affidavit before a judge of the superior court, or the ordinary of the county in which the personal property may be, or the defendant may reside, showing the lien, etc., and upon such affidavit being filed, if before a judge of the superior court or the ordinary, with the clerk of the superior court of such county, it shall be the duty of such clerk to issue an execution, etc. The affidavit in this case was made before the judge of the superior court of Bibb county, and the execution was issued by the clerk of the superior court of that county. We think the execution was properly sued out and issued under the facts of the ease.”

A comparison by number of the code-sections referred to in this decision with those of. the other codes clearly demonstrates that the Supreme Court was referring to the Code of 1873. It is also apparent that in mentioning section 1990 the court intended to refer to section 1991. It seems there was a further clerical error, in the reference to the act of March 16, 1870. The allusion evidently was to the act of September' 16, 1870 (Ga. L. 1870, p. 412), for we find no such act of March 16 of that year. Neither the Code of 1873 nor the Code of 1882 was ever adopted by the legislature, and these two codes may'be eliminated from the present inquiry. While, as we have stated, the Supreme Court, in the Tharpe case, referred to the Code of 1873, the decision was in effect a mere construction of the act of September 16, 1870, as compiled in that" code. The General Assembly, by the act of December 16, 1895 (Ga. L. 1895, p. 91), provided that “affidavits to foreclose liens may be made before any officer authorized to administer oaths for general purposes, but such affidavits must still be filed with the officers now authorized to issue process upon the same, which officer, after the filing of such affidavit, shall issue process as now required by existing laws.” With respect to the point now under consideration, there was no change in the law between the time of the decision in the case of Tharpe v. Foster, supra, and the adoption of the Code of 1895. But counsel for the defendant in error take the position that the law providing for - the foreclosure of liens other than mortgages was materially changed by the adoption of the Code of 1895, and in support of this contention they point out that section 2816 of that code says nothing about a foreclosure in a county where the defendant has property and merely speaks of the issuance of the execution by the clerk of the superior court upon the filing of the affidavit of foreclosure with that officer. The pertinent provision of the section just mentioned was repeated without change in paragraph 4 of section 3366 of the Code of 1910 and was as follows: “Upon such affidavit being filed with the clerk, it shall be the duty of the clerk of the superior court or the justice of the peace, if in his court, to issue an execution instanter against the person owing the debt, and also against the property on which the lien is claimed, or which is subject to said lien, for the amount sworn to, and the costs, which execution, when issued, shall be levied by any sheriff of this State, or bailiff if the amount be less than one hundred dollars, on such property subject to said lien, under the same rules and regulations as other levies and sales under execution.” The codes of 1895 and of 1910, unlike the other codes referred to, were adopted by the legislature, the language as to each being that it was “adopted and made of .force as the code of Georgia” (Ga. L. 1895, p. 98; Ga. L. 1910, p. 48). Evidently the adoption of the Code of 1910 worked no modification of the law as expressed in the Code of 1895 with respect to the matter under consideration.

The question for determination then is, did the legislature in adopting the Code of 1895 amend the statute law as it existed at the time of the decision in the case of Tharpe v. Foster, supra, so as to abolish the rule that in a, foreclosure proceeding such as this the execution may be issued in any county in which personal property belonging to the defendant and subject to the lien is situated, although the defendant may reside elsewhere. “In the codification of the laws it is almost impossible to go into all the details of the different statutes codified. Where the code sections are incomplete or ambiguous, they must be construed in connection with the original acts.” Bacon v. Jones, 116 Ga. 136, 139 (42 S. E. 401). “The rule is that, unless the contrary manifestly appears from the words employed, the language of a code section should be understood as intending to state the existing law and not to change it.” Lamar v. McLaren, 107 Ga. 591, 599 (34 S. E. 116).

Since, under the act of December 19, 1893 (Ga. L. 1893, p. 119), providing for the appointment of commissioners to codify the laws of Georgia, the commissioners were empowered only “to codify and arrange in systematic and condensed form” the laws of the • State then in force, the presumption is that the Code (of 1895) as prepared by such commissioners and as “adopted and made of force as the code of Georgia” is merely an expression of the law as it existed previously to the codification, except where, from the language used, an intention to amend or change the existing law is manifest. Where such intention appears, it must, of course, be given effect, not-because of any power of legislation vested in the codifiers, but because of the adopting statute. “Where in the process of codification of an act of the legislature, mere verbal changes occur, resulting from the transposition of words or from, the reconstruction of a sentence, it will not be presumed that it was the intention of the codifiers to change the law as laid down by the General Assembly; but on the contrary, in order to bring about such changes, there must be somewhere in the legislation of the State the expression of a manifest purpose to make the change in the law.” Greenfield v. Farrell Heating &c. Co., 17 Ga. App. 637 (1, c) (87 S. E. 912); See also, in this connection, Mechanics Bank v. Heard, 37 Ga. 401, 413; Phillips v. Solomon, 42 Ga. 192; Gardner v. Moore, 51 Ga. 268; Bailey v. McAlpin, 122 Ga. 616 (6) (50 S. E. 388); Smith v. Evans, 125 Ga. 109 (53 S. E. 589).

We find nothing in section 2816 of the Code of 1895, nor in anything omitted, to convince us of an intention on the part of the codifiers to do other than “arrange in systematic and condensed form” the then-existing law upon the subject of the foreclosure of liens on personalty o,ther than mortgages; and so we are of the opinion that the law on this subject remains the same, as concerns the question under consideration, as when the Supreme Court decided the Thorpe case. See generally, on the question of venue in eases of this character, Cox v. Felder, 36 Ga. 598; Cape Fear Boat Co. v. Torrent, 46 Ga. 585; Hardeman v. DeVaughn, 49 Ga. 596 (2); Bennett v. Wheatley, 154 Ga. 591 (5), 605 (115 S. E. 83).

Our conclusions are strengthened by a further inquiry into the history of our law on the subject under investigation. It appears that the procedure for foreclosing liens such as the one here involved was first adopted for the foreclosure of liens on steamboats, and authorized both the making of the foreclosing affidavit and the issuance of the execution to be done in the county where the boat or craft lay, and was later made applicable to the foreclosure of any lien on personalty, meaning, of course, liens other than mortgages. Section 1986 of the Code of 1863, following closely upon other sections prescribing the -method of foreclosing liens on steamboats (see § 1980 et seq.), provides: “All persons having a lien on personalty under any law in this State may enforce the same in a similar manner, by complying with the requisitions prescribed above for persons employed on steamboats, the proceedings to be in the county where the property lies.” The Code of 1863 was adopted as the law of Georgia just as was the Code of 1895. So that from an early date it was the policy of the law to permit foreclosures of liens on personalty in any county where property belonging to the defendant was situated, and to authorize the issuance of the. execution in that county. Compare Ga. L. 1868, p. 135; Ga. L. 1869, p. 135; Ga. L. 1870, p. 409. We think the practice is still permissible under the law.

Our statements as to the adoption of codes, other than the Code of 1910, is on the authority of Central of Ga. Ry. Co. v. State of Ga., 104 Ga. 831 (5) (31 S. E. 531, 42 L. E. A. 518), in which the Supreme Court said: “The Code of 1868, known as Irwin’s Code, and also the Code of 1873, were both the work of private enterprise, their compilation not having been previously authorized by any act of the legislature. The Code of 1882 was compiled in pursuance of an act of the legislature, but neither this edition nor the other two named received the sanction of an adopting act. After each of these works was completed, it was by resolution of the General Assembly submitted, the first to a committee of three, and the last two to the attorney-general of the State, and each received favorable reports. This was a completion of the work, and all the legislature afterwards did was to order a publication of a given number of volumes and make appropriation therefor. When, however, the Code of 1895 was reported by the commissioners, and was examined, approved, and favorably reported by a joint committee of both houses of the legislature, that body went a step further and passed the ‘adopting act’ of 1895. Instead of treating the work as it did the three preceding editions, it pursued the same course followed by the legislature when it passed the act of December 19, 1860, adopting and making of force what has ever since been known as the Code of 1863.” See also Murray v. State, 112 Ga. 7 (6), 12 (37 S. E. 111).

It follows from what has been said that the court erred in not allowing the amendment to the affidavit of foreclosure and in dismissing the proceeding.

Judgment reversed.

Jenláns, P\ J., and Stephens, J., concur.


author: Bloodworth, J.

text:
    18510.
    ARMSTRONG & BROTHER COMPANY v. CRANE.
    The judge of the superior court erred in overruling the certiorari, and in remanding the ease to the trial judge “to pass upon the questions raised in the oral motion for a new trial made by the defendant.”
    Courts, 15 C. J. p. 987, n. 61.
    Decided December 13, 1927.
    Rehearing denied January 7, 1928.
    Certiorari; from Eulton superior court—Judge Moore. September 12, 1927.

      Application for certiorari was made to the Supreme Court.

      Burress & DiUa/rd, T. B. Olwrlcson, for plaintiff.

      John B. Hwunson, Aldine & Hewill W. Chambers, for defendant.
   Bloodworth, J.

E. S. Armstrong & Brother Company sued Sam. C. Crane in the municipal court of Atlanta, on four promissory notes aggregating $485.32 (besides interest and attorney’s fees), and upon an open account for $12.15, making the total principal sued for $497.47. The defendant in his answer pleaded a set-off in damages amounting to $1250. The case was tried on June 15, 1926, and the jury rendered a verdict in favor of the plaintiff. On that date the defendant made an oral motion - for a new trial. On February 7, 1927, the motion for a new trial came up for a hearing, and Hon. J. B. Eidley, one of the judges of the municipal court, passed the following order: “The court is of the opinion that there is no legal motion for new trial pending in this case, and all attempted motions are dismissed.” On February 17, 1927, the defendant filed an appeal to the appellate division of the municipal court; and on March 29, 1927, the appellate division held that the trial judge erred in dismissing the defendant’s motion for a new trial, and remanded the case to the trial judge, with direction that he pass on the motion. The plaintiff then carried the case, by certiorari to the superior court, complaining that the appellate division of the municipal court erred in ordering the trial judge to pass on the defendant’s motion for a new trial. On September 12, 1927, lion. V. B. Moore, judge of the superior court, overruled the certiorari, and remanded the case “to J. B. Eidley, judge, to pass upon the questions raised in the oral motion for a new trial, made by the defendant.” To this judgment the plaintiff excepted and assigned error thereon, bringing the case to this court.

The only question involved is: was the oral motion for a new trial, filed by the defendant Crane, a legal motion? The act' of 1913 (Ga. L. 1913, p. 167, section 42, subdivision (a), relative to new trials ifi the municipal court of Atlanta) provides that “any party to said cause, or his counsel, may make an oral motion for a new trial in said court, . . and no brief of the evidence shall be necessary.” However, this act has been amended, and the act of 1925 (Ga. L. 1925, p. 383, sec. 42) provides that “new trials may be granted in said court upon the same grounds upon which new trials may be granted in the superior courts of this State, and according to the same method of procedure, except . . Any party to said cause or his counsel may make an oral motion for a new trial in said court, where the amount sued for, or the value of the p’operty sued for or claimed, is for the sum of not more than $500 principal, exclusive of attorney’s fees, interest, and costs.” See also page 379, sec. 37, of said act. The effect of these amendments as embodied in the act of 1925 is that if the amount sued for, or the value of the property sued for or claimed, is over $500, exclusive of attorney’s fees, interest, and costs, the motion for a new trial must be in writing, according to the same method of procedure that prevails in the superior court. It is true that the principal amount sued for by the plaintiff aggregates only $497.47; and so far as plaintiff’s petition is concerned, an oral motion for a new trial would have been sufficient. Neither is this altered by the fact that notice was given that attorney’s fees would be claimed, and attorney’s fees would' make the amount claimed by plaintiff exceed $500. While the amount of attorney’s fees of which notice has been given, when added to the principal, may cause the amount sued for to exceed the jurisdiction of a justice’s court, this ruling is not applicable in the instant case, because of the special statutory provision fixing the amount at $500, “exclusive of attorney’s fees.”

The defendant pleaded a set-off in damages' amounting to $1250, and prayed for a judgment for that amount. In our opinion it is this fact which necessitated a written motion for a new trial, under the statute as amended. It will be noted that the “amount sued for” is not the only amount involved in the amendatory statute of 1925. It may be the amount “sued for,” or it may be the amount “claimed to be due,” or it may be the value of the property sued for or claimed. If more than $500 is sued for or claimed by either party, the lawmaking body considered it of sufficient import to apply the rule applicable to superior courts. And this is in accordance with our general system of jurisprudence. The amount involved, and consequently the importance of the litigation, is what governs. Exactly the same principle of law, relative 'to amount, is involved in this case as in cases of appeal from a justice’s court. As to justices’ courts the Civil Code, §§ 4742, 4738, provides for an appeal where “the sum claimed exceeds $50,” and nothing is said in the code section about a set-off of a larger amount than $50 permitting an appeal; yet this court, in Croft v. Broxton Artificial Stone Works, 4 Ga. App. 92 (60 S. E. 1015), held: “Where a defendant who is sued in a justice’s court for less than $50 pleads a set-off to the amount of $84, and a judgment is rendered against him, he can enter an appeal from the judgment of the justice to a jury in the superior court.” This decision and others like it show conclusively that a set-off, even though no direct reference to it is made in the statute, must be taken into consideration in determining procedure which is dependent on the amount involved, as in the instant case. Neither does the fact that the defendant’s claim was partially stricken, alter the rule. It is the amount claimed that requires the superior-court procedure. In Bell v. Davis, 93 Ga. 233 (18 S. E. 647), the Supreme Court held: “Where suit was brought in a justice court upon an account for $94.80, to which the defendant filed a plea setting up that he was entitled to sundry credits amounting to $66.18, and also- a set-off of $13, and at the trial the plaintiff admitted that $65.78 of the amounts claimed by the defendant should be allowed, and thereupon a judgment for the plaintiff was rendered for $29.02, the balance claimed by him, from which judgment the defendant entered an appeal to the superior court, it was error to dismiss the appeal on the ground that the amount claimed in the court below was less than $50. The exercise of the right of appeal in such cases depends upon the amounts claimed in the pleadings, and not upon reductions which may be made at the trial.” (Italics ours.) The amount claimed by the defendant in the pleadings in the instant case was $1250. See also Dyar v. Scott, 99 Ga. 96 (24 S. E. 855); Padgett v. Ford, 117 Ga. 508 (43 S. E. 1002); Wheeless v. Carter, 120 Ga. 725 (48 S. E. 121); Reedy v. Helms, 54 Ga. 122. The principle of law announced in the- foregoing cases is applicable to and controlling in the instant case.

Since the amount claimed, as shown by the pleadings, exceeded $500, and there was no written motion for a new trial, or brief of evidence, or order granting an extension of time for procuring the same, the trial judge properly held that there was no legal motion before the court; and the judge of the superior court erred in overruling the certiorari and remanding the case to the trial judge “to pass upon the questions raised in the oral motion for a new trial, made by the defendant.”

Judgment reversed.

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


author: Luke,, J.

text:
    18512.
    ROGERS REALTY AND TRUST COMPANY v. DENNETT.
    Where the consideration of an agreement of the defendant to buy, through the plaintiff, agent for a named owner, party of the first part, a designated lot of land on Ponce de Leon Avenue, was stated as “the sum of $20,000, to be paid as follows: Assume first loan of $10,000 at 6 per cent, interest, and $5750 in monthly notes of $100 each, and an equity of $4250 in brick bungalow known as 130 Melrose Drive . . Party of the first part agrees to assume $3250 first loan against 130 Melrose Drive; sale price of Melrose property $7500,” the consideration for the Ponce de Leon property was not set out with sufficient certainty to sustain an action to recover commission alleged to be due the plaintiff under the contract.
    Brokers, 9 O. J. p. 560, n. 18.
    Decided December 13, 1927.
    Rehearing denied January 7, 1928.
    Certiorari; from Eulton superior court—Judge Humphries. September 16, 1927.

      Craighead & Craighead, William C. Hanson, for plaintiff.

      Aldme & Hewitt W. Chambers, for defendant.
   Luke,, J.

The judge of the superior court, in overruling and dismissing a certiorari from the municipal court of Atlanta, held that the plaintiff in error was properly nonsuited in its action against Mrs. N. W. Dennett for the recovery of commissions alleged to be due the plaintiff under a written contract for the exchange of two lots in Atlanta, Ga. • The material part of the contract is as follows: “The undersigned hereby agrees to buy through the L. W. Eogers Eealty & Trust Co. Inc., agents for Thos. W. Hogan, owner, party of the first part, the following described property, to wit: All that tract or parcel of land lying and being in City of Atlanta, Eulton County, Georgia, and known as 697 Ponce de Leon Avenue, according to the present system of numbering houses in the City of Atlanta, lot being 45 feet on Ponce de Leon Avenue, and running back 220 feet to alley, size of lot being approximately, for the sum of $20,000, to be paid as follows:. Assume 1st loan of $10,000 at 6% interest, and $5750 in monthly notes of $100 each, and an equity of $4250 in brick bungalow known as 130 Melrose Drive, Sylvan Hills, according to the present system of numbering houses in the City of Atlanta. Party of the first part agrees to assume $3250 first loan against 130 Melrose Drive. Sale price of Melrose property $7500.”

Under the decision in Trust Company of Georgia v. Neal, 161 Ga. 965 (132 S. E. 385), the consideration for the Ponce de Leon property is not set out with sufficient certainty to sustain the action. It follows that the judgment overruling the certiorari was not error.

Judgment affirmed.

Broyles, C. J., And Bloodworth, J., concur.


text:
    18513.
    Blair v. Barnwell Trust Incorporated.
    Decided December 13, 1927.
    Rehearing denied January 7, 1928.
    Complaint; from Douglas superior court—Judge Edwards, August 15, 1927.
    Application for certiorari was made to the Supreme Court.

      W. A. James, C. M. James, for plaintiff in error.

      Clarice & Clarice, contra.
   Bloodworth, J.

1. The motion to dismiss the writ of error is denied.

2. The court did not err in overruling the demurrer to the petition.

3. The judge then presiding did not err in the final order, dated August 15, 1927, dismissing the motion for a new trial. ' ,

Judgment affirmed.

Broyles, G. J., concurs. Luke, J., dissents.


author: Luke, J.

text:
    18557.
    FOWLER v. THE STATE.
    The trial judge did not abuse his discretion in refusing to vacate and set aside the verdict and judgment.
    Criminal Law, 17 C. J. p. 228, n. 24.
    Decided December 14, 1927.
    Rehearing denied January 7, 1928.
    Motion to vacate judgment; from city court of Dublin—Judge Bidgood. September 12, 1927.

      W. A. Dampier, for plaintiff in error.

      J. A. Merritt, solicitor, contra.
   Luke, J.

B. C. Fowler was convicted, in the city court of Dublin, of torturing, cruelly treating, kicking and slapping a minor child, and of whipping the child with a double plow-line, a large stick, with his fist, and with whips and sticks. He made a motion “to set aside and vacate the judgment of the court and verdict of the jury in said case, and for grounds thereof says: that he was tried, convicted, and judgment passed upon him by the court on the 27th and 28th of September, 1926, in the said city court of Dublin, Laurens County, Georgia, which verdict of jury was rendered in vacation of that court, after said term of the court had been automatically adjourned by operation of law, and that for this reason said verdict is null and void, and a mere nullity. Movant contends that the said judgment of sentence passefi in said case by the court is a mere nullity, and is void, for the same reason that the September quarterly term of the city court of Dublin had been duly adjourned by operation of law, and at the time said sentence was passed upon him there was no court in session, that it was in vacation of said court, and that the court had no authority to pass said' sentence and judgment upon him.” The trial judge passed the following order: “The within petition and motion coming on for hearing, and it appearing to the court, after due consideration thereof, that the same sets forth no sufficient and legal reason why the sentence of the court should be vacated and set aside, the same is hereby dismissed, denied, and overruled. Ordered further that the judgment in said case be superseded and held up until further order of the court.” To this order the movant excepts.

Under the acts of 1900 (Ga. L. 1900, p. 120), section 8, the judge of the city court of Dublin “may hold adjourned terms of said court when in his discretion the same is advisable, and the jurors summoned to the quarterly term immediately preceding such adjourned term shall serve at such adjourned term.” See, in this connection, Fussell v. State, 11 Ga. App. 843 (76 S. E. 597). Under the above authority and the record in this case, we can not say that the trial judge abused his discretion in refusing to vacate and set aside the verdict and judgment.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    18559.
    Thomas v. The State.
    Criminal Law, 16 O. J. p. 1106, n. 17; 17 O. J. p. 271, n. 41; p. 321, n. 47.
    Gaming, 27 C. J. p. 1012, n. 85.
    Decided December 13, 1927.
    Rehearing denied January 10, 1928.
    Keeping gaming-house; from Wilkes superior court—Judge Perryman. September 9, 1937.

      Hugh E. Gombs, for plaintiff in error. •

      M. L. Eelis, solicitor-general; contra.
   Broyles, C. J.

1. Conceding (but not deciding) that the court erred in admitting the evidence set forth in the motion for a new trial, the error does not require another hearing of the case, since the only effect of the evidence was to show the fact of gaming in the house in question, and there was undisputed evidence that this fact had been admitted to the arresting officer by the defendant herself.

2. Where an indictment covers not only the keeping of a gaming house, but knowingly permitting persons to come together and play for money at prohibited games in a house or room occupied by the accused, and where the evidence disclosed a single instance only of gaming, a conviction is authorized whether or not these facts constituted the place a gaming-house. Bell v. State, 92 Ga. 49 (18 S. E. 186).

3. The evidence as to whether the accused controlled the house in question was weak and unsatisfactory; but the finding of the jury against the defendant on that issue being supported by some slight evidence, and having been approved by the trial judge, this court is without authority, to interfere.

Judgment affirmed.

Luke and Bloockoorih, JJ., concur.


text:
    18088.
    18103.
    HERRING v. STATE OF GEORGIA. ECHOLS v. STATE OF GEORGIA.
    “Whore a warrant was issued on an affidavit charging a person with a crime, and that person was subsequently indicted for the offense charged in the affidavit, the party making the affidavit being a witness for the State, it was contempt of court, under the provisions of the Civil Code of 1910, § 4643, for the accused to make to the .father and brother of the witness statements intending that they should be communicated to the witness, where such statements naturally tended to coerce and were expected to coerce the witness so as to change or modify his testimony, that it might be more favorable or less hurtful to the defendant. And where another person was with the defendant when he made the statements referred to, and joined him in making the coercive statements, he also was guilty of contempt of court.”
    Contempt, 13 C. J. p. 38, n. 33.
    Decided January 7, 1928.

      Contempt; from Chattooga superior court—Judge Maddox. April 7, 1927.

      Porter & Mebane, for plaintiffs in error.

      J. F. Kelly, M. Neil Andrews, solicitor-general, contra.
   Luke, J.

Herring and Echols were found guilty of the offense of contempt of court, and each brought a bill of exceptions to this court. This court propounded to the Supreme Court the following question: “Alfred Adkins swore out a warrant against-Emmett Echols charging him with a felony, and Echols was sub'sequently indicted for such felony in the superior court of Chattooga County, Alfred Adkins being a witness for the State. While the case was pending in court and before its trial, Emmett Echols and Monroe Herring went to the residence of Fillmore Adkins, the father of Alfred Adkins, and Echols said to Fillmore Adkins, in substance, that he (Echols) wanted him (Fillmore Adkins) to get his son, Alfred Adkins, to testify in court that the reason he had sworn out the warrant against him (Echols), and had stated that Echols was running a distillery, was because he (Alfred Adkins) had been scared into so doing by the officers. Monroe Herring, who was present and heard what Echols said to Fillmore Adkins, then said, in substance, to Fillmore Adkins: ‘Unless your son does swear that, it will cause him more trouble.’ Alfred Adkins was not present, and heard none of the above-stated remarks. However, a brother of Alfred was present and heard all that was said; and the statements of Echols and Herring were subsequently repeated to Alfred Adkins by his father and brother, but neither suggested what he should swear in the case nor advised him in any way about his testimony. Emmett Echols (upon the hearing of the charges of contempt of court against himself and Herring) testified in Herring’s ease, and stated in his own case that he went to Fillmore Adkins’ house and talked with him as heretofore set forth, because Alfred Adkins had previously told him (Echols) that the reason he had sworn out the warrant against him and had told the officers' that he had' made whisky was that he (Adkins) had been scared by the officers into so doing. This testimony of Echols was uncontradicted., Alfred Adkins did not testify in the contempt cases. Under the above-stated facts, was the judge of the superior court of Chattooga County authorized to find that the conduct and acts of the two defendants, Echols and Herring, as heretofore set forth, amounted to a ‘resistance’ to the processes of the court, within the meaning of the provisions of section 4643 of the Civil Code of 1910?”

The headnote of the opinion rendered by the Supreme Court in answer to this question is adopted as the headnote of this opinion. Eor full opinion of the Supreme Court see Herring v. State, 165 Ga. 254 (141 S. E. 89).

Judgments affii'med.

Broyles, C. J., and Bloodworth, J., concur.


text:
    18347.
    COX v. HOWELL.
    1. A lease can not be conveyed except by tlie landlord’s consent.
    2 A trustee in bankruptcy of a lessee has only the same rights and interest that the tenant has under the contract of lease, and can not enforce a different contract. The instant contract provides for subleasing, but has no provision for an assignment thereof. The lessee could not assign his lease without the consent of his landlord, and neither could the trustee in bankruptcy. The transferee of the lease in the instant case received nothing and had no right of action for the alleged breach of the lease contract. The cross-action set-forth no cause against the plaintiff, since the alleged cause asserted in the cross-action did not arise under the contract, but arose under an alleged parol agreement. Nor were the damages alleged in the cross-action such as were recoverable.
    3. The trial court properly struck the plea of counter-claim and set off, and the judge of the superior court erred in sustaining the certiorari.
    Bankruptcy, 7 C. J. p. 228, n. 67 New.
    Landlord and Tenant, 35 O. J. p. 977, n. 80.
    Decided January 7, 1928.
    Certiorari; from Fulton superior court—Judge Humphries. May 31, 1937.
    Application for certiorari was made to the Supreme Court.

      Burr ess & Dillard, T. B. Clarkson, for plaintiff.

      John I. Hynds, Herman Heyman, for defendants.
   Luke, J.

W. S. Cox sued Continental Oil Company and Hugh Howell on a note for $300. The company was not served, and the case proceeded against Howell alone. The sole question for determination here is whether or not the judge of the superior court erred in reversing the judgment of the appellate division of the municipal court of Atlanta on certiorari and holding that, as against a general demurrer, the defendant’s plea set out a valid defense to the action.

In his plea as amended the defendant alleged that Continental Oil Company, as lessee, and W. S. Cox, as lessor, entered into a contract of lease of described property, whereby the lessee agreed to pay the lessor a monthly rental of $75, for a term beginning May 24, 1924, and ending May 24, 1934; that under the terms of the lease, and, as a part of its consideration, the lessee agreed to erect upon the described premises a filling station,-and to place thereon certain other property,—all of which it had done at an expense of $5000; that although the lease provided that the rent was due oar tlae first day of each month in advance, and that after thirty days default in the payment of reart the lessor had the right to cancel the lease, yet in accordance with an understanding between them the parties to the lease disregarded this provision from the beginniarg, and the lessee was several times permitted to pay the reart from two to four nroartlas after it was due; that on or about May 29, 1925, when the rent was three months in arrears and aar additional month's reart would be due June 1 thereafter, the lessor agreed that if the lessee would give its thirty-day note for $300, he would “extend to the Continental Oil Compaary an additioraal four months for the payment of said sum then due aard to become due, aard would disregard the provisions for cancellation of said lease as contained therein;” that the said note was executed iar accordance with this agreement and delivered to petitioorer; that on or, about July 13, 1925, an involuntary petition in bankruptcy was filed agaiarst the lessee, and that subsequently it was adjudicated a baarkrupt; that on or about July 14, 1925, petitioner, without any agreement with either the lessee or its receiver, and without any notice to either of said parties, forcibly re-eaatered said premises and took possession of the same, and prevented the lessee or its said receiver from regaining possession thereof; that at said time the lessee had fully complied with all the provisioaas of the lease; that the lessor had by express agreeaneaat and by custoan departed from the terms of said lease permitting a cancellation thereof for non-payment of rent then in arrears, and had given no notice of his intention to insist upon the same; that the act of the lessor iar so taking possession of the premises was a' breach of the said lease agreement; that at the time of said breach the leased premises,- with the improvements made thereon by the lessee, “had a market value in excess of the value set forth in said lease contract in excess of. the sunr of $2500,” but that the defendant waived any claim for damages arising by virtue of said lease contract in excess of $2500; that on August 20, 1925, the duly qualified trustee in bankruptcy of the lessee, for a valuable consideration, sold and transferred “the above chose in action vested in said trustee because of the breach of said lease” to one Iiynds, who, in turn, transferred, assigned, and conveyed “all his right and interest in said chose in action” to the defendant. The defendant prayed judgment against the plaintiff “for the excess in the amount of damages to which he is entitled because of the breach of said contract over and above the amount to which petitioner is entitled in said cause.”

For the purposes of this decision the nature of the contract in question sufficiently appears from the defendant’s plea. Whether or not the contract under consideration created in the lessee a mere usufruct which under section 3691 of the Civil Code (1910) could not be assigned except by the lessor’s consent, or an estate for years which was assignable, is presented for determination. In other words, did the defendant’s plea set forth a cause of action against the plaintiff, and did he have a right of action on the contract referred to in his plea? After a careful study of the record and óf the authorities it is held:

The lease could not be conveyed except by the landlord’s consent. Civil Code (1910), § 3691; Cook v. McArthur, 31 Ga. App. 248 (2) (120 S. E. 551).

The trustee in bankruptcy proceedings has the same rights and interest only that the tenant has (in a case of landlord and tenant), and can enforce no contract except the one had by the tenant. The instant contract provides for subleasing, but has no provision for an assignment thereof. The lessee could not assign his lease without the consent of his landlord, and neither could the trustee in bankruptcy. It follows that when the defendant, Howell, received a transfer of the lease, he received nothing, and had- no right of action for the alleged breach of the lease contract. The defendant’s cross-action set forth no cause of action against the plaintiff, since his alleged cause of action did not arise under the contract but arose under an alleged parol agreement. Nor were the damages alleged-in the cross-action such as were recoverable. Walker v. Wadley, 124 Ga. 275 (5) (52 S. E. 904).

The trial court properly struck the plea of counter-claim and set-off, and the judge of the superior court erred in sustaining the certiorari.

Judgment reversed.

Broyles, G. J., and Bloodworkh, J., concur.