text:
    14857.
    GEORGIA NATIONAL BANK v. FRY.
    1. A new note given in lieu of an existing note between the same parties and for the same indebtedness, even at a higher rate of interest and due at a later date, is not given for a new consideration, and therefore does not constitute a novation. Civil Code (1910), § 4226.

      (а) This is true though the payee retain possession of a dishonored check received from the maker in part payment of the original note, but the amount of which is included in the new note. The check is merely cumulative proof of the obligation.
    (б) This is further true though the new note be given for a debt discharged in bankruptcy. The new note merely revives or extends the original liability. Civil Code (1910), § 4386. See, in this connection, American Mortgage Go. v. Rawlings, 127 Ga. 82 (56 S. E. 110).
    (c) The cheek not constituting the original obligation, but being cumulative of the new note, a novation cannot result from the new note being a different contract from the check.
    (d) Where it does not appear that the original note was not under seal, there being no presumption that it was not under seal, the new note does not, because of being under seal, appear to be a novation.
    2. Nor does the taking of a new note in lieu of the original -note, which was surrendered, amount to a satisfaction of the indebtedness, in the absence of an express agreement to that effect. Civil Code (1910), § 4326.
    3. A composition among creditors of a bankrupt does not amount to a satisfaction of his indebtedness, but operates only as does a discharge in bankruptcy, which the bankrupt may plead as a bar to the enforcement of his obligation to pay the balance due on the indebtedness. Bankruptcy act, § 14 e; 1 Collier on Bankruptcy (13th ed.), 458, 460, 461, 472.
    4. The payee of a cheek who deposits it in a bank for collection may recover against that bank for negligent failure to present it for payment to the bank upon which it was drawn and in which the maker had on deposit sufficient funds to pay it. Civil Code (1910), §2362; Bailie v. Augusta Sewings Banh, 95 Ga\ 277 (21 S. E. 717, 51 Am. St. R. 74). Where, in case of bankruptcy of the maker, a composition is made with his creditors, whereby the payee receives out of the maker’s assets payment of a part of the indebtedness represented by the dishonored check, or accepts a new note which does not. amount to a novation or to an accord and satisfaction of the indebtedness, the part payment or new note does not constitute a satisfaction of his right to recover against the bank for negligent failure to collect the check.
    5. The payee’s right to proceed against the maker of the check, either at common law or by proof of his claim in bankruptcy, to recover on the indebtedness represented by the check is a remedy consistent and concurrent with the payee’s right to proceed against the bank for a negligent failure to present the check for payment. Therefore the pursuit by the payee of his claim in bankruptcy against the maker of the check will not bar his right to recover against the bank. Civil Code (1910), §5522. The amount received as a result of the composition by the payee of the check, and applied on the indebtedness represented by the check, can, of course, be pleaded pro tanto by the bank in reduction of damages.
    6. It is no defense for the bank’s negligent failure to present the check for payment that the payee or plaintiff received the check as a - preferred creditor of the maker within four months before the filing of a petition in bankruptcy against the- maker, and that such transaction was voidable by the trustee in bankruptcy under § 60 b, of the bankruptcy act. Such transaction being voidable only by the trustee, its invalidity cannot be pleaded by the bank against the payee’s right to recover. 1 Collier on Bankruptcy (13th ed.), 830.
    7. This being a suit by the payee of a check, to recover damages against the bank in which he had deposited it, for the bank’s negligent failure to present it to the drawee bank for payment, and there being no evidence from which it could be inferred that the note afterwards given by the maker of the check to the payee amounted to a novation, or to an accord and satisfaction of the indebtedness represented by the check, it was not error for the court, when instructing the jury hypothetically upon the plaintiff’s right to recover, to eliminate such defense.
    8. The charge of the court contained no expression of opinion on the facts.
    9. Applying the above rulings, the court did not err in sustaining the demurrer to the defendant’s plea, or in the charge to the jury.
    10. The plaintiff’s measure of damages is prima facie the face value of the check, which may be reduced or mitigated by any subsequent payment thereon received by the payee, or perhaps defeated by the solvency of the maker. 7 O. J. 623, 624. It being clearly inferable from the evidence that the maker, who had been adjudicated a bankrupt within ten days after the check was dishonored, was therefore insolvent, the verdict found for the plaintiff in the amount of the check, less a fifteen per cent, payment thereon out of the bankrupt’s estate as the result of a composition, was authorized by the evidence.
    Decided September 22, 1924.
    Complaint; from city court of Alb any — Judge Clayton Jones. June 13, 1923.
    On September 2, 1921, W. C. Dunham, being indebted to E. A. Ery a balance of $2,600 on a promissory note, delivered to Ery a check for $1,012.50, payable to Ery and drawn upon the Citizens First National Bank of Albany. Fry immediately deposited the check with the Georgia National Bank of Albany, but it appears that the check was not presented to the bank upon which it was drawn until the 7th or 8th of September, when it was dishonored for insufficient funds. It appears that September 2 was a Friday, and that September 4, being Sunday, and September 5, being labor day, were legal holidays. Dunham had on deposit in the Citizens First National Bank, from September 2 to September 6, as much as $1,047.65. On September 7 his balance was reduced to $47.65 by reason of a charge of $1,000 against it made by the Citizens First National Bank, in payment of a note of Dunham to that bank, falling due on that date.
    On September 16, 1921, Dunham was adjudicated a bankrupt. On February 8, 1922, Fry filed a proof of claim in bankruptcy for the $2,600 due on his note against Dunham, which included the amount represented by the cheek, and he afterwards received a fifteen per cent, payment on this claim, which was paid by virtue of a composition, the amount being $390, thus reducing the amount of the indebtedness to $2,210. An adjustment between Dunham and Fry was made by a surrender to Dunham of the $2,600 note and the taking by Fry of a new note from Dunham for the balance due, less $10 representing an adjustment of another matter. The taking of the new note was not accompanied by any express agreement that it should amount to a satisfaction of the original indebtedness. This last note, which was under seal, was in the sum of $2,200, and was dated February 1, 1922. It does not appear whether the original note was under seal or not. The dishonored check, however, was retained by Fry. Thereafter Fry brought suit' against the Georgia National Bank to recover damages in the amount of the check upon the alleged negligence of that bank to use due diligence in presenting the check for payment.
    The defendant in its plea denied the allegations of the plaintiff’s petition, and pleaded the acceptance by the plaintiff of the sum paid as the result of the composition in bankruptcy and the taking by the plaintiff of the new note in lieu of the original note, which he alleged was a novation, as an accord and satisfaction of the plaintiff’s claim against Dunham, represented by the dishonored check, and that therefore the plaintiff’s claim against the defendant had been satisfied. The defendant pleaded also that the plaintiff could not recover any loss due to his failure to receive the money called for by the check, since the payment of the check to the plaintiff by Dunham within four months prior to Dunham being adjudicated a bankrupt was a preference void under the bankruptcy act.
    The plaintiff’s motion to strike these defenses was sustained. The ease proceeded to trial and the material evidence was as above narrated. The jury found for the plaintiff in the amount of the check, less 15 per cent., which per cent, represented the amount apportionable to that part of the indebtedness represented by the check paid as a result of the composition. The defendant moved for a new trial on the general grounds and on various special grounds. To the judgment denying this motion and to the striking of certain defenses the defendant excepted.

      D. II. Bedfearn, for plaintiff in error.

      Lippitt & Burt, contra.
   Stephens, J.

(After stating the foregoing facts.) The syllabus sufficiently covers all of the exceptions of the plaintiff in error, and no further elaboration or opinion is necessary.

Judgment affirmed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    14899.
    Hopkins v. King.
    Decided September 22, 1924.
    Rehearing denied October 4, 1924.
   Stephens, J.

1. Where a married woman executed a promissory note jointly with her husband for borrowed money paid to the husband, a written statement made by her to the payee at the time of the execution of the note and before the payment of the proceeds to the husband, that “she was making the loan for her own uses,” and that the note was not given as a security for the debt of the husband, was evidence which would authorize the inference that she, when executing the note, did not in fact do so as surety for the husband, but did so as her own original undertaking, and that when the husband received the proceeds of the note he did so as agent for the wife. This is true although the entire proceeds of the note were received by the husband and applied by him to his exclusive benefit. The ruling here made is not in conflict with Dobbins v. Blanchard, 94 Ga. 500 (21 S. E. 215). If it is in conflict with paragraph 3 of that decision, it is nevertheless supported by the authority of the act of 1826, as codified in the Civil Code (1910), § 3556, which act was not referred to in Dobbins v. Blanchard; and it is also supported by previous decisions of the Supreme Court in Schofield v. Jones, 85 Ga. 816 (11 S. E. 1032); Higdon v. Bailey, 26 Ga. 426; Bank of St. Marys v. Mumford, 6 Ga. 44, and by Seymour v. Bank, 157 Ga. 99 (121 S. E. 578). The ruling here made is also not inconsistent with paragraph 5 of the syllabus in Dobbins v. Blanchard, when that paragraph is construed in the light of the entire decision.

2. There was no error in easting the burden of proof upon the defendant, who in her plea had admitted the execution of the note and set up the defense of suretyship for the debt of her husband.

3. In a suit by the creditor against the wife, the court erred in directing a verdict for the defendant.

Judgment reversed.

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

Complaint; from city court of Brunswick — Judge Butts. September 28, 1922.

Application for certiorari was granted by the Supreme Court.

Krauss & Strong, J. T. Colson, for plaintiff.

B. D. Meatier, for defendant.


text:
    14930.
    Kreischer et al. v. Bank of Louisville.
   Stephens, J.

1. An allegation in the petition in a suit upon a promissory note, that the defendant is indebted to the plaintiff on the note, which purports to be indorsed in blank by the payee, is an allegation to the effect that the plaintiff is the holder of the legal title to the note. Parker-McCaskill Furniture Co. v. Saint Pasteur, 29 Ga. App. 86 (113 S. E. 817).

2. An allegation that on a note payable to Sam M. Clark the indorser is Sam W. Clark may be amended by striking the allegation that Sam W. Clark is the indorser, and substituting an allegation that Sam M. Clark is the indorser.

3. In a suit upon a promissory note providing for the payment of attorney’s fees, which contains an allegation of indebtedness by the defendant to the plaintiff in the principal sum of the note, including interest and ten per cent, of that amount as attorney’s fees, and which alleges that the notice required under the Civil Code (1910), § 4252, was given, a plea denying these allegations denies the correctness of the amount sued for. But although such a plea denying liability is insufficient as a defense against a recovery for the principal and interest on the note (Johnson v. Cobb, 100 Ga. 139, 28 S. E. 72), it nevertheless denies the correctness of the amount sued for only in so far as it seeks to recover attorney’s fees. See, in this connection, Medlock v. Wood, 4 Ga. App. 368 (2) (61 S. E. 516). It follows therefore that a judgment sustaining a general demurrer to the plea, “as to everything except the denial of allegations as to attorney’s fees, which is left the sole issue in the case,” is no more than a judgment overruling the general demurrer. An exception thereto by the defendant, upon the ground that it was erroneous because of striking on general demurrer a portion of a plea which was not wholly bad but which was good as against general demurrer, is without merit.

4. Such a plea, although it may be construed as an admission of liability except as to attorney’s fees, presents a defense to the ease as laid, and therefore is enough to amend by. This case is clearly distinguishable from Peed v. Rowe, 30 Ga. App. 626 (118 S. E. 475), Richey v. Johnson, 21 Ga. App. 41 (93 S. E. 514), and Graves v. Denny, 15 Ga. App. 718 (84 S. E. 187). Therefore an amendment, even after the first term, denying the plaintiff’s right to recover in any amount on the note, is allowable. See Civil Code (1910), §§ 5640, 5681, 5682; Mendel v. Miller, 134 Ga. 610 (2) (68 S. E. 430); Huger v. Cunningham, 126 Ga. 684 (4) (56 S. E. 64); Hagerstown Steam-Engine Co. v. Grizzard, 86 Ga. 574 (2) (12 S. E. 939); Millen Hotel Co. v. First National Bank of Millen, 20 Ga. App. 701 (3) (93 S. E. 253); Connor v. Hodges, 7 Ga. App. 153 (6) (66 S. E. 546).

Decided September 22, 1924.

Rehearing denied October 4, 1924.

Complaint; from city court of Thomasville — Judge Hammond. July 15, 1923.

J. B. Burch, for plaintiffs in error.

Titus & Delete, contra.

5. The amendment offered by the defendants, denying the genuineness of the alleged indorsement of the payee of the note, constituted a good defense against the plaintiff’s right to recover on the note, and, being in proper form and properly sworn to in accordance with the provisions of the Civil Code (1910), § 5640, should not have been stricken. Bruce v. Neal Bank, 134 Ga. 364 (67 S. E. 819); Ruby v. Boyett, 19 Ga. App. 516 (91 S. E. 939).

6. The court having erred in rejecting the proposed amendment to the defendants’ plea, the verdict and judgment thereafter rendered should be set aside.

Judgment reversed.

Jenkins, P. J., wnd Bell, J., concur.


text:
    15200.
    Harmon v. Block & Company.
   Stephens, J.

1. In an action to recover the purchase price of goods sold and delivered i-t is necessary, in order to sustain a plea of total failure of consideration, that it appear that the goods were totally worthless for any purpose. Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (4) (118 S. E. 446). To sustain a plea of partial failure of consideration it is necessary that the evidence furnish sufficient data to enable the jury to infer to what amount the consideration has partially failed. Prescott v. Seacoast Fertilizer Co., 30 Ga. App. 193 (117 S. E. 254); Grier v. Enterprise Co., 126 Ga. 17 (54 S. E. 806).

2. Where the contract of sale called for jewelry of 14 kt. gold, evidence in support of a plea of failure of consideration, to the effect that the jewelry delivered by the seller was not fourteen karat, but was defective, had turned a brass and dark color, did not retain its quality as represented, was worthless and of no value to the purchaser whatsoever, and unfit for his trade, is, in a suit by the seller against the purchaser to recover the purchase-money, insufficient to authorize the jury to find that the jewelry was totally worthless for any-purpose. Evidence that the jewelry is worthless and of no value to one person and is unfit for his trade is not exhaustive as to the value of the jewelry for all purposes, and is insufficient to establish it as totally worthless and lacking in any value whatever. The evidence of the defendant that the jewelry was “worthless,” etc., as above indicated, being that of the defendant himself, and for that reason being construed against the defendant, must necessarily mean, when taken in connection with the context and the defendant’s entire testimony, that the jewelry is worthless to the defendant, and not that it is totally without any value whatever.

Decided September 22, 1924.

Certiorari; from Fulton superior court — Judge Humphries. October 31, 1923.

Etheridge, Bams & Etheridge, for plaintiff in error.

Walter B. Brown, contra.

3. It was not error to direct a verdict finding against the defendant’s plea of failure of consideration, and, the evidence otherwise being undisputed in establishing the plaintiff’s right to recover on the promissory notes given by the defendant to the plaintiff for the purchase-money, the court properly directed a verdict for the plaintiff in the full amount sued for.

4. The admission in evidence of certain correspondence objected to by the defendant was not harmful to the defendant, since, with this evidence excluded, the remaining evidence demanded the verdict directed for the plaintiff.

5. The judge of the superior court therefore did not err in refusing to sanction the certiorari.

Judgment affirmed.

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


text:
    15211.
    Hargett v. Muscogee Bank.
   Stephens, J.

1. The provision of the Civil Code (1910), § 6093, to the effect that “documentary evidence copied as an exhibit . . and introduced in evidence shall not be set out in the brief except by reference to the same,” while mandatory, is for the benefit of the court and not of the parties litigant. The motion to dismiss the bill of exceptions upon the ground that the above provision has been violated by the plaintiff in error is overruled.

2. Where a contract for the sale of personal property, — as an automobile, ■ — provides that the purchaser shall keep the property sold “in good condition,” and that on failure of the purchaser to make the payments due upon the purchase-money under the contract, or to perform any other obligation resting upon him under the contract, the seller may retake possession of the property sold, and, as agent for the purchaser, sell the property at public or private sale at any time thereafter, and, after deducting the expense incurred by him as a result of such “repossession, removal, reparation, storage, liens and sale,” apply to the unpaid indebtedness the proceeds of such sale, the seller may charge as a reparation, against the proceeds arising from the resale of the property, only such expenditures made by him for repairs upon the property as were necessary to place the property in the condition in which it should have been maintained by ordinary repairs and upkeep at the time when retaken by the seller.

3. In a suit by the seller against the purchaser to recover the unpaid purchase-money, where the seller has retaken the property, the evidence will not authorize a recovery for the plaintiff in any amount whatever until the plaintiff has carried the burden of showing a resale of the property under the terms of the contract, and the amount realized by him upon such resale. The amount 'of the recovery will then be limited to the difference between the unpaid purchase-money and the amount realized upon the resale, provided the latter is less than the former. The seller cannot charge against the amount realized upon the resale any expenditures made by him for repairs, as being authorized under the contract, until he has shown the amount of such expenditures; and where the repairs made included repairs authorized under the contract to be charged against the purchaser, as well as repairs not so authorized, the plaintiff must, before he can receive credit for any repairs made by him upon the property, furnish sufficient data to authorize a finding separating the expenditures authorized under the contract from those not authorized thereunder. Civil Code (1910), § 4587.

Decided September 22, 1924.

Complaint; from Muscogee superior court — Judge Munro. November 3, 1923.

George C. Palmer, for plaintiff in error.

A. W. Cozart, J. JB. Chapman, contra.

4. It is the purchaser’s right under the contract to have the property resold after it has been retaken by the seller, and therefore the purchaser is not bound to accept, as a credit upon the unpaid purchase-money, an amount representing the value of the property at the time it is retaken by the seller.

5. Under a contract of sale of personalty, which authorizes the seller, upon default by the purchaser, to retake the property and at any time thereafter resell it for the benefit of the purchaser and apply the proceeds derived from such sale upon the unpaid purchase-money, the mere retaking of the property by the seller and the selling of it afterwards by him will not establish a rescission of the sale so as to defeat the seller’s right to recover under the contract. Macy v. Southern Building & Loan Asso., 102 Ga. 812 (30 S. E. 430); Jones v. Snider, 99 Ga. 276 (25 S. E. 668). Where, however, the seller, after retaking the property for the purpose of resale as provided in the contract, refrains for an unreasonable length of time from selling it, and devotes it to a use inconsistent with an intention upon his part to resell it as the agent of the purchaser, the inference that the seller has converted the property to his own use and has thereby rescinded the sale is authorized.

6. This being a suit by a transferee of the seller to recover of the purchaser on the unpaid purchase-money notes, and it appearing that the seller had retaken the property sold and resold it, but there not appearing data sufficient to show what of the repairs made were necessary under the terms of the contract, or that the repairs actually made were chargeable against the amount realized upon the resale of the property, a direction of a verdict for the plaintiff in a particular amount was error. Judgment reversed.

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


author: Jenkins, P. J.

text:
    14724.
    WEST v. GAINESVILLE NATIONAL BANK.
    1. Under the answer of the Supreme Court to what this court regarded as the main and controlling question in this case, certified to that court by this court, the bill of exceptions to the grant of a fraudulent .debtor’s attachment, and the obtaining of a supersedeas therein, did not operate, pending the writ of error, to suspend the duty which rested on the movant to file its declaration in attachment at the first term, as re- • quired by the statute. 158 Ga. 640 (123 S. E. 870) ; Civil Code (1910), §§5102, 5092; Daniel v. Hochstadter, 73 Ga. 144 (2).
    2. The petition for the attachment not being filed as a declaration, or subject to construction as such, and the declaration actually filed after the term to which the writ and the levy were returnable being too late, it was error to overrule the defendant’s motion to dismiss the attachment'.
    Decided September 25, 1924.
    Attachment; from Hall superior court — Judge J. B. Jones. May 8, 1923.

      E. D. Kenyon, for plaintiff in error.

      Edgar Dunlap, Luther Roberts, E. E. Perry, contra.
   Jenkins, P. J.

When the defendant moved to dismiss the attachment, the plaintiff filed a written' response in which it was contended: (1) that the taking of the previous bill of exceptions to this court, and the obtaining of supersedeas thereon, suspended the duty of the plaintiff to file its declaration at the first term; and (2) that the original petition for the attachment was in itself a sufficient declaration. The court passed a general order overruling the motion to dismiss. If either contention of the plaintiff be sound, the judgment should be affirmed. As the first contention (referred to in the first headnote) must, under the answer of the Supreme Court, be determined adversely to the plaintiff, it remains only to consider the second.

The original sworn petition for attachment was not addressed to the superior court, as the law provides for petitions (Civil Code of 1910, § 5538), but to the judge, as required by the statute governing the issuance of fraudulent debtors’ attachment (Civil Code, §§ 5088, 5056), and, while appropriately setting forth the grounds for the issuance of the writ, and the debt claimed to be due, it contained no prayer for any judgment, but a prayer merely for the issuance of an' attachment against the defendant’s property generally. It did, however, in describing the indebtedness due upon promissory notes, and in attaching copies of the notes to the petition, to that extent contain averments appropriate to a declaration. There was necessarily, however, no reference whatever to any previous issuance of the writ or to a previous levy thereunder, nor could it contain a description of any property which had been levied upon. Manifestly the plaintiff did not intend the petition as a declaration when it was filed on April 30, 1921, or for some time subsequently, for on November 5, 1921, after the first term, but too late, it filed a declaration in due form with appropriate prayers. It now insists, however, that inasmuch as the original petition was sufficient, the latter pleading was unnecessary. Without actually offering an amendment, its response to the motion states: “It may be that an amendment asking for judgment against the property attached would be proper, which amendment is now offered, though the absence of such prayer may be unnecessary or would be cured, the rule being that- any amendable defect is cured by verdict and judgment.” Section 5102 of the Civil Code (1910) provides: “When the attachment has been returned to the proper court, the subsequent proceedings shall be in all respects the same as in cases where there is personal service; and when the attachment is returnable to the superior or county court, the plaintiff shall file his declaration at the first term.” It has been many times held that a declaration filed after the expiration of the first term comes too late. Russell v. Faulkner, 89 Ga. 818 (1, 3) (15 S. E. 756); Callaway v. Maxwell, 123 Ga. 208 (2) (51 S. E. 320); Willard v. Stone, 22 Ga. App. 335 (95 S. E. 994); Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034). We have given diligent consideration to this remaining contention of the defendant in error, in order to see if it were not possible to dispense with the filing of the prescribed declaration in attachment at the first term, by construing the original sworn petition for the issuance of the writ as in itself sufficient to meet the requirement of law governing the subsequent filing of a declaration at the first term.

Section 5110 of the Code (1910) declares: “The plaintiff in attachment shall have the right to amend his attachment, or bond, or declaration, as in other cases at common law . . and the court before which the attachment shall be returned shall have power to order said amendments.” As was said by this court in Hensley v. Minehan, 29 Ga. App. 251 (3) (114 S. E. 647). “The statutory provisions for the amendment of attachment affidavits and proceedings, as embodied in sections 5706 and 5110 of the Civil Code, are remedial in nature, and therefore to be liberally construed and applied.” “A defective prayer or a failure to show the jurisdiction of the court are amendable defects.” Smith v. Jacksonville Oil Mill Co., 21 Ga. App. 679 (4) (94 S. E. 900). “The omission to give the court jurisdiction in the pleadings . . is amendable (Civil Code, 1910, § 5691), where the actual facts existing at the time the attachment was issued make the ease one within the jurisdiction of the court.” Sloan v. Smith, 29 Ga. App. 591 (2) (116 S. E. 200). See also Mitchell v. Perry, 145 Ga. 233 (2) (88 S. E. 930). A proper amendment to an actual declaration in attachment filed in due time may be made even after the first term (Casey & Hedges Mfg. Co. v. Dalton Ice Co., 94 Ga. 407 (3), 20 S. E. 333); and when it is so lawfully made, the lien of the attachment is not lost by the amendment. Cleckley v. Ransom, 8 Ga. App. 126 (68 S. E. 840).

But with reference to such amendments, even where the declaration in attachment was in due time filed as such, the rule applicable to common-law petitions, that there must be enough substance to amend by, likewise obtains. It is true that such substance may be very meager, for, as was held in King v. Thompson, 59 Ga. 380, 381 (5), “a declaration in attachment will be construed in connection with the attachment papers when it refers distinctly to those papers, and such declaration will be held sufficient if the debt be distinctly declared upon, and the attachment papers be described as pending in the court and returnable to a certain term thereof, though no special prayer for judgment be in the declaration;” and, as was held in Kolb v. Cheney, 63 Ga. 688, 691, “a declaration in attachment, which describes the defendant as defendant in attachment, sets out the note which is the evidence of debt, and alleges that an attachment has been issued thereon, concluding with a prayer for process, and omitting any further description or reference to the attachment, mentioning no property whatever, is defective in substance, but amendable, even after judgment, by the attachment papers of file in the court, and constituting a part of the record of the cause.” As was said in that case by Mr. Justice Bleckley: “Without doubt, the declaration ought to allege the levy, describe the property, and pray for the proper judgment. . . But pleadings are amendable, where there is anything to amend by, not only in matters of form but in all matters of substance, and this wide latitude enables the superior courts to cure many serious defects, as well after judgment as before.” But the actual declaration in attachment, as there filed at the first term, made reference to the previous attachment as well as to the defendant in attachment, and this, as Judge Bleckley said, sufficed as a foundation for amendment: “Referring back to the declaration, it will be seen that the same is not wholly silent as to the attachment. The defendant is described as defendant in attachment, and after a reference to the note, it is alleged that an attachment has issued upon it. To be sure this is a slight foundation for amendment, but we think it is enough, though certainly little enough, to amend by. The pleader’s purpose was evidently to connect the declaration with some attachment founded on the note described; and as the record, taken altogether, shows that there was at the time an attachment pending in the court between these parties, based on that note, the allegation may now be made that said attachment was returnable to that court, and was levied upon certain described land, and the prayer of the declaration (which originally had merely prayed for process) may be made to conform.” But, as intimated in that case, and as the Supreme Court both previously and subsequently held, some allegation referring to the previous attachment is vital. In Mehring v. Charles, 58 Ga. 377 (1), 378, 379, where the plaintiff had sued out an attachment, and subsequently filed a declaration, “in which he alleged the defendant’s indebtedness to him, and prayed that process might issue requiring the defendant to be and appear at the next superior court and answer his complaint,” but there was no averment “that an attachment had ieen levied on the property of the defendant, and not even the slightest allusion therein to any process of attachment whatever,” it was held, that “to authorize a judgment in attachment, the declaration must allege that the defendant’s property has teen attached, and, instead of praying process against defendant, should ash judgment for the sale of the property levied on in satisfaction of plaintiff’s demand.” (Italics ours.)

In Wilson v. Strickler, 66 Ga. 575 (2, 4), 578, which dealt with a motion to set aside a judgment in attachment on the ground that the declaration was insufficient, and with the question of whether the alleged defects were curable by amendment, the court held: “A declaration, in attachment ought to allege a levy on specified property. A declaration which set out that ‘the plaintiffs in attachment complain of the said Tinckham, defendant in attachment, who resides out of the State, and who has been attached to answer in an action on promises/ etc., with no further allusion to the attachment proceedings, and no prayer for judgment of any kind, was fatally defective.” While the rule there stated appears to be somewhat stricter with reference to the vitally necessary allegations concerning the 'existence and description of the pending attachment than seems to be required under the ruling in Kolb v. Cheney, supra, the cases seem uniformly to hold that at least some reference to the previous attachment is requisite for a good or amendable declaration. As was said in King v. Thompson, supra (59 Ga. 384), “it might have been better to pray judgment in attachment in the declaration, as intimated in Mehring v. Charles, 58 Ga. R. 377; but in that ease there was no averment that any attachment had ever been sued out, and no reference to it at all. In this case, the averment is distinct that the declaration is predicated on the attachment, that the attachment is returnable to a certain term of the court, and pending therein.” Likewise, in the recent ease of Condon v. Dehart, 143 Ga. 185 (84 S. E. 540), while it was held that the declaration “was amendable by adding an address to the superior court,” the basis of this ruling was that “an attachment was issued, levied, and returned to the superior court, and in proper time a declaration in attachment was filed, which was headed with the name of the case and commenced with the allegation that the plaintiff showed to' the court that the attachment had been issued and levied.” In Moseley v. King Hardware Co., 19 Ga. App. 550 (2) (91 S. E. 943), relied upon by the defendant in error, it was held: “The objection that no declaration in attachment was filed is without merit. There was attached to the original attachment in this case a complete itemized statement of the account sued upon, as well as a copy of the contract of sale covering the various items enumerated. The trial judge not only directed the attention of movant’s counsel to this fact at the time of trial, but also referred him to the following rule of the municipal court of Atlanta: ‘The law relating to declarations in attachment shall be deemed to have been complied with when the plaintiff shall have filed with the clerk of this court, at the first term, an itemized statement of the account, if it be based on an account, or a copy of the note, if based on a note, or a written statement of an action for damages, if based on a claim for damages.’ ”

No question as to the legality and applicability of this rule to the attachment, under the special statute creating and the' rules of practice of the municipal court of Atlanta, seems to have been raised; and, the record showing a full compliance with the rule, obviously it was unnecessary for the plaintiff to file any further declaration or make any other allegations. Eeference to the record in that case shows also that only the sum of twenty-five dollars was involved in the account, which would have brought the case under justice’s court jurisdiction and practice prior to the creation of this municipal court. (See Mayer v. Brooks, 74 Ga. 526 (2), 528; Smith v. Wilson, 58 Ga. 322 (2), 323; Ga. L. 1913, pp. 163, 164, § 37).

It seems to us clear that the purport and intent of the statute law is that an attachment must be begun by an affidavit (or sworn petition), setting forth the debt claimed and the ground of attachment, and that after the writ has been thus issued, and at ' or before the term of the court to which the writ is returnable, the movant must follow up his affidavit obtaining the writ, by filing his declaration therein, setting forth the previous issuance of the writ and praying for judgment under and by virtue of the levy thus actually made and returned. But even were it possible to conceive that the requirements of law as to the filing of the declaration in attachment at the term to which the levy under the affidavit is made returnable could be met by combining the appropriate and necessary allegations in the original affidavit (or petition) for the' issuance of the writ, we are forced to the conclusion that the necessary requirements are not met in the instant case by the averments contained in the original petition; and since the Supreme Court has ruled that the taking of a bill of exceptions to the grant of the writ and the supersedeas obtained thereunder did not operate to suspend the duty resting upon the plaintiff to file its declaration at the first term, and since the subsequent filing came too late, the judgment of the superior court, refusing to dismiss the attachment, must be reversed.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14879, 14880.
    Ladd Lime & Stone Co. v. MacDougald Construction Co.; and vice versa.

   Stephens, J.

1. A party to a contract which relieves him from liability thereunder if performance by him is prevented by causes beyond his control is not prevented from performing by a cause beyond his control, when the other contracting party offers to remové the cause and to facilitate performance; as, where the contract, which is one for the sale of a definite amount of crushed stone to be delivered in quantities during a definite period, provides that the shipments of stone shall be made and consigned to the purchaser at any of certain named railway stations that the purchaser may direct, the seller is not relieved of his obligation to perform upon the ground that performance was prevented by a shortage of railway ears for transporting the stone, and that such shortage was a cause beyond the seller’s control, where such shortage did not exist as to ears leaving the shipping point towards the point of delivery designated in the contract, but existed only as to ears routed through to any of the points of destination, when it appears that the purchaser offered to relieve against such shortage and to remove such cause by offering to accept delivery at a point en route between the shipping point and any of the points of delivery mentioned in the contract.

2. “Where the seller knows that the purchaser is engaged in a construction project which necessitates considerable expenditures by the purchaser from day to day, and that the commodity purchased is needed in such project, and that a delay in its delivery by the seller to the purchaser would be productive of an expense to the purchaser in idle labor and idle equipment, directly traceable to a breach by the seller in failing to deliver the commodity as contracted, the purchaser is entitled to recover for such damage.” Ladd Lime & Stone Co. v. MacDougald Construction Co., 29 Ga. App. 116 (114 S. E. 75).

3. In a suit by the purchaser against the seller to recover for an alleged breach of such contract by the seller in failing to make consignments of stone under the terms of the contract, wherein the seller defended upon the ground that he was prevented from performing, by a cause beyond his control, which was a valid excuse under the terms of the contract, and alleged that such cause was a shortage in railway cars for transporting and delivering the stone contracted for, and where the evidence authorized the inference that such, defense was not true in fact, and further authorized the inference that the damage sustained by the purchaser as a result of idle labor and idle equipment traceable to the seller’s breach was within the contemplation of the contracting parties at the time of the execution of the contract, and that the purchaser had, as a result of the seller’s breach, sustained such damage, and had also as a result' of the seller’s breach sustained damage by reason of an advance in the price of the stone above the contract price, the verdict in damages found for the plaintiff was authorized.

4. Where it is clearly inferable from the evidence that the facts were as indicated in paragraph 2 above, the charge of the court in submitting such issue to the jury was not error upon the ground assigned, that the issue as to whether such damages were in contemplation of the parties was not warranted by the evidence.

Decided September 25, 1924.

Breach oí contract; from Bartow superior court — Judge Tarver. May 25, 1923.

Alston, Alston, Foster & Moise, Neel & Neel, for Ladd &c. Co.

Spalding, MacDougald & Sibley, W. T. Townsend, contra,

5. A hypothetical charge which is not in every respect adjusted to the evidence is not, where it correctly states the law, cause for reversal, if it is not prejudicial to the complaining party. Assuming that the charge of the court in this case, stating the rule as to the right of the seller, who had made similar contracts with other parties, to prorate deliveries under all the contracts when unable by reason of a car - shortage to make all deliveries contracted for under all the contracts, wherein the court said that the defendant did not have “the right at any time to decrease its shipments to the plaintiff in order to fill orders from others, either in excess of the normal output of its business, or which it could not reasonably have expected to fill when taken in addition to the plaintiff’s contract,” was not adjusted to the evidence, it was harmless and in no way prejudicial to the defendant.

6. The court did not err in allowing a witness for the plaintiff to refresh his memory from certain records and to state that certain dates were the dates upon which the plaintiff’s construction project was idle. The fact that the witness testified that the dates were “approximate” went only to the probative value of the testimony as to certainty, and did not for any reason render it inadmissible. Such testimony was admissible as cumulative.

7. While the memorandum from which the witness giving the testimony referred to in the next preceding paragraph, and which memorandum purported to show certain data as to stone on hand each day and the amount received and used, and was prepared by the witness and the plaintiff’s bookkeeper, might not have been strictly admissible in evidence, its admission was harmless and could not have influenced the verdict rendered, in view of the fact that the matters therein referred to were established by other positive testimony.

8. Invoices and vouchers showing the price paid for stone under a contract between the defendant and a person other than the plaintiff, offered by the defendant for the purpose of showing the market value of the stone on certain dates named in the invoices, were properly excluded from evidence, since it does not appear that the prices named in the invoices and vouchers represented the market value of the stone, and since it does not appear that the prices indicated therein were not prices fixed under a contract previously entered into.

9. Applying the above rulings, and the rulings in this case appearing in 29 Ga. App. 116, the court did not otherwise err as contended in the motion for a new trial.

10. The verdict rendered for the plaintiff was authorized by the evidence, and no error of law appears.

Judgment affirmed on the mam hill of exceptions; cross-hill dismissed.

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


text:
    14906.
    Colley et al. v. Atlanta & West Point Railroad Co.
   Stephens, J.

1. Where a deed is recorded, it has presumably been delivered. In the absence of anything to the contrary, title under a delivered deed presumably passed on the date of the execution of the deed, although the land conveyed thereby is still in the possession of the grantor. Watkins v. Nugen, 118 Ga. 372 (45 S. E. 262); Beard v. White, 120 Ga. 1018 (48 S. E. 400); McBrayer v. Walker, 122 Ga. 245 (50 S. E. 95); Shelton v. Edenfield, 148 Ga. 128 (96 S. E. 3); 8 R. C. L. 1014, and cases there cited.

2. In this case the grantee of the land, who acquired title on the date of the execution of the deed, necessarily acquired the land free and not incumbered with any easement therein which the grantor may have sought afterwards to convey to a third person before the grantor relinquished possession, such as the exclusive right to take water from a certain spring on the land at a stipulated monthly rental. And since the grantee acquired the land unincumbered by the purported easement to take water from the spring, the grantee necessarily acquired no right to collect out of the grantee of the water rights the amount contracted to be paid by the grantee of the water rights as monthly rental for the water.

3. Where the grantee of the title to the land, after acquiring possession, brought suit against the grantee of the water rights, who was continuing to take water from the land, to recover in one count upon the defendant’s contract to pay to the original owner a certain sum monthly for the exclusive right to take water from the land, and where, upon the application of the above rulings, the evidence failed to establish any right in the plaintiff under the contract sued on, a verdict for the defendant, in so far as this count in the petition was concerned, was properly directed.

4. A grant is to be construed most strongly against the grantor. Where a clause in a deed which conveys certain lands to the grantee provides that “the said [grantee] shall have the privilege to lay down fixtures for conveying water from a spring or branch on the east side of said line to the depot grounds, and also of entering the land for repairing the same,” the grant will be construed as giving to the grantee therein the right to take the water in perpetuity and without any additional pay therefor from the grantor’s adjoining land which this clause in the deed incumbers with an easement of the water rights.

5. Where the plaintiff sought in the same action, but in another count, to recover in quantum valebat against the same defendant the alleged value of the water which the defendant had continued to take from the plaintiff’s land, and where it appears from the evidence that the defendant was the successor in title to the grantee of the deed referred to in paragraph 4 above, and that the plaintiff was the successor in title to the grantor therein, the defendant was entitled to the water taken from the plaintiff’s land, and the plaintiff had no right to recover the value thereof. A verdict for the defendant, therefore, in so far as this count was concerned, was properly directed.

Decided September 25, 1924.

Complaint; from Troup superior court — Judge Roop. February 1, 1933.

M. U. Mooly, for plaintiffs.

Dorsey, Brewster, Howell & Heyman, A. II. Thompson, for defendant.

6. The verdict for the defendant was properly directed as to both counts of tlie petition.

Judgment affirmed.

Jenkins, 1’. J., and Bell, J., concur.


text:
    13977.
    Washington Loan & Banking Co. v. Stanton et al.

   Stephens, J.

1. “An agent entrusted by the owner with possession of a properly indorsed past-due promissory note, for the purpose of collection only, cannot convey a good title thereto, as against his principal, by a sale and delivery of the note to one taking without actual notice that the agent is only empowered to collect.” 157 Ga. 885 (123 S. E. 612) — (answer to a certified question propounded in this case).

2. One who has no title in himself may nevertheless, as agent for the owner, convey title. So one entrusted by the owner or payee with a past-due promissory note, although the person entrusted has no title to the note, may nevertheless, as the authorized agent of the owner having title, sell the note to another.

3. Where a person entrusted by the payee with a past-due promissory note sells the note and applies the proceeds thereof to his own use, a failure of the payee who is the owner, of the note, after having been informed by the person entrusted therewith that the latter has renewed the note with the maker, taking the renewal in his own name, and has sold the same to a certain bank, to object to the transaction, is evidence of an admission upon the part of the payee that the person entrusted with the past-due note, although he had no title thereto, was nevertheless the payee’s agent to sell the note and apply the proceeds to the agent’s own benefit. Brooke v. Cunningham, 19 Ga. App. 21 (5) (90 S. E. 1037); Civil Code (1910), § 5741.

4. Where a person is under circumstances where he cannot reply to a charge made in his presence, as when in the court-house listening to testimony of a witness upon the stand, his silence is not evidence of an admission of the truth of the charge.

5. Declarations by such agent to the cashier of the bank through whom the note was sold to the bank, made at the time of the sale and as part of the transaction, that the agent had authority from the owner to sell the note, are admissible as part of the res gestse and as corroborative of evidence as to agency.

6. In a suit against the payee of the note by the bank which bought it from the person to whom it was entrusted, where, under the above rulings, it was inferable from the evidence that the plaintiff had bought tlie note from the authorized agent of the defendant, it was error to award a nonsuit.

Decided September 30, 1924.

Complaint; from Wilkes superior court — Judge Shurley. August 7, 1922.

Colley & Colley, for plaintiff. TV. A. Slalon, for defendant.

Judgment reversed.

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


text:
    14867.
    Graham et al. v. John Flannery Co.
   Stephens, J.

1. A 'person who has acquired possession of personal property under a contract by the terms of which he is to purchase it, but is not to acquire title thereto until he has paid the entire purchase price, acquires no title whatsoever in the property where it is a commodity such as cotton the sale of which is governed by section 4126 of the Civil Code (1910). Such person, when acquiring- possession of the property, becomes a bailee only, with the right to purchase the property on a cash sale and to acquire the title thereto only when the purchase-money is actually paid. Flannery v. Harley, 117 Ga. 483 (43 S. E. 765).

2. Where such bailee, after acquiring possession of the property under a contract to purchase for cash, breaches his contract by failing to pay therefor in compliance with his promise, — as where a check which he has given therefor has been dishonored, — -the fact that for several days ■ the owner indulged the bailee as to payment, under the bailee’s promise to make the check good, which he did not do, does not necessarily convert the transaction into a credit sale, but such indulgence- is consistent with the original agreement that the title was not to pass until actual payment of the purchase-money.

3. Where the bailee’s promise to make the check good after it had been dishonored, which induced the owner to give the bailee indulgence for that purpose, was to cover the check with the proceeds of a draff which the bailee had drawn upon a cotton factor in a distant city, to whom the bailee had delivered the cotton, is insufficient to demand the inference and establish as a matter of law that the owner of the cotton, by his act in thus indulging the bailee, authorized or ratified a sale by the bailee of the cotton to the factor, where it appears that the bailee had other cotton in addition thereto in the possession of the factor and it does not appear that the draft on the factor referred to by the bailee covered the cotton in controversy.

4. Where the factor bought the cotton from the bailee and paid him therefor without notice of the owner’s title, the owner, who was a planter and entitled to the benefit of section 4126 of the Civil Code (1910), could nevertheless, where the bailee had not paid him for the cotton, assert his title and recover against the factor for the conversion of the cotton, provided the owner was not estopped or had not consented to or ratified a sale made by the bailee to the factor. Flannery v. Harley, supra.

Decided September 30, 1924.

Trover; from city court of Savannah — Judge Rourke. June 11, 1923.

Oliver & Oliver, for plaintiffs.

O’Byrne, Hartridge, Wright & Brennan, for defendant.

5. Entries of certain facts made at or near the time of their occurrence by a person whose duty it was to make the entries, and the truth of which was known to him, may, upon proper identification, be admitted in evidence as proof of the facts. 1 Greenleaf on Evidence (8th ed.), § 116 et seq.; Wigmore on Evidence (2d ed.), § 1521 et seq.; Leonard v. Mixon, 96 Ga. 239 (23 S. E. 80, 51 Am. St. R. 134); Williams v. Kelsey, 6 Ga. 365 (2); Brooke v. Cunningham, 19 Ga. App. 21 (2) (90 S. E. 1037). The price at which a commodity sells in a community is evidence of its market value in the community at the time of sale. In so far as the entries made by the secretary and superintendent of the Savannah Cotton Exchange, offered in evidence, failed to meet the foregoing requirements, they were not admissible. The testimony of such witness as to his knowledge of the market price of middling cotton, given independently of such entries and without reference thereto, was relevant and admissible. See Pilcher v. Smith, 31 Ga. App. 606 (121 S. E. 701); Central R. &c. Co. v. Skellie, 86 Ga. 686 (4) (12 S. E. 1017).

6. All statements should be construed with reference to the subject-matter of the conversation. Where it is inferable from the tenor of a conversation between the plaintiff and the vice-president of the defendant corporation, concerning the cotton in controversy which the plaintiff at the time claimed had been received by the defendant, that the defendant had obtained possession of the plaintiff’s cotton, a reply made by the vice-president of the corporation in response to a question of the plaintiff concerning the price of cotton, to the effect that cotton was selling at a certain price, may, when construed in connection with the subject-matter of the conversation, be regarded as referring to cotton of the same grade and class of that of the plaintiff’s which was the subject of the conversation. Such evidence was sufficient to authorize a finding as to the value of the cotton in controversy.

7. The evidence was sufficient to authorize the inference that the cotton sued for belonged to the plaintiff and that it came into the possession of the defendant. The 'evidence was also sufficient to establish the weight of the cotton and its market value. The evidence was sufficient to support a verdict for the plaintiff, and the court erred in granting a nonsuit.

Judgment reversed.

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


text:
    14918.
    Colt Company v. Pickron.
   Stephens, J.

1. The act of a seller in retaking from the purchaser the property sold may, in the absence of any agreement between them, when following a request to the purchaser by the seller for payment of the purchase-money, authorize the inference that the property was retaken by the seller in payment of the purchase-money, and that the purchaser was thereby released from any obligation upon any outstanding promissory note given for the purchase of the property.

2. This release necessarily insures the purchaser against any loss sustained by reason of any obligation by him to a transferee of the note, a-nd he may on this obligation of the seller recover from the seller the amount of any judgment rendered against the purchaser in a suit upon the outstanding purchase-money note by a bona fide purchaser of the note in due course, against whom he had no defense.

3. Where the seller of a lighting plant, which must be set up and installed in the house of the purchaser before it can serve the use intended, procures another person to contract with the purchaser to set up and install the plant, to which contract the seller is not a party, the person thus procured by the seller to install the plant is, when installing it, performing services beneficial to the seller, in that .the performance of such services enables the seller to do business with and contract with the purchaser. The installer, therefore, when performing such services, although he does so under his contract with the purchaser, and is paid by him, may nevertheless be also acting as an agent for the seller.

4. Such an agent of the seller, whose further duty, after setting up and installing the plant for the purchaser, is to take purchase-money notes from the purchaser and transmit them to the seller, is more than a mere collecting agent with a restricted duty, but is an agent with the power to complete the contract for the seller by satisfying the purchaser; and where the seller has knowledge of the purchaser’s refusal to accept from the carrier the property purchased which has been shipped to the point of destination, the power to adjust matters with the purchaser by retaking the property in behalf of the seller is within the scope of such agent’s apparent authority.

5. Where there is evidence tending to establish such agency, the acts and declarations of the alleged agent which were part of the negotiations, such as the following, are not inadmissible as hearsay: declarations by the alleged agent to the agent of the carrier that the declarant was agent of the seller and had authority from the seller to take the property from the carrier, reship it in the name of the seller as shipper, and travel in an automobile with the name of the seller thereon, etc.

6. A declaration by the alleged agent that he had in his possession written documents from the seller establishing his authority as agent was a mere declaration as to the fact of agency, and not a declaration or statement as to the contents of a written instrument, and therefore was not inadmissible upon the ground that it constituted parol evidence as to the contents of a written instrument.

7. This being a suit by the purchaser against the seller to recover an amount equal to that due by the purchaser to the transferee on the note, and tlie measure of damages being fixed by the amount -of the judgment obtained by the transferee against the purchaser as maker, the verdict finding generally for' the plaintiff without naming any amount was not so uncertain, vague, and indefinite as not to be capable of being given effect, but was properly construed by the. trial judge as a finding in the amount of the judgment recovered against the plaintiff on the note.

Decided September 30, 1924.

Complaint; from city court of Cairo — Ira Carlisle, judge pro liac vice. June 15, 1923.

Underwood, Pomeroy & Haas, M. L. Ledford, Joseph H. Boss, for plaintiff in error.

Hill & McJUbey, contra.

8. It was not, under the facts of this ease, harmful error to the plaintiff to allow a witness to state that he concluded that the person alleged to be the agent of the plaintiff was in the employ of the plaintiff because that person had accepted a note payable to the plaintiff for a similar plant installed by the plaintiff for the witness.

9. The court charged that the plaintiff could not recover if the alleged agent was not in fact an agent of the defendant, or if the alleged agent acted beyond his authority, or was an independent contractor, and the defendant’s exceptions to the court’s failure to more fully charge upon the law of principal and agent and independent contractor wei’e without merit.

10. There is no exception to the admission in evidence of any declaration of the alleged agent upon the ground that it was not part of the res gestea of the transaction.

11. The court did not express any opinion on the facts.

12. Applying the above rulings, the evidence authorized the verdict found for the plaintiff, and no error of law appears.

Judgment affirmed.

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


text:
    14929.
    Malsby & Company v. Widincamp.
   Stephens, J.

1. The vendor’s warranty of title to personal property sold does not warrant the purchaser against loss sustained by virtue of a lien afterwards arising and asserted against the property. Smith v. Williams, 117 Ga. 782 (45 S. E. 394, 97 Am. St. R. 220); Houser v. Cooper, 102 Ga. 823 (30 S. E. 539).

2. But as to any lien against the property which may have arisen prior to the sale, the vendor’s warranty of title protects the purchaser.

3. A vendor’s title acquired by purchase from another is subject to any laborer’s lien upon the property at the time of purchase of which he had notice or which had been reduced to execution and levy.

4. A laborer’s lien arises‘upon the completion of his contract of labor. Knowledge by the vendor, before he acquired his title to the property from another as above indicated, that a laborer’s contract of hire with tlie person from whom the vendor bought had been completed and that the laborer had not been paid, was sufficient to put the vendor, when purchasing the property, on notice of the laborer’s existing lien. When such a lien was afterwards foreclosed within the statutory period, the title which the vendor had acquired to the property was incumbered with such lien.

5. If, however, the vendor, at the time he acquired his title to the property, had no knowledge that any laborer’s contract of hire with the former owner from whom the vendor acquired title had been completed, and the laborer’s lien had not in fact been reduced to execution and levy before the vendor acquired his title, the title in the vendor would not be incumbered with any general lien of the laborer. Civil Code (1910), § 3339.

6. Where the person with whom the laborer contracted had originally purchased the property from the vendor, and it does not appear that title at the time had been retained by the vendor, it is to be presumed, although the property had not been paid for, that title at the time passed to the purchaser; but should it appear upon another trial that the person with whom the laborer contracted had originally purchased the property under a retention-of-title contract retaining the title in the present vendor, from whom he bought, and had therefore himself never acquired any title which he could convey to the present vendor, the present vendor acquired no title from him, and therefore the present vendor’s title, if his retention-of-title contract was at the time duly recorded, would not be incumbered with any general liens asserted against the property as the property of the person with whom the laborer had contracted, and notice to the present vendor at the time would be immaterial.

7. In a suit by the present vendor against the present purchaser to recover a balance due on the purchase-money, the defendant could not set off an amount which he may have paid to remove liens which accrued against the property after he purchased it, although such liens had been adjudicated against the property in suits by the lienors wherein the defendant had claimed title and lost. This is true although in the claim eases the defendant may have vouched the plaintiff into court to defend the title. The liens being no incumbrance upon the plaintiff’s title, and their assertion being no breach of warranty of title by the plaintiff, the defendant had no cause of action by way of set-off against the plaintiff, arising by virtue of the defendant’s having discharged the liens against the property. McArthor v. Ogletree, 4 Ga. App. 429 (61 S. E. 859).

8. The amount recoverable for removing any lien which under the rulings in paragraph 4, supra, may have incumbered the plaintiff’s title before the sale to the defendant may be set off against the plaintiff’s suit to recover the purchase-money. The amount so paid by the defendant will be binding upon the plaintiff should it be made to appear that the plaintiff had been vouched into court. Malsby v. Widincamp, 24 Ga. App. 737 (102 S. E. 178).

9. Evidence that the vendor had, before the defendant purchased the property and before the vendor had “foreclosed” against the original purchaser,. been informed “about the labor” is not sufficient to authorize a finding that the vendor, at the time he acquired the property from the original purchaser, had notice that the contract for labor had been completed. Notice given before July 29, the date of the sale to the defendant, or before the “foreclosure” which preceded that date, is not necessarily notice given after May 23, the date of the completion of the contract of labor and when the lien arose.

Decided September 30, 1924.

Complaint; from Tattnall superior court — Judge Sheppard. June 30, 1923.

STATEMENT OE EACTS BY STEPHENS, J.

This is a suit by Malsby & Company for an alleged balance due on the purchase-price of a sawmill outfit sold by them on July 29, 1903, under a retention-of-title contract, to the defendant, Widincamp. The defendant in his plea admitted the indebtedness, but pleaded as a set-off an amount paid by him in removing certain laborers’ liens upon the property, foreclosed against one Moring, who had repurchased the property from the defendant on October 22, 1903, in which foreclosure suit the property was adjudged subject to the liens despite the defendant’s claim of title to it.

It appears that the plaintiffs sold the machinery to Moring some time in the year 1901 (the nature of the contract does not appear), but by an agreement with Moring rescinded that sale, and at the same time (July 29, 1903) resold the property to the defendant under the retention-of-title contract now sued on, Moring releasing all his right, title, and interest in the property to Widineamp. It does not appear from the evidence that any lien as against Moring had been reduced to execution and levied upon the property prior to the rescission of the sale to Moring and the resale by Malsby & Company to Widineamp. It does appear, however, that one laborer had on May 23, 1903, completed his contract with Moring, but it does not appear that Malsby & Company had notice of this fact. It appears from undisputed evidence that the liens foreclosed against Moring and levied on the property as Moring’s were general liens of laborers working about the sawmill upon two contracts of labor, one of which was completed before Malsby & Company rescinded the contract of sale, and the other on October 20, 1903, and that the liens were foreclosed respectively on December 5, 1903, and October 26, 1903. It does not appear that the retention-of-title contract between Malsby & Company and Widincamp had ever been admitted to record. There is some evidence authorizing the inference that the attorney who represented Widineamp in the claim which he interposed in the lien-foreclosure suit against Moring was the attorney for Malsby & Company and was acting for them and in their interest, and that by reason of that fact Malsby & Company were virtually vouched into court to defend the title in the claim cases. • The jury found for the defendant on his plea of set-off, and gave judgment for the plaintiff in the sum of $8.97 principal, etc. The plaintiff moved for a new trial on the general grounds and upon various special grounds.

10. Since the right which the defendant is seeking to assert against the plaintiff by way of set-off is not predicated upon the defendant’s being a bona fide purchaser for value without notice, it is immaterial, as to his right against the plaintiff, that the retention-of-title contract under which the defendant purchased had not been admitted to record.

11. Applying the above xmlings, the evidence demanded a verdict for the plaintiff for the unpaid purchase-money, and a verdict giving credit to the defendant for the amount paid by the latter in discharge of the lien was without evidence to suppox-t it and contrary to law. Houser v. Cooper, supra.

12. In view of the above rulings, it is unnecessary to pass upon any of the assigixnxents of error other than those contained ixx the general grounds of the motion for a new trial.

13. None of the rulings here made are in conflict with any of the rulings heretofore made in this case, either in the Supreme Court or in this court, as reported in 143 Ga. 168 (84 S. E. 544), axxd in 24 Ga. App. 737 (supra). The rulings in the latter case are based upon the hypothesis of an existing lien upon the property when bought by the defendant. The record as here presented shows no such lien. The plaintiff in the case now under consideration relies upon a theory of the evidence not considered axxd passed upon in the former decisions.

Judgment reversed.

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

W. T. Burhhalter, Colquitt & Conyers, for plaintiff.


text:
    15062.
    Wise v. Royal Insurance Company.
   Stephens, J.

1. Where a fire-insurance policy covers certain personalty “only while contained in” a described building, a suit on the policy cannot be maintained by the insured against the insurer for a fire loss of the property when situated in another building to which it had been moved by the insured without the consent of the insurer as evidenced by the terms of the policy or an indorsement thereon.

2. In a suit against a fire-insurance company, where the petition alleged that the insured stated to the agent of the insurer before the policy was issued that the insured property would, after thirty days, be removed to other premises in violation of the terms of the policy, and where the agent insisted that the “change of location would not make any difference, . . and that [the insured] would be protected . . both in her present location and in her home about four miles [away],” and where the petition further alleged that the property insured was destroyed by Are upon premises other than those described in the policy, the petition failed to set out a cause of action on the policy. Insurance Co. v. Mowry, 96 U. S. 544 (24 L. ed. 674); 26 Corpus Juris, 320; Athens Mut. Ins. Co. v. Evans, 132 Ga. 703 (64 S. E. 993); Morris v. Imperial Ins. Co., 106 Ga. 461 (32 S. E. 595).

Decided September 30, 1924.

Action on insurance policy; from city court of Athens — Judge Bradwell. August 29, 1923.

Application for certiorari was made to the Supreme Court.

James W. Arnold, for plaintiff.

Spalding, MacDougald & Sibley, Erwin, Erwin & Nix, for defendant.

3. The city court of Athens, not being a court of equity, has no jurisdiction to reform the contract of insurance so as to make it speak in accordance with the alleged agreement and understanding set out above.

4¡ The trial court therefore did not err in sustaining the general demurrer to the plaintiff’s petition as amended.

5. Since the record in this ease discloses that the petition, prior to its amendment, set out a cause of action in favor of the insured upon the authority of the decision of the Supreme Court in Corporation of the Royal Exchange Assurance of London v. Franklin, 158 Ga. 644 (124 S. E. 172), rendered since this litigation arose, permission is hereby given that the plaintiff be allowed, at or before the time, the judgment of this court is made the judgment of the court below, to amend the present petition by substituting therefor allegations which will bring the case within the authority of the case cited.

Judgment affirmed, with direction.

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


text:
    15106.
    Gay v. Virginia-Carolina Chemical Company.
   Stephens, J.

1. Where the general agency of a husband to purchase fertilizers for his wife has been established by previous dealings between him and a fertilizer dealer, the dealer has a right to assume, in the absence of notice to the contrary, that such agency continues to exist, and a sale of fertilizers by the dealer to the husband may, upon proof that the dealer, in dealing with the husband, intended to contract with the wife through the husband as agent, amount to a sale to the wife and not to the husband. Burch v. Americus Grocery Co., 125 Ga. 153 (53 S. E. 1008).

2. Although, when the sale was made' to the husband, nothing was said or done to indicate that he was at the time acting as agent for his wife, a shipment of the fertilizers by the dealer to the wife as consignee, and their receipt by the husband and use Upon land belonging to the wife, were sufficient to authorize an inference that the sale was made to the wife through her husband as agent. This is true notwith- . standing the dealer at the time accepted the husband’s promissory note under seal for the purchase price of the fertilizers, since his promise to pay, although made by virtue of a promissory note under seal, could, where the evidence authorized the inference that the husband in purchasing the fertilizers acted as agent for his wife, be a promise made by him as agent for her as his principal whose identity was disclosed, even though she could not have been thus bound by the sealed instrument, he having no authority to sign a sealed note as her agent.

Decided September 30, 1924.

Complaint; from city court of Statesboro — Judge Proctor. September 26, 1923.

Anderson & Jones, for plaintiff in error.

G. 8. Johnston, Howell Gone, contra.

3. The charge of the court fairly submitted to the jury the contentions of the parties, and none of the exceptions to the charge as inapplicable to the facts of the case is meritorious.

4. This being a suit by the fertilizer dealer against the wife to recover upon an alleged contract of sale to her, executed through her husband as agent, it was not error as against the defendant to exclude from evidence two unsigned promissory notes, filled out by the plaintiff’s agent negotiating the contract, which were made payable to the defendant’s husband. Such notes have no probative value and can in no way be illustrative of any of the issues presented for determination.

5. A witness who acted as agent of the plaintiff in negotiating the contract sued upon, and who received a salary for his services, and whose compensation was not dependent upon the outcome of the case, had not such a financial interest in the ease as would disqualify a juror on the ground of relationship to him.

6. The evidence authorized the verdict found for the plaintiff; and since no error of law appears, the court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    15221.
    Bryson v. Aven.
   Stephens, J.

1. The relation of patient and physician is a confidential one, and where, in curetting a womb, it becomes necessary, in order to effect a successful result, to insert a pessary, a duty devolves upon the physician to inform the patient within a reasonable time of the use of the pessary, and direct her as to when it should be removed. A failure so to inform the patient is a fraud upon her, and if injury result therefrom to the patient, a cause of action accrues at the time' of the discovery of the fraud, or when, by the exercise of due care the fraud might have been discovered by her,' and not from the date of the injury, or the date of the operation.

Decided September 30, 1924.

Action for damages; from city court of Atlanta — Judge Reid. October 9, 1923.

Application for certiorari was made to the Supreme Court.

Gilmer A. Jones, T. B. Higdon, for plaintiff.

Bryan & Middlebroolcs, for defendant.

2. In such a ease the operation and the insertion of the pessary was not an invasion of a right, and no cause of action could accrue until the discovery of the fraud and the resulting injury. This ruling is not in conflict with the decision in the ease of Davis v. Boyett, 120 Ga., 649 (48 S. E. 185, 66 L. R. A. 258, 102 Am. St. R. 118, 1 Ann. Cas. 386), where there was an invasion of a right, and where there existed no confidential relationship between the parties. See Civil Code (1910), §§4114, 4624, 4627; Persons v. Jones, 12 Ga. 371 (1, 2) (58 Am. D. 476); Hoyle v. Jones, 35 Ga. 40 (2) (89 Am. D. 273); Backhouse v. Bonomi, 9 H. L. Cas. 503; Angell on Actions (6th ed.), 183, 185.

3. Where in such a case suit was filed by the patient against the physician more than two years after the operation, but within only about three months after the discovery of the alleged fraud, and where it was alleged in the petition that an injury to the plaintiff, resulting in a miscarriage, on account of the failure of the physician to inform her of the presence of the pessary in the womb, and as to when it should be removed, a cause of action was set out, and the suit was not barred by the statute of limitations.

4. It was error to dismiss the petition.

5. In view of the above rulings it is unnecessary to pass upon the ruling of the trial court upon other grounds of demurrer, to which exceptions were taken.

Judgment reversed.

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


text:
    14848.
    Sandersville Oil Mill Co. v. Globe & Rutgers Fire Insurance Co.
   Stephens, J.

1. Although a loss by fire may result directly from the negligent act of the insured, the insurer is nevertheless liable under its policy of insurance, unless the policy otherwise provides, where the negligence does not amount to a fraud or is not in furtherance of an incendiary intent upon the part of the insured. 2 May on Insurance, 940; 26 O. J. 347; Henderson v. Western Marine & Fire Ins. Co., 10 Robinson (La. 1845), 164 (43 Am. D. 176); Wertheimer Shoe Co. v. United States Casualty Co. (1903), 172 Mo. 135 (72 S. W. 635, 61 L. R. A. 766, 95 Am. St. R. 500); 6 Am. & Eng. Enc. L. (2d ed.) 585. A clause in a fire-insurance policy which provides that “This company shall not be liable for loss caused . . by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire in neighboring premises” does not relieve the insurer from liability for loss by fire resulting from a negligent act of the insured which occurred before the origin of the fire.

2. In a suit on the policy a charge to the effect that it is the duty of the insured to exercise ordinary care and diligence to protect the property from fire (when not applied to a situation arising under the above-quoted clause of the policy), and that where the loss occurs as a direct result of the negligence of the insured there can be no recovery under the policy, is error.

3. Where the policy provides that “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . if there be kept, used or allowed on the above-described premises . . gasoline,” and that “It is understood . . that any such breach or violation shall not be considered as voiding the policy or any part thereof unless such breach or violation has contributed to bring about the destruction of the property hereby insured,” the liability of the insurer thereunder resulting from a fire caused by gasoline on the premises is not defeated unless the gasoline was kept, used, or allowed upon the insured’s premises with some degree of permanency, as distinguished from a mere casual deposit or a mere temporary bringing of the gasoline on the premises. 19 Cyc. 736; Springfield Fire & Marine Ins. Co. v. Wade (1902), 95 Tex. 598 (68 S. W. 977, 58 L. R. A. 714, 93 Am. St. R. 870); London Ins. Co. v. Fisher, 92 Fed. 500 (34 C. C. A. 503); 14 R. C. L. 1111; 13 Ann. Cas. 532; 19 Ann. Cas. 419. It was therefore error to charge that “where the loss by fire of the property insured directly resulted from a temporary violation of a condition in a policy of insurance, such as keeping, using, or allowing gasoline or other inflammable material on the premises, the insurer would not be liable.”

4. The presence on the insured’s premises, without the consent of the insurer, of material such as cottonseed hulls saturated with gasoline, authorizes the inference that such gasoline was on the premises under such conditions as would violate the provisions of the policy prohibiting the keeping, using, or allowing of gasoline on the premises. This case is distinguishable from Queen Ins. Co. v. Van Giesen, 136 Ga. 741.

5. Where one of the defenses of the insurer was that the contract of insurance had, under the terms of the policy, become void by reason of the loss having resulted from a fire caused by the presence of gasoline upon the premises, such as would violate the provisions of the policy and render the policy void if the presence of the gasoline contributed to the destruction of the property by fire, the evidence was not sufficient to authorize the inference that the cottonseed so saturated with the gasoline contributed to the destruction of the insured property, where the only evidence tending to connect such saturated cottonseed with the cause of the fire was that the building in which such cottonseed were located, and which belonged to the insured, caught fire from an adjoining building which was burning and which belonged to the insured and was part of the insured property, and where it does not appear that tlie building in which the cottonseed were located became ignited from fire communicated to the saturated cottonseed.

6. The right of a corporation which is the beneficiary under a fire-insurance policy to recover for a loss thereunder notwithstanding the loss may have been caused by the incendiary act of one of its stockholders, or one of its officials, does not exist where the innocent stockholders, by reason of the insolvency of the corporation or otherwise, would have no beneficial interest in a recovery; as where the person whose incendiary act caused the fire would be the sole beneficiary of any recovery under the policy either as owner, directly, or 'indirectly (as by dummies), of all of the stock of the insured corporation or as a creditor or surety for any of the creditors,of such corporation, in either of which events the corporation’s right of recovery under the policy would be defeated. Felsenthal &c. v. Northern Assurance Co., 284 Ill. 343 (120 N. E. 268, 1 A. L. R. 602); Meily Co. v. London &c. Ins. Co., 142 Fed. 873; 148 Fed. 683 (79 C. C. A. 454).

7. Where such person whose act caused the loss is not the owner of the entire stock of the corporation but owns all of the stock with the exception of a small amount and sustains such a personal and business relationship to the minority stockholders by reason of their being his kinsmen or for any other reason as to fuse or' amalgamate their interests with his and to constitute his acts their own, and he is the president of the corporation and the officer in charge having control and management of its affairs, including the custody and control of the property insured, and where he would be to all intents and purposes the owner of the entire stock of the corporation, the corporation could not recover under the policy for a loss sustained by his incendiary act. Meily Co. v. London & L. Fire Ins. Co., 142 Fed. 873.

8. Where in addition to the defense that the policy had become void by reason of the loss by fire having been caused by the presence of gasoline on the premises in violation of the terms of the policy the insurer defended against liability under the policy upon the ground that the loss was occasioned by the wrongful act of the insured, which was a corporation, in willfully setting fire to'the property insured by and through the act of its president and “owner,” a charge of the court which did not separate these two defenses but which submitted them together was calculated to confuse the jury.

9. The charge in this case was not accurately adjusted to the evidence in so far .as .it contained a hypothetical reference to fraudulent or incendiary acts of the, officers of the plaintiff corporation, there being no evidence of any such acts of more than one officer of the corporation.

10. Where there is no evidence of general good character of a material witness sought to be impeached, it is error for the court, when charging the.rule relative to weighing the testimony of such witness, to state that the good character of the witness may be considered. Under the peculiar facts of this case, it cannot be said that such error was harmless.

Decided October 1, 1924.

Action on fire-insurance policy; from city court of Savannah —Judge Bourke. May 7, 1933.

E. W. Jordan, A. B. Wright, Lawrence & Abrahams, for plaintiff.

0’Byrne, Hartridge, Wright & Brennan, Spalding, MacDougald & Sibley, Evans & Evans, Smith, Hammond & Smith, for defendant.

11. In view of tlie above rulings it is unnecessary to pass upon other questions raised by the assignments of error.

Judgment reversed.

Beil, J., concurs. Jenkins, P. J., concurs in the judgment.


text:
    14895.
    National Union Fire Insurance Co. v. Etheridge.
    Decided October 1, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. June 5, 1933.
    Suit was brought in the municipal court of Atlanta on a policy of insurance for $450, the alleged value of an automobile destroyed, by fire. When the case was called for trial it was continued for the purpose of allowing the defendant to take depositions. When the ease was again called for trial the defendant was not present, either in person or by attorney, and the plaintiff took a verdict and judgment for $400 principal and $16 interest. A fi. fa. was issued and was handed to the marshal of the court, with instructions to hold it up until notified. At a subsequent term of the court and more than thirty days after the judgment, counsel for the plaintiff notified the marshal to collect the fi. fa. The defendant, on discovering that a judgment had been taken, moved to set it aside. The plaintiff filed a motion in the nature of a demurrer to that motion. The court overruled the motion to set aside the judgment, and the case was carried to the superior court by certiorari; the certiorari was overruled, and the movant excepted.
   Stephens, J.

1. A ease when continued is not postponed indefinitely, but is carried over only until the next term. Where a ease at the trial term is, upon an oral agreement between counsel, continued for the purpose of allowing the defendant’s counsel to take depositions, the action of the plaintiff’s counsel in taking a judgment at a. subsequent term of the court in the absence of counsel for the defendant does not amount to a fraud, and is not a ground to sustain a motion of the defendant to set the judgment aside.

2. In a suit upon an insurance policy for the loss of an automobile by fire the failure to attach a copy of the policy to the petition was an amendable defect, cured by verdict and judgment. Such a defect could have been reached by a special demurrer, and as against a general demurrer the petition was sufficient.

3. On a motion to set aside a verdict and judgment this court will presume that the evidence at the trial was competent and authorized-the verdict.

4. The trial judge did not abuse his discretion in refusing to set aside the verdict and judgment upon any of the grounds relied'on in the motion; and the judge of the superior court, on certiorari, did not err in refusing to reverse the judgment of the trial court.

Judgment affirmed.

Jenkins, P. J., and Beil, J., concur.

The motion to set aside the verdict and judgment was upon the ground that the petition set forth no cause of action, for the following reasons: (a) No copy of what appears upon the face or in the body of the alleged policy of insurance is attached to the petition. (6) No copy of the substance of the policy of insurance is embodied in the petition, (c) It does not appear that the contract of insurance was in writing. (d) It does not appear that the contract of insurance was of binding force and effect on the date of the fire. (0) It appears that the plaintiff failed to make and submit to the insurance company written and sworn proofs of the time and cause of the loss or damage to the automobile. (/) It appears that the insurance company did not waive proofs of loss or any of the terms and provisions of the contract of insurance. (g) The verdict and judgment were obtained, in violation of an agreement, in the following manner: At the trial term of° the court counsel for the plaintiff and the defendant agreed, with the approval of the court, to continue the case for the purpose of taking depositions on behalf of the defendant; and for this reason defendant’s counsel did not expect the case to be called for trial until the depositions had been taken, and they had not been taken at the time when the case was tried.

The material parts of the plaintiff’s petition were as follows: “The petition of J. S. Etheridge showeth to the court the following facts: 1. That on the 17th day of September, 1920, the National Union Eire Insurance Company of Pittsburg, Penn,, entered into a contract of insurance with your petitioner, by which the said company insured one Dodge automobile touring car, serial number 105585, advertised horse-power 35, model 1916, for the sum of $450.00; said insurance to cover loss by fire or lightning. 2. That on or about the 29th day of July, 1921, said automobile was destroyed by fire, causing a loss to your petitioner of the sum of $450, the value of said automobile, at said time, by which said company became and is liable to your petitioner in the sum aforesaid. 3. That the said company was duly and properly notified of the loss of said automobile, directly after the same occurred. 4. That your petitioner, in accordance with the condition attached to said policy, did on the 29th day of November, 1921, make out, sign, and submit to the said company’s agent in Atlanta, Ga., an agreement by which the matter of the said loss should be submitted to arbitrators as set out in said condition attached to said policy, to which agreement the said company declined to be a party. 5. Your petitioner shows that the said defendant is a foreign corporation, having an agent in the State of Georgia, located in the county of Fulton, in the city of Atlanta. Petitioner therefore prays that process issue requiring the said defendant to be and appear at the next term of said court to answer this complaint, and that the defendant produce at the trial of said cause, a written memorandum, taken by the officers of the said company at their office in Atlanta, Ga., given to them by your petitioner the day after said fire.”

Smith, Hammond <& Smith, for plaintiff in error.

B. 0. Lovett, contra.


text:
    14914.
    Beasley v. Burton.
   Stephens, J.

1. An owner of property exposed to sale at a public auction may bid upon it and cause it to bring a specified price, and thus prevent a sale of the property to another for less than its value, without thereby becoming a “puffer” and fraudulently inducing the purchaser at the sale to pay more than the property is worth. See McMillan v. Harris, 110 Ga. 72 (35 S. E. 334, 48 L. R. A. 345, 78 Am. St. R. 93).

2. The mere bidding upon property exposed to sale at public auction by by-bidders who are agents of the owner is not sufficient, when alleged in a pleading, to show that the owner was undertaking to “puff” the property and thereby commit a fraud upon the purchaser.

3. In a plea filed by the purchaser in a suit against him by the vendor upon a note given by the purchaser for the purchase-money of land, allegations that the bond for title was completely void, and that the purchaser could not ascertain what land was intended to be described in it, are insufficient to show invalidity in the bond, in the absence of an allegation setting out in what manner the description was defective and pointing out wherein it was impossible from the description to identify the land sought to be sold.

Decided October 1, 1924.

Complaint; from Franklin superior court — Judge W. L. Hodge?. June 14, 1923.

T. G. Dorough, for plaintiff in error.

J. H. & Bmmett Shelton, contra.

4. In the absence of any specific representation on the part of the vendor in a sale of I'eal estate that the property sold is unincumbered, the purchaser cannot allege the existence of an incumbrance as a fraud on the part of the vendor, although he had no knowledge of the incumbrance at the time of the sale. Black v. Walker, 98 Ga. 31 (26 S. E. 477).

5. Applying these rulings the court did not err, in a suit by the vendor against the purchaser upon the purchase-money note, in striking the defendant’s plea upon general demurrer.

6. The evidence demanded the verdict directed for the plaintiff, and the court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    15070.
    Carson v. Blair, administrator.
   Stephens, J.

1. That an intestate has no heirs .at law and that the estate should escheat to the State will not, if the estate is indebted, dispense with the necessity of the appointment of an administrator, as in ordinary cases provided; and it is not necessary that the appointment of such administrator be with the consent of the State.

2. A creditor may, in the absence of an application by the next of kin, be appointed administrator. Where a creditor of the estate makes application for appointment as administrator, a caveat to the application, filed by another claiming to be a creditor of the estate, who does not ask for appointment himself, is without merit and cannot be sustained, where upon the trial it appears conclusively from the evidence that the caveator is not a creditor and is not otherwise entitled to administer upon the estate. In this case the direction of a verdict against the caveator and in favor of the applicant was not error.

3. An allegation in the caveat that the alleged intestate had left a valid will and had not died intestate, and that therefore no administrator could be appointed, is not sustained without proof of the probate of the alleged will.

4. Under the above rulings the trial court did not err in passing upon the relevancy of certain testimony and in directing a verdict against the caveator.

5. The trial judge did not err in refusing a continuance upon the ground of tlie illness of tlie caveator, since it appears that none of the grounds of the caveat would have been aided by any possible testimony of the caveator, and it does not appear that the caveator’s presence in court was necessary. Civil Code (1910), §5717.

Decided October 1, 1924.

Appeal; from Cobb superior court — Judge Humphries. September 14, 1923.

W. A. James, for plaintiff in error.

L. M. Blair, Anderson & Roberts, contra.

Judgment affirmed.

Jenldns, V. J., and Bell, J., concur.


text:
    15085.
    Exchange Bank of Springfield v. Beckwith.
   Stephens, J.

1. Knowledge by a bank.cashier that a certain .corporation, which is being promoted in the community, is taking subscriptions to its capital stock upon condition that the subscribers thereto shall not become liable upon their subscriptions until a certain amount of stock is subscribed and until the debts of another corporation, which it is to absorb, are paid is not such a circumstance as will charge the cashier with notice that a promissory note, in the hands of a person who is known to him as the agent of the corporation to solicit stock subscriptions, was in fact given for such conditional subscription to the capital stock of the corporation, although the proceeds of the note were, at the instance of the agent who presented it for discount at the bank, credited to the account of the corporation, where the note was made payable to the maker and by him indorsed in blank, and where the note was an ordinary promissory .note which did not indicate on its face that it was given for corporate stock or that its becoming a binding obligation was conditional.

2. The fact that the holder of a note is an agent of a corporation for certain purposes would not preclude him from acquiring title to a note to which his principal is an entire stranger; and therefore knowledge of such agency by a person acquiring title to the note from the agent would not constitute notice, or amount to a circumstance sufficient to charge any one with notice, that the corporation had a legal or equitable interest in the note, or that the note had been given for the purchase of stock in the corporation.

3. Nor would the fact that the proceeds derived from the discount of the note were by the holder deposited in the bank to the credit of the holder’s principal, the corporation, with knowledge by the bank of the holder’s agency as above indicated, imply that the transaction was other than a payment by the agent to the corporation of the agent’s own funds; and therefore such fact would not constitute notice, or amount to a circumstance sufficient to charge any one with notice, that the corporation had a legal or equitable interest in the note, or that the note had been given for the purchase of stock in the corporation.

4. Where the bank, through its cashier, under such circumstances discounted tlie note before its maturity, the bank was a bona fide purchaser for value in due course; and, in a suit upon the note by the bank against the maker and another person as accommodation indorser, neither the plea by the defendants that the note had not become a binding obligation, nor that its execution had been procured by fraud, was supported by the evidence, and the verdict found for the defendant was therefore unauthorized.

Decided October 1, 1924.

Complaint; from Effingham superior court — Judge Hardeman presiding. September 10, 1923.

II. P. Cobb, for plaintiif.

Hitch, Denmark & Lovett, for defendants.

5. The court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

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