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

text:
    14291.
    DUNLAP-HUCKABEE AUTO COMPANY v. CENTRAL GEORGIA AUTOMOTIVE COMPANY.
    Decided February 23, 1924.
    Rehearing denied February 28, 1924.
    Certiorari; from Bibb superior court—-Judge Malcolm D. Jones. January 9, 1923.
    Application for certiorari was denied by the Supreme Court.

      Strozier & Beaver, for plaintiff.

      Turpin & Lane, for defendant.
   Jenkins, P. J.

A sold an automobile to B, retaining the title, by a properly recorded instrument, until payment of the balance due on the purchase price. The contract provided that the car should not be sold until fully paid for. B procured C, as his agent, to sell the machine to D, 0 acting innocently. D,. who also acted innocently, then took the car to A, the original owner, which still retained the title under the paper mentioned above, and A, without actual knowledge that the car was already its own property, purchased the car from D for $1,150. After thus regaining possession, A sold the machine to another, for a consideration which is not disclosed by this record. Upon discovering the situation, A sued C, the agent of B, in trover. It appears that all the parties except B acted in good faith. A'having elected to take a money verdict, the trial judge, on these undisputed facts, directed a verdict in A’s favor for $300, the balance due on the purchase-money note. The superior court sustained C’s certiorari, and entered a final judgment in his favor against A’s right to proceed; to which A excepts. Held: “The undisputed testimony showing that the plaintiff in the action of trover had parted with . . title prior to the institution of the suit and had not reacquired it,” a verdict for the plaintiff could not be sustained. Prater v. Painter, 6 Ga. App. 292, 293 (64 S. E. 1003); Hall v. Simmons, 125 Ga. 801 (2) (54 S. E. 751); Cox v. Fairbanks Co., 29 Ga. App. 538 (3) (116 S. E. 43); Everroad v. Dickson Planing Mill Co., 26 Ga. App. 329 (106 S. E. 193); Monk v. Jackson, 25 Ga. App. 25 (102 S. E. 382). Irrespective of other questions raised by the record and rhe briefs, and irrespective of any other right or remedy which uhe plaintiff might have, since it affirmatively appears that the plaintiff had sold the automobile in question to another, thus parting with all of its title prior to the suit, which sale is in no wise questioned, it could not maintain such an action as was here instituted. The superior-court judge properly sustained tne certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.

ON MOTION FOR REHEARING.

Jenkins, P. J.

The plaintiff in error files a motion for rehearing in this case, based upon two grounds: (1) that the decision, laying down the proposition that in a trover suit it must appear that title was in the plaintiff at the time the suit was instituted, does not state the; correct rule, but that the rule is that a suit in trover must be maintained by the party who held title at the time of the alleged conversion; and (2) that the record does not indicate that the plaintiff had parted with his title at the time the suit was instituted.

1. Able counsel for plaintiff in error, in support of their first proposition, rely upon the cases of Willis v. Burch, 116 Ga. 374 (42 S. E. 718); McElmurray v. Harris, 117 Ga. 919 (43 S. E. 987); Tharp v. Anderson, 31 Ga. 293. In the Willis case, the Supreme Court held as follows: “Trover is an action ex delicto; it is a suit brought for a tort; and the rule is that the proper person to bring an action ex delicto or for a tort is he in whom the legal right or property was vested and whose legal right has been affected by the injury complained of. Barbour, Parties, 158. This rule is recognized by our Civil Code, wherein it is provided that an action for a tort must, in general, be brought in the name of the person whose legal right has been affected, and who 'was legally interested in the property at the time the injury thereto was committed. Civil Code [of 1895], § 4940” (Civil Code of 1910, § 5517).

In the McElmurray case it was said: “The right to sue in an action of trover is in the party in whom the title to the personalty was at the time of the conversion. Willis v. Burch, 116 Ga. 375. Where such party sues in trover for the use of another, the name of the usee may be treated as surplusage. Mitchell v. Ry. Co., 111 Ga. 771; Willis v. Burch, supra. Accordingly, where one who has the legal right brings an action of trover, and pending the action sells the property to another; and where, without objection, the plaintiff amends his petition so as to make it a suit for the use of his vendee, the sale of the property does not defeat his right to recover, and the allowance without objection, of the unnecessary amendment, will not invalidate the verdict and judgment in his favor.” It has frequently been said that our statutory action of trover is a substitute for the old common-law actions of detinue, replevin, and trover, and combines characteristics of the first and last of these actions. Mitchell v. Ga. & Ala. Ry., 111 Ga. 760, 761, 762 (36 S. E. 971, 51 L. R. A. 622); Delaney v. Sheehan, 138 Ga. 510, 513 (75 S. E. 632). The injury sought to be remedied is always an illegal conversion of property. Southern Express Co. v. Sinclair, 130 Ga. 372, 373, 374 (60 S. E. 849); Jeems v. Lewis, 13 Ga. App. 456 (3) (79 S. E. 235). The action is therefore one ex delicto and lies in tort. Under the law as it formerly was, that a cause of action in tort could not be assigned, an action in trover could not therefore have been employed by any one in whom the title to the property did not lie at the time the property was illegally converted. See Sullivan v. Curling, 149 Ga. 96, 102 (99 S. E. 533, 5 A. L. R. 124), criticising the ruling made in the Willis case. The question here involved is not, however, whether title to . the property must have been in the plaintiff at the time of the conversion; but whether it must have been in him at the time his suit was institued. Whatever in some cases may now be the rule as to that, an action in trover is something more than an ordinary action in tort, because, as has been said, “the sole issue in the trial of an action of trover is that of title to the property in dispute; and the fact that the plaintiff may elect to take a money verdict in lieu of the specific personalty claimed can in no event alter that issue.” Berry v. Jackson, 115 Ga. 196, 197 (41 S. E. 698, 90 Am. St. R. 102); Campbell v. Trunnell, 67 Ga. 518 (4); Barfield Music House v. Harris, 20 Ga. App. 42, 47 (92 S. E. 402); Birmingham, Fertilizer Co. v. Cox, 10 Ga. App. 699 (2) (73 S. E. 1090). In such a suit the true issue of title cannot be changed into a mere action for damages or for one on account. In Palmour v. Durham Fertilizer Co., 97 Ga. 244 (2) (22 S. E. 931), the Supreme Court held: “If the plaintiff in such action fails to show title in himself, he cannot recover either the property sued for or its value in money, although it may be conceded at the trial that the defendant was indebted to the plaintiff for the property in question, the defense being that the defendant had purchased the property and was liable on account for its value. An action of trover, which proceeds upon the assumption that the plaintiff has the title to the property sued for, cannot under any circumstances be converted into an action on account for the price of property sold and delivered, which necessarily involves the contrary assumption that the title had passed to the defendant.” ■ In the case of Sullivan v. Curling, supra,, the Supreme Court in discussing the McElmurray case said: “The plaintiff had parted with his title to the property sued for, by selling it to a third party. The plaintiff could not, therefore, recover in his own name.” It therefore appears that, whatever may be the rule in certain cases, under the law as it now exists, relative to the assignment of actions in tort, as to the necessity of the property having been owned by the plaintiff at the time, the tort was committed, the title must nevertheless be in the plaintiff at the time the action in trover is instituted. The rights of parties are always fixed and determined by the status existing at the time a suit is instituted. Burch v. Daniel, 109 Ga. 256, 258 (34 S. E. 310); Suwanee Turpentine Co. v. Baxter, 109 Ga. 597 (35 S. E. 142). In support'of our ruling, what was, held by the Supreme Court in Hall v. Simmons, 125 Ga. 801 (supra), appears to be plain and conclusive. It was there said that “when in the trial of an action in trover it appears that prior to the institution of the suit the plaintiff had parted with the title to property involved, it is not erroneous to grant a nonsuit at the conclusion of the plaintiff’s evidence.” The law as there stated has been followed by numerous decisions of this court, some of which' are cited in the original decision in this case. Whatever other rights or remedies a plaintiff might have, in a case where property previously belonging to him was illegally converted at a time when the title was vested in himself, we do not think that he is entitled to maintain an action in trover where it appears that at the time the suit is instituted he does not own and does not claim the property for which he sues. Moreover, under the allegations of the petition, it appears that plaintiff’s claim is actually based upon an alleged title existing in itself at the time the suit was filed, and not upon title existing at the time of the alleged conversion.

2. It appears from the record that the plaintiff ignorantly bought back its own car on April 2, 1921, and that the trover suit was instituted in November, 1921, about seven months thereafter. The secretary and treasurer of the plaintiff corporation testified as a witness for the plaintiff as follows: “This car came back into the possession of Dunlap-ITuckabee Auto Company on April 2, 1921, being purchased by said company from Lockett in ignorance of the fact that it was the car we had sold to Parker and to which we retained title. We paid Lockett $1150 for this car, and it was worth it. Thereafter we sold the car, but I have forgotten to whom we sold it or what price it brought.” The plaintiff’s contention is that, since title in itself was shown by the introduction of the original purchase-money note and contract evidencing a conditional sale, title will be presumed to have remained in the plaintiff until the contrary is shown; and that the plaintiff’s evidence quoted does not indicate that it had parted with title at the time its suit was filed, but title presumably continued to remain with it. The evidence of the plaintiff’s witness should be given a reasonable construction and intendment. In his testimony as to the facts with reference to the issues involved in the action, it will be more reasonable to assume that his evidence, unless the contrary appears, relates to relevant matter which transpired prior to and not subsequent to the institution of the action. This officer of the corporation in testifying for the plaintiff was undertaking to give the facts as they related to the cause of action made by the petition. It cannot reasonably be assumed that his testimony related to an irrelevant and immaterial transaction, in no wise germane to the suit, occurring after the action was instituted. The burden of proof being upon the plaintiff to establish its title at the time the suit was instituted, proof merely to the effect that it at one time had title but had parted with it cannot be taken as carrying this legal burden. The doctrine of continuity, that a state of facts once shown to exist has continued to exist, does not have application where the plaintiff who relies upon it merely as a presumption clouds the presumption in his favor by himself showing that the status has not in fact continued to exist, and where, in order for his testimony to even permit the construction that it had continued to exist at the time the suit was instituted, it is necessary to construe the testimony offered for the plaintiff as being altogether irrelevant and immaterial to the cause of action.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14308.
    DANIEL v. EXCELSIOR AUTO COMPANY et al.

    It appearing from tire plaintiff’s petition that the alleged injury arose from an assault by a person alleged to be the manager of the defendant corporation; that the plaintiff approached the oince of the corporation not for the purpose of transacting any sort of business, but from mere idle curiosity, to hear a conversation between the manager and a third person; that the-assault did not arise from business of the corporation or in connection with the assailant’s duties as manager, but arose from a merely personal altercation, and that the assailant left the eorporation.’s place of business and struck the plaintiff on steps, which, though alleged to have been used jointly by the corporation and by a hotel company as an entrance, are not alleged to have been a part of the defendant’s premises, the petition docs not show liability on the part of the corporation, and- the court did not err in sustaining its general demurrer.
    Decided February 23, 1924.
    Action for damages; from Fnlton superior court—Judge Bryan. December 1, 1922.

      Alexander & Meyerhardi, for plaintiff.

      McClelland & McClelland, for defendants.
   Jenkins, P. J.

This suit was against an automobile company and its manager jointly, for injuries alleged to have resulted from a connected succession of assaults and batteries by the manager. The court sustained the company’s general denrurrer to the petition, and as to it dismissed the action; to which judgment the plaintiff excepts. The demurrer sets forth “that there are not sufficient facts to connect this defendant with the injury complained of, and that the facts stated therein are not sufficient to create any liability against this defendant.” The defendant company contends that the petition on its face shows that the plaintiff’s injuries resulted from a merely personal difficulty with the person named as its manager, outside of its place of business, and that he was at the time in no wise acting in the scope of his employment or duties. The particular allegations on which the plaintiff relies are as follows: “Petitioner alleges that the same steps which lead up from the street to the entrance of the Piedmont Hotel on Luckie street are used also as the entrance to the doorway of said Excelsior Auto Company, which is a narrow place to one side of the Piedmont Hotel entrance and very close to it. It was within the scope of the duties of said Fred Hogan, as manager of said Excelsior Auto Company, to keep its doorway unobstructed and to prevent loitering there, and the assaults complained of were committed by said Fred Hogan in accordance with his conception of his duties as such manager, but petitioner alleges that the same were made without any personal provocation whatsoever, and because the said Fred Hogan was laboring under a fit of violent and ungovernable temper, brought on by his anger at a matter with which petitioner had no connection and for which he was in no wise responsible. When said Fred Hogan, manager as aforesaid, commanded petitioner to get out of his door, petitioner, recognizing said manager’s legal right, promptly obeyed the command, giving absolutely no provocation whatsoever, and the wrong and injury complained of was also the wrong and injury of defendant, Excelsior Auto Company, in and about whose business the said Ered Hogan was then and there acting.” Describing the injury, the petition further alleges that the plaintiff “was standing in the doorway of the office” of said defendant in the Piedmont Hotel Building, listening to a conversation between said manager and another person, who was complaining to said manager of the conduct of one of the company’s employees, when the said manager ordered the plaintiff “to leave said doorway, and that your petitioner, without making any reply, immediately complied with said order and moved out of the doorway of said office, and stood in the doorway of a hotel near-by and about two feet from the place he had been standing;” that the said manager thereupon, after ordering him to move away from his new position, without giving him a reasonable opportunity to do so, and without provocation, “committed a violent assault upon the person of petitioner by striking petitioner with his fist on the left eye and cheek, knocking him through the Luckie street door of the Piedmont Hotel and on the floor of said hotel;” that as petitioner then started to go out to the street and “reached the top step leading from said hotel and from said office of Excelsior Auto Company, the said defendant . . struck said petitioner again with his fist on the left eye and left cheek, and knocked petitioner down the steps at the Luckie street entrance to said hotel and said office of Excelsior Auto Company;” and that after the plaintiff reached the sidewalk the said manager made three additional assaults upon him.

1. “A master is liable for the wilful torts of his servant, committed in the course of the servant’s employment, just as though the master had himself committed them. This rule applies as well where the master is a corporation as where he is a private individual.” Central of Ga. Ry. Co. v. Brown, 113 Ga. 414, 416, 417 (38 S. E. 989, 84 Am. St. R. 250); Civil Code (1910), § 4413; Savannah Electric Co. v. Wheeler, 128 Ga. 550, 554, 555 (58 S. E. 38, 10 L. R. A. (N. S.) 1176); Mason v. Nashville &c. Ry., 135 Ga. 741, 756, 757 (70 S. E. 225, 33 L. R. A. (N. S.) 280); Century Bldg. Co. v. Lewkowitz, 1 Ga. App. 636, 637 (57 S. E. 1036). But “if a servant steps aside from his master’s business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable.” Savannah Electric Co. v. Hodges, 6 Ga. App. 470, 471, 472 (65 S. E. 322).

2. “It is the general rule that the allegations of a petition will, when attacked by appropriate demurrer, be construed most strongly against the pleader. So, where general allegations . . are followed by specific detailed averments, the former ordinarily will yield to the latter.” McClure Ten Cent Co. v. Humphries, 29 Ga. App. 524 (116 S. E. 54), and eases cited. While it is true that a general averment alleging in effect that the act of the servant was done in the prosecution of the master’s business and within the scope of the servant’s authority has been held to state traversable facts rather than a mere conclusion of law (Savannah Electric Co. v. McCants, 130 Ga. 741 (2), 61 S. E. 713), yet when, as in the instant case, a general averment of this nature is amplified by specific allegations which plainly and distinctly negative as a fact the general charge that the acts complained of were in the prosecution of the master’s business and within the scope of the agent’s authority, the specific averments will prevail. It appears from this petition that the injury arose from an assault by a person named as the manager of the defendant corporation; that the plaintiff approached its office not for the purpose of transacting any sort of business, but from mere idle curiositjr, to hear a conversation between the manager and a third person; that the alleged succession of assaults arose in no way from the business of the corporation or in connection with the manager’s authorized duties, but from a merely personal altercation between the plaintiff and the person named as manager; that the latter left the corporation’s place of business and struck the plaintiff on steps which, though charged to have been used jointly by the corporation and by a hotel company as an entrance, are not alleged to have been a part of the defendant corporation’s premises. Under the averments made, the defendant corporation was not liable, and the trial judge properly sustained its general demurrer. Civil Code (1910), § 3603; Fire Asso. of Philadelphia v. Fleming, 78 Ga. 733, 736, (3 S. E. 420); Wikle v. L. & N. R. Co., 116 Ga. 309 (2) (42 S. E. 525); Murphy v. New South Brewery & Ice Co., 145 Ga. 561 (89 S. E. 704); Cen. of Ga. Ry. Co. v. Morris, 121 Ga. 484 (49 S. E. 606, 104 Am. St. R. 164); Lynch v. Fla. Cen. &c. R. Co., 113 Ga. 1105 (39 S. E. 411, 54 L. R. A. 810); Southeastern Fair Asso. v. Wong Jung, 24 Ga. App. 707, 708 (102 S. E. 32).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14428.
    MARTIN v. GREER.
    Decided February 23, 1924.
    Action for damages; from Fulton superior court—-Judge Ellis. January 34, 1933.

      Hoiuard Stevens, William IS. Arnaud, for plaintiff.

      Virlyn B. Moore, Bryan & Middlebroolcs, for defendant.
   Jenkins, P. J.

1. ' “ A person professing to practice surgery or the administering of medicine for a compensation must bring to the exercise of his profession a reasonable degree of care and skill.” Civil Code (1910), § 4427. “In a suit for damages alleged to have been caused by the malpractice of a surgeon, the burden is on the plaintiff to show a want of due care, skill, or diligence, and also that the injury resulted from the want of such care, skill, or diligence.” Ga. Northern Ry. Co. v. Ingram, 114 Ga. 639 (40 S. E. 708); Akridge v. Noble, 114 Ga. 949, 958 (41 S. E. 78).

2. While it is true that “in determining the question of reasonable care and skill the jury may consider the place of the operation, the circumstances surrounding it, the situation of the defendant with respect to the operation, and all the facts and circumstances which may be shown by the evidence and which may throw light on the ultimate question” (Pace v. Cochran, 144 Ga. 261, 265, 86 S. E. 934; Fincher v. Davis, 27 Ga. App. 494, 108 S. E. 905), such is not the rule as to pleadings, and it is improper in a petition to set forth “evidence instead of directly alleging an issuable fact,” or to plead “collateral evidential facts which the jury might perhaps believe” pointed in the direction of the fact sought to be shown. Maynard v. Armour Fertilizer Works, 138 Ga. 549, 554 (75 S. E. 582); Ala. Construction Co. v. Continental Car Co., 131 Ga. 365, 367 (62 S. E. 160).

(<i) Likewise, the inclusion in a petition, or the attachment thereto as an exhibit, of an X-ray photograph, designed to show the condition of an injured member from the alleged malpractice of a surgeon, is subject to special demurrer. Pace v. Cochran, 144 Ga. 261, 264 (86 S. E. 934).

(6) It is also true that allegations in a petition which do not state issuable facts, but state mere conclusions relative to negligence, should be stricken upon timely special demurrer. Sweat v. Foster, 28 Ga. App. 360 (111 S. E. 66).

(c) Under the foregoing rulings, the special demurrers to the plaintiff’s petition were properly sustained.

3. The petition as a whole failed to show negligence in exercising or failure to exercise any professional act or duty owed by the defendant as a surgeon, in sending the plaintiff to the city hospital, or any negligence chargeable to the defendant in the performance there by others of the operation in setting a broken leg, or in any subsequent treatment by the defendant. The allegations consist largely of evidence, collateral or irrelevant matter, and conclusions of the pleader. The court did not err in sustaining the general demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14504.
    ATLANTIC COAST LINE RAILROAD COMPANY v. BENNETT.
    Tne statutory presumption of negligence on the part of the railroad company in the killing of the cows by its train was completely rebutted by positive and uncontradicted testimony of the engineer and the fireman in charge of the engine, and the verdict against the defendant was unauthorized. The judge of the superior court, therefore, erred in refusing to sanction the certiorari:
    Decided February 23, 1924.
    Certiorari; from Wayne superior court—Judge Highsmith. March 31, 1923.

      Bennel, Twiity & Reese, Gibbs & Turner, for plaintiff in error.
   Jenkins, P. J.

1. Where the only assignment of error in a petition for certiorari is that the verdict was contrary to law, as being without evidence to support it, and contrary to the weight of the evidence, it is not the duty of the judge of the superior court to sanction the certiorari, “if there is a legal adequacy of testimony to support” the verdict, “and if the weight of the testimony is not so strongly against the correctness of the finding as that, if on final hearing the answer supported the petition, the judge would feel the interests of justice required a new trial.” A judgment of the judge of the superior court, refusing, in the exercise of his discretion, to sanction a certiorari, will not be reversed unless a verdict for the petitioner was demanded. Little v. City of Jefferson, 9 Ga. App. 878 (72 S. E. 436); Wells v. McMahon, 26 Ga. App. 397 (106 S. E. 297); Crawford v. Jones, 27 Ga. App. 448 (108 S. E. 807); Fallas v. Rushin, 29 Ga. App. 471 (115 S. E. 922).

2. In this action in a justice’s court for damages for the killing of two cows by the running of the defendant’s train, the statutory presumption of negligence was completely rebutted by positive and undisputed testimony from the engineer and the fireman operating the engine, to the effect that the casualty could not have been prevented by the exercise of all ordinary care and diligence. So. Ry. Co. v. Harrell, 119 Ga. 521 (46 S. E. 637); Atlantic Coast Line R. Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34). The trial resulted in a judgment for the plaintiff, and the judge of the superior court refused to sanction the defendant’s petition for certiorari, the judge basing his refusal upon the ground that it appeared from the evidence that “four head of cattle were killed about the same time,” and that “it does not appear • that the evidence of the engineer and fireman necessarily related to the cattle sued for,” or “had reference to cattle killed on the crossing.” The plaintiff’s sworn statement claiming damages in terms sought a recovery for “two cows killed on or about April 22d, 1922, . . killed by said A. C. L. R. R. Co. in said county of Wayne between mile-posts 65 and 66, said cows killed by the negligence of said railroad company in the operation of its trains.”' The defendant’s engineer and fireman testified as to the cows killed “on the night of April 22d, between the 65th and 66th mile-posts,” and the engineer swore, “these are the only cattle that I have ever killed since I have been an engineer.” The fact that the plaintiff, after testifying as to the cattle sued for, also alluded to “two other cattle killed near this same place, for which the railroad company has settled with me,” without indicating that the place of the latter’s death was between the 65th and 66th mile-posts, where he located the cattle sued for and the engineer and fireman located those about which they were testifying, and without fixing the time of killing as on the date set forth in the suit and the date stated by the engineer and fireman, did not modify the legal effect of the defendant’s testimony, as tending to show that its witnesses were referring to the cattle not in issue, instead of those in question. Nor was such testimony affected by that of a witness for the plaintiff, who, after testifying as to the cattle sued for, said that he had seen “two other cows,” but did not know when they were killed, or locate the place of their killing. A verdict, in our opinion, having been thus demanded for the petitioner, the certiorari should have been sanctioned.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14518.
    Columbia Smelting & Refining Works v. Dexter & Wright.
   Jenkins, P. J.

1. Where a contract for the sale and purchase of goods is silent as to the time of delivery, the law implies that it shall be within a reasonable time. The words “immediate shipment” have been construed as equivalent to “rea xmable promptitude” or “within a reasonable time.” Roberson v. Webber, 145 Ga. 626 (5), 632, 633 (89 S. E. 769); Bearden Mercantile Co. v. Madison Oil Co., 628 Ga. 695 (3), 702 (58 S. E. 200); Ga. Agricultural Works v. Price, 11 Ga. App. 80 (3), 84 (74 S. E. 718); Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 (2) (59 S. E. 713).

(a) In the instant case the vendor’s offer to sell, of January 31, 1920, without fixing any date for shipment, as accepted by the vendee for “immediate shipment,” constituted a meeting of the minds of the contracting parties, since the offer, being silent as to the time of shipment, must be construed in' law as contemplating delivery within a reasonable time.

(b) The fact that the vendee, after the making of the contract, continually requested an immediate or prompt delivery, and that the vendors promised to make delivery, but without doing so or tendering the commodity, did not operate as a novation to extend the time of delivery from the “reasonable time” contemplated by the original contract, or modify the right of the plaintiff to recover damages under the original breach. Hardwood Lumber Co. v. Adam, 134 Ga. 821 (6), 826 (68 S. E. 725, 32 L. R. A. (N. S.) 192); Ga. Creosoting Co. v. McIntosh Land Co., 23 Ga. App. 561 (99 S. E. 166).

2. “The general rule as to the measure of damages for a breach by the seller of a contract for the sale and delivery of goods is the difference between the contract price and the market value at the time and place for delivery.” Southern Lumber Co. v. Kennon Lumber Co., 29 Ga. App. 130 (2) (114 S. E. 60).

(a) “The purchaser of goods cannot recover of tlie seller damages for nondelivery measured by his profits on a particular contract of resale and by his losses on account of inability to perform that contract, unless the seller at the time of making the contract of sale had notice of such contract of resale.” Wappoo Mills v. Commercial Guano Co., 91 Ga. 396, 399 (18 S. E. 308); Huggins v. Southeastern Lime &c. Co., 121 Ga. 311 (5), 314 (48 S. E. 933); Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (3), 584 (96 S. E. 437); Southern Lumber Co. v. Kennon Lumber Co., 29 Ga. App. 130 (4) (114 S. E. 60); Hagan Grocery Co. v. Nobles, 26 Ga. App. 394, 396 (106 S. E. 807); Truitt v. Rust & Shelburne Sales Co., 25 Ga. App. 62 (102 S. E. 645); Garcia v. Taggart Coal Co., 27 Ga. App. 204 (2), 209 (108 S. E. 72).

3. In the instant case the record fails to disclose that the sellers had any notice at the time the contract was entered upon that the goods were intended for resale. There was no proof of the market value of the goods upon any date other than on March 15, 1920. Following the making of the contract on January 31, 1920, which was silent as to the date of delivery, the purchaser, after unsuccessfully calling for shipment and in order to protect its contracts of resale, went into the open market and purchased the commodity on March 15, 1920, at an increased price, which was shown to have been the market value on that date. The trial judge charged the jury that the contract contemplated a-delivery “within a reasonable time,” and, in effect, that, if they should find that March 15, 1920, was the proppr delivery date, the plaintiff purchaser would be entitled to recover the difference between the contract price and the market value, as shown on that date; but that, if they should find that that date was.not the time of delivery, since the market value on no other date was shown, the plaintiff would be entitled to recover only nominal damages. Held: Since the plaintiff cannot stand upon its right to repurchase the goods for the purpose of resale, upon -which tlieory the plaintiff’s case appears to have been founded, and since this court cannot say as a matter of law that March 15, 1920, was necessarily the proper date for delivery under the contract, the verdict, finding adversely to the plaintiff except for nominal damages, cannot be disturbed.

Decided February 23, 1924.

Action for breach of contract, from Glynn superior court—Judge Highsmith. March 21, 1923.

A. J'. & A. H. Grovatt, Krcmss & Strong, fpr plaintiff.

F. G. Butts, for defendants.

Judgment affirmed.

Stephens and Bell, JJ., concur. .


text:
    14551.
    PAULK & FOSSIL v. LEE, next friend.
    1. That the injured employee—a boy injured'on the second day of his employment in the sawmill of the defendants—was lacking in the care with which he was chargeable cannot as a matter of law be held, under the evidence in this case.
    2. There being uncontradieted evidence that the injured boy was fifteen years of age, and there being no evidence that he lacked the capacity of one of his years, the rule as to due care in children of tender years, as laid down in the Civil Code (1910), § 3474, did not apply to him, and it was error for the court to give that rule in charge to the jury.
    Decided February 23, 1924.
    Action for damages; from Glynn superior court—Judge High-smith. March 21, 1923.

      F. M. Scarlett, for plaintiffs in error.

      Krauss & Strong, contra.
   Jenkins, P. J.

In this suit for damages on account of personal injuries, brought for a minor by next friend, the jury were authorized, but not compelled, to find for the plaintiff, under the evidence submitted. It appears that the injury resulted from the boy’s trousers being caught in a revolving belt, attached at one end to the engine of the sawmill where he was working for the defendants, and at the other end to a pulley, while he was stepping back or being thrown back by the fall of a piece of lumber which he had been pushing upon rollers. The defendants’ alleged negligence consisted in failing to furnish him with a safe place to work, and in failing to box, safeguard, or properly protect the belt in a manner customary with other sawmills, and in maintaining it on the same floor and in close proximity with the rollers. The proof showed that the boy was 15 years of age and inexperienced in the work, and that the injury occurred on the second day of- his employment. While it appears that the presence of the belt, unboxed and unguarded, in close proximity-to the location of the employee’s work, was so plain as to charge him with knowledge of such fact and the obvious dangers connected therewith, it cannot, however, be held as a matter of law, especially in view of his inexperience and youth, that his conduct necessarily evinced a lack of the care with which he was chargeable, in subjecting himself to an obvious risk, or that he had skill, knowledge, and experience equal to the master, such as would make it incumbent upon him to contemplate the possible or probable dangers arising from such defective equipment in the performance of his duties as servant. Hood v. Atlantic Steel Co., 29 Ga. App. 457 (115 S. E. 917).

Under the undisputed evidence, the minor for whom the suit was brought was more than 15 years of age. “In the absence of any evidence of want of ordinary capacity in the particular boy, he should not be treated as a child of Tender years,’ but as a young person who has passed that period and become chargeable with such diligence as might fairly be expected of the class and condition to which he belongs. . . While the conduct of a boy of his age, under such circumstances, is not to be judged by the same standard as that of a man, he is nevertheless held to a higher degree of responsibility than one whom the law regards as an infant of Tender years.’ A young person of the age of this plaintiff is presumed to be capable of realizing danger and of exercising the necessary forethought and caution to avoid it, and is presumptively chargeable with diligence for his own safety, where the peril is palpable and manifest. . . By analogy to the provisions of the Penal Code touching capacity for crime, this presumption attaches at the age of 14 years.” Cen. R. Co. v. Phillips, 91 Ga. 526 (2), 528, 529 (17 S. E. 952); Penal Code (1910), §§ 33, 34; Cen. R. Co. v. Brinson, 70 Ga. 207 (4), 224, 237; Rhodes v. Ga. R. Co., 84 Ga. 320, 323 (10 S. E. 922, 20 Am. St. R. 362); East Tenn. Ry. Co. v. Hughes, 92 Ga. 388, 391 (17 S. E. 949, 22 L. R. A. 315); Evans v. Josephine Mills, 119 Ga. 448 (6), 453, 454 (46 S. E. 674); Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (94 S. E. 821). There being no evidence that the injured boy lacked the capacity of one of his years, it was error for the court to treat .him as a “child of tender years,” and to charge the jury, in substantially the language of the Civil Code (1910), § 3474, that “the law provides that due care of a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.”

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    14608.
    Smith v. Tokio Marine Insurance Co.
    Decided February 23, 1924.
   Stephens, J.

1. The ground of the affidavit of illegality being part payment in a certain definite sum on the execution levied, and it not appearing when and to whom the amounts alleged as part payment on the execution had been paid, and the defect not having been cured by amendment, the court properly dismissed the affidavit of illegality, on special demurrer interposed upon this ground. Terry v. Bank of Americus, 77 Ga. 528 (2) (3 S. E. 154).

2. While the affidavit of illegality does not allege in express terms'the amount due and unpaid on the execution, it must nevertheless, if amended to cure the defects above indicated, be regarded as sufficiently alleging this amount, as the same is computable mathematically by a comparison of the amounts appearing to be due upon the execution with the amounts alleged in the affidavit as having been paid thereon.

3. Although no duty rests upon a levying officer to accept and return into court an affidavit of illegality which admits any indebtedness due on the execution, until the amount admitted as due has been paid to or raised by him, yet, whore he accepts such an affidavit of illegality and returns it into court, he has presumably been paid or has raised the amount alleged in the affidavit as due. That the amount admitted as due in the affidavit of illegality has not been paid to the sheriff is a matter of defense, and is not ground for demurrer. Civil Code (1910), §§ 5305, 5307, 6287.

4. The judgment is affirmed, but direction is given that, if the defendant amends the affidavit of illegality to meet the defects pointed out in paragraph 1 of the syllabus, by the time the judgment of this court is made the judgment of the court below, the case shall stand for trial upon the affidavit of illegality as thus amended, and that, upon the defendant’s failure to so amend, the judgment sustaining the demurrer and dismissing the affidavit of illegality will be unconditionally affirmed. See, in this connection, Sims v. Cordele, 119 Ga. 597 (46 S. E. 841); Willingham v. Glover, 28 Ga. App. 394 (111 S. E. 206).

Judgment affirmed irilh direction.

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

Affidavit of illegality of execution; from Cobb superior court-judge Blair. April 21, 1923.

Herbert Clay, for plaintiff in error.

Underwood, Pomeroy & Haas, E. Smyth Gambrell, Fred Morris, contra.


text:
    14648.
    Savannah Electric & Power Company v. Nance.
    Decided February 23, 1924.
    Action for damages; from city court of Savannah—Judge Freeman. May 8, 1923.
    The action was for damages on account of personal injuries alleged to have been received from a street-car of the defendant company, which struck the plaintiff. The petition alleges, in substance, that about 9 :30 o’clock on a certain dark night, the plaintiff was walking westward on the “Augusta Boad” in Chatham county, on an unlighted grass plot used as a roadway, extending “about one foot and a half outwardly from the rails of the said street-car track, and about one half a foot beyond the end of the cross-ties, and plaintiff at the time of the occurrence was walking on the edge of the grass plot, between six inches and one foot from the edge of the cross-ties,” where he had a right to be, and that by reason of the darkness and the lack of any light upon the car, he was unable to see a car of the defendant, which was coming in an easterly direction, not making any noise or giving any signal of approach, and traveling at an excessive rate of speed, of more than 25 miles an hour, and that the car struck him and caused the injuries complained of; that “the said car was only three or four feet from petitioner when petitioner saw said ear, and the said car struck him before he could get out of the way of said car;” that he did not see or hear the car; that “the defectiveness of said lighting apparatus was such as caused the lights on said car to go out, and such defective condition of said lights and the result thereof were known to the motorman and conductor operating said car;” that “by reason of the darkness and the probability of people walking on said cross-ties, as was the custom, which custom was known to said defendant and to its said employees, and by reason of the said car being dark, the said rate of speed was unreasonable and negligent.” It is also alleged that the brakes on the car were out of order, “so as to prevent the said car from being stopped quickly when necessary;” that the motorman failed to keep a lookout and guard against the approach of pedestrians “on the path used by pedestrians near to and adjacent to said track;” and that “by reason of said defects in said car, and of the use of said path by pedestrians, it was the duty of those operating said car to ring the bell or give other signals that would warn the approaching pedestrians of said car which could not be observed by reason of the -darkness.”
   Jenkins, P. J.

1. Since tlie averments contained in a petition must, for tlie purpose of determining a demurrer, be taken as true, except where an allegation sets forth a physical impossibility or a statement which is inherently incredible, and since, except in plain and indisputable cases, it is for the jury to say whether an allegation is or is not inherently incredible, this court is unable to say, as. a matter of law, that the plaintiff must have been aware of the approach of the street-car until just prior to the time when he was struck, as alleged in the petition; and since questions as to diligence and negligence, including contributory negligence, and what constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except where such questions appear palpably clear, the court did not err in refusing to strike the plaintiff’s petition on-general demurrer. Howard v. Savannah Electric Co., 140 Ga. 482 (a, b), 486 (79 S. E. 112); Columbus R. Co. v. Berry, 142 Ga. 670, 673 (83 S. E. 509); Larkin v. Andrews, 27 Ga. App. 685 (109 S. E. 518); Columbus R. Co. v. Moore, 29 Ga. App. 79 (113 S. E. 820); Rome Ry. & Lt. Co. v. King, 30 Ga. App. 231 (2) (117 S. E. 464).

2. Such of the grounds of special demurrer as were meritorious were cured by the paragraphs added to the petition by amendment.

Judgment affirmed.

Stephens and Bell, JJ., ooneur.

Lawrence & Abrahams, for plaintiff in error.

Mclntire, Walsh & Bernslein, contra.


text:
    14234.
    CITY OF ATLANTA v. HATCHER.
    One employed by a city to drive a sanitary cart is an “employee” entitled to compensation under the Georgia workmen’s compensation act.
    Decided February 23, 1924.
    Appeal; from Fulton superior court—Judge Bryan. December 26, 1922.
    Application for certiorari was denied by the Supreme Court.

      J. L. Mayson, J. M. Wood, for plaintiff in error.

      Hendrix & Buchanan, contra.
   Stephens, J.

The sole question for determination is whether a driver of a sanitary cart operated by the public health department of a city within this State is an “employee” of the city and entitled to compensation under the Georgia workmen’s compensation act. (Ga. L. 1920, p. 167; amended Ga. L. 1922, p. 185.) It is contended by the bity that since such driver, in performing his duty, is engaged in the performance of a governmental function, he is not an employee and is not entitled to compensation under the act. The act is described as a “workmen’s compensation act,” and is designed to give compensation to “employees.” The act provides that an “employee” shall include “every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer.” Section 2-b. The act also provides that “neither any municipal corporation within this State, nor any political subdivision thereof, nor any employee of such corporation or subdivision shall have the right to reject the provisions of this act relative to payment and acceptance of compensation.” Section 8. There is nothing in the act that indicates an intention to classify employees entitled to compensation under the act as respects their employment in ministerial or governmental duties. Nor are they classified at all. The only possible limitation that can be placed upon the character of the employee entitled to compensation is that he must be a workman. If an employee of a city is a workman, he is not debarred from compensation merely because he is a workman performing a duty which is denominated governmental. “Laborer” is synonymous with “workman;” and a laborer is one who performs “work, the doing of which properly would depend upon a mere physical power to perform ordinary manual labor.” Oliver v. Macon Hdwe. Co., 98 Ga. 249 (25 S. E. 403, 58 Am. St. R. 300). A driver of a sanitary cart, therefore, is nothing but a laborer or workman. While we do not hold that only persons performing manual labor exclusively, without the exercise of mental skill, are entitled to recover as employees under the act, we do hold that one who is a laborer, or workman, in every sense of the word, is an employee entitled to recover under the act, even though his duties are governmental. While in Marlow v. Mayor &c. of Savannah, 28 Ga. App. 368 (110 S. E. 923), a city policeman is held to be a public officer and not an employee, and therefore not entitled to recover under the act, it does not follow that a driver of a city sanitary cart, who is a mere laborer, cannot recover. There is quite a difference in- the nature of the duties of a city policeman and the driver of a sanitary cart.

Judgment affirmed.

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


text:
    14275.
    Lanham et al. v. Keys.
   Stephens, J.

1. Assuming that the doctrine of respondeat superior is not applicable to an action for slander (Ozborn v. Woolworth, 106 Ga. 459, 32 S. E. 581; Behre v. National Cash Register Co., 100 Ga. 213, 27 S. E. 986, 62 Am. St. R. 320; Southern Ry. Co. v. Chambers, 126 Ga. 404, 55 S. E. 37, 7 L. R. A. (N. S.) 296), one who has not uttered slanderous words may nevertheless be liable therefor if they were uttered by another in furtherance of a conspiracy to which he was a party. 25 Cyc. 434. The conspiracy may be established by showing that both parties were present when the slanderous words were uttered, and that their utterance by one of the parties was with the consent of the other and in pursuance of a common design and purpose.

(a) Where the party uttering the slanderous words is at the time acting as an employee of a mercantile establishment in the discharge of a duty to detect shoplifters and point them out to a coemployee in authority over him, who makes such disposition of the matter as he sees ñt, and where the employee first referred to accosts, in the store where they are employed, a customer who has been detained by the coemployee for some purpose, and, in the latter’s presence, publicly accuses the customer of larceny, and me coemployee stands by and makes no objection thereto, the inference is authorized that they are acting in pursuance of a common design and purpose, and that slanderous utterances made by one of the parties are made as a result of a conspiracy for which both of the parties are liable. '

2. Although the employee who pointed out the customer as a shoplifter, in uttering the slanderous words to his eoemployee, accusing her of larceny, may have acted in the performance of his duty and in pursuance of a matter concerning, and in the protection of, their interests, such communication, if it was unnecessarily made public to customers in the store who were strangers was not, when so made, a privileged communication.

3. Jn a suit for slander by the customer against both employees, where the petition alleged that the slanderous words were uttered by both defendants, it was not error prejudicial to the defendant who, according to the evidence, had not in fact uttered the slanderous words for the court to submit to the jury a proposition of law based upon a hypothesis that such defendant would be liable for the act of the other defendant, upon the theory of a conspiracy as above indicated.

Decided February 23, 1924.

Rehearing denied February 29, 1924.

Action for damages; from Floyd superior court—Judge "Wright. January 8, 1923.

Application for certiorari was denied by the Supreme Court.

Willingham, Wright. & Covington, for plaintiffs in error.

Lang & Lang, contra.

4. An instruction to the jury that a verdict could not be found for the plaintiff unless both defendants were liable was not prejudicial to either defendant. The defendant who did not in fact utter the alleged slanderous words could not complain of such charge, since it made his liability dependent upon the liability of his codefendant.

5. See, in this connection, Cole v. A. & W. P. R. Co., 102 Ga. 474 (31 S. E. 107); Moon v. Smith, 6 Ga. App. 649 (65 S. E. 712).

6. The verdict found for the plaintiff against both defendants was authorized, and no error of law appears.

Judgment affirmed.

Jenldns, P. J., and Bell, J., eonewr.


text:
    14292, 14332.
    Macon Union Co-Operative Association v. Chance; and vice versa.

   Jenkins, P. J.

1. In a petition for certiorari to review the ruling of a municipal court directing a verdict for the plaintiff, assignments of error, excepting to the exclusion of evidence offered by the defendant and to the admission of evidence for the plaintiff, are not defective because the assignments and the brief of evidence were insufficiently verified by the municipal-court judge, where the defendant duly excepted to the failure of the judge’s answer to make such verification, and where, on the sustaining by the superior court of such exceptions, the trial judge further answered that the full transcript of evidence sent up with his answer, and containing the questions and answers of witnesses, objections of counsel, and rulings of the court, “correctly reported the evidence and what transpired on the trial,” and that “it contained, as far as I can recall, all that transpired on the trial of the ease,” and where the assignments of error thus could be verified and determined by reference to this transcript. “The rules applicable to briefs of evidence incorporated in bills of exceptions do not apply to petitions for certiorari. . . A petitioner for certiorari, if he sets forth plainly what transpired upon the trial, may make his statement of the evidence as full as the facts will justify, without the apprehension of any other penalty than the probability of confusing the reviewing court by an unnecessary mass of irrelevant matter. ” Meacham v. State, 7 Ga. App. 713 (68 S. E. 52). The petitioner in the instant case not being chargeable with any failure to make the assignments of error complete and properly verified in and of themselves, so as to render a reference to other portions of the record unnecessary, the general rule of practice that assignments of error must be complete in tliemselv.es, without such additional reference, cannot be enforced against the petitioner.

2. “In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was maue to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.” Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); Artesian Lithia Water Co. v. Central Bank, 138 Ga. 618 (75 S. E. 646). “In respect of an unlawful limitation upon the right of cross-examination, where counsel are prevented from asking material and proper questions, and where it cannot be expected that he can state as fully what reply is anticipated as in case of a witness introduced by himself,” the rule previously stated does not apply. Bell v. Felt, 119 Ga. 498 (1), 500 (46 S. E. 642); Griffin v. Henderson, supra; Tillman v. Bomar, 134 Ga. 660 (2 a) (68 S. E. 504; Becker v. Donalson, 133 Ga. 864 (67 S. E. 92); Civil Code (1910), § 5871. The exception of the defendant to the court’s refusal to permit counsel, on cross-examination of the plaintiff’s secretary and treasurer, who was the plaintiff’s witness, to question him as to the insolvency of subscribers to the capital stock at the time their subscriptions were taken, and to whether they were apparently able to pay the subscriptions for which they subscribed, for the purpose which counsel stated, of showing- “whether they were really making bona fide subscription to the stock,” falls within the rule recognized by the Supn-eme Court in the eases cited, and is a proper assignment of error.

3. “Where the plaintiff bases his right to recover upon an express contract, which is entire and indivisible, he cannot recover unless he has performed all his obligations under the contract.” Dolan v. Lifsey, 19 Ga. App. 518 (5) (91 S. E. 913). In this suit by a corporation against a subscriber to its capital stock, upon his stock subscription, the burden was upon the plaintiff to show a compliance upon its part with an express condition in the contract that “at least fifty thousand dollars in bona fide subscriptions shall be obtained before this subscription shall be binding.” Where the trial judge excluded testimony by the defendant, tending to show that certain of the subscriptions were not bona fide made and received, for the reason that the subscribers were insolvent and not apparently able to pay their contracts of subscription at the time when such contracts were thus knowingly taken, and that such amounts would have brought the capital stock below tne agreed minimum amount, such evidence was material, and its exclusion was error prejudicial to the defendant. Branch v. Augusta Glass Works, 95 Ga. 573 (6), 580 (23 S. E. 128); Hendrix v. Academy of Music, 73 Ga. 437 (3); 7 R. C. L. 234, 229, 230; 14 Corpus Juris, 543. Material testimony for the defendant, which with other evidence might have raised an issue under the plea, having been erroneously excluded, it was error to direct a verdict for the plaintiff. Fountain v. Hagan Gas Engine Co., 140 Ga. 70 (2 a) (78 S. E. 423); Proctor & Gamble Co. v. Blakely Oil Co., 128 Ga. 606, 616 (57 S. E. 879). The superior court properly sustained the defendant’s certiorari upon this ground.

4. While the general practice on the affirmance of a main bill of exceptions is to dismiss the cross-bill, the exceptions taken in the instant cross-bill will be determined, since they involve the striking of an essential paragraph of the defendant’s answer, and certain rulings upon essential evidence involving questions likely to recur in the new trial granted by tne superior court, and since that court, in granting a new trial on only one of the grounds of the certiorari, overruled in express terms all the other grounds, now embodied in the cross-bill. Thornton v. Travelers Ins. Co., 116 Ga. 121, 123 (42 S. E. 287; 94 Am. St. R. 99); Smith v. Maddox Bkg. Co., 8 Ga. App. 288 (2), 290 (68 S. E. 1092); Miller v. Brooks, 120 Ga. 232 (47 S. E. 646).

5. The municipal court properly struck the 9th paragraph of the defendant’s plea and answer, wherein it was set up that the corporation’s promoter who took the defendant’s subscription had made to the defendant certain representations and promises as to the purposes of the corporation, and that a specified rebate on goods and annual dividend on stock would be received, “none of which promises and representations have in any way been complied with,” although the plaintiff had been conducting its store for more than twelve months, and that the promises and representations were false and fraudulent. The alleged “representations and promises,” being merely promises, and not relating to existing facts, could not have constituted fraud such as would invalidate the written contract of subscription. Weston v. Columbus So. Ry. Co., 90 Ga. 289 (15 S. E. 773); Bell v. Americus R., 76 Ga. 754, 756; Cunningham v. Huson Ice Co., 26 Ga. App. 302 (105 S. E. 860).

6. The admission of the stock-book of the plaintiff corporation, by which it was sought to show that the $50,000 of minimum capital stock had been subscribed for, and to which objection was taken on the ground that the written stock subscriptions were the best evidence, could not have prejudiced the rights of the defendant, and its admissibility will not be determined, since it appears that the fact thus sought to be shown was not in dispute, the defendant himself eliciting the fact, upon cross-examination of a witness, that the subscriptions amounted to $50,200.

7. “If a written subscription for stock was, or appeared to be, complete within itself, a subscriber could not go outside of it, so far as concerns the conditions upon which the subscription was made; but where the writing does not purport to contain all the stipulations of the contract, parol evidence is admissible to prove other portions thereof not inconsistent with the writing.” Hendrix v. Academy of Music, 73 Ga. 437 (1); Dolson v. Savannah Pure Food Co., 140 Ga. 161 (4), 162 (78 S. E. 801). The instrument here involved provided in terms that “this subscription contract is made and entered into upon the following conditions and stipulations only.” The municipal court properly excluded evidence seeking to add other alleged parol conditions and undertakings.

8. “In a suit by a corporation to collect capital stock subscribed, evidence of the value of that or any other stock is irrelevant.” South Ga. R. Co. v. Ayres, 56 Ga. 231, (2), 234. Evidence tending to show that the plaintiff corporation had never declared a dividend was properly excluded.

9. “The preliminary agreement to form a corporation and take stock therein is not a contract by the subscribers with each other,” and “is a mere offer to the corporation not yet in existence, and is revocable by any subscriber until the organization of the corporation, which operates as an acceptance of the offer.” Since “all of the subscriptions are mere offers, the withdrawal of one offer will not affect the others.” A secret agreement by a promoter with a subscriber to release him from his subscription, made after his subscription would otherwise be enforceable, is not valid against the corporation. National Bank v. Amoss, 144 Ga. 425 (4), 433 (87 S. E. 406, Ann. Cas. 1918A, 74); Allen v. Hastings Industrial Co., 2 Ga. App. 291 (58 S. E. 504). In the instant case the defendant in his plea set forth “that the plaintiff released some of the co-subscribers of the defendant without his knowledge or consent, and this defendant was thereby himself released from his subscription to the capital stock herein sued on.” The defendant excepts to the exclusion of evidence by which he sought to show agreements by a promoter of the corporation to release two of the subscribers to its capital stock. In so far as such proof was offered in support of the averment quoted in the plea, it was, under the rule stated, inadmissible. In so far, however, as it tended to show that the subscriptions of certain of the stockholders were not bona fide, in that they were not in good faith given and received and intended to be enforced by the corporation, or were intended to be revoked and withdrawn by the. subscriber before the organization of the corporation, as he would have had the right to do, such intention being known to the corporation or its organizers, or that subscriptions were actually withdrawn by the subscribers before the organization of the corporation, such evidence would be admissible upon the theory of showing that the condition in the defendant’s contract of subscription had not been complied with, viz., that “at least fifty thousand dollars in bona fide subscriptions shall be obtained before this subscription contract shall be binding,” provided it was further shown that the amount of subscriptions which for this reason should be deducted would reduce the minimum capital stock below the agreed amount. Inasmuch as the defendant confined his efforts to showing releases of two subscribers, whose aggregate subscriptions amormted to only $200, and inasmuch as, under the undisputed evidence, $50,200 in capital stock had been subscribed, the deduction of the alleged releases would not have reduced the capital stock below the agreed minimum. The exclusion of the evidence tending to show releases, therefore, was harmless to the defendant, in the absence of further testimony as to a material reduction in the capital stock.

Decided February 23, 1924.

10. “A material change in the character of the enterprise or purpose of a proposed corporation releases a subscriber to its capital stock who does not assent to or acquiesce in the change.” Midland City Hotel Co. v. Gibson, 11 Ga. App. 829, 832, 833 (76 S. E. 600). But where there is no material, fundamental, or essential modification, there is no release. National Bank v. Amoss, supra. In this case there was no offer of valid testimony tending to show any material variation between the purposes of tne corporation as set forth in the contract of subscription and as contained in the charter itself.

11. The superior court properly overruled the certiorari upon all grounds except that determined with reference to the main bill of exceptions.

Judgment affirmed on both bills of exceptions.

Stephens and Bell, JJ., concur.

Certiorari; from Bibb superior court—Judge Malcolm D. Jones. December 9, 1922.

Walter DeFore, James 0. Estes, for plaintiff.

T. 8. Felder, for defendant.


text:
    14429.
    Bodenheimer Molasses Co. v. Edenfield.
    Decided February 23, 1924.
    Action for breach of contract; from city court of Swainsboro— Judge Kirkland. February 26, 1923.
    Application for certiorari was denied by the Supreme Court.

      A. 8. Bradley, Guy Alford, for plaintiff.

      Arthur W. Jordan, for defendant.
   Stephens, J.

1. Wliat constitutes reasonable time within which a vendor may, as agent of the vendee, sell personal property under the Civil Code (1910), § 4131, after the vendee’s breach of a contract of sale, is ordinarily a question for the jury. The character and quantity of the commodity contracted to bo sold and the state of the market at the place of delivery are facts to be considered in determining what constitutes reasonable time. That the commoditj' contracted to be sold was syrup in barrels, in quantities in excess of the demand of the market at the time and place of delivery, that it was necessary to remove the commodity to a more advantageous market, that it could only be sold to advantage from time to time in broken lots, that it was impossible to make any immediate sale to the best advantage, and that the vendor had been reasonably diligent in liis efforts to sell the commodity, are facts which would authorize a jury to infer that a sale of such commodity during a period of time from six to ten months after the breach and refusal by the vendee to accept the commodity sold, may have been effected within a reasonable time.

2. In a suit by the vendor against the vendee, to recover for an alleged breach of a contract of sale of personalty, where the vendor seeks to recover the difference between the contract price and the price on resale, as provided in the Civil Code (1910), § 4131, an allegation in the peti- . tion that, upon the breach of the contract by the vendee and upon the refusal of the vendee to accept the goods sold, the vendor notified the vendee that the former would hold the latter liable for “ all differences or losses which it [the vendor] might suffer by reason of said breach,” and duly notified the vendee of the vendor’s intention to sell the commodity, is sufficient to allege a notice by the vendor to the vendee of the vendor’s intention to sell the commodity as the vendee’s agent, and to recover of the vendee the difference between the contract price and the price on resale.

3. The petition otherwise set out a cause of action, and was improperly dismissed on demurrer.

Judgment reversed.

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


text:
    14505.
    Bullard v. Metropolitan Life Insurance Company.
   Jenkins, P. J.

1. In this suit against a life-insurance company, upon a policy providing that it shall “become null and void and the company will return only the premiums which have been received thereunder,” if “the insured within one year from the issue hereof die by his own hand or act, whether sane or insane,” the evidence upon the issue of self-destruction authorized the verdict for the defendant. New York Life Ins. Co. v. King, 28 Ga. App. 607 (112 S. E. 383). Upon the other issue raised in the plea, as to whether or not the insured in his application for insurance made a material false representation, in stating that he had never had disease of the heart,—the evidence likewise, though slight, authorized the verdict.

2. The words “die by his own hand or act,” as used in a life-insurance policy, are in general synonomous with “voluntary suicide,” and convey the idea of intentional self-destruction; but where with suck words is coupled the provision-“whether sane or insane,” it is immaterial whether the insured at the time of the self-destruction was sane, or whether his “mental faculties were so impaired as to destroy his moral responsibility.” Jenkins v. National Union, 118 Ga. 587, 588 (45 S. E. 449); Campbell v. Ætna Life Ins. Co., 20 Ga. App. 281, 283 (93 S. E. 24); 4 Words & Phrases (2d series) 773, 774.

(a) The defendant insurer having sufficiently pleaded and relied upon the express clause in the policy above quoted, and not upon the Georgia statute providing that “ death by suicide . . releases the insurer from the obligation of his contract” (Civil Code of 1910, § 2500), the rule governing a defense under the statute (see Life Asso. v. Waller, 57 Ga. 533), that the self-destruction must have been a conscious, voluntary, intentional, and rational act, was not here applicable. Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (72 S. E. 295). The court did not err in refusing to charge to the effect that the policy would not have been voided “ if the insured took strychnine from an insane impulse which he had not the power to resist;” so that he did not at the time have the power of volition.

(b) The court correctly charged the jury the law pertinent to the defense by the insurer under the express self-destruction clause of the policy, that it should thereby become void whether the insured was sane or insane, and that the burden was upon the defendant insurer to show that the death was not the result of natural or accidental causes, but that the insured died by his own act or hand from taking strychnine with the intention of destroying his life. The requests of the plaintiff to charge certain principles of law in this connection, so far as correct and pertinent, were covered by the instructions given.

3. The court did not err in charging the jury that if the insured “did have a-disease of the heart at the time he signed this application for the issuance of this insurance, then the plaintiff would not be entitled to recover,” for the reasons contended for by the plaintiff in error, to wit: that the court thus failed to construe and define the words “heart disease,” and that the evidence did not warrant such a charge. The exception as certified by the trial judge recites that the plaintiff in effect admitted during the trial that if the insured, at the time of signing the application, in fact had “heart disease,” the representation was of such materiality as would defeat the plaintiff’s recovery. “Where there is some evidence to show the existence of a certain state of facts, it is not error for the court to charge in reference thereto, pimply because the ' great preponderance of evidence tends to show that the supposed state of facts did not in truth exist.” Lyles v. State, 130 Ga. 294 (8) (60 S. E. 578). “There may be facts on which to base a charge of the court, without any direct evidence on the point to which the charge relates. It is enough if there be data from which a legitimate process of reasoning can be carried on.” Holland v. Long, 57 Ga. 37 (3). While there was no direct evidence that the insured had a “disease” of the heart, there was testimony that before applying for the insurance he was in the habit, as he stated on several occasions to one of the witnesses, of taking strychnine “ for his heart. ” Rrom this testimony and other evidence of habitual continued use of this drug, the jury were authorized to infer such an involvement of the organ as warranted the charge. In the absence of a timely written request, it was not error for the court to fail to construe and define the meaning of the term “heart disease.” Holmes v. Clisby, 121 Ga. 241 (48 S. E. 934, 104 Am. St. R. 103); Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 (52 S. E. 898); Zachary v. Zachary, 141 Ga. 404 (81 S. E. 120); Supreme Conclave v. Wood, 120 Ga. 328, 337 (47 S. E. 940).

4. The court charged as follows: “If you find that the defendant company has shown by a preponderance of the evidence that Ross IT. Ogletree made a representation that was not true, why then the plaintiff in this case would not be entitled to recover anything, and you should return a verdict for the defendant.” The only exception taken to this excerpt is that it instructed the jury that if “the insured made any representation that was not true, the plaintiff could not recover, whereas movant contends that even if Ogletree, the insured, made a representation that was not true, before it could avoid the policy it must be shown to be a material representation and so material as to change the nature, character, or extent of the risk to the insurance company; and whether such representations were made, and, if so, whether they were so material, were questions of fact for determination by the jury.” The instruction was not error for the reason assigned, in view of the fact that the only misstatement contended to have been made by the deceased was with reference to a disease of the heart, the application stating that he had no such disease, and in view of the admission by the plaintiff during the trial, shown by the record and referred to in the preceding division of the syllabus, to the effect that if the insured in fact had heart disease, there could be no recovery. The contention of the plaintiff in this connection appears to have been that none of the evidence went further than merely to show some affection or trouble which did not constitute a disease of the heart.

5. “Expert testimony is receivable as to the cause and manner of death.” “The opinion of a non-expert witness, who describes the facts, as to their relation to the cause of death, is receivable in evidence. ” Lanier v. State, 141 Ga. 17 (3), 19, 20 (80 S. E. 5); So. Ry. Co. v. Hutchinson, 136 Ga. 591 (2) (71 S. E. 802); Fincher v. Davis, 27 Ga. App. 494, 495 (4) (108 S. E. 905); Ga. So. & Fla. Ry. Co. v. Walker, 5 Ga. App. 155 (3) (62 S. E. 720); Civil Code (1910), §§ 5876, 5874.

6. Error in the admission of certain evidence ordinarily is cured by the introduction without objection of other testimony to the same effect. Savannah Electric Co. v. Crawford, 130 Ga. 421 (4) (60 S. E. 1056); Bryant v. Sovereign Camp, 29 Ga. App. 359 (2c), 361 (115 S. B. 285); Louisville & Nashville R. Co. v. Lovelace, 26 Ga. App. 286 (3) (106 S. E. 6).

7. Applying- tlie rules stated in the two preceding- divisions of the syllabus, the opinion of the experienced county physician to the effect that the death of the insured resulted from the taking of strychnine poison, which opinion was given after the witness had fully detailed the facts upon which the opinion was predicated, the appearance and condition of the body, which he had seen before it was moved, and the physical facts and circumstances which he ascertained from personal examination of the premises on the morning following the night of the death, was admissible as expert testimony, so far as it related to facts forming the basis of his medical opinion, and as the opinion of a non-expert so far as it related to other facts unrelated to a medical opinion, the witness stating to the jury such facts of his own personal knowledge. Moreover, it appears that after the objection to testimony on this line was made, to the overruling- of which exception was taken, the following question and answer were admitted on redirect examination, without objection and exception: “Q. Is it your medical opinion, you testified on direct examination, I believe, that this man’s death was caused from strychnine poison? A. Yes, sir; I think so.”

(a) Evidence of this witness that the presence of blood on the floor under tlie mouth of the insured resulted from a convulsion “and the jumping and jolting- and rubbing of his mouth on the floor,” was likewise admissible as an expert medical opinion. It furthermore appears that the witness stated also to the jury the surrounding facts and circumstances, and that an examination of the mouth of the deceased showed the presence of serious “Riggs disease,” with a spongy condition of the gums.

8. Exception is taken to the failure of the court “to instruct the jury to the effect that if the jury should find from the evidence that . . the insured died by his own hand or act, the plaintiff was entitled to a verdict for the sum of $14.44, the amount of the semi-annual premium, admitted to have been paid by the insured to the insurance company, and admitted in its answer to be due if he should die by his own hand or not.” The petition in no wise sought or prayed for the return of premiums paid, under the clause of the policy providing that, “if the insured within one year from the issue hereof dies by his own hand or act, whether sane or insane, this policy shall become null and void, and the company will return only the premiums which have been received thereunder.” The allegations and prayers sought only the recovery of the $1000 liability provided for in case of death, except as indicated, and of $250 and $200 as penalty and reasonable attorney’s fees. While the answer of the defendant admitted that $14.44 in premiums had been paid by the insured, and that “ defendant was only due to return the premium which had been paid,” it merely sets forth that such “sum was tendered to the beneficiary and declined by her,” and does not admit the defendant’s present liability wider the pleadings and issues as raised. There was therefore no error in failing to charge the jury that, if they should find that the insured came to his death by his own hand, they should return a verdict for the plaintiff for the amount of the premium paid to the insurer.

Decided February 23, 1924.

Action upon life-insurance policy; from Muscogee superior court —Judge Munro. March 17, 1923.

G. T. Tigner, George G. Palmer, for plaintiff.

Arnold & Battle, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14559, 14560.
    FIRESTONE TIRE AND RUBBER CO. v. SHORE; and vice versa.

    The plaintiff’s petition as amended, by which he sought to recover as damages profits alleged to have been lost and expenses alleged to have been incurred because of breach of a contract to sell and deliver to him certain tires and other equipment for a motor-truck used in transporting manufactured products from his sawmill, was subject to the demurrer as to that part of the petition which claimed profits lost on account of decreased operation of- the mill.
    As to the item claiming as damages the amount expended by the plaintiff in buying a new truck, the demurrer was properly sustained. It does not appear that he did not receive value for the amount expended, or was damaged by the expenditure.
    No general or nominal damages being sought, and the alleged items of damages not being recoverable, the court erred in not dismissing the petition.
    Decided February 23, 1924.
    Attachment; from city court of Quitman—Judge Baum. April 9, 1923.

      E. K. Wilcox, for plaintiff in. error in main bill.

      Bennet & Harrell, Branch & Snow, contra.
   Jenkins, P. J.

The plaintiff sued for damages consisting of alleged profits lost and expenses incurred on account of the defendant’s failure to comply -with its contract to sell and deliver to the plaintiff certain tires, wheels, and automobile accessories, for the purpose of re-equipping with pneumatic tires his truck, which had been equipped with- solid rubber tires. The amended petition alleged: that in the operation of plaintiff’s sawmill it was necessary for this truck to transport the manufactured product a distance of seven miles to the nearest railroad station; that on account of the sandiness of much of the road the truck had proved inadequate for this purpose; that plaintiff therefore contracted as alleged, with the defendant through its representative, who, at the time was fully informed of the difficulties and conditions and saw the truck at the railroad station; that the contract provided for delivery “at once,” and 10 days was a reasonable time therefor; that notwithstanding repeated promises, the defendant failed to make delivery, until finally the plaintiff, after thirty more days, purchased another truck, which could transport his full manufactured product; that he did not previously make such purchase because of his reliance on the defendant’s agreement; that during the period preceding this purchase of the new truck he was able to cut and manufacture only one half of the normal output of his mill, on account of having to use his four logging teams to haul the manufactured lumber for a part of the day over the sandy portion of the road, the original truck being unable to come nearer than four miles to the mill; that he “had standing continuous orders for the entire output of the mill during all of said time, and that the only condition which prevented the manufacturing of the lumber to the extent of the entire capacity of the mill” was the condition alleged; that at the time the plaintiff bought the new truck, to do the work which his original truck equipped as contracted for would have done, “there was no one on the market able or willing at that time to furnish the wheels and pneumatic tires and other equipment necessary to convert” the truck into such a vehicle as would do the work required; and that when he bought the second truck “it was the only thing which petitioner could have done to meet the situation and to stop the damage and loss which the plaintiff was suffering by reason of the failure of the defendant to furnish said equipment.” He therefore claimed as damages the expense incurred in purchasing the new truck; that is, the difference between the cost of the new truck, after receiving a credit for the exchange of the old truck to the seller, and the contract cost of the tires and equipment agreed to be paid to the defendant; and further, the alleged actual net profits lost by the fifty per cent, inactivity of the mill, the averments being: “that said mill averaged 9,000 feet of manufactured products per day, or 216,000 feet per month, which fact was made known to the said . . agent of the defendant at the time said contract was made,” and “that the net profits to petitioner of said manufactured products at that time was $7 per thousand feet, $1512 per month as a result of the normal output of said mill) and that by reason of the fact that petitioner was able to deliver to the railroad only 50 per cent, of said 216,000 feet per month, actual net profits for the above-mentioned month was only $756, or a loss of $756 to petitioner.” By amendment it was shown that this loss arose, not after the lumber had been actually cut, but by reason of the plaintiff’s failure to cut the percentage stated, on account of the use of his logging teams for a portion of the day in transporting the manufactured product to the station. The defendant demurred both generally and specially to the petition, both generally and particularly attacking each of the items of damage claimed, as being remote, speculative, not in contemplation of the parties, an improper measure of damages, and demurred to the expense item of buying the new truck, as incurred without any notice or knowledge of the defendant. The trial court sustained the demurrers with reference to the purchase of the new truck, and overruled the others. The defendant, by direct bill, excepts to the overruling of the latter; and the plaintiff, by cross-bill, excepts to the sustaining of the demurrer as to the expense item.

1. “Remote or consequential damages are not allowed whenever .they cannot be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are the immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” Civil Code (1910), §§4394, 4395. “Damages which are the legal and natural result of the act done, though to some extent contingent, are not too remote to be recovered, especially where they are such as may be fairly and rfeasonabty considered as arising either naturally from a breach of the contract itself, or as may reasonably be supposed to have been in contemplation of both the parties at the time they entered into the contract as the probable result of a breach of it.” Stewart v. Lanier House Co., 75 Ga. 582 (1 a), 598; Van Winkle v. Wilkins, 81 Ga. 93 (3) (7 S. E. 644, 12 Am. St. R. 299); Gore v. Malsby, 110 Ga. 893 (3), 902, 903 (36 S. E. 315); Waycross Air-Line R. Co. v. Offerman R. Co., 114 Ga. 727 (3), 731 (40 S. E. 738); Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688 (3), 691 (49 S. E. 725); Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483 (2), 489 (60 S. E. 279); Chappell v. Western Ry. of Ala., 8 Ga. App. 787, 790 (70 S. E. 208); Tompkins Co. v. Monticello Cotton Oil Co., 153 Fed. 817, 819-821. But parties will not, as a general rule, be held liable for the current profits of a going manufacturing concern, especially where, under the rule stated, they are neither the immediate fruit of the contract itself, nor would reasonably have been anticipated by the parties as naturally flowing from a breach. Upmago Lumber Co. v. Monroe, 148 Ga. 847 (2) (98 S. E. 498); Willingham v. Hooven, 74 Ga. 233 (3), 248, 249 (58 Am. R. 435); Ga. R. Co. v. Hayden, 71 Ga. 518 (2) (51 Am. R. 274); Consolidated Phosphate Co. v. Sturtevant Co., 20 Ga. App. 474 (2), 476, 477 (93 S. E. 155); Ralph T. Birdsey Co. v. Porter, 18 Ga. App. 391 (3) (89 S. E. 435); Albany Phosphate Co. v. Hugger, 4 Ga. App. 771 (3), 777, 778 (62. S. E. 533). In this case, irrespective of whether or not the measure of damages claimed was the proper legal measure (see Thornton v. Cordell, 8 Ga. App. 588 (4), 70 S. E. 17), and whether or not the petition was defective in failing to show that the plaintiff had lessened his damages by the use of ordinary care and diligence, the profits here claimed were not the direct and immediate fruit of the contract, such as can reasonably be considered as having been in the contemplation of the parties when the contract was made. Civil Code (1910), § 4398; Betts Co. v. Mims, 14 Ga. App. 786 (82 S. E. 474); Mims v. Betts Co., 9 Ga. App. 718, 721 (72 S. E. 271); Ansley v. Jordan, 61 Ga. 483 (1). When the seller failed to deliver the tires and other equipment contracted for, which it is alleged were necessary for the operation of the purchaser’s truck in the business intended, the seller could not have reasonably an-' ticipated that the purchaser would thereupon stop in whole or in part the operations of his sawmill, but rather would have naturally anticipated that other material, in the place of that contracted for, would be purchased, and that the purchaser, as his measure of damages, would charge the seller with the difference between the contract price and the market price at the time and place of delivery.

(a) “If there is no market at the place of delivery at the time fixed therefor, resort may be had to the nearest available market, with cost of transportation to the place of delivery usually added.” Twin City Lumber Co. v. Daniels, 32 Ga. App. 578 (2), 582 (96 S. E. 437). If the allegation of the instant.petition, that “there was no one on the market able or willing at that time to furnish the wheels and pneumatic tires and other equipment necessary to convert” the plaintiff’s truck from one carrying solid tires into one with pneumatic tires, could be taken as alleging that the tires, equipment, and work necessary to fit the same could not have been bought or obtained in any available market, rather than as an averment merely that they were not purchasable on the market at the place of delivery, it still does not appear why the plaintiff purchaser did not use or could not have used other means of transporting his lumber to the railroad station without stopping or lessening his mill operations, or why, if the defendant seller was in fact the only dealer in the equipment, the plaintiff could not have rented a suitable truck, or wagons, logging teams, or other practical method of transportation. The allegation that when the plaintiff bought the new truck “it was the only thing which petitioner could have done to meet the situation and to stop the damage and loss which the plaintiff was suffering by reason of the failure of the defendant to furnish said equipment,” as a general averment or conclusion of the pleader, is controverted by the further specific allegation in the petition that the plaintiff was in fact able to transport one half of the product of the mill to the station by using his four logging teams during a portion of the day for that purpose.

(6) Under the rules stated, it was error to overrule the demurrers to that portion of the petition which claimed profits lost on account of the decreased operations of the mill.

2. The court properly sustained the demurrer as to the item claiming as damages the amount expended in purchasing the new truck. It appears that the plaintiff acquired this truck as his own property, but it nowhere appears that he did not receive value for. the amount expended, or that he incurred, any damage in paying the amount of the cost price.

3. Neither of the items of damage claimed being recoverable: under the facts alleged, and no general or nominal damages being; sought, the petition should have been dismissed. Twin City Lumber Co. v. Daniels, supra.

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

Stephens and Bell, JJ., concur.


author: Per Curiam.

text:
    14196.
    MITCHELL v. OWEN.
    The charge of the court as to what would constitute a waiver of tender of purchase-money of'the land which the plaintiff had contracted to deed to the defendant was not prejudicial to the plaintiff.
    The evidence authorized the verdict allowing the defendant, as a credit upon the purchase-money, damages because of the plaintiff’s refusal to make the deed; and the court did not err in overruling the plaintiff’s motion for a new trial.
    Decided February 25, 1924.
    Complaint; from Pike superior court—Judge Searcy. December 9, 1922.
    Certiorari was granted by tbe Supreme Court.
    Mitchell’ sued Owen for the balance of the purchase price of land under the following contract: “This agreement, made and entered into this August 24th, 1918, witnesseth: that for and in consideration of the sum of twenty-five dollars ($25.00) this day paid by E. M. Owen to W. H. Mitchell, receipt whereof is hereby acknowledged, ■ the said W. H. Mitchell does hereby agree to deed to the said E. M. Owen lots 43 and 44 in the 9th district of Pike county, Georgia, by December 1st, 1918, for the sum of twelve thousand and no/100 dollars ($12,000.00).” Owen pleaded that he resold the land at a profit and tendered the full balance due on the contract; that Mitchell refused to make a deed to him as provided by the contract, and that he lost the difference between the price he was to pay for the land and the price at which he sold it; and he prayed for damages for this amount. When the case was tried Mitchell denied that the balance due had ever been tendered him, and introduced evidence to show that at the time the deed was to be made he (Mitchell) was in a sanitarium, and his mental condition was such that he could not execute a deed. The jury found in favor of Owen’s plea of recoupment, and allowed him credit for the full amount of damages claimed, and returned a verdict for the balance of the purchase-money due after making this deduction. Mitchell’s motion for a new trial was overruled, and he excepted.

      J. F. Redding, for plaintiff.

      Cleveland & Goodrich, for defendant.
   Per Curiam.

(After stating the foregoing facts.) One of the grounds of the motion for a new trial in this case alleges that the court erred in the following instructions to the jury: “If, at any time before the plaintiff was required by the terms of the contract to make a deed upon a receipt of balance of the purchase-money due, the plaintiff had determined in his own mind and declared his purpose not to make a deed to this land, and this was communicated to the defendant, and he believed it to be the act or attitude of the plaintiff with reference to the contract, this would relieve him from the necessity of making a tender of payment, but whether this be true or not is a question of fact and is for you to determine, and is not for the court. You take the evidence and all the facts and circumstances that appear in proof, if they do appear, .and you will say whether the plaintiff in good faith intended to live up to his contract and perform the obligations to it, or whether he repudiated it and declared that he had repudiated [it], and whether or not this was communicated to the defendant and he believed and acted on it.” It is insisted that this portion of the charge is error “for the reason that there was no evidence in the case to authorize such a charge, and that there was no evidence in the case that the defendant acted upon such information, but the contrary appears.”

Conceding that the last part of this charge, viz., “and he believed and acted on it,” was error, it was not prejudicial to the plaintiff. On the contrary, it was favorable to him. Under repeated decisions of the Supreme Court and of this court a tender is waived when the party to whom it is to be made makes any statement which amounts to a repudiation of the contract, and it is not necessary for the other party to show that he “believed and acted upon it.” Biggers v. Pace, 5 Ga. 171 (2), 175 (2); Hunt v. Formby’s, 43 Ga. 80 (2); Arnold v. Empire Insurance Co., 3 Ga. App. 685 (5) (60 S. E. 470); Blount v. Lynch, 24 Ga. App. 217 (2) (100 S. E. 644).

None of the other special grounds of the motion for a new trial requires a reversal of the judgment below. Some of these grounds are too defective to be considered by this court, and the others are without substantial merit.

The verdict was authorized by the evidence, and the overruling of the motion for a new trial' was not error.

Judgment affirmed.

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


text:
    14321.
    Mizell et al. v. Schubert et al.

    Decided February 25, 1924.
    Action for breach of warranty; from Charlton superior court-judge Summerall. January 27, 1923.
    The action was for breach of the warranty in a deed to lot of land No. 57 in the 10th land district and first section of Charlton county, Georgia. The plaintiffs alleged that at the time of the execution of the deed there was a paramount outstanding title to the land in the Agricultural Land Company, and they introduced in evidence the record of a suit brought by that company against J. W. Vickery, lessee of these plaintiffs, in which the company set up title to the land and obtained a permanent injunction against Vickery as a trespasser thereon.

      Parker d? Parker, Cowart & Vocelle, for plaintiffs in error.

      A. S. McQueen, Wilson & Bennett, contra.
   Per Curiam.

1. While the plaintiffs alleged in their petition that the defendants had notice of the pendency of the suit of the Agricultural Land Company v. J. W. Vickery, and while the proof did not demand a finding in favor of this allegation, the plaintiffs also set up in their petition that a paramount outstanding title to the property had been asserted against them, to which they were compelled to yield as a matter of legal duty, and this allegation was sustained by uncontradicted evidence. It was immaterial, therefore, that the plaintiffs’ evidence did not demand a finding that the defendants had notice of the pendency of the suit in question. Under the facts of the ease (the proof of the yielding to outstanding paramount title) that theory could have been abandoned by the plaintiffs as being immaterial. When they showed an outstanding title to which they had to yield, a verdict in their favor was demanded. See McMullen v. Butler, 117 Ga. 845 (45 S. E. 258); Clements v. Collins, 59 Ga. 124; Brooks v. Winkles, 139 Ga. 732 (78 S. E. 129).

2. Under all the facts of the case, and the act of the General Assembly (Acts of 1S55-6, p. 135) transferring certain lots of land from Ware county to Charlton county, this court can take judicial cognizance of the fact that the land in question was in Charlton county, and the trial judge did not invade the province of the jury when he determined that the land was in Charlton county. See Stanford v. Bailey, 122 Ga. 494 (50 S. E. 161). The decision in Peters v. West, 70 Ga. 343 (5), is distinguished by its facts from this case.

3. The court properly directed a verdict in favor of the plaintiffs.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    14480.
    DAVIS, trustee, v. STURGIS, guardian.
    Under the ruling of the Supreme Court reviewing on certiorari the judgment of this court in this case (30 Ga. App. 655), that judgment is vacated, and the judgment of the superior court is affirmed.
    Decided February 25, 1924.
    Complaint; from Morgan superior court—Judge Park. March 5, 1933. See 30 Ga. App. 655.

      Williford & Lambert, for plaintiff.

      M. G. Few, for defendant.
   Broyles, C. J.

A decision in this case was rendered by this court, reversing the judgment of the superior court. See 30 Ga. App. 655 (118 S. E. 700). A writ of certiorari was granted by the Supreme Court; and upon a hearing of the case that court reversed the judgment of this court. The headnotes of the Supreme Court's ruling are as follows:

“1. It is the duty of a guardian to maintain and, according to the circumstances, to educate the ward.

(a) In so doing the guardian should be allowed all reasonable disbursements and expenses suitable to the circumstances of the orphan -committed to his care; but such expenses must not exceed the annual profits of the estate, except by the approval of the ordinary previously granted.

“(b) One of the modes of giving the ordinary's consent to the expenditure of more than the annual profits of the ward's estate for the expenses of maintenance and education is by approving the regular annual returns of the guardian when the returns show on their face that the expenses have exceeded the income.

“3. The guardian cannot borrow money and bind his ward therefor; nor can he by any contract, other than those specially allowed by law, bind his ward's property or create any lien thereon.

(a) A contract for the improvement of the real estate of the ward by the erection of buildings and improvements thereon is not one which the law authorizes the guardian to enter into and charge the ward's estate therefor.

“(b) Guardians cannot erect such buildings and improvements with their individual funds and make such expenditures a charge upon the corpus of the estate of their wards, even with the approval of the ordinary.

“(c) Where a mother, who is the guardian of a minor daughter, erects buildings and other improvements upon the lands of such minor, paying therefor with her individual funds, and makes prompt and regular returns showing such expenditures, which are in excess of the income from the ward’s estate, which returns are duly approved by the ordinary and which show an alleged indebtedness in favor of the guardian against the ward, a trustee in bankruptcy of the mother cannot bring an action at law, alleging the above facts, to recover from the guardian, as such, such alleged indebtedness, and charge the estate of the minor with payment thereof.

“3. The judgment of the Court of Appeals is reversed.” For the full opinion see Sturgis v. Davis, 157 Ga. 352 (121 S. E. 318). Under the ruling of the Supreme Court the judgment formerly rendered by this court is hereby vacated; and the judgment of the superior court is affirmed.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.