text:
    18889.
    NISSENBAUM v. THE STATE.
    Decided June 12, 1928.

      Hooper & Hooper, for plaintiff in error.

      John A. Boylcin, solicitor-general, J. W. LeCraw, E. A. Stephens, contra.
   Bloodworth, J.

The indictment in this ease is based on section 247 of the Penal Codo of 1910, and in the first count charges that the accused “did unlawfully, feloniously, and fraudulently make and draw a certain bill of exchange in the fictitious name of J. W. Ellison, as cashier of the Corn Exchange Trust Co., of Chicago, Illinois, being in form and substance as follows, to wit: ‘ The Corn Exchange Trust Co., Chicago, Illinois. No. 4025. Nov. 30, 1927. Pay to the order of Abe Greenberg $1500.00. Fifteen hundred dollars only. Cashier’s Cheek. J. W. Ellison, Cashier;’ said act being done with intent to defraud.” While there are two other counts based upon the same section, the first is the only one discussed in the briefs of counsel for either the plaintiff in error or the defendant in error. A demurrer to the indictment was overruled. The only ground of the demurrer which is insisted upon by counsel for the plaintiff in error is as follows: “Because the paper set forth in said count of the indictment as a bill of exchange is in form and substance a bank check, drawn upon what is shown, by a copy attached therein, to be a bank, and not a bank of this State or an incorporated bank whose notes or bills are in circulation in this State.” Counsel for the plaintiff in error insists that the writing involved in this case is an ordinary bank check, and that the law makes no provision for an indictment whete such a check is drawn in a fictitious name, and plants his argument upon the fact that in Townsend v. Slate, 92 Ga. 732, 735 (19 S. E. 55), Justice Simmons said: “The paper in question here being an ordinary bank check, it follows that a conviction under section 4453 [§ 247 of the Penal Code of 1910] was improper, and the court below erred in overruling the motion for a new trial.” The question then arises, is the “cashier’s check” upon which the indictment in this case is based “an ordinary bank check?” In addition to what is said in the Townsend case as to the difference between an ordinary check and a bill of exchange, Judge Nisbet, in Daniels v. Kyle, 1 Ga. 305, which is cited in the Townsend case, said: “A check differs from a bill of exchange in these things, to wit: it has no days of grace, and requires no acceptance, distinct from prompt payment. The drawer of a check is not a surety, but a principal debtor; he is an original undertaker to pay, and the check is the evidence of his contract.” (Italics ours.)

In Farmers Bank v. Johnson, 134 Ga. 486, 490 (68 S. E. 85), Justice Lumpkin said: “In many respects a check is like an inland bill of exchange, but there are some differences. A check has been defined to be a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds for the payment at all events of a certain sum of money to a certain person named therein, or to him or his order, or to bearer, and payable instantly on demand.’ 2 Daniel on Negotiable Instruments (5th ed.), § 1566. A check does not have to be accepted upon presentment, but paid, if good and if properly presented. One of the differences between a common check and an ordinary inland bill after its acceptance is in relation to the drawer. In the former the drawer is the principal debtor, and the check purports to be made upon a fund deposited; m the latter the acceptor is the principal debtor (Italics ours.) Black’s Law Dictionary defines the acceptor as ‘'The person who accepts a bill of exchange (generally the drawee), or who engages to be primarily responsible for its payment.” (Italics ours.) This definition from Black’s dictionary is in complete accord with the following which is held in the Bank of Statham v. National Bank of Athens, 143 Ga. 293 (84 S. E. 966): “A cashier’s check is a prrimarry obligation of the bank, and the holder thereof may sue the bank as maker, without joining the payee or indorsers in such suit.” (Italics ours.) In Holland v. Mutual Fertilizer Co., 8 Ga. App. 714, 718 (70 S. E. 151), Judge Russell said: “We do not know that the phrase banker’s cheek’ has any place in legal or financial terminology, but, giving the term its popular significance, it can only mean a check drawn by a banker, as distinguished from a bank check, which may be drawn on a bank by anybody. As we understand it, a banker’s cheek would be one in which the drawer was a banker, or the duly authorized agent of a bank, drawn on funds either in the bank of which he was an •officer, or on those of some correspondent bank in which his bank had funds deposited or an account entitling the bank he represented to a credit. If such a check as this had been made payable to the plaintiff or its counsel and delivered to them, it would not haée been within the power of the debtor to revoke it, or to stop its payment by notice. It would have been a bill of exchange purchased by him.” (Italics ours.) Among the cases in which it has been held that a cashier’s cheek is merely a bill of exchange are the following: Drinkall v. Movius State Bank, 11 N. Dak. 10 (88 N. W. 724, 726, 57 L. R. A. 341, 95 Am. St. R. 693); Walker v. Sellers, 201 Ala. 189 (77 So. 715). From the foregoing it will be seen that the writing upon which this indictment is based is not an ordinary bank check, but is such a “bill of exchange” as will support an indictment under § 247 of the Penal Code of 1910.

Repeatedly this court and the Supreme Court have held that “each special ground of a motion for a new trial must be complete and understandable within itself, without reference to any other part of the record. This court is not required to look beyond the ground itself to learn the facts or to ascertain error.” Russ v. Stale, 35 Ga. App. 476 (133 S. E. 748). Under this well established principle this court is not required to pass upon either the first or the second special ground of the motion. To ascertain what paper is referred to in ground 1 as “such paper” and “that paper,” it would be necessary to look to other parts of the record to learn the facts; and without looking beyond what appears in ground 2 we could neither learn the facts nor ascertain error. However, the admission of this evidence would not require the grant of a new trial, because two other witnesses (Lester and Eraser) each testified, without objection, that the check in question was “a bill of exchange.” In addition, if we consider these questions and answers as referring to the writing which is the basis of the prosecution, the admission of this evidence was not harmful to the cause of - the plaintiff in error, for the answers of the witnesses simply stated what was already fixed by the law as shown by the cases referred to in the first division of this decision, and that is that the writing in question is a bill of exchange.

Even if the excerpt from the charge embodied in ground 3 of the motion for a new trial is erroneous, a new trial should not be granted because of this alleged error, as the evidence demanded the verdict. In Cason v. State, 16 Ga. App. 820 (86 S. E. 644), the 4th headnote is as follows: “The evidence demanded the conviction of the accused, and it was therefore immaterial what the judge charged or failed to charge the jury.” See also the opinion in that case (pp. 824, 825). In Hagar v. State, 71 Ga. 164, headnote 3 a is as follows: “The verdict was required by the evidence, and in such cases, even if there be error in the charge, it will not necessitate a new trial.” See also the opinion in that case, and cases cited on page 167; Jones v. State, 105 Ga. 649 (31 S. E. 574); Barrow v. State, 80 Ga. 191 (5 S. E. 64).

Judgment affirmed.

Broyles, G. J., and, LuJce, J., concur.


source: Caselaw Access Project

author: Bkovles, C. J.

license: Public Domain

text:
    18892.
    Henderson v. The State.
   Bkovles, C. J.

There being no evidence that the “home brew” found in the defendant’s place of business was an intoxicating beverage, his conviction of possessing intoxicating liquors was unauthorized, and the refusal to grant him a new trial was error.

Decided June 12, 1928.

Rehearing denied July 10, 1928.

M. B. Eubcmlcs, for plaintiff in error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    18893.
    18894.
    LACY v. THE STATE. SPRAGGINS v. THE STATE.
    Decided June 12, 1928.

      Porter & Mebcme, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Luke, J.

Lacy and Spraggins were each convicted of possessing intoxicatng liquor, and each contends that the court erred in charging as follows: “But it is for you to determine the credit to be given the testimony of a witness, though impeached from general bad character, or for any other cause known to the law. If you find a witness has been impeached in this case, it is still for you to say whether you believe such testimony or not, under the circumstances and facts of this case.” It is contended that in using the words, “though impeached,” etc., in the first sentence of the quoted excerpt, the court told the jury that it was their duty to determine the credit to be given the testimony of an impeached witness, “and in effect nullified the right and duty of the jury under the law to pass upon the question of whether a witness had been successfully impeached or not.” It is further urged that the effect of the last sentence of the excerpt was to tell the jury that it was their duty to say whether or not they believed impeached testimony, to destroy the effect of the impeaching testimony, and to require the jury to accept and believe the testimony of a witness wh > had been impeached.

1. The foregoing charge was inaccurate and incomplete, in the light of the following rule laid down in Smith v. State, 109 Ga. 479 (2) (35 S. E. 59): “Giving the word ‘impeached’ its strictly proper signification as applied to witnesses, a witness whose ‘unworthiness of credit is absolutely established in the mind of the jury’ is impeached and ought not to be believed unless corroborated. It is, however, always a question for them whether or not any witness has been impeached.” See also Powell v. State, 101 Ga. 9 (5) (29 S. E. 309, 65 Am. St. R. 277); and Duncan v. State, 97 Ga. 180 (25 S. E. 182).

2. Viewing the charge as a whole and the excerpt under consideration, in the light of Ector v. State, 120 Ga. 543 (2) (48 S. E. 315), the words “though impeached,” in the first sentence of the excerpt, are equivalent to “though sought to be impeached,” and the word “impeached,” in the last sentence of the excerpt, has the significance of “attacked;” and the charge was not calculated to mislead the jury for any reason assigned.

3. The foregoing disposes of the only special assignment of error, and the evidence practically demanded the verdict of guilty in both cases.

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur.


author: Bloodworth, J.

text:
    18900.
    GRIGGS v. THE STATE.

      Decided June 12, 1928.

      B. B. Shropshire, J. 0. Ewmg, for plaintiff in error.

      John A. Boylcm, solicitor-general, J. W. LeQraw, John H. Hudson, contra.
   Bloodworth, J.

The first headnote' only will be enlarged upon. By rulings of this court it is settled that in passing upon a case the jury have a right to believe any part of the statement of the defendant and to disbelieve other parts thereof. Smallwood v. State, 17 Ga. App. 516 (2) (87 S. E. 761). If the jury believed that part of the statement of the accused in which he said that the deceased made an assault on him, and it does not appear that the deceased had any weapon, the statement of. the defendant leaving this in doubt, and the jury believed that the defendant shot the deceased because of that assault or because he feared that the deceased would injure him, his wife, or his child, without regard to the extent of the injury, the law of voluntary manslaughter was involved, and it was not error for the judge so to instruct the jury. Browning v. State, 31 Ga. App. 150 (120 S. E. 649), and cit. In Dennis v. State, 93 Ga. 303 (20 S. E. 315), the headnote is as follows : “As the evidence in behalf of the accused, if true,- showed that an actual assault was committed upon him by the deceased, and that the homicide took place whilst that assault was in progress, the law of voluntary manslaughter was involved in the ease, and it was not error to give it in charge to the jury.” In connection with that case the following facts are stated: “There was testimony for defendant that deceased was assaulting him with his knife, and was advancing towards him at the time as he stood in the door of his own house, and that he suddenly seized a shotgun from the inside of the house and fired on deceased as the latter advanced.” In Sinyard v. State, 17 Ga. App. 285 (86 S. E. 657), this court said: “Even under the statement of the defendant himself, the jury were authorized to find that the homicide was committed in repelling a mere assault, and the law of manslaughter was applicable.” “It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement. that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury' fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wayne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 (61 S. E. 996); Strickland v. State, 133 Ga. 76 (65 S. E. 148); Pyle v. State, 4 Ga. App. 811 (62 S. E. 540).” Cain v. State, 7 Ga. App. 24 (65 S. E. 1069). In Griffin v. State, 18 Ga. App. 462 (89 S. E. 537), it was said: “If-there be any evidence to create a doubt, however slight, as to whether the offense is murder or voluntary manslaughter, instructions as to the law of both these offenses should be given.” And also, “if there is anything deducible from the evidence or from the defendant’s statement at the trial, that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter.”

The propositions of law and the facts in the case of Chestnut v. State, 112 Ga. 367 (37 S. E. 384), are so closely analogous to those in the ease under consideration, that we quote a part of the 4th headnote and liberally from the opinion in that case, feeling that to do so will be helpful in emphasizing the law as applied to the facts of the case now under consideration. “When the defense to an indictment for murder was that the accused did the killing under the fears of a reasonable man that a felony was about to be committed upon him, and his own statement at the trial left it open to question whether the alleged assault upon him therein set up as the ground of that fear was, as the same appeared to him at the time of the homicide, felonious or of a less serious nature, and when, in view of all the evidence and the statement, the jury would have been warranted in finding that the accused did not really entertain any such fear, but that there was a minor assault upon him sufficient to justify the excitement of passion, it was not erroneous to charge upon the law of voluntary manslaughter.” “Where one kills to prevent a mere assault, the slayer is guilty, under.our law, of voluntary manslaughter. Under this statement of the accused, whether the deceased in fact had in his hand a deadly weapon when he advanced upon the accused is left in doubt. If he did have a deadly weapon and advanced upon the accused with a threat, and the circumstances indicated a present intention to use the same, then the jury might well have found that the accused entertained the fears of a reasonable man that the deceased intended to commit a felony upon him. But if in fact the deceased did not have a deadly weapon when he advanced, then the jury might well have found that the alleged fear was not reasonable or well founded, or that no such fear really existed at all; and in either of these events the homicide was not justifiable. So that the question whether the deceased was armed with a deadly weapon or not, at the time the accused says that he advanced upon him, becomes material. The manner of the advance, as well as the weapon with which the deceased was armed, would be circumstances which indicated his intention; and if in fact he had no weapon at the time and there was no such fear, or, if there was, there were no reasonable circumstances to authorize it, then, while the advance might well have been considered the equivalent of an assault, it could not have been more; and if an assault, then the slaying of the deceased to prevent that assault would have been voluntary manslaughter. So that, under the statement of the accused himself, it was left in doubt whether or not, at the time the deceased advanced upon him, the accused shot him to prevent the commission of a felony or to repel a bare assault; and even under the statement, it was proper for the judge to instruct the jury, as he did, the law in relation to justifiable homicide under the fears of a reasonable man that a felony was about to be committed on his person; and in view of the other contingency, that is, that it was not a dirk or other weapon which the deceased had in his hand, it could not have been error for the judge to instruct the jury as to the law of voluntary manslaughter, so that they might grade the homicide according to their belief, from the evidence and the statement, whether the killing was done under reasonable fears, to prevent the commission of a felony, or to repel an assault. This is what he did, and in doing so, in our judgment, he committed no error.”

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


author: Broyles, O.- J.

text:
    18901.
    Williams v. The State.
    Decided June 12, 1928.
   Broyles, O.- J.

The verdict was authorized by the evidence and the court did not err in overruling the motion for a new trial which was based upon the usual general grounds.

Judgment affirmed.

Luke and Bloodioorth, J.J., coneur,

W. K. Kimzey, Sam Kimzey, for plaintiff in error.

Robert McMillan, solicitor-general, contra.


text:
    18902.
    WYNN v. THE STATE.
    Decided June 12, 1928.

      IF. A. Bampier, for plaintiff in error.

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

Wynn was convicted of possessing intoxicating liquor, the court overruled his motion for a new trial, based upon the usual general grounds and certain special grounds, and he excepted.

The gist of the evidence follows: The defendant and his wife lived with his father and the father’s wife. According to the father’s testimony, he owned the residence and premises, but the defendant had access to the entire place. The father further testified that the whisky found did not belong to him or to his wife. The place contained about two acres of land, the lot was “kinder long,” and the garden was about twenty steps from the house. On the same premises was a corn patch, which was fenced off from the garden. Following tracks leading from the residence, an officer found in the garden about two gallons of whisky, one gallon jug of whisky being in a hole covered with a board, and a three-gallon jug, with a small amount of whisky in it, being buried in the same way. On the back side of the premises' a pint bottle was found.

The evidence supports the verdict, and no reversible error appears, either in the first special ground of the motion for a new trial complaining of the court’s charge upon joint occupancy, or in the only other special ground assigning error upon the court’s ruling upon the introduction of certain character evidence.

Judgment affirmed.

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


text:
    18903.
    Suttles v. The State.
    Decided June 12, 1928.

      G. H. Cormuell, Fred W. Flint, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeGraw, contra.
   Bloodworth, J.

The evidence authorized the verdict rendered, and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Bkoyles, C. J.

text:
    18909.
    Davis v. The State.
    Decided June 12, 1928.
   Bkoyles, C. J.

The evidence did not authorize the defendant’s conviction, and the refusal to grant him a new trial was error.

Judgment reversed,.

Luke and Blood/worth, JJ., concur.

M. B. Eubanks, Porter & Mebcune, for plaintiff in error.

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


text:
    18910.
    Smith v. The State.
   Luke, J.

1. Under the evidence in this ease, the jury had the right to conclude that the defendant took the prosecutor’s money from him privately and without his knowledge, some time during the course of a drunken orgy in which they were indulging, and not at the time the accused (as testified by the prosecutor) knocked him from the wagon in which they were traveling. Therefore the verdict of guilty under the accusation charging the defendant with larceny from the person, .under section 172 of the Penal Code (1910), can not be set aside by this court upon the theory that the defendant was not guilty of the offense charged and could only have been legally convicted of robbery by force under section 148 of the Penal Code. The difference between the two offenses is pointed out in Bowen v. State, 16 Ga. App. 110 (84 S. E. 730).

Decided June 12, 1928.

Carlisle Cobb, for plaintiff in error.

Henry H. West, solicitor-general, contra.

2. The sole special ground of the motion for a new trial is without merit.

Judgment affirmed.

Broyles, G. J., and Bloockoorth, J., concur.


text:
    18911.
    Jones v. The State.
   Bloodworth, J.

1. The evidence was ample to authorize the jury to find that the crime was committed in the county of'Eulton.

2. In charging the jury the judge read to them the material portions of the indictment, including the allegation that the offense was committed “in the county of Fulton and State of Georgia,” and in the course of his instructions told them: “It is for you to determine from the evidence in this case, together with the defendant’s statement, as to whether or not he is guilty of this crime as charged in this hill of indictment.” “On the other hand, if you have a reasonable doubt as to his guilt, or if you believe the State has failed to prove all the material allegations of the indictment to the exclusion of every other material hypothesis save that of his guilt, then it would be your duty to acquit him and find a verdict of not guilty.” (Italics ours.) In the absence of a proper written request for a fuller charge, the instructions given were sufficient. Bailey v. State, 23 Ga. App. 146 (3) (98 S. E. 89); Livingston v. State, 18 Ga. App. 679 (2) (90 S. E. 287).

Decided June 12, 1928.

O. G. Battle, for plaintiff in error.

John A. Boykin, solicitor-general, John H. Hudson, J. W.. LeOraw, contra. ,

3. There was evidence which authorized the judge to charge the jury on the law of conspiracy. “In criminal law, conspiracy is a combination or agreement between two or more persons to do an unlawful act, and may be established by proof of acts and conduct, as well as by direct proof or by express agreement.” Bolton v. State, 21 Ga. App. 184 (94 S. E. 95). See Davis v. State, 114 Ga. 104 (3), 107 (39 S. E. 906); Chance v. State, 156 Ga. 428 (3 a) (119 S. E. 303), and cit.

4. There is some evidence to support the verdict.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    18919.
    Williamson v. The State.
    Decided June 12, 1928.

      Lankford, Rogers & Newton, Brown & Williams, for plaintiff in error.
   Broyles, C. J.

The accused was indicted for burglary. Upon the .trial the State relied entirely upon the contention that some of the articles stolen from the house during the burglary were found in his recent possession. However, the evidence failed to establish that any of the articles so found were the fruits of the burglary. It follows that his conviction was unauthorized, and that the refusal to grant him a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18920.
    PEACOCK v. THE STATE.
    Decided June 12, 1928.

      W. A. Dumpier, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Luke, J.

Sam Peacock was convicted under section 389 of the Penal Code (1910) of maintaining “a gaming house and room where persons were permitted, with his knowledge, to come together and play for money and other things of value.” Over a timely objection that the evidence was irrelevant and hearsay, and that its admission would put the defendant’s character in issue when he himself had not done so, the court permitted several witnesses to testify as follows: “He has the reputation among the officers as a gambler; he bears the reputation of being a gambler.” This evidence was objectionable for the reasons assigned, and the court erred in overruling the only special ground of the motion for a new trial.

Judgment reversed.

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


author: Bloodwobth, J.

text:
    18925.
    Savage v. The State.
    Decided June 12, 1928.

      Burnside & McWhorter, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodwobth, J.

Tlie verdict of guilty was based on evidence which excluded every reasonable hypothesis save that of the guilt of tlie accused, and the court did not err in overruling the motion for a new trial, which was on the general grounds only.

Judgment affirmed.

Broyles, G. J., and Luke, J., coneur.


text:
    18940.
    HEATH v. THE STATE.
    Decided June 12, 1928.

      W. A. Dampier, for plaintiff in error.

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

Freeman Heath was convicted of possessing intoxicating liquor. The controlling question in the case is raised by the first special exception, which alleges that the court erred in failing to charge, without request, the law of circumstantial evidence as contained in Penal Code (1910), § 1010.

The gist of the evidence follows: At a time when no one was about the premises, two officers found about three pints of whisky in an unlocked trunk in defendant’s home, a two-room house, which was itself not locked. The trunk appeared to contain mostly children’s clothes. A brother of the defendant testified, and the defendant stated, that the defendant’s mother-in-law lived in the house with the defendant, and that a doctor had prescribed “some stimulants” for her. The defendant denied all knowledge that there was any whisky in the house. The witnesses for the State did not know who occupied the house and the mother-in-law did not testify.

The evidence tending to connect the accused with the possession of the whisky was entirely circumstantial, and, under the facts of the case, the failure of the court to charge the law of circumstantial evidence was reversible error. Lewis v. State, 6 Ga. App. 205 (64 S. E. 701); Hamilton v. State, 96 Ga. 301 (22 S. E. 528); Toler v. State, 107 Ga. 682 (33 S. E. 629); Harris v. State, 18 Ga. App. 710 (90 S. E. 370); Butter v. State, 17 Ga. App. 769 (88 S. E. 593).

Judgment reversed.

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


text:
    18941.
    Shaw v. The State.
   Bloodworth, J.

1. Several grounds of the motion for a new trial are based upon alleged errors in the instructions to the jury relative to “the doctrine of the fears of a reasonable man acting under the belief that a serious personal injury was about to be inflicted upon him which might amount to a felony.” When all the excerpts from the charge which are embraced in the several grounds of the motion are considered in connection with each other and in connection with the entire charge, it will be found that there is nothing in any of them that requires that the case be tried again. Indeed a portion of the charge is more favorable to the accused than he had any right to expect. Moreover, the record shows that in his statement the accused planted his defense upon accidental shooting.

Decided June 12, 1928.

Frank T. Grizzard, H. F. Sharp, for plaintiff in error.

John A. Boykin, solicitor-general, John H. Hudson, J. W. LeGraw, contra.

2. Even if there was error in the charge on murder, complained of in the 5th special ground, it was harmless, as the verdict was voluntary manslaughter. Dunwoody v. State, 23 Ga. App. 93 (97 S. E. 561); Thompson v. State, 24 Ga. App. 144 (2) (99 S. E. 891).

3. The 6th ground of the motion complains of the refusal of the court to give certain requested instructions to the jury. This was not error, because, so far as correct and pertinent, the requested instructions were covered by the charge given. Hagood, v. State, 5 Ga. App. 80 (3) (62 S. E. 641); Holcombe v. State, 5 Ga. App. 47 (3 c) (62 S. E. 647).

4. There was some evidence to support the verdict, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    18948.
    Waddell v. The State.
    Decided June 12, 1928.
   Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court, each special ground of a motion for a new trial must be complete and understandable within itself; and when, in order to understand the complaint made in one ground, reference to another ground is necessary, the first ground will not be considered by the reviewing court. This ruling disposes of special grounds 1 and 2 of the motion for a new trial.

2. Under the particular facts of the case, the court did not err in refusing to admit the evidence set forth in the 3d special ground of the motion for a new trial, as a part of the res gestee, it being a statement by the wife of the accused to the arresting officers that the whisky just found in his house had been placed there by her without his consent or knowledge and belonged to her.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Terrell & Tenell, for plaintiff in error.

J. F. Hatchett, solicitor, contra.


text:
    18868.
    STEVENS v. VARNER.
    Decided June 13, 1928.

      R. R. Jones, for plaintiff. H. A. Wilkinson, for defendant.
   Luke, J.

As transferee E. L. Stevens sued George T. Varner, trading as Varner’s Auto Tire Hospital, on six promissory notes originally payable to Brenard Manufacturing Company, dated August 30, 1926, payable respectively two, three, four, five, six, and seven months after date, and each being for $65 except the last note, which is for $35. The defendant denied indebtedness, admitted signing the notes, and pleaded that the notes were attached to and part of an order blank, the terms and conditions of which were a part of the notes; that said order blank contained a stipulation that the vendor agreed to repurchase the articles for which the notes were given, if they were returned in good order; and that said vendor did repurchase said articles, thereby cancelling the obligation and making the notes void. Defendant further pleaded that the plaintiff was not a bona fide purchaser for value, without notice, and that if said notes were transferred to him by Brenard Manufacturing Company, such transfer was fraudulent and void in so far as defendant’s interest was concerned. The jury returned a verdict for the defendant, and the plaintiff excepted.

Sworn for the plaintiff, George T. Varner testified that he signed the original notes, “but that they were attached to a contract and agreement that they were to be returned under certain conditions;” that Brenard Manufacturing Company furnished him with a copy of the notes and contract, and that said copy was just as it was when he received it; that the document he signed included the notes, but that they had been detached from it; that he did not sign said copy, which was mailed to him, and did not know who did, but that he did sign the original.

All the notes sued on, indorsed, “Pay to F„ L. Stevens, or order. Brenard Mfg. Co., by L. L. Rhodes,” were introduced in evidence. Defendant tendered in evidence his copy of the contract of which the notes were alleged to be a part. This paper, which was directed to Brenard Manufacturing Company contained the following language: “Upon your approval of this order and agency agreement delivered to me . . the articles mentioned below, which I purchase on the terms and conditions herein set forth and no others, all of which I have read and found complete and satisfactory, and in payment of which I herewith hand you my notes aggregating $360, which you are to cancel and return to me if this sole and complete agreement is not approved by you.” The articles to be delivered under the agency agreement were three radio sets, with accessories, and certain advertising matter. The agreement provided further: “You, the Brenard Mfg. Co., hereby grant to me, and agree as below set forth to assist me in establishing, an agency for this line in my town for a period of three years subject to terms herein. . . If my sales under this agreement do not amount to $360, you agree to either pay me the difference in cash or repurchase the goods purchased hereunder if returned to you in good order, and you are to send your bond in the sum of $360 to protect me in the conditions of this agreement.” Yarner agreed to furnish Brenard Manufacturing Company within thirty days fifty names of persons interested in radio sets, and each sixty days with ten to twenty-five additional names and addresses of persons so interested, and to “take up shipments promptly upon arrival, which can. not be returned without your instructions,” and to use diligence in effecting sales. The last provision in the contract follows: “In consideration of tying up territory, and to protect you in your special methods and plans, and in your expenditures, this order can not be countermanded or cancelled. No verbal or other agreement not appearing herein shall be binding upon you.”

Plaintiff introduced in evidence the original contract, which the defendant admitted signing. The original contract was exactly like* the copy introduced by the defendant, except that there was printed on the margin of the original contract these words: “Notes to be detached by the Brenard Mfg. Co.” The clause quoted was also printed on the margin of the copy contract, but was scratched off with pen and ink, while the same words on the original were intact.

Testifying in his own behalf, George T. Yarner, in conclusion, swore as follows: “I got those radios. I was not able to sell them. I sent them back. I sent them back before the time specified in the contract. I do not owe them any money for any of them. I could not sell them and I returned them all. I wrote them for shipping instructions, and they wrote me they were my machines. That was the Brenard Manufacturing Company. I did not write Mr. Stevens. I did not know that Mr. Stevens was in existence. I shipped these things back about three months after they were shipped to .me. I do not know the exact date. I undertook to comply with that agreement with Brenard Manufacturing Company. I demonstrated the machines. I advertised them. When I sent those machines back I did not know where the notes were.”

The original contract, which the defendant admitted he signed, specifically provided that the notes were to be detached. There is no evidence in the record that the notes were mutilated, or that they were taken after maturity, or that they were not complete in themselves when they were transferred to plaintiff. Certainly the fact that the original contract was introduced in evidence by the plaintiff did not show that he had notice of that contract at or before the time the notes were transferred to him. In short, the evidence failed to overcome the presumption of law that the plaintiff was an innocent holder for value of the notes declared upon. Therefore the defense interposed could not be urged against the plaintiff, and the latter, having made out a prima facie case, was entitled to a verdict. Having reached this conclusion, it is not necessary to discuss the special assignments of error, and the judgment of the trial judge overruling the motion for a new trial is reversed for the reason stated above.

Judgment reversed.

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


text:
    18884.
    Community Oil Co. v. Miller.
    Decided June 13, 1928.
    Reiiearino denied July 10, 1928.
    Neufville■ & Neufville, for plaintiff in error.

      Hewlett & Dennis, contra.
   Broyles, C. J.

Under all the particular facts of tlie case, the judge of the superior court did not err, for any reason assigned, in overruling the certiorari and rendering the judgment excepted to. ■

Judgment affirmed.

Luke and Bloodworih, JJ., concur. ■


text:
    18895.
    RYAN, trustee, v. RICHARDSON.
    Decided June 13, 1928.

      Lawson & Ware, for plaintiff.

      M. H.. Boyer, H. B. Coates, for defendant.
   Luke, J.

L. C. Ryan, as trustee in bankruptcy for E. D. Richardson, brought an action in trover against Mrs. E. D. Richardson, wife of the bankrupt, for 7 mules, 750 bushels of corn, 45 hogs, and a lot of farming implements. Mrs. Richardson admitted possession of the property, denied its “quantity” and value as alleged, and claimed title in herself. By an amendment, allowed over objection, she alleged that prior to the filing of the petition in bankruptcy and to the filing of the trover action one of the mules died, and she turned back to W. E. Chancey. two mules to be credited on the purchase-money note held by him for them; and that at the time of the filing of the action she had only five mules in her possession, —all of which were subject to Chancey’s lien and in which she had only an equity. The verdict ivas for the defendant, and the plaintiff excepted. Richardson was adjudicated a voluntary bankrupt on January 16, 1926, and the present action was brought to the June, 1926, term of court.

There was evidence to this effect: Because of the ravages of the boll-weevil, Richardson lost his farm and his credit, and could no longer operate in his own name. He was harassed with judgments and garnishments, and was hopelessly insolvent. His wife had a small credit, and in 1923 they agreed that he, as her agent, should run the farm formerly owned and cultivated by him. This arrangement continued during the 3ears 1924 and 1925, Richardson giving his note for the rent of the land, but paying it from the earnings of the farm. The farm was financed on Mrs. Richardson’s credit and money made out of the farming operations. During these two years a profit was made on the farm, but the money was used by Richardson in educating his children at college. The mules were owned by Richardson, and he turned over the equity in them to Mrs. Richardson in lieu of the profits from the farm. For the same consideration Richardson delivered to his wife the other property sued for, except the products of the farm during the years 1924 and 1925, these being claimed by Mrs. Richardson as her own property. The corn was made on the farm in 1925. The hogs were the offspring of hogs formerly owned by Richardson. The farming utensils had been his. The foregoing is not, and is not intended to be, a full statement of the evidence in the ease. It is, however, indicative of the contentions of the parties as presented by the evidence. The bona fides of the transactions between husband and wife is the main issue in the case.

1. There was some evidence to support the verdict, and this court can not reverse the judgment of the court below upon the general grounds of the motion for a new trial.

2. It was not prejudicial error for the court to allow the amendment to the answer, showing the interest actually claimed by Mrs. Richardson in the mules, or to overrule the demurrer alleging that the amendment was irrelevant and immaterial, or to admit in evidence the retention-of-title note from E. D. Richardson to W. E. Chancey, given on October 18, 1923, for the mules.

3. The foregoing covers the exceptions made, and for no reason alleged should the judgment be reversed.

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur.


text:
    18926.
    Roan v. The State.
    Decided June 13, 1928.

      Charles H. Griffin, for plaintiff in error.

      Glande G. Smith, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of

the special grounds of the motion for a new trial show cause for a reversal of the judgment.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., dissents.


author: Bell, J.

text:
    18381.
    National Union Fire Insurance Co. v. Ozburn.
    Decided June 15, 1928.

      Smith, Hammond & Smith, for plaintiff in error.

      John 0. Owen, J. Wightman Bowden, contra.
   Bell, J.

The judgment of the superior court sustaining the certiorari in this case was equivalent to the first grant of a new trial; and the verdict not having been absolutely demanded by the evidence, this court will affirm the judgment, and in doing so will make no adjudication as to the merit of any of the special grounds of the motion for a new trial made and denied in the municipal court. Shirley v. Swafford, 119 Ga. 43 (2) (45 S. E. 722); L. & N. R. Co. v. Barksdale, 34 Ga. App. 812 (131 S. E. 298); Cox v. Grady, 132 Ga. 368 (64 S. E. 262); Carr v. Carr, 157 Ga. 208 (121 S. E. 227); Civil Code (1910), § 6204; Ga. L. 1925, p. 383, sec. 42. Under this rule, which has been adhered to repeatedly both by the Supreme Court and by this court, certain questions dealt with in the briefs of counsel are not in order for decision at this time.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    18430.
    SOUTHWEST GEORGIA DEVELOPMENT COMPANY v. GRIFFIN.
   Jenkins, P. J.

1. The jury having found in favor of the defendant generally, and having thus necessarily adjudged, as they were authorized to do, that the plaintiff took over the timber and resold it to a third person during the period that the lease to the defendant had been extended, the plaintiff was not entitled to recover the agreed advance payment as a penalty or forfeiture; nor, in view of such finding for the defendant, could the plaintiff have been harmed by any error in the charge of the court as to the measure of damages. Civil Code (1910), §§ 4390, 4391; Conant v. Jones, 120 Ga. 568 (12) (48 S. E. 234); Carstarphen v. Central of Ga. Ry. Co., 8 Ga. App. 162, 164 (68 S. E. 848); Sarman v. Seaboard Air-Line Ry. Co., 33 Ga. App. 315, 324 (125 S. E. 891).

Decided June 15, 1928.

E. L. Smith, for plaintiff.

2. The court did not err in overruling the plaintiff’s motion for a new trial. Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jenkins, E. J.

text:
    18441.
    Glore v. Haggard et al.

    Decided June 15, 1928.
   Jenkins, E. J.

1. If tlie owner of land establishes thereon a system of pipes or conduits through which water is conveyed from a source of supply over one portion of his premises to another portion for the benefit of the latter, and then alienates the portion to which the water is thus conveyed, the right to receive water through such pipes or conduits over the land not conveyed will pass to the grantee by general words. 19 C. J. 938, § 143 (4); Nicholas v. Chamberlain, Cro. Jac. 121, 79 Reprint, 105; Baker v. McGuire, 53 Ga. 245; Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210 (9, 10), 227 (54 S. E. 1028, 7 L. R. A. (N. S.) 1139).

2. The right of such a grantee to receive water through such pipes is not dependent upon any prescriptive title to such easement, but passes to him by reason of the fact that the owner of the entire premises had employed the portion now owned by the defendants so as to give to the portion now owned by the plaintiff an apparent benefit of a continuous nature, to the reasonable enjoyment of which the quasi-easement is necessary. 19 C. J. 914, § 103, b. Upon the partition of such premises between the heirs of the original owner, the general rule is that each heir will take his share subject to any apparent, permanent, and reasonably necessary quasi-easements which existed thereon for the benefit of another part of such real estate at the death of the ancestor. 19 C. J. 915, § 106, c.

3. Such an easement, being appurtenant to the dominant estate, passes with it, although the conveyance thereof may not expressly mention the easement, or contain a general conveyance of the appurtenances of the estate (Stovall v. Coggins Granite Co., 116 Ga. 376, 378, 42 S. E. 743), and the grantee of such dominant estate may maintain an action against one who interferes with the use and enjoyment of his right therein.

4. Under the foregoing rulings, the petition set forth a cause of action, and the court erred in sustaining the general demurrer.

Judgment reversed.

Stephens and Bell, <717., concu/r.

Morris, Hawhins & Wallace, for plaintiff.

Fred Morris, George D. Anderson, for defendants.


text:
    18445, 18446.
    Atlanta Terminal Company et al. v. Alexander (two cases).
   Jenkins, P. J.

1. Where a suit is against two or more parties and a demurrer is interposed upon the ground of a misjoinder of parties defendant, the plaintiff, upon being required to elect as to which of the defendants he will proceed against, can not make such election and at the same time except to the ruling requiring him so to do. Lavenden v. Haseman, 157 Ga. 275, 278 (121 S. E. 646); Smith v. Bugg, 35 Ga. App. 317 (133 S. E. 49). On the other hand, a mere ineffectual effort on the part of the plaintiff to reserve by his amendment the right to except to the ruling requiring the election can not be said to be harmful to the defendant against whom he elects to proceed.

2. The failure of the court to send out with the jury the plaintiff’s amendment striking one of the defendants as a party could not be said to be such harmful error as to require a new trial, where it appears that the effect and purport of the amendment was merely to strike that defendant and all allegations as to its negligence, and where it appears that the court clearly instructed the jury, both upon entering the trial and in his charge, that the defendant thus stricken had been eliminated as a party, and that the jury were not to consider anything appearing in the pleadings with reference to that defendant, its agents or employees.

3. One who obtains a railroad-ticket and presents himself at the usual point of departure of trains is a passenger. He is entitled to have the railroad company exercise extraordinary care for his safety, and to exercise ordinary diligence in matters involving merely his convenience or accommodation. Central Railroad &c. Co. v. Perry, 58 Ga. 461 (2). Thus, a railroad company is required to exercise ordinary care in providing convenient facilities in order that its passengers may reach and board the trains for which they purchase tickets. However, where a railroad company actually undertakes, through its agents or employees, to escort a passenger to a train, the absolute duty rests upon the company to conduct the passenger to the designated train, and if the passenger is induced to take a wrong train through misdirection of the carrier’s agent, the carrier is liable for the resulting damage, and this rule applies whether or not the agent’s act was negligent, inadvertent, wilful, or malicious. 10 C. J. 801, § 1231.

4. Under the foregoing rulings with respect to the absolute duty of a railroad company to perform its function correctly whenever it actually assumes to escort a passenger to a designated train, the charge of the court complained of, relative to the extraordinary degree of care required of the defendant in such a contingency, could not have been harmfully erroneous. It was not only the duty of the defendant to exercise reasonable diligence in affording the plaintiff passenger opportunity and facilities for ascertaining the train upon which she desired to take passage, but when, through its agents, the defendant actually undertook to escort her to a designated train, it thereupon devolved upon the defendant to perform correctly the task thus assumed.

Decided June 15, 1928.

5. The evidence authorized a finding in favor of each plaintiff; and in view of the proof as to the long duration and present existence of the passenger plaintiff’s disabilities, it can not be said as a matter of law that the verdicts were so excessive as necessarily to indicate prejudice or bias on the part of the jury. Bugg v. Harper, 36 Ga. App. 39 (135 S. E. 109); Realty Bond & Mortgage Co. v. Harley, 19 Ga. App. 186(2), 187 (91 S. E. 254).

Judgment affirmed.

Stephens and Bell, JJ., concur.

Dorsey, Howell & Heyman, McDaniel & Neely, for plaintiff in error.

F. L. Adams, Hooper & Hooper, Harwell, Fairman & Barrett, contra.


text:
    18454, 18483.
    Walker Company v. Atlantic Coast-Line Railroad Company; and vice versa.

   Jenkins, P. J.

1. Under the Carmack amendment to the interstate-commerce act, a suit on a bill of lading, for loss or damage to freight, may be maintained by the lawful holder of the bill of lading, or by “any party entitled to recover thereon,” Central of Ga. Ry. Co. v. Evans, 35 Ga. App. 454, 438 (133 S. E. 308). Actual possession of a bill of lading is not a prerequisite to the right to sue. Norfolk Southern R. Co. v. Norfolk Truckers Exchange, 118 Va. 650 (4), 656 (88 S. E. 318); 10 C. J. 354, § 525. Accordingly the petition in the instant case which set forth a purported copy of the bill of lading issued to the plaintiff, and a transfer and assignment thereon of all the rights of the consignee named therein to “all properties described and covered therein,” was not subject to general demurrer in that it failed to show the right of the plaintiff to maintain an action on the bill of lading. Especially is this true where it appears from the allegations of the petition that the original bill of lading had been surrendered to the defendant carrier.

Decided June 15, 1928.

W. G. Thomas, for plaintiff.

Wilson, Bennett & Pedriclc, Ciarle & Gibbs, for defendant.

2. The petition as amended, which set forth the number of sacks of potatoes shipped by the plaintiff, and the gross weight of the shipment, the value of the entire shipment, and the percentage of damaged potatoes, the sale of the undamaged potatoes and the amount derived therefrom, was not subject to special demurrer as being too vague and indefinite to put the defendant on notice of what it was required to meet and defend. There being no error in overruling the general and special demurrer of the defendant, the judgment complained of in the cross-bill of exceptions must be affirmed.

3. There was proof for the plaintiff shipper that the potatoes shipped over the defendant’s railroad had been sold to the order-notify consignee named in the bill of lading, which was introduced without objection, at an agreed price; that eighty-five per cent, of the potatoes contained in the car were found to be frozen and worthless when the ear was opened and examined at its destination; that the potatoes were sorted and the saleable ones disposed of' by the order notify consignee at a pi'ice set by such consignee which was “the market price,” and the written evidences of such sales were testified about by that witness. Under the rulings in Collins & Glennville R. Co. v. Beasley, 36 Ga. App. 241 (136 S. E. 167), the evidence was such as might have enabled the jury to estimate the damages sustained by the plaintiff, and the court erred in granting a nonsuit. See, in this connection, Atlantic Coast Line R. Co. v. Harris, 1 Ga. App. 667 (57 S. E. 1030).

Judgment reversed on the main hill of exceptions; affirmed on the erosshill.

Stephens and Bell, JJ., concur.


text:
    18464.
    Nasworthy v. Alford.
    Decided June 15, 1928.

      Price, Spivey & Edenfield, for plaintiff.

      Alford & Williams, for defendant.
   Jenkins, P. J.

1. “A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, is enough to amend by. The jurisdiction of the court may be shown, and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment.” Civil Code (1910), § 5682. Accordingly, where the original petition sought a recovery by Nasworthy against Alford by way of contribution on account of the plaintiff’s having paid off a specified firm debt incurred by the firm of Nasworthy & Alford, and where the petition alleged “that T. J. Nasworthy and Horace Alford composes the firm of Nasworthy & Alford, which was located at Mid-ville, Burke County, Georgia,” it was error not to allow an amendment to the petition striking the word “composes” and substituting in lieu thereof the word “composed,” and specifically setting forth that prior to the institution of the suit the partnership had been dissolved by mutual consent and its affairs settled with the exception of the indebtedness sued on, since the purpose and effect of the amendment could at most have been merely to correct a' mistake or misdescription in matters of inducement, and since the original use of the ungrammatical word “composes” was manifestly a mere typographical error with reference to the firm which “was” located at Midville.

2. The petition, as sought to be amended, showing a termination of the partnership and a winding up of the partnership affairs so as to give rise to the right of the plaintiff to sue his former partner at law on account of an indebtedness growing out of the affairs of the former partnership, the court erred in rejecting the proffered amendment, and in thereafter dismissing the petition.

Judgment reversed.

Stephens and Bell, JJ., eoneur.


author: Jenkins, 1?. J.

text:
    18517.
    Kohn et al. v. Colonial Hill Company.
   Jenkins, 1?. J.

1. As a general rule, an action on a contract must be brought in the name of the party in whom the legal interest in the contract is vested. Civil Code (1910), § 5516; Benson v. Abbott, 95 Ga. 69 (22 S. E. 127); Anthony v. Callaway, 37 Ga. App. 523 (140 S. E. 793); Edwards v. Camp, 29 Ga. App. 556 (2) (116 S. E. 210); Hobbs v. Citizens Bank, 32 Ga. App. 522 (124 S. E. 72). Accordingly, an action can not be maintained upon a promissory note payable to the order of a named pierson, which has not been indorsed or otherwise transferred, except in the name of the person to whom it is payable. In the instant case the petition as brought was subject to general demurrer for this reason, and the court erred in not sustaining the demurrer. Allen v. Commercial Credit Co., 155 Ga. 545 (117 S. E. 650), 30 Ga. App. 377 (118 S. E. 499). See Civil Code (1910), § 5689; Wheeler v. Stapleton, 99 Ga. 731 (27 S. E. 724).

Decided June 15, 1928.

Rehearing denied July 13, 1928.

Underwood, Hem & Qcmbrell, for plaintiffs in error,-

George B. Rush, contra.

2. The court did not err in striking the plea of res judicata on demurrer. While it is the general rule that the dismissal on demurrer of a previous petition based upon the same alleged cause of action bars a subsequent action, if in sustaining the demurrer the court necessarily decided upon the merits of the case (Fain v. Hughes, 108 Ga. 537, 33 S. E. 1012), the rule is different where the effect of the previous adjudication goes merely to indicate that the cause of action sought to be pleaded was defectively set forth. In the instant ease the plea of former adjudication was bad in that it not only failed to indicate that the court, in passing upon the previous demurrer, necessarily must have decided the merits of that cause (Callaway v. Irvin, 123 Ga. 344 (4) (51 S. E. 477); Macon & Birmingham Ry. Co. v. Walton, 127 Ga. 294 (56 S. E. 419), but, on the contrary, the pleadings embodied in the plea of res judicata themselves indicate nothing more than a previous adjudication to the effect that the cause of action was inadequately set forth.

3. The court did not err in sustaining the general and special demurrers to the answer as amended, except in so far as the judgment related to that portion of the amended answer which set up a rescission of the original contract that formed the consideration of the notes sued on. The amended plea having alleged that the plaintiff and the payee of the notes sued on had released the defendants from liability on the notes, and had accepted the restoration of the bargained property, thus rescinding the original contract, the court erred in striking the amended plea as a whole, and in thereafter directing a verdict in favor of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18525.
    GROGAN v. DERANEY et al.

      Decided June 15, 1928.

      Fred Morris, H. B. Moss, for plaintiff in error.

      Morris, Hawlcins & Wallace, contra.
   Jenkins, P. J.

1. At common law, a motion in arrest of judgment was in the nature of a belated general demurrer based upon unamendable defects appearing upon the face of the pleadings, and could be made at the term during which the verdict was rendered, for the purpose of staying the further progress of the proceeding by preventing a judgment, void for such reasons, from being actually entered. At common law, the purpose of a motion.to set aside a judgment was to permit a litigant, within a reasonable time after a judgment had been actually entered, to appeal to the sound legal discretion of the judge to vacate it, on the ground that it had been obtained in violation of some rule of practice, whether appearing upon the face of the record or not.

2. The rule in force in this State relating to such motions is statutory, and is not intended as a statement of the common law. Regopoulas v. State, 116 Ga. 596 (42 S. E. 1014); Ford v. Clark, 129 Ga. 292, 294 (58 S. E. 818).

3. Ender the Georgia code, § 5957, “when a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings.” A motion in arrest of judgment differs from a motion to set aside a judgment in that a motion in arrest must be made during the term at which the judgment was obtained (Berger v. Saul, 109 Ga. 240, 34 S. E. 1036), while a statutory motion to set aside a judgment, though not available in vacation, may be made at any term within the statute of limitations. Civil Code (1910), § 5958; Haskens v. State, 114 Ga. 837 (40 S. E. 997); Davis v. Bennett, 159 Ga. 332 (125 S. E. 714). There are decisions to the effect that the distinction thus indicated constitutes the only difference between a motion to set aside and a motion in arrest (Artope v. Barker, 74 Ga. 462, 465; Regopoulas v. State, supra), but, as pointed out in Ford v. Clark, supra, such a statement is not entirely accurate, since under the provisions of section 5961 of the code a judgment may bo .set aside, but not arrested, lor reasons not appearing upon the face of the record, where it is made to appear that the verdict was obtained by perjury. Moreover, it has been many times held that even though the defect may not appear upon the face of the record, a court of law is not deprived of jurisdiction to grant relief against judgments irregularly or improperly obtained, upon timely application by petition, with rule nisi or process and service upon the necessary parties. Union Compress Co. v. Leffler, 122 Ga. 640, 642 (50 S. E. 483); Garfield Oil Mills v. Stephens, 16 Ga. App. 655, 659 (85 S. E. 983); Gillespie v. Farkas, 19 Ga. App. 158 (91 S. E. 244); Lyons v. State, 7 Ga. App. 50, 53 (66 S. E. 149). A proceeding such as last mentioned is not technically a statutory petition to set aside, but is in effect a motion for a new trial, and is subject to all the rules governing such a motion. Miraglia v. Bryson, 152 Ga. 828 (111 S. E. 655); Holmes v. Reville, 27 Ga. App. 552 (2); Donalson v. Bank of Jakin, 33 Ga. App. 428 (127 S. E. 229).

4. In addition to the rights and remedies that have been mentioned, there is still another well-recognized rule of law to the effect that courts of record retain full control over their own orders and judgments during the term at which they are entered, and in the exercise of a sound legal discretion may revise or vacate them, as the ends of justice may require, such discretion not being controlled by courts of review unless manifestly and flagrantly abused. Bowen v. Wyeth, 119 Ga. 687 (46 S. E. 823); Van Dyke v. Van Dyke, 120 Ga. 984, 986 (48 S. E. 380); Athens Apartment Corporation v. Hill, 156 Ga. 437, 443 (119 S. E. 631); Patterson Produce &c. Co. v. Wilkes, 1 Ga. App. 430 (57 S. E. 1047). But the discretion thus vested in courts of record, even, over their own judgments and decrees, is not arbitrary, but legal. Van Dyke v. Van Dyke, supra; Glenn v. Glenn, 152 Ga. 793 (2, 3) (111 S. E. 378); American Agricultural Chemical Co. v. Bank of Madison, 32 Ga. App. 473, 475 (123 S. E. 921). The judgment and orders thus said to remain “in the breast of the court” do not include judgments based upon the verdict of a jury (Georgia Railway & Electric Co. v. Hamer, 1 Ga. App. 673, 58 S. E. 54), which do not, therefore, come within the scope of such plenary powers and discretion. In order for a judgment based upon the verdict of a jury to be set aside, resort must be had to one of the remedies enumerated in the third division of this decision.

5. In the instant ease the petition to set aside was not instituted as an equitable proceeding under the provisions of section 5965 of the Civil Code; it does not purport to be a motion in arrest, or a motion to set aside in the nature of a motion for a new trial, but purports to be a petition instituted at the term at which the judgment was rendered, invoking the discretionary powers of the presiding judge, such as are referred to in the fourth division of this decision. Tinder the ruling there made the defendant was not entitled to invoke the discretionary powers of the judge to vacate his own orders and judgments, which are said to remain within the breast of the court during the continuance of the same term; it is therefore unnecessary to decide whether, in the proper exercise of such a discretion, a judgment might be set aside without any sort of legal justification. The defendant being relegated to the legal rights and remedies set forth in the third division above, and having shown no reason why the judgment should be set aside, other than his absence and the absence of his counsel at the time the verdict and judgment against him were rendered, and having assigned no reason for his absence except that he did not actually know that the case would be called, and no reason for such lack of knowledge except that he had not been advised by his counsel, upon whom he relied for notice, and that his counsel, with defendant’s knowledge, had previously removed his residence from the State of Georgia, the court erred in overruling the demurrer to the petition to set aside the judgment.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18538.
    Standard Lumber Company v. Clifton.
   Bell, J.

In this proceeding to foreclose an alleged laborer’s lien upon certain lumber as product of the plaintiff’s labor while working at a sawmill, where the defendant contested the plaintiff’s claim upon the ground that he had been employed not by the defendant, but by another as independent contractor engaged by the defendant to manufacture lumber from the defendant’s timber at so much per thousand feet, and that the defendant had in nowise become responsible to the plaintiff for his wages, and where the contentions thus made by the defendant were supported by evidence, the court committed error in charging the jury as follows: “Ordinarily a party would not have a laborer’s lien except as against the party who employed him, but I charge you in this case, this being a case of lien upon products of labor, to wit lumber, if you find that the plaintiff in this case was a laborer at the sawmill, and as a result of his labor this lumber was produced, he would be entitled to foreclose his lien. If he was not a laborer at this mill and did not produce the lumber, he would not have a lien. That is the only question for you to determine in this case.” Compare Poss. Brothers Lumber Co. v. Haynie, 37 Ga. App. 60 (139 S. E. 127).

Decided June 15, 1928.

Hinton Booth, for plaintiff in error. Anderson & Jones, contra.

Judgment reversed.

Jenkins, P. J., and Stephens, J., ooneur.


text:
    18541, 18579.
    Connally Realty Company v. Nalley; and vice versa.

   Bell, J.

1. “A judge of the superior court, in passing on a certiorari, where questions of fact are involved and the evidence is conflicting, has a discretion to sustain the certiorari, similar to the discretion allowed him in granting a first new trial; and that discretion will not be controlled, unless it has been manifestly abused.” Weathersby v. Jordan, 124 Ga. 68 (52 S. E. 83). “The function of a judge of the superior court, in reviewing the evidence on certiorari, is very similar to that which he exercises in reviewing the evidence upon a motion for a new trial. It involves a right and a discretion with which trial judges are clothed, but which reviewing courts do not possess. It is an original discretion, and with it is coupled the right to pass upon the credibility of the witnesses,” and otherwise to weigh the evidence. A. C. L. R. Co. v. Thomas, 12 Ga. App. 209, 211 (77 S. E. 13).

2. The above principles are applicable in eases of certiorari in the superior court of Eulton county to review judgments of the appellate division of the municipal court of Atlanta granting or refusing motions for new trial in that court where questions of fact are involved, whether relating to the main issue or to some preliminary or collateral matter; as, for instance, a motion for a continuance. Shirley v. Swafford, 119 Ga. 43 (2) (45 S. E. 722); L. & N. R. Co. v. Barksdale, 34 Ga. App. 812 (131 S. E 298). See also section 42 of the act of July 31, 1925 (Ga. L. 1925, p. 383), amending the act creating the municipal court of Atlanta and superseding the provisions referred to and considered in Gresham v. Lee, 152 Ga. 829 (111 S. E. 404), s. c. 28 Ga. App. 576 (112 S. E. 524).

3. Accordingly, where the losing party in a case in the municipal court moved for a new trial because the court had refused a motion made by him for a continuance, and the motion -for a new trial was denied both by the trial judge and the appellate division, the superior court of Pulton county did not err in reversing the judgment and ordering a first new trial, upon the ground that the motion for the continuance should have been granted, where, as here, it can not be said as a matter of law that the continuance was rightly refused. Since the evidence was such that the municipal court might have ruled either way upon the motion to continue, the superior court on certiorari was authorized to do likewise, even to hold differently from the municipal court, and with such discretionary judgment this court can not interfere. Bagley v. Shumate, 128 Ga. 78 (57 S. E. 99); Parrott v. Bradley, 28 Ga. App. 529 (112 S. E. 152); Jones Motor Co. v. Finch Motor Co., 34 Ga. App. 399 (2), 403 (129 S. E. 815).

Decided June 15, 1928.

Slaton & Hopkins, for plaintiff..

J. J. Barge, Morris Macks, for defendant.

4. In such a case the granting of the certiorari will not be reversed by this court merely because the evidence upon the main issue may have demanded a finding in favor of the prevailing party. The error in refusing the continuance having rendered further proceedings nugatory, the losing party was not required to offer evidence on the principal issue.

5. The questions made in the cross-bill, not having been passed upon by the superior court, will not be decided by this court.

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

Jenkins, P. J., amd Stephens, J., concur.


text:
    18596.
    Dumas v. Barnesville Bank.
   Bell, J.

1. “Where a justice’s court has jurisdiction of the parties and the subject matter, the fact that the justice is related to one of the parties within the fourth degree of consanguinity, does not render his judgment absolutely void, but only voidable, and it can not be attacked by affidavit of illegality on that ground.” Rogers v. Felker. 77 Ga. 46; Jarrell v. Guam, 105 Ga. 139 (2) (31 S. E. 149).

2. A justice’s court has jurisdiction of a suit upon a note where the principal sum claimed does not exceed $100, irrespective of any interest that may be due. The principal sum sued for in this case being $96, the court had jurisdiction even though the amount exceeded $100 when the accrued interest was added. Southern Express Co. v. Hilton, 94 Ga. 450 (20 S. E. 126); Civil Code (1910), §§ 4665, 4666, 4711.

3. Ground 3 of the affidavit of illegality was as follows: “That the magistrate not only rendered judgment for plaintiff in said case, but also rendered judgment for himself for cost, and to that extent was an interested party. Affiant says that his constitutional rights have been violated in that the magistrate was interested in the outcome of the case to the extent of his cost. Wherefore affiant alleges that the justice court in which said judgment was rendered is unconstitutional, being contrary to the Federal constitution, and therefore said judgment and execution based thereon is null and void.” Any question here attempted to be raised, relating merely to the disqualification of the justice of the peace upon the ground of financial interest, like the question of relationship, came too late when urged for the first time by affidavit of illegality; and so far as this ground of the affidavit sought to attack, as unconstitutional, any statute of this State in reference to courts of justices of the peace,' there is a total failure to comply with the rules of practice essential in the presentation of constitutional questions, even assuming that a constitutional question might have been raised for the first time in the affidavit of illegality. The question of whether an act of the legislature is violative either of the Federal or the State constitution 's not raised by a mere general allegation that it is unconstitutional. Lawrence v. State, 34 Ga. App. 237 (2) (129 S. E. 11); U. S. Fidelity &c. Co. v. Watts, 35 Ga. App. 447 (133 S. E. 476); Savannah, Fla. & W. R. Co. v. Hardin, 110 Ga. 433 (35 S. E. 681); Lafitte v. Burke, 113 Ga. 1000 (39 S. E. 433); Newkirk v. So. Ry. Co., 120 Ga. 1048 (48 S. E. 426).

Decided June 16, 1928.

B. H. Manry, for plaintiff in error. Claude Christopher, contra.

4. The court did not err in dismissing the affidavit of illegality.

Judgment affirmed.

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


text:
    18379.
    BERNSTEIN v. FAGELSON.

      Decided June 16, 1928.
    Rehearing denied July 13, 1928.

      J. N. Johnson, for plaintiff in error.

      Dorsey, Howell & Heyman, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

1. While it is the general rule that where a contract is made with several jointly, all should sue for the breach, this is not necessary when a good reason is shown to the contrary. Phillips v. Poole, 96 Ga. 515, 518 (23 S. E. 504). In the instant case the allegations of the petition to the effect that the defendant, Bernstein, had made a settlement with plaintiff's co-obligee, Katz, of any interest Katz may have had under the contract sued upon, and had taken a transfer from Katz of all of his stock in the corporation holding the subject-matter of the contract, are sufficient to dispense with any necessity for making Katz a party, since the defendant, by his own act in making a settlement with Katz, had deprived the latter of any interest under the contract. Nor was the petition subject to demurrer because the Independent Tool Products Company was not made a party, since that corporation was not a party to the contract and had no interest in its performance, but, as alleged by the petition, held the title to the property involved. It was merely through this corporation that the plaintiff sought, with the co-operation of the defendant, to comply with the terms of the contract.

2. While proof of parol contemporaneous agreements is generally inadmissible to add to, take from, or vary a written contract (Civil Code of 1910, §§ 4268, 5788), the allegations of the petition setting forth the division to be made of the consideration to be paid to the co-obligees under the contract do not come within the inhibition of these sections of the code, since .such alleged facts in nowise add to, take from, or vary the terms of the written instrument, but merely set forth the respective interests of the obligees.

3. The petition was not subject to demurrer because of failure to set forth the entire record of the former judicial proceeding between the Independent Tool Products Company and Ward, since the petition sufficiently set forth the various steps taken in that proceeding, and the verdict and judgment rendered therein:

4. It is the general rule that a party to a contract can not take advantage of his own act or omission to escape liability, and that failure to perform is excused where performance is.prevented by the acts of the opposite party. 13 C. J. 647 (§ 721)f. Stimpson Computing Scale Co. v. Taylor, 4 Ga. App. 567 (63 S. E. 659); Byck v. Weiler, 3 Ga. App. 387 (59 S. E. 1126). Where an act' to be done by one party to a contract can be done only upon a corresponding act being done or allowed by the other party, an obligation by the latter to do, or to allow to be done, the act or things thus necessary for the completion of the contract will be necessarily implied. 13 C. J. 649, § 722 (2). The obligation imposed by the contract upon the defendant being to pay a certain sum upon “a proper assignment being made to him” of the interest in the patent right described in the contract (Jones v. Fuller, 27 Ga. App. 84, 86, 107 S. E. 549), and the plaintiff, having shown that the title to the patent right had been acquired by a corporation, of which the plaintiff and the defendant are the sole stockholders by reason of the defendant having acquired the stock of Katz in the corporation, and that the plaintiff has offered and offers to vote his stock in transferring the property to the defendant, and to transfer his stock in the corporation to the defendant, thus effecting a transfer and assignment of the property, the plaintiff was entitled to the cooperation of the defendant in effecting the assignment to the latter of the patent right, and to receive the agreed purchase-price therefor.

5. The court did not err in overruling the defendant’s general and special demurrers for any of the reasons urged.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Beta, J.

text:
    18385.
    Chapman v. Gilmore.
   Beta, J.

1. In a suit by a widow against an individual for the felonious killing of her husband, where the plaintiff, while on the witness stand as a witness in her own behalf, testified on cross-examination that she had no knowledge of the general character of the deceased for violence, she could not be impeached for this statement by proof of specific acts of violence on the part of the deceased within her knowledge. Since specific instances of violence could not be proved to establish general character, they would not be admissible to show knowledge of such character. In this ease the proffered evidence would not have been inconsistent with the testimony of the plaintiff and would have had no probative value as impeaching her. The court, therefore, did not err in excluding it. Hawkins v. State, 141 Ga. 212 (5) (80 S. E. 711); Powell v. State, 101 Ga. 9 (29 S. E. 309, 65 Am. St. R. 277); Warrick v. State, 125 Ga. 133 (6) (53 S. E. 1027); Fountain v. State, 23 Ga. App. 113 (2) (98 S. E. 178).

Decided June 16, 1928.

Willingham, Wright & Covington, for plaintiff in error.

Porter & Mebane, J. F. Kelly, contra.

2. The defendant offered to prove as a part of the res gestae the following statement, made under the following circumstances: The killing occurred on a public road at night. The decedent’s brother, the only person near to the occurrence, was standing about 30 yards away. After the defendant had fired several shots into the body of the decedent and the decedent had fallen to the ground, apparently dead, the defendant left the scene and walked in the direction. of his home, meeting the decedent’s brother, who was approaching him. The defendant then, between a half minute and a minute from the shooting, said, “Jim, I reckon I have killed Bud. I had to do it.” It can not be said that the court erred in rejecting evidence of this statement. Trial courts have some latitude or discretion in passing upon the admissibility of evidence offered as part of the res gestas, and the declaration having been made in a matter of great importance to the defendant, under circumstances tending naturally to induce swiftness of mental action, and having been exculpatory in character, the court was authorized to adjudge that it was not free from all suspicion of device or afterthought. See, in this connection, Futch v. State, 90 Ga. 472 (4) (16 S. E. 102); Sullivan v. State, 101 Ga. 800 (3) (29 S. E. 16); Thornton v. State, 107 Ga. 683 (33 S. E. 673); W. & A. Railroad v. Beason, 112 Ga. 553 (2) (37 S. E. 863); Warrick v. State, supra; Lyles v. State, 130 Ga. 294 (3) (60 S. E. 578); Hunter v. State, 147 Ga. 823 (2) (95 S. E. 668); Carswell v. State, 10 Ga. App. 30 (72 S. E. 602). This ruling is deemed not to be in conflict with the rulings in any of the following cases: Mitchum v. State, 11 Ga. 621; Hart v. Powell, 18 Ga. 639; Thomas v. State, 27 Ga. 287 (9), 290, 296; Cox v. State, 32 Ga. 515, 521; Herrington v. State, 130 Ga. 307 (60 S. E. 572); Cason v. State, 134 Ga. 786 (5) (68 S. E. 554); Darby v. State, 9 Ga. App. 700 (2) (72 S. E. 182). Each of these cases may he distinguished from the present case either because of dissimilarity in the surrounding circumstances or a difference in the nature and effect of the statement itself.

3. The evidence authorized the verdict in favor of the plaintiff. There was no error in refusing the defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    18398.
    HENDRICKS et al. v. HENDERSON.

      Decided June 16, 1928.

      B. F. Hendriclcs, B. A. Hendricks, Jeff 8. Story, for plaintiffs in error. William Story, contra.
   Bell, J.

S. B. Henderson brought a trover suit against E. F. Hendricks and B. E. Hendricks for the recovery of certain farm implements as follows: a tobacco transplanter, a hay-rake, a mower, and a hay-press. The plaintiff elected to take a money verdict and the jury found in his favor for $200. The defendants moved for a new trial, which the court refused, and they excepted.

The plaintiff claimed to have acquired the property from Mrs. E. A. Hendricks in purchasing or trading for a certain farm and the implements thereon on March 17, 1926. This transaction occurred in Miami, Florida, and in the negotiations Mrs. Hendricks was represented by her husband, Mr. E. A. Hendricks. Besides the conveyance of the real estate by deed, the parties entered into a separate written agreement embodying certain collateral matters and containing the following provision: “The first parties, in addition to the sale of the real estate and all improvements thereon, likewise sell and convey three head of mules now in possession of L. P. Cannon, the foreman of said farm, which said three mules are known by said Cannon and others to be worked on and belong to this farm, also all the stock cattle, milk cows, etc., on said farm; also all the farming implements, gear, wagons, tools, one Ford automobile truck, hoes, plows, axes, etc.” The plaintiff’s contention was that at the time of the transaction referred to the four articles in question were located upon the farm as a part of its equipment and were conveyed to the plaintiff therewith. The plaintiff made no previous examination of the property,' and claims to have relied upon the representations of Mr. Hendricks (E. A.) as to what articles of personalty were situated on the farm and would pass therewith. The defendants, E. E. Hendricks and B. E. Hendricks, were sons of Mr. and Mrs. E. A. Hendricks, and resided in Georgia, near the plantation referred to, while their parents were residents of Miami. The plaintiff attempted to show that the defendants converted the property by removing it from the farm soon after the sale or trade between him and their mother. The defendants contended that the property in controversy was not the property of Mrs. Hendricks but was the property of her husband, and that it was expressly excepted from the transaction in respect of the farm. The defendants denied also that they had committed any conversion of the property; and this was one of the issues for the jury.

From a careful examination of the evidence, we have concluded that the verdict was wholly unauthorized as to the defendant B. E. Hendricks, in that there is nothing whatever to show that this defendant exercised any dominion or control over, or intermeddled or interfered with, any of the property at any time, or that it was ever in his possession. See Haas v. Godby, 33 Ga. App. 218 (125 S. E. 897). In a case of this sort a verdict which is joint against both defendants must stand or fall in its entirety. It follows that the judgment refusing a new trial must be reversed as to both defendants. Finley v. So. Ry. Co., 5 Ga. App. 722 (3) (64 S. E, 312); Gilstrap v. Leith, 24 Ga. App. 720 (102 S. E. 169).

The court charged the jury as follows: “Understand that the plaintiff has elected to take a money verdict, and that would entitle him, under the law, to a verdict for the highest amount that he can prove the value of the property to be between the date of the conversion and the trial of the case.” Standing alone, this charge would seem to be erroneous, in that it amounted to a statement that the plaintiff’s mere election to accept a money verdict entitled him to recover. Whether any such possible error was cured by the general charge, the learned trial judge will no doubt exercise caution to avoid error in this connection at the next trial. We make the same observation with reference to the charge in which the court referred to the “conduct” of the defendant. We have examined all grounds of the motion for a new trial, and, except as above indicated, each of them is without merit.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    18402.
    ATLANTA & WEST POINT RAILROAD CO. v. WEST.

      Decided June 16, 1928.

      Dorsey, Howell & Heyman, for plain tiff in error.

      Reuben R. & Lowry Arnold, H. A. Allen, contra.
   Bell, J.

Mrs. Ophelia West obtained a verdict for $11,000 against Atlanta & West Point Railway Company for the death of her husband, which occurred in a collision between a truck driven by him and one of the defendant’s trains at a public crossing known as Washington-street crossing, in the city of East Point, Georgia. The defendant, after unsuccessfully moving for a new trial in the court below, brought the case to this court for review.

Among the several specifications of negligence set forth in the petition was the alleged violation of a speed ordinance of the municipality, and there was some evidence to sustain this averment. The evidence tended also to show that the decedent, on approaching the crossing, was operating his vehicle at a greater speed than ten miles per hour, contrary to law. Ga. L. 1921, p. 255, sec. 2. The court charged the jury as follows: “Upon approaching an intersecting railroad crossing the operator of a motor-vehicle shall at all times have said vehicle under immediate control and shall not operate said vehicle at a greater speed than ten miles per hour. While it is made unlawful for a person to drive an automobile over a railroad-crossing at a rate of speed more than ten miles per hour, it still remains a question for the jury as to whether the decedent, if he was violating such law of the State, was guilty of such negligence as was the proximate cause of injury to him or of his death; and in determining that question the jury would have regard to all the facts and circumstances of the case, it being a question for the jury to determine what is due care in such cases — what is ordinary care — what is ordinary care as relates to the duty'of the railroad company, what is ordinary care as relates to the driver of the automobile, and whether or not any negligence on the part of either was the proximate cause of the injury or death of the person injured.” In the motion for a new trial it was contended that this charge was “error in that the failure on the part of the operator of a motor-vehicle to obey said statute is by law made negligence per se, and defendant contends that the court should have so charged the jury. Defendant further contends that the failure to so charge the jury, but charging the jury that it was left to the jury to determine what was due care in such a case, left to the jury the determination whether or not the failure to comply with said statute was an act of negligence on the part of the deceased. Movant contends that said charge of the court was error and prejudicial to the defendant.”

In our opinion this assignment was well taken and should have been sustained. While the quoted charge clearly informed the jury that it was unlawful for a person to drive an automobile upon a public crossing at a greater rate of speed than ten miles per hour, and while it may be immaterial that the court did not instruct them in terms that the violation of the statute upon that subject would constitute negligence, or “negligence per se,” whether a person in the violation of such statute was in the exercise of due care could not be a jury question; and applying the charge of the court to the evidence adduced, the jury could0 have found that the decedent drove his truck upon the crossing at an unlawful speed, but that in doing so he was not negligent. The violation of a statute enjoining a duty of diligence is negligence as a matter of law, and in that respect is not issuable. Lime-Cola Bottling Co. v. Atlanta &c. R. Co., 34 Ga. App. 103 (3) (128 S. E. 226). In Shannon v. Martin, 164 Ga. 872 (139 S. E. 671), the Supreme Court held that the provisions of section 2 of the act of August 15, 1921, relating to the speed of automobiles upon approaching intersecting highways, do not apply to intersecting streets of a city; but we do not think the provisions of the act excluded railroad crossings in a city.

We think the error in the court’s charge was substantial and required a new trial. We have carefully examined each of the other assignments and find them without merit.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    18405.
    Morris v. Peachtree Heights Park Company.
   Bell, J.

1. Where in a written contract between a contractor and another as owner, the parties agreed that the contractor was to grade for the owner certain grounds and streets and was to be paid at the rate of “25 c. per eu. yd. for earth excavations, 85 e. per eu. yd. for soft rock, and $1.35 per cu. yd. for hard rock,” and that the work should be done under the supervision of a named civil engineer, whose “estimates of classifications of materials shall be final and binding,” the latter stipulation necessarily contemplated that, for the purpose of determining the amount of compensation to be paid for work done, the civil engineer should estimate not-only the kinds of materials removed, but also the number of cubic yards of each; and in a suit by the contractor to recover on the contract for the agreed price of his services, such estimates by the engineer constituted a condition precedent to the plaintiff’s right to recover. Elmore v. Thaggard, 130 Ga. 701 (3) (61 S. E. 726); So. Mfg. Co. v. Moss Mfg. Co., 13 Ga. App. 847 (3) (81 S. E. 263); Savannah Lighting Co. v. Fidelity & Deposit Co. of Md., 21 Ga. App. 758 (95 S. E. 113); Thornton v. Germania Fire Ins. Co., 26 Ga. App. 653 (107 S. E. 279).

2. Where, in such a ease, the plaintiff alleged that the defendant was indebted to him at the contractual rate for removing a certain number of cubic yards of each kind of material, “classified according to the contract,” the petition, without further averments and in the absence of demurrer, will be taken, as alleging proper estimates by the engineer named in the contract and entitling the plaintiff to recover; and where the evidence fails to show that the estimates had been made as alleged, there is a fatal variance between the allegations and the proof, and the plaintiff should be nonsuited. Civil Code (1910), § 5942.

3. The plaintiff, diu’ing the trial, amended his petition by alleging that the engineer originally named in the contract refused to make estimates “either as to amount of dirt moved or the classification,” and that the defendant, through its president; then told the plaintiff “to get another engineer to check the estimates' and work, and the defendant company would pay said estimates after they were so cheeked,” and that “the figures used in this suit are the figures furnished by” another engineer procured by the plaintiff and the original engineer “representing defendant.” Assuming that on proof of these additional allegations the plaintiff would have been entitled to go to the jury, yet since the amendment alleged in effect that the defendant would settle on the estimates of the outside engineer, and since in support thereof the plaintiff testified merely that the defendant’s president said to him that if he was “dissatisfied with those estimates,*” to get his own engineer and “make the measurements,” and the defendant “would take it up” with him, the plaintiff failed to prove the case as laid even in the amended petition. There was no evidence that the defendant at any time agreed, as alleged in the amendment, to be bound by the estimates of any other than the engineer named in the contract.

4. While, as shown in the preceding paragraphs, the allegations of the petition were not proved by the evidence adduced by the plaintiff, it was nevertheless admitted, in the defendant’s answer, that on estimates made by the engineer named in the agreement the defendant was indebted to the plaintiff in a certain sum stated, which the defendant paid into court and for which it prayed that judgment be entered in favor of the plaintiff; and since, without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other, it thus appears that the plaintiff was entitled to recover at least a part of his claim. Civil Code (1910), § 5775; Wheeler v. Salinger, 33 Ga. App. 300 (7) (125 S. E. 888).

Decided June 16, 1928.

Scott Candler, for plaintiff.

Anderson, Rountree & Crenshaw, W. H. Mewbourne, for defendant.

5. It is error to grant a nonsuit if a verdict would be authorized for any part of the plaintiff’s demand, where the facts proved correspond with the case laid in the petition. Duke v. Cason, 25 Ga. App. 344 (103 S. E. 176); Collier v. Pritchett, 30 Ga. App. 451 (4) (118 S. E. 444).

6. The judgment of nonsuit was right except for the admission in the defendant’s answer; but since the plaintiff, in view of such admission, would have been entitled to recover a certain amount and there is nothing to show that he would hot have accepted a verdict therefor in preference to a nonsuit, .the judgment is reversed, on condition that, at the- time the remittitur from this court is made the judgment of the court below, the plaintiff will elect to take a verdict upon the pleadings for the amount admitted in- the defendant’s answer to be due him; otherwise the judgment is affirmftl.

Judgment reversed on condition.

Jenkins, P. J., and Stephens, J., eon-cur.