text:
    16991.
    Bankers Trust & Audit Co. v. Hanover National Bank.
    Appeal and Error, 4 O. J. p. 1159, n. 30.
    Corporations, 14a C. J. p. 299, n. 84; p. 300, n. 86; p. 315, n. 49; p. 583, n. 77; p. 729, n. 99 New; p. 734, n. 86; p. 741, n. 18.
    Pleading, 31 Cyc. p. 333, n. 76.
    Stipulations, 36 Cyc. p. 1292, n. 69.
   Bell, J.

1. An admission in the pleadings is to be taken as true, and the record should not be burdened with proof of the fact admitted. Lovell v. Frankum, 145 Ga. 106 (5) (88 S. E. 569). So an admission of a material fact in the defendant’s answer is not ousted by an agreed statement of facts, made for the purpose of trial, and silent as to the fact so admitted in the answer.

2. A commercial corporation having the authority, expressly conferred by its charter, “to buy and sell, hold as investment, and otherwise deal and traffic in stocks, bonds, securities, and other obligations of other corporations of every kind whatsoever; to act as financial agent for the corporations, malee financial connections and arrangements for same, and supervise and audit the accounts of same, and receive compensation therefor; to negotiate loans and arrange and obtain credits for individuals and corporations, and to receive compensation therefor; and in general to engage in all acts usual and convenient to the accomplishment of any one or all of the purposes therein set out,” and “to aid in any manner any other corporation whose stock, bonds, or other obligations are held or. in any manner guaranteed by said corporation, and to do any other act or thing for the preservation, protection, improvement, or enhancement of the value of any such stocks, bonds, or other obligations, or to do any acts or things designed for such purposes,” has the charter power to become a surety or accommodation indorser upon the note of another corporation in which it owns stock. The defense that an act?was ultra vires will be sustained “only where an imperative rule of public policy requires it.” Towers &c. Ginnery Co. v. Inman, 96 Ga. 506, 509 (23 S. E. 418) ; Savannah Ice Co. v. Canal-Louisiana Bank & Trust Co., 12 Ga. App. 818, 826 (79 S. E. 45) ; Dublin Fertilizer Works v. Carter, 6 Ga. App. 835 (65 S. E. 1082).

3. If, under the provisions o'f the charter, the defendant could have become surety for another corporation only in case it received a consideration for doing so, where the evidence showed that it had entered into a contract of suretyship for another corporation, a contention that the act was ultra vires would not be sustained in the absence of proof that the contract was entered into without compensation, the onus of proving this fact being upon the party asserting the defense. Civil Code (1910), § 5746.

Decided July 20, 1926.

Complaint; from Jasper superior court—Judge Park. November 9, 1925.

M. F. Adams, W. II. Hey, for plaintiff in error.

Allen & Pottle, contra.

4. Furthermore, even though a corporation has become surety upon the note of another corporation without any charter authority to do so, yet if, as appears in this case, it had the power under its charter to purchase the obligations of other corporations and to execute notes for indebtedness incurred in the conduct of its business, it could purchase the note upon which it illegally became surety, and its own note given for the purchase-money thereof would be a valid obligation. The mere fact that a nóte had been improperly signed by the company as surety would not outlaw it as property which the company was authorized to purchase and deal in.

5. In the trial of this action upon the note of a corporation given in renewal of its previous note for the purchase of a note (and the collateral pledged therewith) of another corporation, which last-mentioned note the defendant had originally signed as surety, the defendant’s plea that its acts were ultra vires was not sustained, under the pleadings and the agreed statement of facts. The court properly rendered judgment in favor of the plaintiff.

6. It appears, however, that the judgment included an error against the defendant in the amount of the interest; and the judgment will be affirmed with direction that the court amend it by striking therefrom the excess of interest ($393.85).

Judgment affirmed, with cMreeiion.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    17032.
    Yellow Cab Company v. General Lumber Company.
    Accord and Satisfaction, 1 O. J. p. 576, n. 36; p. 577, n. 40, 42, 43.
    Compromise and Settlement, 12 C. J. p. 363, n. 4.
    Courts, 15 C. J. p. 965, n. 66.
    Master and Servant, 39 C. J. p. 1352, n. 30.
    Motor Vehicles, 28 Cyc. p. 45, n. 90.
   Bell, J.

1. In a suit for damages to the plaintiff’s truck, caused by a collision between the truck and the defendant’s cab, allegations (in the order here stated) that the defendant was indebted to the plaintiff in the amount stated as the damages, “for the reason hereinafter set out,” and that the “negligence of defendant company complained of” was “that the driver of said cab was negligent” in specified particulars, were, as against an oral motion in the nature of a general demurrer, sufficient to show by implication that the driver of the cab was the servant of the defendant, acting within the scope of his employment, at the time and place in question. Otherwise the defendant could not have been indebted, and the driver’s negligence could not have been “the negligence of the defendant company,” as alleged in the petition. See Gilmer v. Allen, 9 Ga. 208 (4) ; Lewis v. Amorous, 3 Ga. App. 50, 53 (59 S. E. 338) ; Gallagher v. Gunn, 16 Ga. App. 600 (85 S. E. 930) ; Southern Paramount Pictures Co. v. Gauldimg, 24 Ga. App. 478 (3) (101 S. E. 311) ; Ryle v. Central &c. Ry. Co., 30 Ga. App. 737 (4) (119 S. E. 342) ; Fielder v. Davison, 139 Ga. 509 (77 S. E. 618) ; S. A. L. Ry. v. Pierce, 120 Ga. 230 (47 S. E. 581) ; Swift & Co. v. Bleise, 63 Neb. 739 (89 N. W. 310, 57 L. R. A. 147) ; 39 C. J. 1352, § 1575. Whether or not the present case may be distinguished from Gardner v. Western Union Tel. Co., 14 Ga. App. 403 (2) (81 S. E. 259), the decision in that ease was by two Judges, and is not binding as authority.

Decided July 20, 1926.

Damages; from city court of Albany—Judge Clayton Jones. November 30, 1935.

Bryan & Middlebrooks, W. E. Burt, for plaintiff in error.

Milner & Farkas, contra.

2. A plea by the defendant, which alleged that after the collision and prior to the institution of the plaintiff’s suit the parties entered into “an agreement of settlement in full for the damages sued for in the plaintiff’s petition,” the terms of which were that the plaintiff would pay the defendant for all damages sustained by the defendant as a result of the collision, and that the defendant in turn would pay the plaintiff for the damages sustained by the plaintiff as a result thereof, but which plea, although averring a performance of the agreement by the plaintiff, failed to show performance thereof by the defendant, or that the defendant’s mere promise was made and accepted in satisfaction of the tort, set forth no valid defense, and was properly stricken on motion. Molyneaux v. Collier, 13 Ga. 406 (12) ; Lowry v. Sloan, 51 Ga. 633 (2) ; English v. Reid, 55 Ga. 240 (2) ; B. & W. Ry. Co. v. Clem, 80 Ga. 534 (4) (7 S. E. 84) ; Long v. Scanlan, 105 Ga. 424, 427 (31 S. E. 436) ; Fouché v. Morris, 112 Ga. 143 (37 S. E. 182) ; Kennedy v. Maddox, 15 Ga. App. 684 (84 S. E. 153) ; Spence v. Carter, 33 Ga. App. 279, 283 (125 S. E. 883); 1 C. J. 576.

3. The evidence did not demand the conclusion that the collision was the result of unavoidable accident. The verdict was authorized.

Judgment affirmed.

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


text:
    17041.
    Carpenter v. Bryson et al.

    Garnishment, 28 C. J. p. 333, n. 35.
    Decided July 20, 1926.
    Garnishment; from Richmond superior court—Judge A. L. Franklin. December 5, 1925.

      Burnett & Burnett, for plaintiff in error.

      J. 8. Watlcins, contra.
   Bell, J.

By the provisions of the act of December 18, 1901, amending section 4719 of the Code of 1895, where a garnishment has been dissolved by the defendant in the main case, if the garnishee fails or refuses to answer1, judgment by default may be rendered against him for such amount as may have been obtained by judgment against the defendant; and upon such judgment against the garnishee being entered, judgment may be had for the amount thereof against the defendant and the sureties on the bond to dissolve the garnishment. Georgia Laws 1901, p. 43; Civil Code (1910), § 5281. The decision in Garden v. Crutchfield, 112 Ga. 274 (37 S. E. 368), cited by the plaintiff in error, was rendered in 1900, and so much of it as might otherwise have been applicable in the present case has been superseded by the act of 1901. No error in the court’s judgment.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    17099.
    ATLANTA GAS-LIGHT COMPANY v. COOK.
    1. It can not be said as a matter of law that the amount of the verdict returned for the plaintiff is excessive. Realty Bond & Mortgage Co. v. Hartley, 19 Ga. App. 186 (91 S. E. 254).
    2. A reading of the charge discloses that the contentions of both plaintiff and defendant were stated with fairness to each litigant, and with sufficient clearness and distinctness. “The mere fact that the contentions of the plaintiff were stated at more length than those of the defendant did not indicate that undue stress was laid upon, or undue prominence given to, the former.” Phiniey v. Bush, 135 Ga. 678 (3) (70 S. E. 243).
    3. The court correctly charged the jury that the plaintiff could not recover upon any ground of negligence not set forth by the petition. This ehai'ge could not reasonably be said to be confusing to the jury by reason of the fact that the court had previously eliminated from their consideration certain specific grounds of negligence. The charge upon this subject, when construed in its entirety, must necessarily have been taken to mean that the defendant could not be held liable for any negligence save the grounds set forth and not thus excluded by the charge.

      Damages, 17 O. J. p. 1064, n. 2; p. 1077, n. 26; p. 1109, n. 68.
    Negligence, 29 Oye. p. 646, n. 57.
    Trial, 38 Cyc. p. 1603, n. 59; p. 1626, n. 69; p. 1675, n. 65; p. 1694, n. 57; p. 1747, n. 71 New; p. 1778, n. 73.

      4. The exception to the charge whereby the jury were instructed that they might find for the plaintiff on account of lost time, on the ground that the petition did not set forth nor did the evidence substantiate any such claim, is without merit, since the petition alleges the previous earning capacity of the plaintiff, and that his earning capacity was totally destroyed, and the evidence sufficiently shows that he was out of employment for a fixed period of at least eight weeks. N., 0. & St. L. Ry. Oo. v. Miller, 120 Ga. 453 (47 S. E. 959, 67 L. R. A. 87, 1 Ann. Cas. 210).
    5. The ruling in Rinson v. Rooks, 27 Ga. App. 430 (108 S. E. 822), to the effect that it might amount to. reversible error, in charging the provisions of the Civil Code, § 5732, to fail to include in the charge the provision that “the jury may also consider the number of witnesses, though the preponderance is not necessarily with the greater number,” could in no event have application here, since the number of witnesses to the accident introduced on behalf of the plaintiff and on behalf of the defendant were the same.
    6. Exception is taken to the failure of the court, on its own motion, to call especial attention to the documentary evidence introduced by the defendant. The only writing introduced by the defendant consisted of a diagram showing the location where the accident occurred; and the court did instruct the jury, that, “in considering the question as to whether the plaintiff was negligent, you may consider all of the surrounding facts and circumstances as shown by the evidence. Likewise, in considering whether the conduct of the driver of the defendant’s truck was negligence, you may consider all the facts and circumstances.” There was nothing in the charge which might be construed as limiting the evidence entitled to be considered to oral testimony, and the record shows that the diagram referred to had been explained in detail by a witness for the defendant. While it has been held that where material physical evidence was introduced upon the trial, an instruction by the court to the jury, that “the evidence from which you must determine the facts must be presented from the lips of the witnesses who have been sworn and who have testified in the case,” was error (Middleton v. State, 29 Ga. App. 375, 115 S. E. 277; English .v. Poole, 31 Ga. App. 5.81 (5), 121 S. E. 589), no such charge of limitation is here complained of. In point of fact the charge as actually given did not exclude, but was broad enough to include, all of the evidence, including the diagram; and in the absence of any request so to do, the mere omission to call especial attention to the diagram which had been fully explained by oral testimony could not amount to reversible error.
    Decided July 20, 1926.
    Damages; from Fulton superior court—Judge E. D. Thomas. December 13, 1935.

      Underwood, Pomeroy & Haas, for plaintiff in error.

      Reuben R. & Lowry Arnold, contra.
   Jenkins, P. J.

The plaintiff, a police officer of the City of .East Point, Georgia, while pursuing an alleged violator of the city and State speed laws, and after following him beyond the city limits of East Point, collided with the truck of the defendant company, and thereby received serious injuries, resulting in the loss of a leg. At the time the accident occurred the plaintiff, in the uniform of a policeman, and at a distance of about a block behind the automobile he was pursuing, was, according to the evidence for plaintiff, traveling at a rate of speed of about 25 miles per hour. According to the evidence for the .defendant, his speed was between fifty and sixty miles per hour. The accident occurred in the main highway leading towards Atlanta, which was paralleled on the right by a double line of street-car tracks, and at the intersection of another street from which the defendant’s agent was driving his truck at a rate of speed of about five miles per hour into the main highway. At the moment of impact the driver of defendant’s truck was turning to the left down the main highway towards East Point, in the direction from which the plaintiff was coming. There was evidence for the plaintiff, going to show that his approach was visible to the driver of the truck along a straight road for a distance of about 800 feet, and that when the truck reached the street-car tracks, just prior to entering upon the main highway, it appeared to slow up as if it was intended to be stopped. The plaintiff testified that he veered his motorcycle to the left for the purpose of passing the truck, but that the truck, instead of stopping, as appeared to have been indicated, quickened its speed, and by reason of this the collision occurred. The jury found for the plaintiff in the sum of $10,000.

The defendant, in its brief as the plaintiff in error, does not appear to rely or insist upon the general grounds of the motion for new trial, but does insist upon the exoessiveness of the verdict. The brief sets forth as follows: “It is difficult to understand how, under the facts of the case, a verdict for the plaintiff at all could have been rendered; but having found against the defendant, it was incumbent on the jury to reduce the size of the verdict in accordance with the amount of negligence attributable to the plaintiff, and in this view of the case the verdict of $10,000 is grossly excessive and should be set aside.” The grounds of negligence alleged, and which the jury were permitted under the charge to consider, were that the defendant’s agent had a plain and unobstructed view of the approaching plaintiff for a distance of about 800 feet, while the latter in uniform was manifestly engaged in pursuing an escaping criminal, and negligently and without giving any warning of his intention to do so, turned from, a side street so as to come immediately in front of the approaching plaintiff, and between him and the man he was pursuing, so as to Tender the collision unavoidable. «

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17111.
    DENSON et al. v. WARM SPRINGS BANKING CO.
    The evidence not demanding the verdict rendered for the defendants, under repeated rulings of this court the first grant of a new trial can not be interfered with.
    Appeal and Error, 4 C. J. p. 832, n. 47.
    Decided July 20, 1926.
    Complaint; from city court of Greenville—Judge Revill. December 23, 1925.

      B. A. McQraw, for plaintiffs in error. N. F. Culpepper, contra.
   Jenkins, P. J.

This was a suit by the bank on a promissory note originally in the principal sum of $141.05, dated October 15, 1921, signed by Lou Denson as principal, and indorsed by Eddie Terry, her son-in-law, as -surety. The defendants filed a plea of non est factum, which denied the execution of the note sued on Eor further plea and answer they set up that the note sued on purports to have been given in renewal of a previous note executed by the defendants in the sum of $137.50, dated February 25, 1920, bearing interest from maturity [on which $125 was actually advanced] , and that the renewal note, if it in fact was signed by the defendant Lou Denson, who was illiterate, was fraudulently procured, in that the previous note for which it was given in renewal had at that time been more than fully paid off and discharged. They filed an additional plea by way of amendment setting up that certain of the payments which had been made upon the previous note by Lou Denson had, wrongfully and without authority, been applied by the plaintiff in extinguishment of a note made by one Robert Terry, another son-in-law, in the principal sum of $95, for which defendants were in no way responsible. On the trial the defendant Eddie Terry admitted his signature as indorser, and there was abundant testimony by the person who witnessed the execution of the note that the defendant Lou Denson had also executed the same by her mark. The jury found a verdict in favor of the defendants, which was set aside by the trial judge on a motion made by plaintiff for a new trial.

The record in the case, which is very voluminous, has been examined with care, as well as the very exhaustive brief of counsel for plaintiffs in error; but it is difficult to arrive at a very clear comprehension as to what might or what might not have been proved by the defendants upon the question of payment. Counsel for plaintiffs in error sets forth in his brief that “the only evidence ever offered by the plaintiff of any debt ever owed by Lou Denson was for the $125.00 loan to Eddie Terry for the leg of his wife, which was in 1920 in the spring, the only other evidence whatever being that before then Lou Denson had a course of dealings with the bank. The court can not presume, from that testimony that Lou Denson had had dealings with the bank for a course of years, that she owed them any money other than that of the .$125.00.” It appears, however, from the documentary evidence introduced by the defendant Lou Denson herself, that she had in her possession two notes executed by her, which had been cancelled and surrendered to her by the bank, one for the principal sum of $100, dated March 16, 1920, and the other for $137.50, above referred to, dated February 26, 1920. On each of these notes there is an entry “paid by renewal, • 10-15-21,” that being the date on which the note sued on was executed. On the $100 note there were credits of various amounts aggregating $79.62, and the note sued on showed credits of $22. it seems to be undisputed that the defendant Lou Denson had paid the bank on her indebtedness a bale of cotton taken at a valuation of $108, including which she sought to show payments to the bank during 1920 and 1921, amounting to $191.25. It thus appears that the payments, either as acknowledged by the bank or as claimed by the defendant, did not completely satisfy the two notes mentioned as owing by the defendant Lou Denson; and consequently it can in no wise be said, even under the defendant’s evidence, that a general verdict in favor of the defendant was demanded by the.evidence. Therefore this court could not legally or properly set aside the judgment of the trial court granting a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17114.
    North Georgia Trust & Banking Co. v. Hulme et al.

    Bills and Notes, 8 C. J. p. 466, n. 29, 30; p. 720, n. 17.
    Decided July 20, 1926.
    Complaint; from city court of Elberton—Judge Nall. December 23, 1925.

      G-. A. Johns, Z. B. Rogers, for plaintiff.

      J. T. Bisk, for defendants.
   Jenkins, P. J.

“If one without notice sell to one with notice, the latter^ is protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.” Civil Code (1910), § 4535. Hancock v. Gumm, 151 Ga. 667 (2) (107 S. E. 872, 16 A. L. R. 1003) ; Branch v. Dublin and Laurens Bank, 21 Ga. App. 439 (94 S. E. 629). In the instant case, while it appears from the disputed testimony of the defendant that the plaintiff at one time had the note in its possession as custodian for the payee, and, while in such possession and prior to its maturity, was given notice by the defendant of the defense thereto, it is nevertheless true that the plaintiff’s proof that it subsequently ■ obtained the note from another bank whose entire assets it acquired was in no way disputed, this" fact being shown by the books of the other .bank introduced in evidence, as well as by the testimony of the plaintiff’s cashier. Since the.bank from which the plaintiff acquired its title ta the note purchased it prior to its maturity, and it not being contended that such other bank had any notice of the defense pleaded by the defendant, the principle of law set forth by the code section quoted above is controlling, and the verdict in favor of the defendant was unauthorized.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17119.
    NEAL, administratrix, v. HARBER, et al., executors.
    1. Where a person’s name is signed for him, at his direction and in his presence, by another, the signature becomes his own. The relationship of principal and agent is not thereby created, nor does the doctrine of such a relationship become- involved. 36 Cyc. 451, e. See also Civil Code (1910), § 3846. Where an agent, acting in his fiduciary capacity and exercising his discretion as such, signs for his principal, he thereby binds his principal by virtue of his authority as agent; but where a person’s name is written for him, at his direction and in his presence, by another, the signature is his own, and the person thus writing his name is but the mere instrumentality by which the person bound exercises his own discretion and acts for himself. Moreover, even if the rule were otherwise, and it were possible to say that the relationship of principal and agent could be thus established, under the principles of that doctrine the power and authority of such an agency would extend no further than the special purpose for which it was created; and in the instant case, it being apparent to all parties concerned at the time of the transaction that the wife was merely authorized by the husband to indorse his name on the cheek for him and in his presence, and there being nothing to indicate any authority delegated to her by which she could thereafter designate the purposes for which the money was to be used, the creditor had the right to appropriate it at his election. “When a payment is made by a debtor to a creditor holding several demands against him, the debtor has the right to direct the claim to which it shall be appropriated. If he fails to do so, the creditor has the right to appropriate at his election.” Civil Code (1910), § 4316.
    2. Assuming, but not deciding, that the deed given to secure the note sued on was void on account of uncertainty in the description of the land conveyed, neither the grantor nor his administrator could be heard to attack it on such ground by resisting the setting up of a special lien upon the property as described, since for themselves they would be estopped from setting up such invalidity; nor would they be entitled to thus intervene for the protection of other persons who might have an interest in attacking the validity of the conveyance, but who would not be bound by the judgment, and who would be entitled to protect their own interests by proper proceedings taken in their own behalf. 27 Cyc. 1550, b; Ball v. Davis, 73 Ga. 101; Marable v. Mayer, 78 Ga. 60; Ball v. Armor, 68 Ga. 449 ( 4) ; Orosby v. DeGraffenreid, 19 Ga. 290; Moran v. Banh of Forsyth, 129 Ga. 599 (59 S. E. 281).
    Agency, 2 C. J. p. 584, n. 10; p. 585, n. 14.
    Appeal and Error, 4 C. J. p. 939, n. 22.
    Deeds, 18 C. J. p. 158, n. 70.
    Mortgages, 27 Cyc. p. 1551, n. 95, 97.
    Payment, 30 Cyc. p. 1228, n. 54; p. 1233, n. 73.
    Signature, 36 Cyc. p. 451, n. 2-8.
    Vendor and Purchaser, 39 Cyc. p. 1663, n. 19 New.
    Decided July 20, 1926.
    Complaint; from city court of Elberton—Judge Nall. December 22, 1925.

      0. P. Martin, John J. Strickland, Rupert A. Brown, for plaintiff in error.

      E. Q. Stark, contra.
   Jenkins, P. J.

Neal was indebted to the estate of G-. W. D. Harber in the sum of $1,000, evidenced by a certain promissory note secured by a deed to a tract of land described as follows : “All that tract or parcel of land lying and being in Franklin County, Ga., Ashland District G. M., and bounded as follows: Beginning at a stone S. 14 W. 8.94 to P. 0. near Boyston Boad, thence S. 23-1/2 E. 12.10 to Hickory, thence S. 12-3/4 E. 12.00 to Pine, thence S. 16.00 W. 19.00 to stonepile, thence N. 47-1/4 W. 22.50 to stone, thence N. 51-1/4 W. 7.13 to stone, originally white oak, thence N. 15.00 E. 24.10 to stone agreed on, pne fpot East of Hickory, thence N. 23-1/2 E. 15.00 to Hickory, thence S. 71-1/4 E. 9.00 to beginning stone corner; containing ninety three and 3/4 acres, more or less.” Neal also owed said Harber estate an additional sum of $10,000, which was secured by deed to other lands, and as additional security for which the bond for title executed by Harber to Neal, conditioned to reconvey the tract above described upon payment of said debt of $1,000 secured thereby, had been transferred to the estate of said Harber. The Atlas Insurance Company owed Neal approximately $5,000 on a claim for loss sustained by him on account of the burning of certain property insured. Neal executed to the executors of the Harber estate an order on the insurance company for the payment of $2500 of the amount due him by the insurance company, to be applied on the debts he owed the Harber.estate. This order was never accepted by the insurance company, but a draft in the amount due to Neal was delivered to one of the executors of the Harber estate, who carried it to the residence of Neal to procure his indorsement thereon. Neal had been wounded by a gunshot, and was very seriously sick at the time the executor visited him, and died within thirty minutes after he left. The executor of Harber told Neal what he desired, but Neal was too weak to indorse the draft himself and directed his wife to indorse his name thereon, which she did in his presence. The executor then inquired of Neal whether he could not pay more than the $2500 theretofore agreed to be paid from the proceeds of the insurance claim; and Neal replied that he could not do so, for the reaspn that he would need some money on account of his sickness. The executor then inquired of Neal how he desired the payment of $2500 appropriated, whether to the note for $10,000, or whether he desired the note for $1,000 retired and the balance of the payment applied to the other note. Neal made no reply, but his wife told the executor that “we wanted it applied on the home place and get it free from debt.” The note for $1,000 was secured by deed to the tract of land above described, known as the “home place.” The executors of the Harber estate applied all of the payment of $2500 as a credit on the $10,000 note, and, after the death of Neal, brought suit against his administratrix upon the $1,000 note, praying for a special lien upon the land described for the amount of the judgment sought. The administratrix filed a defense in which she set up that the note sued on had been paid,’ by reason of the fact that her intestate had directed the appropriation of the proceeds of the draft above described, so far as necessary, to the extinguishment of the note sued on, but that instead of complying with such direction the executors had applied all of the payment as a credit on the note for $10,000. She further set up, by way of amendment, that the description in the deed executed by Neal to secure the note sued on was too vague, indefinite, and uncertain to render the subject-matter of the deed capable of identification, and that therefore the deed was void and the plaintiffs were not entitled to the special lien asked for thereon, but that defendant, as administratrix of her husband’s estate, was entitled to administer the same for the benefit of the creditors, and to apply the proceeds according to the priorities established by law. On written motion by plaintiffs the trial judge struck the amendment. To this ruling the defendant filed exceptions pendente lite, and now assigns error thereon. The case proceeded to trial; and the jury returned a verdict in favor of the plaintiffs in the full amount of the $1,-000 note sued on, with interest, and further found for the plaintiffs a special lien on the property described for the amount of the verdict. Motion for a new trial was filed by defendant. It was overruled, and she excepted.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17120.
    NEAL, administratrix, v. HARBER et al., executors.
    On a bond executed by tlie grantee in a security deed, conditioned to re-convey title to the grantor (debtor) on payment of the secured debt, a purported transfer back to the “estate of” the named grantee was void; and the debtor’s administratrix was entitled to resist a proceeding based on such transfer.
    Decided July 20, 1926.
    Report of case preceding gives description and counsel’s names.
   Jenkins, P. J.

This case is controlled in every material respect, save one, by the decision this day rendered in the case of Neal v. Harber, No. 17119, ante, 626. The instant case was a suit by Harber’s executors on the $10,000 note referred to in the statement of facts in that case. The plaintiffs sought to set up a special lien on 250 acres of land deeded by Neal to Harber to secure the note sued on, the defendant administratrix resisting the establishment of such lien by attempting to set up that the inadequate description of the 250 acres rendered that deed void for uncertainty. This defense was stricken on motion. Plaintiffs below also sought to set up a special lien on the 93 acres referred to in the other case, by virtue of a purported transfer of the bond for title given by Harber to Neal in the $1,000 transaction back to the “estate of G. W. D. Harber.” The effort to set up a special lien on the 93 acres was resisted, not only on the ground that the alleged inadequate description of the 93 acres rendered the bond void, but for the additional reason that the purported assignment to the “estate of G. W. D. Harber” was on its face utterly null and void. This latter contention constitutes the only question not controlled by the adjudication made in the other case referred to. While, as adjudicated in that case, the grantor and his administrator would be estopped from attacking their own conveyance by setting up an alleged infirmity such as would-defeat the bona fide purposes of its execution, such rule would not prevent the grantor or his administrator from denying its bona fide execution, nor would it prevent them from setting up the entire absence of any legal transfer of the bond. It being absolutely essential to such a conveyance or transfer that there shall be a person in esse to whom the conveyance is made or to whom the bond is assigned, and the purported assignee in the instant case not being such, the alleged transfer is absolutely null and void, and the defendant was entitled to resist a legal proceeding founded thereon. Davis v. Hollings worth, 113 Ga. 210, 211 (38 S. E. 827, 84 Am. St. R. 233); McInerney v. Beck, 10 Wash. 515 (39 Pac. 130); Simmons v. Spratt, 1 So. 860 (Florida); 27 Cyc. 1550, b. Accordingly, the judgment in JEavor of the plaintiff is affirmed, with direction that that portion of the judgment setting up a special lien on the 93 acres be vacated.

Judgment affirmed, with direction.

Stephens and Bell, JJ., concur.


text:
    17127.
    OCEAN ACCIDENT & GUARANTY CORPORATION LIMITED v. COUNCIL.
    1. The terms of the workmen’s compensation act (§ 39a), while providing that a wife shall be conclusively presumed to be dependent upon the husband, specifically excepts from such provision a wife who has voluntarily deserted or abandoned the husband at the time of the accident. Park’s Code Supp. 1922, § 3154(mm), (a).
    2. It is’ well settled that the findings of the industrial commission on questions of fact, which would include any issue upon the question of voluntary desertion by a claimant wife, if supported by any evidence, are conclusive. Georgia Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881); New Amsterdam Casually Go. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786) ; Travelers Insurance Co. v. Bacon, 30 Ga. App. 728 (119 S. E. 458) ; London Guarantee cGc. Co. v. Shockley, 31 Ga. App. 762 (122 S. E. 99) ; American Mutual Liability Insurance Co. v. Adams, 32 Ga. App. 759 (124 S. E. 801) ; United Stales Casualty Co. v. Matthews, 35 Ga. App. 526 (133 S. E. 875) ; Maryland Casualty Co. v. England, 160 Ga. 810, 812 (129 S. E. 75).
    3. The finding of the commissioner before whom the case was originally tried, that the claimant was not entitled to compensation on account of her admission “that she had voluntarily left her husband,” was a conclusion of law, based upon her own testimony. The finding of the full commission on appeal, affirming the award but adverse to the holding of the commissioner upon the effect of claimant’s testimony, amounts to an adjudication by the commission that the claimant had made out a prima facie case by showing that her separation was not voluntary, but was brought about by the dereliction and misconduct of the husband. The judgment of the superior court, holding in effect that the case thus made by the plaintiff was in no wise controverted by the testimony offered in rebuttal, is borne out by the evidence. This rebuttal testimony, in so far as it throws any real light upon the question in issue, tends to sustain rather than to controvert the testimony of the claimant.
    Workmen’s Compensation Acts, C. J. p. 59, n. 60, 61; p. 122, n. 40.
    Decided July 20, 1926.

      Appeal; from Wilkinson superior court—Judge Park. December 15, 1935. ' -

      Ralph G. Sims, for plaintiffs in error.

      Allen & Pottle, contra.
   Jenkins, P. J.

There was no dispute that the death of plaintiff’s husband arose out of and in the course of his employment, the only point of contest being as to whether the wife had lost her right to recover by reason of having voluntarily deserted him. The claimant testified that she was the widow of the deceased employee; that she married him on June 7, 1913, and lived at Gordon’s Mill in Wilkinson County; that later she and her husband moved to his father’s residence in Wilkinson County; that they did not live there long, but later moved back to her father’s home in Macon, Ga.; that she and her husband thereafter moved to McIntyre, Ga., and then back to her husband’s father’s place; that they did not live in her father-in-law’s home, but lived in a tenant-house which had been shortly before occupied by colored people; that she was not living with her husband at the time of his death; that she had been separated from him a little more than three years; that she left her husband for three good reasons, to wit, cruel treatment, habitual drunkenness, and non-support; that her husband repeatedly threatened to do her violence, and on more than one occasion he actually did do her physical violence by beating her; that he was guilty of staying away from home all night and all day on many occasions; that he was under the influence of liquor at various times, and when under the influence of liquor he was very rough, wanting to tear things up, and kill and whip; and that her husband failed to furnish her with the necessities of life. A first cousin of the decedent testified that he knew the decedent well; that he was his cousin; that he saw him nearly every day; that he did not know decedent’s habit as to drinking whisky, because he did not follow him much; that they said lie drank a good deal; that he had that reputation; that he could not say that he ever saw him under the influence of whisky; that he thought he was, but did not personally know it; that he could not tell as to his conduct while drinking, because he did not see him drunk to know it; that he never saw him take a drink; that he did not see him stagger; that he boarded with them a while; that he did not know definitely why she left him; that she never stated her reason for leaving; that while he stayed there he never saw him come in and beat her; that he did not know anything about his not supporting her; that he did not stay there but a week, which was some time after they married; that if they had been fighting he would not have stayed that long; that he never heard him using violent language just before they separated; that before he stayed there he stayed at home, about a mile away; that he stayed at home about two years; that during the time he stayed at home he never heard of him being drunk and beating his wife; that he guessed he provided for her the best he could; that he knew nothing to cause her to leave him; that he knew nothing of her leaving him on account of his being drunk or rough, or for beating her, or for non-support. The father of the decedent testified that plaintiff left his son; that witness lived about a mile from them; that he had been in their home; that he never knew of his son treating his wife cruelly; that he did not know of his son drinking to amount to anything, “you know how boys are, they will take a drink once in a while;” that this is the first time he ever heard of his wife complaining that her husband beat her; that he thought it could be proved by a number of people that he did support her; he did support her; she left him because she wanted to go away and live; that his son said he carried her to McIntyre and gave her some money; that he had never supported her since; that he thought he had seen his son take a drink; that he did not know that he had seen him under the influence of whisky; that he did not think his son’s wife was much help to her husband; that he did not know that he had ever heard his son complain. A brother of the decedent testified that he saw a letter from the claimant to the decedent, in which she went on to say, “as far as I am concerned you are a free man, I am leaving and wish you well,” that she did not say anything about his not supporting her; that he was at decedent’s house two or three times a week; that he never saw him come home drunk; that he never saw him beat his wife; that he never heard her making any complaint about it before to-day; that he had a plenty of ordinary food about his house; that he did not know what kind of a wife she made him; that they seemed to be happy; that they had their ups and downs, that he did not know why she left him; that he never heard the decedent say; that decedent took a drink once in a while, that he had seen him take several; that he took it with him; that he had seen him slightly under the influence of whisky.

The commissioner found in favor of the defendant, basing his judgment on “the admission of Mrs. Council that she had voluntarily left her husband.” On a review of the case by the full commission on the evidence had before the single commissioner, the full commission concluded its finding as follows: “We do not agree with Commissioner Kilburn in his statement that the claimant admitted she voluntarily abandoned her husband, but in light of the testimony as a whole, the sole commissioner having had the opportunity of hearing • the witnesses testify, having seen their demeanor on the stand and their manner of testifying, we are unwilling to reverse the award made by him; and the award of Commissioner Kilburn is therefore affirmed.” On appeal this judgment of the full commission was reversed by the judge of the superior court.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17131, 17132.
    PARKS v. WASHINGTON & LINCOLNTON RAILROAD COMPANY; and vice versa.

    1. Among the essentials of a valid contract there must be a subject-matter upon which it can operate. Civil Code (1910), § 4222. It is true that if a contract amounts to an executory agreement for a bona fide sale of property of a character such as under the circumstances and under the law can be legally made the subject-matter of a sale, and is not merely speculative in character, the parties may be bound, although the subject-matter of the sale has no existence at the time the agreement is entered upon, and the seller expects to comply with his contract by subsequently acquiring the property thus agreed to be conveyed. Forsyth Mfg. Go. v. Oastlen, 112 Ga. 199, 201 (37 S. E. 485, 81 Am. St. R. 28) ; Jones v. Fuller, 27 Ga. App. 84 (107 S. E. 544) ; Gilbert v. Gopeland, 22 Ga. App. 753 (97 S. E. 251). It will be observed, however, that in order for the principle just stated to have application, there must be no legal inhibition upon the right of the seller to do the thing which he contracts to do; and if at the time the seller contracts to perform he is incapacitated to comply, by reason of the fact that the property which constitutes the subject-matter of the sale can not legally be made the Subject-matter of a sale, for which reason delivery can not be enforced against the seller, then, under such circumstances, neither is the purchaser bound by a corresponding obligation on his part, since if both parties are not bound neither is bound. In accordance with the foregoing principle of law, an executory contract by an existing railway corporation for the sale of a portion of an issue to be made of preferred stock, but which it is without legal authority to issue or convey, is void for the lack of a valid consideration moving to the purchaser, and he is not liable on a note given for its purchase, where there has been no subsequent conduct on his part amounting to a ratification of the unauthorized agreement after legal authority for the issuance of such stock has been obtained. It appearing by the allegations of the petition that at the time the alleged contract of purchase and sale was made and the note for the share of such preferred stock was executed, the payee corporation had not only failed to obtain the consent of the governing authorities required by law to approve such issue, but was without charter authority to issue the same, and it not appearing by the petition that after such authority had been obtained the defendant in any way ratified the invalid agreement, the petition failed to set forth a cause of action, and should have been. dismissed. It was likewise error to strike that portion of the plea setting up this defense, in which it 'was alleged that the defendant, upon being told by the plaintiff that it was unable to deliver the stock, repudiated his subscription Clark v. Turner, 73 Ga. 1.

      Contracts, 13 C. J. p. 238, n. 4; p. 330, n. 14.
    Corporations, 14 C. J. p. 510, n. 67; p. 656, n. 17.
    Evidence, 22 C. J. p. 1152, n. 7.
    Sales, 35 Cyc. p. 45, n. 96; p. 46, n. 5; p. 87, n. 41; p. 88, n. 43.

      2. The suit is founded upon a written and unconditional promise to pay a certain sum for a described share of preferred stock of the plaintiff company. The plea sets forth that the promoters of the sale of the stock stated to defendant that such unconditional agreement would noi be binding unless a certain minimum amount of stock was purchased; and it is alleged in the plea that such minimum amount of bona fide subscriptions was never obtained, in that certain of the subscribers were insolvents, known to be such by the promoters taking the subscriptions, and that the corporation, in the exercise of ordinary diligence, should have been aware of that fact. This case differs from that of Macon Union Co-op. Asso. v. Chance, 31 Ga. App. 636 (3) (122 S. E. 66), and the cases therein cited, in that in those cases such condition was set forth as a part of the subscription contract. In the instant case the promise to pay by the defendant being absolute and unconditional, and the consideration therefor being fully expressed in the writing itself, it is not competent for the defendant to vary by parol the effect of the instrument by setting up a contemporaneous understanding or agreement in conflict therewith, by which the absolute and unconditional promise to pay is made conditional. Boynton v. Twiity, S3 Ga. 214; Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86) ; Hvrsch v. Oliver, 91 Ga. 554 (18 8. E. 354) ; Jlheney v. Anderson, 22 Ga. App. 417, 419 et seq. (96 S. E. 217). Accordingly, that part of the plea setting up such defense should have been stricken on demurrer.
    Decided July 20, 1926.
    Complaint; from Lincoln superior court—Judge Park presiding. December 31, 1925.

      Application for certiorari was made to the Supreme Court.

      Burnside & McWhorter, for Parks.

      W. A. Slaton, contra.
   Jenkins, P. J.

This was a suit by the Washington & Lincoln-ton Eailroad Company against A. G. Parks, upon a promissory note dated April 8, 1920, maturing December 1, 1920, and containing the following provision: “This note having been given for one share of the preferred stock of the Washington & Lincoln - ton Eailroad Company, it is understood that upon payment of same the said Eailroad Company shall deliver to the maker thereof the number of shares of said stock mentioned herein.” The petition alleges, in substance, that at the time of the execution of said note there was no preferred stock of the Washington & Lincolnton Eailroad Company, and that the charter of said corporation did not at that time authorize the issuance of preferred stock; that on. March 4, 1920, by a proper resolution of the stockholders of said corporation it was voted to issue and sell $100,000 of preferred seven per cent, stock of the corporation; that pursuant to such resolution application was made to the Secretary of State for an amendment to the charter of the corporation to authorize the issuance of such stock; that on May 24, 1920, the charter was so amended; that the corporation also applied to the Eailroad Commission of Georgia for permission and authority to issue such preferred stock in the amount provided by the resolution of the stockholders, and that on April 15, 1920, this permission and authority was granted by the Eailroad Commission; that thereafter, on June 27, 1920, an act of Congress known as the “transportation act of 1920” became effective, and under the provisions of that act petitioner applied to the Interstate Commerce Commission of the United States for permission and authority to issue said preferred stock voted to be issued by the stockholders, and on June 20, 1921, by proper order, the Interstate Commerce Commission authorized the issuance and sale of said preferred stock; and that the corporation had incurred indebtedness on the faith of subscriptions to such stock, and had expended large sums of money in the improvement of its tracks and property. It is set up by way of amendment to the petition, that at the time of filing the suit the corporation was indebted to the persons and corporations furnishing it money and materials for the improvement of its property, and that it was necessary to collect said stock subscription note in order to pay these debts.

Defendant filed a plea in which he set up by way of affirmative defense, in paragraph 12, that at the time he executed the note sued on it was represented to him by a committee of citizens engaged in selling the stock that the plaintiff was undertaking to sell $100,000 worth of such preferred stock, and that unless that amount was sold it would return defendant’s note to him, and the same would be binding only in the event the plaintiff sold said issue of $100,000; that while the plaintiff and said committee obtained subscriptions amounting to $100,000, many of them were from people known by the committee and the plaintiff to be insolvent, or the plaintiff should have known, by the exercise of ordinary diligence, that such subscribers were insolvent; and therefore that he was not liable on the note sued on. The defendant further set up, in paragraph 13 of his answer, that he had been ready and willing to pay said note at its maturity, and went to the plaintiff’s collecting agent for the purpose of paying the note and receiving the stock agreed to be purchased, but was notified that said stock had not been issued and could not then be issued, because the plaintiff had not received legal authority to issue it, and that he could only be given a receipt for the payment until such authority was granted; whereupon he notified the plaintiff’s agent that if he could not get the stock then he would not take it at all. He further set up, in paragraph 14 of his answer, that the consideration of the note had totally failed, in that there was no preferred stock of the plaintiff corporation in existence at-the time of the contract of sale, and plaintiff had no authority to issue the same then or at the time of the maturity of the defendant’s note.

The defendant interposed a general demurrer to the plaintiff’s petition as amended, which was overruled by the trial judge; to which judgment exception is taken in the main bill of exceptions. The defendant also, by his main bill of exceptions, excepts to the judgment of the court in sustaining the plaintiff’s demurrer to paragraphs 13 and 14 of the plea, relating to the invalidity of the note sued on, on account of the plaintiff’s admitted incapacity to issue and sell the stock for which it -was given, at the time the contract of sale was effected; and setting up that defendant repudiated his contract of purchase upon being informed by the plaintiff, at the time of the maturity of his note, that it was then unable to issue and deliver the stock. By a cross-bill of exceptions the plaintiff excepts to the judgment overruling its demurrer to paragraph 12 'of the plea, relating to the alleged insolvency of certain subscriptions obtained by the plaintiff, which the plea alleges were necessary to make up the minimum amount of subscriptions that the committee obtaining them informed the defendant would be obtained before any of them would be binding. Our rulings on the demurrers appear in the syllabus.

Judgment reversed on each hill of exceptions.

Stephens and Bell, JJ., concur.


text:
    17150.
    BURDEN, SMITH & COMPANY v. McMILLAN.
    1. Ordinarily, the only duty owing to a trespasser is not to wantonly or wilfully injure him, but a failure to exercise ordinary care to prevent an injury to a trespasser after his peril has become apparent may amount to wantonness. Tice v. Central Ry. Co., 25 Qa. App. 346 (103 8. E. 262) ; Central Qa. Power Co. v. Wallcer, 20 Qa. App. 645 (93 S. E. 306).
    2, Under the view taken of the evidence in this case, it is unnecessary to determine whether the status of the plaintiff, at the time of the injury, was that of a passenger, an invitee, licensee, or a trespasser, since, even were it to be adjudicated that under the undisputed evidence he occupied the status of a trespasser, the jury were authorized, though not compelled, to find, under the evidence, that the defendant failed to exercise ordinary and reasonable care for his protection after his peril became apparent, as specifically charged by the petition.
    Negligence, 29 Cyc. p. 442, n. 94; p. 621, n. 92.
    Decided July 20, 1926.
    Damages; from Bibb superior court—-Judge Malcolm D. Jones. January 15, 1926.

      Broclc, Sparks & Bussell, Jones, Park & Johnston, for plaintiff in error.

      G. L. Shepard, T. S. Felder, contra.
   Jenkins, P. J.

The plaintiff, a child between three and four years of age, suing by his next friend, recovered damages in the sum of $7,500, on account of permanent injuries received while 'riding upon the elevator of the defendant company, which operated a department store in the City of Macon. The defendant moved for a new trial upon the general grounds only; and upon its motion being overruled it brings error. The allegations of negligence set forth in count one of the petition as amended, which was the count on 'which the recovery was had, charged negligence against the defendant in the following particulars: That the elevator operated by the defendant, and on which the plaintiff received his injuries, was without a door to the cage; that there was left between the cage and the elevator shaft a space sufficient for the plaintiff to become wedged within; that the elevator at the time of the injury was operated by a boy of insufficient judgment and experience; that upon the plaintiff becoming fastened between the cage and the shaft, the operator in charge of the elevator failed to promptly stop the elevator, as he could and should have done, in order to avoid the injury. It was alleged by this count of the petition that the space between the cage and the shaft narrowed as it reached the second floor, by reason of which fact the plaintiff, while wedged between the cage and the elevator, became seriously crushed and injured upon being dragged by the elevator against the protruding portion of the shaft.

It appears from the record that the mother and the father of the plaintiff had driven to Macon on the day of the injury, bringing the plaintiff and two other children with them; that the youngest child was left in the automobile with a nurse, while the mother took the plaintiff and his fourteen-year-old brother to the defendant’s department store, the mother and the two children riding from the first to the second floor, of the building on the elevator. After the mother had done some shopping on the second floor, she came back to the first floor by the elevator, bringing the two children with her. She then went to the shoe department on the first floor of the building and remained there about ten or twenty minutes. Meanwhile, she testified, she had left the plaintiff on the elevator with the permission of the elevator boy, the older boy going with the mother to the shoe department. The mother, upon leaving the store, in reply to a request from the older boy, gave him permission to go with the plaintiff to ride one more time upon the elevator. The mother then left the building, while the older boy went with the plaintiff to the elevator, where, in the meantime, a new and different operator had taken charge. After entering the elevator, the plaintiff became caught between the cage and the shaft, and was badly injured as above set forth.

The defendant contends that the status of the plaintiff at the time of the injury was that of a trespasser, or at most a bare licensee. The plaintiff contends that upon being received by the operator in sole and exclusive charge of the elevator, while engaged in the particular duties of his employment, the plaintiff took the status of a passenger, or at least that of an invitee. The plaintiff further contended, however, that in any event the verdict found by the jury was authorized under the principle of law set forth in the first division of the syllabus. The jury were authorized to find from the evidence that the elevator could have been stopped within a space of from twelve to twenty-four inches, and in fact that it was not stopped until it had traveled about eight feet upward after the plaintiff became fastened between the cage and the shaft, and his peril had become apparent to the operator.

Judgment afib'med.

Stephens and Bell, JJ., concur.


text:
    17154.
    McCrary v. Western & Atlantic Railroad.
    Rewards, 34 Cye. p. 1756, n. 79.
    Decided July 20, 1926.
    Complaint; from Bartow superior court—Judge Tarver. December 19, 1925.

      Joseph M. Lang, for plaintiff.

      Tye, Peeples & Tye, Neel & Neel, for defendant.
   Jenkins, P. J.

Where the plaintiff filed suit against the defendant,

Western and Atlantic Railroad, a separate and distinct corporation from the Nashville, Chattanooga and St. Louis Railway, for the recovery of a reward offered by the latter corporation, stipulating that “The Nashville, Chattanooga and St. Louis Railway will pay a reward . . for information resulting in the conviction of any one for the crime of wilfully tampering with . . its tracks . . or other portion of its roadway,” there was no error in dismissing the petition upon general demurrer. N., C. & St. L. Ry. Co. v. Edwards, 91 Ga. 24 (16 S. E. 347); Branan v. N., C. & St. L. Ry. Co., 119 Ga. 738 (46 S. E. 882) ; Armour Car Lines v. Summerour, 5 Ga. App. 619 (63 S. E. 667) ; Western & Atlantic R. Co. v. Peacock, 16 Ga. App. 772 (86 S. E. 389).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17167.
    SEALY, administrator, v. PIERCE.
    1. It can not be said that the verdict of the jury, upholding the contention of the plaintiff with respect to the disputed terms of the contract under which the machinery sued for was delivered, was unauthorized by the evidence. While the evidence as to the subsequent conduct of the plaintiff seemed to indicate the truth of defendant’s contention, the evidence for the defendant himself altogether fails to establish the contention relied upon by him.
    2. Moreover, irrespective of any lack of proof upon the question of insolvency, under the evidence submitted the entire dispute hinged upon the question as to whether, under the subsequent new agreement, the sawmill was loaned by the plaintiff to the defendant in settlement of the difference between them, or whether it was sold and delivered for ■ - such purpose.
    3. No error is shown, the other defenses set forth by the plea being in no wise sustained by the evidence.
    Replevin, 34 Cyc. p. 1507, n. 59; p. 1521, n. 70.
    Decided July 20, 1926.
    Trover; from city court of Arlington—Judge E. L. Smith. November 33, 1935.

      Terry Hendriclcs, A. L. Miller, for plaintiff in error.

      B. B. Jones, contra.
   Jenkins, P. J.

Pierce sued Sealy, as administrator of Rambo, in trover for the recovery of a sawmill. It appears that, prior to the death of Sealy’s intestate, Pierce had entered upon an agreement with Rambo to use his sawmill, engine and boiler, in sawing certain timber for Rambo at an agreed price; and that pending the preparations made to carry this contract into effect, Rambo had made certain advances to Pierce, for the purpose of enabling him to set up and repair the machinery and mill. After the death of Rambo, and prior to the appointment of Sealy as administrator, Pierce abandoned the performance of the contract previously entered upon with Rambo, and subsequently turned over to Sealy, the administrator, his engine, boiler, and sawmill, in order that.they might be used by the administrator for the sawing in contemplation. The dispute hinges upon the terms of the agreements by which this property was delivered; whether, as contended by the plaintiff, the machinery was loaned to the administrator for the purpose indicated, in settlement of the advances previously made to the plaintiff and all matters of dispute between them, or whether, as contended by the defendant administrator, the engine and boiler were loaned, and the sawmill, which constitutes the subject-matter of the present litigation, was sold and delivered to the administrator, in settlement of such differences. It appears that after the administrator had completed 'his work of sawing with the machinery received from Pierce, Pierce received back the engine and boiler, but that the administrator sold the sawmill to another person, and thereupon gave credit to Pierce for the amount of the purchase-price on the debt owing by Pierce for the advances referred to; that after the sale by the administrator to the purchaser of the sawmill, Pierce was employed by the latter to set up the mill for him; and that he made no claim to the mill on his own behalf. The evidence of Pierce sustained his contention that the entire machinery, engine, boiler, and mill, was loaned to the administrator in settlement of the difference between them. While the administrator testified that when the sawmill, together with the engine and boiler, was turned over to him, Pierce said “we could have the sawmill, and use the boiler, engine, and mill to saw the timber for what he owed,” he nevertheless repeatedly testified: “I would not make any agreement with him.” And it further appears from the evidence already indicated that the sawmill was not received or accepted in settlement of the accounts of Pierce; for when it was subsequently sold to a third person the administrator testified that he then gave credit to the plaintiff on what was owing by the latter.

The jury found in favor of .the contention of the plaintiff, and allowed him to recover a money verdict for the proved value of the sawmill. The defendant’s motion for a new trial was overruled, and he brings error. By his plea it was sought to recoup damages on account of the abandonment of the original contract for sawing, entered upon by the plaintiff and defendant’s intestate, it being alleged that under a subsequent contract made for the sawing an additional rate of $2 per thousand feet of lumber had to be paid, which damages were sought to be set off in the present action ; and exception is taken to the charge of the court with reference to this defense as follows: “I charge you that the defendant sets up as a defense that the plaintiff failed to carry out the contract alleged to have been made between himself and C. J. Rarnbo, and that it became necessary for the defendant to employ another party to carry out the contract at the expense of $2 per thousand feet of lumber more than the plaintiff contracted to saw the lumber for, by reason of such breach of contract on the part of the plaintiff that the defendant was damaged in the sum of $2 per thousand feet in getting the timber sawed into lumber; and the defendant contends that he is entitled to set off in such damage of $2 per thousand on 500,000 feet of lumber. I charge you that you will not be authorized to allow this set-off, for the reason that the evidence on the part of both the plaintiff and the defendant shows that the sawmill was taken over by an agreement between plaintiff and the defendant; while the evidence shows that there is a difference in the terms of agreement, at the same time the evidence shows that the mill property was taken over by the defendant by agreement, and therefore the set-off claimed would not be a legal claim against the plaintiff.” While the defendant alleged the insolvency of the plaintiff, the specific testimony in support of this allegation is as follows: The plaintiff testified: “I have no sawmill now. I did have a sawmill, but I sold it. I do not pay tax on any property now. I have some money in the bank. I manage to make a living. I do not own the house where I live; that belongs to my wife; I have no property.” J. E. Sealy testified that the plaintiff “was insolvent and did not have any money in which to make the repairs; he said he had no money and could not pay it; he owed the Eambo Lumber Company more than the sawmill was worth.”

Judgment affirmed.

Stephens and Bell, JJconcur.


text:
    17214.
    Williams v. Flanders.
    Attachment, 6 O. J. 465, n. 71.
   Jenkins, P. J.

“Though an attachment be absolutely void, this is no ground for dismissing a declaration thereon, praying for judgment in .personam, where the declaration has been properly filed and the defendant duly cited to appear, and general appearance has been made therein.” Falligant v. Blitch, 19 Ga. App. 675 (2) (91 S. E. 1057) ; Watters v. O’Neill, 27 Ga. App. 295 (2) (108 S. E. 257). Accordingly, where a declaration in attachment, praying for a general judgment in personam against the defendant, as well as a special lien upon the property levied upon under the attachment, is regularly filed, and personal service thereof had upon the defendant, and a general appearance has been made therein, it is not error to refuse the motion of defendant “to dismiss the declaration and cause of action,” upon the ground that the attachment is void.

Decided July 20, 1926.

Attachment; from city court of Soperton—Judge Blount presiding. October 5, 1925.

Saffold & Sharpe, for plaintiff in error.

N. L. Gillis Jr., Dallam B. Jackson, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17224.
    HOBBS v. HOBBS.
    The widow and heirs at law of a decedent may enter into a voluntary binding agreement whereby she is to take and receive a stipulated portion of the estate in lieu of her rights as widow, including the provision for a year’s support. In order for such agreement to be set aside, it must appear that it was induced by ignorance amounting to accident or mistake, or was procured by fraud or duress. In the instant case the evidence does not disclose on the part of the stepson any acts or conduct whatsoever amounting to duress, or the violation of any trust or confidence growing out of any close or fiduciary relationship. It does not disclose any false and fraudulent representations on his part, calculated to deceive the widow as to the status and condition of the estate or as to her legal rights as such widow; nor does it disclose any actual ignorance on the part of the widow with reference to such matters, taken advantage of by the opposite party, which are plainly and specifically set forth by the terms of the agreement entered into. On the contrary, the agreement as signed by each of the parties thereto, and testified without dispute to have been read to her before its execution, specifically refers to the extinguishment of her claim for year’s support; and the terms of the agreement not being within themselves unreasonable or unconscionable, such as might, of and within themselves, suggest or indicate fraud, there is nothing disclosed by the record in the instant case, just as there was nothing in the Biles case, 135 Ba. 683 (70 S. E. 335), mainly relied upon by defendant in error, to justify in any wise its being set aside as having been obtained through fraud or duress.
    Descent and Distribution, 18 C.' J. p. 888, n. 92; p. 890, n. 8, 9 Hew,
    Decided July 20, 1926.
    Appeal; from Tbomas superior court—Judge Knight presiding. February 13, 1926.

      Titus & Dekle, for plaintiff in error.

      J ames B. Burch, Eldon L. J oiner, contra.
   Jenkins, P. J.

A husband and father died intestate, leaving 50 acres of land of the probable value of $1,000, two acres of land alleged to have been worth $100, and personal property, after deducting an automobile sworn by the widow to be her own property, supposed to have been worth $1478.70. Subsequently to the death of the decedent, the son and the widow, who was the stepmother of the son and a young woman, entered into a written agreement whereby the personal property, including the automobile referred to, valued at $150, was to be divided equally between the widow and her stepson, it being conditioned that the son was to pay the debts of the decedent out of such portion going to him. These debts amounted to $332.04. It was further provided by the agreement that the widow was to have an estate for life, or until she married again, in the 50 acres of land valued at $1,000, and the son was to have the two acres of land alleged to be worth $100. Deeds were signed and delivered in accordance with the terms of such agreement, which was executed by the respective parties thereto going into possession of the property assigned to each, and by the son discharging the debts of the decedent. After such agreement had been made and executed, the widow filed application for a year’s support, which was granted, and by the terms of which she was given the entire real estate in fee simple, and an additional sum of $300. A caveat was filed by the son, and on the hearing before the ordinary the award of the appraisers was set aside, but. on an appeal to the superior court it was confirmed. A motion for new trial filed by the son was overruled, and exception to this judgment is now taken.

On the trial in the superior court the widow testified that the agreement was signed four days after the death of decedent; that at the request of the son she went with him to Thomasville, first to the clerk of the court, and afterwards to a lawyer, who prepared the agreement; but that she signed without reading the paper, and was unaware of her rights as the widow of the decedent. The record further indicates that the relations between the widow and her stepson were strained. The evidence for the stepson, by the witness to the agreement, was to the effect that the paper was read over to her by the witness prior to its being signed. The evidence of the lawyer who wrote the paper, and who was a witness thereto, was that she said before its being signed that she knew what she was doing. This testimony by the two witnesses to the instrument was not disputed, although the widow did testify that she did not know what the paper was, and that no one explained to her her rights. The agreement signed by the widow and the stepson specifically and in terms indicates that the agreement purported to be a complete division of the estate, expressly stating that the portion received by the widow thereunder was to be in lieu of all her rights of every sort, including dower and year’s support. There was testimony to the effect that the widow had previously stated that “she had rather have the 50 acres of land that her husband left, for her lifetime or until she married again, and one half of the personal property, rather than taire one half of all and have to pay any of the debts of the estate,” and that after she went in possession under the agreement she then stated that she was satisfied with the settlement. These alleged declarations on her part were, however, disputed by her testimony at the trial.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17232.
    Bugg, receiver, v. Ledford.
    Appeal and Error, 3 O. J. p. 1.410, n. 42; 4 O. J. p. 1068, n. 22.
    Railroads, 33 Cyc. p. 668, n. 94; p. 669, n. 95, 97; p. 976, n. 56.
   Bell, J.

1. “The reasonableness or unreasonableness of a city ordinance regulating the speed of engines or cars on the streets, is a question of law for the courts, and is not a question for the jury, unless it depends upon the existence of particular facts which are disputed. Such an ordinance may be reasonable as applied to one locality, and unreasonable as applied to another.” Metropolitan St. R. Co. v. Johnson, 90 Ga. 500 (7) (16 S. E. 49); Jackson v. Seaboard Air-Line Ry., 140 Ga. 277 (5) (78 S. E. 1059). “To justify courts in declaring void an ordinance limiting the speed of trains within a city, its reasonableness, or want of necessity as a police regulation for the protection of life and property, must be clear, manifest, and undoubted.” Central R. Co. v. B. & W. R. Co., 87 Ga. 386 (4) (13 S. E. 520).

2. An ordinance of the City of Atlanta, limiting the speed of trains to six miles per hour within the city, is upon its face a valid and reasonable regulation; and where the evidence showed a violation of the ordinance at a public street crossing, with resulting injury or death to a traveler in the street, the mere fact that a strict observance of the ordinance would greatly retard the work of dispatching trains, and of shifting cars in the railroad yards, would be insufficient to raise any question of fact as to the reasonableness or unreasonableness of the ordinance as applied to the particular locality. Metropolitan St. R. Co. v. Johnson, supra; Broyles v. Prisock, 97 Ga. 643 (5) (25 S. E. 389) ; Columbus R. Co. v. Waller, 12 Ga. App. 674 (78 S.E. 52) ; W. & A. R. Co. v. Watkins, 14 Ga. App. 388 (6) (80 S. E. 916); N., C. & St. L. Ry. v. Peavler, 134 Ga. 618 (3) (68 S. E. 432) ; Central of Ga. Ry. Co. v. Bond, 111 Ga. 13 (3) (36 S. E. 299) ; Erb v. Morash, 177 U. S. 584 (20 Sup. Ct. 819, 44 Law. ed. 897). “Tile financial welfare of the company must yield to the public safety.” City of Acworth v. W. & A. R. Co., 159 Ga. 610 (4), 621 (126 S. E. 454).

Decided July 20, 1926.

Damages; from city court of Atlanta—Judge Eeid. January 36, 1936.

Colquitt, Conyers & Smith, for plaintiff in error.

T. J. Lewis, T. L. Slappey, contra.

3. Applying the above rulings, the court did not err in charging the jury that a violation of ordinance would constitute negligence, nor in failing to submit to the jury the question whether the ordinance was reasonable within itself, or whether it was reasonable when applied to the particular locality. While in each of the cases ’relied on by plaintiff in error (Central R. &c. Co. v. B. & W. R. Co., supra; Jackson v. S. A. L. Ry., supra), the Supreme Court sustained the charge of the trial court submitting to the jury the question of whether the ordinance was applicable at the particular locality, in neither of these eases did the violation of the ordinance occur, as here, at a public street crossing.

4. No other questions are made in the special grounds of the motion for new trial. The general grounds of the motion are not referred to in the brief of counsel for plaintiff, and are deemed to have been abandoned. The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    17405.
    COATS v. CASEY.
    1. The charges complained of in divisions 1 and 2 of the opinion, and the refusals to charge as set out in divisions 3 and 4, do not show error.
    2. The verdict is supported by the evidence, and the court did not err in refusing a new trial.
    Appeal and Error, 3 O. J. p. 956, n. 45.
    New Trial, 29 Cyc. p. 832, n. 60.
    Receivers, 34 Cyc. p. 28, n. 64.
    Trial, 38 Cyc. p. 1603, n. 59; p. 1617, n. 34; p. 1618, n. 36; p. 1619, n. 38; p. 1707, n. 98; p. 1749, n. 3.
    Decided July 20, 1926.
    Complaint; from Eichmond superior court—Judge A. L. Franklin. October 31, 1935.

      W. Inman Curry, H. A. Woodward, for plaintiff in error.

      Pierce Brothers, contra.
   Jenkins, P. J.

Casey sued Coats for an amount due him on a contract for the sale of a stock of goods. He prayed for an injunction and a receiver to take charge of said stock of goods and dispose of them, and make distribution of the proceeds between plaintiff and defendant according to their respective rights. Before the trial Coats gave bond with Antonakos as security, which in terms states that the bond is in lieu of the stock of goods, and that the security is bound to pay to the plaintiff the amount of any judgment obtained by the latter against Coats, or any amount that may be determined to be due by the adjustment of their differences. When the case was called for trial at the September term, 1921, of the superior court of Bichmond County, Coats presented a motion to continue the case, or to stay the proceedings in the superior court for a sufficient time to permit the defendant to obtain his discharge in bankruptcy, alleging that he had already been adjudicated a bankrupt, but that he could not obtain his discharge until November, 1921, thereafter. He attached to his motion to stay the proceedings, as an exhibit, a certified copy of his adjudication as a bankrupt. He further alleged that the debt sued upon was a provable debt, and that the plaintiff, though having been notified, had failed to appear before the referee, etc. The court overruled the motion to stay the proceedings in the superior court. To this judgment there was no exception. The case proceeded to trial; the jury returned a verdict in favor of the plaintiff, Casey, against the defendant, Coats, for $542.28. The judgment of the court also provided “that in view of the fact that said B. F. M. Coats has plead his adjudication in bankruptcy, it is therefore ordered that the said plaintiff, the said W. L. Casey, be and he is hereby permanently enjoined from seeking to' enforce any fi. fa. or execution issuing upon this judgment, against the said B. F. M. Coats, but this is not to interfere with the enforcement of said fi. fa. against the surety on said bond.” The defendant made a motion for new trial, and subsequently amended the same. To the judgment overruling this motion the defendant excepted. The case, originally brought to the Supreme Court, has been transferred by it to this court.

Ground 4 of the motion for new trial complains of the following charge to the jury: “This matter was in the hands of the court under an equitable petition, and a receiver had been appointed, when the defendant came forward and gave bond for the condemnation-money—for the judgment that might be rendered in that case, and Gus Antonakos went on the bond.” The criticism of this charge is that the jury was misled into believing that the case was no longer in the hands of the court under an equitable petition, and that the giving of the bond had the legal effect of converting the suit in equity to an action at law for a specific sum of money and adding Antonakos as a new party; and further that the court overlooked the fact that the bond given had never been ordered by the court, and that it was nothing more than a voluntary bond on the part of the defendant, and that the same could not be enforced as a statutory bond. It is also contended .that the court overlooked the fact that it had already appointed a temporary receiver to take charge of the property in controversy, and that no order had been passed by the court modifying or revoking this order, and that the bond actually given was subsequent to the appointment of the temporary receiver and before the date fixed for a hearing under the original rule to show cause, and before the decision of the trial judge was rendered on the rule to show cause. These criticisms are without merit. The court in this charge was merely giving a history of the case, and' we do not think the language used by the court was calculated to mislead the jury; and the fact that the court had appointed a temporary receiver to take charge of the property would1 not relieve the surety from liability on the bond which he had voluntarily given.

Error is assigned upon the following charge to the jury: “I charge you that if the plaintiff has borne the burden which the law places upon him of sustaining Iris contention by the greater weight of creditable [credible] testimony, then your verdict should be for him in some amount, and that amount ought to be rendered against the surety on the bond.” It is insisted that the court overlooked the fact that the bond* in the case was not a statutory bond, but simply a voluntary or common-law bond, and that it could not have had the effect of converting an equitable suit into a common-law action for money, nor could it have given the plaintiff the right to enter up judgment against the surety at the same time judgment was entered against the defendant. We are of the opinion that the charge is not open to this criticism, and did not mislead the jury into believing that the surety had come intq court and by giving the bond “defeated the court in a|Dpointment of a receiver.” Nor is the charge subject to the criticism that the court did not instruct the jury that the burden was on the plaintiff to establish his case by a preponderance of the evidence; nor for any other reason assigned.

The court did not err in failing to charge the jury that if they found from the facts that the defendant, B. F. M. Coats, replevied the property that had been put in the hands of a temporary receiver, by giving bond with security, conditioned to pay the judgment that might be rendered in this case, the property held by the receiver was released from any lien that might have otherwise been created by the appointment of the receiver, and the case then proceeded by the terms of the bond as an ordinary action at law. This failure to charge is not error. Such instruction would not have been a proper charge under the facts of the case.

It was not error, for any reason assigned, for the court to fail to charge the jury that the debt sought to be enforced in this case is one provable in bankruptcy, and if the defendant was adjudged a bankrupt within four months after the placing of his property in the hands of the temporary receiver, he can plead such adjudication in bankruptcy and prevent any judgment, general or formal, from being rendered against him and his surety. No evidence showing an adjudication in bankruptcy of the defendant was introduced on the trial. The only reference to it. in the brief of the evidence is where the defendant testifies: “I went into bankruptcy. Gus put me in the hands of a receiver for rent;” but this evidence does not show anything except perhaps that the defendant had filed a petition in bankruptcy. It can not be said from this that the defendant had been adjudicated a bankrupt, and certainly it does not show a discharge in bankruptcy. A motion was made by the defendant to stay the proceedings until the defendant could be discharged in bankruptcy. This motion was overruled by the court, and to this judgment no exception was taken. There was no evidence to authorize the court to charge the jury as insisted. If this ground of the motion for a new trial is intended as an exception- to the judgment overruling the motion to stay the proceedings, it can not be thus excepted to in a motion for new trial. See 8 Cum. Supp. Enc. Dig. Ga. Bep. 856 et cit. On the general subject of discharge of the principal in bankruptcy, see 21 R. C. L. 1066, § 108 et seq.; Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25).

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Luke, J.

text:
    16487. 16449.
    Simmons v. The State. Reilly v. The State.
    Criminal Law, 16 C. J. p. 1105, n. 7.
    Intoxicating Liquors, 33 C. J. p. 795, n. 20.
    Decided August 4, 1926.
    Violating liquor law; from city court of Macon—Judge Jordan. April 17, 23, 1925.

      W. A. McClellan, T. A. Jacobs Jr., for plaintiff in error.

      Boy W. Moore, solicitor, contra.
   Luke, J.

In each of these eases the accusation contained two counts; the first charging a sale and the second charging possession of intoxicating liquors. In each case a general verdict of guilty was rendered; and in neither case did the evidence authorize a conviction of selling intoxicating liquors. However, the sentence imposed in each case did not exceed that which could have legally been imposed if the accused had been convicted under the second count only. In answer to a question certified by this court to the Supreme Court, that court held as follows: “It is error to refuse a new trial where an accusation contains two counts, the first charging a sale of whisky, and the second charging possession of whisky, both charges growing out of the same transaction, where upon the trial the evidence authorizes a conviction upon the second count only and the verdict is a general verdict of guilty.” The court further ruled that this was true although the sentence imposed in each case did not exceed that which could have legally been given if the accused had been convicted under the second count only. Eor full opinion of Supreme Court see Simmons v. State, 162 Ga. 316 (134 S. E. 54). Under this ruling the judge of the trial court in each case erred in overruling the motion for a new trial.

Judgments reversed.

Broyles, O. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    16569.
    ATLANTIC COAST LINE RAILROAD COMPANY v. MURRAY.
    1. After the petition had been amended to meet the special demurrers, the general demurrer was properly overruled.
    2. There is nothing in any of the special grounds of the motion for a new trial that requires a reversal of the judgment.
    Carriers, 10 C. J. p. 355, n. 52 New; p. 554, n. 92 New.
    Decided August 4, 1926.
    Damages; from Ware superior court—Judge Custer presiding. April 11, 1925.

      Bennet, Twitty & Reese, Wilson, Bennett & Pedrich, for plaintiff in error.

      Jerome Grawley, Parks & Garrett, contra.
   Bloodworth, J.

The plaintiff sought to recover $1405.75 as damages claimed to have been sustained to a car-load of galvanized iron turpentine cups which were delivered by Pringle Turpentine Cup Company to the B. & 0. Eailroad at Parkersburg, West Virginia, and were shipped by it to its order at Euskin, Georgia, notify plaintiff, with its sight draft on plaintiff for the purchase-price, attached to the bill of lading. The draft was paid by the plaintiff after the car of cups had arrived and had been placed on the side-track at Euskin, Georgia. After paying the draft the plaintiff delivered the bill of lading to the defendant’s agent, opened the car for the purpose of unloading the cups and aprons, and discovered, as she claimed, damage to many of them. After they were unloaded, some of them she refused to accept, and these she returned to the possession of the defendant. She claims that 1190 were so damaged as to be worthless, but that 22701 were so damaged as to reduce their value by 62 per cent. It was claimed that the damaged cups were accepted by the defendant from the B. & 0. Eailroad Company for transportation to and delivery at Euskin, Georgia, in good order, and that they were damaged by the negligence and want of care of its agents and employees in the operation of its trains upon which the car containing the cups was moved over its line of road, in violation of its duty to transport the ear with reasonable care and diligence. Defendant filed its general and special demurrers to the plaintiff’s petition, which were overruled after certain amendments to the petition had been allowed. In its answer the defendant denied any liability to the plaintiff. The trial resulted in a verdict and judgment in favor of the plaintiff for $668.36. The defendant made a motion for a new trial, which later was amended. It was overruled. The bill of exceptions assigns as error the judgment overruling the motion for a new trial, and also the judgment overruling the defendant’s demurrers, the right of exception having been preserved by exceptions pendente lite.

This court certified to the Supreme Court the following question: “Where the seller in interstate commerce ships to its own order merchandise, and a through bill of lading is issued to it by the initial carrier, and it is provided that the purchaser be notified, and to the bill of lading there is attached a draft for the value of the merchandise, and where, after the arrival at its destination, the purchaser pays the draft, secures the bill of lading, and takes possession of the merchandise, can he, as the holder of the bill of lading, maintain an action for damages against the last connecting carrier for an injury to the merchandise caused by the negligence of that carrier, when he acquired title thereto after the damages sought to be recovered were inflicted?” The Supreme Court answered as follows: “Under the rulings in Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 769 (92 S. E. 527), Southern Ry. Co. v. Morris, 147 Ga. 729 (95 S. E. 284), and Pennsylvania R. Co. v. Olivet, 243 U. S. 574 (37 Sup. Ct. 468, 61 L. ed. 908), the question must be answered in the affirmative.” See 162 Ga. (134 S. E. 171).

The petition was amended to meet the special demurrers; and under the foregoing ruling of the Supreme Court (the effect of which is to overrule the decision of this court in the case of Davis v. Peacock, 29 Ga. App. 122, 113 S. E. 697), the petition as amended set out a cause of action, and the general demurrer thereto was properly overruled.

There is sufficient evidence to support the finding of the jury.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    16641.
    Bryant v. Georgia Railway and Power Company.
    Decided August 4, 1926.

      W. E. Arnaud, J. K. Jordan, for plaintiff.

      Colquitt & Conyers, Sidney Smith, for defendant.
    Action for damages; from city court of Atlanta—Judge Reid. June 5, 1925.
   Luke, J.

When this ease was brought to this court the judgment of the trial court awarding a nonsuit was affirmed. 34 Ga. App. 488 (130 S. E. 370). A writ of certiorari was granted by the Supreme Court; and on July 14, 1926, the judgment of this court was reversed by a majority of the Justices of the Supreme Court. 162 Ga. (134 S. E. 319). It is therefore ordered that the former judgment of this court, be vacated; and the judgment of the trial court awarding a nonsuit is

Reversed.

Broyles, O. J., and'Bloodworth, J., eoneur.


text:
    16769.
    FORD v. THE STATE.
    1. The court did not err in overruling the demurrer to the indictment.
    2. The alleged “challenge to the poll” was properly stricken.
    3. Upon the trial of one charged with receiving stolen goods knowing them to have been stolen, a juror called in the case was not disqualified merely from having heard the evidence on the trial of the principal thief or from having heard him enter a plea of guilty.
    4. The judge did not err in overruling the ground of the motion for a new trial based upon statements made by the judge and the solicitor-general while the jury was being selected.
    5. It was not error for the court to permit the State to introduce evidence as to an alleged burglary of the Macon Department Store, a different burglary from that alleged in the indictment, and to permit the State to prove that certain articles taken from the Macon Department Store were found in the possession of the defendant in his store. This evidence was admissible to show “knowledge, motive, intent, good or bad faith.” Lee v.-State, S Ga. App. 413 (3) (69 S. E. 310) ; Parmer v. State, 100 Ga. 41 (2) (28 S. E. 26) ; Gawthon, v. State, 119 Ga. 395, 409 (46 S. E. 897).
    6. When considered in connection with the other instructions given the jury, the court did not err in charging that “a reasonable doubt is a doubt that is reasonable growing out of the consideration of the evidence in*the case.” Olarto v. State, 27 Ga. App. 803 (4) (109 S. E. 927), and cit.

      Criminal Law, 16 C. J. p. 252, n. 16; p. 402, n. 67; p. 610, n. 22, 23; p. 990, n. 3; p. 1049, n. 82; p. 1050, n. 84.
    Juries, 35 C. J. p. 348, n. 64; p. 375, n. 58; p. 405, n. 33.
    Receiving Stolen Goods, 34 Cyc. p. 515, n. 12, 14; p. 519, n. 43; p. 520, n. 47; p. 521, n. 59; p. 522, n. 65 New; p. 526, n. 92; p. 529, n. 10; p. 530, n. 14 New.

      7. None of the other grounds of the motion based upon alleged errors in the charge show reversible error.
    8. “An indictment under the Penal Code, § 168, against one for receiving stolen goods, knowing them to be stolen, must allege that the principal thief has been indicted and convicted.”
    9. “The conviction of the principal is not an element in the crime defined in the Penal Code, § 168, but is a regulation which affects the time when or the manner in which a person indicted under said section can be tried. The gist of the offense created by said section is buying or receiving goods with the felonious knowledge that they were stolen.”
    10. “Before a conviction can be had for the offense created under said section, it must be shown that the principal, whether taken or not, whether known or not, is guilty. The record of the conviction of the principal thief is conclusive evidence of his conviction, but is merely prima facie evidence of his guilt; but the introduction of such record in evidence by the State places the onus upon the accessory of disproving the guilt of the principal.”
    11. “Where the indictment against a person under said section alleged that the principal thief had been tried and convicted, but where thereafter the conviction of the principal was set aside and a new trial granted, not for any defect in the indictment, but for some error committed in the trial of the ease of the principal, which required the grant of a new trial, and where before the trial of the accessory the principal pleaded guilty and was sentenced thereon, the record in the trial of the case of the principal thief was admissible for the purpose of showing the prima facie guilt of the principal.
    “ (a) A plea of guilty stands upon the same footing as a conviction by a jury, and has the same force and effect as a verdict of .guilty.
    “ (6) The averment of-the indictment that the defendant had been indicted and convicted was fully shown by the production of the indictment and the conviction; and where this conviction W'as set aside by the grant of a new trial, the purpose of requiring such averment and proof was substantially effectuated by a plea of guilty by the principal before the trial of the accessory was begun.
    “(c) The accessory could waive the conviction of the principal and go to trial on the charge preferred against- him; and where the defendant knew that the conviction of the principal had been set aside by the grant of a new trial, and went into the trial of the case without raising any objection to so doing on the ground that the principal had not been convicted, this amounted to a waiver on his part.”
    12. The motion for a new trial was properly overruled.
    Decided August 4, 1926.
    Receiving stolen goods; from Bibb superior court—Judge Mathews. August 8, 1925.
    Certiorari was granted by the Supreme Court.

      B. D. Feagin, T. J. Cochran, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Bloodworth, J.

Of the foregoing headnotes 1, 4, 5, 6, 7 need not be enlarged upon. What follows will make the others more fully understood.

Counsel for the accused filed what he termed a “challenge to the poll.” This was in the nature of a challenge to the array, and, as has been frequently held, this is not the proper method of raising the question of disqualification of individual jurors. Humphries v. State, 100 Ga. 260 (2), 261 (28 S. E. 25); Thompson v. State, 109 Ga. 272 (2) (34 S. E. 579); Schnell v. State, 92 Ga. 459 (17 S. E. 966); Paulk v. State, 2 Ga. App. 662 (2) (58 S. E. 1109). Moreover the ruling complained of could not have worked any injury to the cause of defendant; for in his order striking this “challenge” the judge said: “The jurors challenged therein were individually challenged [and] put upon the court as a trior.”

Each of several grounds of the motion for a new trial alleges that the court erred in holding as competent a juror who had been present when one of the principal thieves pleaded guilty. These grounds are without merit. Loyd v. State, 45 Ga. 57 (6), 72. Even though a juror had heard the evidence on a previous trial of the same case, this would not disqualify him unless he had formed and expressed an opinion from having heard the testimony delivered under oath. Penal Code, § 1001; Cunneen v. State, 96 Ga. 406 (2) (23 S. E. 412); Johnson v. State, 21 Ga. App. 497 (8) (94 S. E. 630); Langston v. State, 24 Ga. App. 316 (101 S. E. 3). Moreover, each of these jurors was put upon the court as a trior, and we can not say that he abused his discretion in holding the jurors competent.

Headnotes 8 to 11 inclusive are copies of the headnotes to an opinion of the Supreme Court written in answer to certain questions certified to it by this court. Eor the full opinion of the Supreme Court see 162 Ga. 422 (134 S. E. 95). Under the rulings of the Supreme Court there was no error in admitting the evidence of which complaint is'made in grounds 16 and 17 of the motion for a new trial.

There is sufficient evidence to support the verdict, and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

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


author: Broyles, 0. J.

text:
    16923, 16948.
    Sallette v. The State.
    Indictments and Information, 31 C. J. p. 602, n. 97 New.
    Decided August 4, 1926.
    Manslaughter; from Long superior court—Judge Sheppard. September 10, 1925.
    Manslaughter; from Liberty superior court—Judge Sheppard. September 15, 1925.

      John 17. Bennett, 17. C. Hodges, Ben A. Way, M. Price, Edwin A: Cohen, for plaintiffs in error.

      J. Saxton Daniel, solicitor-general, J. T. Crice, contra.
   Broyles, 0. J.

1. Under the facts of each of these cases the court did not err in striking, upon the motion of the State, the defendant’s special plea in abatement to the indictment, on the ground that the plea was insufficient in law.

2. Where a crime was committed in Long County, Georgia, and the judge of the superior court of that county, by authority of the act of the Genera] Assembly, approved August 6, 1922 (Ga. L. 1922, p. 193), transferred the investigation of the crime to Tattnall County, Georgia (it appearing that a qualified grand jury could not be had in Long County), and where thereafter a grand jury of Tattnall "County, after such investigation, returned an indictment charging that a named person committed the offense of murder in Long County, the indictment was not void for the reason that the jurisdiction of the grand jury of Tattnall County to return the indictment did not appear from the indictment, it not being stated therein that the investigation of the crime had been transferred from Long County to Tattnall County. Sallette v. State, 162 Ga. 442 (134 S. E. 203). Under this ruling the court did not err in either of these two cases in overruling the demurrer to the indictment.

3. The verdict in each of these two eases was authorized by the evidence, and in neither case do the special grounds of the motion for a new trial show reversible error.

Judgments affirmed.

Luke and Bloodworth, JJ., eoneur.