text:
    A17A1008.
    DAVIS v. THE STATE.
    (806 SE2d 3)
   Self, Judge.

Craig Davis appeals from his convictions of two counts of reckless conduct in violation of OCGA § 16-5-60 (c), contending (1) that the trial court erred by allowing evidence that he had previously infected another person with HIV, rather than admitting only his previous nondisclosure of his HIV status, and (2) that his counsel provided ineffective assistance by submitting expert witnesses who opined about the validity of HIV testing. For the reasons explained below, we affirm.

Davis’s Knowledge of His HIV Status. The State presented evidence showing that on March 18, 2005, Davis was admitted into the hospital from the emergency room after he complained of coughing, shortness of breath, weakness, and unexplained weight loss. The doctor who treated Davis testified that he had a type of pneumonia associated with the opportunistic infections typically seen in AIDS patients. Davis also suffered from thrush, another opportunistic infection associated with immune-compromised patients.

The doctor explained that the HIV virus destroys the immune system as it grows inside the body by “eat[ing] up ... CD4 cells.” When a person’s CD4 cell count is less than 200, a patient is diagnosed with AIDS. A patient with AIDS is also considered HIV positive. At the time of Davis’s hospital admission, his CD4 count was 36. The doctor ordered an HIV/EIA screen and a Western Blot test. Both HIV tests were positive, and the doctor diagnosed Davis with “fullblown AIDS.”

The doctor personally delivered the news to Davis, who did not display the typical reaction to the diagnosis. The doctor explained that “it might have seemed as though he knew or he was aware. I didn’t see shock. I didn’t see panic or fear. I — just indifference. It’s hard to describe.” In March 2005, Davis’s doctor counseled him multiple times about the transmission of HIV through body fluids, blood, sex, semen, and needles and the importance of limiting partners and practicing safe sex. He had an independent recollection of counseling Davis because they were about the same age and their children had been in a spelling bee together.

Davis’s doctor prescribed antiviral medication to stop the growth of the virus and help his CD4 count grow. The doctor testified that the antiviral medication does not cure HIV or AIDS, it treats it. The patient will “always have HIV” as there is no cure. During cross-examination of the defendant’s doctors, Davis’s counsel established that viruses other than HIV, such as mononucleosis, can establish low CD4 counts, as well as opiate use, malnutrition, over-exercising, and stress.

In October 2009, four years after receiving his diagnosis, Davis was admitted to jail. During processing, Davis told a medical assistant he had “a history of being HIV positive,” dating back to 2005. After his arrest on the charges at issue in this case, Davis completed a form on July 27, 2012, notifying the jail that he was “HIV positive and would like a high protein diet.” On August 1, 2012, he told a nurse practitioner at the jail that he was HIV positive.

Similar Transaction in Atlanta. C. M. testified that she met Davis at church in 2010. Later the same year, they became “romantically involved.” In the year 2011 through January 24, 2012, they engaged in unprotected vaginal and oral sex. Later that month, C. M. learned through a routine doctor’s appointment that she had tested positive for HIV Her previous HIV tests in 2004 and 2006 had been negative. When she first confronted Davis about whether he was HIV positive, he denied it and asked her to get a second test. When the second test revealed the same result, Davis told her that he had learned he was HIV positive in July 2011. In her last conversation with Davis, C. M. told him “whatever you do, don’t do this to anyone else.” After he responded, “girl, whatever,” she became concerned. She later viewed Davis’s Facebook page and saw “all these different women ... posting things, and that disturbed me. And I’m ... he can’t do that. He got to be sleeping with them like he did with me and [sic] didn’t tell me anything.”

On April 18, 2012, she contacted the police about Davis’s conduct. On April 26, 2012, a detective interviewed C. M. and obtained Davis’s phone number “to get his side also.” The detective left a message on this number, and in June 2012, someone who identified himself as Davis called the detective from the number provided by C. M. When the detective explained that she was calling about a report of “aggravated] assault” by C. M., Davis interrupted and said, “I never touched [C. M.]. . . . [S]he just mad at me because she contracted HIV from me. That’s all. And I got it from another girl.” On June 16, 2012, the detective obtained a warrant for Davis’s arrest.

Davis and the Victim in this Case. In April 2012, the victim and Davis, who knew each other through mutual acquaintances, exchanged phone numbers and began having “flirty and fun” conversations on the telephone. During one of her conversations with Davis, the victim joked about him being “gay” or having “the package,” and Davis “got really upset” and denied it. Before having unprotected oral and vaginal sex with the victim on several occasions in May 2012, Davis never told the victim he was HIV positive.

On May 22, 2012, Davis called the victim and said, “I got a phone call from a girl that [he] was messing with back in . . . October, November. We were having sex unprotected and she told me she tested positive for HIV” When the victim became “frantic,” he told her: “[C]alm down. It’s not the end of the world. People live with HIV every day. It can go undetected. It’s not a death sentence. . . . [C]all your doctor. . . . [I]t’s some medicines out there you can take that will prevent you from contracting HIV” He also told her that she should “be fine,” because he never ejaculated inside her. Beginning on June 2, 2012, Davis began blocking her calls and texts on his cell phone. On June 12, 2012, the victim went to the Clayton County Police Department for help because she wanted Davis to get tested.

Davis’s Testimony at Trial. Davis admitted that he was diagnosed as being HIV positive in March of 2005. He explained that at the time of this diagnosis, he had been “smoking crack cocaine” for about three months and had attributed the symptoms that landed him in the hospital to his drug use. He contended that the first two tests taken in the hospital were “inconclusive” and that a third test performed by a Dr. Shelton came back “HIV positive.” He then began taking “HIV medicine.” While he accepted the diagnosis at the time, he believed at the time of trial that his HIV status was “in question.” He admitted that he was nonetheless continuing to take his HIV medication.

He claimed that he told C. M. he was HIV positive before having sex with her. He testified that while they “started off” using a condom, it eventually “came off.” He explained that he mistakenly believed that he could not infect her if he did not ejaculate inside of her, and was surprised when she informed him that she was HIV positive. He admitted during cross-examination that his doctors had informed him to use a condom when having intercourse to protect against infecting another person.

Davis testified that C. M. initially continued their intimate relationship for several months after learning she was HIV positive. When C. M. learned that Davis had informed his wife, from whom he was separated, that C. M. was HIV positive, C. M. became angry, because she viewed resumed communications with his wife as a sign that Davis planned to work on his marriage. When the detective called him about an alleged aggravated assault involving C. M., he told the detective, “I’m HIV positive . . . and she’s gotten [it] from me . .. and she’s mad because I told my wife ... I never put my hands on her.”

With regard to the victim, Davis denied having “sex of any type” with her. He testified that the victim told him that he “was too large for her” after seeing a photograph of his penis, and they decided before meeting that they would only masturbate in one another’s presence. During cross-examination, he clarified that she told him that “she liked small penises, that she didn’t like large penises.” According to Davis, she also described a photograph of his penis as “a Picasa [sic]” that she was going to put in a frame. He claimed that his ejaculate never came anywhere near the victim and that there was no need to inform her of his HIV status. He called her a liar for testifying that they had sexual intercourse.

Defense Experts’ Testimony. Dr. Rodney Richards, who holds a Ph.D. in organic chemistry, testified that the various tests for HIV “are not approved to diagnose actual infectious HIV in someone’s blood at any given time.” They are not designed to test for the presence of the HIV virus itself. He pointed out that the manufacturers of these tests state that “the significance of the positive Elisa [test] followed by another positive [Elisa] test followed by a Western Blot positive is unknown in persons without symptoms and that clinical correlation as [sic] indicated to see whether a diagnosis of infection is correct.” In essence, presumptions about the presence of the HIV virus are made based upon the presence of antibodies that could relate to other antigens or germs. While he has always assumed that the HIV virus is real, the HIV virus has never been cultured or found in a person’s blood.

Dr. Nancy Banks, a doctor board-certified in obstetrics and gynecology, testified that Davis’s symptoms when he went to the emergency room in 2005 could be attributed to crack cocaine use rather than AIDS as this drug “is very immuno suppressive.” She also testified that there is no test on the market that can be used to diagnose HIV because no scientist has been able to culture the virus. Additionally, there are about 70 conditions that can cause a false positive result on tests currently used to identify an HIV infection. In her opinion, the CD4 count parameters established by the CDC have limited value because “[i]t is uncertain what a normal CD4 count is” and “we don’t have a standard at this time.”

Dr. David Rasnick, who has aPh.D. in chemistry, testified that he is the chief science officer at the Office of Medical and Scientific Justice. He stated that smoking crack cocaine is a “documented” cause of thrush, weight loss, and pneumonia, as well as “a strong powerful immune suppressant.” Accordingly, it “can cause or manifest symptoms that we think are AIDS leading.”

1. Davis asserts that the trial court erred by allowing evidence that he actually infected a similar transaction witness with HIV because the State failed to satisfy the second and third prongs of the test for admission of other acts evidence under OCGA § 24-4-404 (b). In his view, this evidence was irrelevant because “[t]he felony provision of OCGA § 16-5-60 does not require transmission of HIV and in fact criminalizes acts that in the current age of HIV treatment are highly unlikely to pass the virus.” We disagree.

We review a trial court’s decision to admit other acts evidence for an abuse of discretion. For trials, like [Davisj’s, that occur after January 1, 2013, the admissibility of other acts evidence is governed by OCGA § 24-4-404 (b) (“Rule 404 (b)”), which provides that ’’evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of . . . intent . For other acts evidence to be admissible, the moving party must show that: (1) the evidence is relevant to an issue other than the defendant’s character, (2) the probative value is not substantially outweighed by undue prejudice underOCGA § 24-4-403, and (3) there is sufficient proof so that the jury could find that the defendant committed the acts. Rule 404 (b) is a rule of inclusion, but it does prohibit the introduction of other acts evidence when it is offered for the sole purpose of showing a defendant’s bad character or propensity to commit a crime.

(Citations and punctuation omitted.) Booth v. State, 301 Ga. 678, 682 (3) (804 SE2d 104) (2017).

While neither this Court nor the Supreme Court of Georgia has previously ruled on the admission of other act evidence in an HIV reckless conduct case, an Indiana court rejected a similar argument in Johnson v. State, 785 NE2d 1134, 1139 (I) (B) (Ind. Ct. App. 2003). The defendant in that case asserted “that the trial court abused its discretion in admitting the testimony of Y. V., T. D., and C. B. detailing their prior sexual relationships with [the defendant] and their subsequent positive test results for HIV.” Id. The Indiana Court of Appeals was not persuaded by this assertion and concluded:

Evidence of the HIV status of [the defendant]’s sexual partners as well as his knowledge of their HIV status and his own status was highly probative and relevant as to whether he is HIV-positive and knew that he was positive at the time he engaged in sexual relationships with [the victims]. As [the defendant’s HIV status and his knowledge of his status were two elements that the State had to establish for a conviction, we find that the probative value of the testimony outweighed any prejudicial effect from its admission.

Id. at 1140 (I) (B). We are persuaded by this reasoning to conclude that the State established the first and second factors for admissibility under Rule 404 (b).

With regard to the third factor, “other acts evidence may be admitted if the court concludes that the evidence is sufficient for the jury to find by a preponderance of the evidence that the other act was committed.” Bradshaw v. State, 296 Ga. 650, 656 (3), n. 4 (769 SE2d 892) (2015). Based upon C. M.’s testimony about her HIV status before and after she had sexual relations with Davis, as well as medical testimony verifying her negative status, a jury could have found by a preponderance of the evidence that Davis transmitted the HIV virus to C. M. Accordingly, we find no error in the trial court’s admission of other act evidence under Rule 404 (b).

2. Davis argues that his counsel’s “decision to share [his] defense with an agenda-driven organization, and his failure to vet the group’s experts, much less prevent them from spouting obviously baseless theories, blew [his] credibility in a case where credibility was everything.” In Davis’s view, counsel’s strategic decision to present such experts, who suggested that crack cocaine use caused his HIV symptoms, “ ‘was an unreasonable one no competent attorney would have made under the same circumstances.’ ”

In order to succeed on his claim of ineffective assistance, [Davis] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV).

(Citation and punctuation omitted.) Baugh v. State, 293 Ga. 52, 54 (2) (743 SE2d 407) (2013). Satisfying the requirement for deficient performance “requires [a] showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Turpin v. Bennett, 270 Ga. 584, 589 (2) (513 SE2d 478) (1999), citing Strickland, supra, 466 U. S. at 687 (III).

The test for determining whether trial counsel’s performance was deficient is whether a reasonable lawyer could have acted, under the same circumstances, as defense counsel acted before and during the trial. Hindsight is not employed, and our purpose in making this determination is not to grade trial counsel’s performance, but simply to ensure that the adversarial process at trial worked adequately We are therefore highly deferential to the choices made by trial counsel during a trial that are arguably dictated by a reasonable trial strategy

(Citations and punctuation omitted.) Head v. Taylor, 273 Ga. 69, 79 (3) (538 SE2d 416) (2000).

It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics. In particular, the decision of how to deal with the presentation of an expert witness by the opposing side, including whether to present counter expert testimony, to rely upon cross-examination, to forego cross-examination and/or to forego development of certain expert opinion, is a matter of trial strategy which, if reasonable, cannot be the basis for a successful ineffective assistance of counsel claim.

(Citations and punctuation omitted.) Humphrey v. Nance, 293 Ga. 189, 220-221 (744 SE2d 706) (2013). “The selection of an expert witness is a ‘paradigmatic example’ of the type of strategic choice that, when made after thorough investigation of the law and facts, is ‘virtually unchallengeable.’ ” (Citation omitted.) Rockwell v. Davis, No. 4:14-CV-1055-O, 2016 U. S. Dist. LEXIS 109568 (N.D. Tex. 2016). See also Adem v. State, 300 Ga. App. 708, 712 (2) (686 SE2d 339) (2009) (defense counsel afforded wide discretion in decision to call particular expert witness).

During the motion for new trial hearing, Davis’s primary trial counsel testified that he had practiced law for 43 years, with 22 years as a prosecutor and the remaining years as a criminal defense attorney. After familiarizing himself with the elements of “a reckless conduct HIV charge,” including the element that a person be “HIV positive,” he received information from the Office of Medical and Scientific Justice (“OMSJ”) about the nature of HIV tests and the ability of the State to prove this element of the crime. He explained that his client, Davis, made the decision to request help from the OMSJ. The OMSJ then provided, free of charge, an attorney familiar with the HIV testing evidence to act as co-counsel and three expert witnesses at trial to support Davis’s alternative defense that the State could not prove an essential element of the offense, i.e., that Davis was “an HIV infected person.” Davis’s primary trial counsel testified that he “took no responsibility for any of the HIV material” during the trial. He explained that Davis “requested them” and he “acquiesced.” His responsibility during the trial centered around the primary defense that Davis never had sex with the victim. In his view, the two alternative defenses did not interfere with one another; he looked “at the HIV portion of it as icing on the cake.” In his view, the HIV experts “weren’t so far-fetched[,]” and “one of the substantial things that hurt the defense was Mr. Davis’s testimony itself.” He explained that “when [Davis] testified his penis was like a Picasso, that was the game... in [his] opinion.” After Davis’s testimony, he was not surprised by the verdict.

Davis testified in the motion for new trial hearing that one of the first people he notified about the charges against him was his doctor, who “had him call HIV law and policy in New York.” He explained that his doctor “is one of the leading doctors in America for HIV research. Matter of fact, there is lobbying before [Cjongress for this law to be even taken from off the books.” He denied, however, that the OMSJ contacted him about assistance with his case. He also claimed that his doctor warned him against using the OMSJ and that he passed this information along to his primary trial counsel.

Decided September 27, 2017.

Stephen R. Scarborough, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Erman J. Tanjuatco, Assistant District Attorneys, for appellee.

We agree with the trial court’s conclusion that Davis’s claim of ineffective assistance has no merit. “[A] strategy that presents alternative defense theories — all of which are better for the defendant than the prosecution theory of the case — generally falls within the broad range of reasonable professional conduct.” (Citation and punctuation omitted.) Issa v. State, 340 Ga. App. 327, 344 (8) (796 SE2d 725) (2017) (rejecting ineffective assistance of counsel claim grounded upon alleged “absurd” defense theory). Based upon the elements of the crime with which Davis was charged and our review of the expert testimony presented on his behalf, we cannot say that the strategy was “so unsound that no reasonable lawyer would have pursued it.” (Citations and punctuation omitted.) Id.

Judgment affirmed.

Dillard, C. J., and Ray, R J., concur.

       A low CD4 count begins at 699.

       This test looks for antibodies fighting the HIV infection.

       This test looks for components of the virus such as proteins that make up the virus.

       C. M. contacted the City of Atlanta Police Department.

       “The package” is slang for HIV or AIDS.

       OCGA § 16-5-60 (c) precludes “an HIV infected person” from knowingly engaging in sexual intercourse or acts without informing the other person of a known HIV infection.

       Davis did not present testimony from this attorney during the motion for new trial hearing.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16509.
    NATIONAL LIFE AND ACCIDENT INSURANCE CO. v. MARTIN.
    1. “Although the unattached application could not be admitted for the purpose of showing a breach of the contract, since it forms no part of the contract, still, where the defense is that the policy was fraudulently procured by reason of false and fraudulent representations material to the risk, the application is admissible, not as a part of the contract, and not for the purpose of showing that the policy was void under the contract, but to show that it was fraudulently procured.” Couch v. National Life & Accident Ins. Co., 34 Ga. App. 543 (130 S. E. 596).
    2. In a suit on such a policy, where the proof failed to show that it was procured by false and fraudulent representations of the insured, and where the evidence was such as to warrant the conclusion that the policy was applied for and accepted in good faith, the court did not err in refusing to instruct the jury that where the policy provides that no liability was assumed by the company prior to its date, nor unless on said date the assured was alive and in sound health, the plaintiff could not recover, if it appear that at the time the policy was issued the assured was suffering' with a disease which subsequently caused his death, whether or not the assured was then conscious of bad health or knew that he was so afflicted. Under the recent ruling of this court in National Life <& Accident Ins. Co. v. Smith, 34 Ga. App. 242 (129 S. E. 113), the term “sound health,” when thus used in a policy of insurance, is +o be taken as meaning the enjoyment of “such health and strengi - to justify the reasonable belief that [the insured] is free from derangement of organic functions, or free from symptoms calculated to cause reasonable apprehension of such derangement, and [that] to ordinary observation and to outward appearance her health is reasonably such that she may with ordinary safety be insured and upon ordinary terms, the requirement of good health is satisfied. . . The term ‘sound health/ used in a policy, means that the applicant has no grave impairment or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulnoss of the system;” citing Joyce on Insurance (2d ed.), § 2004; Atlantic <0 Birmingham R. Go. v. Douglas, 119 Ga. 658 (2), 661 (46 S. E. 867). See also Massachusetts Benefit L. Asso. v. Robinson, 104 Ga. 256, 257 (10), 289 (30 S. E. 918); 'Waters v. Supreme Conclave Knights of Damon, 105 Ga. 151 (2) (31 S. E. 155). Thus, where the assured represents in good faith that he is in sound health, and, on the strength of such representation and upon the opinion of its agent, the policy is issued, and is in good faith accepted by the assured, the policy will not be avoided by reason of the fact that he might have been then afflicted with an incipient, unknown, and fatal malady Which had not at that time manifested itself or in any way deranged, impaired, or affected the general soundness and healthfulness of the system.

      Life Insurance, 37 C. J. p. 404, n. 41 New; p. 405, n. 45 New, 46, 47 New; p. 456, n. 0].; p. 627, n. 28 New; p. 629, n. 48; p. 651, n. 71; p. 652. n. 75; p. 653, n. 83.

      Decided January 16, 1926.
    Rehearing denied February 13, 1926.
    Complaint; from city court of Richmond county—Judge Black. May 4, 1925.
    Application for certiorari was denied by the Supreme Court.

      A. B. Williamson, Pierce Brothers, for plaintiff in error.

      James 8. Bussey Jr., contra.
   Jenkins, P. J.

The basis of the contract lay in the representation of the applicant and the opinion thus formed and otherwise arrived at by the insurer. The provision in the' contract that no liability is assumed by the company prior to the date of the policy or unless the assured shall be at that time in life and in sound health would seem to be intended to cover such changes and exigencies as might arise after the application and medical examination or certificate of the agent and the time when the policy is issued. In Modern Woodmen of America v. Atkinson, 153 Ky. 527 (155 S. W. 1135), it was held that “A condition in a life insurance policy that it shall not be binding upon the insurer unless on the date of its delivery the insured was in sound health applies only to unsoundness of health arising after the application and medical examination, in which case the insurer must rely alone on the statements in the application to avoid a recovery, and is unavailable as a defense unless it is shown that the insured’s disease developed between his application and the time when the policy was delivered.” In Priest v. Kansas City Life Ins. Co., 116 Kan. 421 (227 Pac. 538), tlie Supreme Court of Kansas held as follows: “The effect of a clause that a life insurance policy shall not take effect unless the applicant is in good health at the time of its delivery is to protect the company against a new element of risk through a change in the applicant’s condition arising after the company’s investigation has been made.” In the latter case a quotation from Fairfield v. Union Life Ins. Co., 196 Ill. App. 7, 15, is made as follows: “The record herein shows that a period of time elapsed between the date of the application and the medical examination above referred to, and the delivery of the policies. It is fair to presume that this situation arises in almost every instance where the defendant issues a policy. In that interim the insured may have become seriously ill or suffered a severe injury greatly impairing his health. It is therefore fair to presume that the provision that said policy ‘’shall not take effect until the first premium has actually been paid to and accepted by the company and the policy delivered to and accepted by the insured while in good health,’ was intended to safeguard the defendant against any contingencies that might arise during such interim.” Numerous other citations are given by the Kansas court to sustain this interpretation.

In the instant ease the medical testimony upon which the defendant relies is to the effect that the incipient disease which is alleged to have ultimately occasioned the death must have been in existence for from five to fifteen years prior to the issuance of the policy. Under this interpretation of this provision of the contract, and in the absence of fraud in the procurement of the policy, it would be unnecessary to determine what the rule would be as laid down in the second headnote, since the infirmity did not arise during the interval between the application and the issuance of the policy, and since the representation of the assured as to soundness of his health was not attached to the policy so as to form a part thereof. While we have discussed the question just dealt with in the opinion, and are inclined to agree with the soundness of the rule as here outlined, we do not so decide, but rest our judgment on the rule laid down in the second headnote, following the Smith case. The basis of this decision is that a policy applied for and accepted in good faith can not be avoided by proof that the malady which ultimately occasioned the death must have existed in some incipient form prior to the issuance of the policy, but unknowingly and without at that time manifesting any symptoms or effect, or in any way causing reasonable apprehension of any impairment or derangement of the system, even though, by an acceptance of the contract, the assured may have warranted himself to be in sound health. To hold otherwise would involve far-reaching consequences to those who have been led to rely upon the protection of policies which have been applied for, issued, and accepted in good faith. To permit the insurer, upon the death of the insured, to go back of and behind the bona fide contract and set up its invalidity on account of some unknown and unmanifested disease, which from its nature and customary course must have been existent in some incipient form, although its existence was in no way manifest by any symptoms or effect, and despite the fact that the assured was at the time in the actual enjoyment of good health, would be to render doubtful and uncertain the protection afforded by every policy of life insurance, unless, perchance, it might contain other and independent provisions limiting the time of con-testability. For example, in the instant case the medical testimony indicates that the disease must have originated at a period dating from five to fifteen years prior to the contract of insurance. The cause or causes of death are ofttimes as subtle and obscure as any fact which relates to the life of man. It is rarely as simple a proposition as the verdict of a coroner’s inquest. Bather is it true, as some philosopher has said, that all life carries within itself the germ of its own dissolution,—that to live is to begin to die.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16490.
    Henderson et al. v. Ellarbee.
    Bills and Notes, 8 C. J. p. 74, n. 96; p. 79, n. 70; p. 80, n. 71; p. 819, n. 67; p. 902, n. 31 New; p. 954, n. 2; p. 958, n. 65 New. Judgments, 33 O. J. p. 1143, n. 62 New: 34 O. J. p. 38, n. 69, 71; p. 157, n. 64, 64 New 68; p. 238, n. 14; p. 251, n. 63 New; p. 291, n. 61; p. 293, n. 77, 79; p. 421, n. 11; p. 429, n. 79; p. 431, n. 7 New. Pleading, 31 Cyc. p. 460, n. 74 New; p. 465, n. 21 New; p. 592, n. 38; p. 594, n. 61; p. 674, n. 34. Principal and Surety, 32 Cyc. p. 123, n. 33 New. Trial, 38 Cyc. p. 1880, n. 37. Venue, 40 Cyc. p. 100, n. 91.
   Jenkins, P. J.

1. Where promissory notes stipulate, •‘we” promise to pay, etc., and are signed on the face by only one party,—a corporation by its officers,—and there are indorsed on the back of the notes the names of individuals not necessary to the transmission of the title to the notes, such “irregular or anomalous indorsers” (7 Cyc. 664; Atkinson v. Bennett, 103 Ga. 508, 510, 30 S. E. 599) are presumptively either comakers or sureties, and are not technical indorsers. If they are sureties, all or less than all could be sued in the venue of either; if joint makers, the same rule would apply unless the suit be abated for nonjoinder.

2. Where the plaintiff alleged that a named corporation was indebted to him as maker, and that other named individuals were indebted to him as indorsers, upon certain promissory notes, signed by the corporation and payable to the plaintiff and attached to the petition as exhibits, but the exhibits failed to indicate that the names of such individuals were indorsed on the back of the notes, a cause of action, defectively alleged, was set forth against the alleged indorsers, and it was permissible for the plaintiff to file an amendment curing the defect, by setting forth their names as being on the back of the notes. It was not necessary that the amendment should be served upon the defendants. “Service of the original petition is supposed to bring the defendant into - court and put him on notice of the . . complaint against him; and there is no need to further notify him of any matter which can properly be made the subject of an amendment, except to place it on the records of the court to which he has been summoned.” Miller v. Georgia Railroad Bank, 120 Ga. 17 (2), 19 (47 S. E. 525) ; and see Pearson v. Jones, 18 Ga. App. 448 (4) (89 S. E. 536) ; Rea v. McGahee, 12 Ga. App. 326 (77 S. E. 204) ; General Accident &c. Corp. v. Way, 20 Ga. App. 106 (2a), 107 (92 S. E. 650). While it is the general rule that the allegations of an amendment have to be proved, and are not admitted by a failure to plead in answer either to the petition as served, or to the amendment (Hudson v. Hudson, 119 Ga. 637 (4), 46 S. E. 874; Brown v. Atlanta, Birmingham &c. R. Co., 131 Ga. 259, 62 S. E. 186), this rule does not apply where the amendment adds no fact not already alleged (though defectively alleged) in the original petition; and particularly is this so where such an amendment is filed during the appearance term and before the case has been marked in default. While the filing of a material amendment to the petition after the case lias been entered “in default” will open the default so as to give the defendants full right to plead (Civil Code, § 5652; Jones v. Grantham, 80 Ga. 472, 5 S. E. 764; Calhoun v. Mosley, 114 Ga. 641 (3), 40 S. E. 714; Lippman v. Ætna Insurance Co., 120 Ga. 247 (3), 47 S. E. 593; Tate v. Goode, 135 Ga. 738, 741, 70 S. E. 571, 33 L. R. A. (N. S.) 310), the filing of an amendment such as indicated above, whether before or after the entry of default, will hot affect the validity of the judgment rendered, since the judgment cured any defective statement of the original cause of action.

3. Where suit is brought and maintained upon several promissory notes, as set forth above, and one of the notes does not contain a - waiver of protest and notice of nonpayment, etc., though made paj’able at a bank, the plaintiff is not required to plead and prove protest and notice of nonpayment, etc., as to the anomalous indorsers on the note, even though such proof be demanded, inasmuch as on the face of the instru.ment they are not technical indorsers, so as to be entitled to notice of nonpayment, etc. See Booth v. Huff, 116 Ga. 8 (1) (42 S. B. 381, 94 Am. St. R. 98) ; James v. Calder, 7 Ga. App. 707 (2) (67 S. E. 1125).

4. “A judgment can not be arrested or set aside for any defect in the pleadings or record that is aided by verdict, or amendable as matter of form.” Civil Code (1910), § 5960; see Strickland v. Citizens National Bank of Rockmart, 15 Ga. App. 464 (83 S. E. 883). Accordingly, inasmuch as nonjoinder of a comaker or surety is a curable defect (see Beasley v. Allan, 23 Ga. 600; Eagle Manufacturing Co. v. Wise. 40 Ga. 127; Maynard v. Ponder, 75 Ga. 664 (1); English v. Grant, 102 Ga. 35, 29 S. E. 157), and inasmuch as the lack of a prayer for a monetary judgment, if a defect at all, is an amendable defect (Fitzpatrick v. Paulding, 131 Ga. 693, 63 S. E. 213, and cit.), and inasmuch as in a suit against joint or joint and several obligors, where some arc not sei’ved, the verdict and judgment are good as against those served (Stanford v. Bradford, 45 Ga. 97 (2); Langston v. Langston, 141 Ga. 675, 82 S. E. 36), there was no error in overruling the motion to arrest or to set aside the verdict and judgment upon allegation and proof of either or all of such defects.

5. Plaintiff sued upon promissory notes executed and payable in Plorida, and alleged that notice for attorney’s fees had been given, and prayed for such fees. Two of the notes provided for fixed 10% fees, while another one provided for “reasonable fees.” While it may perhaps have been essential to the recovery of such fees for the plaintiff io allege and prove the provisions of the lex loci contractus allowing attorney’s fees (see, in this connection, Brooks v. Boyd, 1 Ga. App. 65 (7), 66, 57 S. E. 1093) ; and while, in respect to the note stipulating “reasonable fees,” it was essential to show that 10% was reasonable (Baker v. Richmond City Mill Works, 105 Ga. 225 (2), 31 S. E. 426; Cramer v. Huff, 114 Ga. 981, 41 S. E. 57; Brooks v. Boyd, supra), and while, in the absence of an allegation and proof that such fee was reasonable, that part of the verdict adjudicating a separately named sum for attorney’s fees might have been void to, the extent of such unproved reasonableness of the fees mentioned above, such infirmity would not render the whole verdict and judgment void. Wheeler v. Martin, 145 Ga. 164 (3), 165 (88 S. E. 951) ; Glennville Bank v. Deal, 146 Ga. 127 (4) (90 S. E. 958) ; Smith v. Knowles, 12 Ga. App. 715 (2) (78 S. E. 264); Farmers & Merchants Bank v. Alford, 21 Ga. App. 546 (94 S. E. 818). *‘A judgment valid in other respects will not be set aside as void because it adjudges that the plaintiff recover, in addition to the principal sum and interest, a named amount as attorney’s fees, whether or not the recovery of attorney’s fees was unauthorized under the pleadings in the case. . . Jf so much of the judgment as awards attorney’s fees was unauthorized, proceedings to amend the judgment, or vacate it in part, might lie, whereby that which was good might be preserved and that which was bad might be removed; but where part is good and a part bad, and the attack in the motion to set aside was upon the judgment as a whole, the motion was properly overruled.” Shahan v. Myers, 130 Ga. 724 (61 (S. E. 702).

Decided January 16, 1926.

Complaint; from Irwin superior court—Judge Eve. February 21, 1925.

PJldridge Quits, for plaintiffs in error. Rogers & Rogers, contra.

6. Movants having invoked a ruling to the effect that the corporation defendant, being a nonresident and not having any place of business in this State, was not suable here, although served through its president who resided in this State, nor. bound by the verdict and judgment rendered, the fact that the trial court, upon motion of the plaintiff, struck the name of the corporation from the judgment did not affect the judgment against the other defendants therein.

7. The provisions of the Civil Code (1910), § 5054, as to the opening of defaults at the trial term, are in effect that the judge in his discretion, on' payment of costs (Sweat v. Mohr, 21 Ga. App. 93, 94 S. E. 79), may allow the default to be opened for providential cause preventing the filing of a plea, or other excusable neglect (Athens Leather Mfg. Co. v. Myers, 98 Ga. 396, 25 S. E. 503; Peterson v. Martin Furniture Co., 144 Ga. 316, 86 S. E. 1099; Pryor v. American Trust &c. Co., 15 Ga. App. 822 (2), 84 S. E. 312; Colclough v. Walker, 19 Ga. App. 23, 90 S. E. 742; Holmes v. First National Bank, 19 Ga. App. 810 (2), 811, 92 S. E. 298), or where the judge, from all the facts, shall determine that a proper case has been made for opening the default on terms to be fixed by the court, and that the' showing shall be made under oath (Stubbs v. Mendel, 148 Ga. 802 (3), 98 S. E. 476; Coker v. Lipscomb, 17 Ga. App. 506 (2), 87 S. E. 704). The movants having-failed to comply with the provisions of the law by showing that they had paid the costs (see Slack v. Elkins, 10 Ga. App. 571, 73 S. E. 862), or by showing that each movant had individually verified the application, or by showing that the failure to plead was due to providential cause or excusable neglect, and not to some unfounded and unjustifiable reason for not so doing (Harrell v. Williams, 11 Ga. App. 532, 75 S. E. 904), it can not be held that the court erred in denying the application, especially as it does not appear that there was an abuse of the discretion which the trial judge exercises over the whole matter. Civil Code (1910), § 5654; Murphy v. Chipley &c. Co., 19 Ga. App. 492 (91 S. E. 911) ; Holmes v. First Nat. Bank, 19 Ga. App. 810 (92 S. E. 298) ; Morgan v. Goldstein, 20 Ga. App. 115 (2) (92 S. E. 777).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16580.
    BLACK v. AUTOMATIC SPRINKLER COMPANY.
    The measure of damages for breach of the contract in question, by refusing to allow the manufacturer to install the machinery in accordance with the contract, would be the difference between the contract price and such lower amount as it would have cost, at the time of the breach, to perform the manufacturer’s part of the contract. There was not such evidence as to the cost as would authorize the court to direct a verdict for the plaintiff. Whether interest from the time of the breach shall be added to the damages in such a case is within the discretion of the jury. The court erred in directing a verdict for the amount stated therein and interest.
    Contracts, 13 C. J. p. 649, n. 43; p. 650, n. 44; p. 764, n.. 49. Damages, 17 C. J. p. 816, n. 37, 40; p. 856, n. 25; p. 919, n. 4; p. 1024, n. 55; p. 1042, n. 28; p. 1060, n. 70. Evidence, 22 C. J. p. 692, n. 80 New; p. 693, n. 96; p. 728, n. 73.
    Decided January 16, 1926.
    Breach of contract; from Laurens superior court—Judge Camp. April 25, 1925.
    Automatic Sprinkler Company of America, a nonresident corporation, sued E. L. Black for damages for breach of a contract for the installation of a sprinkler system in his drug-store at Dublin, Ga. The plaintiff alleged that the defendant entered into a contract with it to equip and install such system for the full price of $2,026; that it was ready, willing, and able to fulfill its contract, but that the defendant refused to permit it to install such system; that the plaintiff had a profit in the said job, amounting to $405.20, and that it was put to a selling expense of $200; for all of which, with interest from the date of the breach at the rate of seven per cent., it prayed judgment. The defendant in his answer denied all the material allegations as to his liability. On the trial the court, on motion of the plaintiff, at the conclusion of the evidence, directed a verdict for the plaintiff, for $405.20 and interest.
    Only two witnesses testified,—the plaintiff’s secretary and the defendant. The secretary testified as to the making of the contract, that the plaintiff was ready, willing, and able to fulfill it, and that nothing was done toward the installation, because of the defendant’s refusal to permit the same; and as to the extent of the plaintiff’s damage he testified: “As a part of my duties I make the calculations on these contracts. I made the computations on this contract for material, labor, profit, overhead, and other items going to make up the total price. The profit was computed on this contract at twenty per cent, of the gross amount, being $405.20. We had some expenses and disbursements, the company actually disbursed as a contracting expense the sum of $200, made up of railroad fares on trips from Atlanta to Dublin of $60, estimated portion of agent’s salary, etc., in connection with the securing of the contract, hotel bills, etc., $140.00, making a total of $200. The item of $405.20 and the item of $200, .making up the total of $605.20, constitutes the damage sustained by our company.” The defendant testified that he made the contract, that the plaintiff never made any effort to install the system, did not ship any of the materials that he ever knew or heard of, and that he wrote to the plaintiff that he could not take the material or allow it to install the system. The defendant moved for a new trial on the usual general grounds and on the ground that the court erred in directing a verdict for the plaintiff. The motion was overruled, and the movant excepted.

      W. A. L ampler, for plaintiff in error.

      C. G. Croclcett, King, Spalding, MacDougald & Sibley, contra.
   Jenkins, P. J.

2. Where the manufacturer sues for damages for the breach of a contract as set forth above, in order to recover it is necessary to prove (1) the contract price, and (2) what it would have cost the manufacturer to perform the' contract. In order to prove such cost there must be testimony as to what materials and labor were necessary, and as to the cost or value of the materials and labor necessary at the time of the breach, and not at the time of the original making of the contract. The estimated value of the materials and cost of labor necessary to perform the contract, reckoned as of the date of the contract, is not the proof necessary in measuring the damage; their value and cost at the time of the breach fixes the measure. It may be that there was either an increase or a decline of such value and cost between the time the contract was made and the time it was breached; either of which would materially affect the measure of damages. If there was any fixing of the value or cost of materials and 'labor in this ease, it was fixed as of the date of the making of the contract, and not as of the date of its breach; and there was no testimony that the cost or value remained unaltered during that interim. Therefore the evidence was not sufficient to sustain the verdict.

3. In such a suit it is necessary for the plaintiff, in. order to make out a liability for actual damages, to show the value of the materials and labor necessary to the plaintiff’s performance of the contract. Civil Code (1910), § 5875. The jury are not bound by the opinion of experts as to value. Atlantic & Birmingham Ry. Co. v. Howard Supply Co., 125 Ga. 478 (2 b) (54 S. E. 530); Martin v. Martin, 135 Ga. 162 (68 S. E. 1095); Wilson v. Baltimore, 135 Ga. 469 (2) (69 S. E. 740). The credibility of testimony is for the jury. Clary v. State, 8 Ga. App. 92 (2) (68 S. E. 615). Accordingly, in this case, where there was evidence (as set forth in the statement of facts) which, properly construed, went only to the extent of proving the contract price of a long-list of materials, labor, etc., but no evidence of any conventional agreement between the contracting 'parties as to the value and cost of the various items of the contract, as in cases relating to the face value of notes, bonds, collaterals, etc., and where there was no evidence that the complaining party, as the quasi agent of the breaching party, went into the open market, after notice to the breaching party, and liquidated the value or cost, by actual sale or purchase, to cure such breach, there was no testimony in the

record, such as would indisputably show the value and cost of the materials and labor necessary to performance. It is only where the value has been in some way liquidated that proof of value and cost becomes that of substantive facts and ceases to be opinion testimony. So that in eases where there has been no liquidation of values as in cases referred to above, but their determination rests purely upon opinion testimony, as in the case at bar, the liquidation of values must be arrived at by a jury, and not by the court. See, in this connection, Baker v. Richmond City Mill Works, 105 Ga. 225 (31 S. E. 426); Finleyson v. International Harvester Co., 138 Ga. 247 (2) (75 S. E. 103); Georgia Northern Ry. Co. v. Battle, 22 Ga. App. 665 (97 S. E. 94); Birmingham Paper Co. v. Holder, 24 Ga. App. 630 (5), 631 (101 S. E. 692); Civil Code (1910), § 5875; Carter v. American Slicing Machine Co., 23 Ga. App. 422 (2), 423 (98 S. E. 365); cf. Lott v. Banks, 21 Ga. App. 246 (4), 248 (94 S. E. 322). The case of McNamara v. Georgia Cotton Co., 10 Ga. App. 669 (3) (73 S. E. 1092), cited by the defendant in error, is not in conflict with what is here held. Here the witness did not pretend to have expert knowledge or to testify as to what was the market value of the labor and materials required for the improvement. He testified only, in effect, as to what in his preliminary estimate made at the time of the contract the plaintiff would have to pay for the materials and what the witness then thought would likely be the cost of the labor required. In the McNamara case, supra, the witness qualified as an expert, showing that he was familiar with the market value of the fluctuating commodity, which had a fixed and recognized market value, and testified as to the fixed market value as at the time of the breach. See, further, in this connection: Bryan v. Southwestern Railroad Co., 41 Ga. 71; Southwestern Railroad Co. v. Rowan, 43 Ga. 412, 414; Atlantic Coast Line R. Co. v. Harris, 1 Ga. App. 667, 669 (57 S. E. 1030); Griffin v. State, 15 Ga. App. 520, 530 (83 S. E. 891). It was error for the court to direct a verdict for the plaintiff on the evidence appearing in the record.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15851.
    Citizens Bank v. Mullis.
    Decided February 13, 1926.
    Trover; from Bleckley superior court—Judge Graham. July 25, 1924.
    The question certified to the Supreme Court was:
    “Can a creditor holding a bill of sale to secure a debt maintain a bail-trover suit and obtain a money judgment against the vendor as against a plea of discharge in bankruptcy, where the debtor, after being adjudged a voluntary bankrupt, has scheduled the debt secured by the bill of sale, and, without occupying any fiduciary relation to the creditor and in the absence of any fraud or malice, other than might be legally implied from the facts stated herein, has delivered the property over to the trustee in bankruptcy, who has administered the same, and where the debtor has been discharged from all provable debts, after the creditor as such has received from the bankrupt court all due and proper notices of the progress of the administration but has done no act which would estop him from asserting his title ?”

      Lawson & Ware, for plaintiff.
   Jenkins, P. J.

Under the agreed statement of facts, and the law governing the same as announced by the Supreme Court in answer to questions certified to in this case, the court erred in rendering judgment in favor of the defendant. See 161 Ga. 371 (131 S. E. 44).

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    16215.
    Thompson v. Colonial Trust Company.
    Frauds, Statute of, 27 O. J. p. 268, n. 59; p. 277, n. 58, 60; p. 279, n. 80, 85; p. 378, n. 8 New.
   Stephens, J.

1. A contract for the sale of land, which is partly in writing and partly in parol, is not enforceable, by reason of the -statute of frauds. Civil Code (1910), § 3222 (4). Lester v. Heidt, 86 Ga. 226 (12 S. E. 214, 10 L. R. A. 108).

2. Where, by the terms of a contract for the sale of land, it is provided in writing that the purchase price of $2,400 is to be paid “five hundred cash, assume loan bal. at $25.00 per month,” and it is provided by parol that the said loan to be assumed is to be for the principal sum of $1,000 at seven per cent, interest, payable semiannually, maturing five years from date, and that the $25 monthly payments are to be evidenced by promissory notes bearing interest from date at the rate of seven per cent, per annum, which parol agreement and understanding was inadvertently omitted from the contract of sale as written, such contract, being partly in writing and partly in parol, is, by reason of the statute of frauds, unenforceable.

Decided February 13, 1926.

Action for breach of contract; from Fulton superior court-judge Humphries. December 8, 1924.

W. W. Gaines, for plaintiff.

George P. Whitman, for defendant.

3. In a suit upon such a contract by the purchaser against the seller, to recover for an alleged breach thereof by the defendant in failing to comply with the obligation to sell, a demurrer to the petition, upon the ground that the contract was unenforceable under the statute of frauds, was properly sustained.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonour.


author: Bell, J.

text:
    16222.
    Chambers v. Planters Bank.
    Executions, 23 C. J. p. 697, n. 60.
    Decided February 13, 1926.
    Levy and claim; from Miller superior court—Judge Yeomans. January 12, 1925.

      P. D. Rich, for plaintiff in error. H. G. Rawls, contra.
   Bell, J.

1. “Where property levied on is sold in accordance with the provisions of the Civil Code of 1910, § 6068 et seq., regulating the sale of personal property of a perishable nature, the sale divests all liens on the property sold, and the liens so divested attach to the money raised by the sale.” See answer of the Supreme Court to question certified in this case. 161 Ga. 535 (131 S. E. 280).

2. In the instant case the lien of the mortgage was divested by the short-order sale under the common-law fi. fa., and, it appearing without dispute that the claimant was a purchaser at that sale, the verdict in favor of the plaintiff in the mortgage fi. fa. was contrary to law, and the court erred in overruling the claimant’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    16234.
    FARMERS BANKING COMPANY v. CONTINENTAL TRUST COMPANY.
    If this action be construed as an action for fraud and deceit in the sale of securities to the plaintiff, it is subject to general demurrer, because the alleged representations on the part of the defendant were more in the nature of the expression of an opinion as to quality than a statement of material facts, past or present, and because it is not alleged that the representations were false and fraudulent, and known to be so ' by the defendant’s agent making them, and further because it is not alleged that the plaintiff relied upon the alleged representations in purchasing the securities.
    Properly construed, the action is for damages on account of the negligence of an agent undertaking to collect securities for the plaintiff; and it is subject to general demurrer because it does not allege facts showing-damage on account of the negligence.
    As to the count in which it was alleged that loss was occasioned to the plaintiff by the defendant’s failure to sell, before a decline in market value, the cotton put up as collateral for the note held by the defendanl for collection, the demurrer was property sustained because it was not alleged that the defendant had been instructed to sell the cotton. It appears that the plaintiff vested in the defendant discretion as to when to sell, and there is no allegation that the discretion was not properly exercised. Simple error of judgment in this respect would not render the defendant liable.
    Banks and Banking, 7 O. J. p. 888, n. 5 New. Fraud, 27 0. J. p. 33, n. 1, 7; p. 36, n. 39.
    Decided February 13, 1926.
    Complaint; from Fulton superior court—Judge Humphries. December 18, 1924.

      Candler, Thomson & Hirsch, for plaintiff.

      Anderson, Rountree & Crenshaw, Bryan & Middlebroolcs, for defendant.
   Jenkins, P. J.

Farmers Banking Company filed suit, in two counts, against Continental Trust Company, alleging in substance, in the first count, that the defendant had injured and damaged the plaintiff in a named sum by reason of the fact that on a date named the manager of the stock and bond department of the defendant telephoned the plaintiff that the defendant had for sale some good negotiable notes, secured by cotton, and requested the plaintiff to purchase them; that the plaintiff stated that if the notes were in proper form and properly secured, it would be willing to purchase, but that it knew nothing of the notes, not having-made any investigation; to which the defendant’s agent replied that the defendant had made an investigation and knew that the notes were good; that the plaintiff stated that in purchasing any of the notes it would rely upon the defendant’s statements; that within a day or two the plaintiff received from the defendant certain notes, one of which was a note of the Cotton Warehouse Company for $3,500, payable to the order of the maker and indorsed by the maker; that the collateral note referred to as securing the principal note was for $3,500, signed by Ellis Cotton Company, payable to Cotton Warehouse Company, and indorsed by the latter company; that upon receipt of these papers the plaintiff informed the defendant that it did not like the appearance of the papers, for reasons given; that, there being no response to this communication, the plaintiff wrote to the defendant again, complaining of the form of the papers; that in answer to this communication the defendant wrote to the plaintiff, “advising it that the cotton had been personally inspected and located by defendant, and further suggesting that petitioner return the notes to the defendant in order that it might take the proper steps to sell the collateral behind the notes;” that in response the plaintiff did return the notes; that thereafter the plaintiff wrote to the defendant, calling attention to the fact that the price of cotton was all the while declining, and to the fact that its notes provided for putting up additional collateral when the value of that already up declined in value; that the defendant wrote to it, stating that the Cotton Warehouse Company was being liquidated, and that “the cotton which secured your notes is for sale to satisfy your interest. Your notes are secured, and, the cotton which secures said notes is sufficient to pay the amount owed you. At present you have fifty-one bales of cotton to secure a $7,490.00 indebtedness. . . On to-day’s market you have 7 cents margin. We will advise you as soon as the cotton is sold, and will remit to you direct.” It was alleged that the defendant failed and refused to sell the cotton while the price thereof was sufficient to pay the indebtedness, and failed and refused to require additional collateral to be placed with the note;' that there was no cotton at any time set aside as security for the said note; that the Ellis Cotton Company and the Cotton Warehouse Company were both insolvent when the notes were first offered to the plaintiff for sale; and that ten days thereafter a committee of creditors was appointed for these companies. It was alleged that the defendant was negligent in the following respects: (a) in that it did not, at the time the notes were offered to the plaintiff, make a proper investigation as to the solvency of said two debtor companies and as to the value of the notes; (5) in that the defendant failed to obey instructions as to selling said cotton or requiring additional collateral; (c) in failing to exercise reasonable diligence in collecting said notes or in securing additional collateral; (d) in that the defendant repeatedly assured the plaintiff that its notes were good and would be paid, and that it had ample security, and thus misled the plaintiff and prevented it from taking other steps to protect its own interest.

The allegations of the second count were practically the same except that the note of another debtor was sold, and that it appeared in that case that certain cotton was in hand for security, and was sold and accounted for, leaving only a balance due to the plaintiff, for which it prayed recovery upon practically the same grounds of negligence as set forth above.

A general demurrer to the petition was sustained, and the plaintiff excepted.

This case does not involve the question of implied warranty by the seller of securities, which is raised in the case of Continental Trust Co. v. Bank of Harrison, No. 16141, which has been certified by this court to the Supreme Court.

1. It does not seem possible to construe the plaintiff’s petition as an action for fraud and deceit. Even were this possible, however, the petition was subject to general demurrer, for the reason that the representations made by the agent of the defendant, at and before the consummation of the sale of the securities to the plaintiff, were more in the nature of the expression of an opinion as to their quality than the statement of material facts, past or present; and for the further reason that it is not alleged that the said representations were false and fraudulent, and known to be so by the defendant’s agent making them; and for the additional reason that it is not alleged that the plaintiff relied upon the strength of said representations in making its purchase of the securities. See Dickey v. Leonard, 77 Ca. 151; 20 Cyc. 102.

2. Properly, the petition should be construed as an action for damages on account of the negligence of.an agent undertaking to collect certain securities for the plaintiff. So construing the petition, the first count is subject to the general demurrer, for the reason that no facts are alleged showing that the plaintiff suffered any damage on account of such alleged negligence. From the allegations of the petition it would seem to follow that the plaintiff had suffered his entire damage in advance of the time the securities were in fact delivered to the agent to collect, and before it was possible for such agent to have been guilty of any negligence in connection with the attempted collection. Plaintiff does not show that but for the negligence charged it could have made collection of such securities; nor does it show that there were any other collaterals available to the debtors -to put up under their agreement so to do, when the value of that already up should decline in value. Allegations to the above effect not appearing in the petition, we think the court correctly sustained the general demurrer. The point that the petition might be sustained for nominal damages only is not made. See, in this connection, Spooner v. Bank of Donalsonville, 144 Ga. 745 (87 S. E. 1062); Morris-Miller Co. v. Von Pressentin, 63 Wash. 74 (114 Pac. 912); 6 Corpus Juris, 1157; 1 L. R. A. (N. S.) 246.

3. What has been said with respect to the ruling on the demurrer to the first count applies with equal force to the ruling on the demurrer to the second count. The only material difference between the allegations in the two counts is that in the second count it appears that some cotton was actually put up as collateral to secure the indebtedness referred to therein, and it is alleged that loss was occasioned to the plaintiff by the failure of the defendant to sell this cotton prior to the fall of its market value, but in this count there is nothing that would take it from within the rulings made as to the first count, for the reason that, while there was some cotton up as collateral for the note set forth in this count, which cotton declined in value during the time in which the defendant held the note for collection, and involved the plaintiff in a loss upon ultimate sale by the defendant, it was not alleged that the plaintiff gave to the defendant, its agent to collect, positive instructions to sell such cotton at any timé during the higher market or at any other time. From the allegations it appears that the plaintiff vested a discretion in the defendant as to when to sell, and there is no allegation that such discretion was not properly exercised for any reason assigned. Simple errors of judgment in this respect would not render the defendant liable.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16271.
    Calhoun v. Hill.
    Husband and Wife, 30 C. -T. p. 943, n. 45 New; p. 1028, n. 40 New.
    Decided February 13, 1926.
   Stephens, J.

1. Where, by a scheme or device to which her husband’s creditor is a party, a wife is induced to make a gift to her husband of her separate estate for the purpose of being used by the husband in the payment of his debt to the creditor, and the husband conveys the property to the creditor in extinguishment of the debt, such transaction may, at the instance of the wife, be treated as void and as passing no title from the wife. Civil Code (1910), § 3007; Berry v. Goodger, 80 Ga. 620 (6 S. E. 19); Freeman v. Mutual Bldg. & Loan Assn., 90 Ga. 190 (15 S. E. 758); Temples v. Equitable Mtge. Co., 100 Ga. 503 (28 S. E. 232, 62 Am. St. R. 326) ; Johnson v. Leffler Co., 122 Ga. 670 (50 S. E. 488). ' The property may be recovered by the wife in a suit against the creditor.

2. Where a creditor, whose debt is seeurul by the pledge of a. diamond ring belonging to the wife of the debtor, informs the debtor that ho (the creditor) has no title to the property because it was pledged for the husband’s debt, but that he (the creditor) can deliver the properly to the wife and- that she can do as she pleases with it, including the giving of it to her husband, and that the husband could then in turn use it as he saw fit, including using it in the payment of his own debt, to which suggestion the debtor assented; and where afterwards the husband and the creditor went to the wife, and, after a private interview between the¡ husband and the wife, the creditor, in the presence of the husband, delivered the ring to the wife, at the saíne time disclaiming to her any title thereto, and suggested to her that she could do as she pleased with the ring, including giving it to her husband, if she so desired, and that the husband could then use the ring in payment of his own debt, and where the wife thereupon, in the presence of the creditor, after having retained the physical possession of the ring for three or four minutes, handed it to the husband, who then gave it to the creditor and in the presence of the wife executed a bill of sale thereto to the creditor with the wife as an attesting witness, the only reasonable inference that can be drawn therefrom is that this transaction was a .scheme and device to which the creditor was a party, by which the wife conveyed her separate estate to the creditor in payment of her husband’s debt. Civil Code (1910), § 5926. Such inference is as a matter of fact demanded.

3. In a suit in trover-by the wife against the creditor to recover the ring, a verdict for the .plaintiff was properly directed.

Judgment affirmed.

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

Trover; from Muscogee superior court—Judge Munro. December 31, 1924.

Application for certiorari was denied by the Supreme Court.

Arnold & Battle, for plaintiff in error. John A. Fort, contra.


text:
    16333.
    McKENZIE TRUST COMPANY v. BULLARD et al.

    1. The objections to the part of the record sent to this court as the report of the evidence taken before the auditor are not ground for dismissal of the writ of error.
    2. It was error to admit parol evidence as to the defendant’s refusal to allow the plaintiffs to contract for a loan larger than the amount fixed by subsequent written novation of their previous contract as the amount for which a loan should be placed upon the house and lot, the subject-matter of the contract.
    3. The ruling of the Supreme Court construing the petition in this case as an action on a contract and transferring the case to this court fixed the law of the ease, and the demurrer on the ground that there was a misjoinder of causes of action ex contractu and ex delicto was properly overruled; but the findings of the auditor as approved by the court were based upon evidence erroneously admitted and upon an erroneous theory and measure of damages, and, the-ease being one in law, the court erred in failing to submit to a jury the exceptions of fact to the auditor’s report.
    Accounts and Accounting, 1 O. J. p. 646, n. 69.
    Appeal and Error, 4 C. J. p. 156, n. 36; p. 443, n. 54 New; p. 490, n. 41; p. 518, n. 27 New; p. 1213, n. 83.
    Courts, 15 C. J. p. 961, n. 36.
    Evidence, 22 C. J. p. 1098, n. 96.
    References, 34 Cye. p. 865, n. 27 New.
    Decided February 13, 1926.
    Complaint; from Fulton superior court—Judge E. D. Thomas. February 19, 1924.

      McFlreath & Scott, for plaintiff in error. Boy Lewis, contra.
   Jenkins, P. J.

The petition of Bullard and Powell against McKenzie Trust Company waived discovery and sought an accounting and the recovery of $3,975 from transactions growing out of a -written contract, providing, with its amendment, in brief, that the defendant trust company was to deed a lot to the plaintiffs, who were architects and builders, for the sum of $1,400; that the plaintiffs were to build a house thereon to cost not less than $3,000, and, for the purpose of defraying the cost of such improvements, were to obtain a loan on the house and lot in the sum of $2,500 (the defendant advancing for such improvements an additional sum of $465); that after obtaining such loan the plaintiffs were to reconvey title (subject to the loan) back into the defendant; and that the equity in the property .was then to be sold, and the proceeds of the sale were to be applied first in extinguishing the said advance by the defendant of $465, and were then to be divided equally between the parties as fast as collected until the payment of the said'$1,400, with interest, to the defendant for the lot, after which all the remaining proceeds should go to the plaintiffs. The plaintiffs averred that the defendant, by fraud and conspiracy, privately disposed of the said premises, knowing of the equitable rights of the plaintiffs therein, and fraudulently converted the proceeds to its own use, and failed to make any accounting to the plaintiffs; that the defendant rented the property without accounting to them for the rentals received, and “did defraud these plaintiffs by failing to pay one half of all sums of money received on the purchase-price of said premises;” that the premises at the time the defendant sold the same “were reasonably worth more than $7,000,” and the defendant “did receive said sum, . . or could have received said sum . . had it exercised honorably the terms of said agreement and the trust therein created with ordinary business judgment;” by reason of which conduct the defendant was indebted to the plaintiffs in the amount claimed. The trust company demurred to the petition upon the ground that “it contains a misjoinder of causes of action, it being based in part upon alleged contract and agreement, and in part upon charges of fraud and wrongs against this defendant.” The demurrer was overruled, and exceptions pendente lite were taken.

In the written novation modifying the original written contract it was stated that “the said Bullard & Powell have not been able to secure a loan of $3,000 on said property, as contemplated in said [original] contract,” that “the McKenzie Trust Company has advanced to said Bullard & Powell the sum of $465 in payment of certain materials and labor used in construction of house on above described property,” that “the McKenzie Trust Company has agreed to allow the said Bullard & Powell to place a loan of $2,500 on said property, and deed it subject to said loan, according to terms of said [original] contract;” and it is provided that the said $465 plus interest from date at 7 per cent, shall he first repaid from “monies collected from the sale of said property;” and that the balance of purchase-money shall be collected by the defendant trust company in accordance with the terms of the original agreement, as alleged in substance in the petition, and above set forth. The auditor to whom the case was referred by the trial court admitted in evidence proof tending to show that the defendant, prior to the written novation fixing the amount of the loan at $2,500, wrongfully refused to permit the plaintiffs to obtain a loan of $3,500 on the property, and he considered this amount as an element in his findings of damages for the plaintiffs. The auditor found that “the sale made by the defendant was not made in good faith,” and that the defendant should have realized $6,500 instead of $4,250 out of the sale, but found in favor of the defendant certain items of counterclaim, consisting of expenses incurred in the payment of interest on the loan, insurance, premiums, taxes, upkeep of the property, advances made to complete the construction, and commission paid in making the sale, amounting, with the $465 advance referred to in the novation and interest, to $1,451.02. lie summarized his findings as follows: “I find that the property in question was reasonably worth and should have been sold for $6,500; that the difference between this amount and $3,500, the largest loan obtainable on said property, should be divided equally between the plaintiffs and the defendant; that the defendant, having sold the property, is liable to the plaintiffs for their half of said difference, to wit, $1,500; that the defendant is entitled to a credit on sale amount of $451.02, leaving a net balance due the plaintiffs of $1,048.90, with interest on said amount from May 12, 1919, the date of the sale of said property by the defendant.” The defendant admitted that it had collected a net amount of $47.50 from rentals. On exceptions of law and fact filed by the defendant the trial judge passed upon and overruled all exceptions of law and fact, and approved the auditor’s report, except to allow to the defendant interest upon its expenses to the date of sale of the property, in an additional amount of $48.98, and entered a judgment for the plaintiffs for $1,000 with interest at 7 per cent, from May 19, 1919. The plaintiffs excepted to this judgment.

“An auditor’s report of the evidence taken by him upon the hearing of a case constitutes a portion of the record thereof, and may be specified and dealt with as such in bringing that case to this court.” Arendale v. Smith, 107 Ga. 494 (1) (33 S. E. 669). In such a case, it is unnecessary for the trial judge to approve the evidence thus filed by the auditor, as is required on motions for a new trial; and where the bill of exceptions properly specifies such evidence as part of the record to be sent up, and the clerk certifies that the record sent to this court is a “true transcript” of the parts of the record specified, this court can not consider an aliunde unsworn attack on such transcript, made in a motion to dismiss on the ground that the evidence sent up is not the evidence filed by the auditor. Nor in a case before an auditor, where the auditor certifies in his report that, “by agreement of attorneys for both parties, the stenographic transcript of evidence is submitted . . in lieu of a brief of the evidence,” is it necessary that the evidence shall have been briefed in condensed and narrative form. Fricker v. Americus Improvement Co., 124 Ga. 171 (2) (52 S. E. 65); Schmidt v. Mitchell, 117 Ga. 6 (1) (43 S. E. 371). Moreover, an .imperfect brief of evidence is not ground for dismissal of the bill of exceptions, but merely of exclusion from consideration by the court of those exceptions which depend upon the evidence. Crumbley v. Brook, 135 Ga. 723 (70 S. E. 655); Shaine v. Block, 28 Ga. App. 329 (1) (111 S. E. 79); Walker v. Smith, 31 Ga. App. 205 (121 S. E. 692). The motion to dismiss is therefore denied.

The parties by their written novation, modifying the original written contract, having fixed and agreed upon the sum of $2,500 as the amount for which a loan should be placed upon the house and lot which formed the subject-matter of their agreement, the auditor erred in admitting, and considering as an element in his finding of damages for the plaintiffs, parol evidence which varied the express written provision by attempting to show that the defendant, prior to the novation, had wrongfully refused to allow the plaintiffs to contract for a larger loan of $3,500 on the property; and the court erred in overruling the defendant’s exceptions to the admission and consideration of this evidence, and in approving the auditor’s findings based upon this as an element of damage.

On the bill of exceptions brought to the Supreme Court by the defendant below, in which the judgment approving the auditor’s report, except by adding an allowance for interest on the principal amount allowed to the defendant on its counterclaim, was complained of, the Supreme Court held: “Properly construed, the petition and counter-petition constitute plain actions of law based on contract, and the remedies provided by law are adequate; for which reason it follows that equity has no jurisdiction, notwithstanding the waiver of discovery and the prayer for accounting, there being no facts alleged which show that resort to equity is necessary to secure an accounting,” and that since that court was therefore “without jurisdiction to pass upon the assignments o£ error in the bill of exceptions,” the cause should be transferred to this court. McKenzie Trust Co. v. Bullard, 159 Ga. 884 (127 S. E. 277). This ruling having fixed the law of the case, in construing the petition to be an action upon contract, the defendant’s demurrer setting up a misjoinder of actions on contract and in tort is held to have been properly overruled; but the findings of the auditor as approved by the court, set forth in the summary embodied in the statement of facts, were unauthorized by the .theory and allegations of the pleadings. "Under the pleadings and the auditor’s findings that the sale of the house and lot by the defendant at the price received amounted to a fraud against the plaintiffs, -the plaintiffs were entitled to receive the fair and reasonable sale value of the equity in the house, and lot at the time it was sold by the defendant, with interest thereon, plus any amount received by the defendant from rentals, less the amount of the lien with which the property was incumbered, less the $465 originally advanced by the defendant, with interest, less the $1,400 representing the maximum purchase price of the lot as fixed by the contract with interest, and less all other charges, advances, and expenses, properly allowed by the auditor to the defendant on its counterclaim with interest. It ■will thus be seen that the auditor’s findings and conclusions are based upon evidence erroneously admitted and. upon an erroneous theory and measure of damages, and that, the case being one in law, the court erred in failing to submit the exceptions of fact to a trial before a jury.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16361.
    Henning v. City of Atlanta.
    Municipal Corporations, 28 Cyc. p. 1286, n. 11; p. 1315, n. 48; p. 1465, n. 36.
    Decided February 13, 1926.
    Action for damages; from city court of Atlanta—Judge Eeid. March 2, 1925.
    Application for certiorari was denied by the Supreme Court.

      Fuller & 'Bell, for plaintiff.

      J. L. Mayson, J. M. Wood, for defendant.
   Stephens, J.

1. The act of a municipality in repairing a damaged condition of a sewer and the surrounding earth is a ministerial act. See City of Atlanta v. Trussell, 21 Ga. App. 340 (94 S. E. 649) and eases there cited; Mayor etc. of Savannah v. Spears, 66 Ga. 304.

2. Where the foundation of a retaining wall upon private premises has been damaged by the negligence of the municipality in making an excavation upon the premises for the purpose of repairing a sewer and the damaged condition to the premises caused from the bursting of the sewer, which was a part of the municipal drainage system, the owner of the premises may recover from the municipality any damage to the premises proximately resulting from the negligent performance of such act by the municipality.

3. Applying these rulings, the petition in this case set out a cause of action. It was error to sustain the general demurrer to the petition.

Judgment reversed.

Jenlcins, P. J., OA%d Bell, J., concur.


text:
    16397.
    Savannah Kaolin Company v. Travelers Insurance Company.
    Liability Insurance, 36 C. J. p. 1088, n. 29, 35.
   Stephens, J.

1. A provision in an employer’s liability policy of insurance to the effect that the policy shall not apply to injuries sustained by any person employed by the insured “in violation of law as to age, or under the age of fourteen years if there is no legal age limit,” contemplates, when applied to an employment in Georgia, a violation of the terms of the Georgia child-labor act, which prohibits the employment of any person under fourteen years of age, except under named conditions. Ga. L. 1914, p. 88; Bark’s Ann. Code, § 3149(a). It does not contemplate merely a criminal violation of the act, which occurs only where the employer knowingly employs a person under the prohibited age. 36 C. J. 1088, § 64; Lockwood v. Ætna Life Ins. Co., 8 Ohio App. 444; Buffalo Steel Co. v. Ætna Life Ins. Co., 136 N. Y. Supp. 977 (4).

Decided February 13, 1926.

Complaint; from city court of Savannah—Judge Rourke. February 14, 1925.

A. B. Bernstein, Mclntire, Walsh & Bernstein, for plaintiff.

Harris, Harris & Popper, for defendant.

2. In a suit by the insured against the insurer upon such a policy, the verdict found for the defendant was authorized.

Judgment affirmed.

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


text:
    16404.
    ATLANTA & LOWRY NATIONAL BANK v. MAUGHON et al.

    1. Where, after the maturity of a promissory note secured by the indorsement of a surety, the payee, without the consent of the surety, accepts from the maker a new note for the same amount, maturing at a deferred date, and charges and accepts from the maker interest upon the new note from the date of its execution to the date of its maturity, and where the new note represents no additional indebtedness to the payee, both notes constitute obligations for the same indebtedness, and the acceptance of the latter note constitutes a contract in writing between the payee and the maker of the original note, extending the time of payment of the original note without the surety’s consent, and operates to release the surety, any parol agreements or understandings to the contrary notwithstanding.
    2. An admission of liability which amounts only to a legal conclusion has no probative value as against the legal effect of a contract which relieves from liability the party making the admission.
    Evidence, -22 0. J. p. 298, n. 12, 13. Principal and Surety, 32 Oye. p. 151, n. 62; p. 210, n. 21.
    Decided February 13, 1926.
    Complaint; from Fulton superior court—Judge Ellis. March 6, 1925.
    A suit on a promissory note for $2500 and interest from maturity at the rate of 8 per cent, per annum, dated December 29, 1919, and due four months after date, was instituted by the Atlanta & Lowry National Bank, as payee, against II. E. Maughon, as maker, and R. J. Woodall, as administrator of the estate of the surety, C. M. Maughon. The maker .pleaded a discharge in bankruptcy, and the administrator pleaded, as a release of the surety, an alleged contract by which the payee had, without the surety’s consent, agreed with the maker to extend the time of payment of the note. The maker proved a discharge in bankruptcy as against the note sued on. As to the plea of release of the surety filed by the administrator, it appears from undisputed evidence that on November 27, 1920, after the death of the suretjq the maker executed to the bank another note in the same-amount as the note sued on, which new note by its terms matured January 15 after date and called for interest after maturity; that the bank accepted this note and at the same time collected from the maker the interest on $2500 from the date of the new note until the date of its maturity, all of which was done without the consent.of the surety; that both notes, each for the principal sum of $2500 and aggregating $5000, were retained by the bank, but nothing was advanced upon the new note, and after its execution and acceptance by the bank an indebtedness of only $2500 was claimed by the bank against the maker. The officer of the bank who handled the transaction testified as follows: “The transaction was between II. E. Maughon and myself at the time the second note was given, November 27, 1920. There was no agreement on my part or on the part of the bank to accept it ■in payment of the original note, and there was no agreement to extend the original note, and there was no agreement between Mr. Maughon and myself to change the status of the original note when this note was given. . . I did not consider that subsequent • to November 27, 1920, H. E. Maughon owed me $5000. I only considered he owed me $2500. I did not consider the note of November 27, 1920, a renewal note of the note of December 29, 1919. I would not consider a renewal note unless it bore the same signatures. . . It was not our intention to extend the old note. The new note was merely a convenience on our part. We accepted the new note, making the original amount expressed in the old note payable on January 15, 1921. We accepted it with the understanding that the indorser would not be released; and that understanding was accepted through H. E. Maughon. It was not with the consent of the original indorser, C. M. Maughon. He was dead at that time. There was no consent from him. We accepted payment of interest in advance on this new note until the 15th of January.” A verdict for both defendants was directed.

      King, Spalding, MacDougald & Sibley, Neufville & Neufville, for plaintiff.

      Jones, Evins, Moore & Powers, L. 8. Clamp, for defendants. '
   Stephens, J.

(After stating the foregoing facts.)

Does the evidence as a matter of law establish the surety’s release, and therefore was the verdict for the administrator of the estate of the surety properly directed? The bank’s acceptance on November 37, 1930, of the new note, which was in the same amount, namely, $3500, as the original note sued on, and which contained “the original amount expressed in the old note payable on January 15, 1931,” can be regarded only as a cumulative promise to pay at a deferred date the then-existing indebtedness of $3500 represented by the note sued on, which was at the time past due. The “interest in advance on this new note until the 15th of January,” which was collected and accepted by the bank from the maker contemporaneously with the execution of the new note of November 37, 1930, must necessarily have been interest upon some indebtedness due the bank by the maker. Since the only indebtedness due the bank was $3500, which was not created by the new note, the interest accepted by the bank must necessarily have been paid and accepted upon the pre-existing indebtedness represented by the original note. To hold otherwise would impute to the bank the acceptance of interest in advance upon nothing, and the extension of time for the pajunent of nothing. The new note, which was executed by the maker of the original note, and which provided for the payment of $3500 at a deferred date, for which interest in advance was charged and collected, necessarily constituted a contract between the bank and the maker of the original note, whereby the time of payment of the existing indebtedness of $3500 represented by the original note was extended to January 15th following. Since such extension was made without the consent of the surety, the surety was thereby released. Civil Code (1910), § 3544.

The contract of extension as evidenced in the new note being in writing, no parol agreements or understandings to the contrary, if there were any, made by the parties contemporaneously with its execution constitute any part of the contract. There is evidence that there was no agreement to extend the time of payment, and that it was not the intention of the parties to extend the time of payment, but it does not appear that there was any agreement by which the time of payment was not extended. Where interest on a past-clue indebtedness is accepted in advance, it constitutes an extension of the time of payment, unless there is an agreement to the contrary. This agreement must be an affirmative one to the effect that the time of payment is not thereby extended. A negative agreement to the effect that it was not agreed that the time of payment was extended will not suffice. Randolph v. Fleming, 59 Ga. 777 (3); Scott v. Saffold, 37 Ga. 384. There is evidence, however, to the effect that the new note was “accepted with the understanding that the indorser would not be released.” Such an agreement manifestly can not defeat the legal effect of a contract extending the time of payment without the surety’s consent. Such a contract entered into with the maker operates as a matter of law to release the surety, despite any agreement to the contrary with the maker.

It is immaterial that the twelve-month period within which the estate was exempt from suit had not expired,and that no suit at the time could have been filed against the estate. Irrespective of this bar to an immediate collection from the surety’s estate, the surety, or those succeeding to his rights, had the right to a preservation of the contract with the principal as originally made. But for the agreement with the maker extending the time of payment without the surety’s consent, the administrator of the surety could have paid the note immediately, or at any time during the period of extension, and brought suit thereon against the maker. During this period of extension the surety might have been able to collect the amount of the debt out of the principal by garnishment or otherwise, whereas such opportunity might have passed before the expiration of the period of extension.

The maker of the two notes, who testified on the trial, was at the time of the execution of the second note and some time thereafter the administrator of the estate of the surety. A statement by him, made after the execution of the second note, contained in his individual petition for bankruptcy, to the effect that the estate of the surety, who was his intestate, would have to pay the note sued on, amounted to no more than an expression of an opinion by him as to a legal conclusion, or a prophecy of fact. 33 C. J. 398, § 335; Solomon v. Solomon, 3 Ga. 18 (5). It has no probative force as against the legal effect of the contract actually made, releasing the surety. The maker’s testimony, to the effect that, when he made his return as administrator upon his relinquishment of the administration of the estate to his successor, he considered the note sued on as an indebtedness of the estate, is subject to the same criticism.

Under the undisputed evidence a verdict was properly directed for the defendant administrator representing the estate of the surety. The maker’s discharge in bankruptcy was established without issue, and the verdict as to him was properly directed.

Judgment affirmed,.

Jenlcvns, P. J., and Bell, J., concur.


text:
    16421.
    NEWCOMB v. WAGONER.
    The rule requiring the plaintiff to furnish a bill of particulars did not apply to an action for an accounting where it appeared from the petition that under the contract on which the suit was based the defendant was to keep all books of account of the business in which the parties were engaged and to which the contract related, that the defendant did keep such accounts, and that the plaintiff did not have and was refused access to them. *
    Where, under a contract of employment between the owner of a business and one employed as its manager, the manager was to receive out of the gross receipts of the business a stated amount on a monthly drawing account, and was further to receive as compensation a stated portion of the net profits of the business, the signing of a receipt by the manager, for the amount due on his monthly drawing account, reciting that it was “in full payment . . for services to” the date of the receipt, did not estop him from asserting his claim for profits due him, unless his claim for them was intended to be covered by the receipt. Such a receipt is open to explanation.
    The finding of the auditor in favor of the plaintiff, and the verdict'sustaining it, were not unsupported by evidence.
    Accord and Satisfaction, 1 O. J. p. 562, n. 83.
    Estoppel, 21 0. J. p. 1148, n. 69. /
    Evidence, 22 0. J. p. 1140, n. 41.
    Partnership, 30 Cye. p. 737, n. 73.
    Pleading, 31 Oye. p. 580, n. 76.
    Decided February 13, 1926.
    Complaint; from Richmond superior court—Judge A. L. Franklin. March 7, 1925.
    Application for certiorari was made to the Supreme Court.
    Wagoner, by his petition against Newcomb, sought an accounting and sued for a stated sum as his alleged share of the net profits arising from the operation of a coffee shop and restaurant, alleging that the plaintiff was to receive for his services under his contract of employment $125 per month on a drawing account, after which he was to have 50 per cent, of the net profits arising from the operation of the restaurant and 50 per cent, of 85 per cent, arising from the operation of the coffee shop. In the petition as amended it was alleged that the petitioner, as manager or steward of the said establishments, turned over the gross receipts, as received from day to day, to the defendant, whose duty it was to keep all books, records, and accounts of the business of both establishments ; that the defendant had failed and repeatedly refused to render him a statement as to the condition and profits of the business, and had refused to permit him to inspect the books and records disclosing the same. To the petition as amended the defendant demurred, on the ground that the plaintiff had failed to attach to his petition an itemized statement or bill of particulars, showing the detailed profits and losses, or profits, of the business. The case was referred to an auditor, who overruled the demurrer, and on the hearing found a sum in favor of the plaintiff. Exceptions were taken to the findings of the auditor both upon questions of law and questions of fact. His ruling on the demurrer was sustained by the superior court, and exceptions pendente lite were filed by the defendant. The exceptions of fact were approved by the court, for trial before a jury, and the exceptions of law were overruled. On the trial before a jury the auditor’s findings of fact excepted to were sustained. The defendant filed a motion for a new trial, complaining of certain parts of the charge of the court and' the failure to give certain instructions to the jury; the motion was overruled, and the movant excepted, assigning error on that judgment and on the rulings complained of in the exceptions pendente lite.

      Callaway & Howard, for plaintiff in error.

      Pierce Brothers, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) This case has been transferred to this court by the Supreme Court.

Whether or not the rule requiring that a bill of particulars, when demanded by demurrer, shall accompany the plaintiff’s petition applies in suits for an accounting (see Gould v. Barrow, 117 Ga. 458, 43 S. E. 702), such could not be the rule in the instant caso, where from the petition it appeared that under the contract forming the basis of the suit the defendant “was to keep all books of account, statements, and accounts showing the business operations of said two restaurants, and defendant did keep such books and records,” and where it further appeared that the plaintiff did not have and was refused access thereto.

If, when the plaintiff signed the last receipt for the amount due on his current monthly drawing account, which stipulated on its face that it was in full for services to that date, it appears that it was in the minds of the parties that it was intended to cover all claims for services, both current drawing account and his distributive share of the net profits, the signer of the receipt would be bound by the stipulation (Riley v. London Guaranty & Acc. Co., 27 Ga. App. 686, 109 S. E. 676; Bass v. Roberts Coat Co., 4 Ga. App. 520, 61 S. E. 1134); but where, under a contract of employment by the owner of an enterprise with the plaintiff as its manager, the manager was to receive out of the gross receipts of the enterprise a stated amount on a monthly drawing account, and was further to receive as compensation a stated portion of the net profits, if any, which the enterprise might produce, the fact that the manager may have signed a receipt covering his accrued monthly drawing account as in full for services would not estop him from asserting his claim for any profits due him, unless his claim for them was intended to be covered thereby. Such a receipt is open to explanation (Walters v. Odom, 53 Ga. 286; City Bank of Macon v. Kent, 57 Ga. 283, 284 (6); Georgia Railroad Co. v. Gouedy, 111 Ga. 310 (2), 312 (36 S. E. 691); Macon Canning Co. v. Roberts, 26 Ga. App. 147 (4) (105 S. E. 734)); and the signer should be permitted to show that the payment for services referred to therein 'was that which he was entitled to receive monthly from the gross receipts, and was not intended to include his claim for such portion of airy net profits as under the other part of his contract he might have been entitled to. In Waits v. Baker, 78 Ga. 622 (1), 628 (3 S. E. 773), Chief Justice Bleckley, speaking for the Supreme Court, said: “The words fin full/ etc., ought to be interpreted with reference to the subject-matter of the settlement on which the instrument wras founded.” The court therefore did not err in giving the charge excepted to or in refusing to give the charge requested.

The evidence before the auditor and before the jury on its trial of the exceptions of fact is very voluminous. It is not altogether as clear as could be desired. This may have been brought about to some extent by the misfortune of the defendant in the destruction of the books and records in his custody by fire; but we do not feel authorized to set aside the finding of the auditor and the verdict sustaining it, as being contrary to law on the theory that it is absolutely without any evidence to support it.'

Judgment affirmed.

Stephens and-Bell, JJ., concur.