author: Jenkins, P. J.

text:
    16329.
    CITY OF MACON v. ROY.
    That part of the charge of the court which is set out iu subdivision (6J of the 5th division of the opinion, as to damages recoverable if the city caused and continued to cause the flow upon the plaintiff’s property of water which would not have flowed upon it before the construction of the sewer, was confusing, in giving the measure of damages applicable t.o abatable nuisances with that applicable .to permanent nuisances in such a way as might cause the jury to believe that they could apply the latter measure of damages to abatable nuisances; and a new trial should have been granted for this reason-
    The other instructions complained of were not subject to the exceptions taken, and the verdict for the plaintiff was not without supporting evidence.
    Decided November 16, 1925.
    Action for damages; from city court of Macon—Judge Jordan. January 9, 1925.
    Charles Roy sued the City of Macon and the Vineville Improvement Company for damages, alleging that they entered into a conspiracy, in the prosecution of which certain streets were laid out, curbs and gutters placed, and a great volume of water accumulated into a sewer opening into Roy street, in front of his lot; thus diverting the natural ñowage of the surface water and causing it to flow in and upon his property, to his injury and damage. A nonsuit was granted as to the Yineville Improvement Company, and a verdict was rendered against the city for $1,000. The city’s motion for new trial was overruled, and the movant excepted.

      Grady Gillon, E. G. Russell, for plaintiff in error.

      E. F. Strohecker, A. W. Graves, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1,2. The first ground of the amendment to the motion for new trial complained that the verdict was without evidence to support it, for the reason that it did not appear that the City of Macon ever in fact constructed the sewer complained of, or ratified its construction. The evidence upon this point is meager, to say the least; but, however that may be, we are of the opinion that it was not necessary for the plaintiff, in an action for damages based upon the alleged maintenance of a continuing nuisance to show that the city actually constructed or ratified the construction of the sewer. The petition showed that the city had maintained the alleged nuisance for about two years, and was continuing to do so, and that it failed to abate the same. The city having sole supervision and control over its streets, and being vested with the sole power and authority to abate such an alleged nuisance, it follows that where such a nuisance in fact exists in a public street, and the city does not abate the same, it will be deemed to be an active tortfeasor. See Holmes v. City of Atlanta, 113 Ga. 961 (39 S. E. 458); Mayor &c. of Waycross v. Houk, 113 Ga. 963 (39 S. E. 577). Accordingly, this ground of the motion for new trial, as well as the exception to the charge set out in the second ground of the amendment to the motion for a new trial, was without merit.

3. The third ground of the amendment to the motion for a new trial complained that the verdict was without evidence to support it, because the evidence of the plaintiff showed that there were a number of causes contributing to the flow of water upon the plaintiff’s property; that there was no evidence by which the jury could apportion the respective portions of water to their several causes, so as to ascertain what quantity was brought down by the sewer. It appeared from the evidence that all of the water about which plaintiff complained, irrespective of how it was collected, was accumulated into the sewer complained of, and delivered by it upon his property. The issues raised by the pleadings and the evidence did not require the jury to ascertain the amounts arising from the different causes; what the plaintiff was complaining of was the fact that the sewer-opening in the street in front of his property was bringing an unnatural, excessive, and damaging volume of water upon his property. The complaint relatéd not to the several sources of the augmented supply, but to its destination. The plaintiff averred that the water, alter being thus diverted and collected by the sewers, ought not to have been delivered on his property to his injury and damage. There was no merit in this ground.

4. Exception is taken to the .following part of the charge of the court: “I charge you, . . that if it has been shown by a preponderance of the evidence that the defendant has, by constructing a sewer, caused water to flow upon the premises of the plaintiff that it did not flow upon prior to the construction of the said sewer; if you believe, by a preponderance of the evidence, that such flowing of water upon said premises has caused damage to the property of the plaintiff, then I charge you that the plaintiff will be entitled to recover.” '

(a) The first attack on this charge is that it fails to state to the jury that a municipal corporation is not liable for damage caused in the construction of a sewer when such corporation, in the construction of such sewer, is exercising a governmental function.; that the charge should have stated that if the same was in the exercise of a governmental function, the city would not be liable therefor. On this ground of attack let it be said that the rule is well established that the maintenance of sanitary-drainage sewers is in the exercise of a governmental function; and if a mere question of the negligent exercise of this function constituted the matter involved, the movant would have been clearly right. See City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S. E. 345). But in the opinion in that case another rule of liability was invoked and applied. The court, quoting from Kea v. Dublin, 145 Ga. 511 (89 S. E. 484), said: "'Although municipal authorities may have plenary power in the matter of collection, removal, and disposition of garbage, yet they can not lawfully create, in connection therewith, a nuisance dangerous to health or life; and where such a nuisance is created and its effect is specially injurious to an individual by reason of its proximity to his home, he has a cause of action for damages.5 55 Numerous other decisions to the same effect are cited. It follows that the authority upon which plaintiff in error plants this attack on the charge of the court does not sustain his contention as applied to the instant case. The rule is that while municipal corporations do have certain sovereign governmental powers which can not be superintended by the courts, yet in the exercise of such powers they have no right to create and maintain a nuisance hurtful to private citizens. An earlier decision than the one in the Cleveland case, supra, recognized this doctrine,—Holmes v. City of Atlanta, supra, in which it was held, that “A general grant of power to grade streets and to establish in connection therewith a system of drainage does not carry with it any right on the part of the municipality to create and maintain a nuisance by causing surface-water polluted by filth and noxious odors to be discharged upon the premises of a private citizen; and he may, when such a thing has been done, maintain against the city an action to recover the damage he has in consequence sustained.” These two separate and distinct principles of law do not conflict, but each operates in its own particular sphere. The court, in the excerpt complained of, was dealing with the latter doctrine. This principle being correctly stated, it might have been confusing to charge the other doctrine in connection therewith, unless very carefully distinguished, since the former doctrine could not constitute a defense in maintaining the alleged nuisance.

(6) Another reason which is assigned why the quoted excerpt from the charge was error is that the judge invaded the province of the jury in calling attention to certain acts and facts as constituting negligence. We fully recognize the rule adverted to, but are of the opinion that' it has no application here. The cause of action was not planted upon the law of negligence. An action for damage from.the maintenance of a nuisance i§ predicated upon an altogether different theory. Negligence is not even a. necessary ingredient of a cause of action growing out of a nuisance. A nuisance may arise through acts and conduct done within the pale of the law and executed with due care; and yet if the result attained injures the property or individual rights of another by causing a nuisance, the maintainer must either abate the nuisance or else respond in damages. Such was the reasoning in the case of Central of Ga. Ry. Co. v. Americas Construction Co., 133 Ga. 392, 398 (65 S. E. 855), where the court held that a nuisance is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it. Immediately following the excerpt complained of and in the same connection the court charged: “If you believe . . that the defendant has caused and continues to cause water to flow upon the property of the plaintiff, -which didn’t flow upon it prior to the construction of the sewer, and if you further believe that the same constitutes a nuisance,, and that such nuisance can be abated, and the defendant fails and refuses to abate the same, then I charge you that the plaintiff will be entitled to recover any and all damages that the evidence shows that he may have sustained, if any.” The excerpt from the charge was not erroneous for the reasons assigned.

(c) It was not erroneous for the reason that it eliminated all the other issues made by plaintiff, and gave plaintiff the right to recover upon the establishment of one isolated and not largely contributing factor. The contentions of the plaintiff were that the defendant had made an absolute invasion upon his property rights, and was maintaining a nuisance which was hurtful to him. This w'as clearly presented by the judge in his general charge to the jury, and they could not have been misled. If the plaintiff’s petition was confusing, it had passed the stage of demurrer; and the judge was required to instruct upon the cause or causes of action set forth.

5. It is alleged that the court erred in charging: “If you believe . . that the defendant has caused and continues to'cause water to flow upon the property of the plaintiff, which didn’t flow upon it prior to the construction of the sewer, and if you further believe that the same constitutes a nuisance, and that such nuisance can be abated, and the defendant fails and refuses to abate the same, then I charge you that the plaintiff will be entitled to recover any and all damages that the evidence shows he may have sustained, if any. If, however, you believe that the same.does not constitute a nuisance, then I charge you that the measure of damages, should you find that he has been damaged, will be the difference in the market value of the property before the construction of the sewer and the consequent flow of water upon plaintiff’s property, and after.” (a) Movant contended that this excerpt was error in that the court did not restrict recovery to within four years before the suit was filed. There was no error in this respect, because the petition and the undisputed evidence showed that the sewer was constructed within less than four years prior to the filing of the suit. (6) There was sufficient evidence in the case upon which the jury could have found that there was in fact an abatable nuisance and that it was harmful; but there was no evidence indicating the existence of an nnabatable or permanent nuisance. The inference in the case of Danielly v. Cheeves, 94 Ga. 263, 269 (21 S. E. 524), is that until it has been definitely established that the nuisance is not temporary and not abatable, it will be assumed that the same will be abated. In the case of a permanent nuisance the measure of damages is the diminution in the market value of the property by reason of the nuisance, while in the case of an abatable nuisance it is the actual damages which may have already accrued within the statute of limitations and up to the filing of his petition. See Langley v. City Council of Augusta, 118 Ga. 590, 591 (9) (45 S. E. 486, 98 Am. St. Rep. 133). While the language of the excerpt, as shown by the record before us, does not so state, it apparently seeks to charge the measure of damages applicable both to abatable and to permanent nuisances. While we do not think the evidence authorized any charge relative to the measure of damages applicable to permanent nuisances, we think the language of the excerpt as contained in the exception and in the charge as disclosed by the record was confusing, in that it might have led the jury to believe that they could award damages represented by the difference between the market value before and after the erection and maintenance of the sewer, even though the conduct of the defendant did not amount to the maintenance of a nuisance at all; and since the distinction between the two sorts of nuisances is not drawn, they might have felt authorized to apply such latter measure of damages to abatable nuisances. For this reason only, the judgment overruling the motion for new trial must be reversed.

Judgment reversed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    16242, 16243.
    SHEHANE v. WIMBISH; and vice versa.

    1. Where two statutes passed at the same session of the General Assembly are approved by the Governor on the same day, but one of them provides that it is not to become effective until the other becomes law, they will be construed together; and the statute controlled by that provision will go into effect immediately upon the happening of the contingency provided for, without reference to the order in which they were approved by the Governor. Thus, where a local bill for the creation of a city court provided that it should not go into effect until another pending bill, providing for the incorporation of the city, should become law, and where Koth bills were approved on the same day, the order of their approval will not be inquired into, and the city court thus created will be deemed a court established in a city. It being otherwise a- constitutional court, the Court of Appeals has jurisdiction of writs of error therefrom.
    2. Where a statute creating a city court ^provided that either party may file at a certain time a written demand for a jury trial, and that in the absence of such demand the court should have jurisdiction to try the cause without the intervention of a jury, the court had jurisdiction to try exceptions of fact to an auditor’s report, without the intervention of a jury, where no such original written demand for jury trial had been filed by either party, and the judge did not abuse his discretion in subsequently refusing to refer the exceptions of fact to a jury.
    3. The court did not err in admitting the documentary evidence described in the third division of the opinion.
    4. The judgment was authorized, though not demanded, by the evidence; and for none of the reasons assigned can it properly be set aside.'
    Decided November 16, 1925.
    Exceptions to auditor’s report; from city court of Lexington— Judge Joel Cloud. August 11, 1924.
    Wimbish brought a suit against Mrs. Shehane, in the city court of Lexington, for a balance alleged to be due him on a contract for the erection of the Palace Theater, in Athens, Georgia. With this claim and in the same count he joined a claim for balance alleged to be due for other work done for the defendant on other contracts, consisting partly of work in remodeling and repairing another building, referred to as the bank building, and consisting partly of work done in making an estimate of the value of other property belonging to defendant. The defendant filed a plea and answer in which she joined issue as to the correctness of certain charges by the plaintiff with reference to the construction of the theater building, contending that it had been agreed between them that the plaintiff should be paid a certain percentage of the total cost of the theater as compensation for his services as contractor; and that she had been deceived by the misrepresentations which the plaintiff made to her as to the prospective cost, as an inducement to the making of this contract. She contended that he made an estimate which was much less than the figure that she was ultimately required to pay; that the plaintiff knew of the falseness of his estimate, and practiced this deceit upon her for the purpose of obtaining the contract, knowing that if he had told her the truth, he would not have obtained the contract. It is disclosed by her plea that the low estimate about which she complains was set forth, as an estimate, in the contract signed by each of them, but she seeks to avoid the effect of her own stipulated estimate by showing that she was deceived by the plaintiff’s false and fraudulent representation with reference to it. The plaintiff demurred to this special plea, on the ground that it was not a good legal defense to his action, and that it was an effort to plead damages arising ex delicto to an action ex contractu in the city court. This demurrer was overruled. In the cross-bill of exceptions this is assigned as error. Demand for a jury trial was not made by either of the parties at the return term, in compliance with the act creating the city court of Lexington.
    The case was referred to an auditor, who heard the case and made a report in which he virtually sustained the claim of fraud and deceit charged by the defendant, and found against the defendant for a comparatively small amount, to wit, $435.76 with interest. Both parties filed exceptions of law and fact to the auditor’s report. The court passed upon the exceptions of law, sustaining some and overruling others. It appears that on the first trial of the exceptions of fact both parties consented that the same might be tried without the intervention of a jury. The finding of the trial judge was in favor of the plaintiff as to practically his whole claim. The defendant sued out certiorari, and the superior court sustained some of his assignments of error and overruled others, and ordered a new trial of the questions of fact. At and before this second trial the plaintiff moved that the case be again tried by the court without a jury. The defendant objected to this, on the ground that her prior consent for the court to try the ease applied only to that particular trial; that the judge was disqualified in the matter; and that in the exercise of a proper discretion he ought not to try the case again. The court sustained the plaintiff’s motion and again tried the case, rendering practically the same judgment rendered on the first trial. During the progress of the case the plaintiff filed exceptions pendente lite to the overruling of his demurrer to the defendant’s plea; and the defendant filed exceptions pendente lite to the ruling as to trial by the court without a jury.

      Hamilton McWhorter, W. W. Armistead, Tutt & Brown, Erwin, Erwin & Nix, for Mrs. Shehane.

      John J. Strickland, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. A motion to dismiss has been made by Wimbish, the defendant in error in the main bill of exceptions, on the ground that this court is without jurisdiction to entertain the same. He contends that Lexington was not a city when the city court of Lexington was created by the General Assembly, and that, therefore, the city court of Lexington is not a constitutional city court, and the writ of error will not lie. The act incorporating the City of Lexington and the act creating the city court of Lexington were approved on the same day. The order in which they were approved is not disclosed by the record. The act creating that court contained the following provision: “Sec. XLYI. Be it enacted . . that this act shall go into effect immediately upon the approval of an act before the present General Assembly to incorporate the City of Lexington, in Oglethorpe county, but this act shall not be effective until the act above mentioned shall become a law.” Ga. L. 1899, p. 406. The act incorporating the City of Lexington appears in Ga. L. 1899, p. 239. Irrespective of any presumption which might exist as to the order of approval, so as to establish the legality of the city court act, it would seem that it really makes no difference in what order the two acts were approved, for the reason that the legislature may enact a law to take effect upon the happening of a future event or contingency; and it makes no difference what the nature of the contingency is, so that it be a moral and legal one, not opposed to sound policy. Floyd County v. Salmon, 151 Ga. 313 (106 S. E. 280); Ross v. Jones, 151 Ga. 425 (1) (107 S. E. 160); Barrett v. Dallmeyer, (Mo.) 245 S. W. 1066; Poindexter v. Pettis County, (Mo.) 246 S. W. 38; Washington Terminal Co. v. District of Columbia, 36 App. (D. C.) 186; Ex parte Ah Pah, 34 Nev. 283 (119 Pac. 770).

2. Defendant in the court below, who is plaintiff in error in the main bill of exceptions, preserved exceptions upon the ground that the judge of the city court of Lexington refused to refer to a jury the exceptions of faGt to the auditor’s report, but tried them himself and rendered final judgment thereupon. In her exceptions pendente lite it appeared that no original written demand for a jury trial was made by either of the parties at the call of the case, as authorized by the act creating the city court of Lexington. There were two trials of the exceptions of fact to the auditor’s report, one before a certiorari was sued out and the other afterwards. At the first trial it appeared that there was an actual agreement in open court, by both litigants, that the judge should try the exceptions of fact without a jury. The judge found for the plaintiff, and the defendant sued out a certiorari. The superior court sustained certain exceptions of law and overruled others, and ordered a new trial. At the second trial the defendant sought a trial by jury of her exceptions of fact. She contends that her previous consent went only to the particular trial, and did not estop her from subsequently exercising her right to have a trial by jury of her exceptions of fact, at the second hearing. The Civil Code (1910), § 5141, provides: “In all cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other cases of fact.” This is a general law, but must be construed with reference to the local statute creating the city court of Lexington, providing how a jury trial in causes pending therein may be dispensed with. This particular provision of the code is no more predominating in its effect as to the right of trial by jury than the constitutional provision as to jury trials of issues of fact generally. It seems, since the local statute provides that a party who do'es not at the time specified file a written demand for a jury trial forfeits his right to present and future trials by jury, notwithstanding the general constitutional provision preserving the right of jury trial, that the statute would apply to trials of exceptions of fact to an auditor’s report. It will be recalled that the statute providing for trial by jury of exceptions of fact to an auditor’s report limits the operation of such procedure “as in other cases of fact.” While the exact point seems never to have been absolutely ruled in our State, there is a dictum of Powell, J., in the case of Forbes v. Davis, 8 Ga. App. 560, 561 (69 S. E. 1132), which throws light on the matter. He there says: “It is true that under the act creating the city court, in which the case was tried, jury trial is waived unless demanded, but this fact does not render the error of the' court’s striking the exceptions harmless. It gave the judge the power of himself examining the exceptions on thei/r merits, or, if he so chose, of referring them to a jury, but not the right of striking them and directing a verdict.” He invoked a comparison with the case of Pelham Manufacturing Co. v. Powell, 8 Ga. App. 38 (68 S. E. 519), where it was held that “When a statute confers upon the judge of a court jurisdiction to try the facts, unless jury trial be demanded at the return term, no subsequent demand for a jury trial can thereafter divest the judge of this jurisdiction, though in the meantime the ease has been tried once and a new trial granted. The statute relates to cases, and not to trials.” This case, in principle, governs the case at bar on this point. We do not put the decision upon the intermediate waiver of trial by jury, which both litigants made in open court. That waiver doubtless was intended to apply only to that particular trial, and possibly would not be comprehensive enough to cover a later trial. We put the decision upon the effect of the local statute quoted above. Of course, when no jury trial has been demanded, and the act is not mandatory for the judge to try the case, the judge has a discretion to refer the issues to a jury, but in the record we find no evidence of an abused discretion on the part of the judge. We can not impute to his honor an improper exercise of this discretion simply because he arrived at the' same conclusion again.

3. Mrs. Shehane assigns error upon the ruling admitting a certain lease contract between herself and Schiller and his associates, in which it was agreed that the latter parties should pay to her a certain percentage of the value of the land plus the cost of the improvements as an annual rental of the theater. This assignment was upon her exceptions pendente lite. It appears that this document was admitted over her objection, in the hearing before the auditor; the auditor, in his ruling, restricting its effect simply to showing the interest of Schiller and his associates in the subject-matter of the litigation. The judge of the city court, upon exception to this ruling of the auditor, held that such evidence was admissible, not only to show the interest of these parties named, but also upon the general question of Mrs. Shehane’s claim for damages. When the judgment of the city court upon the exceptions to the auditor’s réport were passed upon by the superior court, in the certiorari proceedings, the action of the city court judge in approving the admission of this evidence for the general purposes mentioned was affirmed. Whether the judgment of the superior court, not having been excepted to, became the law of the case, so that its correctness can not now be inquired into by this court (see Civil Code (1910), § 5201; Wilensky v. Brady, 121 Ga. 90, 48 S. E. 687; Couch v. White, 18 Ga. App. 198, 89 S. E. 183; West v. Henderson, 22 Ga. App. 701, 97 S. E. 100), counsel for Mrs. Shehane, in their brief, concede that such would be true if the judgment involved “rulings of law,” it being their contention, however, that the superior court, in passing upon this matter, was in reality acting upon an exception of fact, and not of law; and that, therefore, there would be no estoppel by judgment. But we are at a loss to see how an exception to the admission of evidence could ever be properly considered as an exception of fact and not of law; in whatever category it may have been placed by the pleadings. But irrespective of whether the evidence was properly admitted on the last trial under “the law of the case,” and irrespective of the correctness of the contention just mentioned, we think the admission of the evidence complained of was not in fact erroneous, since, while it could not be taken as in any wise conclusive upon the question of damages, yet it was a circumstance throwing light upon this issue, which could be properly considered together with all the other facts and circumstances of the case.

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

Stephens and Bell, JJ., concurring.


text:
    16277.
    KESSLER v. SLAPPEY.
    Consent of the landlord to annulment of the lease could not be implied from mere acceptance of the keys from the vacating tenant.
    Bankruptcy of a lessee does not of itself terminate the relation of landlord and tenant or constitute a breach of contract which will give rise to a claim for damages provable in bankruptcy. Under the agreed statement of facts in this ease the judgment in favor of the plaintiff on the issue made by the counter-affidavit to the distress warrant was proper, and the court did not err in overruling the certiorari.
    Decided November 16, 1925.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. November 22, 1924.
    This case originated in the municipal court of Macon, on a distress warrant for the rent of a storehouse for February, 1925. A counter-affidavit was filed, the case was tried by the -judge on the agreed statement of facts set forth below, and he rendered judgment for the plaintiff. The superior court, on certiorari, sustained the judgment, and the defendant excepted, his contentions as here insisted on being: (1) that the premises had been previously surrendered by the defendant and accepted by the plaintiff; (2) that since the order of the bankruptcy court confirming the defendant’s offer of composition carried with it the same effect as a discharge in bankruptcy, as against the plaintiff having actual knowledge of the hearing of the proceeding, it resulted in dissolving the relation of landlord and tenant, and extinguished all subsequent liability arising by virtue of the contract. The agreed statement of facts under which the case was tried is as follows: “On February 5, 1923, the plaintiff in the case, being the owner of the premises described in the distress warrant, entered into the following contract of rental with Kessler’s Department Store: ‘This agreement, made this Feb. 5, 1923, between Geo. H. Slappey, of Houston county, Georgia, and Kessler’s Department Store, a firm composed of Walter Kessler of Bibb county, Ga., witnesses: that Slappey has rented to said Kessler’s Department Store for the term of two years from April 1, 1923, the store at 117 Main street, Fort Yalley, Ga., being the ground floor of the brick building known as Slappey’s building, at the rental of $150.00 per month, payable in advance on the first day of each month, as per rent notes to that effect this day executed. Slappey is to make no repairs on the store, and is not to be liable for any damage to tenants or to their property. Should fire render the premises untenantable, this tenancy shall thereupon cease, and rent notes covering the period thereafter shall be at once surrendered by Slappey to tenants. As a part of the consideration of this contract, Slappey agrees that tenants may immediately on this day take possession of said store, and retain use and possession thereof without any charge for rent, or any charge of any kind from now to April 1, 1923. The store is rented to be used for conducting therein a general merchandise business. In witness whereof, we have hereto set our hands in duplicate, on this Feb. 5, 1923.
    ‘ G. H. Slappey,
    ‘Kessler’s Department Store, by Walter Kessler.
    ‘Lessor agrees to allow lessee to terminate this contract August 1st, 1924, if given sixty days notice.
    ‘Geo. H. Slappey.’
    “At the time the said contract was executed, plaintiff assumed that Walter Kessler, who signed said contract, was the owner and operator of the business known as Kessler’s Department Store. Plaintiff did not know at that time that Z. Kessler, the defendant herein, was the owner of said business. As a matter of fact, Z. Kessler was the sole owner of the stock of goods and business of Kessler’s Department Store, and Walter Kessler, his son, was in active charge of the business for the said Z. Kessler, at the store in Fort Yalley, Georgia, which was rented to Kessler’s Department Store by the plaintiff. The premises covered by the contract of rental were occupied and used by Kessler’s Department Store from the date of said contract until January 14, 1934, at which time the said Z. Kessler started to moving the stock of goods out of said building. The store has not been occupied since by the said Z. Kessler or by anyone else. Plaintiff has been unable to secure another tenant for said premises since they were vacated on January 14, 1934. Z. Kessler, trading as Kessler’s Department Store, paid the monthly rental of $150.00 for the months of April, 1933, to January, 1934, inclusive, but has paid no rent for the month of February, 1934, which is the month now being sued for. No notice was given by Kessler’s Department Store to the plaintiff prior to the day the premises were vacated, to wit, January 14, 1934, of any intention to vacate the same; nor did plaintiff consent to the termination of any contract which he had for the rental of said premises. A few days after the store was vacated by Mr. Kessler, on January 14, 1934, to wit, about January 35, 1934, he sent one key to the office of Jones, Park & Johnston, where it was left for Mr. M. Souder, who had been representing Mr. Slappey in negotiations with Mr. Kessler. Mr. Spuder sent the key to Mr. Slappey, and on being advised by Mr. Slappey that there were two locks which required two keys before the store could be opened, he called on Mr. Kessler for the other key, and obtained it at Mr. Slappey’s request. On or about the 34th day of November, 1933, certain creditors of Z. Kessler, trading as Kessler’s Department Store, filed in the United States district court at Macon, Georgia, an involuntary petition in bankruptcy against the said Z. Kessler, which petition was stayed on application of the said Z. Kessler, and on which petition there has been no adjudication. Shortly thereafter, on November 34, 1934, the said Z. Kessler filed a voluntary petition in bankruptcy, and contemporaneously therewith an offer of composition, asking that the adjudication in bankruptcy be withheld pending action on said offer.of composition. The said Z. Kessler filed a schedule of his creditors at that time,, without listing the plaintiff herein. Plaintiff actually knew, of the bankruptcy proceedings and of the offer of composition, but did not have any formal notice of any character from the bankruptcy court. On January 9, 1924, prior to which time plaintiff’s build-, ing had been occupied by Kessler’s Department Store, an order was duly passed, confirming the aforementioned offer of composition, which has been accepted by a majority of the scheduled creditors of Z. Kessler. On April 15, 1924, Z. Kessler further amended his bankruptcy schedule by an amendment allowed by his honor J. N. Talley, referee in bankruptcy, in the following language: ‘ Comes now Zundel Kessler and, by leave of the court first had and obtained, amends his schedule in bankruptcy heretofore filed, as follows : Schedule A-3 is amended by adding the name of George H. Slappey, Fort Valley, Georgia, pretended claim for rent, $1,050.00. Wherefore, movant prays that this his amendment be allowed.’ No order was ever taken adjudicating Z. Kessler a bankrupt, nor was any receiver ever appointed for his property, nor has he been discharged in bankruptcy, except in so far as the order confirming his offer of composition operates as a discharge. Fol-r lowing the confirmation of said offer of composition on January 9, 1924, the stock of goods of Z. Kessler continued, in the store at Fort Valley until moved, commencing January 14, 1924.”

      Oliver 0. Hancock, for plaintiff in error.

      Jones, Park & Johnston, contra.
   Jenkins, P. J.

1. The parties to a lease may, by subsequent express agreement, annul the contract, or such intention may be implied by their joint acts and conduct inconsistent with the preexistent relationship. In all cases the true purpose and intent of the parties, as manifested by their words or conduct, viewed in the light of the surrounding facts and circumstances, must govern; but the mere acceptance of the keys by the landlord from a vacating tenant will not itself alone operate to establish as a matter of law an implied surrender and acceptance. Ledsinger v. Burke, 113 Ga. 74, 77 (38 S. E. 313); Schachter v. Tuggle Co., 8 Ga. App. 561 (70 S. E. 93). In the instant ease the agreed statement of facts specifically states that the plaintiff 'did not “consent to the termination of any contract which he then had for the rental of said premises.”

2. In regard to defendant’s other contention, the rule laid down in the cases relied on by him (In re Inman & Co., 171 Fed. 185, followed in Lesser v. Gray, 8 Ga. App. 605, 70 S. E. 104; In re Jefferson, 93 Fed. 948; In re Hayes, Foster & Ward Co., 117 Fed. 879; Bray v. Cobb, 100 Fed. 270) appears to have been in effect abrogated by the ruling of the United States Supreme Court in the later case of Central Trust Co. of Illinois v. Chicago Auditorium Asso., 240 U. S. 581 (36 Sup. Ct. 412, L. R. A. 1917B, 580, 60 L. ed. 811). There it was said that it is the purpose of the bankruptcy act, generally speaking, to permit all creditors to share in the distribution of the assets of a bankrupt, and to leave the honest debtor thereafter free from liability upon previous obligations ; and it was in effect held that the intervention of bankruptcy, whether voluntary or involuntary, does not terminate executory contracts as a class, but may constitute a breach thereof such as to give rise to a claim provable and dischargeable in the bankruptcy proceedings. In this decision the Supreme Court calls attention, however, to the distinction which exists between executory contracts in general and contracts arising out of the relation of landlord and tenant by reason of the “diversity between duties which touch the realty, and the mere personalty,” quoting Coke on Littleton. Accordingly it appears that in cases of executory contracts other than such as arise out of the relationship of landlord and tenant, bankruptcy, while not terminating the obligations per se, does ordinarily amount to a breách; yet in contracts involving this relationship not only is it true that bankruptcy does not terminate the relationship, but it does not constitute a breach such as would permit a claim for damages provable in bankruptcy, and thus prevent the enforcement of the contract itself. In Watson v. Merrill, 136 Fed. 359, decided by the Circuit Court of Appeals, eighth circuit, and cited by the Supreme Court in the case referred to, it was held that “Damages for the breach of a contract of the bankrupt to pay rents at times subsequent to the filing of the petition in bankruptcy do not constitute a provable claim, for the same reason that the claim for rents is not provable. The retaking of the premises by the lessor releases the lessee from payment of all subsequently accruing rents unless the contract expressly provides otherwise. The trustee in bankruptcy has the option to assume or renounce the leases and other executory contracts of the bankrupt, ás he may deem for the best interest of the estate.” In re Roth & Appel, 181 Fed. 667 (C. C. A. 649, 31 L. R. A. (N. S.) 270), decided by the circuit court and cited by the Supreme Court, it was held that “The bankruptcy of a lessee does not sever the relation of landlord and tenant, and the tenant’s obligation to pay rent under his lease is not discharged as to the future, unless the trustee elects to retain the lease as an asset.” The same rule is stated in 7 Corpus Juris, 396 (§ 705) : “A tenant’s discharge in bankruptcy does not terminate the lease nor change the legal relation of landlord and tenant unless the landlord re-enters, or the trustee assumes the lease.” In Rosenblum v. Uber, 3 Circuit Court of Appeals (256 F. 584, 167 C. C. A. 614, 43 Am. B. R. 480), it was said: “A trustee may, with the consent of the landlord, surrender a lease; whereupon the landlord regains possession of the premises, and all unmatured obligations between the parties depending upon the continuance of the leasehold estate are terminated. But a valid- surrender consists not only in an offer by the lessee to surrender but an acceptance of that offer by the landlord” In the same case it was said: “A trustee may, at his option, assume a lease of the bankrupt or decline to assume it as an asset of the estate; and he has a reasonable time within which to exercise his option. If he assumes it-the bankrupt is released, if he does not the lease is in force.” In English v. Richardson, 80 N. H. 364 (22 A. L. R. 1302, 48 Am. B. R. 582), it was said: “In the absence of a provision in a lease to the contrary, a trustee in bankruptcy may, at his option, assume the lease of a bankrupt tenant, but in that ease he takes the leasehold in the same plight as the debtor held it, subject not only to the burdens which rested upon the debtor, but also to all valid claims, liens, and equities in favor of third parties, and in such event, the debtor is relieved from liability for future rent. If, on the other handj the trustee renounces the lease, the relations of the landlord and tenant subsist, and the latter’s discharge in bankruptcy does not release him from his obligation to pay rent.” Thus, these cases and others seem to formulate the rule in executory contracts pertaining to lease of realty, that not only is the contract not terminated by bankruptcy, but that a breach is not occasioned thereby so as to give rise to a claim provable in the bankruptcy court, but that upon the adjudication in bankruptcy of a tenant he may, with the consent of the landlord, and only with the consent of the landlord, surrender the rented premises and terminate the lease. Or if the lease has a value the trustee may elect to assume it as part of the assets of the bankrupt estate. If he does so he assumes all the burdens of the lease, including the obligation to pay rent, and in that event the bankrupt is released, the trustee being substituted in his place. On the other hand, if there be no trustee, or if he renounces the lease or elects not to assume it, the relations between landlord and tenant are not affected by bankruptcy, and the obligation on the part of the tenant to pay future rent exists and can only be terminated with the consent of the landlord. Especially would the ruling of the court below seem to be correct under the facts of the instant case, where it appears that the contract was neither terminated nor breached upon the institution of the bankruptcy proceedings, because of the continued occupancy and possession of the store by the tenant, Kessler, and his continued payment of rent under the terms of the lease for two months after bankruptcy. Independently of the general rule these facts would constitute an implied election on his part, with the consent and acquiescence of the landlord, to continue the contract in force.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16320.
    SPELLS v. SWIFT & COMPANY.
    Where a promissory note recited that its consideration was twenty sacks ■ of fertilizer sold by the payee to the maker of the note and accepted and received with the understanding that there was no warranty, and an action thereon was brought by the payee against the maker, a substantial defense was -set out by a plea which admitted a prima facie case but denied indebtedness in the sum alleged, for the reason that the defendant did not get ten of the sacks of fertilizer, of a stated value, and which alleged that she did not know but that her husband had gotten them, that she did not know what he had gotten from the plaintiff, that he was absent when the note was signed and she did not know the truth of the transaction until he returned, that had she known it she would not have signed the note, that she relied upon the statements of the plaintiff’s agent, and that after learning of the mistake she did what she could to have the error corrected. Particulars in which the plea may have been lacking were matter for special demurrer, and the court erred in striking it on oral motion made at the trial term.
    Decided November 16, 1925.

      Complaint; from city court of Nashville—Judge W. R. Smith. February 19, 1925.

      William Story, for plaintiff in error.

      R. A. HendHclcs, contra.
   Jenkins, P. J.

Defendant in error filed suit against the plaintiff in error on a promissory note for $171.45 principal, the purchase-price of ten sacks of 9-2-2 and ten sacks of 8-2-2 guano, in ■which note it is recited that “The consideration of this note is the above mentioned commercial fertilizer sold to me by Swift & Company, which I hereby acknowledge have been accepted and received with the express understanding that there is no warranty whatsoever.” At the appearance term of the suit the defendant appeared and by her plea admitted a prima facie case, but denied that she was indebted to the plaintiff in the sum alleged, for the reason that she did not get ten sacks of the guano, of the value of $33.75. She further alleged that the reason she signed the note, “which contained one ton too much,” was that she did not know but that her husband had gotten the said ton, that she did not know how much fertilizer he had gotten from the plaintiff, that he was absent when the note was signed and she did not know the truth of the transaction until he returned, and had she known it, she would not have signed the note; that she relied upon the statements of the agent of the plaintiff, and that after learning of the mistake she did what she could to get the error corrected. No demurrer to the plea was filed, but upon the trial of the case the plaintiff made an oral motion to strike the defense, for the reason that it set forth no ground of defense. The court struck the defense and allowed the plaintiff to submit to the jury the note sued upon, and proof of the giving of notice as to attorney’s fees, whereupon the court directed a verdict for the plaintiff in the amount sued for. The defendant sued out a direct bill of exceptions complaining of the action of the court in striking her plea and directing a verdict against her.

1. “While a plea or answer which sets up no legal or equitable defense, being bad in substance, may be stricken on motion at the trial term, yet such a motion is not available where the plea states a substantial defense, but is merely deficient in certainty or particularity.” Bailey & Carney Buggy Co. v. Guthrie, 1 Ga. App. 350 (3) (58 S. E. 103). Accordingly, the contentions of defendant in error that the plea was properly dismissed because it failed to state the officer or agent of the plaintiff corporation who made the statements upon which defendant relied at the time she signed the note sued on, and because it failed to set forth specifically what she had done to have the error corrected after its ascertainment, were without merit. If the plea set forth a valid defense, these omissions were matters for special demurrer.

2. It is a well-settled rule that “It is no defense to an action on a promissory note, that the maker relied on certain representations made by an agent of the payee at the time of its execution, and that it did not contain the contract as actually made; the note not having been signed under any emergency, and there being nothing to prevent the maker from reading it, and it not being-shown that the failure to read it was brought about by an actual fraud perpetrated by the agent of the payee at the time of its execution.” Walton Guano Co. v. Copelan, 112 Ga. 319 (1) (37 S. E. 411, 52 L. R. A. 268). See Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892); Twyman v. Avera Loan &c. Co., 23 Ga. App. 136 (98 S. E. 239). Accordingly, the defendant would not be permitted to dispute or deny that she had knowingly signed the note, promising to pay the amount specified, representing the purchase-price of twenty sacks of fertilizer, and acknowledging the delivery and acceptance of the goods. See Stewart v. Hardin, 24 Ga. App. 611 (1) (96 S. E. 217). This, however, she does not undertake to do. She does not attack the expressed terms or contents of the instrument at all; nor does she contend that any term of. the intended agreement was omitted. What she in fact pleads isj that, while she admits the written promise to pay embodying a receipt for the goods constituting the consideration of the admitted promise, the consideration of her agreement has partially failed, for the reason that the receipt does not speak the truth, and that such mistaken admission on her part should not bind her, for the reason that she made such admission and promise upon the faith of the representation of the defendant that the amount of fertilizer receipted for had been actually delivered to her then-absent agent, and that upon discovery of the facts she repudiated the admission set forth by the written receipt. She is not seeking to set up a different consideration from' that which is expressed in the instrument. This she could not do, since the consideration is set forth as constituting a part of the agreement itself. Rheney v. Anderson, 22 Ga. App. 417, 418, 419 (96 S. E. 217). The question is not whether she can change the terms of the obligation signed, but whether, under the pleaded facts; the admission and promise must be held to conclusively bind her. The consideration of a note can always be inquired into. Civil Code (1910), § 4250. But if the consideration be embraced in the terms of the notes so as to constitute a part of the agreement, knowingly entered upon, it can not be disputed or denied that the promise made was based upon the consideration thus expressed. If at the time she signed the instrument she had known, or if under the pleaded facts and circumstances, by the exercise of ordinary care she ought to have known, that the admission as to delivery did not state the true facts, she would be bound by her acknowledgment and promise based thereon. Bonds v. Bonds, 102 Ga. 163 (29 S. E. 218). But if the admission and promise resulted from the mutual mistake of the contracting parties, or if it was brought about by the mistake of one party induced or knowingly taken advantage of by the fraud of the other party, then and in either of such events the presumption in favor of the liability imposed by the contract can be rebutted. Shelton v. Ellis, 70 Ga. 297, 301. In the instant case, the plea not having been specially demurred to, the court erred in striking it on motion, it being for the jury to say, under the evidence submitted, whether the facts set forth by the plea were true, and if so, whether, under the proof submitted, the defendant was, as she claimed to be, free from such negligence as would estop her from obtaining the relief sought.

Judgment reversed.

Steph'ens and Bell, JJ., concur.


text:
    16399.
    TROUP et al. v. TOMBERLIN.
    New and distinct parties can not properly be added by amendment in a proceeding to remove obstructions from a private way; and in tlxis case the allowance of the plaintiff’s amendment adding new parties defendant is ground for reversal, although the ordinary, in his. final judgment, found in favor of and discharged the new parties.
    Decided November 16, 1925.
    Certiorari; from Irwin superior court—Judge Eve. March 5, 1925.

      J. 0. Tomberlin filed with the ordinary of Irwin county a petition against Mrs. Mary Troup for the removal of certain obstructions in an alleged private way. Mrs. Troup filed her response and demurred to the petition on the ground that since the petition charged that the defendant, by her agents and servants, had obstructed the said road, it should have stated but failed to state who these agents and servants were. The demurrer was overruled, and on certiorari the superior court remanded the case with instructions that the ordinary sustain the demurrer of Mrs. Troup, unless such amendment were made. When the ease went back to the ordinary, the plaintiff filed an amendment in which he struck the allegations of agency and alleged that the obstruction was the act of Mrs. Troup and Leon and Jake Troup, and prayed that Leon and Jake Troup be made parties defendant. The ordinary passed an order making the two last-named persons additional parties defendant, subject to demurrer, and providing for service of the order on all three of the parties. The two newly added defendants and Mrs. Troup demurred to the petition as amended, and filed a motion to vacate the order of the ordinary making them parties defendant, alleging that such procedure was unauthorized, as joining new and different parties without cause or reason for such action being shown, and that the order was ex parte and passed without first giving these defendants a right to be heard. Both the motion and the demurrers were overruled. The trial resulted in a judgment finding that these two newly made defendants be dismissed from the case, with judgment against the plaintiff for their costs, and a judgment against Mrs. Troup requiring her to remove the obstructions; and a judgment against her for costs. Whereupon all three defendants sued out certiorari. The certiorari was overruled, and all three defendants joined in the present bill of exceptions, assigning error upon the judgment overruling the certiorari. They contended that the ordinary erred in permitting the plaintiff to add new parties defendant, and that he erred in permitting statements which had been made by one of these new parties, in his testimony given as a witness at the previous trial and before he became a party, to be proved as admissions on the second trial. On the other hand, it was contended that inasmuch as these two new defendants were ultimately dismissed from the case, the question of their being added as parties had become a-moot question.

      A. J. & J. C. McDonald, for plaintiffs in error.

      Philip Newbern, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. “No amendment adding a new and distinct cause of action, or new and distinct parties, shall be allowed unless expressly provided by law.” Civil Code (1910), § 5683. So far as we know, there is no express statute permitting new and distinct parties to be added in cases of the removal of obstructions from private ways; and counsel have not brought to our attention such a statute. Accordingly, under the foregoing section of the code, it was error for the ordinary, in the progress of a proceeding to remove obstructions from a private way, to permit the plaintiff to add new parties defendant to the action; 'and the fact that the ordinary, in his final judgment, may have found in favor of and discharged such new and additional parties under the evidence submitted, does not prevent the original defendant from standing upon her rights, under the statute, to have her defenses tried independently of and unaffected by the rights and conduct of persons illegally made codefendants in the litigation. Especially would the soundness of such a rule appear manifest when upon the trial previous, statements of one of such new defendants are admitted in evidence as admissions.

2. Such new and additional parties defendant having been illegally made, over their own and the original party’s objections, all ' subsequent proceédings in the case became nugatory; and the superior court, on certiorari, should have remanded it to the ordinary for a new trial, to be had in accordance with his previous order unexcepted to.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    16582.
    SOUTHERN TRADING CORPORATION v. BENCHLEY BROTHERS INCORPORATED.
    1. “In the absence of a written request, it is not reversible error for the court to omit to instruct the jury as to the burden of proof in a civil case.”
    2. Where an agency is coupled with an interest, and the principal gives to the agent unreasonable instructions detrimental to the agent’s interest, the agent may disregard the instructions and act for himself, provided he acts in good faith; and the principal would be bound thereby.
    3. There being ample evidence to authorize the verdict and there being no error, the court did not err in refusing to grant a new trial.
    Decided November 17, 1925.
    Action for breach of contract; from Barrow superior court-judge Stark. April 10, 1925.
    This is an action for damages by Benchley Brothers Incorporated, of Boston, Massachusetts, against Southern Trading Corporation, of Winder, Georgia. The petition alleged substantially the following: During the year 1920 petitioner, as the agent of the defendant, under and by virtue of previous arrangements with the defendant, sold to Suffolk Overall Company, of Boston, Massachusetts, for the account of the defendant, eight bales of aniline denim cloth at an agreed price, the payment of which petitioner guaranteed. In accordance with the agreement between the parties, the defendant, as soon as the goods were shipped, drew a draft upon petitioner for the purchase price, which draft was paid by petitioner before the arrival of the goods. The sale of the cloth was made by samples furnished by defendant, and defendant contracted with petitioner to furnish goods of “quality like samples.” When the goods were received by Suffolk Overall Company they were inspected and found to be inferior in quality to the samples, and Suffolk Overall Company refused to accept them, and they remained in the hands of petitioner. As soon as petitioner ascertained that the goods contained in the shipment were not in accordance with the sale contract, it notified defendant of that fact and also of the fact that the goods had been refused by the purchaser, and tendered all the goods back to the defendant; the tender was refused by the defendant, and it refused to allow any settlement or adjustment, or to do anything for the relief of petitioner, although petitioner had in good faith already paid the drafts drawn upon it by the defendant, believing that the defendant had shipped goods of the quality contemplated by the terms of the contract. Petitioner subsequently disposed of the goods, but for less than the amount which it had advanced on them, and incurred certain necessary expenses. The suit was to recover as damages the amount of the advances plus the expenses, less the proceeds of the sale, and interest.
    The defendant interposed general and special demurrers, which the court overruled, aud the defendant filed exceptions pendente lite. On the trial the jury returned a verdict for the plaintiff. The defendant’s motion for a new trial was overruled, and it excepted.

      G. A. Johns, for plaintiff in error.

      Rollin H. Kimball, contra.
   Bell, J.

(After stating the foregoing facts.) The petition set forth a cause of action and was therefore good as against the general demurrer. The meritorious'grounds of the special demurrer having been met by amendment, the court did not err in overruling all grounds thereof.

Besides insisting upon the usual general grounds of the motion for a new trial, the defendant assigns as error that the charge of the court, in dealing, with the contentions of the respective parties, overemphasized the contentions of the plaintiff and stated them more strongly than those of the defendant. Upon examination of the entire charge we are unable to find that any undue prominence was given to the contentions of the plaintiff, or that the charge could have prejudiced the jury in favor of either party’s contentions.

The second ground of the motion for a new trial is that the court erred in failing to instruct the jury with- reference to the burden of proof. “In the absence of a written request, it is not reversible error for the court to omit to instruct the jury as to the burden of proof in a civil case.” Wade v. Eason, 31 Ga. App. 256 (2) (120 S. E. 440).

The defendant further assigns as error the following portion of the court’s charge: “Where goods of certain quality are ordered on contract for future delivery and goods of an inferior quality are delivered the measure of damage is the difference between the market value of the goods delivered at the time and place of delivery and the value of goods of the character ordered at the same time and place. If you find that the relation of principal and agent existed, then you are instructed that if upon being notified by the agent that the goods were refused, that the goods were not up to the standard of the sample and the principal refused to instruct the agent as to what to do with the goods, and the agent had paid out its money for the goods and was unable to deliver the goods on account of the goods not being up to the contract, then the agent, in order to protect himself, would be authorized to sell the goods at the best price obtainable and make snch settlement and adjustment of the matter as they might be able to make, using good faith in protecting the rights of their principal, and the agent would be entitled to recover from the principal a sufficient amount to reimburse it for the expenditure made by it in adjusting the matter of its principal after the principal had declined to further participate in the matter and instruct the agent what to do in the premises.”

This extract from the charge is excepted to because the first sentence thereof, which, it is claimed, states the correct measure of damage, was nullified by the instructions that immediately followed, as to the damage which might be recovered if there existed between the parties the relation of principal and agent. It is alleged, in effect, that the latter instructions were unsound in law and unwarranted by the facts. If the transaction between the parties was one of purchase and sale, or if. the plaintiff was the defendant’s agent, without an interest, the attack upon the above-quoted charge would have been well founded. The case as laid by the plaintiff’s petition, however, was predicated upon the theory that the plaintiff’s relation to the defendant was one of agency coupled with an interest, and there was ample evidence to authorize the jury to sustain this theory. The first sentence in the above-quoted charge gave the jury the rule which would have been applicable as to the measure of damage, if they had found, in accordance with the defendant’s contention, that the plaintiff was a purchaser. The remainder was applicable to the plaintiff’s contention as expressed in'the petition and as supported by some of the evidence.

“Where a consignment of property is made to a factor for sale, and he makes advances thereon with the consent of or by the direction of his principal, an agency coupled with an interest arises.” “ Ordinarily an agent must be guided wholly by the wishes or directions expressed by his principal, but in cases of an agency coupled with an interest, unreasonable instructions, detrimental to the agent’s interests, may be disregarded.” Gordon v. Cobb, 4 Ga. App. 49 (1, 2) (60 S. E. 821).

If the plaintiff was an agent rather than a purchaser, it became an agent with an interest when it advanced the amount of the purchase-price of the goods sold and, under the principle enundated in tbe ease just dted (see also Civil Code (1910), § 3575; John Flannery Co. v. James, 13 Ga. App. 425 (3) (79 S. E. 912); McMekin v. Planters Warehouse Go., 32 Ga. App. 752), was authorized, where the defendant refused to give instructions as to their disposition, to sell the goods, in the exercise of a sound discretion, at such time and in such manner as the usage of trade and its general duty required, and in such ease the measure of damage to be recovered was the amount of the advances and necessary expenses, less the amount received from the sale, with interest.

The evidence having authorized the verdict found in the plaintiff’s favor, and no error of law having been committed during the trial, the court did not. err in denying defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    16620.
    Fite v. Hooks.
    Decided November 17, 1925.
    Action for trespass; from city court of Americus—Judge Harper. May 19, 1925.
   Bell, J.

1. When a defendant in a civil case introduces no evidence he is entitled not merely to the conclusion of the argument, but to the opening and conclusion. Moore v. Carey, 116 Ga. 28 (5) (42 S. E. 258). Even “the right to open is important. It enables the party to give direction to the ease, very often to choose the ground on which the battle shall be fought,” and may possibly afford other advantages. Buchanan v. McDonald, 40 Ga. 287.

2. In the trial before a jury of an action for damages for the wilful cutting of timber, in which the defendant introduced no evidence, he was entitled to the opening and conclusion of the argument; and, the defendant having requested the same before the argument began, the court erred in denying the request. The error was not cured by the fact that both of the attorneys for the “plaintiff, during the final argument on the plaintiff’s side, stated in open court that they were willing for the defendant’s attorney to conclude the argument after the attorney for the plaintiff, who was then addressing the jury, had finished, in which statement the court acquiesced; the defendant’s attorney declining the offer.

3. Since the evidence did not demand the verdict for the amount found in the plaintiff’s favor, the error referred to requires a new trial. Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559 (5) (89 S. E. 486). No other error appears.

Judgment reversed.

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

B. L. Maynard, for plaintiff in error.

W. T. Lane & Son, contra.


text:
    16626.
    Harrison v. Carswell, Moxley & Son.
    Decided November 17, 1925.
    Complaint; from city court of Louisville—Judge Barwick. May 2, 1925.

      W. T. Bevell, for plaintiff.
   Bell, J.

1. Where one of the parties to a litigation tenders in evidence the record of a former suit between the same parties, including a judgment establishing in his favor certain issues involved in the case on trial, its erroneous rejection may ordinarily be cured by its subsequent admission before the introduction of evidence has closed. There appears no reason why this rule should not be applicable in the present case.

2. The plaintiff showed that certain issues in the ease on trial, as to which he would otherwise have had the onus, had been established in his favor by an adjudication in a former suit between the same parties. Assuming that under these circumstances the court should not have instructed the jury that the burden, of proof was upon the plaintiff as to such issues, such a charge was not cause for a new trial where the court thereafter informed the jury of the effect of the former adjudication and eliminated from their consideration all issues that had been concluded thereby, and instructed them to consider only a certain other issue, which was not determined in the former litigation and which the court distinctly stated and specified as the sole issue for their determination. See Payne v. Allen, 28 Ga. App. 8 (5 a) (110 S. E. 345).

3. Counsel for the plaintiff in error having submitted the ease only by brief, and having made no reference therein to the general grounds or to the first special ground of the motion for a new trial, the overruling of which is complained of, these grounds will be treated as abandoned. Under the rulings made above, no reversible error was shown by any of the special grounds insisted upon.

Judgment affirmed.

Jenlcvns, P. J., and Stephens, J., concur.


text:
    16629.
    Morgan v. Colt Company.
   Bell, J.

1. “When a contract fixes no time for performance, it is to be construed as allowing a reasonable time for that purpose; and what is a reasonable time is a matter of fact to be determined by a jury under all the circumstances of the ease.” Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (3) (58 S. E. 200). See also Chatham Ice Cream Co. v. Sakakeeny, 29 Ga. App. 768 (116 S. E. 558), and cases cited.

2. Where an instrument was signed by one party as the purchaser on June 3, 1920, and was to become effective as a contract of purchase and sale when accepted and signed by the other party as the seller, who accepted and signed the same on June 7, 1920, and the subject-matter of the contract was a lighting plant for the home of the purchaser, which, under the terms of the contract, was to be delivered within a reasonable time, it can not be said, as a matter of law, that the delivery on August 27, 1920, was not delivery within a reasonable time.

3. Assuming that a contract for the purchase and sale of such lighting plant, composed of a number of specified parts, the price of which was stated in the aggregate, was entire in the sense that it included as a part of the property sold an item specified therein as “one iron, free gratis,” a substantial compliance with the terms of the agreement was all that was required of either of the parties. Civil Code (1910), § 4318; Henderson Warehouse Co. v. Brand, 105 Ga. 217 (2), 222 (31 S. E. 551); Bandy v. Frierson’s Sons, 138 Ga. 515 (6) (75 S. E. 626). Where the entire plant, with the exception of a certain valve appurtenant to the “one iron, free gratis,” was delivered within the time allowed under the contract and the seller notified the purchaser that such valve was not then in stock but would be subsequently forwarded, and “it was shipped later by express,” the jury were authorized to find that the seller had substantially complied with his obligation to'deliver the entire plant within a reasonable time; and this is true notwithstanding the purchaser testified that the plant would have been worthless to 'him without such valve, the circumstances authorizing a different conclusion by the jury.

4. “In the absence of an agreement to the contrary, delivery of freight to a common carrier is regarded as delivery to the consignee. Munn v. Glauber, 96 Ga. 795 (22 S. E. 405) ; McCullough v. Armstrong, 118 Ga. 424 (45 S. E. 379).” McCook v. Halliburton-Myers Co., 14 Ga. App. 381 (80 S. E. 863). And where goods are- sold under a written contract fixing the purchase price “f. o. b.” the “factory or warehouse” of the seller, without any right being reserved by the buyer to designate the particular common carrier to which delivery shall be made, a delivery of the goods by the seller, at the seller’s warehouse, to a common carrier for shipment to the purchaser, is delivery to the purchaser under the contract. Farmers Cotton Oil Co. v. Brooke, 14 Ga. App. 778 (82 S. E. 372).

5. When a contract of sale recited that the goods should be delivered f. o. b. the seller’s factory or warehouse, and where the seller fulfilled his part of the contract by delivering the goods to a common carrier accordingly, this would be delivery to the purchaser, and was all that the seller was required to do; and if the purchaser refused to accept the goods from the common carrier, the seller is entitled to recover the contract price of the goods. In such case the seller may, if he choose, abandon the goods, and leave them in the hands of the carrier, and the rights of the vendor are not affected by the fact that the carrier subsequently sells the goods for freight and storage. This the carrier had a right to do, and the purchaser should expect it, if he abandoned the property in the carrier’s hands. Castlen v. Marshburn, 8 Ga. App. 400 (3), 404 (69 S. E. 317). The averment in the petition that the property had been sold by the carrier for freight being surplusage and unnecessary, it is immaterial that it was’ not proved.

Decided November 17, 1925.

Action for breach of contract; from city court of Metter^-Judge Lanier. June 9, 1925.

Kirkland & Kirkland, for plaintiff in error.

Charles Emory Smith, contra.

6. A stipulation in a contract for the sale of goods, to be delivered within a reasonable time in the future and to be paid for on delivery, to the effect that the obligation of the purchaser was to bear no interest, did not mean that the purchaser would not be required to pay interest in case of and after his default, but was merely a provision against the payment of interest prior to the maturity of the purchase-money; and where the purchaser breached the contract by a failure to pay the purchase-money on the delivery of the goods, the seller was entitled to recover the agreed purchase-price as liquidated damages, with interest thereon from the time the purchaser was liable and bound to pay. Civil Code (1910), §§ 3431, 3434; McCarthy v. Nixon Grocery Co., 126 Ga. 762 (4, 5) (56 S. E. 72); Howard Supply Co. v. Bunn, 127 Ga. 663 (4) (56 S. E. 567); Rice-Stix Dry Goods Co. v. Friedlander, 30 Ga. App. 312 (3) (117 S. E. 762).

7. The date of delivery being shown in the defendant’s answer, and the jury having found that the delivery was made within a reasonable time, the verdict should have been for the amount of the purchase-money, with interest from that date in a sum separately stated, whereas the amount of the verdict was a lump sum including both principal and interest, and in this respect was erroneous and illegal; but since the error appears upon the face of the record, it may be corrected by amendment. Civil Code (1910), §§ 5694, 5695; Corbett v. Gilbert, 24 Ga. 454 (1); Hardin v. Johnston, 58 Ga. 522 (1); Mitchell v. Henry Vogt Machine Co., 3 Ga. App. 542 (2) (60 S. E. 295).

8. There being ample evidence to support the verdict, and there being no error except as to the form of the verdict, the judgment overruling the defendant’s motion for a new trial will be affirmed, with direction that the verdict and judgment be amended by separating the principal and interest.

Judgment affirmed, with direction.

Jenlmns, P. J., and Stephens, J., concur.


text:
    16429.
    McNAIR et al. v. MANGET et al.

    1. Where parties entered into a writing purporting on its face to be a complete and presently operative contract, by which one of the parties agreed to sell and the other agreed to buy certain cotton on terms specified, a provision therein that the seller was to be furnished also with a “mill contract” necessarily implied that such collateral contract was to be furnished by the purchaser. Assuming that a prior writing in the form of a letter written by the purchaser to the seller and received by him before the execution of the ultimate agreement might be considered in the construction of the provision referred to above, such prior writing in the instant case did not show that the purchaser was not responsible for the furnishing of such mill contract, even though it was actually to be supplied by a third person. The furnishing of the same was not a condition precedent to the completeness of the contract as entered into, nor to the purchaser’s obligation to accept and pay for the cotton. Nor could it have been shown to be such by the prior parol negotiations between the parties, the writings appearing to integrate all the terms of the agreement.
    2. In the present action by the seller against the purchaser, to recover damages for his failure to accept and pay for the cotton, the court did not err in striking from the purchaser’s answer the part which seeks to show by the prior writing and by prior parol negotiations that the furnishing of such “mill contract” was a condition precedent to the effectiveness of the contract, and that, because it had never been furnished, the purchaser was not liable.
    Decided November 18, 1925.
    Action for breach of contract; from city court of Macon—Judge Jordan. March 23, 1925.
    Application for certiorari was denied by the Supreme Court.
    Manget Brothers Company, a partnership, sued McNair Brothers for damages on account of the alleged breach by them of a written contract for the purchase of certain cotton. The contract as set forth in the petition was as follows!
    “Confirmation Number 939 Duplicate
    “Manget Brothers Company, Cotton.
    “Macon, Ga., Jan. 7th, 1922.
    “McNair Bros., Macon, Ga.
    “Dear Sir: We confirm sale to you of 400 bales of cotton as follows:
    “No. bales .... Four hundred (400).
    “ Grade.....i Middling ’ inch staple.
    “Price.....Nineteen cents (19)
    “Landed.....Bladenboro, N. C., Group A.
    “Shipment .... 200 bales March and 200 bales April.

      “Terms.....Sight draft, bill lading attached.
    “Remarks .... Mill contract to be furnished
    Manget Bros. & Co., Newnan.
    “Please sign and return the duplicate enclosed herewith.
    “Very truly yours,
    “Manget Brothers Company, per W. C. Flewellen.” “Accepted: McNair Brothers, per I. L. McNair.”
    The defendants filed an answer, setting up, among other things, the following:
    “9. Further answering, these defendants say that they are not indebted to plaintiff in any form whatever; and that they never made any completed contract' with the plaintiff.
    “It was well known to Manget Brothers, arid to their Macon representative, Mr. W. C. Flewellen, that defendants were not attempting to buy this cotton for their own use, but for another party. Manget Brothers declined to sell the cotton to defendants, and declined to sell to any one, except on a mill order dr mill-order contract. This requirement that Manget Brothers was to have a mill contract for this cotton was insisted upon by them and was distinctly made a condition precedent to the sale. January 7th, the date of this confirmation as shown by the copy attached to plaintiffs’ declaration, was on Saturday; and it was distinctly understood this mill contract, which was to be furnished, not by McNair Brothers, but by other parties, should be in the hands of Manget Brothers by the following Monday.
    “Neither the mill contract, nor what was agreed should be its • temporary substitute, a bank guaranty, was sent to Manget Brothers on the Monday referred to, nor was it thereafter furnished, and it thus became [known ?] to Manget Brothers that the condition precedent would not be complied with. Without it, the contract so called was not complete and binding on Manget Brothers, -and therefore not binding on McNair Brothers. Both parties to this suit realized that there would be no obligation resting on any one unless and until the mill contract was furnished, and furnished by parties at whose instance McNair Brothers were conducting the negotiations with Manget Brothers, and it was this verbal agreement that the “confirmation” shown in the exhibit to plaintiffs’ petition refers to. On the same date, McNair Brothers wrote a confirmation to Manget Brothers, which on the day following was received by Manget Brothers, as follows: f¥e are pleased to confirm exchange telephone conversation with you to-day, resulting in purchase from you of 200 bales of middling cotton, inch staple, March shipment to Group A, Carolina Mills, and 200 bales April shipment, at 19c landed. This cotton was sold by a Carolina broker to the Bladenboro Cotton Mills, Bladenboro, N. C., and he is to give you a bank guarantee, or mill confirmation, by Monday morning. We have requested that this be wired to your head office at Newnan, so as to save time. We thank you for this business and trust that it means the beginning of a large business between us in 1922.’
    “This confirmation or letter was written and signed by McNair Brothers and mailed by 1J. S. mail to Manget Brothers, Macon, Ga., before they (McNair Brothers) signed the instrument attached to the petition as Exhibit A.
    “These two ‘confirmations’ are to be construed together, and they together with the prior conversation referred to therein constitute the actual agreement, and show that until Manget Brothers received a mill order from Bladenboro Cotton Mills, the sale was not to be considered as made.”
    The court, on motion of the plaintiffs’ counsel, struck this portion of the answer and rejected evidence in support thereof, and, on the evidence introduced by the plaintiffs, directed the jury to return a verdict in favor of the plaintiffs for the amount sued for. To these rulings the defendants excepted:

      Hall, Grice & Bloch, for plaintiffs in error.

      Miller & Garrett, contra. •
   Bell, J.

(After stating the foregoing facts.) The defendants contend that it was agreed between the parties that the plaintiffs were to be furnished with a mill contract for the cotton before the contract which the plaintiffs relied on should be effective, and that, since this was never furnished, the contract never became operative. There is nothing either in the instrument upon which the plaintiffs predicate the action or in the letter set forth in the defendants’ answer, or in both together, to support such contention; and to establish it, a resort to parol evidence would be necessary. The language of each and both of the instruments clearly implied an obligation by the defendants to purchase, effectual from the delivery of the confirmation and acceptance sued on, and, therefore, oral testimony of a different intention would have varied the terms of the agreement and violated the parol-evidence rule. The defendants did not plead a parol condition with respect to which the writings were silent. Heitmann v. Commercial Bank of Savannah, 6 Ga. App. 584 (65 S. E. 590); Arnold v. Malsby, 120 Ga. 586 (48 S. E. 132); Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Bond v. Perrin, 145 Ga. 200 (88 S. E. 954). The agreement as finally made provided for a “mill contract to be furnished Manget Bros. & Co., Newnan.” Speaking only as to this instrument, there was no ambiguity as to who should furnish the mill contract; for presumably the parties contemplated acts to be done only by themselves, and undoubtedly this provision imposed a duty only upon the defendants. Assuming, however, that the writing declared on by the plaintiffs should be construed in the light of the “confirmation” pleaded by the defendants, it still does not appear that the mill contract was to be furnished by a third person for whose act or omission in regard thereto the defendants should not be responsible. In other words, even if both writings are considered together, it still appears that the defendants were obligated to see that such collateral contract was furnished, although it was actually to be furnished by another. The furnishing of the same might have been a condition to the right of the defendants to hold the plaintiffs bound, unless the plaintiffs saw fit to waive the failure to furnish it (Equitable Mfg. Co. v. Davis, 130 Ga. 67 (2), 60 S. E. 262), but such failure on their part, or on the part of another for whose performance they were responsible, afforded no ground for defeating their liability to the plaintiffs, since the condition was one which the plaintiffs could waive or not, at their election, and since it appears that they elected to waive it. The defendants could not take advantage of their own failure to perform a collateral obligation, and thus relieve themselves of their principal liability under the contract. In this view, it is unnecessary to determine whether, if the “confirmation” pleaded by the defendants had been such as to materially vary or contradict the instrument sued on, it should yet, under legal principles, have been considered in construing the latter instrument. See Civil Code (1910), § 5789; Cable Co. v. McFeeley, 7 Ga. App. 435 (66 S. E. 1103). We have merely assumed that the defendants are right in their contention that the two writings should be considered together, because in doing so we still reach the conclusion that the answer failed to set forth a condition precedent to the completion of the obligation to purchase.

There is no insistence in the brief of counsel for the plaintiffs in error that there was any issue for the jury after the court had stricken paragraph 9 of the answer, and had excluded the evidence tendered in support thereof, but the sole contention made is, that, since the court erred in these rulings, there wás not a legal termination of the case. We are not called upon, therefore, to examine the evidence admitted for the purpose of deciding whether the particular verdict was demanded, the assignments with respect to this question being waived by the absence of any reference thereto in the brief. Being of the opinion that such prior rulings were not erroneous upon any ground urged, and the sole contentions with respect thereto being as indicated above, we affirm the judgment.

Judgment affirmed.

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


text:
    16511.
    O’Donnelly v. Stapler.
   Bell, J.

1. There is no statute in this State requiring the operator of a motor-vehicle to sound a horn or give any other warning on approaching the intersection of public streets or highways, unless such intersection is a “dangerous place upon such street or highway.” See section 3 of the act of August 15, 1921, regulating the use of motor-vehicles. Ga. L. 1921, p. 255; Park’s Ann. Code, § 828 (uu-8). In the absence of anything further to show that the intersection was a dangerous place upon either of the streets, an allegation that the defendant, while operating his automobile on Peachtree street, “failed to sound his horn or to give any warning whatever on approaching the intersection of Peachtree street and North Avenue, one of the most frequented crossings in the City of Atlanta,” did not amount to a charge that the defendant was negligent in the violation of a statute, although it sufficiently specified, in connection with other parts of the petition, that the defendant was negligent in the violation of his duty to exercise ordinary care to avoid injury to the plaintiff’s automobile .as it was turning from one of the streets into the other at such intersection.

2. This being an action for damage alleged to have been caused to the plaintiff’s automobile by a collision between it and the automobile of the defendant at such intersection, and the petition having alleged that the defendant was negligent in operating his automobile in violation of the city’s speed ordinance and in violation of the provisions of the State law as to a person driving an automobile while under the influence of intoxicating liquor, the petition as to these matters charging negligence per se, and the petition having further alleged that the defendant was negligent in failing to give warning of his approach to the intersection of the two streets, as set forth in the preceding paragraph, and there being evidence in support of each of the allegations, the court erred in instructing the jury, in effect, that the plaintiff could not recover unless the jury should find that the defendant was operating his automobile either in violation of the city ordinance or in violation of the State law with reference to the use of automobiles upon public streets and» highways. The excerpts from the charge of the court complained of in grounds 4 and 5 of the plaintiff’s motion for a new trial improperly excluded the plaintiff’s contention that the defendant was negligent in failing to give any signal or warning on approaching the intersection of the two streets. See Purvis v. Atlanta N. Ry. Co., 136 Ga. 852 (1) (72 S. E. 393).

3. The occurrence was in the nighttime; and, while the driver of the plaintiff’s automobile testified that he sighted the dim lights of the defendant’s automobile at a distance otherwise shown to have been about a “block and a half” away, it was inferable from the evidence that he did not know of the rapid speed at which it was approaching, and that, acting on the justifiable belief that he had ample time to clear the intersection with the plaintiff’s car before the defendant’s vehicle arrived there, he made no further observation of the defendant’s vehicle, and had no other warning of its approach until the collision. In these circumstances it can not be said that the plaintiff’s agent had such knowledge of the approach of the defendant’s automobile as to make it immaterial that the defendant failed to sound a warning of his approach to the intersection. The facts of this case differentiate it from such cases as Central &c. Ry. Co. v. McKey, 13 Ga. App. 477 (3) (79 S. E. 378).

4. The defendant having denied all the allegations of negligence set forth in the petition, and having alleged that the collision was caused by the negligence of the plaintiff’s agent in operating the plaintiff’s automobile, and having sought, in a counterclaim, to recover of the plaintiff for alleged damage to his own automobile, the court erred in refusing the plaintiff’s request, duly made, to charge the jury as follows: “If you believe that the defendant was negligent and that this negligence caused the damage, then the plaintiff would be entitled to recover whatever he has proved he suffered, and the defendant would not be entitled to any set-off whatsoever, and your verdict would be for the plaintiff for whatever amount you find he suffered.”

5. “In an action to recover damages for injuries to an automobile resulting from a collision, the measure of damages is the difference between the value of the property before the damage and afterwards” (Douglas v. Prescott, 31 Ga. App. 684 (1), 121 S. E. 689) ; but where the owner has undertaken to make proper and necessary repairs, in establishing such damage, he may include such proper and necessary expenses, provided such items are the direct and proximate result of the collision and represent the reasonable value of such necessary material and labor, and provided the aggregate of these amounts, together with hire on' the machine while rendered incapable of being used, and the value of any additional permanent impairment, does not exceed the value of the machine before the injury with interest thereon. In the absence of a request for more specific instruction, a charge in general terms that the measure of damages is “the difference between the value of the property before the damage and afterwards” would ordinarily be sufficient; but since, as in the instant case, the plaintiff alleged the several elements of his damage, and the amounts thereof, in accordance with the ruling quoted above, and these allegations were supported by the evidence, it was error to fail to instruct the jury upon the contentions of the plaintiff as made. But since the jury found against the plaintiff altogether, this error by itself would not have afforded ground for a new trial. Colt Co. v. Wheeler, 31 Ga. App. 427 (3) ; Sarman v. Seaboard Air-Line Ry. Co., 33 Ga. App. 315 (5) (125 S. E. 891).

Decided November 18, 1925.

Action for damages; from Baldwin superior court—-Judge Park. April 15, 1925.

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

Allen & Pottle, Bryan & Middlebroolcs, for defendant.

6. In view of the rulings made above it is unnecessary to pass upon the contention made by the plaintiff in his motion for a new trial, that the evidence demanded a verdict in his favor. The court erred in overruling the motion.

Judgment reversed.

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


text:
    16579.
    Alabama Great Southern Railroad Co. v. Wright, comptroller-general.
   Bell, J.

1. Where the generality of the taxpayers of a county have paid the taxes levied for a given year, and executions against those who have not paid have been levied, and where one of such alleged defaulting taxpayers, upon whose property a fi. fa. has been levied, interposes an affidavit of illegality, attacking the tax levy on the ground that it is excessive, it is not then lawful for the county authorities to amend the tax levy by reducing the levy as to one of the items and by adding the amount of such reduction to another and different purpose, notwithstanding the levy as thus amended may be brought within the limitations fixed by law. This ease is controlled by the decisions in Wright v. Southern Ry. Co., 137 Ga. 801 (74 S. E. 529), and Wright v. Southern Ry. Co., 28 Ga. App. 545 (112 S. E. 171). See also McMillan v. Tucker, 154 Ga. 154 (5) (113 S. E. 391). The cases cited by the defendant in error (see Yow v. Sullivan, 129 Ga. 187, 58 S. E. 662; Anthony v. Standard, 146 Ga. 198, 91 S. E. 16; McGregor v. Hogan, 153 Ga. 473 (2), 484, 112 S. E. 471; Garrison v. Perkins, 137 Ga. 744 (4), 74 S. E. 541; Clements v. Powell, 155 Ga. 378 (10), 116 S. E. 624; Southwestern R. Co. v. Wright, 156 Ga. 1 (4), 118 S. E. 552), do not apply to an amendment like the one here involved.

Decided November 24, 1925.

Affidavit of illegality; from Dade superior court—Judge Tarver. May 7,1925.

Application for certiorari was denied by tbe Supreme Court.

McClure, Sale & McClure, Maddox, Maddox & Mitchell, for plaintiff in error.

B. T. Brock, J. M. Lang, contra.

2. It might perhaps have been permissible to amend the levy by combining the two items “Ad valorem road tax, 15 cents on the $100.00,” and “Special tax, general road purposes, 15 cents on the $100.00,” and by showing, if such was true, that these items were levied for the purposes' set forth in the Civil Code (1910), § 696, the county having adopted the alternative road law; but it was illegal to combine by amendment these two items and at the same time to levy an additional amount therewith, such amount being drawn from one of the items levied for “county purposes,” under the Civil Code (1910), § 508. However, since the plaintiff in ii. fa. ultimately relied not upon the original levy, but upon the amended levy, and since the amendment actually made was illegal, no decision is made as to whether the original levy was subject to the attack made, or whether some other amendment might have been permissible. This court leaves open also the question as to whether the county authorities may hereafter rescind the illegal amendment and amend the levy in other respects.

3. The court erred in admitting in evidence the amendment to the tax levy, and in allowing the same to be set up as a reply to the affidavit of illegality.

Judgment reversed.

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