text:
    16756.
    Ward v. The State.
    Decided November 11, 1925.
    Possessing intoxicating liquor; from Putnam superior court-judge Park. July 11, 1925.

      W. T. Davidson, for plaintiff in error.

      Joseph B. Dulce, solicitor-general, contra.
   Luke, J.

The evidence clearly authorized the conviction in this case, and the special assignment of error upon the ground that the venue was not proved is without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    16760.
    COBLER et al. v. THE STATE.
    The evidence authorized the verdict.
    Decided November 11, 1925.
    Assault with intent to rob; from Newton superior court—Judge Hutcheson. July 11, 1925.

      A. D. Meador, Branch & Howard, for plaintiffs in error.

      Claude C. Smith, solicitor-general, contra.
   Luke, J.

The special assignment of error upon an excerpt from the charge of the court has been abandoned by counsel for plaintiffs in error, and the case is here upon the sole assignment of error that the verdict is unauthorized by the evidence. We can not say that the verdict is without evidence to support it; and the court, having approved the verdict, properly overruled the motioD for a new trial.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    16761.
    Stalvey v. The State.
    Decided November 11, 1925.
    Accusation of possessing and selling liquor from city court of Douglas—Judge Crawley presiding. July 18, 1925.

      R. B. Chastain, for plaintiff in error.

      J. A. Roberts, solicitor, contra.
   Bloodwobth, J.

The motion for a new trial contains the general grounds only. There is evidence to authorize the verdict, which is approved by the trial judge, and the judgment is

Affirmed.

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


text:
    16777.
    Rushing v. The State.
    Decided November 11, 1925.
    Making intoxicating liquor; from Screven superior court—Judge Strange. August 14, 1925.

      H. A. Boylcim,, for plaintiff in error.

      John C. Hollingsworth, solicitor-general, contra.
   Luke, J.

The evidence in this case amply authorized the conviction. The conviction not being wholly dependent upon circumstantial evidence, and there being no request to charge thereon, the assignment of error upon the ground that the judge did not charge the law of circumstantial evidence is without merit. Eor no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloockoorth, J., concur.


text:
    16780.
    Gibbons v. The State.
    Decided November 11, 1925.
    Conviction of assault with intent to murder; from Chatham superior court—Judge Meldrim. August 21, 1925.

      Aaron Kravitch, Casper Wiseman, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, contra.
   Luke, J.

The evidence fully authorized the defendant’s conviction. When the charge of the court is read in its entirety, there is no error in the excerpts complained of. Eor no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworfh, J., concur.


author: Bloodworth, J.

text:
    16781.
    GRIFFIN v. THE STATE.
    “In the courts of this State juries and not judges sum up the evidence.” “In delivering his charge he (the judge) should carefully avoid an invasion of the province of the jury. He should refer to the evidence only so far as is necessary to present the leading issues of the cause, leaving the .minor contentions of opposing counsel to the consideration ■ of the jury under appropriate general instructions. It should contain no such summary of the evidence as might to a jury seem either to be an argument or amount to the expression or intimation of an opinion thereon.” “Where the charge of the court is argumentative and so strongly states the contentions of one of the parties as to weaken and disparage those of the opposite party and thus is liable to impress the jury that the court is of the opinion that the defendant is guilty, a new trial should be granted.” Such errors as above referred to are “not diminished by the use of such expressions as ‘the State insists,’ ‘it is contended,’ etc,”
    Decided November 11, 1925.
    Conviction of burglary; from Chatham superior court—Judge Meldrim. August 10, 1925.

      Shelby Myriclc, for plaintiff in error.

      Walter 0. Eartridge, solicitor-general, contra.
   Bloodworth, J.

A new trial is asked for on several grounds, one of them being that the court erred in charging the jury as follows: “It is insisted upon the part of the State that the prisoner is guilty. The State contends that two men came in here from the country, had in their possession a certain amount of money, got to drinking, they met up with a man named Kirkland, and afterwards with the prisoner, that the prisoner at that time was a motorcycle policeman of the City of Savannah, that that policeman and this defendant, one of these defendants went off together, one of these defendants mounted behind him on his motorcycle, to get liquor, and that they did get liquor; that they went to a hotel in the city, at which these two men had registered in room 115; that one of these prosecuting witnesses, Haskins, went to his room; that afterwards these two men, Griffin and Kirkland, went to the same room, Griffin going up last; that about ten minutes after Griffin went up the hotel clerk heard a crash. The contention on the part of the State is that Griffin or Kirkland, either separately or together, pushed in .the transom over the door, pushed it in from the outside, is the contention on the part of the State, because the State contends it was found inside of the room. The State’s contention is that this prisoner and Kirkland entered that room in that way, and with the intent to commit a felony or laTceny therein. See whether or not these two witnesses, Haskins and the other man, occupied that room that night; see whether or not that room was broken and entered that night. That is the first question you are to determine. If you find that a burglary was committed, then determine who committed it. If you find there was no burglary committed, that ends this case. The State contends that the prisoner at the bar committed that burglary along with one Kirkland. The burden is on the State to prove that the prisoner at the bar did commit it, and it must show to your satisfaction beyond a reasonable doubt that this man did commit it. Now the State’s contention is, that this man as a policeman had gone off with this man to get liquor; that they came back to this hotel; that one of the prosecuting witnesses had gone to his room, and that this man followed up the last one, stopping long enough down stairs in the office to telephone a woman about three o’clock in the morning; that shortly after he went up this noise was heard, and that afterwards this transom was found broken out and on the inside of the room. See whether or not those were the facts. If they were, then determine who broke that transom out and for what purpose it was broken out. The State contends that the defendant broke it out, either by himself or with Kirkland,— that it was broken out in [to?] go in there to get some liquor, and while in there to get this money. It is contended upon the part of the State that the two prosecuting witnesses did have money,—in one case two five-dollar bills and four one-dollar bills. It is contended upon the part of the State that one of these witnesses had in his possession a memorandum or writing, together with a No. 70 Ford key, and that after this alleged burglary $14, ten dollars made up of two five-dollar bills and four one-dollar bills were found in the possession of this defendant.” By counsel for defendant: “$16.50 was found.” By the court to the jury: “You, gentlemen, will determine it. It is your business to remember the evidence. I am not expressing or intimating any opinion as to what was proved. I am telling you what I understand to be the contention on the part of the State, and that is, that there was found in the recent possession of this prisoner two five-dollar bills and four one-dollar bills. The contention is that those two five-dollar bills and four one-dollar bills were taken from Haskins. That is the contention. The contention further is that that memorandum was in Haskins’ possession, and the key No. 70 to Ford car, and that that memorandum and that that key was found in the possession of this defendant. That is the contention. The contention further is that when they asked this prisoner to explain the possession of the key, he said he had two keys, and at one time; the contention is that he said he did not understand how he got the key. The contention on the part of the State further is that he admitted that he had gotten this paper, but he explained the possession of the paper,—such is the contention on the part of the State, by saying that when Shuman gave him the money, or Haskins, as the case may be, he must have given him this paper with it.” This portion of the charge is alléged to be error because: (a) It is highly argumentative. (6) It unduly stressed the contentions of the State without any statement anywhere in the charge of the contentions of the defendant, (c) It marshalled in concrete form all the evidence of the State and tended to lead the jury to believe that the court thought the defendant guilty. (d) It amounted to an expression of an opinion that the defendant was guilty.

In Nelson v. State, 124 Ga. 9 (52 S. E. 20), Presiding Justice Cobb said: “ ‘The office of a charge by the court is to give to the jury such instruction touching the rules of law pertinent to the issues involved in the pending trial,'as will enable them intelligently to apply thereto the evidence submitted, and from the two constituents law and fact make a verdict. In delivering his charge the trial judge should carefully avoid an invasion of the province of the jury. He should refer to the evidence only so far as is necessary to present the leading issues of the cause, leaving the minor contentions of opposing counsel to the consideration of the jury under appropriate general instructions. It should contain no such summary of the evidence as might to a jury seem either to be an argument or amount to the expression or intimation of an opinion thereon.’ Thomas v. State, 95 Ga. 484 [22 S. E. 215]. It was held in the case from which the above quotation was made that it was error for the presiding judge to repeat the substance of the testimony of the State’s witnesses and submit these with the argumentative deductions therefrom by the ■ State’s counsel, as issues in the case. The judge’ should not in his charge take up and recapitulate in detail the testimony of the witnesses as it was delivered from the stand, in such a way as is calculated to leave the impression upon the minds of the jury that the testimony of such witnesses has established the fact contended for by one of the parties, or that such testimony is of a nature that is entitled to more consideration than other testimony in the case. McVicker v. Conkle, 96 Ga. 597 [24 S. E. 23]. The ruling in the case just cited practically goes'to the extent of holding that it is error for the judge to state to the jury what a witness has testified, such a statement being in effect an expression of opinion as to what has been proved. Suddeth v. State, 112 Ga. 409 [37 S. E. 747]. The use of the expression Tt is contended,’ or similar phrases, will not in all cases have the effect to relieve a charge detailing the evidence of a particular witness or witnesses from an objection that it amounts to an expression or intimation of opinion. Smith v. Hazlehurst, 122 Ga. 792 [50 S. E. 917]. We think that the charge under consideration was liable not only to leave the impression upon the minds of the jury that the facts testified to by the witnesses named had been established, but also that the testimony of such witnesses was entitled to more consideration than that of other witnesses who were not named or referred to in the charge. The case is at best upon the evidence close and doubtful, and the error in the charge is in our opinion such as to require a reversal of the judgment refusing to grant a new trial.”

In Waters v. State, 3 Ga. App. 653 (60 S. E. 337), Chief Judge Hill said: “We would not be understood as holding that the trial court has no right to state the contentions of the parties and the issues, but he must state such contentions and issues fairly and impartially, without an opportunity for the jury to gather from his statement any leaning to one side rather than the other. We do not think, however, that it is ever fairly within the scope of the court’s prerogative to sum up the facts and circumstances testified to by the witnesses. This duty the law of this State imposes upon the jury, and the court can safely leave the performance of such duty where the law places it.” In Wilson v. State, 8 Ga. App. 816 (1) (70 S. E. 193), it was held: “Where the charge of the court is argumentative and so strongly states the contentions of one of the parties as to weaken and disparage those of the opposite party, and thus is liable to impress the jury that the court is of the opinion that the defendant is guilty, a new trial should be granted.” “ ‘In the courts of this State juries, and not judges, sum up the evidence.’ McVicker v. Conkle, 96 Ga. 597 (24 S. E. 28). The judge should not, in his charge, review in detail each fact and circumstance in testimony in such a way as tends to impress the jury that the testimony has established the contention of one of the parties, or that certain testimony is entitled to more weight than other; and to so particularize and argumentatively enforce upon the jury various inferences which may arise from the evidence is an intimation of opinion forbidden by the Civil Code, § 4334; and the error is not diminished by the use of such expressions as ‘the State insists,’ ‘it is contended,’ etc. Suddeth v. State, 112 Ga. 409 (3) (37 S. E. 747).” Rouse v. State, 2 Ga. App. 184 (6). See also Thompson v. State, 160 Ga. 520 (3) (128 S. E. 756 (3), 757 (3)).

Under the principle announced in the foregoing cases the court erred in' instructing the jury as complained of i-n the motion for a new trial. The learned trial judge not only stated at considerable length the contentions of the prosecutor, but gave a summary of the State’s evidence, and pointed out and impressed upon the attention of the jury a number of ■ circulnstances which tended to show the defendant’s guilt; and no specific contentions of the defendant were charged. The contentions of the State were thus given undue stress, and were so strongly stated as • “to weaken and disparage those of the opposite party,” and thus was liable to impress the jury that the court was of the opinion that the defendant was guilty. This .charge is distinguishable from the charge in Brown v. State, 6 Ga. App. 356 (64 S. E. 1119), and the charges in other cases where the judgment of the lower court was affirmed.

As a new trial results from this ruling, it is not necessary to discuss the other assignments of error.

Judgment reversed.

Broyles, G-. J., and Lulce, J., concur.


text:
    16786.
    Butler v. The State.
    Decided November 11, 1925.
    Conviction of assault with intent to murder; from Bandolph superior court—Judge Yeomans. August 1, 1925.

      C. W. Worrill, J. W. Quincey, T. N. Henson, for plaintiff in error.

      B. T: Castellow, solicitor-general, R. R. Arnold, E. C. Hill, contra.
   Luke, J.

The evidence authorized the conviction, and for no reason pointed out in the record did the court err, after having approved the verdict, in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16787.
    Butler v. The State.
    Decided November 11, 1925.
    Conviction of possessing intoxicating liquor; from Bandolph superior court—Judge Yeomans. August 1, 1925.

      C. W. Worrill, J. W. Quincey, T. N. Henson, for plaintiff in error.

      B. T. Castellow, solicitor-general, R. R. Arnold, E.- C. Hill, contra.
   Bloodworth, J.

1. The court did not err in charging the jury that “when witnesses appear and testify, they are presumed to speak the truth, and are to be believed by the jury unless impeached in some method provided by law, or otherwise discredited in your judgment.” Parsons v. State, 32 Ga. App. 504 (1) (123 S. E. 922). See also Dent v. State, 14 Ga. App. 269 (3) (80 S. E. 548).

2. The evidence is sufficient to support the verdict.

Judgment affirmed.

Broyles, O. J., and LuJce, J., concur.


text:
    16789, 16790.
    Hill v. The State (two cases).
   Luke, J.

The evidence amply authorized the conviction of both defendants.

The special grounds of the motion for a new trial, complaining of rulings upon the admissibility of testimony, can not be considered, as they are not complete and understandable within themselves.

The assignments of error upon excerpts from the charge of the court, when the charge is read in its entirety, are wholly lacking in merit, and the refusal to give the requested charge was not error.

Decided November 11, 1925.

Rehearing denied December 15, 1925.

Conviction of possessing liquor; from city court of Floyd county —Judge Bale. August 12, 1925.

Porter & Mebane, for plaintiff in error.

Alec Harris, solicitor, contra.

The convietion of the defendants not depending wholly upon circumstantial evidence, the failure to instruct the jury upon the law of circumstantial evidence, in the absence of a request, was not error.

The defendants have had a legal trial, and the court did not err in overruling their motions for a new trial.

Judgments affirmed.

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


text:
    16791.
    Avery v. The State.
    Decided November 11, 1925.
    Involuntary manslaughter; from Clarke superior court—Judge Fortson. August 11, 1925.

      John B. Gamble, Wolver M. Smith, for plaintiff in error.

      Henry H. West, solicitor-general, contra.
   Bloodworth, J.

1. The venue was proved.

2. The excerpt from the charge of which complaint was made in the amendment to the motion for a new trial shows no error which requires a reversal of the judgment.

3. The verdict is supported by the evidence.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    16802.
    Perdue v. The State.
    Decided November 11, 1925.
    Indictment for forgery; from Glynn superior court—Judge Highsmith. August 7, 1925.
    Application for certiorari was denied by the Supreme Court.

      O. S. Perdue, pro se.

      W. B. Gibbs, solicitor-general, contra.
   Luke, J.

The conviction was authorized by the evidence. The special

assignment of error upon the admission of testimony is without merit. For no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16803.
    Yesbik v. The State.
    Decided November 11, 1925.
    Conviction of possessing intoxicating liquor; from Kandolph superior court—Judge Yeomans. August 18, 1925.

      Linton B. West, C. W. Worrill, for plaintiff in error.

      B. T. Castellóni, solicitor-general, R. R. Arnold, B. C. Hill, contra.
   Bloodworth, J.

In addition to the circumstantial evidence, there was sufficient direct evidence to support the verdict of guilty; the verdict is approved by the trial judge, and, as no error of law appears, the

judgment is

Affirmed.

Broyles, O. J., and Luhe, J., eoneur.


author: Broyles, C. J.

text:
    16692.
    Wyatt v. The State.
    Decided November 12, 1925.
    Accusation of adultery; from city court of Carrollton—Judge Hood. July 3, 1925.

      Beall & Beall, Smith & Millican, J. J. Reese, for plaintiff in error.

      Bmmett Smith, solicitor, contra.
   Broyles, C. J.

1. Under repeated decisions of the Supreme Court and of this court the allowance of an amendment to an accusation, over the objections of the accused, is not a ground of a motion for a new trial.

2. Under the facts of the case the denial of the motion for a continuance of the case was not error.

3. None of the other special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

4. The evidence was sufficient to authorize the finding of the jury, and the refusal to grant a new trial was not error.

Judgm&nt affirmed.

Luhe and Bloodworth, JJ., eoneur.


text:
    16764.
    Newberry v. The State.
    Decided November 12, 1925.
   Broyles, C. J.

1. The amendment to the motion for a new trial contained but one ground, to wit, that the court erred in refusing the defendant’s motion to direct a verdict in his favor. Under repeated rulings of the Supreme Court and of this court the refusal to direct a verdict is never error.

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

Judgment affirmed.

Luhe and Bloodworth,: JJ., eoneur.

Conviction of carrying pistol; from Terrell 'superior court— Judge Yeomans. August Í, 1925. -

B. B. Marlin, J. H. Fletcher, for plaintiff in error.

B. T. Castellow, solicitor-general,' B. B. Arnold, E. C. Hill, contra.


text:
    16907.
    Cash v. The State.
    Decided November 13, 1925.
    Motion to change venue; from Wilkinson superior court—Judge Park. October 10, 1925.

      Eli B. Hubbard, for plaintiff in error.

      Joseph B. Buhe, solicitor-general, contra.
   Bloodworth, J.

This case is controlled by the decision in Coggeshall v. State, 33 Ga. App. 613 (126 S. E. 568), and eases thei’e cited. The court did not err in overruling the motion for a change of venue.

Judgment affirmed.

Broyles, C. J., concurs, Luke, J., absent.


author: Jenkins, P. J.

text:
    16207. 16223.
    Southern Railway Co. v. Standard Growers Exchange. Georgia Southern & Florida Railway Co. v. Standard Growers Exchange.
   Jenkins, P. J.

These suits for damages on account of injuries to shipments of freight were based on the contracts of affreightment, which did not in any way change the legal rule of liability. It was alleged that the peaches were received by the carrier in good, sound condition, and that when delivered by it they were damaged by decay. The only questions dealt with in the briefs of counsel were whether the court erred in refusing to dismiss the petitions on general demurrer because they failed to allege negligence on the part of the defendants, either in general terms or by setting forth any such particular acts. Held:

1. At common law the liability of a common carrier for goods intrusted to the carrier for shipment was absolute, save only that the carrier could be absolved upon proof being made that the injury was occasioned by the act of God or of the public enemy. Fish v. Chapman, 2 Ga. 349 (46 Am. Dec. 393); Louisville & Nashville R. Co. v. McHan, 144 Ga. 683 (1 a) (87 S. E. 889). Most of the courts, including our own, refer to such liability as being that of an insurer; while others point out that such relationship does not technically exist, and that the term is used only as expressing absolute liability, subject only to the exceptions named, and independently of any question of negligence. 10 Corpus Juris, 107, § 120, note 90.

2. An act of God as here used refers to a natural cause, and not only excludes the idea of human agency, but the act must be of such a character that its effect could not be prevented by the exercise of due diligence on the part of the carrier. Central of Georgia Ry. Co. v. Hall, 124 Ga. 322 (52 S. E. 679); Parish v. Parish, 21 Ga. App. 275, 277 (94 S. E. 315).

3. Thus, the gravamen of an ordinary action against a carrier for loss or injury to goods intrusted to the carrier for shipment consists in the absolute liability for the damage growing out of the relationship of shipper and carrier, and is not grounded in negligence. Southern Empress Co. v. Bailey, 7 Ga. App. 331 (66 S. E. 960). If, however, the petition should disclose that the injury to the goods was in fact occasioned by the act of God, and thus brought within the exceptions to the rule of absolute liability, the action becomes restricted to one founded on negligence, with the result that the carrier can be held liable according as it may or may not be able to carry the burden of showing that its own negligence did not contribute to the loss as thus occasioned.

4. The Carmack amendment to the interstate-commerce act (U. S. Comp., St. §§ 8604 a, 8604 aa) did not change the common-law rule of. the carrier’s absolute liability subject to certain defined exceptions. The amendment was enacted as a measure of relief to shippers; its purpose and effect being to give to any holder of a bill of lading a right of action against the carrier issuing it, irrespective of whether the breach of duty was attributable to such initial carrier or whether it was caused by any of the connecting carriers. 10 Corpus Juris, 132, § 165, note 14. While the language of this amendment imposed liability upon the initial carrier issuing the bill of lading for any loss or injury “caused” by itself or by any connecting carrier, it has been held that “any injury that a common carrier permits to befall the property while in its custody, otherwise than from the act of God or the public enemy, is in a juridic sense caused by it.” Louisville & Nashville R. Co. v. Warfield, 6 Ga. App. 550 (4), 554 (65 S. E. 308). In accordance with this doctrine the Supreme Court of the United States has held: “The liability imposed by the statute is the liability imposed by the common law upon a common carrier.” Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657 (33 S. Ct. 397, 57 L. ed. 690).

5. Where the shipment consists of perishable goods, and their loss is occasioned by an inherent vice or by natural deterioration of the shipment, unmixed with negligence on the part of the carrier, the damage can be attributed to a cause which is in the nature of an act of God, and the carrier, upon such proof being made, is relieved from liability, provided it shows that its negligence did not contribute to the loss thus occasioned. Forrester v. Georgia Railroad & Banking Co., 92 Ga. 699, 704 (19 S. E. 811) ; Louisville & Nashville R. Co. v. McHan, 144 Ga. 683 (87 S. E. 889).

6. It does not follow, however, that the mere admission by the shipper, or proof by the carrier, that the damage to the perishable goods consisted in total or partial “decay” establishes the. fact that the injury was brought about by the act of God, so as to relieve the carrier from the rule of such absolute liability, and relegate the shipper to an action founded upon negligence. The use of this unqualified term in a petition for the purpose of describing the nature and character of the damage incurred during transit does not of itself import that the damage was occasioned by an inherent vice (contrary to the averment that they were sound when shipped), or that it was brought about by natural deterioration. Such use of the word does not negative the element of human agency, since it does not indicate that the decay might not have been prevented by a proper handling of the goods by the defendant custodian as carrier. The unqualified use of this word but denotes and describes a result, without in any wise indicating . the agency by which it was brought about. The fact that natural laws may enter into and effect a given result does not negative the idea of human causation. A different rule would seem to apply were it alleged that the damage had been brought about by some vis major, such as an earthquake, lightning, or flood, in which the human element does not and could not enter. Where it is alleged that the damage was thus occasioned, it is not necessary for the carrier to show that such an occurrence was in a legal sense an act of God, and its defense would be complete upon proof being made that its own negligence did not contribute to the loss thus caused by an occurrence over which it had no control. Civil Code (1910), § 2713; Railroad Co. v. Reeves, 10 Wallace, 176 (19 L. ed. 909).

7. In actions based on negligence, as distinguished from cases grounded on absolute liability, it is required, as a rule of pleading, that the plaintiff shall set forth the particular acts of negligence which he claims to have caused the injury; and the rule holds good even in those cases where, on proof of the injury, a legal presumption arises that the defendant is guilty of the acts of negligence as charged. Harden v. Georgia Railroad Co., 3 Ga. App. 344 (59 S. E. 1122). But in a suit where the claim is not based upon negligence, but upon the absolute liability 'of the defendant, the question of negligence is not involved and has no place in the pleadings. “Where the law imposes an absolute duty, the failure to perform that duty to the damage of another raises a liability; and it would be superfluous to inquire into the causes that interfered with the discharge of the duty, when such causes would not relieve from liability. It is an elementary rule of pleading that the allegation of any fact which is not issuable or jurisdictional is not demanded.” Louisville & Nashville R. Co. v. Warfield, 129 Ga. 473, 477 (59 S. E. 236). Nor has the question of negligence any place in the proof, unless and until the defendant shall have shown that the damage was brought about by the act of God. Where this is shown, proof of proper diligence on the part of the carrier will relieve it from liability. " If the carrier can show that the decay was but the result of natural deterioration, or that it was superinduced by an inherent vice in the goods, and that the resulting damage from either or both of such causes was such as proper care and diligence on its part could not have obviated, it becomes relieved of responsibility. The rule might be different if, as contended, the effect of the petition were to set forth that the damage was occasioned by the act of God. Were the petition to show that the damage resulted from such a cause, the rule of absolute liability would be relaxed; and since, under the facts as thus pleaded, the defendant would be liable only for negligence, negligence would have to be charged, and the defendant would merely be put upon proof to absolve itself therefrom.

Decided November 16, 1925.

Action for damages; from city court of Houston e.ounty—Judge Riley. December 17, 1924.

Application for certiorari was denied by the Supreme Court.

Arnold & Battle, J. E. Hall, G. J. Bloch, Duncan &, Nunn, for plaintiffs in error. Jones, Park & Johnston, Harris, Harris & Popper, for persons at interest, not parties of record. ■

John R. L. Smith, Grady G. Harris, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


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

text:
    16249.
    YOUNG v. SOUTH GEORGIA RAILWAY COMPANY.
    This case is controlled adversely to the contentions of the plaintiff by the rulings of the Supreme Court in Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). The evidence does not show any negligence on the part of the railway company other than failure to anticipate the presence of a trespasser on the track at a time when and a place where it was under the duty of anticipating the presence of pedestrians; and since such failure does not amount to wilful and wanton negligence, a nonsuit was proper.
    Decided November 16, 1925.
    Actiou for damages; from Brooks superior court—Judge W. E. Thomas. November 3, 1924.

      Humphreys & DeLoache, Sam T. Harrell, for plaintiff.

      Branch & Snow, for defendant:
   Jenkins, P. J.

It is the rule that the operatives of a railway train are not ordinarily bound to anticipate the presence of trespasser upon its right of way, and that 'the only duty which a railway company ordinarily owes to a trespasser upon its property is not to injure him wantonly or wilfully after his presence.has been actually discovered; that while the failure to exercise ordinary care to prevent his injury after his presence has been ascertained may amount to wanton negligence, the company is ordinarily authorized to act upon the presumption that a trespasser apparently of full age and capacity who is seen standing or walking upon or along the track will leave it in time to protect himself; and that the duty of exercising special precautions to protect such a trespasser when discovered arises only when it is reasonably apparent that for some reason he is off his guard or incapacitated to protect himself. See Tice v. Central of Ga. Ry. Co., 25 Ga. App. 346 (103 S. E. 262), and cases there cited. In the instant ease the plaintiff in error, who was nonsuited in the court below, invokes the rulings made by the Supreme Court in Wright v. Southern Ry. Co., 139 Ga. 448 (77 S. E. 384), and by this court in the Tice case, supra, to support its contentions that in a case where it was the duty of the servants of a railway company to anticipate the presence of persons upon the tracks of the company, by reason of the fact that the public has been accustomed to use them with the knowledge and implied consent of the company, the general rule stated, to the effect that the only duty which a railway company owes to a trespasser upon its tracks is not to injure him wilfully and wantonly after his presence becomes known to the servants in charge of the train, does not apply, but that in such a case the-failure to ascertain his presence and thereafter take such precautions and extend such special protection as ordinary diligence might require under the exigencies of the situation is equivalent to wantonness, even though the presence of the trespasser was not actually discovered. The writer, who also delivered the opinion in the Tice case, is of the opinion that the argument of counsel for the plaintiff in error is authorized by the reasonable meaning of paragraph 2 (e) of that decision, although we think the Tice: case may be distinguishable from the present case under its peculiar facts. Subsequently, however, to the decision in the Tice case the question here involved was certified to the Supreme Court in the ease of Lowe v. Payne, supra. The Supreme Court, in answer to the questions, considered the Wright case, cited in the Tice case, and in effect held that where there are no facts or circumstances in the case'to show wilful and wanton negligence on the part of' the servants of the railroad company other than their neglect to anticipate the presence of persons killed, on the track at the time and place of the injury, although -it was under the duty of then and there anticipating the presence of pedestrians, and their failure to discover thus amounts to mere negligence, a railway company can not be held liable for the injury to one who as a trespasser was guilty of a lack of ordinary care for his own safety, and whose presence was not in fact discovered by the company in time for it to take such precautions as might have been reasonably necessary to avoid the injury. See Lowe v. Payne, 156 Ga. 312 (118 S. E. 924), s. c. 31 Ga. App. 388 (120 S. E. 691). The same principle has very recently been recognized by the Supreme Court in Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274). As we understand the rulings, if the presence of the trespasser on the track at the time and place of the injury is brought about by any such peculiar facts and circumstances as would relieve him from the guilt of a lack of ordinary care in thus exposing himself, the company would be liable for a mere lack of ordinary care.on its part in failing to anticipate his presence at a time when and a place Where, it was charged with such duty, and in thereafter failing to take such special precautions for his safety as might seem 'reasonably necessary. See Parish v. Western & Atlantic R. Co., 102 Ga. 285, 291 (29 S. E. 715); Fairburn & Atlanta Ry. & E. Co. v. Latham, 26 Ga. App. 698 (107 S. E. 88). If, however, the presence of the trespasser on the track does amount to a lack of ordinary care on his part, the lack of ordinary care on the part of.the company in failing as it should to anticipate his presence will not authorize such a trespasser to recover, and under such circumstances he must show that the negligence of the company amounted to wilful and wanton negligence. Atlantic Coast Line R. Co. v. Fulford, 33 Ga. App. 631 (127 S. E. 812). It seemed recognized in the Lowe ease that the facts and circumstances' surrounding the injury may possibly be such that the failure to anticipate the presence of the trespasser will itself amount to more than “mere negligence,” that is wantonness. Such might have been the case from the facts and circumstances disclosed by the record in the Tice case. Finally, it is a well-recognized rule that if the negligence of the defendant is wilful and wanton, it matters not how gross the negligence of the trespasser might have been in jeopardizing his own safety, the defendant is liable. In the instant case the plaintiff was not only a voluntary trespasser, but his negligence as such was accentuated by his having voluntarily exposed himself to manifest peril by standing on the track in the switch yards of the company. Manifestly he was not in the exercise of ordinary care. See Wright v. Southern Ry. Co., 139 Ga. 448, 451 (77 S. E. 384). While it was shown that his attention might have been engrossed on account of his observation of a steam shovel, such as might have imposed upon the company a special duty for his protection if his presence had been actually discovered in time, still, m'this case, as in the Lowe case, 31 Ga. App. 393 (120 S. E. 691), the evidence fails to establish by any fact or circumstance any sort of negligence on the part of the company “except . . neglect to' anticipate the presence of the person killed on the track” “at a time when and a place where it was under the duty of anticipating the presence of pedestriansand since the mere fact of such failure does not amount to wilful and. wanton negligence, the action of the trial court in granting a nonsuit was proper.

Judgment affirmed.

Bell, J., concurs.

Stephens, J.,

concurring specially. While the plaintiff’s negligence in becoming a trespasser upon the tracks of the railroad company would, of course, not bar a recovery where the plaintiff was wilfully injured, such negligence might, under the circumstances, as under the facts in the case before us, amount to contributory negligence and bar a recovery. As it appears from the facts narrated in the opinion, the plaintiff, under the authority of the Lowe case, supra, is, on account of his contributory negligence, barred from a recovery, since no wilful or wanton conduct appears on the part of the defendant railroad company.

I am unable to agree with all that is said in the opinion, but concur in the judgment of affirmance.


text:
    16220.
    American Commercial Service v. Bailey.
   Jenkins, P. J.

“Where a general demurrer was sustained, and the plaintiff during the same term moved to reinstate, offering to amend so as to cure the alleged defects in the original petition, this court will not interfere with the judgment refusing to permit the reinstatement.” Bowen v. Wyeth, 119 Ga. 687 (3) (46 S. E. 823); Stringer v. Atlanta Bow Factory, 25 Ga. App. 341 (4) (103 S. E. 421). The fact that the motion praying for the privilege to amend is denominated by the movant as a “motion in arrest of judgment ” would not operate to change the rule. While, despite such technical designation by the pleader in his motion, the judge might perhaps have, exercised his discretion in vacating the order of dismissal and reinstating the case for the purpose of allowing the amendment as sought, his failure to do so is not erroneous.

Decided November 16, 1925.

Motion to arrest judgment; from city court of Savannah—Judge Freeman. November 15, 1924.

TJlmer & Bright, for plaintiff.

Bouhan & Atkinson, 0’Byrne, Hartridge, Wright & Brennan, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., concurring.


text:
    16258.
    American National Insurance Co. v. Floyd.
    Decided November 24, 1925.
    Complaint; from Floyd superior court—Judge Wright. January 10, 1925.
    Application for certiorari was made to the Supreme Court.
    The policy of life insurance sued on contains the following provision: “This policy is issued upon an application which omits the warranty usually contained in applications, and contains the entire agreements between the company and the insured and the holder and owner thereof. All statements made by the insured in the application herefor shall, in the absence of fraud, be deemed representations and not warranties. Its terms can not be changed or conditions varied, except by a- written agreement, signed by the President, or Secretary. Therefore agents (which term includes superintendents and assistant superintendents) are not authorized and have no power to make, alter, or discharge contracts, waive forfeitures, or receive premiums on policies in arrears more than four weeks, or to receipt for same in the receipt book, and all such arrears given to an agent shall be at the risk of those who pay them, and shall not be credited upon the policy, whether entered in the receipt book or not.” It further provides that “no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.” It appears from the petition as amended that the assured was in bad health at the time the policy was solicited, issued, and delivered, but that the agent of the company who solicited and delivered the policy knew this fact throughout this entire period; and it is contended that •such knowledge of the defendant’s agent was knowledge of the company; that by reason of such knowledge it waived the condition of the policy providing that the assured must be in 'sound health when the policy was delivered, and that it was estopped from pleading this provision as a defense. The court overruled a general demurrer to the petition.
   Jenkins, P. J.

This case is controlled by the decisions rendered by the Supreme Court in New York Life Insurance Co. v. Patten, 151 Ga. 185 (106 S. E. 183), and Reliance Life Ins. Co. v. Hightower, 148 Ga. 843 (98 S. E. 469). In the Patten ease the rule there laid down is distinguished from the rule in cases where the contract of insurance contained no express limitation upon the power of the agent, and in cases dealing with fire-insurance policies where the agent has power to issue the policy. The defendant in error relies mainly upon the ruling made in Supreme Lodge Knights of Pythias v. Few, 138 Ga. 778, 784 (76 S. E. 91). In the Hightower case, supra, the Few case is considered and held not to be in conflict with the rule there announced. See also Puckett v. Metropolitan Life Ins. Co., 32 Ga. App. 263 (122 S. E. 791); Penn Mutual Life Ins. Co. v. Blount, 33 Ga. App. 642 (127 S. E. 892). The court erred in not sustaining the general demurrer to plaintiff’s petition.

Judgment reversed.

Stephens and Bell, JJ., concur.

Maddox, Matthews & Owens, for plaintiff in error.

Porter & Mebane, contra.


text:
    16276.
    Downs Motor Company v. Colbert.
   Jenkins, P. J.

1. “It shall be at the option of the plaintiff, in an action to recover personal property, to say -upon the trial thereof whether he will accept an alternative verdict .for the property or its value, or whether he will demand a verdict for the damages alone, or for the property alone and its hire, if any; and it shall be the duty of the court to instruct the jury to render the verdict as the plaintiff may thus elect.” Civil Code (1910), § 5930. But the plaintiff does not have this option “if the defendant at the first term will tender the property to the plaintiff, together with reasonable hire for the same since the conversion, disclaiming all claim of title.” In such a. case the plaintiff is limited to a recovery of the property under the tender; and is chargeable with the cost, unless it be shown that a previous demand for the property had been made and refused. Civil Code (1910)., § 4494. According to the ruling by this court in Woodruff Mach. Mfg. Co. v. Griffin, 17 Ga. App. 529 (2) (87 S. E. 808), and Securities Trust Co. v. Marshall, 30 Ga. App. 379, 382 (8, 9) (118 S. E. 478), while such a tender-will not throw the cost on the plaintiff unless made at the first term as provided by the statute, the defendant is not precluded from thereafter making such tender so as to limit the recovery to the property. But see Holmes v. Langston, 110 Ga. 861, 869 (36 S. E. 251). However this may be, such later tender would in any view have to be made prior to the exercise by the plaintiff of his option at the second term as to the kind of verdict accorded him’ by section 5930 of the Civil Code (1910). In the above-cited cases decided by this court there is nothing to indicate that the suit had thus already in effect been converted into an action for damages prior to the belated tender.

Decided November 16, 1925.

Trover; from city court of Macon—Judge Jordan. January 7, 1925.

Gillon & Ghurchwell, for plaintiff.

B. D. Feagin> for defendant.

2. The amendment, offered and allowed over objections at the second term, purporting to set up a previous oral tender of the property by counsel at tlie first term as being in compliance with section 4493 of the Civil Code, was defective and should have been disallowed. The right and privilege given to the defendant by the provisions of that section contemplates and has reference to a plea of tender filed in response to the plaintiff’s suit, and not to a mere oral offer or proposal to settle the suit by a future delivery of the property involved. Treating the amendment filed at the second term as seeking to set up a previous oral tender, it was ineffective, for the reason just stated, and for the further reason that it does not show that such oral tender included hire or set up any reason why none was required. Treating the amendment as seeking to plead a present tender, it came too late, for the reason indicated in the first division of the syllabus; and was bad for the further reason that no present disclaimer of title was made.

3. The amendment having been improperly allowed, the court erred in granting a nonsuit based on the defense thus interposed, especially where there was evidence going to show that a previous demand upon the defendant had been made and refused.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16283.
    Couch v. National Life & Accident Insurance Co.
   Jenkins, P. J.

1. Where a copy of the application is not attached to a policy of life-insurance, it does not form a part of the contract of insurance, and consequently the statements therein contained are not to be treated as warranties, and their falsity would not avoid the risk as a matter of contract. Civil Code (1910), § 2471.

2. Although the unattached application could not be admitted for the purpose of showing a breach of the contract, since it forms no part of the contract, still, where the defense is that the policy was fraudulently procured by reason of false and fraudulent representations material to the risk, the application is admissible, not as a part of the contract, and not for the purpose of showing that the policy was void under the contract, but to show that it was fraudulently procured. Johnson v. American National L. Ins. Co., 134 Ga. 800 (68 S. E. 731); Southern Life Ins. Co. v. Logan, 9 Ga. App. 503 (71 S. E. 742); Bankers Health & L. Ins. Co. v. Murray, 22 Ga. App. 495 (96 S. E. 347); Life Ins. Co. of Virginia v. Pate, 23 Ga. App. 232 (97 S. E. 874); Metropolitan L. Ins. Co. v. Shaw, 30 Ga. App. 97, 98 (117 S. E. 106). The only alleged error complained of being that the judge erred in thus admitting the application in evidence, the judge of the superior court did not err in overruling the certiorari.

Decided November 16, 1925.

Certiorari; from. Fulton superior court—Judge Humphries. November 17, 1924.

Walden & Hixon, for plaintiff.

Hendrix & Buchanan, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16344.
    Palmer, Phinizy & Connell v. Heinzerling.
   Jenkins, P. J.

1. “Whetlier or not the owner of an automobile is liable for damage caused by it which results from the negligence of the person operating it depends upon whether the person driving it was the agent or servant of the owner, and engaged upon the business of the owner at the time the negligence occurred. If he was such agent and engaged upon such business, the owner is responsible for injuries to persons or property caused by his negligence in operating the automobile. Aliter if he was not such agent and was not engaged upon such business.” Rape v. Barker, 25 Ga. App. 362 (103 S. E. 171).

2. The Civil Code (1910), § 4268 (8), provides that “Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Accordingly, where, under the terms of a special contract of specific employment, the agency was established in order that the agent or servant might take the car to a certain place for the purpose of sale, provided that if he failed to sell it, he would have it back that night before the employer’s garage was closed, time was of the very essence of the conditional employment; and the servant’s authority and the master’s liability were limited accordingly. Emery v. Atlanta Real Estate Exchange, 88 Ga. 321, 326 (14 S. E. 556) ; Morris v. Jackson, 9 Ga. App. 848, 850 (72 S. E. 444) ; Gude v. Bailey, 4 Ga. App. 226 (2) (61 S. E. 135). Such erstwhile master is not liable in damages to a third person for the negligence of the erstwhile servant committed while returning tfie ear two days after the contract of employment expired by its own limitation. Under the circumstances stated, such voluntary and unauthorized retention of the car upon the expiration of the term of employment amounted to a conversion; and while it was incumbent upon the tort-feasor to return the car to its owner (see Cannon v. Goodyear Tire &c. Co., 60 Utah 346, 208 Pac. 519; Cronecker v. Hall, 92 N. J. Law, 450, 105 Atl. 213), in making such restoration he was acting for himself in the performance of a duty imposed by law, and not under a duty emanating from the terminated contract of agency.

Decided November 16, 1925.

Damages; from Biehmond superior court—Judge A. L. Franklin. February 28, 1925.

This was a suit to recover for damage to the person and property of the plaintiff, resulting from the collision of an automobile, driven by an alleged servant of the defendants, with the plaintiff’s automobile on October 18, 1923, about 5:30 p. m., on a public highway between Aiken and Williston, both in South Carolina. In this collision the alleged servant was killed. The defendants demurred, generally and specially; the demurrer was overruled, and exceptions pendente lite were filed. The trial of the'case resulted in a verdict for the plaintiff, of $2,500. It appeared, from undisputed evidence, that Hill, the alleged servant of the defendants at the time and place of the injury, had not previously been in their employment, but came to the defendants, at their place of business in Augusta, Georgia, on the morning of October 16, 1923, and negotiated with them concerning the taking into South Carolina of the car which he was driving at the time of the collision, to sell it to a certain “prospect” of his. A member of the defendant firm testified, without contradiction, that it was agreed that Hill was to take the car upon.the following terms and conditions: “I said he could take this Lexington car over there and try to sell It, provided he would have it back that night before we closed if he didn’t sell it. He said he would do that. He was to have all over $175 he could sell it for. He then took the car.” There was no dispute that after Hill had taken the car under these terms and conditions, he overstayed his time in South Carolina about two days, and that during that time the defendants endeavored, without success, to ascertain his whereabouts; that he was guilty of the negligence charged, and that the plaintiff was injured as set forth. There was evidence for the plaintiff to the effect that on the day preceding the accident Hill made efforts to sell the car to another “prospect.” There was no dispute that on his belated return to Augusta he was following the direct route. The sole question in the case is as to whether the relationship of master and servant between the defendant and Hill terminated before the collision.

3. The case is not one involving the question of a deviation or departure from the business of the master, but is one controlled by the effect of the absolute termination of the servant’s authority under the express terms of his limited and conditional employment. It is a general rule that the master is not liable for the acts of his servant while the servant is stepping aside from the duties of his employment, but is liable if the servant, after stepping aside, has resumed and is again engaged in the conduct of the master’s business. Here, the servant having been engaged to do a particular thing, on condition that it be performed within a particular time, upon his employment becoming terminated no resumption was possible; and it would have taken the consent of both parties to effect a renewal of the relationship. See note in 22 Am. Law. Rep. 1404, 1409; Gude v. Bailey, 4 Ga. App. 226 (2) (61 S. E. 135).

4. Time being of the essence, and being stated as a condition upon which the contract was entered into, and the evidence showing that the contract had been terminated by its own limitation, a verdict for the defendant was demanded.

Judgment reversed.

Stephens and Bell, JJ., concur.

Callaway & Howard, for plaintiffs in error.-

Pierce Brothers, William H. Fleming, contra.


text:
    16347.
    Nix v. Citizens Bank of Moultrie.
   Jenkins, P. J.

1. In order to give a court jurisdiction of an attachment, there must be a sufficient affidavit, a levy and seizure of the property, and a proper entry of the levy and seizure. Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (55 S. E. 251, 115 Am. St. Rep. 108) ; Tuells v. Torras, 113 Ga. 691 (4) (39 S. E. 455) ; New England Mortgage &c. Co. v. Watson, 99 Ga. 733 (2) (27 S. E. 160).

2. In order to support the jurisdiction of a court as to a purchase-money attachment, -the affidavit must describe the property in such way as to .indicate what property is to be levied upon. In the instant case the affidavit for a purchase-money attachment described the property as “45023 feet of pine board, lumber located on the grounds of Corbett Planing Mill in the city of Nashville, Ga.” It not only does not appear that the lumber referred to constituted all of the lumber of like kind and character then and there located, but the affidavit as amended affirmatively shows that such was in fact not the case. Accordingly, such description is insufficient to support a legal levy of the attachment.

3. In the trial of a claim case, where the claimant moved to dismiss the levy in attachment founded on a special judgment in rem, because of such a deficient affidavit, the court was without jurisdiction to permit the affidavit in the other proceeding, between different parties, to be amended. See Brooks v. Winkles, 139 Ga. 732 (78 S. E. 129). But even if sueli an amendment so allowed could be here considered, since the special judgment in the attachment proceeding (there being no general judgment prayed for) was dependent upon a previous valid affidavit, an amendment to the affidavit would not relate back so as to render such a special judgment in rem valid. The jurisdiction of the court in rendering such special judgment in attachment was dependent upon the validity of the proceeding had prior thereto. Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498, 501, 502 (55 S. E. 251, 115 Am. St. Rep. 108).

Decided November 16, 1925.

Levy and claim; from city court of Nashville—Judge W. E. Smith. February 18, 1925.

P. T. Knight, Jeff. 8. Story, for plaintiff.

Dewey Knight, Brie B. Askew, for defendant.

4. Moreover, the judgment dismissing the levy in attachment should be affirmed for the additional reason that the entry of levy does not disclose that the property was levied on as the property of the defendant. Tuells v. Torras, 113 Ga. 691 (39 S. E. 455) ; Sharp v. Hall, 145 Ga. 171 (1) (88 S. E. 929), and cases there cited.

Judgment affirmed.

Stephens and Bell., JJ., concur.


author: Stephens, J.

text:
    16348.
    French Dry-Cleaning Company v. Clay.
    Decided November 16, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. February 5, 1925.
   Stephens, J.

1. Where the issue is one as to the monetary amount of the damage to certain materials, as curtains and draperies, alleged to have been caused by the handling of them while being cleaned, evidence generally that the curtains, the number of which definitely appears, were torn and all ruffles thereon pulled and torn to such an extent that the curtains could not be used, that prior to the damage the value of the curtains was a stated amount, and that afterwards the value of each pair of curtains, in its damaged condition, was a stated amount, furnishes sufficient data from which the damage can be estimated, although there may not be any evidence specifically indicating in' detail the nature and extent of the damage. 2 Sutherland on Damages (4th ed.), 1430; Moss v. Georgia R. Co., 144 Ga. 173 (86 S. E. 550).

2. This being a suit by the owner of the property to recover from the defendant for having negligently caused the damage, and there being evidence authorizing the inference that the defendant caused the damage and was negligent as alleged, and that the plaintiff was damaged in an amount equal to that found for the plaintiff, the verdict was authorized, and the overruling of the defendant’s certiorari was not error.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.

Key, McClelland & McClelland, for plaintiff in error.

Liltle, Powell, Smith & Goldstein, contra.


author: Jenkins, P.- J.

text:
    16357.
    Fennell v. Davis, I. c., for use, etc.
   Jenkins, P.- J.

In this case a counter-affidavit to the foreclosure of a laborer’s lien was filed, and the defendant, without giving a replevy bond as authorized by law, gave a forthcoming bond payable to the sheriff, and under it kept the property levied on. On the return of the execution for trial, the counter-affidavit was dismissed, and, the judgment never having been excepted to, the execution was returned to the levying officer as final process. Upon the failure of the defendant to produce the property at the time and place advertised for the sale, a suit was brought in the superior court for the amount of the judgment against the principal and the surety on the forthcoming bond, and a verdict was directed against the defendants. It was admitted by both defendants in their answers that the property was worth the amount of the execution and costs at the time the bond was given. Evidence was introduced by the plaintiff to effect that the levying officer to whom the bond was made payable had made demand for the property; and that the same was refused. The principal in the bond admitted that such demand had been made on him, and that he did not deliver the property to the officer. This was all the evidence introduced. The principal in the bond brings his exceptions to this court, assigning error on the judgment directing such verdict, on the ground that the court erred in “not permitting the jury to pass on the case, and also that the evidence in the ease did not justify such verdict, and that the verdict is without evidence to support it.” Eeld:

1. “Where in a suit against two codefendants the verdict and judgment are adverse to the defendants, and one of them makes a motion for a new trial, which is overruled, the movant can except to the judgment overruling his motion, and bring the case to the Supreme Court without making the other defendant a party to the bill of exceptions; and a failure to do so will not work a dismissal of the writ of error.” Turner v. Newell, 129 Ga. 89 (58 S. E. 657); Ruffin v. Paris, 75 Ga. 653; Jordan v. Gaulden, 73 Ga. 191; Mackle Construction Co. v. Hart, 27 Ga. App. 405 (1) (108 S. E. 818). Accordingly, the motion to dismiss the bill of exceptions on the ground that another codefendant is not a coplaintiff in error must be overruled.

2. “In a proceeding to foreclose a mortgage on personalty, the fact that a dismissal of the counter-affidavit was caused by the plaintiff, on the ground that the bond given by the defendant and his surety did not meet the statutory requirements, does not preclude the plaintiff from maintaining an action on the bond as a common-law contract, where the defendant has obtained a substantial benefit under the bond by receiving and withholding the property involved.” Paxson v. Planters Warehouse &c. Co., 20 Ga. App. 267 (1) (92 S. E. 1023).

3. While a summary judgment can not be entered on such a forthcoming bond, as in cases involving replevy bonds, or bonds conditioned for the payment of the eventual condemnation money, yet where a suit was brought in the name of the levying officer against the principal and surety on such a bond, and there was no dispute as to any of the essential facts necessary to a recovery, it being admitted by the defendants in their plea that the property was worth the amount of the execution at the time the bond was given, the court did not err in directing a verdict in favor of the plaintiff for the full amount sued for.

Decided November 16, 1925.

Complaint on bond; from Laurens superior court—Judge Camp. January 28, 1925.

W. A. Dampier, for plaintiff in error. S. P. New, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16360.
    Gross, adm’r, v. Higginbotham.
    Decided November 16, 1925.
    Trover; from Camden superior court—Judge Highsmith. January 20, 1925.

      J. H. Thomas, for plaintiff in error.

      James T. Vocelle, P. U. WilTcerson, contra.
   Jenkins, P. J.

“The delivery of personal property into the exclusive possession of'.a child living separate from the parent shall create a presumption of a gift to the child. This presumption may be rebutted by evidence of an actual contract of lending, or from circumstances from which such a contract may be inferred.” Civil Code (1910), § 4150. In the instant trover suit the question of whether the transaction involved amounted to a gift of certain cattle by a parent to the defendant child was a question of fact for the jury (see Respass v. Young, 11 Ga. 114); and the jury, under the charge of the court, which is not excepted to, having found for the defendant, and there being sufficient evidence to sustain the verdict, which is approved by the trial court, this court can not interfere.

Judgment affirmed.

Stephens and Bell, JJ., oonowr.


text:
    16396.
    Strickland v. American National Bank of Nashville.
   Jenkins, P. J.

1. A petition for certiorari from a judgment of a justice’s court is not subject to a motion to dismiss on the ground that the assignment of error is too vague and indefinite, where the petition, in addition to a general assignment of error on the final judgment against the petitioner, contains a proper special assignment of error on the refusal to admit in evidence an original draft and bill of lading which •formed the basis of the petitioner’s claim.

Decided November 16, 1925.

Certiorari; from Bulloch superior court—Judge Strange. February 27, 1925.

Francis B. Hunter, for plaintiff.

Fred. T. Lanier, for defendant.

2. “Where a consignor of goods delivers them to a common carrier to be transported to a distant point, consigned to the order of the shipper, with direction to notify a designated person at the place of delivery, and a bill of lading is duly issued by the carrier to the consignor, and the latter attaches the bill of lading to his draft for the price of the goods on the person to be notified, and delivers it with the bill of lading, which is indorsed in blank, to his bank to be placed to his credit on his general account, and the amount of the deposit, is credited to the depositor’s general account and drawn against by him, the bank acquires title to the goods represented by the bill of lading, which can be asserted against the lien of. a subsequent attachment creditor of the consignor.” Alexander v. First Nat. Bank, 140 Ga. 266 (2) (78 S. E. 1071) ; National Bank of Webb City v. Everett, 136 Ga. 372 (71 S. E. 660) ; American Nat. Bank v. Lee, 124 Ga. 863 (2) (53 S. E. 268). The justice’s court having erred in excluding the original draft and bill of lading, indorsed by the consignor to the claimant bank, the superior court did not err in sustaining its certiorari and entering final judgment in its favor. Under the undisputed evidence the only question presented was one of law as to whether the transfer of the draft and bill of lading to the bank, and the deposit of the proceeds to the credit of the general account of the consignor, invested the bank with such title to the property involved as would support its claim. See Civil Code (1910), § 5201; Levy v. McPhail, 33 Ga. App. 784 (3) (127 S. E. 793).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16415.
    Clark v. Drummond.
   Stephens, J.

1. A statement in the testimony of a witness, to the effect that he reported the existence of a defect in rented premises to the “agents,” and to “them” at the office of a designated firm of renting agents, without designating to what particular person he made such report, is equivalent to a statement that the witness reported the matter to the firm; and despite evidence of employees in the office of the firm that the witness had made no such report to any one in the office, a jury are authorized to find that such report was made to the firm designated.

2. This being a suit against a landlord by the wife of the tenant, to recover for personal injuries alleged to have been received by the plaintiff as a result of the dangerously defective condition of a wooden bridge or walkway extending from the porch of the house upon the rented premises and used by the occupants thereof, through which the plaintiff fell while walking thereon, and it being inferable from the evidence that the plaintiff was injured as alleged, that the defective condition of the premises was dangerous and was unknown to the plaintiff at the time of the injury, that the defendant had prior thereto, through his authorized agent, received notice that.the bridge or walkway was in need of repair, and he had had reasonable time within which to inspect the premises and to make the necessary repairs, the verdict found for the plaintiff was authorized.

Decided November 16, 1925.

Action for damages; from Fulton superior .court—Judge Ellis. March 14, 1925.

A. W. White, J. Mallory Hunt, for plaintiff in error.

Clark Bay, 0. G. Bay, W. F. Moore, contra.

Judgment affirmed.

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


text:
    16420.
    DODGE COUNTY LUMBER CO. v. TUCKER.
    1. Where goods are sold for future delivery, and there is in the contract an express obligation of the buyer to make inspection at the point of shipment, it is the duty of the buyer to make such inspection within a reasonable time after such delivery, no time being stipulated in the contract; and a failure so to do will be a breach of the contract on the part of the buyer. See Smith v. Welb, 20 Ga. App. 313 (4) (93 S. E. 74). If, after such delivery, the seller calls upon the buyer to make such inspection, but it is not done, or at least is not reported, and the buyer keeps promising so to do, the seller has the right to rely upon such promises and to hold the goods for inspection and acceptance by the buyer, even though the goods suffer from deterioration and the damages to the seller for ultimate complete breach of the contract by the buyer are very much augmented by a continuing decline in the market value of the goods.
    2. Where, in such a case, there is ultimately a positive rejection of the goods by the buyer, which is communicated to the seller, and the seller thereupon retains the goods and brings suit for damages, he is entitled to recover the difference between the contract price and the market price at the date of such ultimate rejection, which, under the facts of this ease, was equivalent to the time and place of delivery, upon showing compliance on his part with the terms of the contract, even though there has been a continuous decline in market value since the goods were first delivered for inspection and acceptance, and even though there has been subsequent deterioration in the quality of the goods.
    3. The verdict was supported by the evidence, as showing a substantial compliance by the plaintiff with the terms of the contract. The evidence of the plaintiff as to such compliance was full- and explicit, except that it was somewhat vague and indefinite with respect to the density of the ties. The evidence for the defendant was equally vague and indefinite as to any such shortcoming; and 'there was other evidence showing that the rejected ties were of the same timber as the portion accepted, from which the jury could have found a substantial compliance in this respect. The charge of the court was in conformity with the above-stated principles of law, and was not error' for any reason assigned.
    Decided November 16, 1925.
    Action for breach of contract; from city court of Eastman— Judge 0. J. Eranklin. February 26, 1925.
    The action was for breach of contract for the sale of 1000 cross-ties. The contract was in writing and provided that the ties should be hauled by the seller to the right of way of a named railroad at loading point, and there be stacked in a stated manner; the ties to come up to named specifications attached to the contract. It further provided that “all ties are to be inspected before being loaded.” It was contended by the plaintiff that he made delivery of the ties, coming up to specifications, and stacked them at the designated place and in the required manner; that there was a certain number of ties already at the loading point at the time the contract-was made,—about 300, and that out of this number the defendant accepted and paid for 271 ties under the contract. He further contended that the remainder of the order was there delivered as aforesaid, within the time limit of the contract; that notwithstanding that they were so delivered and the defendant was called upon to inspect and “take up” the remainder of the order, the defendant failed for several months to make any inspection, and continued writing and promising that inspection would be made as early as possible, claiming that it was impossible to make the inspection, due to other demands for inspection and scarcity of inspectors; that this went along until about July following the delivery in December, when the defendant notified the plaintiff that they would not accept the ties, on account of the fact that they were not up to contract specifications and had not been stacked as required. He further contended that during this time the market price declined very materially. The' defendant contended that it should not be required to pay the plaintiff any damages, for the reason that the ties did not come up to contract specifications; that they were never stacked as required by the contract. It further contended that, instead of having failed to make the inspection as contended by the plaintiff, it made inspection very much earlier, in fact shortly after the acceptance of the 271 ties mentioned; that such inspection developed the fact that the ties were not up to the contract, and that the defendant’s rejection of the ties was at once communicated to the plaintiff. The defendant contended that the reason why letters from it to the plaintiff, making frequent promises to him to have inspections made, were written was the fact that its office force had .nothing to do with inspections, did not know that previous inspection and rejection had been made, and sent out such advices in the regular routine of its office business. The case was submitted to a jury, and a verdict for the plaintiff was returned. The defendant made a motion for a new trial, which was overruled, and it excepted.

      J. H. Milner, W. A. Wooten, for plaintiff in error.

      W. 8. Mann, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) Defendant complains that the court misstated the contentions of the plaintiff in giving instructions as to the proper measure of damages. The court charged: “The plaintiff sues for the difference between the contract price and the market price at the time and place of delivery.” Movant says that confusion arose by reason of the fact that the court had just previously stated to the jury the following: “R. L. Tucker brings suit against [the defendant], alleging among other things that the defendant. . . breached its contract with him, whereby he has been damaged in the sum of $447.90.” If we understand this ground of the motion, the suggestion of movant is that, on account of the continuous decline of the market price, the difference would have been less, if reckoned as of the time the ties were first placed on the right of way, than it would have been if reckoned'as of the time when the defendant finally communicated its positive and final rejection of the ties. There was nothing in this charge from which the jury could have conceived that they were being instructed to measure the damages by the difference between the contract price and the market price at any time subsequent to-the date of defendant’s final positive rejection; and if any alleged confusion related to an earlier date than that (as it must necessarily have been, if there was any such confusion), such charge was all the more favorable to the movant, as there was a continuing decline in the market price till the very date of the final rejection.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16428.
    Parks, administrator, et al. v. Savannah Bank & Trust Company.
    Decided November 16, 1925.
    Complaint; from city court of Waycross—Judge Crawley. February 14, 1925.
   Stephens, J.

1. Although by the terms of a promissory note collateral is pledged “to secure the prompt payment of this note or any general balance or other liability due or to become due” to the payee of the note, yet where the note contains a further provision that the payee may “collect, sell or otherwise dispose of the whole or any portion of said collaterals . . upon default by the maker in the payment of any money due hereon or upon nonperformance of this contract in any other respect by the maker, the net proceeds of any such sale or sales shall be applied first to the payment of all indebtedness due hereunder, any surplus remaining to be accounted for to the maker,” the collateral will be regarded as specially pledged, first to the security of the indebtedness represented by the note, and secondarily to other indebtedness of the maker to the payee.

2. - Where such note is further secured by the personal indorsement of sureties, the payee can not, on default as to payment of the note, apply the collateral, to the detriment and loss of the sureties, upon other indebtedness of the maker for which the collateral is only secondarily liable.

3. In a suit against the sureties upon the note, where it appeared that a part of the collateral, consisting of promissory notes belonging to the maker, was collected and the proceeds applied by the payee, without the consent of the sureties, to an indebtedness due to the payee by the maker on which the sureties were in no wise liable, the sureties were entitled to plead as a payment upon the note sued on the amount of the collateral so applied upon the other indebtedness.

4. The judgment for the plaintiff for the full amount of the note sued upon is reversed as to all the plaintiffs in error except N. McQueen, represented by B. 6. Parks, administrator. As to the latter party the judgment is affirmed, since counsel for plaintiffs in error concede that since that party was a surety upon the other indebtedness by the maker to the payee of the note sued upon, on which the payee had applied the collateral, such party suffered no injury or loss thereby.

Judgment affirmed as to B. G. Paries, administrator, and reversed as to the other plaintiffs in error.

Jenleins, P. J., and Bell, J., concur.

M. Price, O. G. Darsey, for plaintiffs in error.

W. L. Clay, Wilson, Bennett & Pedrick, contra.


author: Bell, J.

text:
    16228.
    Atlanta Life Insurance Co. v. Jackson.
   Bell, J.

1. While the bill of exceptions alleges that certain exceptions pendente lite were duly tendered and certified, and describes them by stating the nature of the assignments made therein, there is no assignment of error in thé final bill of exceptions, either upon the exceptions pendente lite or' upon the rulings therein excepted to. No question, therefore, is presented for decision under the exceptions pendente lite. Alexander v. Chipstead, 152 Ga. 851 (1) (111 S. E. 552) ; House v. American Discount Co., 31 Ga. App. 396 (1) (120 S. E. 701).

2. An assignment of error upon the admission of evidence must show not only in what respects the evidence was objectionable, but that the objection was urged at the time of its admission. It is not sufficient in a ground of a motion for a new trial to state that the court erred in admitting certain evidence “over timely objection,” and then; after setting out the evidence admitted, to allege that the admission of the evidence was error for certain specified reasons, where it is not further alleged in the motion that the evidence was objected to for such reasons at the time of its admission. Henslee v. Harper, 148 Ga. 621 (1) (97 S. E. 667); Pelham & Havana R. Co. v. Walker, 27 Ga. App. 398 (2) (108 S. E. 814).

3. “A plaintiff must recover upon the cause of action as laid in the petition; and a verdict in his favor is illegal when the evidence fails to support the cause declared on, even though a different cause of action may appear from testimony admitted without objection. But evidence, admitted without objection, which supports what is in fact the same cause of action, although it might have been excluded on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could by amendment have been so conformed to the proof as to render such testimony relevant.” Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579). Under this rule there was no fatal variance between the allegata and the probata in this ease.

4. The evidence did not demand a finding that the insurance policy sued on had lapsed at the death of the insured. A verdict in the plaintiff’s favor for some amount was, therefore, authorized.

5. But it appearing, without dispute, that the policy, which was dated August 21, 1922, and the face amount of which was only $146, contained a provision that “one fourth only of the above sum is payable if death occurs within six calendar months from date of policy; one half if death occurs after six months from date of policy; the full amount after one year,” and the insured having died within less than one year from the date of the policy, to wit, on July 15, 1923, the special ground of the defendant’s motion for a new trial complaining that the verdict was excessive, should have been sustained.

6. Where the amount of the insurer’s liability was substantially less than the amount claimed in the proofs of loss and sued for, a verdict for attorney’s fees and damages was unauthorized. Queen Insurance Co. v. Peters, 10 Ga. App. 289 (4) (73 S. E. 536).

Decided November 17, 1925.

Complaint; from Bichmond superior court—Judge A. L. Franklin. December 17, 1924.

8am. F. Oarlington, for plaintiff in error.

John J. Jones, contra.

7. But the judgment in the plaintiff’s favor being erroneous only in part, and the extent of the error being ascertainable and certain, the judgment overruling the defendant’s motion for a new trial will be affirmed, provided the plaintiff, at the time the remittitur from this court is made the judgment of the trial court, will strike or write off one half of the recovery for principal and interest and the entire recovery for attorney’s fees and damages; otherwise the judgment is reversed.

Judgment affirmed on condition.

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


text:
    16395.
    MANGET v. CARLTON.
    1. An agreement between two persons to enter into a joint adventure, partaking of the nature of a partnership, for the purpose of dealing or trading in lands'for a profit, into which one of them is to put property and to which the other is to apply his skill or service, and which does not contemplate a transfer of title from one of the parties to the other or that either shall become the other’s vendor or purchaser, is not
    . within the statute of frauds, notwithstanding it may occur or even be intended that as an incident of the enterprise one of the parties may take and hold title to lands for the benefit of both.
    2. Where M., an owner of property, made an agreement with 0., “offering” the property to 0. “to trade or exchange” and stipulating that C. ■would place the title in M. to any property traded for, and would pay M. for his original property “from first funds received,” and that “after this is done,” M. and 0. are “to have equal rights and share equally in the property” acquired by the exchange, “dividing all profits from sale of same,” the mere fact that 0., in pursuance of the agreement, effected an exchange of the original property for other property of a greater value, would not entitle 0. to recover a money judgment against M. for any part of the difference between the values.
    3. An agreement by one of the parties to a controversy to accept a certain sum of money in settlement, wdthout any promise by the other to pay it, does not render the latter'liable therefor, although the agreement is in writing and signed by both of the parties.
    Decided November 17, 1925.
    Complaint; from Fulton superior court—Judge Bell. February 20, 1925.

      John A. Carlton filed suit> in two counts, against John A. Manget. The first count alleged the making of the following contract :
    “Atlanta, Ga., January 25, 1922.
    “This contract entered into between John A. Carlton and John Manget is as follows: Manget oilers the Avalon Apartments to Carlton to trade on following basis. Manget to put in Avalon at $175,000.00 net, purchaser to assume outstanding paper against same. Carlton to trade same for farm and town property, keeping title to-same in Manget’s name, and to pay Manget for his equity in Avalon from first funds received. After this is done, then Carlton and Manget to have equal rights and share equally in property traded for Avalon, dividing all profits from sale of same.
    [Signed] “John A. Carlton, [Signed] “John A. Manget.”
    “Witness:
    [Signed] “A. T. McNeily,
    [Signed and sealed] “Joe S. Wilson, N. P. State at large.”
    It was alleged: that plaintiff worked up a trade of properties between Manget and one J. C. Pitch, wherein Manget exchanged Avalon Apartments for the “2800 acre farm in Wayne county, Georgia, known as the Pitch farm and all live stock, tools, machinery, farm equipment, and feed stuff on said farm, which consisted of some improved property in the town of Odom, Georgia, and land lots number 85, 86, 87, 88, 70, 71, 72, 122 and 124, in Wayne county, Georgia, and the live stock, feedstuff, machinery, etc., more fully described in the deed from J. C. Pitch to John A. Manget which was executed and delivered in the early spring of 1922;” that each of the parties to such trade assumed the outstanding encumbrance on the property thereby acquired by him, or, in other words, that the trade was equity for equity; that Manget’s equity in Avalon Apartments was $37,000.00, and that Pitch’s equity in the other property was $125,000.00, so that Manget gained by the deal the equivalent of $88,000.00; “that your petitioner’s interest in said property under the above pleaded agreement between plaintiff and defendant was $44,000.00, and defendant has at all times failed and refused to turn over to petitioner said $44,000.00, or any part thereof, and is now indebted to your petitioner in the sum of $44,000.00, for which sum he-brings this action against defendant and prays Judgment against him.”

      The second count alleged substantially the foregoing and also that on a controversy arising between the plaintiff and the defendant with respect to the plaintiff’s interest in the “said Ritch farm, or Wayne county property,” they entered into another agreement as follows:
    “Atlanta, Ga., March 16, 1922.

      “Contract between Manget & Carlton.
    “In consideration of sale or exchange of farm in Wayne county Carlton agrees to accept fifteen notes of $1,000.00 each, payable on 1st Oct'. 1922, and one payable each month thereafter • on the first day, in full settlement of all interest he has and all obligations in regard to trade.
    [Signed] “John A. Manget,
    [Signed] “John A. Carlton.”
    “Witness: [Signed] EL El. Wenck.”
    It is alleged “that defendant never did fill out, sign, and deliver said series of notes to plaintiff though he agreed in writing to do so,” nor has he paid any ¡Dart of the money due. The prayer was to recover $15,000 and- interest.
    The defendant interposed a demurrer, the grounds of which were that no cause of action was set forth, and that the agreements relied on were unenforceable under the statute of frauds. The demurrer was overruled and the defendant excepted.

      E. B. Craighead, W. C. Henson, for plaintiff in error.

      Hill & Adams, contra.
   Bell, J.

(After stating the foregoing facts.)

It is contended that the plaintiff’s claim of a right in the Ritch farm is necessarily founded upon a contract for the sale of an interest in land within the meaning of the statute of frauds, and that the writing as to this property was insufficient to satisfy the statute. Whether, if a writing was necessary at all, the language in the agreement referring to the property thereafter to be acquired as “the property traded for Avalon” would furnish a sufficient key for its identification, and whether, if it would not, there was yet such performance as would make an exception to the statute if it would otherwise be applicable, are questions which we will pass over without decision, being of the opinion, as we are, that the agreement was not one falling within the operation of the statute. It-appears that the parties made a contract to enter into a joint adventure, if not a partnership, for the purpose of dealing or trading in lands for profit, into which one of them was to put property and the other was to put his skill or service, and that the contract did not contemplate a transfer of title from one of the parties to the other, or that either should become the other’s vendor or purchaser.

It is generally held that the statute of frauds has no application to an agreement of such character. Lane v. Lodge, 139 Ga. 93 (76 S. E. 874); Black v. Black, 15. Ga. 445 (3); Bates v. Babcock, 95 Cal. 479 (30 Pac. 605, 16 L. R. A. 745, 29 Am. St. Rep. 133); Hoge v. George, 27 Wyo. 423 (200 Pac. 96, 18 L. R. A. 469, 200 Pac. 96; 27 C. J. 221, § 207.

This is true notwithstanding it may occur, or even be intended, that, as an incident of the enterprise, one of the parties will take and hold title to lands for the benefit of both. In such case the title of the holder is subject to an implied trust in the other party’s favor to the extent of the other’s interest. Civil Code (1910), § 3739; Sloan v. Haley, 18 Ga. App. 631 (90 S. E. 74); Swift v. Nevius, 138 Ga. 229 (2) (75 S. E. 8); Jenkins v. Georgia Investment Co., 149 Ga. 475 (1) (100 S. E. 635); Pound v. Smith, 146 Ga. 431 (4) (91 S. E. 405); Wilder v. Wilder, 138 Ga. 573 (1) (75 S. E. 654).

In this division the discussion is confined to the first count, and the word “petition” is limited accordingly. While the transaction in question was unaffected by the statute of frauds, we do not think that the petition was sufficient to withstand the demurrer. Under the terms of the original agreement, the “first funds received” were to be used by Carlton in paying Manget for his equity in “Avalon,” and it was not until payment had been made therefor in full that the parties were to “have equal rights and share equally in the property traded for Avalon, dividing all profits from sale of same.” So long as Manget acted properly and in good faith, Carlton would have no claim against him for a division of potential profits, until he, Manget, was paid for the property that he had put into the venture. It is noticed, too, that the petition alleged that the value of the Ritch property was $150,000, subject to a lien for $25,000, which Manget assumed, and it might possibly be true that this incumbrance should be removed, before there would be any “first funds” which could be paid on the equity of Manget in "Avalon.” But as to this it is unnecessary to express any opinion at the present time. Even if Manget were fully reimbursed, the mere fact that the value of the property in which he and Carlton had then become jointly and equally interested was of a certain amount would not, under the terms of their agreement, render him liable to Carlton for the value of Carlton’s interest. Since the petition fails to allege that Manget had been paid for his equity in Avalon Apartments, or that the property had been sold, or that Manget had in any way violated the terms of the agreement, it did not state a cause of action. As already indicated, the fact that the plaintiff was instrumental in bringing about an exchange of the property belonging to the defendant for other property of a greater value would not, without more, entitle him to recover a money judgment for any part of the difference. This is all the petition shows. If the Hitch property has not been sold and Manget has committed no breach of his contract, he, Manget, is not subject to be sued for the profits which the other party might enjoy on a final consummation of the project. Whether, if he sought to exclude Carlton without a sale, Carlton could have a remedy in equity to establish his interest und to have a sale made and the proceeds applied as provided in the contract, and whether, if so, such would be the only remedy, are questions which merely suggest themselves as. problems which might possibly arise in some case as a result of a contract like that under consideration. See cases cited lastly in the preceding division and those collected in note in 18 A. L. R. 498 et seq. If Manget has sold the property, the plaintiff could, no doubt, recover his share of the profits, if any, to be ascertained according to the terms of the agreement, and if Manget was guilty of unfair dealing in the sale, the plaintiff’s claim should likely be based on actual values and not on the price received; but again, neither of these cases is made by the petition, and it is useless to imagine what facts would entitle the plaintiff to recover. Suffice it to say that the petition fails to show the defendant’s violation of any duty to the plaintiff whatsoever, and therefore does not set forth a cause of action.

The second count is fatally defective because the instrument declared on contains no promise on the-part of the defendant. It shows that Carlton agreed to accept notes in the aggregate of $15,000 in settlement of the controversy, but not that Manget agreed or promised to give them or to pay this or any other amount. The undertaking was purely unilateral, purporting only to' bind Carlton, notwithstanding it was signed by both parties. Payment can not be exacted of Manget merely upon Carlton’s promise to accept it. Civil Code (1910), § 4230; Cooley v. Moss, 123 Ga. 707 (2) (51 S. E. 625); Simpson v. Sanders, 130 Ga. 265 (1) (60 S. E. 541).

Each count of the petition was subject to general demurrer.

Judgment reversed.

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


text:
    16573.
    Allison v. Nunn.
    Decided November 17, 1925.
    Attachment; from city court of Swainsboro—Judge Herrington. April 28, 1925.

      Arthur W. Jordan, for plaintiff in error.

      T. N. Brown, contra.
   Bell, J.

If, as claimed by tbe vendee, tbe vendor, in the sale of all of the timber on a certain tract of land, by the misrepresentations of her husband, as her authorized agent, as to the location of one of the boundaries of the tract, and thus as to the extent and contents thereof, was enabled to sell and did sell to the vendee, at a fixed price, a tract of timber which was materially smaller than the vendee would have obtained in the transaction if the representations had been true, the vendee was defrauded in so far as the agreed purchase-money represented the price of the deficiency, whether the vendor or her husband knew the representations were false or not, provided they were accepted and relied upon as true by the vendee in making the purchase.

In the present action by the vendor for the recovery of the unpaid balance of the purchase price, to which the vendee pleaded loss and damage as a result of the misrepresentations of the plaintiff's husband and agent, as to the location of one of the ■ boundaries, there was enough evidence, to have authorized a finding that the plaintiff’s husband and agent impliedly professed to know the location of the boundary in question and undertook to point it out, and that the vendee justifiably acted and relied upon the information thus furnished to him in making the purchase, to his loss and damage in some amount. It was therefore error to direct a verdict in favor of the plaintiff for the amount sued for. Civil Code (1910), § 4623; Walters v. Eaves, 105 Ga. 584 (2) (32 S. E. 609) ; Smith v. Kirkpatrick, 79 Ga. 410 (2) (7 S. E. 258) ; Folsom v. Howell, 94 Ga. 112 (2) (21 S. E. 136) ; Brannen v. Brannen, 135 Ga. 590 (1) (69 S. E. 1079); Edenfield v. Rountree, 33 Ga. App. 444 (126 S. E. 731).

Judgment reversed.

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