author: Jenkins, P. J. Jenkins, P. J.'

text:
    19071.
    CITY NATIONAL BANK AND TRUST COMPANY OF MIAMI v. ORR et al.

   Jenkins, P. J.

1. The general rule governing broker’s commissions is that they “are earned when, during the agency, he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner.” Civil Code (1910); § 3587. In the absence of an agreement to the contrary, the owner is not deprived of the right to sell the property himself, and therefore ordinarily does not become liable to the broker for commissions upon a sale negotiated by himself. But since the utmost good faith must be exercised between the owner and the broker (Moore v. May, 10 Ga. App. 198, 73 S. E. 29; Washington v. Jordan, 28 Ga. App. 18 (3), 109 S. E. 923), the owner can not, with knowledge of negotiations pending between the broker and the prospective purchaser, defeat the right of the agent to commissions by interfering with and himself closing a sale of which the agent was the procuring cause; nor can he defeat the broker’s claim for commissions by resorting to any subterfuge, such as a pretended conveyance to' a third person, while still retaining control of the property, in order that the title might be acquired by the customer procured by the broker through such third person. 9 C. J. 620.

2. “Where property has been listed for sale with two or more real-estate brokers, and one of them, with the knowledge of the owner, has interested a customer in the purchase, and, while negotiations with the broker are still pending, the owner proceeds to close the sale with the same customer through another broker, the latter being the first to present the customer as ready, able, and willing to buy, and actually offering to buy, at the price and on the terms stipulated by the owner; and where the owner, pending such negotiations, has committed no act of bad faith,-the efforts of the broker thus actually closing the trade can not be regarded, as a matter of law, as the procuring cause of the sale, so as to exclude the claim of the other broker against the owner for commissions.” Under such circumstances, it becomes a question of fact as to which broker was the procuring cause of the sale. Gresham v. Lee, 152 Ga. 829 (111 S. E. 404).

3. In a case where there was proof in behalf of the broker that he had interested the president and the secretary of a trust corporation in the purchase of a lease listed with him for sale, and where there was proof in behalf of the owner of the lease going to show that the owner had transferred the lease to another and different person, who thereafter was induced by the owner to relinquish, for a valuable consideration, his rights and interest in it in favor of a mortgage company which had for its officers the same persons that were officers of the trust corporation, including the president and the secretary with whom the broker had dealt in his negotiations with the trust company for the sale of the lease, and where there was evidence in behalf of the broker tending to indicate that the intervening transfer by the owner to the person referred to was not bona fide, but was made pending the negotiations between the broker and his prospective purchaser, and with knowledge by the owner of such negotiations, and that the intervening transaction was a mere subterfuge by which the owner sought to take advantage of the efforts of the broker in finding a customer, without being liable for commissions, the question for the jury to determine, as they were in fact instructed by the court to do, was whether or not the broker was the procuring cause of the sale, on the theory that the owner could not be permitted to appropriate the broker’s services in interesting the two officers of the trust company, by itself effecting a sale through the same persons, as identical officers of the mortgage company, still, before the jury would be authorized to find that the broker was the procuring cause of the sale, they would have to determine that the intervening transfer by the owner to the outside individual was not a bona fide transaction such as would terminate the broker’s agency and preclude any right on his part to commissions. Consequently, it amounted to an expression of opinion by the court to charge the rule in the Gresham case, quoted in paragraph 2 above, without making it clear that the rule thus stated would apply only in the event that the life of the broker’s contract of listment had not been terminated by a previous bona fide sale by the owner to a different person.

4. The charge of the court in the language of the code, setting forth the general rule governing broker’s commissions, as stated at the beginning of the first division of the syllabus, was not applicable in and of itself to the contentions and evidence in the case, since the broker did not seek to prove that he was entitled to commissions by virtue of having procured a purchaser ready, willing, and able to buy, and who in fact offered to buy on the terms listed, but his case is grounded, by his evidence, upon the conduct of the owner in interfering with a purchaser interested by him and closing a sale of which the broker was the procuring cause. But since the court charged this as the real contention of the broker, the giving of the code-section did not operate to mislead, but only made more clear the law governing the point at issue between the parties. The charge in other respects is clear, correct, and fair, and is not subject to any of the remaining exceptions taken thereto.

5. The contention of the plaintiff in error that the verdict should not be allowed to stand, in that there is a fatal variance between the allegations of the broker’s pleadings claiming compliance with the code-section governing broker’s commissions and his proof seeking to show interference by the owner with the prospective purchaser procured by the broker, is not well founded, since the evidence on which he seeks to sustain the verdict in his favor was admitted without objection, and his pleadings might have been amended so as to authorize such proof. Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579).

Decided January 22, 1929.

Rehearing denied February 22, 1929.

TF. A. Slaton, for plaintiff. B. W. Forlson, for defendants.

6. The testimony of the broker recounting a conversation between himself and the person who was president of the trust company and of the mortgage company, had subsequent to the final transfer of the property, in which the latter stated to the broker that the owner was due the broker commissions on the sale as made to the mortgage company, was inadmissble, and the objection to such testimony should*have been sustained. Judgment reversed.

Stephens and Bell, JJ., eoneur.

ON MOTION ROE REHEARING.

Jenkins, P. J.'

This was a suit by the bank against the broker on a promissory note, to which suit the broker filed a counter-claim for the real-estate commissions dealt with in the foregoing decision. The case went to trial on the pleadings made by the suit on the note and the counter-claim, without it being incumbent upon the bank to plead to the defense made by the counter-claim. The court below found in favor of the broker on his counter-claim. Counsel for the defendant in error (the broker) filed in this court a motion for a rehearing, in which he contended that our ruling to the effect that the court erred in giving in charge to the jury the rule of law laid down by the Supreme Court in the Gresham case, supra, “without making it clear that the rule thus stated would only have application in the event the life of the broker’s contract of listment had not been terminated by a previous bona fide sale by the owner to a different person,” brought into the case a theory of defense to the broker’s claim for commissions which the record does not present, either by the pleadings, the evidence, or the assignments of error. It is true that the pleadings by the bank consisted merely of its petition on a promissory note, since it was not required to make, and did not file, any written defense to the defendant’s counter-claim. IJnder .our practice, a plaintiff is not required to file a replication to the answer, but is permitted, without further pleading, to introduce proof either in denial or in avoidance of the matters set up as a defense. Civil Code (1910), §§ 5573, 5651; Henry v. Peters, 5 Ga. 311; Tifton &c. Ry Co. v. Butler, 4 Ga. App. 191, 195 (60 S. E. 1087). It is also true that the only witness offered by the bank testified that he did not know the broker in the lease transactiou until after the consummation of the intervening lease; but, so far as we are able to ascertain from the record, there was no testimony in behalf of the bank that actually disputed the broker’s evidence establishing the original contract of listment, and the bank did introduce evidence for the purpose of showing the intervening sale referred to in the decision, and the broker did introduce evidence tending to indicate that the transaction was not bona fide, but a fraudulent subterfuge, by which the bank sought to take advantage of the broker’s efforts in interesting the persons who finally consummated the purchase of the lease. Accordingly, it appears from the evidence disclosed by the record that one of the main contested issues related to the existence and validity of the intervening sale; and consequently the exception taken to the charge indicated in the third division of the decision, that it amounted to an expression of opinion upon one of the disputed issues, is well taken, since a bona fide intervening sale, if established, would have amounted to a complete defense to the broker’s claim, and the charge given must, therefore, have assumed that there was a failure to sustain this defense. Rehearing denied.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    19088.
    Flanigan v. Hutchins.
   Jenkins, P. J.

1. “If the defendant has not been served, and does not appear, he may take advantage of the defect by affidavit of illegality; but if he has had his day in court, he can not go behind the judgment by an affidavit of illegality.” Civil Code (1910), § 5311. Consequently, a levy under an execution can not be arrested by a statutory affidavit of illegality which seeks to set up that the judgment on which the execution was issued was obtained during the absence of the defendant, and while absent by permission of the court. That the present proceeding is not one in equity has been determined by the Supreme Court in transferring the case from that court to this court.

2. A bill of exceptions to a judgment of the superior court denying an injunction does not operate as a supersedeas. A supersedeas in such case results only when the judge has passed an order prescribing the terms upon which the supersedeas will be granted, and the order has been complied with. Civil Code (1910), § 5502; Ryan v. Kingsbery, 88 Ga. 361 (14 S. E. 596) ; Stokes v. Stokes, 126 Ga. 804 (55 S. E. 1023). Consequently, for this, if for no other reason, the ground of an affidavit of illegality which sets forth that after the levy the affiant’s wife had filed an equitable claim to the property levied upon, and sought to enjoin the sale under the levy; that an injunction had been denied by the superior court, and the affiant’s wife had “filed her bill of exceptions and carried the case to the Supreme Court of Georgia, which bill of exceptions operated as a supersedeas to the enforcement of said levy;” that the judgment of the superior court was affirmed by the Supreme Court, but that the plaintiff was proceeding under the previous levy to have the land advertised for sale before the remittitur from the Supreme Court was filed in the office of the clerk of the superior court, was without merit.

Decided January 22, 1929.

M. D. Irwin, O. A. Nix, for plaintiff in error.

W. L. Nix, N. L. Hutchins, contra.

3. A misstatement of date in an execution is immaterial so long as the execution is otherwise connected with the judgment. Ward v. Miller, 143 Ga. 164 (84 S. E. 480). Accordingly, the ground of the affidavit of illegality which alleged that the execution showed that the judgment upon which it was based was rendered March 9, 1924, which was Sunday, but which failed to allege that the judgment was in fact rendered on Sunday, was without merit.

4. Under the foregoing rulings, the court did not err in dismissing the affidavit of illegality on demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    19089.
    Long v. Lynch Enterprise Finance Corporation.
   Stephens, J.

1. This being a suit by the trustee in bankruptcy of a corporation, against a stockholder thereof, to recover from the stockholder money paid by the corporation to the stockholder for the purchase of the latter’s stock in the corporation, and it appearing, from the allegations in the petition, that the entire indebtedness of the corporation to all the existing creditors represented by the trustee in bankruptcy arose after the purchase by the corporation, of its stock as indicated, and there being nothing alleged in the petition tending to show that the purchase was made with the purpose and intent of defrauding the creditors who became creditors only after the purchase, the court, upon the authority of Cohen v. George, 149 Ga. 701 (101 S. E. 803), properly sustained the demurrer to the petition. Eor a statement of the allegations of the petition, see the decision in this case in 166 Ga. 497 (143 S. E. 579), in which the Supreme Court held that it had no jurisdiction to pass upon the questions raised by the demurrer, and transferred the case to the Court of Appeals.

2. The court in passing upon the merits of a case before it for consideration tacitly holds that it has jurisdiction to determine the matters decided, and this tacit holding necessarily stands as an adjudication of the court’s jurisdiction in that case, until reversed or set aside in some proceeding in the nature of either a rehearing of, or an appeal from, that decision. Where the Supreme Court assumes jurisdiction of a case before it, and in passing upon the merits announces a rule applicable thereto, the ruling is no less an authoritative precedent because it may appear from an adjudication of that court in another case that it did not in fact have jurisdiction to pass upon the merits of the former case. Although it may appear from the ruling announced in Long v. Lynch &c. Corp., 166 Ga. 497 (143 S. E. 579), that the Supreme Court did not have jurisdiction to entertain the case of Cohen v. George, supra, the ruling announced in Cohen v. George is nevertheless authoritative as a pronouncement by the Supreme Court in a ease in which it had jurisdiction by virtue of its tacit ruling to that effect, unreversed.

Decided January 22, 1929.

W. B. Cody, Herman Heyman, W. D. Thomson, for plaintiff.

Jones, Evins, Moore & Powers, for defendant.

3. It not appearing to this court that the ruling laid down in Cohen v. George, supra, is in conflict with any former or subsequent decision of the Supreme Court, and it being authoritative on the questions here presented, this court follows that ruling, and overrules the motion made by counsel for the plaintiff in error, to certify to the Supreme Court for determination the questions here presented.

Judgment affirmed.

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


text:
    19096.
    O'Farrell v. Templeman.
   Stephens, J.

It appearing that no bona fide effort has been made to brief the evidence in this case by reducing it to narrative form, as is required before this court can be called upon to consider the evidence, but what purports to be the brief of evidence being questions and answers, matter excluded from evidence, objections as to the admissibility of testimony, and rulings of the court thereon, and interpolations and colloquies by counsel, this court will not consider the evidence. Civil Code, § 6093 (1910); Roberts v. Rowell, 152 Ga. 97 (108 S. E. 466); Jackson v. Dorsey, 26 Ga. App. 372 (106 S. E. 210).

Judgment affirmed.

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

ON MOTION FOR REHEARING.

2. In a suit to recover damages for injuries to the plaintiff, alleged to have been received as the result of a collision between an automobile which he was driving and an automobile belonging to the defendant, at the intersection of two streets, a charge by the court, submitting as applicable to the case ordinances of the city in which the collision occurred, which provide that, at intersections of streets, vehicle drivers on the right of other vehicles shall have the right of way, and that drivers failing to recognize this right of way are guilty of reckless driving, and that the driver of a vehicle, when making a left turn into an intersecting street, shall have the vehicle under full control and shall not turn until the vehicle shall have passed beyond the center of the intersecting street, was not error upon the ground that the ordinances were not applicable and imposed no duty upon the plaintiff where the approaching automobile operated by the defendant was itself being operated in violation of an ordinance of the city requiring it to be equipped with lights. The failure of the defendant to comply with a law made for the plaintiff’s protection does not excuse the plaintiff’s violation of a law made for the defendant’s protection.

Decided January 22, 1929.

Rehearing denied March 2, 1929.

G. Seals Aiken, for plaintiff. McDaniel & Neely, for defendant.

3. No error of law appears elsewhere from any of the grounds of the motion for a new trial which can be considered and passed upon without reference to the evidence.

4. A purported copy of the brief of evidence, prepared by counsel for the plaintiff in error and presented to this court with a motion for a rehearing and purporting to contain all the evidence as it appears of record, and omitting the objectionable matter as it appears of record, such as the objections as to the admissibility of testimony, and the rulings of the court thereon, interpolations and colloquies by counsel, etc., but which is not agreed to by opposing counsel, even if their consent could give it validity, can not be considered.

Rehearing denied.

Jenkins, P. J.¡ and Bell, J-, concur.


text:
    19140.
    London Guarantee & Accident Company et al. v. Cox.
    Decided January 22, 1929.

      Bryan & Middlebrooks, Ghmncey Middlebrooks, O. W. Russell, for plaintiffs in error.
   Jenkins, P. J.

The evidence of the claimant and of the doctor who examined him two days after the alleged injury fully authorized the industrial commission to find that the claimant suffered hernia on the right side on account of an accident arising out of and in the course of his employment; and the judge of the superior court did not err in sustaining the findings of the commission.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18181.
    Greeson v. Bailey. Thomas v. Bailey.
    Decided February 6, 1929.

      M. B. Súbanles, for plaintiffs. Slalon S Hoplcins, for defendant.
    18183.
   Stephens, J.

It appearing, from tlie answer made by the Supreme Court to the questions certified to it in these two cases (167 Ga. 638, 146 S. E. 490), that under the allegations in each petition as amended, neither plaintiff had a cause of action, the judge of the superior court, in each case, properly sustained the demurrer to the petition.

Judgment in each case affirmed.

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


text:
    18779.
    Gardner v. Smith.
   Stephens, J.

1. Notwithstanding a landlord, after his cropper has, on account of sickness, been rendered unable to malee the crop and bring it to-maturity, takes from the cropper a mule, without which the cropper, even if able to work, could not have made a crop, the failure of the cropper to complete his contract and make a crop is due to the cropper’s own inability caused by sickness, and not to the act of the landlord in depriving the cropper of the use of the mule. This is true notwithstanding, after the landlord had taken the mule, the cropper, through the assistance of neighbors, might have been able to work the crop, where this fact was not known to the landlord, and the cropper made no offer to perform his contract through the assistance of his neighbors or otherwise.

2. A cropper, being a laborer working for wages to be paid out of the crop produced by his labor, can not foreclose a laborer’s lien upon the property of the landlord, where the cropper has not- completed his contract, and where his failure to complete his contract is not caused by the landlord.

Decided February 6, 1929.

W. H. Hammond, for plaintiff in error. J. B. Lockhart, contra.

3. This being a proceeding brought by the cropper to foreclose a special lien claimed by him upon part of the crop produced by him pursuant to the contract for work done by the cropper in partial performance of his contract, and it appearing, from undisputed evidence, that the cropper did not complete his contract by cultivating the crop and bringing it to maturity, and that the cropper’s failure so to do was due to his own misfortune in being unable to work, as a result of sickness, and not to any act of the landlord, the cropper failed to establish any right to a lien for labor already performed, and the verdict found in his favor, establishing a lien in the amount found against the landlord, was without evidence to support it and contrary to law. Whatever right the cropper may have as against the landlord to recover for services rendered, the cropper, under the undisputed facts as disclosed by the record as here presented, is not entitled to enforce that right by the statutory proceeding to foreclose a laborer’s lien. See, in this connection, section 3339 of the Civil Code (1910) ; Argo v. Fields, 112 Ga. 677 (37 S. E. 995) ; Haralson v. Speer, 1 Ga. App. 573 (58 S. E. 142).

4. It appearing from the plaintiff’s own testimony, which must be taken most strongly against him, that, under an application of the above rulings, he is not as a matter of law entitled to the lien claimed, the ruling here made finally disposes of the case, and it is unnecessary to pass upon the special grounds of the defendant’s motion for a new trial or the defendant’s exceptions to the judgment overruling the demurrer to the plaintiff’s affidavit which is the basis of the foreclosure proceeding.

Judgment reversed.

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


text:
    18838.
    Barber v. City of Rome
   Stephens, J.

1. Where a petition seeks to renew a former suit within' six months of the dismissal of the suit, which would otherwise be barred by the statute of limitations, as provided in §§ 4381, 5626 of the Civil Code of 1910, it must appear from the renewal petition that the new suit is substantially the same cause of action as that of the former ' suit. Where it appears from the renewal petition that the former suit was brought in another court from that in which the renewal suit is brought, and where the renewal petition fails to contain allegations showing that it is brought on substantially the same cause of action as that in the former suit, either by containing a copy of the petition in the former suit or alleging its substance, and the renewal petition is brought beyond the period of the statute of limitations, the petition is subject to demurrer upon these grounds. Atlanta, Knoxville & Northern Railway Co. v. Wilson, 119 Ga. 781 (47 S. E. 366).

Decided February 6, 1929.

Henry Walker, for plaintiff. Paul H. Doyal, for defendant.

2. An allegation in the renewal petition to the effect that prior to the institution of the former suit, which was against a municipal corporation, the plaintiff had served upon the defendant a written notice of claim, as provided by section 910 of the Political Code of 1910, in .which the plaintiff claimed damages arising out of the same cause of action as that sued on in the renewal petition, is not an allegation as to the cause of action sued on in the former suit.

3. The judge of one court can not take judicial notice of the contents of the records of another court. Ellis v. Mills, 99 Ga. 490 (2) (27 S. E. 740). Where the renewal suit is brought in'the city court, and it appears from the petition that the suit sought to be renewed was brought in the superior court, the judge of the city court can not, on demurrer to the petition upon the ground that it fails to contain allegations showing the cause of action sued on in the former suit, take notice of the allegations in the petition in the former suit.

4. The renewal petition in this case was properly dismissed on demurrer.

Judgment affirmed.

Jenkins, P. J., amd Bell, J., concur.


text:
    18995.
    KIMBELL v. JACKSON NATIONAL BANK.
    Decided February 6, 1929.

      O. L. Redman, for plaintiff in error. W. E. Walkins, contra.
   Jenkins, P. J.

This was a suit by the Jackson National Bank against Kimbell as surety on a note made to the bank by O. J. Martin and-T. F. Martin. O. J. Martin died after the execution of the note, and Kimbell was administrator on his estate at the time he indorsed the instrument. The defendant pleaded that his indorsement as secured lacked consideration. On the trial of the case the judge directed a verdict in favor of the plaintiff. There appears to be a conflict in the testimony between the cashier of the plaintiff bank and the defendant. According to the testimony of the defendant, lie signed the note as surety because the bank had illegally held up a check drawn by him as administrator on the plaintiff bank, against funds deposited by him-as administrator, because the administrator’s intestate was a debtor to the bank, and the indorsement by the person acting as the decedent’s administrator was made for the purpose of releasing the funds represented by the check. According to the testimony of the cashier, the defendant signed the note at the cashier’s suggestion, upon its being represented by the defendant that the assets of the estate of O. J. Martin would be sufficient to provide for the payment of the note sued on, in order that the bank might be relieved of looking to the makers of the note, and could thus permit the defendant as administrator to pay it whenever he succeeded in winding up the affairs of the estate. The plaintiff contends that such an agreement afforded a consideration for the indorsement of Kimbell, in that the bank, relying upon this agreement and understanding, looked exclusively to Kimbell for payment, and failed to make any demand or take any action against the administrator, who has since become discharged, or against the comaker of the note, who has since become discharged in bankruptcy.

Under the testimony of the defendant, his indorsement as security was without any sort of valid consideration, since it was not an original indorsement, and the transaction as entered upon did not inure in a legal sense either to the benefit of the defendant or to the detriment of the plaintiff. What the plaintiff then contended, as sworn to by the defendant, as to why the payment of the cheek was withheld, could not, in a legal sense, have afforded the basis of any bona fide claim on plaintiff’s part. Alfred Struck Co. v. Slicer, 23 Ga. App. 52, 55 (97 S. E. 455). Accordingly, the court erred in directing a verdict in favor of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    19019.
    Glover Grocery Company v. Livingston.
   Stephens, J.

1. An equitable assignment of a fund gives to the assignee such a right, title, and interest in the fund as will support a claim to the fund when caught by garnishment in a suit against the assignor, Few v. Pou, 32 Ga. App. 620 (124 S. E. 372).

Decided February 6, 1929.

W. W. Dykes, for plaintiff. J. A. Hixon, R. L. Le Sueur, for defendant.

2. Where a husband orally agrees with his wife to allow her “all the benefits arising” from, a designated life-insurance policy upon the life of the husband, and the wife, in consideration of this agreement, after-wards pays the premiums upon the policy and also the living expenses of herself and the husband and other obligations of the husband, and where the husband from time to time transfers and passes over to the wife the payments made to him by the insurance company representing returned premiums and disability benefits accruing to the husband under a disability clause in the policy, the inference is authorized that, in consideration of the payments actually made by the wife and applied to the premiums on the policy and to the living expenses and other obligations of the husband, all the benefits accruing under the policy, including not only those actually received by the wife with the consent of the husband, but any other, benefits then due. or afterwards accruing to the husband consisting of returned premiums and payments for disability under the disability clause in the policy, were by the husband equitably assigned to 'the wife. Jones v. Glover, 93 Ga. 484 (21 S. E. 50). Where the wife intervened and filed a claim to the fund in a suit in garnishment against the husband as the defendant and an insurance company as garnishee, the trial judge, in passing upon questions both of law and of fact, did not err in awarding the fund to the claimant.

Judgment affirmed.

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


text:
    19021.
    ARMOUR & COMPANY v. MILLER.

      Decided February 6, 1929.
    Adhered to on rehearing February 28, 1929.

      Bennet & Peacock, for plaintiff in error.

      P. D. Rich, H. Cr. Rawls, 8. B. Lippitt, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) It does not appear that the allegations with reference to the State and Federal pure-food laws have any actual bearing upon the case as laid. The instant case is not one of adulteration; it is one of negligence- in the preparation and handling of food products. The purpose and intent of subsection 5 of section 2103 of the Civil

Code (1910), and of the very similar provisions of the Federal statute mentioned in the petition, was to define what was meant by adulteration as prohibited by the statute, and the particular subsection 5 of the code-section refers to any “added poisonous or other added deleterious ingredient which may render such article injurious to health.” As was said by Judge Sanford (who has since become a member of the Supreme Court of the United States) in the case of United States v. Forty Barrels, etc., 191 Fed. 431, in discussing the very similar provisions of the Federal statute: “I am constrained to conclude that the use of the word ‘added’, as applied to poisonous and deleterious articles of food other than confectionery, can not be regarded as meaningless.” “It was intended to provide that any article of food manufactured and sold in this country in interstate commerce should not be deemed to be adulterated merely because it contained a poisonous or deleterious ingredient, except in the case of confectionery, but that all other articles of food, whether simple or compound, were not to be deemed adulterated on account of the presence of a poisonous or deleterious ingredient unless such ingredient was ‘added’ to the article of food in question, that is, was an ingredient foreign to its natural or normal constituency.” In other words, considering the instant case, the defendant is not charged with selling something as sausage which was not sausage. It is not charged with adulterating sausage by adding a foreign and deleterious substance to be sold as sausage which was in fact not sausage. The charge is that the defendant was • negligent in selling sausage which was in fact sausage, but which by reason of the defendant’s negligence contained putrid matter such as to render the product unwholesome in the manner described.

The plaintiff in error insists that since a manufacturer is not an insurer of the purity and wholesomeness of his food products, the petition must show that some particular agent of the defendant knew that the product contained unwholesome matter, or must show wherein and in what particular respect the defendant was negligent. Counsel rely strongly upon the ruling of the Supreme Court in Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (50 S. E. 974), in which it was held: “1. In an action founded upon negligence, mere general averments of negligence are sufficient as against a general demurrer; but when a special demurrer is filed raising the objection that the allegations are too general, the particulars of the negligence must be set forth. 2. A plaintiff in an action founded upon negligence is confined to proof of the acts of negligence alleged in his petition or -which constitute the res gestae. 3. A specification of the particulars of the negligence relied on can not be avoided by an allegation that the plaintiff has been unable to ascertain the particular acts of negligence causing the injury, and that on account of the manner in which the injury was inflicted they were more peculiarly within the knowledge of the defendant than of the plaintiff. 4. General averments of negligence can not be aided by the maxim res ipsa loquitur. This maxim can not be invoked to aid a defective pleading.”

The defendant in error relies largely upon the decisions of this court in McPherson v. Gapuano, 31 Ga. App. 82 (121 S. E. 580), as followed in Copeland v. Curtis, 36 Ga. App. 255 (136 S. E. 324), and also contends that the petition is sufficient in that it alleges that the defendant was guilty of negligence per se in violating the stated sections of the State and Federal pure-food laws in permitting the tainted and impure substance to become mixed with the other contents of the package. It will be noted that in the McPherson case and in the Copeland case the question involved was not whether the petition was good as against demurrer, but whether or not the doctrine res ipsa .loquitur, as a rule of evidence, could make out the case as laid. It is recognized in both of these cases that a manufacturer is not an insurer of his food products. That such is the rule is plainly indicated by the provisions of section 4460 of the Civil Code (1910) relative to actions against one who “knowingly or carelessly” sells unwholesome food products. It is only in proving his ease that a plaintiff may invoke the doctrine of res ipsa loquitur. See also, in this connection, Rowe v. L. & N. Railroad Co., 29 Ga. App. 151 (113 S. E. 823).

In accordance with what has been said, the case narrows down to whether or not the petition, which is attacked both by general and special-grounds of demurrer, specifically charges negligence on the part of the defendant such as would render unwholesome the food product purchased by the plaintiff. For not only is it true that a manufacturer is not an insurer of his food products, and that negligence on the defendant’s part must be alleged, but, when required to do so, the plaintiff must set forth what the negligence consisted of, so that a mere general averment that the defendant was negligent in furnishing unwholesome food will not suffice. In the Hudgins case, supra, the petition alleged merely that a bottle of coca-cola exploded on account of the negligence of the defendant in improperly manufacturing the coca-cola and putting it in a defective bottle. It was in no wise alleged wherein the bottle was defective, or why the improper manufacture of the coca-cola was such as to cause it to explode. If in the Hudgins case there had been allegations setting forth the character of the bottle, such as to indicate subnormal strength, or allegations setting forth the presence in the coca-cola of a substance such as would supply an excessive and dangerous expansive quality, the petition would have been good. Payne v. Rome Coca-Cola Bottling Co. 10 Ga. App. 762 (73 S. E. 1087); Commerce Coca-Cola Bottling Co. v. Farabee, 17 Ga. App. 487 (87 S. E. 720); Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (102 S. E. 542). Nor in such case would it have been necessary to set forth just how, when, where, why, and by whom the defendant in its manufacture of the product might have committed the particular wrong indicated, since it is the fact of such negligent conduct on its part which is material. In the instant case, which deals with a chemical rather than a physical phenomenon, if the petition had merely alleged that the product was dangerous to health and in fact caused an injury on account of its having been negligently prepared, the petition would have been subject to the same criticism as obtained in the Hudgins case; but where, as the petition in fact shows, the injury to the plaintiff’s health arose by reason of the defendant’s negligently embodying in the product a poisonous, putrid, substance, such as could and did cause the illness described as ptomaine poison, it can not be said that the allegations as to negligence were so defective in their nature as to amount to a mere general charge of negligence, and failed to show what the negligence consisted of. To require a.plaintiff to set forth with particularity and in detail the how, why, who, and when governing the acts and conduct of the defendant throughout the intricate processes of manufacture, which resulted in the toxic infection of the food product, would call for a manifest impossibility in almost every conceivable instance. As was said by the Supreme Court in the Hudgins case, in ruling that a mere general averment of negligence will not suffice when called upon by special demurrer to specify the particulars thereof: “Of course there are limitations to this rule, and cases arise where the line must be drawn. The plaintiff must not be too general, and the defendant must not be too particular.”

A motion for rehearing by the plaintiff in error was granted in the instant ease, and in considering the same and the arguments of counsel relative thereto, the opinion as first written is retained in substantially, but not precisely, the form in which it was originally delivered. Counsel for the plaintiff in error take the position that the opinion of the court is inconsistent within itself, in that, while it recognizes that a manufacturer of food products is not an insurer, it nevertheless sustains the plaintiff’s petition, which they contend sets forth no particular act of negligence or misconduct. We conceive the gist of their arguments to be that the defendant could not be held liable on a petition which merely alleged that it had negligently embodied in its food product a poisonous and putrid substance, such as would and did cause the injury described as ptomaine poisoning, in the absence of the negligence thus referred to being “described,” as called for by the demurrer, since such a general charge of negligence will amount to nothing more than a mere conclusion, and the law will presume that the embodying of such poison withii; the food_ product “was innocently and blamelessly done” and was “a mere accident which could not be foreseen or guarded against by the manufacturer.” Counsel say that while the petition may show a particular act which caused the injury, it does not show such an act to be an act of negligence, save by the mere nomenclature of calling it such. They insist that it is not possible to demonstrate any real difference between an allegation which merely charges that the defendant sold an unwholesome food product, and an allegation that the product was unwholesome in that the defendant negligently embodied certain putrid matter, the poisonous nature and effect of which was particularly described. This, as far as we are able to see, is a fair statement of the contentions made by the voluminous motion and the arguments of counsel in support thereof. As we see it, if the allegation had been such as that which has just been first mentioned, merely furnishing unwholesome food, it would have been in line with and analogous to the allegation made in the Hudgins case, and would amount to nothing more than a statement of a condition, of a result of an effect -which some undisclosed negligence might have brought about; whereas an allegation such as that last mentioned, disclosing what act of negligence it was that brought about such unwholesome condition, and which in turn occasioned the injury complained of, goes further than merely setting forth a condition, a result, an effect, or a conclusion. If in a suit against, a railroad company the petition should merely say that the locomotive smokestack was defective, there would be no ground of negligence set forth, but, as was held in Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214, 217 (62 S. E. 1022), “to say that a locomotive smoke-stack was so insufficiently constructed that it allowed live sparks of fire to come through describes with legal definiteness a lack in its construction.” In Hubbard v. Macon Railway & Light Co., 5 Ga. App. 223, 226 (62 S. E. 1018), this court used tlie following language: “Even in pleading it is not necessary that the negligent deficiency be described in structural terms; a deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent.” In the case of Charleston & Western Carolina Ry. Co. v. Attaway, 7 Ga. App. 231 (66 S. E. 548), this court said: “A defect in a machine may be described by showing that the machine was in such condition that it produced certain definitely described results which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective.” See also, in this connection, Tinsley v. Gullett Gin Co., 21 Ga. App. 512, 520, 521 (94 S. E. 892).

The perhaps more difficult argument which counsel urge appears to us to be that while the petition does show a particular act which caused the unwholesomeness of the food, it does not, as they contend, show such act to be an act of negligence, save by merely calling it such. But how far must a petition go in following the details of negligence back to its Lake Itasca? Where can it ever stop? Putrescence such as produces ptomaine poisoning has no place in food furnished for human consumption, and to say that a poison which would cause and did cause such a particular sort of injury was embodied by the defendant in a food product would seem to be a charge of negligence, and to charge a particular act of negligence, and would not, because the act was called negligence, operate to convert the allegation into a mere conclusion. The alleged act of putting putrid matter in the sausage such as would and did cause the illness known as ptomaine poisoning would seem to be as much an act of negligence as putting bits of broken glass in. a bottle containing a beverage. At most, the negligence. could only differ in degree. In the case of Watson v. Augusta Brewing Co., 124 Ga. 121 (52 S. E. 152, 110 Am. St. R. 157, 1 L. R. A. (N. S.) 1178), which was decided by the Supreme Court subsequently to the Hudgins case, and which refers to the Hudgins, case, the ruling as stated in the syllabus is as follows: “A manufacturer who makes and bottles for public consumption a beverage represented to be harmless and refreshing is under a legal duty not negligently to allow a foreign substance which is injurious to the human stomach, such as bits of broken glass, to be present in a bottle of the beverage when it is placed on sale; and one who, relying on this obligation, and without negligence on his own part, swallows several pieces of glass while drinking the beverage from a bottle, may recover from the manufacturer for injuries sustained in consequence.” In the opinion the Supreme Court said: “When a manufacturer makes, bottles, and sells to the retail trade, to be again sold to the general public, a beverage represented to be refreshing and harmless, he is under a legal duty to see to it that in the process of bottling no foreign substance shall be mixed with the beverage which, if taken into the human stomach, will be injurious. The case of Woodward v. Miller, 119 Ga. 618 [46 S. E. 847, 64 L. R. A. 932, 100 Am. St. R. 188], is hardly in point; for in that case the manufacturer knew of the defect and fraudulently concealed it from the purchaser. Blood Balm Co. v. Cooper, 83 Ga. 457 [10 S. E. 118, 5 L. R. A. 612, 20 Am. St. R. 324], while differing somewhat as to its facts, furnishes strong reasoning to support the principle announced. The composition of patent or proprietary medicines is usually shrouded in mystery, and dt is generally understood that many such-remedies contain ingredients which, if _ taken in sufficient quantities, will produce injurious results upon the person taking them. If, then, one who buys a patent medicine may rely upon the obligation of the manufacturer not to place therein ingredients which, if taken in the prescribed doses, will injure his health, certainly the purchaser of an alleged harmless and refreshing beverage should have the right to rest secure in the assumption that he will not be fed broken glass. It does not matter that the plaintiff in the present ease did not buy the soda-water from the defendant, or that there was no privity of relationship between them. The duty not negligently 'to injure is due by the manufacturer, in a case of the particular character of the one under consideration, not merely to the dealer to whom he sells his product, but to the general public for whom his wares are intended. On this subject see also Blood Balm Co. v. Cooper, supra.”

It would seem, therefore, from what was said in the Watson case, that when negligence is charged on account of the defendant’s having embodied in a food product a deleterious poison, which would and did cause a certain described illness, it can not reasonably be said that the petition is silent as to what the negligence consisted of. In the Watson case the petition alleged that a retail merchant sold some of the defendant’s bottled soda-water to the plaintiff, and that while drinking said soda-water plaintiff swallowed certain pieces of glass without knowing it; that the defendant was grossly negligent in leaving fragments of glass in the bottle, and in offering for sale soda-water containing pieces of broken glass; that the defendant could, by the exercise of ordinary care, have known of the presence of the glass in the bottle, while the plaintiff did not know and had no means of knowing. The defendant demurred on the ground that the petition failed to allege the size or kind of glass, and that “there is no allegation as to the manner, time, or place of defendant’s negligence.” The Supreme Court ruled, however, that there was no lack of the required definiteness as to the time, place, and manner of the defendant’s negligence; that the case differs from the Hudgins case in that in the Hudgins case the petition was entirely silent as to what constituted the negligence complained of, while in the Watson case it was distinctly alleged that the defendant was negligent in leaving glass in the bottle when it was filled. It would seem that the instant case and the Watson case are very similar, and that the plaintiff in the instant case should not be deprived of his right to sue because he did not, during the course of manufacture, follow the food product throughout the various intricacies of that process so as to “describe” with particularity and in detail the manner, time, and place, that is, the how, when, and where, of the specific act of negligence charged by the petition. See also, in this connection, Bradfield v. Atlanta Coca-Cola Bottling Co., 24 Ga. App. 657 (101 S. E. 776); 26 C. J. 783 et seq.

Care has been taken to distinguish the ruling in this case from the rulings in the McPherson and Copeland cases, supra, and in such cases as Atlanta Coca-Cola Bottling Co. v. Danneman, supra, and no ruling is now made upon the question whether the doctrine res ipsa loquitur could of itself establish the allegations of the petition as made. Referring again to the Hudgins case, it is said that the general rule is that “negligence is never presumed from the mere fact of injury; yet the manner of the occurrence of the injury complained of, or the attendant circumstances, sometimes well warrant an inference of negligence.” Accordingly, upon the trial of the case, the doctrine res ipsa loquitur could not be invoked to establish a. prima facie case, unless the jury were authorized to find that, under all the attendant proved circumstances, the most reasonable and most probable inference which can be drawn from the nature and character of such an extraordinary event is that it would not and could not have happened had not the defendant been guilty of the particular conduct charged, thereby excluding every other reasonable hypothesis as to how, if the product was in fact infected, it had become so.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    19031.
    GILPIN v. STATE HIGHWAY BOARD.

      Decided February 6, 1929.

      T. N. Brown, for plaintiff in error. A. S. Bradley, contra.
   Jenkins, P. J.

To a verdict rendered in the superior court, sustaining the amount of damages awarded by arbitrators in a condemnation proceeding instituted by the State highway board for a right of way through certain land, exceptions were taken by the landowner, on the grounds that the verdict was without evidence to support it, was contrary to the evidence, and against the weight of the evidence. Certain exceptions were also taken to the refusal of the trial judge to allow answers to be given to certain questions propounded to witnesses by the plaintiff in error on direct examination. Exception was also taken to the refusal of the trial judge to permit an answer to be given to a certain question propounded by the plaintiff in error on cross-examination. The record with reference to the last-mentioned exception is as follows: “During the trial of this case and when A. K. Eountree, a witness for the plaintiff was under cross-examination, counsel for the defendant asked the following questions: (a) ‘Do you mean to say that it will benefit Mr. Gilpin’s place to move the road from where it now is to where they propose to move it?’, and to this question the witness answered, ‘Yes, sir. The road they propose to put through there, I think, will.’ (b) Question. ‘Suppose they put that road through there where it now is?’” The exception taken was to the refusal of the court to permit the witness to answer the latter question.

The exceptions taken to the. refusal of the court to allow answers to certain questions propounded by the plaintiff in error to his own witnesses on' direct examination can not properly be considered by this court, inasmuch as the assignments of error do not disclose what answers were expected, and we are, therefore, unable to do else than apply the general rule to such exceptions. Cook v. Equitable Building & Loan Asso., 104 Ga. 815 (6), 830 (30 S. E. 911). While it might readily be surmised, from certain statements of the judge as to his conception of the law governing the case, what the plaintiff in error might have hoped to be able to prove by the witnesses, the record fails to indicate an injury, in that it fails to disclose what the answers would in fact have been. If the pronouncements of the trial judge as to the law of the case were correct, he' would have been right in refusing to permit the witnesses to answer, even though the anticipated answers had been » disclosed; and while the exceptions taken to the action of the judge in repelling the testimony indicated complain of these statements of the law as being, erroneous, and as failing to furnish a valid reason why the testimony should have been repelled, no exception is taken to his charge, nor is the charge brought up as a part of the record, but the sole complaint, other than the general grounds of the motion, is upon the rulings of the court in refusing to permit answers to the questions propounded; and that question this court is unable to determine, since the anticipated answers are not set forth in the record.

The rule stated above does not apply to the exception taken to the refusal of the trial judge to allow an answer to be given to the question propounded by the plaintiff in error on cross-examination, since it can not be expected that counsel could state as fully what reply is anticipated as in case of a witness introduced by himself. Bell v. Felt, 119 Ga. 498 (1), 500 (46 S. E. 642); Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); Becker v. Donalson, 133 Ga. 864 (67 S. E. 92) ; Tillman v. Bomar, 134 Ga. 660 (2 a) (68 S. E. 504); Macon Union Co-operative Asso. v. Chance, 31 Ga. App. 636 (2) (122 S. E. 66).

It is the contention of the plaintiff in error that the testimony sought to be elieted on cross-examination was relevant under the principle laid down in Mallory v. Morgan County, 131 Ga. 271 (62 S. E. 179), in which it was held that “where proceedings were taken by the authorities of a-county for the purpose of condemning a right of way for a public road through a tract of land, and it appeared that this was in pursuance of an alteration in the road, and that the old road passed near the residence located on the land, while the new road, or new portion of the road, would also pass through the same tract, but at some distance from such house; and where the evidence indicated that the old road was to be abandoned, in assessing the consequential damages such abandonment and the attendant results upon ingress to and egress from the residence and upon the value of the property were proper for consideration in determining whether the market value of the land would be diminished.” The contention is without merit, since the purport of the question actually ruled upon was not, as in the Mallory case, to show the damage to the landowner by virtue of the abandonment of an existing road, but to show the superior advantage to the landowner of the old roadbed as a site for the new highway. In other words, the effort seems to have been not to show consequential damages, but to show that greater enhancement might have resulted by the adoption of the old roadbed for the new highway. As the judge properly stated, it is not for the jury or private landowners, but for the public authorities, to say where the road ought to go.

Moreover, it appears from the record, in a statement made by the trial court in passing upon the relevancy of such testimony, that the landowner was in the position of having no road at all, the judge stating that “the proper authorities have closed the old one. So he has got no road at all if he doesn’t get this new one. You see by proper proceedings the county commissioners can abandon a road, and this one is abandoned.” This statement, made as a basis of the ruling, was not questioned or disputed at the time, or by exceptions, and, for this additional reason the ruling in the Mallory case could not have application in the instant case.

On the disputed issues of fact, the evidence was sufficient to warrant the verdict sustaining the award.

Under the foregoing rulings, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    19062.
    Maisler v. Etheridge.
   Jenkins, P. J.

1. “The maker of promissory notes given for the purchase of land of which such maker holds undisturbed possession under a bond from the vendor, conditioned to make to the former a good and sufficient title to the land upon payment of the notes, can neither voluntarily rescind the contract of purchase nor defeat the collection of the notes, upon the ground that the vendor lias not in fact a good title to the land in question, without showing clearly that there is a paramount outstanding title against the vendor, and also proving fraud upon his part, or that he is insolvent, or a non-resident, or else proving other facts which would authorize equitable interference with the carrying out of the contract as made.” Black v. Walker, 98 Ga. 31 (1) (26 S. E. 477).

Decided February 6, 1929.

B. L. Milling, Aldine Chambers, for plaintiff in error.

Paul S. Etheridge, contra.

2. In the instant ease the judge of the superior court did not err in entering up final judgment in favor of the plaintiff, on certiorari taken to the findings of the appellate division of the municipal court setting aside a judgment in favor of the defendant, since there was no merit in the defense pleaded. While the defendant shows that he voluntarily abandoned the property for which the purchase-money notes were given, on discovering that the vendor held only a bond for title to the property, instead of having a deed, as it is alleged had been represented, the plea fails to show a paramount outstanding title against the vendor, and contains no allegation setting up fraud, since it is nowhere made to appear that the vendor was not ready, willing, and able to perform his obligation under the bond on compliance by the vendee with his own obligation. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    19076.
    Maynard v. Luton.
   Jenkins, P. J.

Where in the municipal court of Atlanta a judgment is rendered by default, and where during the same term, but after the expiration of five days from the rendition of the judgment, the defendant, without notice to the plaintiff, obtains an order setting aside the judgment by default, and subsequently the plaintiff moves to vacate the order setting aside the judgment by default, and,. on denial of his motion, carries the case, by certiorari, to the superior court, and. where the judge of the superior court by his order sustains the certiorari and sets aside the last judgment, which denied the plaintiff’s motion to set aside the judgment setting aside the original default judgment, and by the order of the superior court the case is remanded for a hearing upon the defendant’s original motion to set aside the default judgment, and where the plaintiff excepts to the judgment of the superior court, upon the ground that the court erred in not rendering a final judgment on the original motion to set aside the default judgment, and where there is no cross-bill of exceptions complaining of the action of the judge in sustaining the certiorari, the only question before this court is whether the judge of the superior court passed upon the case as presented to him, or whether he was required, in passing upon the law involved in that proceeding, to go behind it and enter judgment in the other proceeding out of which it grew.

While in such a case the principles of law governing the superior-court judge in his ruling on the proceeding actually before him might be identical with those involved in the original motion to set aside the default judgment, the two proceedings being separate and independent, and no exception having been taken to the ruling made in the original motion to set aside the default judgment, such as would give the judge of the superior court authority to enter final judgment in that proceeding, the question before the superior court was whether or not the municipal court erred in refusing to set aside the judgment setting aside the original default judgment, and the procedure adopted by the judge was proper and appropriate. No exception being taken by either party as to the correctness of his ruling on the question actually presented, his ruling therein is affirmed.

Decided February 6, 1929.

Charles G. Bruce, for plaintiff.

George & John L. Westmoreland, H. B. Lee, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18747.
    Jenks v. Billingsley.
   Stephens, J.

1. Where a real-estate broker, with whom property is listed for sale on commission obtains a purchaser, who agrees to purchase the property on the condition that the broker agrees that if a certain profit on the purchase-price is not realized by the purchaser within a stipulated period of time, the broker will refund to him certain payments made on the purchase-money, with certain interest thereon, and will also take over the property from him, and the broker contemporaneously agrees in writing, with the purchaser as indicated, the agreement is not void upon the ground that there is no consideration for the broker’s promise, or upon the ground that it is a gaming contract. The consideration for the broker’s promise consists in the act of the purchaser in entering into the contract to purchase through him, and also in the benefit to accrue to the broker in his commission for negotiating the sale. As the transaction between the broker and the purchaser is a legal one and not against public policy, and there is a valid consideration for the broker’s promise, it is not a gaming contract. Phillips v. Riser, 8 Ga. App. 634 (70 S. E. 79); Poole v. Corker, 15 Ga. App. 622 (83 S. E. 1101); Young v. Stephenson, 82 Okl. 239 (200 Pac. 225, 24 A. L. R. 978).

2. A contract of the above description is not a contract for the future sale of the property by the purchaser to the broker, but is a contract by which the broker guarantees to the purchaser a certain profit out of the transaction, and, on failure of the purchaser to realize this profit, to reimburse him for his expenditures plus interest, and to take over the land from him. The obligation of the broker to take over the land is therefore not dependent upon any right, title, or interest of the purchaser in the land. Telford v. Oslin, 99 Ga. 507 (27 S. E. 747).

3. No part of the contract between the purchaser and the broker in this case appears in writing except the broker’s promise, which reads as follows: “Atlanta, Ga., July 23, 1925. I hereby agree that if at least 100% profit is not obtained on lot 28, block 111, Hollywood Hills, purchased by you, F. W. Jenks, I will refund actually moneys paid in and 10% interest, and take over said property by February, 1926. [Signed] E. Billingsley.” This appears upon its face to be incomplete, and is ambiguous. It may therefore be added to and explained by contemporaneous oral agreements and understandings.

Decided February 7, 1929.

Watkins, Asbill & Watkins, for plaintiff.

A. E. Bamsaur, A. C. Corbitt, for defendant.

4. In a suit by the purchaser against the broker, to recover for an alleged breach of the contract by the broker, where it appears, from the allegations of the petition, that a contract as described above in paragraph 1 was entered into between the purchaser and the broker, by which, in consideration of the purchaser’s entering into a contract to purchase the property, the broker agrees to guarantee to the purchaser a profit of 100 per cent, on the property by February, 1926, or to refund to the purchaser the amount of the payments which the purchaser had made on the purchase-money contracted to be paid, plus 10 per cent, thereon, and to take over the property, the contract thus alleged, consisting of the broker’s promise and the oral agreements and understandings, is not so indefinite and uncertain as to be incapable of determination and therefore unenforceable.

5. The petition set out a cause of action, and the court erred in sustaining the demurrer. See, in this connection, Miller v. Hubbell, 38 Ga. App. 172 (143 S. E. 464).

Judgment reversed.

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


text:
    18773.
    Automobile Insurance Company of Hartford v. Watson.
   Stephens, J.

1. Motions for new trial in the municipal court of Atlanta, when the principal sum sued for is in excess of $500, must be made under the same rules and regulations that govern such motions in the superior courts, and must therefore be in writing. Ga. L. 1925, pp. 370, 383; Civil Code (1910), § 6080. It follows, that where, in the municipal court of Atlanta, in a case in which the principal amount sued for was $1500, a verdict and judgment were rendered for the plaintiff in the principal sum of $1113.20, and the defendant made no i written motion for a new trial during the term and within the time required by law, but made only an oral motion for a new trial in open court and instanter upon the rendition of the verdict and judgment, the making of which motion the trial judge, in open court, immediately noted of record and set for a hearing at a subsequent date, at the same time granting the defendant a supersedeas, the oral motion for a new trial and the supersedeas were nullities, notwithstanding the motion was made and noted in open court in the presence of the plaintiff’s counsel, the plaintiff not consenting thereto. The court did not err in sustaining a motion, made by the plaintiff at a subsequent term of court, to vacate the order granting the supersedeas.

2. Although the plaintiff, 'as the respondent in the oral motion for a new trial appeared at the time and place set for the hearing of the motion, and also appeared at the times and places at which the hearing upon the motion was from time to time continued by order of the court, and consented to the continuances of the hearing in order to afford counsel for the movant sufficient time within which to perfect the record, and continuances were accordingly granted by written orders of the court, in which all the rights of the parties were duly preserved, the appearance at the times and places set for the hearing, and the consent to the continuances by the respondent, gave no validity to the oral motion for a new trial or to the order granting the supersedeas, and conferred no jurisdiction upon the court to entertain the motion for a new trial. Garraux v. Ross, 150 Ga. 645 (104 S. E. 907).

3. A written amendment to the oral motion for a new trial, offered at a subsequent term of court, can not, by reason of its being filed too late, be treated as an original motion for a new trial; and since, at the subsequent term of court, there was in existence no valid motion for a new trial, because of a failure of the movant to file a written motion for a new trial at the trial term and within the period provided by law, the court did not err, at this subsequent term, on a date for which a hearing upon the oral motion had been set, in refusing to issue a rule nisi upon the motion for a new trial, or to approve a written amendment to the oral motion for a new trial, or to approve a brief of the evidence presented by the movant for the court’s approval. Where, on that date, the court also passed an order nunc pro tunc, as of the date of the order revoking the supersedeas, reciting therein that no valid written motion for a new trial had been made at the term of court at which the trial was had and the judgment rendered, and that the movant had failed to file a brief of the evidence within the time required by law, and that the entry of the oral motion for a new trial was a nullity, an error, if there was any, in passing this order, in view of the fact that there was no valid motion for a new trial, was harmless to the movant.

4. There being no exception in the appellate division to any final judgment affecting the verdict and judgment rendered for the plaintiff upon the trial, and the motion for a new trial being void, no questions for determination were preserved by the movant’s exceptions pendente lite to the judgment of the trial judge overruling the demurrers to the petition. Reed v. Warnock, 146 Ga. 483 (2) (91 S. E. 545) ; Taylor v. Tanner, 143 Ga. 18 (84 S. E. 68) ; Pickens v. Graven, 27 Ga. App. 100 (107 S. E. 358) ; Veal v. State, 28 Ga. App. 701 (112 S. E. 911).

5. The appellate division of the municipal court of Atlanta did not err in dismissing the appeal from an order of the trial judge overruling a motion for a “new trial,” excepting to the .order revoking the supersedeas; and the appellate division did not err in affirming, on appeal by the movant, the rendition of the order nunc pro tunc and the refusal of the trial judge to issue a rule nisi on the motion for a new trial or to allow the movant to file an amendment to the motion for a new trial or to approve the brief of evidence tendered by the movant. The superior court therefore properly overruled the certiorari brought by the movant excepting to these two judgments of the appellate division of the municipal court.

Decided February 7, 1929.

Rehearing denied March 2, 1929.

Bryan & Middlebroolcs, Chauncey Middlebroolcs, Noah J. Stone, for plaintiff in error.

T. M. Stubbs, McDaniel & Neely, contra.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., eoneur.