text:
    14958.
    GILLIS v. ESTROFF.
    1. Without the testimony of the defendant, there is no evidence to support the verdict in his favor; and, under the rule that where a party’s testimony bears two constructions, is self-contradictory, vague, or equivocal, the construction less favorable to his interest should be adopted, it is, under the facts of this case, doubtful whether the verdict has any evidence to support it. Steele v. Central of Ga. Ry. Go., 123 Ga. 237 (51 S. E. 438) ; Twyman v. Avera Loan & Investment Go., 23 Ga. App. 136 (98 S. E. 239).
    2. Grounds of a motion for a new trial complaining of the exclusion of testimony will not be considered by this court, unless the proffered testimony is set out therein or annexed thereto • as an exhibit, nor unless the name of the witness by whom such proof was offered is shown. See Bark’s Code, § 6083, annotations.
    S. Under the facts of this case the court erred in charging the jury as follows: “To constitute a partnership, there must be an agreement between tlie parties; each partner must contribute something of value to the partnership; eaeli must share in the losses of the partnership, if there are any losses; and, of course, each must enjoy the profits. It takes those three things to constitute a partnership. An agreement to share in the profits alone would, not constitute a partnership.” However correct or incorrect such a charge might be as applied to a transaction between an alleged partnership and a third person, yet as among the partners themselves “a partnership . . may arise from a joint ownership, use, and enjoyment of the profits of undivided property’’ (Civil Code of 1910, §3155), and “liability for losses will generally be implied from proof that the contract stipulates for a division of the profits, and a sharing of the profits may imply a partnership.” Davis v. Savannah Lumber Go., 11 Ga. App. 610 (4) (75 S. E. 986). Construed in the light of the whole charge, and particularly of the other excerpts complained of, the jury were instructed that they must either find from the evidence that the plaintiff and the defendant expressly agreed, at the time of the transaction, that both should be equally liable for any losses resulting from the venture, or else they should find in favor of the defendant. So construed, the charge was not only error, but, under the facts of this case, amounted virtually to the direction of a verdict for the defendant.
    4. The court repeatedly charged, and illustrated' the defendant’s contention, as to plaintiff’s failure to invest any money or other thing of value in the alleged venture, without anywhere instructing tlie jury that the plaintiff’s abandonment of a $700 profit in another transaction, or the expenditure by him of time and money in the particular transaction, might constitute a sufficient consideration to uphold the contract. Bouse v. Stale, 2 Ga. App. 184 (4-6) (58 S. E. 416).
    5. The other alleged errors in the charge are such as, in view of the foregoing rulings, will not likely recur upon another trial of the ease. Because of the errors in the charge, the court erred in overruling plaintiff’s motion for a new trial.
    Decided January 15, 1924.
    Complaint; from city court of Soperton—Judge Wallace. July 30, 1923.

      Dallam R. Jackson, N. L. Gillis Jr., George B. Davis, for plaintiff.

      Saffold & Stallings, for defendant.
   Luke, J.

This case arose as a suit by Gillis against Estroff, making, in brief, the following case: On June 10, 1919, plaintiff and defendant jointly purchased, for the purpose of resale and division of profits, 134 bales of cotton, 84 bales (44,423 pounds) from one person at 30% cents, 50 bales (24,905 pounds) from another person at 31 cents per pound. Estroff shipped the cotton to Savannah in his own name, and not in their joint names, claiming that by so doing “he could have a friend handle same to a better advantage for him personally, and that he- would divide the profits with petitioner as shown above.” On March 1, 1920, Estroif sold the cotton “through or to Gordon-Smart Company . . at and for a net profit, after all expenses of handling of same had been deducted, of $3,068.80, one half of which said profit belongs to petitioner.” The petition further alleges demand upon Estroif for payment of plaintiff’s claimed share of the profits, and that he refused to pay the same or any part thereof. Estroif, in his answer, denied the several paragraphs of the plaintiff’s petition, and further alleged “that there was no copartnership existing between plaintiff and himself, and that, if in point of fact he purchased the cotton described in plaintiff’s petition, he bought it as an individual, and not jointly with the plaintiff, and that plaintiff at no time invested any money in said cotton nor had any interest in the same.”

Upon the trial the defendant was sworn as a witness for the plaintiff, the only evidence introduced by him after plaintiff had rested being the two checks given by him in payment of the purchase price of the cotton in question. Gillis testified, in brief, as follows: Both he and Estroff were cotton buyers, but neither had enough money to finance the purchase of the two lots of cotton. (The sum of $21,269.56 was necessary for that purpose.) Whether they should buy it jointly or separately, the plan of each, at the time of the purchase, was, first, to negotiate a purchase, then negotiate a sale, ship the cotton to such purchaser as they might locate, draw upon him with bill of lading attached, and deposit the draft in bank to meet the checks given in paying for the cotton bought. Gillis had negotiated for the purchase of the cotton, and for a resale to one Rogers at a profit of $700, before Estroff came upon the scene. By showing Gillis where they could make $1000 more selling to a Savannah buyer, Estroff induced Gillis to obtain a release from Rogers, which was done by long-distance' telephone. Immediately Estroff wanted to ship the cotton to Savannah in his individual name; but, upon Gillis’ protest and insistence that it be shipped in their joint names, it was so agreed. Estroff nevertheless obtained the bill of lading in his own name, drawing upon Gordon-Smart Company for the bill of lading attached, depositing the draft in the Bank of Soperton, and then drawing his individual checks on that bank to pay for the cotton. The checks, reaching the bank ahead of the draft, were at first dishonored, but were paid after the deposit of the draft with bill of lading attached. As soon as Gillis learned that the cotton was shipped in the name of EstrofE individually, he protested; but, upon EstrofE’s assurance that the profits would be divided equally, and that by so shipping it a better price could be obtained through one of Estroff’s associates, Gillis assented to the arrangement. Cotton was then advancing in price, and EstrofE wanted to hold for a higher price instead of letting their sale go through. Gillis would not agree, because of the risk of having to put up margins if the market price should fall. Upon EstrofE saying, “I’ll put up the margin; it won’t cost you a cent,” Gillis agreed. EstrofE after-wards told Gillis that he had sold the cotton for a profit of “about $3,000.” The only things actually invested by Gillis in the transaction were his time, labor, expense, cost of weighing the cotton, and the withdrawal of his profitable trade with Eogers. Gillis was corroborated by Eogers as to the sale of the cotton to him, and by the railway company’s agent at Scott, Ga., the shipping point, as to the bill of lading and the conversation between plaintiff and defendant respecting how it should be issued.

The defendant, EstrofE, was then sworn as a witness for the plaintiff, and, upon direct examination, gave this, and only this, information: “I am the defendant in this case. I shipped the two shipments of cotton that is in question here to Savannah. I drew a draft on it on Gordon-Smart Company. I don’t know who issued those account sales. I don’t know whether or not they bear their name. I don’t know anything about the account sales. I couldn’t deny that those account sales are true and correct copies of the ones I received from Gordon-Smart Company, and I couldn’t affirm it. I don’t know whether I made something over $3,000 on this cotton or not. I might have, or I might have not. I don’t know. I shipped two shipments of cotton from Scott, Ga. I don’t know their marks. I don’t know whether those are the bills of lading or not. I don’t remember how many bales there was in each lot or shipment. I don’t remember what the eighty-four bale lot was marked. I don’t remember what the fifty-bale shipment was marked. I don’t remember whether I shipped any other cotton except the eighty-four bale lot and the fifty-bale lot in June, 1919. I delivered some cotton to Gordon-Smart Company, but I don’t remember whether the cotton I delivered to them was marked ‘SS* and eES’ or not. I don’t remember about that. It might have been or it might have not. I don’t remember.” Q. “You received the original account sale of this cotton?” A. “Well, I have received a good many. I can’t remember forty years back.” (This was on April 3, 1923, and there was a mistrial of the case on January 25, 1923.) “Sometimes they send the original account sales to me, and sometimes they do not. Mr. Gillis never asked me for the account sales. He didn’t have any more cotton than you did.” Q. “Who- bought this cotton when it was first bought?” A. “Gillis. He didn’t buy it. He didn’t put any money in it, but he claimed he bought the cotton. He claimed he bought the cotton. I did not say in the trial of this case before that I agreed to buy this cotton, and that I was to receive one fourth profits and Mr. Gillis the other. If I did, you misunderstood me on that. I have not paid Mr. Gillis any of the profits of this cotton. He is not entitled to any. He didn’t have any cotton.” Cross-examined by his own counsel his further testimony was: “When I say that Gillis had bought this cotton I mean that he made an offer to buy it, the eighty-four bale lot and the fifty-bale lot.”

Plaintiff then introduced in evidence the account sales from Gordon-Smart Company to Estroff, dated November 3, 1919, and showing net proceeds, after the usual deductions for freight, commissions, insurance, etc., in the sum of $24,338.36, for the two lots of cotton, thereby showing a net profit of $3,068.80, as alleged in plaintiff’s petition. With that the plaintiff rested; and the defendant, recalled for further cross-examination in his own behalf, came with a refreshed memory, testifying substantially as follows:. He bought the cotton, paid for it, and sold it through his factor in Savannah, acting individually for himself in it all, and Gillis had nothing to do with it. He never promised Gillis a division of the profits, Gillis never demanded any such division; ‘and if the transaction had resulted in a loss, he would not have called on Gillis to share that. Gillis did first buy the cotton and sold it to one Walpeyt, who failed to accept and pay for it, and, after much insistence by Gillis and reluctance on the part of Estroff, the latter proposed that each pay one half the purchase and buy it together, but Gillis refused. Estroff then gave his individual checks for it (which he put in evidence) and directed Gillis to sell it to the Dixie Company, or make it and do something with it. What Gillis did, if anything, under those instructions, remains untold, but he (Estroff) then shipped the cotton to Savannah, stored it, and borrowed 24 cents per pound on it. Three weeks later his Savannah factor called on him for $2,000 margin; and he testified: “I told Gillis that if he wanted to be partners with me, now he could do it by helping me margin it. I told him that he could put up half of the margin and I would put up half, and he wouldn't do it, said he wouldn't have anything further to do with it, and I had to margin it myself.” On redirect examination by plaintiff's counsel he said: “I testified on the former trial that me and Gillis was to divide the profits, and that Walpert was to come from Savannah and buy the cotton. Yes, Gillis and me were to divide the profits. He was to give me half, and not a fourth, if the trade with Walpert went through. I testified on the former trial that at the time I shipped the cotton from Scott I had a loss of about two cents per pound. That is still true. Yes, I say that Gillis didn't have anything in the cotton; he hasn’t bought any cotton; I bought the cotton and paid for it myself . . I told Gillis, after the cotton reached Savannah, that if he wanted to be a partner he would have to put up some money. I told him that he couldn't be a partner unless he put up some money.”

Under that evidence and the charge of the court the jury returned a verdict in favor of the defendant. Plaintiff moved for a new trial, making numerous exceptions to the charge of the court and to rulings in the admission and exclusion of evidence. The motion was overruled and he excepted.

With this statement of the facts, the opinion of the court, as given in the headnotes, needs no further elaboration. Whether the alleged contract amounted to a technical partnership agreement or not is of little consequence. The material questions are: Did the parties contract as alleged by Gillis? If so, did Estroff then breach the contract as alleged? And if that be found true as alleged, what amount of damage did Gillis suffer?

Judgment reversed,.

Broyles, O. J., and Bloodworih, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    14966.
    Miller v. Wellborn.
    Decided January 15, 1924.
    Appeal; from DeRalb superior court—Judge Hutcheson. July-14, 1923.

      Carl T. Hudgins, for plaintiff in error.

      Paul L. Lindsay, contra.
   Luke, J.

1. The ground of the motion for a new trial which complains that “the court refused to allow the witness Mrs. W. T. Miller to testify as to whether the plaintiff would willingly answer questions on cross-examination in the justice’s court when the case was first tried, touching upon his obtaining the note and his title thereto,” is too indefinite and incomplete to raise any question for consideration by this court. See, in this connection, Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712).

2. The ground which complains of the admission in evidence of the note sued upon cannot be considered, since the note is not set forth in the ground or attached thereto as an exhibit. Moreover, where, as in the instant ease, in a suit on a note in a justice’s court, a correct copy of the note is annexed to the original summons, but the purported copy annexed to the summons served on the defendant is incorrectly copied, the defect can be taken advantage of only by attacking the sufficiency of the service; and where the defendant appears and pleads to the merits, without in any way bringing such defect into question, he will be held to have waived it. Talbott v. Collier, 102 Ga. 550 (2) (28 S. E. 225).

3. Where the plaintiff sues as the transferee of a negotiable promissory note, and then puts in evidence the note with the transfer regularly written thereon, he does not have the burden of proving the execution of the indorsement, unless the defendant has filed a plea of non est factum as to the indorsement. Gray v. Oglesby, 9 Ga. App. 356 (71 S. E. 605).

4. On an appeal to a jury in the superior court, the plaintiff having proved his case as laid in his proceeding, and the defendant having utterly failed to establish any defense, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., coneur.


text:
    14972.
    MARIETTA TRUST & BANKING CO. et al. v. FAW.
    1. As against the usual general grounds of a motion for a new trial, a verdict directed by the court stands upon the same footing as if rendered without such direction, a special assignment of error being necessary to bring under review the judgment directing such verdict. Dickenson v. Stults, 120 Ga. 632 (48 S. E. 173) ; Stone v. Hebard Lumber Go., 145 Ga. 729 (2) (89 S. E. 814).
    2. Where a customer of a bank deposits therein a bond, for the sole purpose of safe keeping until its return is demanded by the depositor, the deposit is special; and such a special deposit is gratuitous if it be accepted for the depositor’s ’accommodation and without any undertaking by the depositor, express or implied, to pay or do anything as compensation or reward for keeping the deposit. Merchants’ National Bank of Savannah v. Guilmartin, 88 Ga. 797 (2) (15 S. E. 831, 17 L. R. A. 322).
    3. While slight diligence in the protection and preservation of a special deposit is the degree of care imposed by law upon a gratuitous bailee; yet where the bailee was a bank, already reduced to financial stringency by the defalcations of its vice-president, who, at the time the special deposit was made, had long been and still was in charge of the bank’s business and assets, and who had, for years before the special deposit was made, successfully concealed from the president and directors all knowledge of his fraud and of the bank’s real condition, by substituting forgeries for the money stolen by him from the bank, and who, after receiving the special deposit for the bank, stole it, converted it into cash, and placed that cash in the bank, substituting it for one or more of his prior forgeries, the bank cannot, while retaining the proceeds of the conversion of the special deposit, escape liability to the depositor on the theory that all the wrongful acts shown were the unauthorized individual acts of the vice-president, and that the bank itself had exercised due care in the preservation of the special deposit for the benefit of the depositor. If the bank had received no benefit or profit from the transaction, the result might be different. Merchants’ National Bank v. Guilmartin, 88 Ga. 797, supra; s. c. 93 Ga. 503 (21 S. E. 55; 44 Am. St. R. 182) ; Davenport v. Underwood, 9 Bush (Ky.), 609; Bank v. Dunbar, 118 111. 625 (9 N. E. 186).
    (а) Even if the bank had received no benefit from the transaction, still the length of time the vice-president’s defalcations had existed—“seven or eight years, possibly longer,” according to his own testimony— without knowledge or suspicion of the same on the part of the president or directors of the bank, and without their becoming acquainted with the bank’s real financial condition, would leave it a question for determination by the jury as to whether or not the directors had exercised due care in retaining such a person in the office of vice-president and in charge of the bank’s business and assets. Civil Code (1910), §§ 3470, 4530, 5735. A director of a bank has duties to perform more essential than that of allowing his name to be printed on the bank’s stationery; and negligent ignorance is sometimes equivalent to knowledge, Penal Code (1910), § 204; Schmidt v. Block, '76 Ga. 823 (a) ; Allanta v. Pei'due, 53 Ga. 607; Ocean Steamship Co. v. Matthews, 86 Ga. 418 (2 &), 423 (12 S. E. 632).
    (б) Nor will the bank be heard to plead, under the facts of this case, that its vice-president exceeded his authority as such officer in receiving the special deposit for the bank. Even if it conclusively appeared that ho did so exceed his authority, still the bank must either repudiate or ratify the transaction as a whole. It cannot ratify in part and repudiate in part; and the retention by it of the net proceeds of the transaction amounts to a ratification by it of the whole transaction. Civil Code (1910), § 3593.
    4. That the defendant bank is now in the hands of the State superintendent of banks, who admittedly has in his custody sufficient assets of the bank to meet the plaintiff’s demand, does not affect the result. Park v. Garmiehael, 20 Ga. App. 36 (3) (92 S. E. 397), and citations; Park v. Swann, 20 Ga. App. 39 (3,4) (92 S. E. 398), Ga. L. 1919, p. 158, sec. 15, p. 159, sec. 19; Ga. L. 1922, p. 65, sec. 7 (a).
    5. Under the foregoing rulings the evidence not only authorized, but ' demanded, the verdict; and the court did not err in overruling the defendant’s motion for a new trial.
    Decided January 15, 1924.
    Complaint; from Cobb superior court—Judge Humphries presiding. August 25, 1923.

      Fred Morris, for plaintiffs in error.

      J. Z. Foster, Anderson <& Roberts, contra.
   Luke, J.

The headnotes announce the principles decided. A statement of the facts on which they'are based is the only elaboration necessary.

On February 20, 1923, Elizabeth C. Faw sued the Marietta Trust & Banking Companj'- and T. E. Bennett, as superintendent of banks of the State of Georgia, alleging, in brief, the following: The defendant bank, after operating for several years as a chartered bank of this State, was, on February 4, 1922, taken over by the superintendent of banks in accordance with the terms of the banking laws of this State. Prior thereto (October 18, 1918) the bank received from her for gratuitous safe-keeping a described Liberty bond, acting therein through its vice-president in charge, A. H. Gilbert, who entered on her “savings pass-book” a receipt for the bond. No demand for the return of the bond was made on the bank prior to its failure, but demand was thereafter made upon the superintendent of banks. It was then discovered that, before the superintendent took the bank in charge, its vice-president, Gilbert, had embezzled the bond and applied it to the bank’s' benefit, without the plaintiff’s knowledge or consent. The superintendent refused to account to her for the value of the bond from the assets of the bank, because the bond was not among the assets of the bank when he took it over. She insists that by reason of the foregoing facts she is a common creditor of the bank and entitled to share in the distribution of its assets upon the same basis as ordinary depositors. She further alleges: that she made due proof of her claim to the superintendent; that he refused to recognize the same; that he paid a number of dividends to other common creditors of the bank, without making any payment to her; and that he “has ample assets in his custody and possession belonging to said bank to pay petitioner the amounts due her as aforesaid.” The prayer was for process and for judgment.

The defendants answered, admitting the bank’s status as alleged; that payment of the plaintiff’s claim had been refused; and that sufficient assets of the bank were then in custody of the superintendent to meet the plaintiff’s alleged demahd. The defendants denied, however, that the plaintiff had made any deposit as alleged by her, and further alleged: that if Gilbert received the bond at all, he did so in his individual capacity, and not as vice-president bf the bank or for the use and benefit of the bank, and, after so reefeiving it, converted it to his own individual use and benefit, and not to the use or benefit of the bank, before the bank was taken over by the superintendent; that if Gilbert undertook to act ■for the bank in so receiving the bond, he acted beyond the scope of his authority, and his act was never known to or authorized by the bank’s president or board of directors; that in any event the bank was at most a gratuitous bailee, liable only for gross negligence, of which it was not guilty, and bound only to the exercise of slight diligence, which it had exercised; that in spite of such diligence on its part and without ity knowledge or consent Gilbert had stolen the said bond, acting therein not for the bank or the bank’s benefit, but for himself individually and against the bank, using the proceeds of the sale thereof “in an effort to cover up his pre-existing shortage at said bank, which had existed for a number of years, and was ever increasing,” and using the same “either to enable him to retire a ‘forged note’ or to retire a ‘cash ticket,’ neither of which was an asset—-a legitimate asset—of this .defendant.”

Upon the trial the plaintiff and Gilbert were the only witnesses introduced. He testified by depositions as a witness for her. Both testified to the making of the deposit and to the receipt issued therefor, substantially as alleged in her petition. The receipt itself was introduced in evidence. Gilbert further testified in substance as followá: The receipt was written partly by the bank’s cashier and partly by himself, as vice-president, both acting for the bank and within the scope of their respective duties and authority in so doing. As vice-president he had practically entire charge and control of the hank and its assets during all the time he was connected with it, from July, 1907, to February 4, 1922. Before the bank was taken over by the superintendent it became temporarily in need of funds; and, to meet that situation,-‘he, acting for the bank, converted the bond into cash and placed the money in the bank for its use and benefit, without book entry of any kind, the cashier being the only other officer of the bank with knowledge of the transaction at the time. Neither he nor the cashier individually received or used any part of the proceeds of the sale of the bond. For a period of seven or eight years, possibly longer, he had been using the bank’s money in his own private speculations, and the cashier had been doing the same, each with knowledge of the other’s acts, all of which were unknown to any other officer of the bank until about the time of its surrender to the superintendent of banks. The joint defalcations of himself and the cashier amounted, at the time of the surrender, to approximately $230,000. The shortage had been carried partly in the loan account and partly in the cash account, by means of forged notes and memoranda receipts or tickets, thereby keeping it covered up for a number of years. When he sold the plaintiff’s bond and put the proceeds thereof in the bank he merely destroyed enough of this fraudulent paper to keep his books in balance.

The remainder of Gilbert’s testimony, so far as it is here material, appears in the brief of evidence, as brought out on cross-examination, in the following language: “The service I rendered or was expected to render in looking after the safe-keeping of the bond about which I have been asked was for the exclusive benefit of the bailor, the plaintiff. All that was necessary to be done was to put the several envelopes containing these bonds in the vault of the bank, or some other safe place, and let them remain there unmolested, in order to preserve them and prevent a loss to the pláintiff. In this respect there was no negligence in looking after this bond by any officer of the bank. If the bond had not been removed by me individually and sold, as stated, the plaintiff would not have sustained any loss. The sale of this bond was not made in the prosecution of or within the scope of the legitimate business of the bank or of my employment as vice-president. The bank, so far as the bank was concerned, independent of my sale of the bond, exercised all the care that was necessary to safely keep the bond about which I have been asked. No official of the bank, except the cashier, had any knowledge that I 'was not conducting the affairs of the bank in a perfectly proper and legitimate way prior to or about the time it was surrendered to the superintendent of banks. There was nothing in this connection that would have caused any official of the bank to suspect that my record was not as good as it had been at any time during my connection with the bank. I was not retained in the employment of the bank after it was brought to the knowledge of the president and directors that my account was not correct and that the bank was not being conducted in a legitimate manner. The bank was closed on that day. In the sale and disposition of the bond about which I have been asked I was acting independently and without the knowledge, consent, or direction of any official of the bank; and the effect of the sale was simply to reduce the amount of the shortage in the bank which had been brought about in handling the funds of the bank prior to that time, in speculation. I entered a plea of guilty in Cobb superior court on several indictments growing out of my shortage with the Marietta Trust & Banking Company, and I am now an inmate of the penitentiary of Georgia on that account.”

Upon the conclusion of the evidence the court directed a verdict for the plaintiff. The defendants moved for a new trial upon the usual general grounds only; and the exception here is to the judgment of the lower court overruling that motion. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    14981.
    Moore v. Southern Railway Company.
   Luke, J.

1. The bill of exceptions recites: “The case then proceeded and plaintiff and defendant both introduced oral and documentary evidence. A brief of the evidence is hereto attached, marked as exhibit ‘B,’ and is hereby made a part of this bill of exceptions.” Following the judge’s certificate to the bill of exceptions the case is stated, and following the statement of the case the names of persons who testified are given, and under separate heads of direct and cross-examinations there is given the purported evidence of the persons named. The purported brief of evidence has no approval of the trial judge, nor is it of file in the clerk’s office of the trial court as a part of the record; nor is it identified by the court; nor is any portion of the evidence set out in the bill of exceptions. In other words, there is no approved brief of evidence in the case.

Decided January 15, 1924.

Action for damages; from Hall superior court—Judge J. B. Jones. July 18, 1923.

O. N. Davie, E. D. Kenyon, for plaintiff in error.

Ed. Quillian, Charters, Wheeler & Lilly, for defendant.

(a) The bill-of exceptions undertakes to complain of the judgment of the court in directing a verdict for the defendant. It follows that this court cannot consider the question as to whether the trial court was right or wrong in directing the verdict, for the reason that there is no part of the evidence incorporated in the bill of exceptions, nor is there an approved brief of the evidence.

(b) No exhibit attached to a bill of exceptions which follows the certificate of the trial judge and is not identified by him can be considered by the reviewing court, as has been repeatedly held by this court and the Supreme Court. See Hightower v. Davis, 24 Ga. App. 689 (102 S. E. 34), and cases there cited; Hancock v. McNutt, 116 Ga. 297 (42 S. E. 525); Sayer v. Brown, 119 Ga. 539 (46 S. E. 649).

2. Error is assigned upon the allowance of an amendment to the answer of the defendant, and error is assigned also upon the admission in evidence of a certain contract, which is not incorporated in the bill of exceptions. Neither of these assignments of error will work a reversal in the case, for the reason that there is no brief of the evidence, and this court cannot determine whether there was an effort to sustain the amendment to the answer, ^even if it were error to allow the amendment. The assignment of error upon the introduction of evidence over objection of the plaintiff cannot be considered, for the reason that the evidence is not set out in the bill of exceptions, nor is it a part of an approved brief of evidence.

Judgment affirmed.

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


text:
    14994.
    Moseley v. Binford.
   Luke, J.

1. In the trial of a statutory claim case, the sole issue is whether the property is subject or not subject to the fi. fa. The verdict in such a case, whether found by the jury or directed by the court, cannot stand unless it is so phrased as to determine this issue with definiteness. A verdict in 'favor of the plaintiff against the claimant for a given sum of money, without more, not only fails to determine the sole issue in the case, but deals with issues not involved therein. Such a verdict is a nullity on the face of the record. Civil Code (1910), § 5924; Widincamp v. James, 129 Ga. 279 (2, 3) (58 S. E. 836); Timmons v. Mathis, 9 Ga. App. 713 (2) (72 S. E. 279).

2. Where the execution in such a case 'is a tax fi. fa., and the same is offered in evidence, the fact that the transfer thereon, signed by the sheriff, is not itself in the sheriff’s handwriting, affords no ground of objection, there being no question raised as to the genuineness of tlie sheriff's signature.

Decided January 15, 1924.

Levy and claim; from Jasper superior court.—Judge Park. August 7, 1923.

W. 8. Florence, for plaintiff in error.

Clement & Campbell, contra.

3. On its facts this case differs in principle from that of State v. Hancock, 79 Ga. 799 [5 S. E. 248), in that it does not conclusively appear from the evidence in the instant case that the defendant in fi. fa., in returning for taxation in his own name the property of his wife (from whom claimant acquired whatever title he possesses), included the particular property now in question.

4. The judgment directing the verdict complained of is reversed.

Judgment reversed.

Broyles, O. J., and Bloodioorth, J., conev/r.


text:
    15003.
    KENNEY v. HIGGINS et al.

    The evidence being in conflict upon material issues, and presenting questions for determination by the jury, the court erred in directing a verdict.
    Decided January 15, 1924.
    Adhered to on rehearing, February 25, 1924.
    Complaint; from city court of Savannah—Judge Freeman. July 30, 1923.
    Certiorari was granted by the Supreme Court.

      Travis & Travis, for plaintiff in error.
    Mclntire, Walsh & Bernstein, contra.
   Luke, J.

This ease was commenced as a suit for the recovery of $300 earnest money paid on the purchase price of real property, the plaintiffs alleging that, because of the seller’s fault, the sale was not completed. Annexed to their petition is a copy of the written contract in question, which is referred to in the evidence as a “sales ticket,” and which is in words and figures as follows: “Savannah, Ga., May 10th, 1921. I have this day sold, subject to the existing leases thereon, as broker for myself, to Mrs. Helen Higgins and Mrs. J. P. Miller, for the sum of seven thousand dollars, the following property: 124-126 Waldburg Street E., being that two-and-a-half-story frame dwelling located on the northerly side of Waldburg St., about thirty feet west of the northwest corner of Abercorn St. The terms of sale are as follows: Cash. The property is sold with the same reservations as con-tamed in sales ticket to seller. Title to premises to be merchantable. Conveyance by seller is to be by warranty deed. Taxes, water rents,' rents, and insurance are to be prorated between the parties as of date of the passing of the title, which is to take place within July 1st, 1921. Time shall be of the essence of this contract, and earnest money may be retained in case of breach by purchaser. Sum of three hundred dollars has been paid on account of purchase price; same to be returned if titles to premises are not merchantable. Frank J. Kenney, Broker. Accepted: Mrs. Helen Higgins, Mrs. J. P. Miller.”

In their petition the plaintiffs allege the making of the contract, the payment of the earnest money as therein recited, their own ability, readiness, and willingness to complete the purchase in accordance with the terms of the contract, and the defendant’s refusal so to do. Plaintiffs further allege that defendant never owned or acquired any title to the property in question, so as to be able to comply with his obligations; that for several days prior to July 1, 1921, during the last days of the life of the contract, the defendant was on a drunken spree, unable to attend to any business, and so absented and concealed himself that they were unable to find him, tender the balance of the purchase price, or personally demand the conveyance; and that these things, rather than any express declaration on his part, constitute the defendant’s refusal to abide by his obligations under the said contract. It is further alleged that, after the contract had been so breached by the defendant and had lapsed, they made demand upon him for a return of the $300 earnest money and he refused to pay it. They prayed judgment against him for $300, with interest thereon at the rate of 7% per annum from July 1, 1921. In his answer the defendant admitted making the contract and receiving the $300 earnest money, but denied the remainder of the petition.

Hpon the trial the plaintiffs introduced evidence sufficient to make out their case prima facie as laid in the petition. With this statement, a further outline of their evidence here could serve no valid purpose. The defendant introduced in evidence another contract, or “sales ticket,” evidently written upon one of the same printed forms as the contract in suit, and which differed from it in the following parts only: “Savannah, Ga., May 9th, 1921. I have this day sold, subject to the existing leases thereon, as broker for G. Brown, to A. F. Breckwoldt, for the sum of fourteen thousand dollars, the following property, being those two frame dwellings located at the northwest corner of Abercorn and Wald-burg Streets in the city of Savannah, and being numbered 124, 126, 128, and 130 Waldburg St., East, said city. The lot having a frontage of about 60 ft. on Waldburg St., and a depth of about 55 ft. on Abercorn St. [Reference is hereby made to deed to seller for better description of same. Subject to the reservations-contained in deeds from Jacob E. Tussey to A. L. Harwood and Francis H. Gibbs, dated January 15, 1905. The terms of the sale are as follows : Cash. The seller or his daughter, Mrs. Ida Blumberg, is to have a lease of the upper apartment at 128 Waldburg St., East, for $40.00 a'month for one year, commencing October 1st, 1921. . . Sum of two hundred dollars has been paid on account of purchase price; same to be returned if titles to premises are not merchantable. The seller is to pay my commission of $500.00. Frank J. Kenney, Broker. Accepted: G. Brown. A. F. Breckwoldt.”

The defendant testified: that this contract was transferred to him by Breckwoldt; that upon plaintiffs learning that he held it they wanted to buy an interest in it; that he bought it for the purpose of speculation, and they wanted an interest in it for the same purpose; that, prior to this transaction, they had taken similar “sales tickets” from him as to other property, had listed the property with him for resale, and in each instance he had sold the property' at a profit to plaintiffs, this transaction being the first of their speculations to prove unprofitable. In the brief of evidence here his testimony appears in part in the following language: “They would drop into my office from time to time to inquire, and finally, in the late spring of 1921, I heard of these two houses or apartments on Waldburg Street, owned by Mr. Brown, who was just on the stand. I closed the deal with them at $14,000, and signed the sales ticket—had the sales ticket drawn at $14,000. Mrs. Miller and Mrs. Higgins happened to drop in my office, I think, the next day. I told them about getting the sales ticket on this property, and they asked if I would let them have one of the houses. . . After some discussion I agreed to let them in on it. . . They paid a deposit of $300. I in the meantime had paid a deposit on the other. I gave them a sales ticket at $7000. They immediately set a price on the property of $8500, to try to make a profit of $1500. I told them the price was a little steep; however, I would work on it. They had, as I recall, 45 or 60 days on the sales ticket,—I forget which. But in a few clays we found we could not sell it at that price, and the sales ticket was about to run out. In the meantime I had arranged to handle my part. I had retained the corner house. I had some money in the bank to pay my portion of it, and I had arranged to borrow $5000 on the corner. I had hopes of arranging for them to get $2000. I told them, You realize if you don’t get the money before the sales ticket expires, you lose the $300 ?’ They said, The $300 we hate to lose, but we haven’t got the money;’ and then they instructed me to sell the sales ticket for $500 profit. The time was short and only a few days before the sales ticket would run out. I couldn’t sell it for the $500 increase, and the result was that the sale fell through and both deposits were lost. The ladies came to my office a number of times after that, still looking for another speculation to' get their money back. Things moved along, and no demand was made for the money. No letter was ever written to me, asking for the money. This thing dragged along for nearly a year; then Mrs. Kenney and Mrs. Higgins had a little altercation. I don’t know the details of it, but in any event the next thing I knew I was notified that the ladies had put their claim in the hands of Mr. Walsh to collect this $300 deposit. . . In regard to my being away from my office and under the influence of liquor: I was not continually on a spree. I was drinking at the time. I was arrested twice for driving an automobile when under the influence of liquor, but I was at my office practically all the time. The ladies saw me at the office only a few days before the sales ticket ran out, and at that time they authorized me to sell it at $7500, or $500 profit. . . These ladies have never told me that they were ready to come across with the $7000. They told me that they were not able to raise $2000. That was between the 10th and 15th of June, 1921, along the middle of the month. They were not in my office every day—practically every day. I was not in a dreadful condition about that time. . . I was prepared to close out my part of the transaction. . . I was to pay $13,500 for the whole thing and sell the ladies the inside half for $7000. I was ready and willing to close my end of the transaction upon their paying this $7000. I had more than $7000, as my bank statement will show.” The court directed a verdict in favor of the plaintiff, but, as the case was being tried by a jury, we think that, under all the evidence as above indicated, it was within their province, and within their province alone, to say on which side of the case the truth lay. If, as contended by. the plaintiffs, they really and in good faith endeavored to complete the purchase contemplated by their contract, and were ready, willing, and able to do so, and were prevented from so doing solely by reason of the defendant’s fault in purposely absenting or concealing himself from them, or in failing to acquire a merchantable title to the property he was to convey, then they are entitled to recover. But if, as contended by the defendant, the failure to complete the purchase and sale in question was caused, not by reason of any breach of the contract on his part, but by reason of the plaintiffs’ inability to pay at the time for performance, or becausé they could not or would not pay the purchase price, or if, without fault on his part, they failed to notify him during the time for performance that they were in fact ready, willing, and able to complete the sale in accordance with the terms of the contract, then the plaintiffs are not entitled to recover. The mere fact, if it is a fact, that plaintiffs undertook to sell their contract during the time for performance, would not, of itself alone, deprive them of their contractual right to perform it themselves after having failed to sell it. Evidence as to that matter is relevant only in so far as it may help the jury to arrive at the real truth of the case touching the material issues in the case. The same principle applies with equal force to the defendant’s unsuccessful attempt to sell the other half of his contract with Brown, the real owner of the property. All parties had, as a matter of law, the unquestioned right to sell, or offer for sale, whatever interest they owned in the property, as well as the right to acquire a greater interest therein for the sole purpose of reselling the same at a profit.

The plaintiffs would now lay great stress upon the uncontradieted fact that the defendant never owned or acquired a merchantable title to the property he contracted to sell to them, insisting that the case’is analogous to one in which the seller executes a bond for title and takes the purchaser’s promissory notes for the unpaid part of the purchase price. The two cases are not, however, analogous. Under all the facts of the instant case, the only issue as to this point is as above stated. In so far as the defendant’s lack of title affected or controlled the conduct of the plaintiffs at the time of the transaction, it should affect or control the outcome of this case upon the trial, but no further than that. Cases should never turn on mere afterthought, nór should a party’s proper forethought ever be unavailing; but which is which, under the conflicting evidence in this case, is a question for the jury, and not for the court. Let them answer by their verdict upon the next trial.

Judgment reversed.

Bloodworth, J., concurs. Broyles, G. J. dissents.


text:
    15016.
    Henderson et al. v. First National Bank of Fitzgerald et al.

    Decided January 15, 1924.
    Attachment; from Irwin superior court—Judge Eve. July 21, 1923.

      H. B. Oxford, Quincey & Bice, for plaintiffs in error.

      A. J. & J. G. McDonald, contra.
   Luke, J.

1. Tlie suit being upon a negotiable promissory note, brought by a transferee, and there being no evidence to authorize the jury to find that the transfer alleged and proved by the plaintiff was made after the maturity of the note, or that the plaintiff acquired the note with notice of any of the alleged defenses, and those defenses being such as cannot be set up against an innocent purchaser for value before maturity, and there being no other issue left in the case, the court did not err in directing a verdict for the plaintiff.

2. Under the facts of the case, the other grounds of the motion for a new trial (complaining of the exclusion of certain evidence offered by the defendant) are without substantial merit.

Judgment affirmed.

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


text:
    15075.
    Walker v. The State.
   Luke, J.

In a prosecution for burglary or for larceny from the house, or both, where the only evidence tending to connect the accused with the alleged offense is his unsatisfactorily explained possession of the recently stolen goods, the judge’s failure to give in charge to the jury, either with or without request, the provisions of section 1010 of the Renal Code (1910) as to the weight of circumstantial evidence, is error requiring the grant of a new trial, even though such evidence, together with proof of the corpus delicti, will sustain a conviction if based on proper instructions. Kinard v. State, 19 Ga. App. 624; (91 S. E. 941); Harris v. State, 18 Ga. App. 710 (90 S. E. 370). The court having failed to charge the law of circumstantial evidence, it was error to overrule the motion for a new trial.

Decided January 15, 1924.

Indictment for burglary; from Fulton superior court—Judge Irwin presiding. September 21, 1923.

Branch & Howard, James A. Miller, for plaintiff in error.

John A. Boykin, solicitor-general, B. A. Stephens, B. H. Pharr, contra.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    15107.
    Thompson v. City of Albany.
    Decided January 15, 1924.
    Certiorari; from Dougherty superior court—Judge Custer. October 1, 1923.

      Lippitt & Burt, for plaintiff in error.

      J. T. Mann, contra.
   Luke, J.

A finding of the mayor’s court, adjudging Thompson guilty of violating a municipal ordinance of the City of Albany, is challenged by the petition for certiorari, upon the ground that the judgment was without evidence to support it. There being evidence to support the judgment of guilty, it was not error for the judge of the superior court to overrule the certiorari.

Judgment affirmed.

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


text:
    15115.
    FURST & THOMAS v. ADAMS et al.

    This was a suit against a principal and alleged sureties on a contract. The contract signed by the alleged sureties, properly construed, was one of guaranty, and not of suretyship. The court therefore properly sustained the demurrer pointing out a misjoinder of causes -of action and a misjoinder of parties. Musgrove v. Luther, 5 Ga. App. 279; (63 S. E. 52) ; Etheridge v. Itawleigh Go., 29 Ga. App. 698 (1) (116 S. E. 903), and citations.
    Decided January 15, 1924.
    Action upon guaranty; from Clayton superior court — Judge Hutcheson. September 28, 1923.

      Application for certiorari was denied by the Supreme Court.

      Brandon & Eynds, O. J. Coogler, Frank G. Tindall, for plaintiffs.

      E. A. Allen, J. W. Culpepper, for defendants.
   Luke, J.

A brief statement of the facts is necessary to an understanding of the ruling announced in the headnote. From the plaintiffs’ petition it appears that Furst & Thomas, wholesale dealers, entered into a contract with one Morris, a retailer, therein referred to as a “salesman,” by the terms of which they were to sell him goods on credit, and he in turn was to sell such goods at retail, pay for them as sold, and make to the wholesalers weekly reports of and remittances for all goods thus sold by him. After much detail respecting those matters, -the contract stipulates: “It is expressly understood and agreed between the parties that this contract as signed by them constitutes the sole and entire agreement between them, and no modification of this contract, written or verbal, shall be binding upon either of the parties unless in writing, signed by them, and attached hereto.” That contract was signed by Furst & Thomas and by Morris, but not by the other defendants. Annexed thereto was another contract, to which Morris was not a signatory party, but which was signed by the other two defendants alone, reading as follows: “For and in consideration of the payment of $1.00, the receipt of which is hereby acknowledged, and the extension of credit to the above-named salesman by Furst & Thomas, we, the undersigned, jointly and severally guarantee to them the faithful performance of this contract by him and payment for goods furnished to him on credit, as provided by the above agreement, waiving acceptance of this guaranty and all notice; and we agree that the written acknowledgment of his account by the said salesman shall bind us, and that any extension of time shall not release us from liability thereon; and we further agree that, upon three months from the termination of the .above agreement by either party and the nonpayment of his account by said salesman, this guaranty shall become absolute as to the amount due [by?] him, and, upon demand, we promise to pay the amount due Furst & Thomas, without any proceedings being taken by them against said salesman.”

The suit was for the recovery of $1,096.32, besides interest, for goods alleged to have been purchased by Morris under his contract but not paid for by him, and it was alleged that the other defendants had refused to pay the same upon demand, contrary to the terms of their contract. Morris made no defense. The other defendants demurred upon the ground that there was a misjoinder of parties defendant and of causes of action. The court sustained the demurrer and allowed the plaintiffs ten days in which to cure the defects by amendment; but, instead of so amending their petition, they sued out a writ of error to this court, complaining of the trial judge’s ruling upon the demurrer.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    15121.
    Davis v. The State.
   Luke, J.

1. The venue of an indictment for seduction is determined by the situs of the first act of sexual intercourse between the accused and the female alleged to have been seduced, and is not affected by the fact that his first persuasion and promises of marriage, or the greater part of them, or the other false and fraudulent means, if there were any, by which he induced her finally to yield to his lustful embraces may have taken place in some other county. Davis v. State, 28 Ga. App. 372 (110 S. E. 922).

2. Where, as in this ease, the female alleged to have been seduced testifies to the truth of every essential averment of the indictment, and is corroborated in many essential particulars by the testimony of other witnesses, and further testifies to a repetition by the accused of his promise of marriage at the time and place of their first sexual intercourse, although it appears from her testimony that the greater part of his persuasion, promises, and preparation for marriage had previously taken place in another county, the mere fact that the prisoner in his statement denies such evidence in toto does not render erroneous the following charge: “It matters not whether the persuasion and promise of marriage were used at the precise time the carnal knowledge was had. In this respect it matters not when they were used if they induced her to yield to his lustful embraces and allow him to have the carnal knowledge. The carnal knowledge must have been the result of the use of persuasion and promise of marriage.” Odum v. State, 21 Ga. App. 310 (4) (94 S. E. 257).

(a) The case of O’Neill v. State, 85 Ga. 383 (11 S. E. 856), is not here in point. In that case there was no evidence of a promise of marriage or of any other kind of persuasion at the time of the sexual act, nor even any evidence to show whether such intercourse was first proposed by the accused or by the female alleged to have been seduced. The verdict in that case was set aside for want of any evidence to support it, and not for any error in the charge of the court.

(b) Tne charge complained of in the instant case is not subject to any of the criticisms urged against it.

Decided January 15, 1924.

Conviction of seduction; from DeNalb superior court—Judge Hutcheson. October 6, 1923.

P. K. Burns, I. L. Oalces, Kelley & Kelley, for plaintiff in error.

Claude C. Smith, solicitor-general, 0. A. Nix, contra.

3. Where the accused, on trial for seduction undertakes to disprove the alleged chastity of the female by proof of her general reputation, it is proper for the court to restrict the proof to that reputation as it existed at and prior to the time of her alleged seduction by the accused. The fact, if it is a fact, that she subsequently became grossly unchaste could have no favorable retroactive effect upon the conduct of the accused toward her during the time of her virginity. Keller v. State, 102 Ga. 506 (7) (31 S. E. 92). Nor can the accused inject such irrelevant testimony into the record on the theory of exercising his right to a thorough and sifting cross-examination of the State’s witnesses. Hart v. State, 14 Ga. App. 364 (7) (80 S. E. 909).

4. The other grounds of the motion for a new trial are without substantial merit. The verdict complained of is the second verdict for the same offense, though based on a different indictment. See Davis v. State, supra. The conflicting evidence presented questions for determination by the jury only, and their finding, having the approval of the trial judge, will not be disturbed by this court.

Judgment affirmed.

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


text:
    15122.
    Fulton Transfer & Storage Co. v. Levy.
    Decided January 15, 1924.
    Certiorari; from Fulton superior court—Judge Bell. October 2, 1923.

      Troutman & Troutman, for plaintiff in error.

      George B. Rush, contra.
   Luke, J.

The only question presented in this case is whether the evidence authorized the verdict. The evidence was. not overwhelmingly in favor of the successful litigant, and was in conflict, but this court cannot say that there was not some evidence to authorize the judgment granted by the trial court. It was not error 'to overrule the certiorari.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    15144.
    Clements v. The State.
    Decided January 15, 1924.
    Indictment for possession of liquor; from Whitfield superior court—Judge Tarver. October 19, 1923.

      Maddox, McCamy & McFarland, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Luke, J.

1. The offense of possessing intoxicating liquors being a misdemeanor, the testimony of an accomplice is sufficient to establish the offense. Park’s Penal Code, § 1017, and notes on “Misdemeanor.”

(а) The fact that the same testimony may further show that the witness and the accused jointly manufactured the same liquors does not affect the rule, the accused being on trial not for the manufacturing, which is a felony, but for having such liquors in his possession, which is a misdemeanor. Byrd v. State, 28 Ga. App. 731 (113 S. E. 25).

(б) In view of the foregoing principles, as applied to the fact's of this ease, the court did not err in charging the jury as follows: “Counsel for the defendant, in his argument, has insisted that under the laws of the State of Georgia, the defendant could not be legally convicted upon the testimony of the witness Slaton, who admits he was an accomplice, if his evidence be true, of the defendant on trial. I charge you that is not the law of Georgia, and that these two cases involved being the alleged commission by the defendant of misdemeanors, if you believe from the evidence of the witness Slaton, beyond a reasonable doubt, that the defendant is guilty as charged, you should convict him. There is no legal necessity that this evidence should be corroborated in order to authorize you to return a verdict finding the defendant guilty. Whether or not, in your judgment, under all the facts, such corroboration would be necessary in order to convince your minds beyond a reasonable doubt of the guilt of the defendant is a question for your determination, as is also the question of whether or not such corroboration exists under the evidence.”

(c) If the words, “Slaton, who admits he was an accomplice,” as used in the foregoing excerpt from the charge, amount to an expression of • opinion in violation of the Penal Code, § 1058, such expression was favorable to the accused, and he will not be heard to complain of errors in his own favor. Durham v. State, 138 Ga. 817 (4 a) (76 S. E. 351).

2. The evidence authorized the verdict, and the trial judge did not err in overruling defendant’s motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Blood-worth, J., concur.


text:
    15145.
    Clements v. The State.
    Decided January 15, 1924.
    Indictment for sale of liquor; from Whitfield, superior court-judge Tarver. October 19, 1923.

      Maddox, McCc&my & McFarland, for plaintiff in error.

      J. M. Lang, solicilor-general, contra.
   Luke, J.

This is a companion case to Clements v. State, No. 15144, ante, 524. In this case the defendant was indicted for selling liquor. Eor no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    15155.
    Fort v. State.
   Luke, J.

1. In the absence of a timely written request, the mere fact that opinion evidence wa3 introduced does not require an instruction as to the weight of such evidence.

2. Where, in charging on the prisoner’s statement, the court instructs the jury that they may believe it in preference to the sworn testimony, but omits to give in charge a part of the language of the statute, and counsel for the accused fails to call the court’s attention to the omission until after verdict, the error, if any, will be held to have been waived. Wheeless v. State, 92 Ga. 19 (2) (18 S. E. 303).

3. In the tidal of a misdemeanor case it is not erroneous to fail to charge the jury that the alleged offense is a misdemeanor.

4. In the trial of an indictment for assault and battery it is not erroneous to fail to charge section 103 of the Penal Code (1910) with reference to opprobrious words and abusive language, where this defense is set up by the prisoner’s statement alone, and there is no timely written request for such a charge. Park’s Penal Code, § 1036.

(a) In Buchanan v. State, 100 Ga. 75 (1) (25 S. E. 843), there was some sworn testimony to support this defense.

5. Where the court properly instructs the jury as to the law of reasonable doubt, the failure to charge the provisions of section 1012 of the Penal Code affords no cause for a new trial. Skinner v. State, 98 Ga. 127 (2) (26 S. E. 475).

6. “In the absence of a timely written request, the failure to charge upon the credibility of witnesses, the mode of impeachment, or the weight that should be given to the testimony of witnesses successfully impeached, will not be reversible error.” Smith v. State, 7 Ga. App. 710 (2) (67 S. E. 1048).

7. After verdict it is too late to bring into question for the first time the failure to enter upon the indictment the defendant’s waiver of arraignment or his formal plea of not guilty. Perry v. State, 19 Ga. App. 619 (1) (91 S. E. 939).

Decided January 15, 1924.

Accusation oí assault and battery; from city court of Baxley— Judge Speer. October 15, 1923.

II. L. Williams, for plaintiff in error.

Wade II. Watson, solicitor, II. J. Lawrence, contra.

8. The evidence authorized the verdict, and the court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

Broyles, G. J., and, Bloodworih, J., concur.


author: Bloodworth, J.

text:
    14769.
    HEATON v. PUCKETT.
    When a verdict approved by the trial judge is supported by any evidence, this court will not disturb it because of alleged insufficiency of evidence.
    There is no merit in the amendment to the motion for a new trial.
    Decided January 16, 1924.
    Trover; from Haralson superior court—Judge Irwin. April 26, 1923.

      Griffith & Matthews, for plaintiff.

      M. J. Head, Taylor Smith, for defendant.
   Bloodworth, J.

There is no merit in the amendment to the motion for a new trial.

The verdict is approved by the trial judge, and we cannot say that there is no evidence to support it. In Rogers v. State, 101 Ga. 562, 563 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and tffe motion for a new trial overruled, this court will not interfere where there is any evidence which would justify the jury in reaching the conclusion which it set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of this State, we cannot overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    14787, 14788.
    Jenkins v. Cook; and vice versa.

    Decided January 16, 1924.
    Complaint; from Campbell superior court — Judge Hutcheson. May 16, 1923.
    Application for certiorari was denied by the Supreme Court.'

      J. F. Golightly, for Jenkins.

      Camp & Parker, contra.
   Bloodworth, J.

1. “Failure to give a certain instruction to the jury in connection with an instruction given which was correct in itself cannot he taken advantage of by excepting to the instruction given.” Atlanta & West Point Railroad Co. v. Miller, 23 Ga. App. 347 (3) (98 S. E. 248); See Ray v. State, 23 Ga. App. 124 (97 S. E. 555); Roberts v. State, 114 Ga. 450 (2), 452 (40 S. E. 297), and cases cited. Under the rulings in the foregoing cases the first special ground of the motion for a new trial presents nothing for the consideration of this court.

2. Under the facts of the case it was not error for the judge to fail to charge upon the subject of res judicata.

3. As this court cannot say that the verdict, which has the approval of the judge who tried the case, is unsupported by any evidence, this court is without authority to interfere.

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

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


text:
    14794.
    JACKSON v. HORD, by next friend.
    1. Under the ruling in Sinkovitz v. Peters Land Oo., 5 Ga. App. 788 (64 S. E. 93), the petition set out a cause of action, and the court did not err in overruling the general demurrer. See, in this connection, Ga. Ry. & Electric Go. v. Tompkins, 138 Ga. 596 (2) (75 S. E. 664).
    2. The 2d ground of the special demurrer was properly overruled. Rome Ry. & Light Oo. v. King, 30 Ga. App. 231 (117 S. E. 464(1) ); Fuller v. Inman, 10 Ga. App. 680 (4) (74 S. E. 287) ; Pacetti v. Central of Ga. Ry. Oo., 6 Ga. App. 97 (3) (64 S. E. 302).
    3. As the brief of counsel for the plaintiff in error does not refer to the first ground of the special demurrer, this will be construed to mean that he acquiesces in the order of the judge overruling it.
    Decided January 16, 1924.
    Rehearing denied February 25, 1924.

      Action for damages; from Fulton superior court —■ Judge Humphries. June 21, 1923.

      R. E. Jackson, G. E. Moore, for plaintiff in error.

      Neufville & Neufville, contra.
   Bloodworth, J.

The following statement from the pleadings will make clear the rulings announced in the headnotes: Isolyne Hord, by next friend, sued P. P. Jackson for damages on account of personal injuries which she alleged she sustained by reason of the following facts: Jackson owned a certain lot in the city of Atlanta which was surrounded by a retaining wall three or four feet high and built of belgian blocks. She “did not have any reason to suspect that the cement between said belgian blocks had crumbled away and defendant was maintaining a danger to pedestrians on the street,” She alleges that this wall was unstable and unsafe, and that defendant was negligent in maintaining this wall on a public thoroughfare in the city of Atlanta. (Par. 9) “Petitioner shows that she was without fault, and that the injuries sustained by her was because of the negligence of defendant in maintaining a dangerous wall adjacent to the sidewalk along which pedestrians were constantly passing.” She was on the street, and while passing said wall “a large loose rock weighing about 65 pounds dropped from the top of said wall and fell upon her left foot, crushing the great toe of her said left foot.”

The defendant demurred generally, and on two special grounds, which were as follows: “1. Defendant demurs specially to paragraph 8 in its entirety, wherein plaintiff alleges as follows: ‘Petitioner shows that she has incurred doctor’s bills, and medicine, amounting to about the sum of one hundred ($100.00) dollars; on the grounds that said allegations are too vague and indefinite, in that there is no itemized statement as to what the doctor’s bill is, or what amount was paid for medicine; neither does it appear in said paragraph 8, or elsewhere in plaintiff’s petition, under what rule of law the plaintiff, a minor, is liable for doctor’s bill and medicine.” “2. Defendant demurs specially to that part of paragraph 9, wherein it is alleged as follows: ‘Petitioner alleges that she was without fault,’ and ‘that the injury sustained by her was because of the negligence of defendant,’ etc.; on the grounds that said allegations set forth conclusions of fact of the pleader; it not being alleged in said paragraph, or elsewhere in plaintiff’s petition, what the identical acts and doings of plaintiff were at the time of the injuries alleged to have been received by plaintiff were.” The following order was passed by the court: “TJpon hearing the within demurrer, the same is overruled upon each and all of its grounds.” The defendant excepted.

Judgment affirmed.

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


text:
    14797.
    Bank of LaGrange et al. v. Commercial Credit Company Inc.
    Decided January 16, 1924.
    Trover; from city court of LaGrange—Judge Duke Davis. June 14, 1923.

      L. B. Wyatt, Walter B. Braman, for plaintiffs in error.

      L. L. Meadors, contra.
   Bloodworth, J.

1. “A ground of a motion for a new trial should be complete in itself, or rendered so by an exhibit attached to the motion. Accordingly, it has been repeatedly ruled that a ground based upon the admission or rejection of evidence presents nothing for adjudication when such 'evidence is not set forth therein, either literally or in substance, nor attached as an exhibit to the motion. Shaw v. Jones, 133 Ga. 446 (9) (66 S. E. 240).” Patterson v. Campbell, 136 Ga. 664 (1) (71 S. E. 1117). “There being no complaint of any ruling by the court at the trial except in admitting certain evidence, and the same not being set forth in the motion for a new trial but merely designated in general terms, no question of law is presented for decision by this court.” Boswell v. Patrick, 92 Ga. 417 (1) (17 S. E. 633). The rulings in the foregoing eases dispose of the first ground of the amendment to the motion for a new trial.

2. “The refusal to direct a verdict is not error in any case.” Dudley v. Isler, 21 Ga. App. 615 (2) (94 S. E. 827), and citations.

3. “No ground of a motion, for a new trial which is not complete and understandable without resorting to an examination of the brief of evidence or the charge of the court will be considered as presenting a question for consideration by this court.” Southern Ry. Co. v. Williams, 19 Ga. App. 544 (4) (91 S. E. 1001); Head v. State, 144 Ga. 383 (87 S. E. 273); Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668). To determine whether or not the court erred as alleged in the third ground of the amendment to the motion for a new trial, it would be necessary to refer both to the brief of evidence and the charge of the court.

4. There was sufficient evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    14810.
    DAWSON v. PLANTERS BANK.
    1. The bond given by the defendant was an ordinary forthcoming bond, as provided for by section 6041 of the Civil Code of 1910, and not such a bond as required by section 3301 in ease of an affidavit of illegality to a mortgage fi. fa.
    2. As no bond was given as required by section 3301, supra, and no pauper affidavit was filed, the trial judge properly dismissed the affidavit of illegality.
    3. The court did not err in refusing to allow the amendment to the affidavit of illegality.
    Decided January 16, 1924.
    Mortgage foreclosure; from Seminole superior court—Judge Custer. June 18, 1923.
    The Planters Bank foreclosed a chattel mortgage given by Albert Dawson, and the usual execution issued and was levied on January 24, 1923. Thereupon Dawson, the defendant in execution, gave a forthcoming bond payable to the sheriff, conditioned to have the property at the time and place of sale, and dated January 24, 1923. Later (February 3, 1923) the defendant in execution made an affidavit of illegality, which was filed in office February 23, 1923, one month after the forthcoming bond was given. The record does not show that any bond was filed with the affidavit of illegality. The defendant in execution offered to amend his affidavit of illegality, and the court refused to allow the amendment. To this refusal the defendant in execution excepted. The plaintiff in execution demurred generally to the original affidavit of illegality and moved to dismiss it because the forthcoming bond given when the sheriff levied on the property did not conform to the statute requiring bonds in cases of affidavit of illegality to mortgage fi. fas. The defendant in execution offered to amend his forthcoming bond so as “to make it conform to the terms of the statute as pointed out by said demurrer.” The court refused to allow the amendment, and granted the following order: “The within affidavit of illegality is hereby dismissed on motion of counsel for plaintiff, it appearing that replevy bond had not been filed by defendant in fi. fa. as required by law.” To this order and to the refusal to allow the amendment of the affidavit of illegality and of the bond the defendant excepted.

      Jeff. A. Pope, Jesse Gainey, for plaintiff in error.
    B7. L. Bryan, contra.
   Bloodworth, J.

(After stating the foregoing facts.) Under section 6041 of the Civil Code of 1910, any defendant in execution whose personal property has been levied upon “'by virtue of any fi. fa. or other legal process from any court,” whether he intends to contest the validity of the fi. fa. or process or the amount due thereon, has the right to give bond, acceptable to the levying officer, for the delivery of the property on the day of sale or at any other time agreed to by the levying officer. The purpose of such a bond is to enable the defendant to retain the possession of the property. It does not affect the rights of the plaintiff, “but shall relate to and have effect alone between the officer to whom it is given and the defendant in execution.” Civil Code (1910), § 6042. The statute (§ 6040) provides that it shall be made payable to the levying officer. The bond given in this case was unquestionably a forthcoming bond given under section 6041 of the Civil Code. It was on a printed form marked “forthcoming bond,” was in the usual and regular form of a forthcoming bond, was payable to the sheriff, was conditioned that the defendant in fi. fa. should have the property levied on at the time and place of sale, was given on the same day that the sheriff made the levy, and ten days before the affidavit of illegality was made and thirty days before it was filed. A bond such as is required in cases of affidavits of illegality to mortgage fi. fas. has a form and object different from the above.

Section 3300 of the Civil Code of 1910 provides that when an execution shall issue upon the foreclosure of a mortgage on personal property, the mortgagor may file an affidavit of illegality thereto, and section 3301 provides that when such an affidavit of illegality is filed the mortgagor shall give bond “conditioned for the return of the property when called for by the levying officer, which bond shall be made payable to the plaintiff.” The purpose of this bond is to postpone the sale of the property, and, when returned with “all the proceedings and papers in the case to the court from which the execution issued,” to carry the case into court, “where the issue shall be tried as other cases of illegality.” The giving of this bond at the time of filing the affidavit of illegality is a condition precedent to the return of the papers into court. An affidavit unaccompanied by such a bond is not a compliance with the statute, and should be dismissed. Glass v. Austin, 28 Ga. App. 311 (111 S. E. 84). This case differs from that of Lytle v. DeVaughn, 81 Ga. 226 (7 S. E. 281), and Gelders v. Mathews, 6 Ga. App. 144 (64 S. E. 576), in that in each of those cases the only bond given ivas “given on filing an affidavit of illegality.” In those cases there was an attempt at the time of filing the affidavit of illegality to comply with the statute by giving a bond, but the bond given was irregular and subject to amendment. In this case there was no attempt to give an “illegality” bond. The case presented here is quite different from those where an amendment of an irregular bond given at the time of filing the affidavit of illegality was allowed. In addition to the above, the copy of the forthcoming bond, as it appears in the record, is not attested and was not accepted by the levying officer; and before such a bond would be a binding contract upon the parties whose names were signed thereto the acceptance of the bond by the levying officer would be essential. Fountain v. Napier, 109 Ga. 225 (2), 226 (34 S. E. 351). See also Glass v. Austin, supra.

As no bond was given as provided by section 3301 of the Civil Code of 1910, the “proceedings and papers” were improperly returned to the court, and there was no affidavit or bond in court which could be legally amended. The forthcoming bond given on the day of the levy and sometime before the execution and filing of the affidavit of illegality was not a “part and parcel” thereof. Under the above rulings the court did not err in refusing to allow the amendment to the affidavit of illegality. See Brantley v. Baker, 75 Ga. 676 (1); Glass v. Austin, supra; Kinney v. Avery, 14 Ga. App. 180 (1, 2) (80 S. E. 663); Hayes v. Savannah Chemical Co., 17 Ga. App. 376 (86 S. E. 1073).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Bloodwortii, J.

text:
    14817.
    Lewis v. Cairo Banking Company.
   Bloodwortii, J.

1. Under the ruling in Walker v. City of Cairo, 31 Ga. App. 307 (121 S. E. 138), the exceptions pendente lite in this • case were not filed too late for consideration by this court. See also Herz v. Frank, 104 Ga. 638 (30 S. E. 797); Cole v. Illinois Sewing Machine Co., 7 Ga. App. 338 (2) (66 S. E. 979).

2. The exceptions pendente lite assign error upon the ruling of the court disallowing a proffered amendment to the defendant’s plea, the amendment being that the note sued upon was totally without consideration. The original plea embodied an allegation which, in substance, alleged that the plaintiff had received no consideration whatever for the note sued upon, and the defendant’s evidence tended to sustain this allegation. Therefore the proffered amendment, alleging a total failure of consideration, was substantially covered by the original answer. Conceding, therefore, that the court erred in disallowing the amendment this error was harmless, especially in view of the ruling of the court when disallowing the amendment that the case could be reopened for any proof under the original plea.

Decided January 16, 1924.

Adhered to on rehearing, March 1, 1924.

Complaint; from city court of Cairo—Judge Rigsby. June 9, 1923.

W. H. Duchworth, for plaintiff in error.

8. P. Gain, contra.

3. Under the facts of this case and the qualifying note of the presiding judge to the only special ground of the motion for a new trial, there is no merit in that ground.

4. Neither the bill of exceptions nor any ground of the motion for a new trial complains of the direction of the verdict. Therefore, under repeated rulings of the Supreme Court and of this court, the verdict will not be ■ disturbed if there is any evidence to sustain it. In this case the burden of proof was upon the defendant to defeat the plaintiff’s suit by a preponderance of the evidence, and, under all the facts of the case, this court cannot hold that the trial court erred in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., concurs. Luke, J., disqualified.


text:
    14949.
    CHILDS v. STATE BANK OF CHICAGO.
    The court did not err in sustaining the demurrer to the affidavit of illegality and dismissing it.

      (a) “Nothing is better settled than that the right to file an affidavit of illegality as provided for in the Civil Code, § 5305, does not include the right to go behind the judgment.”

      (b) “A verdict and judgment rendered with the consent of counsel is binding upon the client, in the absence of fraud and collusion upon the part of the counsel with whose consent such verdict and judgment is rendered.” Adkins v. Bryant, 133 Qa. 465 (1) (66 S. E. 21, 134 Am. St. R. 211).
    Decided January 16, 1924.
    Affidavit of illegality of execution; from city court of Oglethorpe —Judge Greer. July 23, 1923.

      John B. Querry, for plaintiff in error.

      Jule W. Felton, contra.
   Bloodworth, J.

An execution in favor of the State Bank of Chicago and against J. N. Childs was levied on certain property of the defendant, and an affidavit of illegality was interposed which alleged that the execution “did issue illegally and is proceeding illegally, for the following reasons, to wit: Deponent says that he has never had his day in court. Deponent sajes that the acceptance sued on was not signed by him, nor was it signed by any one authorized by him so to sign, and was not his action and deed; that he filed a defense in said court of non es facto [non est factum] and that no proof of the execution of said acceptance was ever made in said court; that without his knowledge or consent and against his will, either express or implied, J. J. Bull & Son, who were representing this defendant in said case in said court, consented and agreed with counsel for plaintiff, the State Bank of Chicago, that he would withdraw plea filed in said case and allow judgment to be taken. Deponent saj's further that he did not know of said agreement, did not consent to said agreement, was not a party to said agreement, and is not bound by said agreement, and that J. J. Bull & Son acted without his knowledge or consent.” To this affidavit of illegality a general demurrer was filed. The court sustained the demurrer and dismissed the affidavit of illegality. In this there was no error. It will be noted that the affidavit of illegality does not allege fraud on the part of the attorneys for the defendant, or knowledge on the part of the plaintiff of the lack of authority of this attorney to withdraw the plea and allow judgment to be entered. In Patterson v. Georgia Gravel Co., 151 Ga. 815 (2) (108 S. E. 237), the Supreme Court said: “The plaintiff in the equity suit cannot go behind the judgments by affidavit of illegality, and attack the judgments upon the ground that they were rendered by the consent of his counsel, without plaintiff’s knowledge or consent, in direct opposition to his instructions to his attorney, and with the knowledge of the adverse party of the violation of such instructions. Civil Code (1910), §5311; Tumlin v. O’Bryan, 68 Ga. 66; Southern Railway Co. v. Daniels, 103 Ga. 541 (29 S. E. 761); Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174 (82 S. E. 774). It is obvious that illegality was not an available remedy.” In Williams v. Simmons, 79 Ga. 654 (7 S. E. 135), Chief Justice Bleckley said: “When a suitor comes into court, competent to select counsel, and does select counsel, no matter who the suitor may be, or how much married, the counsel is there for the purpose of representing the client, and whatever the counsel assents to, the client assents to. There is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person; and it is no answer to a decree, a solemn judgment of a court, for the client to come in and say that the counsel misrepresented the client’s interests, or did not represent the client’s wishes. Let the client see that the counsel conforms to instructions, and if there is any injury by failure to do it, let the counsel answer for it, and not the other party.” See Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., supra, and cases cited: Tumlin v. O'Bryan, 68 Ga. 65 (1); Glover v. Moore, 60 Ga. 189; Coweta Fertilizer Co. v. Johnson, 26 Ga. App. 528 (106 S. E. 610); Bryant v. Elberton &c. Railway Co., 20 Ga. App. 588 (2) (93 S. E. 219). The cases cited in the brief of counsel for plaintiff in error are easily differentiated by their' facts from this case.

Judgment affirmed.

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


author: Broodwortii, J.

text:
    14955.
    Middlebrooks et al. v. Fisk Tire Company Inc.
    Decided January 16, 1924.
    Complaint; from city court of Zebulon—Judge Dupree. July 14, 1923.
   Broodwortii, J.

1. Eor no reason assigned did the court err in allowing the amendment to the petition.

2. “A ground of a motion for a new trial in which error is assigned on the exclusion of certain testimony is insufficient when it does not appear from the ground itself that the exclusion of the testimony was prejudicial to the complaining party.” Campbell v. Walker, 20 Ca. App. 88 (4) (92 S. E. 545). “In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was -material, and would have benefited the complaining party.” Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712). Under the rulings in the foregoing cases the. first special ground of the motion for a new trial will not be considered.

3. The excerpt from the charge of the court of which complaint is made is not subject to the criticism' lodged against it.

4. So far as this court is concerned, where there is a conflict in the evidence the verdict of the jury is final. In this case the jury has determined the issue of fact in favor of the plaintiff, and, as the motion for a new trial points out no error of law, tile judgment must be

Affirmed.

Broyles, C. J., and Luke, J., concur.

The amendment referred to in paragraph 1 of the decision was an amendment to the account sued on, and the ground of the objection to the allowance of the amendment was “that it was not verified by the same person that verified the original bill of particulars, and that said amendment was verified by the attorney for plaintiff.” The original account was verified by an agent of the plaintiff corporation.

Claude Christopher, Frank L. Adams, for plaintiffs in error.

B. C. Johnson Jr., contra.


text:
    14962.
    Atlas Assurance Company Limited v. Williams.
   Luke, J.

1. A stipulation in a policy of fire insurance that “In the event of disagreement as to the amount of loss or damage, the same must be determined by competent and disinterested appraisers before recovery can be had hereunder” does not make such appraisal a condition precedent to a suit upon the policy, even though the company and the insured disagree as to the amount of the loss. Liverpool do. Insurance Co. v. Creighton, 51 Ga. 95; Goldberg v. Provident Washington Ins. Co., 144 Ga. 783 (87 S. E. 1077).

(a) Even if such stipulation were construed as a condition precedent, the company waived it, under the facts of this case, by failing to demand compliance with its provisions within the sixty-day period allowed by law for payment of the loss.

2. Where a verdict finds for a party an amount of interest greater than that to which he is entitled under the pleadings and the evidence, but the excess is voluntarily written off by him, thereby rendering the error harmless, the opposite party will not be heard to complain. Griffin v. Witherspoon, 8 Ga. 113.

3. One ground of the defendant’s motion for a new trial complains of the admission in evidence, over its objection, of testimony relating the substance of a conversation between the plaintiff and a “Mr. Raine.” Reference to the brief of the evidence is necessary to ascertain which Mr. Raine is referred to, and what connection, if any, he had with the case. From the brief of evidence it appears that George B. Raine was sworn as a witness for the defendant, and that J. II. Raine was its general agent. Held, that such a ground of error will not be considered by this court. Ward-Truitt Co. v. Nicholson, 23 Ga. App. 672 (2) (99 S. E. 153); Sims v. Sims, 131 Ga. 262 (62 S. E. 192), and cit.

4. The defendant’s witness George B. Raine having testified, without objection, that J. H. Raine was the general agent of the defendant, the admission in evidence of a letter to plaintiff’s counsel from the defendant’s local agent who wrote the policy, referring to “John II. Raine” as such agent, even if erroneous, was harmless. For the same reason the charge of the court touching such letter can in no event afford the defendant cause for a new trial.

Decided January 16, 1924.

Action on fire-insurance policy; from Fulton superior court— Judge Ellis. July 2, 1923.

Affirmed by the Supreme Court, on certiorari. 158 Ga.

Spalding, MacDougald & Sibley, Esles Dor emus, for plaintiff in error.

A. W. While, B. G. Benlley, contra.

5. The evidence authorized the verdict, and, having the approval of the trial judge, will not be disturbed by this court.

Judgment affirmed.

Broyles, G. J., and Bloodworllí J., concur.


author: Bioodworth, J.

text:
    14965.
    Medlin v. Padgett.
    Decided January 16, 1924.
    Motion to vacate verdict; from city court of Richmond County —Judge Black. August 1, 1923.
    Trover was brought in the city court of Richmond county against Medlin by L. P. Padgett for certain personal property alleged to be of the value of $300. There was a verdict against the defendant, and he filed a motion to vacate the verdict. This motion was dismissed by the court, on oral motion of the plaintiff; and the defendant excepted.
    The motion to vacate the verdict was in substance as follows: When the plaintiff instituted the trover proceeding the movant, a farmer residing in the southern part of Richmond county, employed J. T. Olive, an attorney of Harlem,- Ga., to represent him in the matter. Some months later the plaintiff swore out a warrant charging the movant with having “sold the property under mortgage, the subject-matter of the said trover suit.” The movant employed A. R. Williamson, an attorney of Augusta, Ga., to represent him in that case, and was found not guilty. The movant was advised by this attorney that he would probably hear nothing further from the plaintiff, but if the plaintiff did’ bring a civil suit, to advise him. Williamson did not know that a trover suit had been brought, and the movant, knowing little about courts and legal matters, thought that the criminal action involving the same state of facts had settled this litigation. On Monday, February 13, 1922, the movant received from J. T. Olive a letter mailed in Harlem, Ga., on February 11, saying that the writer had just received notice that the case of L. F. Padgett against the movant had been assigned for trial “next week,” that the case had been pending for a long time, and he did not believe that another continuance would be granted, and “you had better come up to see me in reference to same.” Later Olive came to his house and told him that the case would be tried on February 14, and he told Olive that Williamson Would represent him. The movant called at Williamson’s office in Augusta on February 14, about 9 o’clock a. m., but Williamson did not reach the office until about 15 minutes of 10 o’clock. On being advised of the pendency of the suit Williamson immediately called the plaintiff’s counsel over the telephone, and was advised that he was going to the-court-house to .try the said case. Williamson then notified the plaintiff’s attorney that he would be there to represent the movant and would leave at once. The movant went immediately to the court-room and was there when the case was called for trial. The plaintiff’s counsel advised the court that Williamson was representing the movant and had telephoned that he was coming immediately to the court-room; whereupon the court called the case for trial and in the presence of the movant had a jury impaneled, the plaintiff introduced evidence, and a verdict was directed against the movant, for $211.80 and costs. Williamson arrived at 10 :30 o’clock, immediately after the verdict was rendered, and asked the court to vacate the verdict, and announced that the movant would go to trial immediately. As a case was in progress the court took no action upon this oral'motion. The motion was repeated on the next morning, and the court refused to entertain it. “And now on the 16th of February, 1922, at the opening of court, counsel for plaintiff being advised of this motion, the movant presents his written motion to vacate the verdict, and while the court is still in session, jurors in attendance for the trial of cases, and court not to adjourn for four more days of the present session, is prepared to go immediately to trial in said cause. The movant shows that he has a meritorious defense to said cause, that the written instrument on which plaintiff has based his trover proceeding was never introduced in evidence; that it shows an apparent indebtedness of over $300, but the plaintiff admitted in the' criminal action that $100 of the amount was for -usurious interest. The movant shows further that he has a receipt from the plaintiff for $120, and has witnesses who saw him pay the $120 on said indebtedness; that the movant is not indebted to the plaintiff in any amount, the notes signed aforesaid being to cover advances to be made by the plaintiff to the movant, which advances the movant never received, other than the $120, though he repeatedly requested that the balance be paid him. Wherefore movant prays that the verdict aforesaid be vacated,” etc.
   Bioodworth, J.

The written motion to vacate the verdict shows on its face that there is no merit therein; and the trial judge, on motion, properly dismissed the same.

Judgment affirmed.

Broyles, O. J., amd Luhe, J., concur.

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

Isaac 8. Peebles Jr., contra.


author: Bloodwoeth, J.

text:
    14975.
    Brooks v. Ritch.
    Decided January 16, 1924.
    Processioning, from Banks superior court—Judge Fortson. August 6, 1923.
    P. Cooley, for plaintiff in error.

      W. W. Starh, contra.
   Bloodwoeth, J.

1. The 4th ground of the motion for a new trial states that certain evidence set out therein “was repeatedly objected to on the part of counsel for Mrs. M. J. Brooks, and the court finally disposed of same by stating that he would reserve his ruling. Counsel submits that the court should have sustained his objections, as the evidence was irrelevant and immaterial and was not the proper manner and way to prove agency.” This ground is disposed of by the ruling in Cawthon v. State, 119 Ga. 395 (46 S. E. 897), that “Where the court, over objection, admits certain evidence, with the statement that the objection will be passed upon at a later stage of the trial, it is incumbent upon the objecting party, if the evidence be inadmissible, to direct the court’s attention thereto either before or at the close of the testimony, and to move to exclude it; and upon his failure to do this he will be held to have waived his objection.”

2. There is sufficient evidence to support those portions of the charge of the court which are complained of as not being authorized by the evidence.

3. This court cannot say that there is no evidence to support the verdict.

Judgment affirmed.

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


text:
    15001.
    AMERICAN WRITING MACHINE CO v. BOBO.
    The contract under which the typewriter that the plaintiff sought to recover in trover was delivered by the plaintiff to the defendant’s vendor was a contract of rent, and not of sale; the title to the property remained in the plaintiff, and there was no evidence to support the verdict in favor of the defendant. The court erred in overruling the motion for a new trial.
    Decided January 16, 1924.
    Trover; from Haralson superior court—Judge Irwin. August 20, 1923.
    The evidence shows that the American Writing Machine Company, after some correspondence with B. E. Turner, sent to him an order blank which, after being signed and returned to them, was as follows: “Bental order blank. Please use this order .blank in order to ensure prompt shipment: American Writing Machine Company, 48 N. Pryor St., Atlanta, Ga. Enclosed is $5.00 in the form of post-office money order to pajr rental for three months on Bemington typewriter. If I decide at the end of three months to buy the machine, you are to credit me with the full amount of five dollars on the purchase price. If I decide at the end of three months rental not to buy the machine, and should hot wish to keep it on rental any longer, I agree to return it to you by prepaid express, carefully boxed. I am to have the privilege, however, of renting the machine longer, if I should wish to do so, at the special rate of five dollars for three months, or at the rate of $.... if rented by the single month. My shipping point is Tallapoosa, Ga., post-office address is Tallapoosa, Ga. Yours truly, (Sign here) B. E. Turner. Name of reference John Smith, address Tallapoosa, Ga. Name of reference W. H. Davis, address Tallapoosa, Ga.” After receiving the typewriter and using it for some time, Turner sold it to S. E. Bobo, and left the community in Avhieh he was liA’ing. The typewriter company finally instituted an action of trover against Bobo. Bobo filed a plea Avhieh in part is as folloAvs: “Defendant Avas in possession of a typewriter, but whether of the exact numbers and description alleged defendant can neither admit nor deny. Defendant denies that it was of the value alleged, or that plaintiff had any title thereto or just claim or title thereto, or right to the possession thereof.” When the case was tried the jury returned a verdict for the defendant. The plaintiff made a motion for a new trial, which was overruled, and the movant excepted.

      H. J. McBride, for plaintiff.

      Griffith & Matthews and Lloyd Thomas, for defendant.
   Bloodworth, J.

(After stating the foregoing facts). The court properly construed the contract,—the order blank as signed and returned,—as “one of rental.” Under the facts shown by the record Turner never bought the typewriter. Before a sale of personal property is complete, the statute provides, not only must there be “consent of the parties” and “identification of the thing sold,” but also an agreement as to the price to be paid. Civil Code (1910), § 4106. See Dudley v. Taylor, 22 Ga. App. 715, 716 (97 S. E. 91). Granting that the contract gave to. Turner an option to buy the typewriter, he never gave to the American Writing Machine Company any notice that he would exercise this option; and as the contract named no purchase price and none was ever agreed upon, there was no sale, and the title remained in the American Writing Machine Company. As there is no evidence to support the verdict, the court erred in overruling the motion for a new trial.

Under this ruling it is unnécessary to consider the other assignments of error.

Judgment reversed.

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