text:
    15921.
    MERCHANTS & MINERS TRANSPORTATION CO. v. GABLE & SINGER.
    1. It appearing from tlie record that the petition for certiorari was not filed until more than three months after the rendition of the judgment sought to be reversed, the proceeding is to be treated as void.
    2. The proceeding was fatally defective for the further reason that it did not affirmatively appear from the record, after the judge’s answer was in, that the writ was applied for within thirty days from the final determination of the case.
    3. The certiorari proceeding- being defective for the reasons stated above, the judgment of dismissal will be affirmed trpon the record, although the judge may have based his rulings upon other grounds.
    Decided April 17, 1925.
    Certiorari; from Chatham superior court—Judge Meldrim. August 1, 1924.

      William R. Sanderson, for plaintiff in error.

      Andrew J. Ryan Jr., contra.
   Bell, J.

Gable & Singer brought a suit in the municipal court of Savannah against Merchants &, Miners Transportation Company, to recover' damages for delay in the carriage of a shipment from Baltimore to Savannah. The case terminated in the municipal court by a judgment in favor of the plaintiff. By certiorari the defendant carried the case to the superior court, where the certiorari was overruled or dismissed, and the defendant has brought a bill of exceptions to this court, assigning error upon that judgment.

A number of questions are argued in the brief of counsel for the plaintiff in error, but, irrespective of the correctness of the legal contentions thus made, we can not render any other judgment than one of affirmance, under the record. The answer to the certiorari as made by the judges of the municipal court was as follows:

“1. The evidence set forth in the petition for certiorari is correct. As supplemental thereto the undersigned judges understood- the testimony of the witness 'H: Singer to be that all of the contents of the box, which was not delivered until after the passover, were specially prepared’ for the; passover, and were of no value to the firm of Gable & Singer after the passover had expired.

“2. The original papers in said case are herewith sent up and certified as correct.”

It will be seen that the answer fails to verify that the writ was applied for within thirty days from the final determination of the case; nor does the fact otherwise appear in the record. The petition alleges that the final judgment in the municipal court was rendered on January 28, 1924. The answer of the judges of the municipal court fails to verify this allegation, unless by reference to the original papers “sent up” (see Barfield v. McCombs, 89 Ga. 799 (4), 15 S. E. 666); and in these there is nothing, so far as appears in the record before us, to show the date of the final judgment, or even that a final judgment was rendered. The petition for certiorari was filed on June 2, 1924, more than thirty days from the date of the final judgment as alleged in the petition. No sanction of the petition aj^pears. There is, therefore, nothing to show that the writ was applied for within thirty days from the final judgment, assuming that a final judgment was rendered on the date alleged in the petition.

But even if the petition could be treated as .having been sanctioned within thirty days from January 28, 1924 (which, of course, in the state of the record can not be done), there was a failure to comply with the requirement of the then existing law (see subsequent statute, Ga. L. 1924, p. 59) that all writs of certiorari shall be brought by the filing of the petition therefor within three months after the rendition of the judgment sought to be reversed. Kirkland v. Luke, 30 Ga. App. 203 (1) (117 S. E. 259).

With further reference to the question of sanction, it is the rule that where in a certiorari case it does not affirmatively appear from the record, after the answer is in, that the writ was applied for within the time provided by law, the petition should be dismissed because of the failure of the petition to disclose a ngcessarv jurisdictional fact. Sirmans v. Zucker Importing Co., 9 Ga. App. 789 (72 S. E. 190); Elder v. Abel, 33 Ga. App. 313 (125 S. E. 789).

It follows that the certiorari was properly ’dismissed upon 'the record, irrespective of the reasons assigned by the trial judge for his judgment.

Judgment affirmed.

J.enlcins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15936.
    Shealey v. Wilder et al.

   Bell, J.

1. In an action of trover for tlie recovery of tlie value of lumber manufactured from trees cut by tlie defendant from the lands of tlie plaintiffs, if the defendant was a wilful trespasser the plaintiffs may recover the full value of the property at the time of demand or suit brought without deduction for labor or expense. Civil Code (1910), § 4515 (1). If the defendant claims a reduction of the damages by reason of his good faith, the burden is upon him to show the facts necessary to the establishment of such defense. Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (4) (63 S. E. 270).

2. In the present action, which was of the character indicated above, the evidence authorized the inference that the defendant had cut and removed from the lands of the plaintiff seventy-one trees, and that all of them had been manufactured into lumber. It did not conclusively appear that the conversion was in good faith. The proof established with sufficient certainty the quantity of lumber made from twenty-five of the trees, and that the value of the same was not less than $248.50, the amount of the verdict. The verdict was therefore authorized, irrespective of whether the evidence showed with sufficient definiteness the quantity of lumber made from the remainder of the trees.

3. There was no error against the defendant in the charge of the court which instructed the jury that if the conversion was wilful, the plaintiff’s measure of damages would be the market value of the property at the time of the conversion, although it is provided in the code that in such a case the measure would be the full value of the property at the time and place of demand or suit brought. Proof of a demand and a refusal in a trover suit is only necessary in order to furnish evidence of the conversion, and is not essential to a recovery if a conversion is otherwise shown. Young v. Durham, 15 Ga. App. 678 (5) (84 S. E. 165). The defendant was not harmed by an instruction which limited the measure of the recovery to the: value of the property at the time of its conversion.

4. There was no material difference between the court’s charge to the effect that if the cutting of the timber was done innocently, the measure of the recovery would be the “fair market value of the trees sued for, at the time of its conversion,” and the provision of the section of the code cited above, that where the defendant is an .unintentional or innocent trespasser the measure of the recovery shall be the value at the time of the conversion, less the value which he has added to the property. While the plaintiffs sued not for trees, but for the value of lumber manufactured therefrom, it is not cause for a new trial that the court, in charging as above upon the defense that the cutting was innocent, made use of the expression “the trees sued for.”

Decided April 17, 1925.

Action for damages; from Colquitt superior court—Judge W. E. Thomas. August 23, 1924.

James L. Dowling, for plaintiff in error.

Hoyt II. Whelchel, contra.

5. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16012.
    SAWYER v. BIRRICK.
    In this action for money had and received, founded upon the theory of fraud in the defendant in procuring it, the plaintiff having failed to allege any facts tending to show why the representations should have been believed and relied on, the petition failed to set forth a cause of action, and the general demurrer thereto was properly sustained.
    Decided April 17, 1925.
    Assumpsit; from city court of Macon—Judge Jordan. October 17, 1924.
    Arthur Sawyer brought a suit against Joe Birriek, alleging as follows: “Said defendant is indebted to-petitioner on assumpsit and for money had and received in the principal sum of $510.00, together with interest thereon at 7 per cent, since the 27th day of November, 1923, by reason of the facts hereinafter set forth.” “Said debt is due, owing and unpaid and petitioner has demanded payment thereof, and payment has been refused.” “On November 27, 1923, the defendant came to plaintiff and represented to plaintiff that Willie Sawyer, the son of plaintiff, had damaged an iron safe in the store of defendant in Macon, Ga., the property of defendant, in the sum of $520.00, by attempting to force the lock on said safe, and demanded of plaintiff that he pay defendant $520.00 damages to said iron safe, which the defendant represented that he had sustained by the acts of the said Willie Sawyer, the son of the plaintiff. Plaintiff accepted the representations of the defendant as true, and in good faith paid the defendant the $520.00 demanded as settlement of the alleged damages to the said iron safe.” “Petitioner has learned, since he paid the defendant"said money, that the representations of the defendant as to the damage to his safe were false and fraudulent; that the safe was a small iron safo about three feet high, was old and second-hand, costing new not exceeding $50.00, and worth at the time of the damage not exceeding $25.00; that the extent of the damage to it was that the knob on the outer door was knocked off, which damage could easily have been repaired for $10.00.” “ Plaintiff shows, the premises considered, that.the defendant has $510.00 of plaintiff’s monejf to which he has no right or title, that he secured same by a fraudulent misrepresentation as to the facts, as shown above, and plaintiff asks for judgment against the defendant for the said sum of $510.00 with interest thereon at 7 per cent, since November 27, 1923.”

      B. B. Feagin, C. B. Irwin, for plaintiff.

      Brock, Sparks & Bussell, for defendant.
   Bell, J.

(After stating the foregoing facts.)

The claim which is alleged to have been made by the defendant upon the plaintiff and to which the plaintiff acceded is one which in its very nature suggested the need of inquiry, certainly as to the amount. Askew v. Central Trust Co., 26 Ga. App. 122 (1) (106 S. E. 198). There are no allegations to show that the plaintiff was prevented from ascertaining the extent of the damage alleged to have been done by his son to the defendant’s safe, or that the means of knowledge were not easily at hand. When the means of knowledge are at hand and equally available to both parties to a contract, if one of them does not avail himself thereof he will not be heard later to say in impeachment of the contract that he was deceived by the representations of the other. The burden is upon him to show not only that he relied upon the representations, but that in doing so he was not wanting in the proper diligence. What degree of diligence or caution should be exercised in a transaction of this sort, -whether the same as in the purchase of land, need not be determined in the case before us, because the petition fails to disclose the exercise by the plaintiff of any diligence whatsoever. So far as appears, he was the victim of his own credulity. No right of reliance is shown. In the absence of allegations to show why the representations should have been believed, the petition failed to set forth a cause of action, and the general demurrer thereto was properly sustained. Brooks v. Boyd, 1 Ga. App. 65 (1) (57 S. E. 1093); Miller v. Roberts, 9 Ga. App. 511 (2) (71 S. E. 927); Wrenn v. Truitt, 116 Ga. 708 (43 S. E. 52); Hayslip v. Fields, 142 Ga. 49 (1) (82 S. E. 441); Miller v. Ozburn Realty Co., 18 Ga. App. 768 (1) (90 S. E. 652); Perdue v. Harwell, 80 Ga. 150 (2) (4 S. E. 877); Smith v. Shinn, 31 Ga. App. 356 (120 S. E. 647); Rutland v. Parham, 32 Ga. App. 662 (1) (124 S. E. 355).

Judgment affirmed.

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


text:
    16031.
    MYERS v. WOODSON.
    1. Where a suit is brought upon a promissory note signed in a trade name by an individual, proof of the execution of the note in the manner alleged is sufficient, in the absence of anything to the contrary, to authorize the inference that the individual who signed the trade name to the note was a party thereto.
    2. Where an individual personally executes a contract to which he is a party, the absolute want of any necessity that it should also be signed in his behalf by another as his agent is a circumstance which may be considered by the jury, with other circumstances, in weighing his testimony to the effect that he alone was a party to the note, and that the other person who participated in its execution was acting merely as his agent.
    3. A defendant may, of course, lile contradictory pleas (Civil Code of 1910, § 4646) ; but the plaintiff may take advantage of the contradictory nature of the defenses, and may use, as an admission against the defendant, a statement made in one of the pleas, although in another of the pleas there is set up a contradictory state of facts. The jury are not "bound to accept the testimony of a witness which is contradictory to a plea he has filed.
    4. In this "action upon notes against two persons as partners, to which one of them filed a plea of no partnership, applying the above rulings to the evidence introduced upon the trial of the issue formed by such plea, it can not be said that the verdict found for the plaintiff was as a matter of law unauthorized, although a witness testified positively in support of the plea, and his testimony was not contradicted by the testimony of any other witness, nor inherently subject to discredit by the jury. The court did not err in overruling the defendant’s motion for a new trial, based upon the usual general grounds only.
    Decided April 17, 1925.
    Complaint; from city court of Bainbridge—Judge Spooner. October 13, 1924.

      Hartsfield & Conger, for plaintiff in error.

      Harrell & Custer, contra.
   Bell, J.

Robert E. Woodson brought suit against Sam J. Myers and S. Myers, doing business as the “Myers Pecan Products Company,” and the “Bainbridge Metal Company,” upon eleven notes; One of them was signed “Myers Pecan Pro. Co.” by Sam J. Myers and S. Myers, and the others were signed either “Myers ' Pecan Products Co.” or “Bainbridge Metal Co.” by Sam J. Myers. The defendant Sam J. Myers filed a special plea alleging that the names “Myers Pecan Products Company” and “Bainbridge Metal Company” were trade names used in the business of S. Myers, in which Sam J. Myers had no interest; that he was merely the employee and agent of S. Myers, his father, and in that capacity alone he signed the notes sued on. The defendants filed a joint answer denying that they did business together under the trade names as alleged, and averring that the business carried on under such names respectively belonged solely to S. Myers, and further setting up failure of consideration. By agreement S. Myers was dismissed from the suit, because of his bankruptcy. While the case went to trial generally, there was no proof of a failure of consideration, and the sole issue developed by the evidence was in regard to the matter set up in the special plea. The jury found against the plea, and in favor of the plaintiff for the amount sued for. The defendant made a motion for a new trial, which was overruled, and life excepted. Since the motion contains only the usual general grounds, the sole question for determination js whether there was evidence to support the verdict.

The pleadings of both parties having shown that the names “Myers Pecan Products Company” and “Bainbridge Metal Company” were mere trade names, and not the names of corporations, it follows that they were either the names of partnerships or trade names employed by an individual. Upon the filing of the plea of no partnership, it was incumbent on the plaintiff to prove the existence of the partnership, or that the defendant Sam J..Myers rvas the proprietor. American Cotton College v. Atlanta Newspaper Union, 138 Ga. 147 (3) (74 S. E. 1084); Atlanta Trust Co. v. Willingham, 20 Ga. App. 152 (92 S. E. 759); Cowart v. Fender, 137 Ga. 586 (5) (73 S. E. 822, Ann. Cas. 1913A, 932); 30 Cyc. 403 (c). Proof of the execution of the notes in the manner shown was sufficient to authorize the inference that Sam J. Myers was a party thereto, and to warrant a finding for the plaintiff, in the absence of rebuttal eAÚdence demanding a contrary conclusion. Cary v. Simpson, 15 Ga. App. 280 (2, 3) (82 S. E. 918); Swygert v. Bank of Haralson, 13 Ga. App. 640 (2) (79 S. E. 759); Miraglia v. Gose, 17 Ga. App.. 639 (2, 3) (87 S. E. 906); American Cotton College v. Atlanta Newspaper Union, supra. It might perhaps be otherwise if there had been nothing to show that these “companies” were mot corporations.

When the plaintiff introduced the notes and rested, S. Myers was sworn as a witness for the defendant Sam J. Myers, and testified: “ ‘S. J./ sometimes written ‘Sam J./ is my son. lie is now about twenty-five years of age. Myers Pecan Products Company and the Bainbridge Metal Company were trade names used by me individually. My son S. J. Myers had nothing whatever to do with the businesses; had no interest or concern in them whatsoever except as an agent and as an. employee. On account of my son’s educational advantages and my lack of information, I authorized him to sign notes and other contracts for me. He had no interest in either of the businesses. They were both individually owned and operated by me. He was not a partner in any wise in either of the businesses. He did not suffer any of the losses or share in any of the profits; he was simply an employee. When he first came back from school I started him off at $50 per month, but had,raised his salary until he ivas receiving $100 per month'. Tire notes sued on are my individual obligations. He simply signed the instruments upon my authority and as my agent. He received none of the benefits derived from the purchase of the goods for which the notes were given, and was not interested therein except as authorized by me and as an agent,—an employee of mine. My education is very limited. As a matter of fact I can scarcely read and can not write.”

The evidence of this witness does not appear to have been subject to any inherent weakness or infirmity which would have authorized the jury to disregard it (see Neill v. Hill, 32 Ga. App. 381, 123 S. E. 30); and since there was no other testimony, we should think that a finding for the defendant was demanded except for other circumstances appearing in the record, to which we will now advert. One of the notes was signed “Myers Pecan Pro. Co. by Sam J. Myers (L. S.), S. Myers (L. S.).” If S. Myers was the sole proprietor, his signature to this note would have been all sufficient, without the sunora.dded signature of his agent. Where an individual personally executes a contract to which he is a party, it is wholly unnecessary, if not altogether unusual, that it should be signed also by his agent. Again, the parties defendant were Sam J. Myers and S. Myers, and these were meant by the word “defendants” in the answer. In the plea or answer which the defendants jointly filed, setting up failure of consideration, appears certain language in which joint liability of the defendants was practically admitted. For instance, paragraphs 8 and 10 of the answer were as follows: “8. Further answering, defendants say, subject to defendant S. J. Myers’ plea of nonliability on account of the misjoinder of parties, that the Myers Pecan Products Company purchased from the plaintiff in November, 1919, one pecan cracking machine for the sum of $750, which machine defendants say was wholly inadequate and unsuited to the uses and purposes intended, and for which the defendants paid the plaintiff the sum of $750 in cash. Defendants further say that in 1920 they purchased two additional pecan cracking machines for the sum of $750 each, on rvliich $500 in cash was paid,—the balance being evidenced by notes of said company payable to the plaintiff in the sum of $1000.” “10. Defendants further show that in the fall of 1921 they purchased three additional machines of the same type and character of machine as above stated, to wit: model cracking machines of 1923, for which they further agreed to pay the sum of $2200, evidenced by eleven promissory notes of $200 each, making a total of said machines on hand purchased from said plaintiff six in number.” (Italics ours.) The answer contained other admissions similar to those marked by the italics above.

A defendant may, of course, file contradictory pleas (Civil Code of 1910, § 4646); but the plaintiff may take advantage of the contradictory nature of the defenses and may use as an admission against the defendant a statement made in one of the pleas, although in another of the pleas there is set up a contradictory state of facts. White Sewing Machine Co. v. Horkan, 7 Ga. App. 283 (2). “Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” Civil Code (1910), § 5775. Where matter is coutainod in a pleading, from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in the record in his favor. New Zealand Insurance Co. v. Brewer, 29 Ga. App. 773 (6, 7) (116 S. E. 922); Sims v. Ferrill, 45 Ga. 585 (3); Hickson v. Bryan, 75 Ga. 392 (2). The defendant could not deprive the plaintiff of the right to any inferences that might be drawn-favorably to him from matter appearing in the plea of failure of consideration by declaring at the outset of that plea that it was made subject to the special plea previously filed. This was merely a precaution (taken unnecessarily, perhaps,—see Warren Brick Co. v. LaGarde Lime Co., 12 Ga. App. 58 (1), 60, 76 S. E. 761), to avoid any conclusion that the special plea was waived. S. Myers was equally a party to the answer, and anything in that which was contrary to his testimony could be considered by the jury in passing upon the value of his evidence.

Considering the record as a whole, we can not say that the verdict was unauthorized.

Judgment affirmed.

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


text:
    16034.
    SUBERS, executrix, v. HIRSCHENSOHN.
    1. Where, prior to the creation and organization of the county of Seminole, which became established as a county on January 1, 1921, a trover suit against a person residing in that part of Decatur county which subsequently went into the formation of the new county was duly filed in the city court of Bainbridge in Decatur county, and was followed by legal service upon the defendant as a resident of that county, but where the defendant had ceased to be a resident of such territory at the time of the creation of the new county, and continued to be a non-resideñt thereof until after the new county was created and organized, the suit was not one transferable to the new county, under the provisions of section 829 of the Political Code, either upon its organization or upon the defendant’s subsequently renewing his residence therein.
    2. Moreover, where, after the creation and- the organization of the new county, the case was twice tried in the original county without objeer tion of either party, whatever right either may have otherwise had to insist upon, a transfer of the case to the new county was waived, and the jurisdiction of the original county continued. Under such circumstances the suit could'not lawfully have been transferred to the . new county, over the objection of either party.
    3. As between courts neither of .which has corrective power over the other, one can not render a judgment binding the other to assume jurisdiction of a case when it has none; and this is true irrespective of whether the judgment might estop one or both of the parties to deny the jurisdiction of the latter court.
    4. Neither the judgment of the city court of Bainbridge, transferring the case to the superior court of Seminole county, nor the judgment of the latter court dismissing the ease from its docket, is construed as dismissing' the case altogether and entirely out of court, but the former judgment had the effect merely of suspending the jurisdiction of the city court pending the action of the superior court, and the case should be treated as one pending in the city court, with jurisdiction in that court revived from the day of the judgment of dismissal in the superior court. This court, in affirming the latter judgment, gives direction that at the making of the remittitur from this court the judgment of the superior court, an order be entered- by the judge of that court, instructing the clerk thereof to return to the clerk of the city court o>f Bainbridge all the papers in • the case which were transferred from the city court to the superior court, and that the case stand subject to trial in the city court.
    Decided April 17, 1925.
    Trover; from Seminole superior court—Judge. Yeomans. October 22, 1924.

      M. H. O’Neal, Pottle & Ho fm ayer, for plaintiff.

      T. 8. Hawes, HaHs field £ Conger, for defendant.
   Bell, J.

On July 15, 1919, Mrs. Z. B. Subers brought a trover suit against Harry Hirschensohn in the city court of Bainbridge, Decatur county. The defendant was duly served on July 17th. On both of the dates mentioned he was a resident of that part of Decatur county which later went into the formation of the new county of Seminole. He appeared and answered to the merits on August 19, 1919, but thereafter, in March, 1920, removed to Pennsylvania. Seminole county was created by an amendment to the constitution, ratified in 1920, and was organized on January 1, 1921 (Ga. L. 1920, p. 52). After the defendant moved to Pennsylvania, prior to the creation and organization of the new county, he was not again a resident either of that county or of Decatur county until July 4, 1921, when he moved back to the territory which was formerly a part of Decatur county but had since become a portion' of Seminole. Between July 4, 1921, and March 27, 1922, the case was twice tried in the city court of Bainbridge; without objection of either party. A mistrial resulted in each instance. On the last-mentioned date the plaintiff moved for a transfer of ’the case to the superior court of Seminole county, alleging that the defendant was k resident of that county and that the superior court of that county alone had jurisdiction. After notice to the defendant and a hearing, the motion was granted. The defendant excepted pendente lite. When in October, 1924, the case was called for 'trial in Seminole superior court, the defendant filed a plea to the jurisdiction, alleging, in substance, the facts stated above, and contending that the jurisdiction of the case was in the city court of Bainbridge. The allegations of fact in the plea were undisputed. Thereupon the judge granted an order dismissing the case, and the plaintiff excepted.

It is contended by the plaintiff in error that the judgment of dismissal was wrong for three reasons: (1) The jurisdiction of the ease was in Seminole superior court. (2) But even if it was not, the case should not have been dismissed entirely, but the judge should have ordered it transferred back to the city court of Bainbridge. (3) The defendant is estopped by the judgment transferring the case from the city court to the superior court, which, although it was made the subject of exceptions pendente lite, has not been otherwise excepted to. The defendant has brought no cross-bill assigning error upon tire exceptions pendente lite.

As to a case of this character the constitution provides that it shall be tried in the county of the defendant’s residence, and not that it shall be brought in that county. Such a case must be brought there only because it must be tried there. If the defendant had not changed his residence but had continued to live in that part of Decatur county which went into Seminole county, until after the new county was created and organized, a removal of the suit to the latter county would have been proper, in the absence of anything to continue the jurisdiction of the city court. Whether a motion to transfer the case, or an order, was necessary, and whether if a motion was proper the plaintiff would have been a proper 'person to make it, are questions that need not be decided. It may be that the case would have been transferred by operation of law, or, if it were otherwise, that only the defendant would have been entitled to make the motion. The constitutional amendment creating the new county by reference incorporated the provisions of the Civil Code, §§ 829 to 848, inclusive. Section 829 provides: “When a new county is organized, the jurisdiction of all suits pending in the county or counties from which the new county has been laid off, of which, under the constitution and laws, the new county shall have cognizance, is transferred immediately to the corresponding courts in the new county and the jurisdiction of suits then pending in the county or city courts of the old counties is conferred upon the superior court of the new county, together with all the court páp'ers pertaining thereto, to which there shall be attached the certificate of the clerk of the court from whose office they came that they are the proper papers of the suit, and the amount of cost accrued therein, and the amount then due.” There was no city court in Seminole county, and if the case was transferable, it was proper to transfer it to the superior court. But in our opinion the provisions of this section have no application to a case like the present, since the defendant moved his residence from Decatur county before the new county was created or organized, and since he did not become, a citizen of the new county until some time afterwards. The suit was not one of which the new county would have had cognizance at the time of its establishment, because the defendant did not then reside there. The city court of Bainbiidge had acquired jurisdiction before the defendant’s removal to Pennsylvania, and its jurisdiction continued just as if he had never returned .to this State. The case was not transferable to the new county under section 829, unless the defendant continued to reside in the part of Decatur county which was contributed to the new county until and including the time when a suit could have been commenced against him in the new county. See, in this connection, Civil Code (1910), § 6543; Pope v. State, 124 Ga. 801, 809 (53 S. E. 384, 110 Am. St. Rep. 197, 4 Ann. Cas. 551); Weatherly v. Cotter, 142 Ga. 457 (1) (83 S. E. 104):

Furthermore, jurisdiction of the person may be conferred by consent, and the case involves a question of jurisdiction only of the person. Even if the case had been one which in the absence of waiver by one or both of the parties should have been transferred, both parties were committed to the jurisdiction of the city court of Bainbridge when, after the creation and organization of the new county, they went to trial in that court without objection. After such waiver by both, the court could not rightly have transferred the case, over the objection of either. Civil Code (1910), §§ 5663, 5664; Barwick v. American Mfg. Co., 27 Ga. App. 275 (2) (108 S. E. 119); Sanford v. Tanner, 114 Ga. 1005 (3), 1014 (41 S. E. 668); East Tenn. &c. Ry. Co. v. Suddeth, 86 Ga. 388 (3) (12 S. E. 682).

There is no question here of concurrent jurisdiction. If the city court had jurisdiction, the superior court of Seminole did not have it. And this is true as between ihe parties even though the continuance of. the, jurisdiction of the city court was acquired by waiver on the part of the litigants. Compare Hines v. Rawson, 40 Ga. 355 (1).

Since we have seen that in any view the case was not one that could be lawfully-transferred at the time the transfer was made, the question next arises, does the judgment of transfer operate to estop the defendant from contesting the jurisdiction of the court to which the case was transferred, where the defendant, though objecting to the transfer and filing exceptions pendente lite, brought no exceptions to this court upon which the judgment may be corrected? Assuming (without deciding) that this question as between the parlies should be answered in the affirmative, it would not result that the superior court could be forced to assume jurisdiction by the judgment of the city court when in law and in fact it had none. As between courts neither of which has corrective power over the other, one can not bind the other on a question of jurisdiction. Compare Dawson v. State, 130 Ga. 127 (60 S. E. 315); Cutts v. Scandrett, 108 Ga. 620 (3) (34 S. E. 186); 15 C. J. 851. The case having been improperly transferred, we hold that the superior court was not obliged to retain it, although we are to consider the case as if no exception had been taken by the defendant to the judgment by which the transfer was made.

It follows from what we have said that the case was properly dismissed from the superior court of Seminole county for want of jurisdiction, and we will not reverse the judgment of dismissal merely because the judge failed at the same time to remand the case to the city court. The judge might have remanded it under the broad power every court has to give control and direction in the furtherance of justice to the conduct of its officers (Civil Code of 1910, § 4644 (4)), and yet he was not obliged to do so. We do not construe the judgment excepted to, however, as dismissing the case from every court, but merely as striking it from the docket 'of the superior court which rendered the judgment. Otherwise the judgment might be one affecting the merits.

If the case, therefore, had not absolutely and finally ceased to be a pending cause in the city court of Bainbridge, it was not made so by the judgment of the superior court of Seminole county. Is it still in court somewhere ? The judge of the city cpurt did not dismiss the casé to the four winds, and his judgment was not' a complete release of jurisdiction, without the acceptance of it by the other court. If one party sends to another a gift, the title is still in 'he first until the gift is accepted; rather he does not lose the title merely because the other refuses the bounty. We think that the judgment of the city court did not amount to more than a mere suspension of the jurisdiction of that court pending the action of the superior court, and that, the dismissal by the superior court being proper, the case' should be treated thereafter as still pending in the city court, with jurisdiction revived. See Dawson v. State, supra; Queen Insurance Co. v. Peters, 10 Ga. App. 289 (1) (73 S. E. 536).

In order to avoid injustice and confusion, this court in tin-exercise of the power and discretion vested in it by the constitution (Reeves Tractor Co. v. Barrow, 30 Ga. App. 420 (10), 118 S. E. 456), although affirming the judgment of dismissal by the superior court, will give direction that at the making of the remittitur from this court the judgment of the superior court an order be entered by the judge of that court, instructing the clerk thereof to return to the clerk of the city court of Bainbridge all papers in the case which were transferred from the city court to the superior court.

Judgment affirmed, with direction.

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


text:
    16043.
    AUTREY v. CITY COUNCIL OF AUGUSTA.
    Under tlie ruling of the Supreme Court in GorneKsen v. City of Allanta, 146 Ga. 416 (1), a municipality, in the maintenance of a park intended primarily for the use and benefit of the public at large, is not liable for a negligent condition of a part of its water system located in the park and devoted solely to the control of the flow of water into a pool forming a part of the park, and used only for the general purpose thereof in the promotion of the pleasure and health of the citizens, although the city’s general water system may be operated as a private endeavor for gain.
    Decided April 17, 1925.
    Action for damages; from Richmond superior court—Judge A. L. Franklin. October 20, 1924.

      Application for certiorari was made to the Supreme Court.
    Mrs. Mary J. Autrey brought suit against the City Council of Augusta, to recover damages in the sum of $5,-000, because of injuries received by her in a public park maintained by the city for the use and recreation of its inhabitants, when she stepped into a “cut-off” (or hole) for water furnished to a pool or basin in the park connected with the city’s water system.
    The petition alleged that the “cut-off,” or hole, was about two feet deep and, that although it had been formerly covered by a wooden lid, at the time of her injury the lid was oil and the defendant had permitted grass to grow about the hole so as to obscure it, and that when she stepped into it she was thrown violently to the ground and seriously hurt. The plaintiff’s injuries were caused solely by the negligence of the city, in that it “negligently maintained said hole in which was said cut-off; in that it permitted said hole to be partly uncovered, occasioned by one half or more of said cover becoming split and remaining off of said hole; in that it did not cover over and protect said hole containing said cut-off; in that it permitted grass to grow around and over said hole so as to form a man-trap; and in that it failed to notify or warn pedestrians of the presence of said dangerous hole.” The “cut-off” with the box around it was constructed and maintained by the city council, “acting through its waterworks committee and department, which committee and department is-separate and distinct from the committee and department having under its supervision and control the trees and parks -of the City of Augusta. It is the duty of the said- waterworks committee and department to construct and maintain with due care the said cut-off and box, and it was due to the negligence of the City Council of Augusta, acting through its waterworks committee and department, as set forth in said petition, that the plaintiff was injured and damaged as set forth in said petition, and the said waterworks system oí! the City of Augusta is operated by the City Council of Arigusta in its private capacity and for profit and gain.” The condition of which she complains had existed for such length of time that -the city knew or should have known of it. The plaintiff had presented her claim to the governing authorities of the city more than thirty days before, the filing of the petition, as required by section 910 of the Civil Code. The court sustained a general demurrer to the petition, and the plaintiff excepted.

      Peebles <& Bowden, for plaintiff.

      Archibald Blackshear, for defendant.
   Bell, J.

(After stating the foregoing facts.)

In Cornelisen v. City of Atlanta, 146 Ga. 416 (1) (91 S. E. 415), the Supreme Court held as follows: “Where a city maintains a park primarily for the use of the public, intended 'as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue o£ the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park.” This ruling was made in answer to a certified question. For a statement of the facts see 19 Ga. App. 436. The decision in that case seems to control the case under consideration. See also City of Warrenton v. Smith, 149 Ga. 567 (101 S. E. 681).

While, as was further said in the Gornelisen case, a municipality may be held liable for the neglect or improper performance'of a duty arising under proper charter authority, relating to a municipal endeavor which is of a private nature “primarily for revenue and promotion of municipal welfare,” there is nothing in the present petition, considered as a whole, to remove the case from the operation of the general rule that in those instances where the duty of the municipality is of a purely public nature, “intended for the benefit of the public at large without any pretense of private gain to the municipality,” there is no liability for negligence in regard thereto.

It is true the petition alleges that the waterworks system of the City of Augusta is operated by the city “in its private capacity and for profit and gain,” but it affirmatively appears from all of the allegations made that the particular part of its system described in the petition as á “cut-off” was used for no other purpose than to control the flow of water into a pool in the park, and was therefore devoted only to the benefit of the general public, “without 'any pretense of private gain to the municipality.” The court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

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


text:
    16046.
    LOEWENHERZ et al. v. WEIL.
    1. A contract of suretyship is one whereby one party obligates himself to pay the debt of another in consideration of credit, or indulgence, or other benefit given to his principal, the latter remaining bound therefor. In a suit against certain persons as sureties, where it appeal’s from the petition that the defendants had requested of the creditor an indulgence to tlie principal, such as a certain and definite extension of the time in which he might pay the debt, the request being embodied in a contract tendered by the sureties for the creditor’s acceptance, and where it further appears that the contract was thereupon accepted by him, a promise on his part to grant the indulgence was implied. An implied promise may be a sufficient consideration for an express promise. In the present action against alleged sureties, the contract relied on was not lacking in mutuality, nor without consideration.
    2. In a suit upon an obligation which is subject to no condition precedent, but which might be defeated by the happening of a condition subsequent, it is not necessary for the plaintiff to allege that the condition has not happened. In such a case the burden of setting up the condition would devolve upon the defendant.
    (a) Applying these rulings, the court did not err in overruling the demurrers to the petition.
    3. The answer, having in effect admitted facts showing that the contract had for a consideration the implied promise of the plaintiff to grant the indulgence as requested, was fatally defective as a plea of want of consideration, the sole defense relied on, and was properly stricken.
    Decided April 17, 1925.
    Complaint; from Muscogee superior court—Judge Munro. October 3, 1924.
    Samuel Weil brought suit against Leo Loewenherz, Albert ”S. Loewenherz and Howard L. Loewenherz, all residents of Muscogee county, Georgia, to recover the principal with interest. from date upon the last eighty-one of a series of 106 notes, the first one of the notes sued on, to wit, No. 26, being due,and payable on February 1, 1924, and the others maturing respectively one on the first day of each month thereafter through and including October 1, 1930. The plaintiff sought to show, however, that by the terms of a separate writing the maturity of all of the notes had been accelerated and that they were due at the filing of the suit. For this purpose the petition alleged;

      “3. At the time of the delivery of said notes to petitioner, defendants also executed and delivered to petitioner twenty-five other notes numbered from 1 to 28, for $100 each, due monthly prior to February L, 1924, which constituted, together with the aforesaid eighty-one notes, a series of 106 notes, and simultaneously with the delivery of said entire series of notes, and as part and parcel of the consideration of the same, and constituting with the execution and delivery of said notes part of the same transaction, said defendants executed and delivered to the petitioner a written contract bearing date the 6th day of December, 1921, a true and correct copy of which is hereto attached, marked Exhibit ‘B’ and made a part of this petition.”
    “4. Defendants failed and refused to pay said note No. 26 due February 1, 1924, and said note No. 27 due March 1, 1924, and said note No. 28 due April 1, 1924, and said note No. 29 due May 1, 1924, and said note No. 30 due June 1, 1924, and said note No. 31 due July 1, 1924, and petitioner has exercised his option provided for in said contract, a copy of which is hereto attached, marked Exhibit £B/ of declaring due and payable each and all of said eighty-one unpaid notes, and has demanded payment of the same of the defendants, which payment each and all of the defendants wholly failed and refused to make.”
    The following is a copy of the exhibit:
    “This agreement made this 6th day of December, 1921, between Samuel Weil of the Borough of Manhattan, City of 'New York, hereinafter designated as the party of the first part, and Leon LoeAvenherz, Albert S. Loewenherz and Howard L. Loewenherz of Columbus, Georgia, hereinafter designated as the parties of the second part, witnesseth:
    “Whereas, on the 26th day of September, 1921, in the Supreme Court of the State of New York, County of New York, the party of the first part obtained against Leo Loewenherz, one of the parties of the second part, a judgment for the sum of $10,705.38; and whereas, said sum of $10,705.38 with interest thereon from September 26, 1921, at the rate of 6% per annum is now due and owing and unpaid on said judgment; and whereas, the parties of the second part are desirous of paying said judgment in monthly installments of one hundred dollars each with the interest on each installment; now, therefore, in consideration of the sum of one dollar by each of the parties hereto to the other in hand paid and other valuable consideration, and in order to induce the party of the first part not to commence proceedings for the collection of said judgment, and further, in order to induce the party of the first part to accept a series of notes, aggregating in amount the sum of $10,705.38 with interest from September 20, 1921, to the date of the making of said notes, each of said series of notes to be for the sum of one hundred dollars and interest, first of said series to be payable one month from the date of said note and the remainder of said series to be paid one each and every month thereafter until the entire sum of $10,705.38 with interest to the date of the making of said notes is fully paid, and all of said series of notes to be signed and executed by the parties of the second part hereto, it is agreed by and between the parties hereto as follows: That in the event of the failure of the parties of the second part to pay any of said series of notes at the time when and the place where the same is payable, that, then and in that event the entire series of notes remaining unpaid at the time of such default shall immediately become due and payable at the option of the party of the first part hereto, anything herein or in said notes contained to the contrary notwithstanding and regardless of the dates expressed in said series of notes for the payment thereof.
    “In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.
    “L. Loewenherz (L. S.)
    “Howard L. Loewenherz (L. S.)
    “Albert S. Loewenherz (L. S.)”
    Leo Loewenherz made no appearance. The other two defendants demurred to the petition, as follows: “(1) Defendants demur generally to said petition upon the ground that the allegations therein show no cause of action against these defendants and no cause of action is set forth in said petition. (2) Defendants demur generally to said petition upon the ground that said petition'and the agreement thereto annexed, marked Exhibit ‘B’ and made part thereof, show that the notes sued on were given in furtherance of the desire to pay a pre-existing judgment debt of Leo Loewenherz and are without consideration, nudum pactum and void, and no cause of action is set forth in said petition. (3) Defendants demur specially to tlie following language contained in paragraph third of said petition: ‘And simultaneously with the delivery of said entire series of notes, and as part and parcel of the consideration of the same, and constituting with the execution and delivery of said notes, part of the same transaction/ because said agreement shows that it was executed on December 6, 1921, and said agreement and said notes show that said notes were executed on November 26, 1921, and said allegation is contradictory.”
    Subject to the demurrer the defendants answered, admitting the execution of the notes and their default in the payment of the note numbered 26, but denying liability upon any of the notes •‘in any amount whatever, for the reasons hereinafter more fully set forth.” The answer continued as follows:
    “3. Defendants admit the execution and delivery of said agreement described in paragraph third of said'petition, but deny that said agreement was executed and delivered as part and parcel of the consideration of said series of notes.
    “4. Defendants admit they failed and refused to pay said notes as alleged in paragraph fourth of said petition for the reason that said notes are without consideration in so far as they apply to these defendants and are totally void as hereinafter, set forth, and defendants are not indebted thereon to plaintiff in any amount whatever.
    “5. For further answer these defendants say that on the date and at the time said notes sued on by plaintiff were executed and delivered by these defendants, plaintiff had obtained in the Supreme Court of the State of New York, County of New York, a judgment against Leo Loewenherz for the sum of $10,705.38, which said judgment fixed the liability of said Leo Loewenherz to plaintiff for benefits theretofore received by said Leo Loewenherz individually, and on the date said notes sued on by plaintiff were executed by these defendants said judgment constituted a preexisting indebtedness of said Leo Loewenherz to plaintiff.
    “Defendants further say that on the date of the rendition of said judgment and on the date of the execution and delivery of said notes by these defendants, said Leo Loewenherz was insolvent and owned no property of any kind, and has not since acquired any property out of which said judgment could be satisfied, but the said Leo Loewenherz, as set forth in the certain agreement annexed to plaintiff’s petition and marked { Exhibit B,’ was desirous of pay: ing said judgment, and the only manner in which he could pay the same was in monthly installments.
    “Defendants further say that they executed and delivered said notes to plaintiff as surety thereon and as evidence of said monthly installments and the amounts thereof to be paid to plaintiff on a pre-existing judgment debt owing by said Leo Loewenherz to plaintiff, and said notes were executed and delivered in furtherance of the desire of said Leo Loewenherz to pay said pre-existing indebtedness; that said judgment against said Leo Loewenherz was worthless in that at the date of rendition thereof said Leo Loewenherz did not own and since said date has not owned any money or property whereby said judgment could be paid and satisfied; that no agreement was made and entered into between said plaintiff, said Leo Loewenherz and these defendants or any of them, at the time of the execution and delivery of said notes, or at any other time, whereby (a) said Leo Loewenherz was to be granted an extension of time on his said pre-existing indebtedness, and no extension of time bn his said pre-existing indebtedness- was granted; (b) said notes were to be given and accepted in payment and ex-tinguishment of said pre-existing debt and judgment of said Leo Loewenherz, and said notes were not so given by said defendants and were not so accepted by plaintiff; (c) any lien or other advantage held by said plaintiff was to be by him released and relinquished, and no lien or other advantage was so released and relinquished; (d) plaintiff was to perforin, or forbear the performance of, any act or thing detrimental to himself and beneficial and advantageous to said Leo Loewenherz and these defendants or either of them, constituting a consideration for said notes sued on.
    “Defendants further say that said judgment was worthless and uncollectible and said notes were given by Leo Loewenherz and these defendants in furtherance of the said desire of Leo Loewen- ' herz to pay said judgment, and the giving of said notes by these defendants was a benefit to said plaintiff in that said plaintiff was thereby enabled to obtain a partial payment of the amount due on said judgpient, for which said notes and said benefits derived therefrom by said plaintiff no consideration passed or accrued to these defendants from said plaintiff or said Leo Loewenherz, and no consideration whatsoever passed or accrued to said Leo Loewenherz from plaintiff for the execution and delivery of said notes, and» that all said notes are without consideration to support the same and are nudum pactum, void and unenforceable.”
    The plaintiff demurred to the answer, upon several grounds, general and special. The court overruled the demurrer to the petition, sustained all grounds of the demurrer to the answer, and thereupon entered judgment in favor of the plaintiff as by default. The defendants excepted.

      McQutchen, Bowden & Gaggstatber, for plaintiffs in error.

      Slade & Swift, contra.
   Bell, J.

(After stating the foregoing facts.)

There is no contention by the plaintiffs in error that the contract should not be considered and the rights of the parties determined under the laws of this State. Their counsel having dealt with the case as one involving a Georgia, and not a New York, contract, we will dispose of it in this opinion, upon the assumption that the writings should be considered as composing a Georgia contract. The result, however, would probably be the same in either view. Harris v. Powers, 129 Ga. 74 (2) (58 S. E. 1038, 12 Ann. Cas. 475); Bailey v. Devine, 123 Ga. 653 (51 S. E. 603, 107 Am. St. Rep. 153).

Although the notes bore a date different from that of the instrument attached to the petition as “Exhibit B,” they were not effective as a contract until delivery; and the petition having alleged that the notes and the other instrument were delivered simultaneously, as part and parcel of one and the same transaction, they will all be considered as. together constituting but one contract. Montgomery v. Hunt, 93 Ga. 438 (2) (21 S. E. 59); Adams v. Hatfield, 17 Ga. App. 680 (2) (87 S. E. 1099); Horne v. Evans, 31 Ga. App. 370 (2) (120 S. E. 787).

It affirmatively appears that the plaintiff is seeking to hold the defendants (meaning, of course, the only two who are excepting) liable as sureties, and also that the debt of their alleged principal was existing at the time of the execution of the writings'. We do not question the proposition that a promise to pay a preexisting debt of another, without any detriment or inconvenience to the creditor or any benefit to either the promisor or the debtor in consequence of the undertaking, is a mere nudum pactum and void. Saul v. Southern Seating Co., 6 Ga. App. 843 (65 S. E. 1065); Foote v. Reece, 17 Ga. App. 799 (88 S. E. 689).

The notes are not under seal, but recite a valuable consideration. We will first deal with the case, however, as if we had before us an agreement disclosing nothing as to the consideration except what may be contained in the simultaneous writing. There is no difficulty, upon a casual reading of that instrument, in discerning that the defendants were desirous of obtaining air indulgence by the plaintiff to the' defendant in the New York judgment as to the payment of the amount therein recovered.' This is true although the instrument referred to, in so far as it affects the terms of the contract, merely provides for the acceleration of the maturity of the notes in the event of default in the payment of any of the series, and purports, by the language immediately following the words “Now, therefore,” to show its own consideration separately from that of the notes. •

Mere forbearance by the plaintiff to prosecute the judgment, without even so much as a request therefor, would not have afforded a consideration for the promise of the defendants to be liable as sureties. But undoubtedly, if they nought and also obtained an agreement for the grant of it, the execution of the notes signed by them as sureties in consideration thereof would be binding upon them. Civil Code (1910), § 3538; Watkins Medical Co. v. Marbach, 20 Ga. App. 691 (1) (93 S. E. 270); Broughton v. Joseph Lazarus Co., 13 Ga. App 153 (1) (78 S. E. 1024).

That the defendants requested the indulgence, we think, is perfectly clear from the writings.

But it is contended for the plaintiffs in error that there was no mutuality of obligation between the parties, in that the plaintiff did not sign any of the writings and did not at any time obligate himself to grant the extension or indulgence, and that if this bo true, he can not claim a liability against the defendants merely because he may for a period of time have refrained from proceeding to enforce his judgment in the State in which it was rendered or from.suing upon it elsewhere. It was said in Brown v. Bowman, 119 Ga. 153 (46 S. E. 410), that the tést of mutuality is to be applied not as.of the time when the promises are made, but as of the time when one or the other is sought to be enforced; and that a promise may be unenforceable for want of mutuality -when'made, and -yet the. promisee may render it valid and binding-by- supplying a consideration on his part before the promise is- withdrawn. It was accordingly held in Peeples v. Citizens National Life Ins. Co., 11 Ga. App. 177 (74 S. E. 1034), that a promise, though a mere nudum pactum when made, and consequently unenforceable against the promisor at that time, may become binding, if the other party furnishes the consideration contemplated, by doing what lie was expected to do.

“Thus where one promises to see another paid if he wilL sell goods to a third person, or promises to give a certain sum if another will deliver up certain documents or securities, or if lie xuill forbear a demand or suspend legal proceedings or the lilce, while the party making the promise is bound to nothing and- may withdraw his promise, or more accurately speaking, proposition, at any time, yet if the promisee, acting on the faith of the promise, within a reasonable time, does the thing which it was contemplated he should do, then the promisor is bound on the ground that the thing done is a sufficient and completed consideration ; and the original promise to do something if the other party would do something is a continuing promise until that other party does the thing required of him. Or if the promisee begins to do the thing in a way which binds him to complete it, here also is a mutuality of obligation.” (Italics ours.) Morrow v. Southern Express Co., 101 Ga. 810, 812 (28 S. E. 998).

We do not think, however, that it is necessary to determine whether, under the authorities cited, the plaintiff could have supplied the consideration by a mere indulgence to the defendants’ debtor, in compliance with the defendants’ request therefor, unless he had become obligated to do so by contract. In other words, for the purposes of the'instant case, we will assume, without deciding, that the mere extending of the time for payment, as requested, without a binding obligation on the plaintiff’s part to do so, would not have supplied the essential element of mutuality of agreement.It is possible to proceed upon this assumption in' the case before us, because of the additional facts present, even though they appear only by implication.

As we have already said, upon a fair construction of the petition and the exhibit thereto, it appears that the two defendants who are seeking to avoid liability joined in a request for indulgence to th^ principal debtor. (The request of the latter might possibly have been enough.) The petition alleges a delivery of the notes, and of the instrument in which this request was contained. An effective delivery includes acceptance (Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170 (1) (86 S. E. 434); 4 Am. & Eng. Enc. Law (2d ed.) 200), and acceptance means assent. Civil Code (1910), § 4230. Thus, upon the plaintiffs acceptance and retention of the papers, he assented to the terms thereof; and even though he did not promise indulgence in express words, such a promise or undertaking on his part was implied by the law. Queal v. Peterson, 138 Iowa 514 (116 N. W. 593, 19 L. R. A. (N. S.) 842), and cases cited in note. One promise may be a good consideration for another even though it be implied from the circumstances. Reynolds v. Nevin, 1 Ga. App. 269, 274 (57 S. E. 918).

It is probably true, as contended by the plaintiffs in error, that the contract shows on its face that it was intended that the plaintiff as well as the other parties thereto should sign .it. In such a case the contract does not ordinarily become complete or effective until it has been signed by all the parties. Clarke v. McNatl, 132 Ga. 610 (1) (64 S. E. 795, 26 L. R. A. (N. S.) 585). But the petition here alleges that the defendants executed and delivered the writings in their present form. They are presumed to have known at the time that the plaintiff had not signed, and a delivery without exacting a signature was a waiver of it.

We therefore conclude that the alleged contract upon which the action was predicated appears not to have been invalid because of a lack of mutuality between the parties, or want of consideration. This ruling is not in conflict with anything decided in Hargroves v. Cooke, 15 Ga. 321, in which it was held that the consideration for an agreement to answer for the debt of another need not be expressed or formally stated, although it should at least clearly appear, but in which it was further held that “If forbearance to sue on an existing debt can be certainty inferred from the instrument, it is a sufficient consideration.”

While we will rest our decision as to the sufficiency of the petition, with respect to consideration and mutuality, on what is said above, we will pause here to notice two other theories upon which the petition might possibly be held good in relation to the matters just referred to. The decision in the Hargroves case, supra, had reference to instruments executed prior to the act of the General Assembly approved January 19, 1853 (Ga. L. 1851-2, p. 343,). It was held in Black v. McBain, 33 Ga. 138, that since the passage of that act a promise in writing to pay the debt of a third person is a good and valid promise although no consideration therefor appears; the effect of which decision we construe to be, not that a consideration is unnecessary, but merely that it need not affirmatively appear, the want of it being a matter of defense. See Davis v. Tift, 70 Ga. 53 (3), 56. The presumption is that the agreement is supported by a sufficient consideration, until the contrary is revealed. In Pearce v. Stone Tobacco Co., 135 Ga. 444, 447 (54 S. E. 103), it was observed: “In Black v. McBain, supra, the consideration was neither alleged nor proved, and it was held that the writing ivas sufficient to satisfy the statute, and that the granting of a nonsuit was error.” See also Turner v. Lorillard Co., 100 Ga. 645 (28 S. E. 383, 62 Am. St. Rep. 345).

Again, a promissory note being negotiable by the law merchant, it is not necessary in a suit thereon to aver or prove that it is founded upon a consideration. A consideration will be presumed, unless the contrary is made to appear. Hobbs v. Citizens Bank, 32 Ga. App. 522 (3) (123 S. E. 72). “Certain instruments import a consideration, and the production of such an instrument alone furnishes prima facie evidence of a consideration, and casts upon the defendant the burden of proving want or failure of it.” Cooley v. Moss, 123 Ga. 707 (2), 710 (51 S. E. 625). Even if it could be said that the supplemental writing, shown in the instant case as “Exhibit B,” fails to disclose that the notes were founded upon a consideration, it does not negative a consideration; and the petition would not be subject to demurrer merely because the consideration was not affirmatively made to appear. Smith v. Ice Delivery Co., 8 Ga. App. 767 (4) (70 S. E. 195).

The ruling which we made at the outset, to the effect that the several writings would be considered as together constituting but one contract, although the notes bore a different date from that of the supplemental agreement, sufficiently disposes of the only • insistence made by the special demurrer,—namely, that the allegations of paragraph 3 of the petition were contradictory.

The two theories of consideration last discussed above will not enter into anything to be said hereafter. They could have no helpful bearing upon -the point now to be dealt with, and would even be irrelevant to the discussion in the next succeeding division of this opinion, in which we pass upon the exceptions to the judgment striking the answer.

Proceeding further, therefore, only upon the hypothesis that the consideration for the defendants’ promise was the promise of the plaintiff to extend the requested indulgence, we have seen that such a promise by the plaintiff was implied from the circumstances. Should the petition have alleged that the promise liad been complied with? The defendants (or plaintiffs in error) contend that such allegation should have been made, and that in the absence of it the petition fails to set forth a cause of action.

A determination of this question will depend upon whether a compliance by the plaintiff with his promise was a condition precedent to the liability of the defendants, or whether his failure to comply would have been in the nature of a condition subsequent, the happening of which would have destroyed any rights which he might otherwise have had under the contract. Where the plaintiff’s right to recover on a contract depends upon a condition precedent, to be performed by him and not by the other party, he must allege and prove the performance of such condition, or allege a sufficient excuse for non-performance; otherwise he fails to establish a cause of action. Griswold v. ScoTT, 13 Ga. 210 (2); Herrington v. Jones, 132 Ga. 209 (63 S. E. 832); Lamar v. First Nat. Bank, 127 Ga. 448 (2, 3) (56 S. E. 486); Williams Valve Co. v. Amorous, 19 Ga. App. 155 (6) (91 S. E. 240); Life Insurance Co. v. Proctor, 18 Ga. App. 517 (1) (89 S. E. 1088); Smith v. Roddenbery Hardware Co., 24 Ga. App. 306 (100 S. E. 718); Golucke v. Lowndes County, 123 Ga. 421 (2) (51 S. E. 406); Bennett v. Burkhalter, 128 Ga. 154 (2) (57 S. E. 231); Schmidt v. Mitchell, 117 Ga. 6 (43 S. E. 371); Barrow v. Pennington, 17 Ga. App. 481 (1) (87 S. E. 719); Dolan v. Lifsey, 19 Ga. App. 518 (5) (91 S. E. 913); Ford v. Lawson, 133 Ga. 237 (5) (65 S. E. 444); Hines v. Cureton-Cole Co., 9 Ga. App. 778 (72 S. E. 191); Jones v. Schachter, 29 Ga. App. 132 (1) (114 S. E. 59). But where his right under the contract vests immediately, and the contract may be defeated by a condition subsequent or by something done afterwards by the opposite party, such matters of avoidance need not be negatived by tlie party claiming the right thereunder, the burden of establishing tlieir existence being upon the opposite party. Buick Motor Co. v. Thompson, 138 Ga. 282 (3), 287 (75 S. E. 354); Griswold v. Scott, supra.

The notes involved in this case are unconditional, although the only consideration therefor may be assumed to be the promise of the plaintiff to do something in the future. In such a ease it is not necessary, in a suit upon the notes, to allege that the plaintiff has complied with his promise, the same not being a condition precedent. His failure to comply would be defensive, and if the defendants sought relief on account thereof, the burden would bo upon them to allege and prove the fact. See Webb v. Simmons, 3 Ga. App. 639 (2) (60 S. E. 334); Baker v. Tillman, 84 Ga. 401 (11 S. E. 355); Baker v. Smith, 135 Ga. 628 (1) (70 S. E. 239).

The petition set forth a cause of action, and all grounds of demurrer thereto were properly overruled.

In our opinion the answer failed to set forth any valid defense. It admits the execution and delivery (which included acceptance) of the notes and the supplemental agreement as alleged in the petition, and does not deny that the several writings were combined to constitute a single transaction, thus composing a single contract, although it is denied in the answer that the supplemental agreement was executed and delivered as part and parcel of the consideration of the notes. It therefore appears, even by the admissions of the answer, that the notes referred to in the other writing are the ones sued on, as alleged in the petition, although the supplemental agreement may not in itself completely identify them. The allegation in paragraph 4 of tlie answer, that the notes are “without any consideration in so far as they apply to these defendants,” would not constitute a sufficient plea of want of consideration, even if we considered the notes as standing independently of tlie other writing. Civil Code (1910), §§ 4242, 3538. In a contract of suretyship, the consideration may move only to the principal debtor.

The allegation that the notes are “totally void as hereinafter set forth, and defendants are not indebted thereon to plaintiff in any amount whatever,” is a mere conclusion, depending upon the sufficiency of the subsequent portions of the answer. There was no lack of consideration merely in the fact that the principal debtor may have been insolvent and that the judgment against him may have been, therefore, commercially worthless, as contended in paragraph 5 of the answer. All of the other averments of this paragraph, in so far as they seek an avoidance of liability because of any material facts therein stated, amount to no more than a misconstruction or a contradiction of the written contract upon which the action was brought, which appears upon its face to be complete, and therefore, in the absence of fraud, accident or mistake, not subject to be-varied by parol. Bond v. Perrin, 145 Ga. 200 (88 S. E. 954); s. c. 18 Ga. App. 179.

While it is alleged in paragraph 5 (a) that no extension of time on the pre-existing indebtedness was granted, and while this allegation, if considered independently of the context, might, as against a general demurrer, be a sufficient averment that the plaintiff had breached his promise to grant the indulgence, yet, as already indicated, it is construed only as setting up what the defendants contended was the effect of the writings as tendered and accepted, namely, that there was never an agreement by the plaintiff to extend the time in which the principal debtor should pay the amount of the judgment. We have already held adversely to this contention, in our ruling upon the demurrer to the petition.

The answer did not seek to set up a failure of consideration as for a breach of the implied covenant of the plaintiff, as might have been done if the facts had so warranted, but attempted only to plead a want of consideration, which attempt was futile since, as we have seen, the effect of the plea was to admit the plaintiff’s acceptance of the notes, from which act he impliedly promised forbearance and thus furnished a consideration.

Since the answer was subject to the general demurrer, and properly stricken as being insufficient to set forth any valid defense, it is unnecessary to examine the special demurrers interposed thereto.

It is not insisted that the court, upon striking the answer, failed to mark the case in default, before directing the verdict. The presumption, therefore, is that, if such entry ought to have been made, it was made.

Under the facts of this case, the verdict and judgment will not be set aside merely because the defendants might have been entitled to a judgment setting up 'the fact of their suretyship. Civil Code (1910), § 3556. Indeed, tlie fact of suretyship sufficiently appears upon the face of the contract as pleaded, and it would .probably be unnecessary for the defendants’ protection for the fact to be made to appear in the judgment. However, the answer did not in the instant case, as was true in Whitley v. Hudson, 114 Ga. 668 (3) (40 S. E. 838), contain any prayer that the judgment should be rendered against them only as sureties, in accordance with the section of the code just referred to. Further more, the bill of exceptions contains no assignment of error attacking the judgment upon this ground.

We find no error in any of the rulings complained of.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    15843.
    HOGG v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.
    1, 2. Grounds 2 and 3 of tlie.amendment of tlie motion for a new trial, as to admission of testimony, are not in proper form for consideration.
    3. As to particular shifts in the burden of proof the court was not required to charge the jury, in the absence of a proper request.
    4. Where, on the trial of an action by a consignee against a common carrier for breach of the duty to transport and deliver in good condition live stock alleged to have been received in such condition by the carrier, it appeared that tlie plaintiff, on receiving the animals, executed a receipt for them as “in good order,” and that there was then no visible indication that they were sick or not in good condition, it was not error for the court to charge the jury in effect that the burden was on the plaintiff to show that they were not in good order when delivered and that their sickness or death thereafter was occasioned by negligence of the defendant.
    5. In such an action particular acts of negligence need not be alleged, and specific allegations of negligence may be treated as surplusage.
    6. Where damage to animals in transportation is caused by long confinement and delay in feeding and watering them, the carrier’s compliance with the act of Congress of June 29, 1906, entitled “an act' to prevent cruelty to animals while in transit by railroad,” etc., in interstate commerce, which prohibits their confinement by the carrier for “longer than 28 consecutive hours without unloading . . for rest, water, and feeding,” except that “upon -written reqirest of the owner or person in custody of that particular shipment . . the time of confinement' may be extended to 36 hours,” is not, in an action of this kind, conclusive as to the exercise of - due diligence by the carrier, although such compliance may be considered by the jury upon the question as to diligence. The court erred in charging the "jury in effect that they should not consider any question as to' negligence in connection with irregular or delayed feeding and watering of the stock, and that the plaintiff could only recover, if at all, on other negligence charged in the petition.
    Decided April 18, 1925.
    Action for damages; from Marion superior court—Judge Munro. July 19, 1924.

      John 0. Bull, for plaintiff.

      W. B. Short, Tye, Peeples & Tye, for defendant.
   Jenkins, P. J.

“Under repeated rulings of this court and of the Supreme Court, each special ground of a motion for new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” Tice Co. v. Evans, 32 Ga. App. 385 (16) (123 S. E. 742); Bank of Commerce v. First Nat. Bank of Ocilla, 32 Ga. App. 410 (1) (123 S. E. 736); Pound v. Smith, 146 Ga. 431 (5) (91 S. E. 405); Clare v. Drexler, 152 Ga. 420 (3) (110 S. E. 176). The second ground of the amendment to the motion for a new trial, complaining of the admission of testimony, wholly fails, in terms or in substance, to state the particular evidence and the objection thereto sufficiently for this court to pass thereon.

“Exceptions to the admission of evidence over objection should show what grounds of objection were stated to the trial judge.” Bank of Waynesboro v. Herrington, 32 Ga. App. 403, 404 (2) (123 S. E. 750); Morgan County Bank v. Poullain, 157 Ga. 423, 428 (121 S. E. 813, 33 A. L. R. 592); Steed v. Cruise, 70 Ga. 168 (5); Smith v. Pilcher, 130 Ga. 350, 356 (4) (60 S. E. 1000). The third ground of the amendment to the motion for a mistrial is for this reason defective. The rule is different where a ground complains of the rejection of testimony offered by the movant. . In such a case it is not necessary that the motion shall show upon what ground the testimony was excluded, or that the judge rejected it on his own motion. Morgan County Bank v. Poullain, supra.

It is not incumbent upon the court, in the absence of a timely written request, to charge as to particular shifts in the burden of proof or of proceeding as they may develop under the evidence. Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5); Standard Paint & Lead Works v. Powell, 27 Ga. App. 691 (2) (109 S. E. 513); Jackson v. Merritt Hardware Co., 26 Ga. App. 74 (3 b) (107 S. E. 394); Watson v. Sudderth, 32 Ga. App. 383 (1) (123 S. E. 143); Wade v. Eason, 31 Ga. App. 256 (2) (120 S. E. 440).

In an action in tort against a common carrier on account of a breach of its duty to transport and deliver in good condition live stock received by it in good order, there is no presumption of law against the carrier (Civil Code of 1910, § 2712; L. & N. R. Co. v. Warfield, 129 Ga. 473 (1, 2) (59 S. E. 234); Ragsdale-Lawhon Mule Co. v. Davis, 30 Ga. App. 752 (1) (119 S. E. 428); Heath v. Sandersville R. Co., 23 Ga. App. 256 (2) (98 S. E. 92)), where it appears that the plaintiff consignee, on paying the freight and receiving the animals, executed a written receipt therefor as “in good order,” and there was at the time of delivery no visible indication of their sickness. See Ocean Steamship Co. v. McAlpin, 69 Ga. 437; 10 Corpus Juris, 379, 380; 4 R. C. L. 993, 994. It was therefore not error for the trial judge, in instructing the jury on the burden of proof, in the several excerpts to which exception is taken, to charge in effect that the burden was on the plaintiff consignee to show that although the stock appeared to be in good order when delivered, yet they were not in good order, and that the sickness or death of the animals after delivery was occasioned by the negligence of the defendant carrier. Nor, under the rule stated above in paragraph 3, was it incumbent upon the court to charge as to when or how this burden would shift under subsequent developments of the evidence.

“In an action instituted by a shipper of goods against a common carrier on account of the civil wrong occasioned to the shipper by reason of the fact that the carrier, having received the shipment in good order, did not transport it safely, but delivered it to the shipper (who was also the consignee) in a damaged condition, particular acts of negligence need not be alleged,” and if alleged, “specified allegations of negligence may be treated as surplusage.” L. & N. R. Co. v. Warfield, 129 Ga. 473 (1, 2 (a)) (59 S. E. 234); s. c. 6 Ga. App. 550 (65 S. E. 308); L. & N. R. Co. v. McHan, 144 Ga. 683 (87 S. E. 889); Heath v. Sandersville R. Co., 23 Ga. App. 255 (1, 2) (98 S. E. 92).

The act of Congress of June 29, 1906, entitled “an act to prevent cruelty to animals while in transit by railroad,” etc., in interstate commerce, prohibiting their confinement by the carrier for “longer than 28 consecutive hours without unloading . . for rest, water, and feeding,” except that “upon the written request of the ownei or person in custody of that particular shipment . . the time of confinement may be extended to 36 hours” (34 Stat. L. 607; 1 Fed. Stat. Ann. (2d ed.) 377-387; Barnes Fed. Code, § 9285), prescribes a pecuniary penalty for its violation, recoverable only by the 'United States. It is quasi-penal in its nature. Its primary purpose, as its title imports, is to require humane treatment for animals while being transported, and to prevent injury to the public health from their sale for food when made ill by hunger, thirst, or exhaustion. B. & O. S. W. R. Co. v. U. S., 220 U. S. 94, 106 (55 Law. ed. 284, 30 Sup. Ct. 368); U. S. v. Pere Marquette R. Co., 171 Fed. 586, 588; 4 R. C. L. 983. The ruling of the United States Supreme Court is to the effect that “the statute was not primarily intended for the benefit of the owners,” is “restrictive of their rights,” that the penalty goes to the United States for each failure to unload, “regardless of who may own” the animals, and that its penalties are applicable “even if the owner consented to their confinement beyond a period of 30 hours.” B. & O. S. W. R. Co. v. U. S., supra. Whether or not, in view of these rulings, the rulings under the former similar statute of the United States (Rev. Stat. § 4386), to the effect that the previous statute operated for the benefit of a stock owner, so that a violation thereof would constitute negligence per se in his civil action for damages (Nashville Ry. Co. v. Heggie, 86 Ga. 210 (1), 213, 214 (12 S. E. 363, 22 Am. St. Rep. 453); 4 R. C. L. 985, footnote 4), would have application under the present law, it is not necessary to decide; since neither the Hepburn act, making initial carriers of freight responsible, nor the present Federal statute under consideration, is intended to abrogate the common-law duties and liabilities of carriers as enforced in the State courts. See Adams Express Co. v. Chamberlin-Johnson Co., 138 Ga. 455 (1) (75 S. E. 601); L. & N. R. Co. v. Warfield, supra. The 28-hour law, while prescribing fixed duties to live stock, “is not a grant of privilege to the carrier authorizing It to confine the stock for the period of time therein mentioned, irrespective of the. question of negligence in so doing. The question of negligence, as to such confinement, is still left as at common law, notwithstanding the statute.” 4 R. C. L. 451; 63 Am. St. Rep. 557, note; 14 L. R. A. 551, note; Durrett v. Chicago R. Co. (N. M.), 20 N. M. 114 (146 Pac. 962); Mo. Pac. Ry. Co. v. Ivy, 79 Tex. 444 (15 S. W. 962); Bradford v. Hines, 206 Mo. App. 582 (227 S. W. 889, 892, 893). It is true that proof as to the carrier’s compliance with the 28-hour law will absolve it in an action by the government to enforce the prescribed penalty; and it is furthermore true that, in an action for negligence in the State court, such compliance will be strongly evidential of the carrier’s diligent performance of its common-law duties of feeding, watering, and resting the stock, still proof of such compliance ' can not ordinarily be taken as absolutely conclusive of its freedom from negligence, but the question is one at last for determination by the jury, in the light of all the proved facts and circumstances, in all cases where there is testimony from which they would be authorized to find that the sickness or death of the animals resulted from acts of negligence or omissions of duty by the carrier in feeding, watering, or resting the stock.

The Federal statute provides for an extension of the time of confinement of the animals without feeding, watering, and resting, from 28 to 36 hours, where there is the prescribed written authority therefor from “the owner or person in custody of that particular shipment.” But here also such extension does not ipso facto and under all circumstances conclusively relieve the carrier from all liability for negligence for irregularity or delay in feeding, watering, and resting, although it will relieve from the statutory penalty, and in a civil action by the owner for damages under the common-law liabilities of the carrier may be strongly evidential of proper diligence, where the feeding, watering, and resting are more than 28 but less than 36 hours from the time of shipment. This rule would seem to apply with especial force where, as here, the writing is executed not by the owner, but by the shipper, and the shipper, before delivery to the carrier, has parted with his title and has in the bill of lading directed that the shipment “be delivered to the consignee without recourse on the consignor,” and that delivery shall not be so made “without payment of freight and all other lawful charges,” and where, as here, it also appears that the writing signed by the shipper is executed without any reduction in the freight rate or other consideration.

Under the above rulings, while the court properly admitted in evidence the 36-hour extension signed by the shipper, as a part of the testimony for the carrier, to be considered by the jury upon the question as to its diligence, it was error to instruct the jury in effect that they should not consider any question of negligence in connection with irregular or delayed feeding and watering of the stock, and that the plaintiff could only recover, if at all, on other acts of negligence charged in the petition. While the verdict in favor of the defendant was warranted under the evidence, it was not absolutely demanded; and for the error in the charge as thus indicated, and for that reason alone, a new trial must be granted.

Judgment reversed. Bell, concurs.

Stephens, J., concurs in the judgment.


text:
    15855.
    OLLIFF v. HOWARD.
    The measure of damages for injury to an automobile by a collision stated. Under the evidence as to tlie nature of the injuries to the plaintiff’s truck, the parts necessarily replaced, the labor required in repairing, the reasonable cost of the labor, and the market value of the parts replaced, the amount of the verdict was authorized. Recovery of the market value of parts replaced was not prevented by the fact that the plaintiff obtained some of them for a lower price.
    Emergencies may arise in which failure to observe the ordinary rule requiring the driver of an automobile meeting another to turn to the right is not negligence; but ordinarily the questions as to whether such an emergency existed, and as to the relative diligence or negligence of the parties, and as to what negligence, if any, was the proximate cause of injury from a collision in such a case are for the jury alone to determine. There was no material error in the charge of the court on this subject.
    An expression or intimation of opinion that'the defendant was negligent can not, in view of other parts of the charge of the court, be held to have been made in giving in charge language taken from section 4426 of the Civil Code, which provides that “if the plaintiff by ordinary care could have avoided the consequences td himself caused by the defendant’s negligence, he is not entitled to recover; but in other-cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.”
    Decided April 18, 1925.
    Complaint; from city court of Statesboro—Judge Proctor. July 10, 1924.

      Lanier & Lanier, for plaintiff in error.

      Deal & Benfroe, contra.
   Jenkins, P. J.

1. In an action to. recover damages for injuries to an automobile resulting from a collision, the measure of damages is “the difference between the value of the property before the damage and afterwards” (Douglas v. Prescott, 31 Ga. App. 684 (1) (121 S. E. 689)); but in a case where the owner has undertaken to make proper and necessary repairs, in establishing such damage he may include such proper and necessary expenses, provided such items are the direct and proximate result of the collision and represent the reasonable value of such necessary material and labor, and provided the aggregate of these amounts, together with hire on the machine while rendered incapable of being used, and the value of any additional permanent impairment, does not exceed the value of the machine before the injury with interest thereon. Civil Code (1910), § 4505; Savannah Electric Co. v. Crawford, 130 Ga. 421 (2) (60 S. E. 1056); Telfair County v. Well, 119 Ga. 916 (47 S. E. 218); So. Ry. Co. v. Stearns, 8 Ga. App. 111, 112 (68 S. E. 623); 17 C. J. 877 (§ 183 and notes). In a case in which the rule of comparative negligence or diminution of damages may be applicable under the issues raised, the amount found under the rule stated may be reduced accordingly as the jury may apply such rule of .diminution. Proof of value may be made by the testimony of expert's, or by other testimony, as to the nature of the injuries sustained and as to the material and labor supplied; and testimony of the actual cost is admissible as a circumstance to be considered by the jury in determining such value, under their right to weigh all the facts and circumstances bearing upon that question and to form their own judgment on the data in evidence, without being absolutely bound by the opinion of witnesses. Lamon v. Perry, 33 Ga. App. 248 (125 S. E. 907), and eases cited; So. Ry. Co. v. Williams, 113 Ga. 335 (1) (38 S. E. 744). In the instant action for damages on account of injuries to the plaintiff's automobile truck, sustained in a collision with the defendant's truck, there being evidence as to the nature of the injuries, the parts necessarily replaced, the labor required therefor, the wholesale as well as retail market value of the parts, and the reasonable cost of the labor, it can not be held that the verdict for the plaintiff in an amount less than that claimed was unauthorized by the evidence, -merely because under the testimony of the plaintiff himself he had obtained some of the parts in an advantageous trade with another for a-price considerably below the regular wholesale or retail prices.

2. Under the undisputed evidence, it appears that prior to the collision the plaintiff’s truck was moving forward on the right-hand side of the road, while the defendant’s truck, coming from the opposite direction, was moving on the same (the defendant’s left) side. The evidence was conflicting as to what happened just preceding the collision, as to whether the defendant was negligent in remaining too long on the left side of the road before turning to his right, as to whether the plaintiff’s driver was justified under the circumstances surrounding the alleged emergency in turning to his left about the same time the defendant turned to his own right, and as to what was the proximate cause of the injury sustained in the ensuing crash. The court charged as follows: “If you find, from the evidence in this case, that [plaintiff’s] truck was being driven to the right of the road, and [defendant] was on the same side of the road, being to [defendant’s] left, and there was imminent danger of the trucks colliding, and cause injury to property or to person, that in endeavoring to avoid that injury, that the plaintiff’s truck or the driver of that truck turned to his left in attempting to avoid an injury, and that in so doing that he was exercising reasonable cafe and prudence, and such as a man naturally would use in endeavoring to avoid injury, and you find that that was the proximate cause of the injury in this case, the plaintiff in this case would be entitled to recover.” The ground of the exception to this excerpt from the charge is that “it instructed the jury that the plaintiff would be entitled to recover if the injury was caused by the driver of plaintiff’s truck turning to his left, it being the contention of defendant that turning to the left by plaintiff’s truck was the cause of the collision, and that if plaintiff’s truck had remained to the right of the road there would have been no collision.” Immediately following the language quoted the court charged: “On the other hand, if you find that that is not the truth of the case, but that there was no necessity for him to turn to his.left, in attempting to avoid a collision with consequent injury, in that ease he would not be entitled to recover.” And immediately following this: “I charge you further, in this case, if you find that [defendant], even though he was driving on the left side of the road, if he had ample space' in which to turn to the right, and did turn to the .right in time, and the other party could have kept to the right and avoided a collision, in that case the plaintiff in this case would not be entitled to recover. Each party, in traveling the public road, is required to use all ordinary and reasonable care and diligence in order to prevent a collision or injury to other parties who may be traveling the same road.” The court then proceeded to define ordinary care.

Emergencies may arise in which the failure to observe the ordinary rule requiring a person in meeting another to turn to the right may not be accounted want of ordinary care, or contributory negligence; but ordinarily the questions as to whether such an emergency existed, and as to the relative diligence or negligence of the parties, and as to what negligence, if any, was the proximate cause of the injury, are for the jury alone to determine. Davies v. West Lumber Co., 32 Ga. App. 460, 464 (123 S. E. 757); Pacetti v. Cen. Ry. Co., 6 Ga. App. 97 (2) (64 S. E. 302); Athens Ry. Co. v. McKinney, 16 Ga. App. 741, 744 (86 S. E. 83). While a part of the language excepted to might possibly be taken as technically inaccurate in charging in effect that, even though the plaintiff’s turning to his left “was the proximate cause of the injury in this ease,” the plaintiff “would be entitled to recover,” if “in so doing he was exercising reasonable care and prudence” to avoid the collision, still the court preceded this with an instruction in effect that the jury should first find that the emergency and “imminent danger of the trucks colliding” was caused by the defendant’s truck being at the time on the wrong side of the road, and then immediately in the same connection made clear that each party must have exercised ordinary, care, and as to the relative duties of the parties. The instruction criticized, therefore, can not reasonably be taken as misleading or harmful to the rights of the defendant.

3. Immediately following the portions of the charge referred to above, the court in language taken from section 4426 of the Civil Code, as follows: “I charge you further in this case that if the plaintiff could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover; but in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” Exception is taken to this portion of the charge, 'on the ground that it amounted to an expression of opinion that the defendant was negligent.

In order “to ascertain whether a particular part of a charge, excepted to as expressing an opinion on the facts, is fairly liable to such exception, the whole charge, written and in the record, may be considered.” Nutzel v. State, 60 Ga. 265 (2); Everett v. State, 62 Ga. 65 (5); Hanney v. State, 68 Ga. 615 (4); Moon v. State, 68 Ga. 687, 697 (7); Bowman v. Owens, 133 Ga. 49, 55 (7) (65 S. E. 156). In the instant case it was proper that the principle of law set forth in the code section read should be given in charge (So. Cotton Oil Co. v. Caleb, 143 Ga. 585 (1), 85 S. E. 707; Cen. of Ga. Ry. Co. v. Hill, 21 Ga. App. 231 (2), 94 S. E. 30); and while it would have been better to qualify the language in accordance with the instruction already plainly given and reiterated, we do not think that, after having so plainly stated that one of the real controlling issues of fact to be determined by the jury was whether or not the alleged acts and conduct of the defendant amounted to negligence, the giving, for the benefit of the defendant, of this other and additional principle of law in the language of the statute could reasonably be taken as prejudging the issue of fact which had already been fully and_ fairly submitted to the jury. Payne v. Allen, supra. “No proposition of law can be laid down without some implication of a state of facts as by possibility existing.” “To declare the law applicable to a given state of facts is no expression or intimation of opinion as to whether any of the facts referred to do or do not exist.” Yarborough v. State, 86 Ga. 396 (2), 398 (12 S. E. 650). It is only “when the charge of the, court assumes certain things as facts, and is in such shape as to intimate to the jury what the judge believes the evidence to be,” that the rule of the statute is infringed. Whitley v. State, 38 Ga. 50 (4). See also Holland v. Bell, 148 Ga. 277 (4 a), 281 (96 S. E. 419); Harris v. Vallee, 29 Ga. App. 769 (10) (116 S. E. 642).

Judgment affirmed.

Stephens and Bell, JJ., concur.