text:
    15555.
    TRICE v. ADAMS.
    A lost note may be sued upon without previous establishment of a copy. It is not necessary (though it is the bettor practice) for the petition to allege the loss; and where the loss is proved, the plaintiff may recover upon sufficient evidence of the contents of the note.
    Proof that the copy relied on is a “substantial copy” may be sufficient. In view of the very meager and incomplete evidence offered as to the loss of the original note in this case, it was error to admit the copy in evidence.
    Decided December 15, 1924.
    Complaint; from city court of Barnesville—Judge Eedding. March 15, 1924.

      C. J. Lesier, for plaintiff in error.

      Dobbs & Barrell, contra.
   Jenkins, P. J.

1. “A copy of a lost paper may be established in lieu of a lost original under the provisions” of sections 5314 to 5317 inclusive, 5319 and 5320 of the Civil Code (1910; acts 1855-6, p. 239), “and the copy thus established may thereafter afford a basis for an action at law. This procedure, however, is merely cumulative, and not exclusive of the right of the owner or holder of a lost paper to sue upon a copy of it, and prove the existence of the lost original if it is disputed. 4 A lost instrument may be sued on; and if a plea of non est factum is filed, the same may be met by the proof that the lost note was genuine, and that the copy attached to the declaration is correct/ (Civil Code, 1910, § 5318). A suit upon a lost note is as effectual as a suit upon an established copy, if the only purpose of establishing the copy be to obtain judgment upon the note.” Continental Fertilizer Co. v. Pass, 7 Ga. App. 721 (1) (67 S. E. 1052); Witherington v. Ware, 17 Ga. App. 433 (87 S. E. 603).

2. Where a promissory note is thus sued on, and its loss occurred prior to the suit, it is the better practice to allege the fact of loss in the petition, attaching or setting forth a copy of the paper; but it is not essential to do so, and where the loss or destruction of the original is proved at the trial, the plaintiff may recover upon proper and sufficient evidence of its contents. See Jernigan v. Carter, 60 Ga. 133; Haug v. Riley, 101 Ga. 372 (1), 373, 374 (29 S. E. 44, 40 L. R. A. 244); Goodman v. Harrison, 58 Ga. 567; Lindsay v. Kendrick, 30 Ga. 545; Duvall v. Barron, 14 Ga. 304. See also Ross v. Wright, 12 Ga. 507-509; Mayor v. Burroughs, 36 Ga. 212; Mayor v. Cohen, 36 Ga. 219.

3. It is not necessary that the copy thus sought to be proved shall be identical with the original, but it may be “either a literal or a substantial copy,” provided other rules as to the admission of secondary evidence are satisfied. Clements v. Western Lodge, 101 Ga. 62 (2), 64 (28 S. E. 494); Williams v. Waters, 36 Ga. 454. The charge of the court, that the jury should believe that the copy of the note relied upon was a “substantial copy” of the original, was not erroneous, under this rule.

4. While it is the rule that, where secondary proof of an original paper is attempted, questions of diligence in exhausting the means of information for primary evidence accessible to the party are addressed to the sound discretion of the court below,—with which this court will not ordinarily interfere (Wallace v. Tumlin, 42 Ga. 462 (3); Hayden v. Mitchell, 103 Ga. 431 (1), 436, 30 S. E. 287; Sweeney v. Sweeney, 119 Ga. 76 (1 b), 79, 46 S. E. 76; Emory v. Smith, 54 Ga. 273 (2); Williams v. Atlanta Nat. Bank, 31 Ga. App. 212 (6), 120 S. E. 658),—it is also true that, where a sworn plea of non est factum has been filed, not only is the burden on the plaintifli to show that a genuine note previously existed, and that the copy sought to be established is at least substantially correct, but, before the copy can be admitted, a prima facie showing must be made that the original is at the time lost and inaccessible. Civil Code (1910), § 5318; Jones v. Bank of Powder Springs, 31 Ga. App. 263 (1) (120 S. E. 422); Bank of Norwood v. Chapman, 19 Ga. App. 709 (6), 710 (92 S. E. 225). The person who can testify as to the loss or inaccessibility of the paper at the time of trial should be called as a witness. Lott v. Buck, 113 Ga. 640, 642 (39 S. E. 70); Tilley v. Cox, 119 Ga. 867 (1), 869, 870 (47 S. E. 219). -In the instant case the evidence to show loss or inaccessibility and the contents of the original paper was that of the plaintiffs agent, who took the note.of the defendant, and who testified that it “'was lost,” that the witness “laid it on the desk in the office” of the plaintiff after defendant signed it, and had “never seen it since,” that he did not “know what became of it,” that he “searched everywhere for it but can’t find it,” that the copy attached to the suit was “a true copy of the note,” that after leaving the note on the desk he “later the same day went back to look for it and it was gone,” and he had “never seen the note since;” and evidence of another witness that he was shown the paper by this agent of the plaintiff a “day or two” after the trade in which it was given, and saw certain language in the paper which the defendant denied was contained in the note given by him. It appears, while the plaintiff himself testified in the case, that he gave no evidence as to the loss of the note or its inaccessibility to him. While it was shown that the plaintiff’s agent had original custody of the note, he was not shown to be its continued custodian, and while, so far as this witness could himself testify, it was “lost,” it was not shown that the plaintiff, in whose office the note appears to have been left or deposited, and who was presumably thereafter its proper and natural custodian, did not know anything as to its whereabouts and after a diligent search could not locate it. Under the very meager and incomplete proof offered as to the loss of the original, the admission of the copy in evidence must be held to have been error.

Judgment reversed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15619.
    HARPER v. ATLANTA & WEST POINT RAILROAD COMPANY.
    1. Where it is recited in a bill of exceptions to the direction of a verdict that the direction was based expressly upon one issue alone, a motion to dismiss the writ of error upon the ground that the material evidence touching the other issue or issues is not brought up in full will not be sustained, when it does not affirmatively appear in the record that the complaining party is precluded upon some other issue than that upon which the verdict was directed. In such a case it is sufficient for the plaintiff in error to set out all the material evidence introduced on that issue upon which the trial judge directed the verdict against him. Even if it were otherwise, it is questionable whether the bill of exceptions should be dismissed or whether the judgment of the trial court should be affirmed.
    2. A bill of exceptions complaining of the direction of a verdict upon a certain issue will not be dismissed because the bill of exceptions may disclose that not all of the evidence relating to such issue is brought up, provided it appear that all the evidence necessary to a decision of the question raised is brought up. It affirmatively appears from the bill of exceptions that certain evidence introduced in the court below, relating to the issue upon which the trial judge directed a verdict, which direction is assigned as error, has not been brought up in such a way as to enable this court to consider it; but the bill of exceptions will not for that reason be dismissed, since whatever may have been the effect of the - evidence omitted, it could not be material or relevant in the decision of the particular point raised by the assignment..
    3. Where a woman was divorced in a foreign State, and it was decreed that she should not have the privilege of marrying again for sixty days after the decree, assuming that her marriage to another in that State within the period of the impedient was void and even criminal, and that under the laws of that State they never became husband and wife even after the expiration of the sixty-day period, yet when they thereafter removed into the State of Georgia and openly declared their intention to be husband and wife, and lived together as such for a number of years, during which time they were regarded by their friends and acquaintances as husband and wife, and a deed was made by the man to the woman, describing her as his wife and reciting a consideration based upon his love and affection for her as such, which deed she accepted, such conduct in this State authorized the inference of lawful wedlock between them under the laws of Georgia.

      (a) In the trial of a case involving the issue as to whether such man and woman became lawfully married under the laws of Georgia, under the circumstances set out above, the trial court erred in directing a finding that no such marriage had taken place.
    Decided December 15, 1924.
    Action for damages; from Fulton superior court—Judge E. D. Thomas. March 17, 1924.

      E. Smyth Gambrell, Underwood, Pomeroy & Haas, for plaintiff.
    Horsey, Brewster, Howell & Heyman, for defendant.
   Bell, J.

Martha Daniel brought suit against Atlanta & West Point Eailroad Company for the homicide of her alleged husband, Olin Daniel. The defendant denied that it was negligent, and, also, that the plaintiff was the widow of the deceased. The plaintiff married Harper after the filing of her suit, and the action was amended so as to proceed in her new name. Upon the trial the court directed a verdict in favor of the defendant, and the plaintiff excepted.

The following facts are recited in the bill of exceptions: The plaintiff testified that she was the wife of Olin Daniel at the time of his injury and death; she then introduced five witnesses who testified concerning the homicide of her husband, and rested. The defendant, without motion of any kind, proceeded to introduce evidence upon the issue of negligence. Upon the issue of the plaintiff’s alleged widowhood the defendant “introduced the case of Attorney General v. Vance, 210 Ala. 9 (97 So. 230), as evidence of 'the Alabama law upon the matter of marriage and divorce,” the same not being otherwise referred to or more fully shown in the bill of exceptions; a decree rendered by the circuit court of Jefferson county, Alabama, on December 1, 1916, granting to the plaintiff a complete divorce from one Arthur Powell, to whom she had hitherto been married, in which decree it was “ordered and adjudged . . that said Martha Powell [the plaintiff herein] shall not again marry except to said Arthur Powell until sixty days after this date, and that if an appeal is taken within sixty days she shall not marry again except to said Arthur Powell during the pendency of said appeal;” and a certified copy of the record of the marriage in Alabama on December 12, 1916, of the plaintiff to Olin Daniel, the decedent. The plaintiff then testified in rebuttal as follows: “I was first married in Alabama to Arthur Powell, and obtained a divorce from him in the circuit court of Jefferson county, Alabama, which is at Birmingham. I do not remember the date when this divorce decree was granted, brxt I know that I had obtained the decree before I married Olin Daniel, who was my second husband and whom I married on December 12, 1916. I understood and believed at the time I married Olin Daniel that I was completely divorced from Arthur Powell and had an immediate right to remarry and I openly married Olin Daniel, to the knowledge of all my friends and acquaintance's in Birmingham, and Olin Daniel and I immediately set up housekeeping at the home of my mother in Birmingham, where all of our mutual friends regarded us as man and wife, and I held Daniel out to be my husband, and he held me out to be his wife to the members of our own families and to people with whom we were acquainted. We were married in regular form; we obtained a license and went through with a regular marriage ceremony in good faith. He lived with me in our home as my husband and I with him as his wife, and we continued to so live in Birmingham for several months, until April, 1917, when we moved to Atlanta and set up housekeeping in a house which we bought with our joint funds. When I came to Atlanta he introduced me to his people here as his wife, and into his church and to his pastor as his wife, and we were known to all. of our friends, relatives, and acquaintances in Atlanta as Olin Daniel and Martha Daniel, his wife. We lived together in Atlanta from the spring of 1917, when we moved here from Birmingham, until his death in May, 1922. During that period we were attentive- to’ each other as man and wife and he was not.attentive to any other woman, nor was T attentive to any other man. One child was born to ns during our married life. This child is dead, and there are no children of Olin Daniel or of myself now living. I never heard him say after we went through the marriage ceremony in Birmingham in December, 1916, that I was not his wife, and he always treated me as such. On December 11, 1918, he deeded to me a tract of land on Smith street in Atlanta, this being the deed.” The plaintiff, as a witness, here exhibited and identified a duly executed and recorded deed from Olin Daniel to Martha Daniel, dated December 11, 1918, reciting that Olin Daniel of Fulton county, Georgia, was party of the first part, and “Martha Daniel, his wife,” of the same place, was party of the second part; and that the party of the' first part, in consideration of love and affection for his said wife, granted and conveyed unto her a certain described lot in the city of Atlanta. The plaintiff further testified: “When Olin Daniel and I were married on December 12, 1916, we began to live in the same house and occupy the same home, and in every sense lived as man and wife, and we so regarded each other at the time of his injury and death on May 12, 1922.”

The plaintiff called the court's attention to certain decisions of the Supreme Court of Alabama, described in the bill of exceptions only by name, volume, and page, “declaring the Alabama law to recognize common-law marriages. . . The court, without objection from the opposing counsel, accepted these decisions as containing the Alabama law.” The defendant thereupon asked the court to direct a verdict in its favor, “stating as the only ground for such request that the plaintiff had not shown herself to have been the legal wife of the deceased, Olin Daniel, at the time of his injury and death, nothing being said as to the sufficiency of the evidence of negligence. After a hearing of argument upon this sole point, . . -the court directed a verdict in favor of the defendant, stating that said verdict was directed solely upon the question of whether or not plaintiff was the lawful wife of Daniel” at the time of his death.

None of the evidence offered by either party upon the subject of negligence is set forth; nor is there any evidence touching the value of the life of the deceased.

The defendant in error made a motion to dismiss the bill of exceptions, upon two grounds: First, because it does not sot forth the evidence of the law of Alabama “contained in the case of Attorney General v. Vance, [210 Ala. 9] 97 So. 230, . . but merely refers to said ease,” without specifying what was decided therein, leaving the determination of the actual evidence so offered to the appellate court’s examination of the decision. It is alleged in this ground that the bill of exceptions and the allegations thereof show that the evidence is material to a determination of the error complained of. Second, because the bill of exceptions does not set forth the evidence offered by either party upon the material issues, in order that the appellate court may decide whether a verdict was not demanded for the defendant upon some other issue than that of the plaintiff’s widowhood.

We will consider the grounds of the motion to dismiss in their inverse order. The second ground is clearly without merit. The verdict was directed upon a sole ground. Upon this point the case is controlled by the decision of the Supreme Court in Lamar v. Gardner, 113 Ga. 781 (1) (39 S. E. 498). See also Houser v. Savannah Electric Co., 9 Ga. App. 766 (3) (72 S. E. 276); Georgia &c. R. Co. v. Georgia-Alabama Power Co., 152 Ga. 172 (1) (108 S. E. 521).

Even if we could agree with the counsel for the defendant in error upon the propositions asserted in both grounds of the motion, it would be questionable as to whether the bill should be dismissed or merely that the judgment of the trial court should be affirmed. See Roberts v. City of Cairo, 133 Ga. 642 (4) (66 S. E. 938); Jennison v. Jennison, 136 Ga. 202 (3 b) (71 S. E. 244, Ann. Cas. 1912C, 441); Hancock v. McNatt, 116 Ga. 297 (1) (42 S. E. 525); Williams v. Childers, 145 Ga. 91 (88 S. E. 557); Pierce v. Felts, 146 Ga. 716 (92 S. E. 212); Fairburn Banking Co. v. Citizens Bank, 20 Ga. App. 732 (1) (93 S. E. 234).

If it appears, by the recitals of a bill of exceptions, that not all of the evidence material to a determination of the question raised for decision has been brought up, there can be no reversal of the judgment, but if there are questions as to the correctness of the judgment which can be determined without reference to the evidence appearing to have been omitted, they may be considered. Roberts v. City of Cairo, supra. The view which we take of the second ground of the motion to dismiss really controls our decision upon the propriety of the judgment excepted to. We are of the opinion that although the mere reference in the bill of exceptions to the decision of the Supreme Court of Alabama in the case of Attorney General v. Vance may not properly bring anything to our consideration as evidence of the Jaw of that State, nothing contained therein could be material in passing upon the question of whether the court erred in directing a verdict in favor of the defendant upon the issue of the plaintiff’s widowhood. That question is, would the jury have been authorized to find that the plaintiff and Olin Daniel were living together in a state of wedlock, according to the laws of this State, at the time of his homicide ?

We may assume that the decision of the Alabama court in the Yance case would have proved that the plaintiff’s marriage to Daniel within less than sixty days from the decree of divorce was absolutely void, and that she was even guilty of bigamy under tJie Alabama law. In the absence of evidence to the contrary, we would presume that the common law prevails in that State, but we may assume further that if the evidence had been properly set out in the bill of exceptions, or attached thereto and identified as an exhibit, it would have disclosed that the common law is not in force there, and that the marriage within the sixty-day period being void, the parties could not have become husband and wife as at common law when the period had expired. It will not be presumed that an appeal was ever taken from the divorce decree by either party.

We may say then that the plaintiff and Olin Daniel were never husband and wife under the laws of Alabama, and further that sire might even now be carried hack to that State and be subject to a prosecution, unless it is barred by limitation, because of her marriage to him within less than sixty days from the date of tire decree. She could have married him, however, by express ceremony at any time after the expiration of the sixty-day period. It clearly appears that the marriage bond between her and Powell was completely dissolved, and that she was restrained from marrying again only for the limited time stated in the decree. But there was no marriage by ceremony either in Georgia or Alabama, after the removal of her impediment by the lapse of the prescribed time. They took up habitation in the State of Georgia in the year 1917, and, to give to the defendant the benefit- of all evidence that may lie contained in the report of tlie decision in the Yance case, the plaintiff and Daniel were not in a state of wedlock until after they came to Georgia. Did they thereafter become husband and wife?

In this State marriage may be consummated as at common law. The relation between them had at no time been meretricious. The impediment in the plaintiff was, in view of her evidence, strictly legal, not moral. She thought she had the right to marry again. Perhaps ignorance on her part of the effect of the decree would not avail her as a defense if she were being prosecuted for bigamy in Alabama on account of the marriage. A person is not permitted to set up ignorance of the law as an exemption from punishment for crime, or from damages for torts, or from liability for the breach of a contract, but knowledge of the law for all intents and purposes will not be imputed to every person. Ryan v. State, 104 Ga. 78, 80 (30 S. E. 678). There is a prima facie presumption that every one knows the law, but there is no conclusive presumption to that effect except in the three instances just stated. Compare Carter v. Walden, 136 Ga. 700 (3) (71 S. E. 1047); Butler v. Livingston, 15 Ga. 565 (1); Glover v. Wright, 82 Ga. 114, 118 (S. E. 452); Rylee v. Bank of Statham, 7 Ga. App. 489 (3) (67 S. E. 383); 4 R. C. L. 873, § 17. The rebuttal evidence offered by the plaintiff,- including the deed, was certainly sufficient to authorize, if not to demand, the inference of a valid common-law marriage between her and the deceased under the laws of Georgia, regardless of the relation obtaining between them before their removal to this St^te. It is noted that in the deed she is referred to as the grantor’s wife, and the conveyance is based upon the consideration of his love and affection for her as such. She accepted the deed. This is shown prima facie, if not conclusively, by its record and the fact that she had it in her possession, and produced it, at the trial.

Our conclusion then is that no evidence material to the question to be decided (that is, was the inference of a common-law marriage in Georgia authorized?) appears to have been omitted from the'hill of exceptions. The evidence which the defendant in error insists was omitted would have been material if common-law marriages were not sanctioned in Georgia, or if our inquiry should be confined to the relation existing between the plaintiff and the decedent while they remained in Alabama. The omitted evidence might possibty be-material if we were called upon to determine the question as to whether a finding for the plaintiff would have been demanded on the issue upon which the adverse ruling was made.

From what we have said above, it follows that the first ground of the motion to dismiss the bill of exceptions is also without merit, and that the court committed error in directing the verdict in favor of the defendant. Smith v. Reed, 145 Ga. 724 (1) (89 S. E. 185; L. R. A. 1917A, 492); Powers v. Powers, 138 Ga. 65 (1) (74 S. E. 759); Park v. Barron, 20 Ga. 702 (65 Am. Dec. 641).

Before concluding, we must confess to have stealthily examined the Alabama decision in the Vance case as contained in a volume like that described in the bill of exceptions. As individuals and lawyers we’know what it says of the Alabama law. In fact, the writer has a report of the decision before his very eyes at this moment. But since it is not properly brought up in the record as evidence of a fact, we must as judges remain ignorant of whatever it may prove. We can not use it. as we might in examining the decisions of other jurisdictions as persuasive authority upon some law question to be decided. But as stated above, whatever may be the law of Alabama determining the relation of the parties in that State, it conclusively appears that at the time of their removal to Georgia, the period of restraint upon the plaintiff’s right to marry had expired, and their status thereafter should be determined by the laws of this State and not the laws of Alabama. Hancock v. McNatt, 116 Ga. 297 (42 S. E. 525); Roberts v. City of Cairo, supra; Champion v. Wilson, 64 Ga. 184 (1); Craven v. Bates, 96 Ga. 78, 80 (23 S. E. 202); 18 R. C. L. 388, § 9.

Judgment reversed.

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


text:
    15622.
    NELLIS & CO. v. HOUSER.
    1. A parol contract which would be otherwise invalid under the statute of frauds may be removed from the operation of the statute by such part performance as would render it a fraud of the party refusing to comply if the court did not compel a performance. Civil Code (1910), § 3223 (3).
    2. But “the mere Circumstance that a verbal agreement has been in part performed can afford no reason, such as to control the action of any court, whether of law or equity, for holding the parties bound to perform what remains executory. The doctrine of equity in such cases is, that where an agreement has been so far executed by one party, with the tacit encouragement of the other, relying upon his- fulfilment of it, that for the latter to repudiate and shelter himself under the provision of the statute would amount to a fraud upon the former, that fraud will be defeated by compelling him to carry out the agreement.” See Bmnswick Grocery Go. v. Lamar, 116 Ga. 1 (2), 6 (42 S. E. 366).
    3. In an action for damages by the vendor against the vendee in a parol contract for the sale of goods amounting to more than $50, because of the vendee’s refusal to accept and pay for the goods, where the defendant invoked the statute of frauds as a defense, and the evidence showed part performance by the vendor but did not demand a finding that the part performance was such that it would be a fraud on him for the vendee to refuse performance, although such inference would have been authorized, the court committed error as against the vendee in charging the jury that if the vendor “performed any work or labor, or contracted for material, or went to any expense peculiarly in complying with the terms of the contract . . , that . . would be a part performance, and would take it out of the statute of frauds.” Compare Burnett v. Blaclvmar, 43 Ga. 569 (1), 577. The error in the excerpt is that, in effect, it instructed the jury as a matter of law that any part performance would satisfy the exception to the statute; whereas the court should have submitted to the jury the question as to whether there was such part performance by the vendor “as would render it a fraud of the party refusing to comply.” Civil Code (1910), § 3223 (3).
    4. Solely because of the error indicated above the court erred in overruling the motion of the vendee for a new trial.
    Decided December 15, 1924.
    Action for breach of contract; from city court of Houston county —Judge Eiley. April 19, 1924.

      JBrotvn & Brown, for plaintiffs in error.

      G. L. Shepard, contra.
   Bell, J.

We find no merit in any of the general grounds of the defendants’ motion for a new trial, nor in any special ground except that dealt with in the first three lieadnotes. The facts pertinent to the rulings made therein are as follows: The plaintiff, who was a peach grower, entered into a parol contract with the defendants for the sale to them of three cars of peaches, by the terms of which it was agreed that the defendants would take the next three cars which the plaintiff should have ready for market, at prices per crate specified. The contract as modified by the parties provided that the first car was to be loaded on Saturday, July 7, and “delivered” or “turned over” to the defendants at that time; the second car to be loaded on July 9 and the third and last car on the 10th or 11th of July. Originally it was stipulated that the first car should be “turned over” -to the defendant purchasers on Friday afternoon, but, the peaches not being then ready for shipment (not sufficiently ripe), the defendants agreed to wait until Saturday and to pay the expense of “carrying the car over.” They agreed also to have the ear moved to Fort Valley (dista]ice not being shown), and reiced; and the plaintiff was to finish loading the car there, although he had partially loaded it at his own packing house, where it seems he was expected under thé contract to load it. An employee of the defendants was left at the plaintiff's packing shed to inspect the peaches as to quality, but not variety, and to see that they were properly packed. TJpon the car being so removed to Fort Valley, and placed at the defendants' packing shed, the plaintiff, according to agreement, hauled the peaches from his farm to that place and concluded loading the car, after which the defendants' employee who had inspected the packing prepared a memorandum showing the number of crates in the car, which he thereafter submitted to one of the defendants, and at the latter's direction placed a certain slip or notice on the car “for the purpose of notifying railroad that it is to be pulled,” or ready to be transported. Thereafter the plaintiff went to the office of one of the defendants, “expecting a settlement for the peaches.” This defendant, acting for the other, refused to “take” the peaches, because, as he claimed, the car did not, as to the relative proportions of the two varieties contracted for, conform to the contract. The defendants on the same day ordered the plaintiff not to deliver the other two cars. The plaintiff packed the peaches in accordance with the direction of the defendant through its inspector. The plaintiff notified the defendants that he would sell the peaches for their account and hold them for the difference between the contract price and the price on resale. This action was subsequently brought for that difference. A verdict was found for the plaintiff, and the defendant filed a motion for new trial, in one of the special grounds of which exception is taken to the instruction set forth in headnote 3.

The plaintiff, in the nature of his allegations, can not insist upon an acceptance even of the car which he loaded and attempted to deliver on Saturday. JTe alleges, and sues for, a refusal to accept any of the three ears. See Brunswick Grocery Co. v. Lamar, 116 Ga. 1 (1) (42 S. E. 366).

The contract was an entire one. The plaintiff's acts were in relation to but one of the three cars of peaches contracted for. It can not be held as a matter of law that what the plaintiff did was such part performance “as would render it a fraud of the party refusing to comply if the court did not compel a performance.” Civil Code (1910), § 3223 (3). The charge in effect instructed the jury that it was. Burnett v. Blackmar, 43 Ga. 569 (1), 577. The rulings set forth in the headnotes need not be elaborated.

Another defense was that the car offered on Saturday did not contain the relative proportion of the two varieties, specified in the contract. It was a jury question as to whether this defense was sustained.

The foregoing statement is intended to cover the facts as the jury might have found them in favor of the plaintiff. As already indicated, we have deemed it necessary only to state such facts as are pertinent to the point on which we reverse the judgment of the court below, since in other respects it is perfectly clear there was no error.

Judgment reversed.

Jenkins, P. J., and Stephens, J., conctir.


text:
    15630.
    BISHOP et al. v. PINSON.
    1. It is true that wliere a creditor of an estate lias recovered against the administrator a judgment de bonis testatoris and de bonis propriis, he can not for the same cause of action recover another judgment de bonis propriis against the administrator upon his bond, and that where a suit on such bond against an administrator and his sureties is commenced in the county of the residence of the administrator, and all the sureties reside in another county, the court has no jurisdiction of the sureties; and that where all of these facts appear upon the face of the petition, it will be subject to be dismissed on the motion of the sureties, if jurisdiction of the person has not been waived; but these principles are inapplicable to the case sub judiee, wherein the petition showed no prior judgment de bonis propriis against the administrator, but only a judgment de bonis testatoris. The instant action was to recover for the first time a personal judgment against the administrator, and his sureties were suable upon the bond with him in the county of the administrator. The rule is applicable that joint obligors may be sued together in the county of the residence of either. The motion of the sureties to dismiss the petition for want of jurisdiction was properly overruled.
    2. Where there is a plea in abatement upon the ground that the suit is a renewal of a dismissed action between the same parties upon the same cause of action, and that the costs were not paid, nor an affidavit in forma pauperis filed in lieu of costs, before its recommencement, it is incumbent upon the defendant, in order to sustain the plea, to show not only the nonpayment of the costs which accrued upon the first action, but also that the new suit is substantially identical with the old suit, both as to parties and causes of action. Such burden is not carried merely by introducing in evidence a docket entry showing a suit between the same parties but nothing as to the cause of action.
    3. An alleged creditor of an estate, suing upon the administrator’s bond, makes out a conclusive case against the administrator, and a prima facie case against the sureties, by proof of the rendition of a judgment in his favor against the administrator, upon a liability of the deceased, with a return of nulla bona by the sheriff or other officer authorized to make the same upon the execution issued thereon. Such prima facie case having been made out against the sureties by the plaintiff in the present action, and having never been rebutted, a verdict was demanded in favor of the plaintiff, and the court did not err in so directing.
    Decided December 15, 1924.
    Appeal; from Gordon superior court—Judge Tarver. April 5, 1924.

      W. E. & W. Gordon Mann, for plaintiffs in error.

      J. M. Lang, contra.
   Bell, J.

This was an action by M. L. Pinson against E. L. Jones, principal, and Henry Bishop and Jim Bishop, as sureties, upon the bond of Jones as administrator of the estate of V. W. Bishop. It was commenced in a justice’s court of Gordon county on November 7, 1923, but by consent was appealed to the superior court. Attached to the summons was a complaint in which the plaintiff alleged that he had procured “a judgment and execution against E. L. Jones as administrator,” “which judgment and execution is against the property of the said Y, W. Bishop, deceased, in the hands of the said E. L. Jones, as administrator,” and that upon the fi. fa. an entry of nulla bona had been made by the sheriff of Gordon county. Annexed to the complaint was a copy of the ff. fa., in form as follows:

“State of Georgia, Gordon county.

“M. L. Pinson, plaintiff, vs. E. L. Jones, as adm’r of estate of Y. W. Bishop, deceased, defendant.

“To any lawful constable of said county, greeting: You are hereby commanded to levy on a sufficiency of the property of the defendant above named and of the property of Y- W. Bishop, deceased, in hands of E. L. Jones, as adm’r, to make the sum of $76.94 principal, $8.25 interest to date of judgment at seven per cent, per annum, and all future interest at the same rate,dollars for attorney’s fees, $3.95 costs of this suit, and 35 cents for this writ; which several sums were adjudged against the defendant above named upon an account at the justice court held' in and for the 980th district G. M., on October 19th, 1923, in favor of plaintiff above named. And have you this writ at the November term, 1923, of said court, to be held on the third Friday in November, 1923, to render an account of your actings and doings thereon. Herein fail not. Given under my hand and seal, this Nov. 1, 1923.

“G. E. Wlielchel, J. P., 980th district, G. M. (Seal.)”

The administrator Jones was a resident of Gordon county, and the sureties were residents of Murray county. These facts appeared upon the face of the petition.

The defendant sureties pleaded to the merit's, with a reservation of the right to move to dismiss the suit, for want of jurisdiction. Upon the call of the case for trial they made an oral motion to dismiss, upon the ground that it appeared by the petition or summons that the plaintiff had already recovered against the administrator a judgment de bonis propriis and could not proceed for a second personal judgment against him upon the bond, and, inasmuch, therefore, as a cause of action was not set forth against the administrator, the court had no jurisdiction over the sureties who resided in another county. The motion was overruled, and this judgment is assigned as error.

The plaintiffs in error rely upon the decision of the Supreme Court in Ross v. Battle, 117 Ga. 877 (45 S. E. 252), in which it was held that where heirs at law of an estate have recovered against administrators judgments de bonis testatoris and de bonis propriis, they can not for the same cause of action recover another judgment de bonis propriis against the administrators upon their bond, and that where suit on such bond, against the administrators and the sureties, is commenced in the court of the county of the residence of one of the administrators, against whom no recovery can be had, and all the sureties reside in other counties, the court has no jurisdiction of the sureties, and the action should be dismissed on demurrer. If the counsel are right in their contention that the execution attached to the summons discloses that a prior judgment had been obtained against the administrator de bonis propriis, the court undoubtedly committed error in overruling the motion to dismiss. Ruis v. Lothridge, 149 Ga. 474 (2) (100 S. E. 365); Cox v. Polts, 67 Ga. 521; Robertson v. Tallulah Falls Railway Co., 29 Ga. App. 530 (4) (116 S. E. 65). We are unable, however, to agree that the execution is susceptible of such construction. It is entitled against “R. L. Jones, as adm’r of estate of Y. W. Bishop, deceased, defendant.” Hence, the “defendant above named,” as referred to in the body of the execution, was Jones in his capacity as administrator. While the language which directed that the levy be made “on a sufficiency of the property of the defendant above named and of the property of Y. W. Bishop, deceased, in hands of R. L. Jones as administrator” would appear tautological, it nevertheless appears from an examination of the fi. fa. as a whole that the sheriff is commanded to make a levy upon the property only of the administrator’s intestate. See Fry v. Shehee, 55 Ga. 208 (11); Wadley v. Oertel, 140 Ga. 326 (1) (78 S. E. 912); Jennings v. Wright, 54 Ga. 537 (1). The presumption is that the judgment was to the same effect. Jones v. McCleod, 61 Ga. 602 (1).

It would seem that if the judgment had been both de bonis testa,toris and de bonis propriis, the execution should have commanded the levy to be made, first, upon the property of the deceased, “if to be found, and if not to be found, then to be levied of the personal goods and chattels, lands and tenements of the defendant.” Civil Code (1910), § 4088.

In view of the language of the execution, it does not come within the rulings of any of the following cases: Forrester v. Tift, 84 Ga. 595 (10 S. E. 1015); Freeman v. Binswanger, 57 Ga. 159 (1); Lemon v. Thaxton, 59 Ga. 706; Beall v. Hutcheson, 131 Ga. 66 (61 S. E. 1125); Stephens v. City of Atlanta, 119 Ga. 666 (1). (46 S. E. 872); Wright v. Scott, 145 Ga. 514 (89 S. E. 426).

We hold, therefore, that the suit did not disclose a prior persona] judgment in favor of the plaintiff against the administrator. A suit may be brought on the bond against an administrator and his sureties without first obtaining a judgment against either in his individual or representative capacity. Bailey v. McAlpin, 122 Ga. 616 (6) (50 S. E. 388); Civil Code (1910), § 3974. Joint obligors may be sued in the county of the residence of either. Civil Code (1910), § 6541. The decision of the Supreme Court in Ross v. Battle is inapplicable. The motion to dismiss was properly overruled.

The defendant sureties filed a plea in abatement, upon tlic ground that the plaintiff had previously instituted and dismissed a suit against the same parties upon the same cause o£ action, and had not paid the costs nor filed an affidavit in forma pauperis in lieu of costs before renewing it by the present action. 1/Ve will assume that the evidence showed that the costs accruing upon the first suit had not been paid, and that the plaintiff was at fault in the failure to pay the same. We are nevertheless of the opinion that there is no merit in the assignment upon the action of the court in directing a verdict against the plea, for the reason that the defendants failed to show that the old suit and the new suit were substantially identical both as to parties and causes of action. We certainly can not say that the court committed error when the only evidence of the identity of the cases ivas a docket entry introduced in support of the plea, as follows:

“No. 29, Feb. Term, 1923. Appeal.
“M. L. Pinson vs. K. L. Jones, adni’r of V. W. Bishop et al.
“Withdrawn August 29th, 1923.”

See Butler v. Moseley, 14 Ga. App. 288 (2) (80 S. E. 789); Doody v. Jeffcoat, 127 Ga. 301 (1) (56 S. E. 421); Moore v. Bower, 6 Ga. App. 450 (4) (65 S. E. 328); Holmes v. Huguley, 136 Ga. 758 (1) (72 S. E. 38). Even if such entry could be held to show that the parties were identical, it discloses nothing as to the identity of the causes of action.

Error is also assigned upon the direction of a verdict in favor of the plaintiff on the.main issue. “Upon the rendition of a judgment in favor of a party against an executor or administrator upon any liability of the deceased, and a return of nulla bona by the sheriff or other officer authorized to make the same, the said party majr at once proceed to sue upon the bond of the executor or administrator, and may recover judgment against the principal and his sureties in the "same action.” Civil Code (1910), § 4081: Sheriffs are authorized to execute justice’s court processes. Civil Code (1910), § 4915. The plaintiff introduced the fi. fa. with the entry of nulla bona, as shown in the first division of this opinion. The fi. fa. having been issued in the county of the residence of the administrator, and the entry having been made by the sheriff of this county, it was not necessary that the plaintiff should show that the fi. fa. had been forwarded to another county and that a like entry had been made by the sheriff of that county, in which the intestate may have had property at the time of his death.

These documents would have made out a conclusive ease of devastavit against the administrator, and while as to the sureties they would have established only a prima facie case, there was absolutely no evidence tending to rebut the same, and the court, therefore, did not err in directing a verdict in favor of the plaintiff for the amount sued" for. See Gibson v. Robinson, 90 Ga. 756 (2) (4). (16 S. E. 969, 35 Am. St. Rep. 250); Johnson v. Huggins, 7 Ga. App. 553 (67 S. E. 217); Walker v. Shannon, 21 Ga. App. 39 (1) (93 S. E. 498); Groves v. Williams, 68 Ga. 598 (3); Sutton v. Flanders, 146 Ga. 290 (1), 293 (91 S. E. 50). Moreover, the evidence not only failed to rebut the inference of a devastavit to be drawn from the fi. fa. and the entry of nulla bona, but materially strengthened the same by showing (instead of a deficiency of assets) that the intestate left property subject to the plaintiff’s demand which ought to have been administered by the administrator and applied to its payment. Worthy v. Battle, 125 Ga. 415 (3) (54 S. E. 667).

In one ground of the motion for a 'new trial it is assigned that the court erred in ruling that the fi. fa. with" the entry of nulla bona was conclusive against the sureties, and that in such ruling the court erroneously expressed an opinion as to the sufficiency of the evidence. It is true, as we have already observed, that the fi. fa. and the entry made only a prima facie case of devastavit as against the sureties, but it not appearing that the defendants were prevented by this ruling from the introduction or offering of any evidence, and such prima facie case not having been rebutted, there is no cause for reversal in such expression by the judge of an erroneous opinion as to the law, nor in his final judgment upon the facts, there being no issue for submission to the jirry. Civil Code (1910), § 5926.

Judgment affirmed.

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


text:
    15629.
    Bishop et al. v. Bowen.
    Decided December 15, 1924.
    Appeal; from Gordon superior court—Judge Tarver. April 5, 1924.

      W. E. & W. Gordon Mann, for plaintiffs in error.

      J. M. Lang, contra.
   Bell, J.

This case is controlled by our decision this day rendered in Bishop v. Pinson, ante, 269.

Judgment affirmed.

Jenkins, P. J., and Stephans, J., concur.


text:
    15686.
    Byfield v. Candler.
   Bell, J.

1. Since the passage of the act of October 2, 1879 (Ga. L. 1878-9, p. 150, Civil Code of 1910, § 6084), a written request to charge is ineffective as such unless it is presented “before the jury retire to consider of their verdict.” Brooks v. State, 96 Ga. 353 (4).

2. Where the trial judge completed his charge to the jury, who retired and considered the case for several hours and then asked the court for a “recharge covering the whole ease,” and thereupon “the court gave to the jury in recharge the identical charge he originally gave'them,” it was not error to refuse written requests to charge presented to the court after such “recharge” but before the jury again retired. In Yeldell v. Shimholster, 15 Ga. 189 (4), the reversal of the refusal of an oral request presented under somewhat similar circumstances appears to have been based mainly upon the theory that the charge should have been given even without request. See division 1 of the opinion in that case.

3. In an action by a woman against a man either for an assault with intent to rape or for an assault with the intent of procuring her consent to the sexual act (Smalls v. State, 6 Ga. App. 502 (2), 65 S. E. 295; Sutton v. State, 123 Ga. 125, 51 S. E. 316), the want of consent on her part is an essential ingredient of the tort or cause of action complained of. Horseford v. State, 124 Ga. 784 (53 S. E. 322); Willey v. Carpenter, 64 Vt. 212, 23 A. 630, 15 L. R. A. 853; Goldnamer v. O’Brien, 98 Ky. 569, 33 S. W. 831, 36 L. R. A. 715, 56 Am. St. Rep. 378). Proof of consent, therefore, being such as to disprove the plaintiff’s cause of action, is admissible under a general denial of the allegations of the declaration. Civil Code (1910), § 5636; Wright v. Starr, 42 Nev. 441 (179 Pac. 877, 6 A. L. R. 981); Raefeldt v. Koenig, 152 Wis. 459 (140 N. W. 56, L. R. A. 1918E, 1053). Ajiter as to a claim of justification, in an action for a mere .assault and battery. Ratteree v. Chapman, 79 Ga. 574 (3) (4 S. E. 684).

4. The rule that when the testimony of a party is self-contradictory, vague, or equivocal it is to be taken most strongly against him (Shepard v. Chappell, 29 Ga. App. 6 (2), 113 S. E. 23), is applicable as matter of law only in resolving the issue to which such testimony relates, and will not estop such party from contesting other issues in the case. Wiley v. Rutland Railroad Co., 86 Vt. 504 (86 Atl. 808), and citations. Thus, the fact that the defendant testified that he had no intercourse with the plaintiff and made no effort to do so did not preclude an insistence on his part (the other evidence so authorizing) that the plaintiff consented to whatever was done. It was still permissible for him to combat liability upon-the theory of the absence of one of the necessary ingredients of the alleged cause of action.

5. The court charged the jury that if they believed that the plaintiff and the defendant “were voluntarily having sexual intercourse with each other, or were preparing to have sexual intercourse, and that the entire transaction was assented to by the plaintiff and the defendant, then the plaintiff can not recover.” Under the peculiar facts and circumstances developed by the evidence, this court can not hold that the instruction was erroneous upon the ground that it was unwarranted by any evidence in the case.

6. General damages are such as the law presumes to flow from any tortious act, and may be recovered without proof of any amount. Civil Code (1910), § 4507. In an action for the recovery of general damages (Truitt v. Rust, 25 Ga. App. 62 (2), 102 S. E. 645), either for an assault with intent to rape or for an assault with intent to procure consent to the act of sexual intercourse, upon proof of the assault as alleged, the law, without further evidence, will presume that the plaintiff has been damaged. Pye v. Gillis, 9 Ga. App. 725 (2) (72 S. E. 190). Whore in the trial of such an action a verdict for general damages, under the pleadings and the evidence, may legally be found, it is error to instruct the jury in such language as to imply that the plaintiff ought not to recover unless it be affirmatively proved that damage has resulted from the alleged tortious acts. Applying this ruling, the court erred in this case in charging the jury as follows: “If the defendant made such an assault upon the plaintiff as is described in plaintiff’s petition,—that is, that the defendant tore the bedclothing off of plaintiff, disheveled her night-clothes, grabbed her in his arms, and sought to get in bed with her against her will, for the purpose of debauching her, and if the jury believes that the plaintiff suffered injury and damage on account thereof, then the plaintiff would be entitled to recover such damages as the proof shows she has sustained;” the vice in this excerpt being that it tended to impress the jury that, oven though the defendant did all of the things named, the plaintiff still would not be entitled to recover unless she further proved, as an additional fact, that she had been injured and damaged. For this error a new trial is demanded, under the ruling of the Supreme Court in Flanders v. Daley, 124 Ga. 714 (52 S. E. 687). See also Cochran v. Mitchem, 143 Ga. 34 (4) (84 S. E. 127, Ann. Cas. 1916B, 450); Sammons_ v. Wilson, 20 Ga. App. 241 (1) (92 S. E. 950); Carlisle v. Callahan, 78 Ga. 320 (4) (2 S. E. 751).

7. The suit is based upon a transaction alleged to have occurred upon a vessel on which the plaintiff, her husband, and the defendant were fellow passengers. It is averred that the plaintiff and her husband had gone to their stateroom to retire for the night, but that before retiring tlie husband left the room temporarily. Paragraphs 12, 13, and 14, which were not qualified by anything sise in the petition, make the following allegations: “When petitioner’s husband had left her, the stateroom door was closed, the light was turned out, and she. prepared to sleep;” “A short time after petitioner’s husband had left her, said [defendant] opened the door, tore the bedclothing off of her, disheveled her night-clothes, grabbed her in his arms, and sought to get in bed with her, for the purpose of debauching her. Petitioner screamed and continued to scream until her husband rushed into the room and immediately engaged in a terrific fight with said, [defendant]: ” “Petitioner shows that this assault upon her was a wanton and malicious wrong and a betrayal of [defendant’s] professed friendship for petitioner and her husband.” The court instructed the jury trying the case as follows: “I charge you that this action is for assault and battery upon the plaintiff, and not for entering the plaintiff’s room.” In the plaintiff’s motion for a new trial it is assigned that this charge “was error, because plaintiff would be entitled to recover, if, without her implied or expressed consent, the defendant entered her room for an improper purpose, or if the defendant entered the room of the plaintiff when the door was shut, and her husband was absent, and if she was in bed, without her consent, expressed or implied, the same being a violation of her right of privacy.” Seld: A passenger upon a vessel is entitled to the privacy of the room to which he or she has been assigned, as against the improper, unjustified, or unreasonable intrusions of others, and a violation thereof will give rise to an action. A violation of such right of the plaintiff, constituting a lesser wrong, would be embraced within an entire greater wrong, such as is alleged in the petition, and the judge erred in giving the instruction complained of. Whether under the record a new trial should result for this error alone,, it is unnecessary to decide, in view of the ruling in the preceding paragraph. Newcomb Hotel Co. v. Corbelt, 27 Ga. App. 365 (108 S. E. 369).

Decided December 16, 1924.

Action for damages; from DeKalb superior court—Judge Hutcheson. May 17, 1924.

Application for certiorari was denied by the Supreme Court.

Slaton & Hopkins, Colquitt & Conyers, for plaintiff.

Beuhen B. & Lowry Arnold, L. J. Steele, Hugh Burgess, Bohert Bamspeck, Branch & Howard, for defendant.

8. There is no cause for a new trial in any of the remaining assignments of error.

Judgment reversed.

Jenldns, P. J., cmd Stephens, J., concur.


author: Jenkins, P. J.

text:
    15338.
    COWETA FERTILIZER COMPANY v. KISER COMPANY.
    Under the facts of this ease the court, on a money rule, did not err in awarding the fund to the holder of the superior mortgage lien, on the theory that all parties concerned had by their acts and conduct consented to a sale of the entire interest in the property.
    Decided December 17, 1924.
    Money rule; from city court of Newnán—Judge Post. January 11, 1924.

      Ilall & Jones, for plaintiff in error.

      Dorsey, Brewster, Howell & Heyman, W. P. Bloodworth, contra.
   Jenkins, P. J.

1. Section 3286 of the Civil Code (1910) provides how mortgages of personalty shall be foreclosed. Section 3291 provides that “if other fi. fas. are levied on the mortgaged property, and the same is sold, the mortgage fi. fa. may nevertheless claim the proceeds of the sale if its lien is superior.” While it is true that, where property is sold under a judgment, the lien of which is superior to that of a subsequent unforeclosed mortgage, the entire interest being legally subject to the levy, the holder of such an unforeclosed inferior mortgage is entitled to have his rights established, under equitable principles, in the distribution of the fund under a money rule (Baker v. Gladden, 72 Ga. 469; Sims v. Kidd, 55 Ga. 627), it is the general rule that where property is sold under a judgment whose lien is inferior to a prior outstanding mortgage, the only interest covered by the levy and conveyed by the sale is the equity of redemption held by the mortgagor, and the purchaser at such a sale takes the property subject to the outstanding lien of the mortgage. Hynds Mfg. Co. v. Oglesby Grocery Co., 93 Ga. 542 (21 S. E. 63). In such a sale under a junior judgment, where the lien of the superior mortgage has not been foreclosed, in order for the mortgagee to claim the fund, the entire interest or estate in the property, and not the mere^ equity of redemption, must have been sold, and this could have been effective only by the consent of the mortgagor, the mortgagee, and the plaintiff in fi. fa. Civil Code (1910), § 3292; DeVaughn v. Byrom, 110 Ga. 904 (6) (36 S. E. 267); Milner v. Pitts, 117 Ga. 794 (45 S. E. 67).

2. In the instant case such a consent by all parties will be presumed to have been made, since it appears that the entire interest in the property was in fact levied upon, sold, and conveyed; that the mortgagor was insolvent; and that the mortgagee in obtaining his judgment under which the property was sold had, by the terms of his judgment and without objection on the part of the mortgagor, undertaken to set up and establish a special and preferred lien on the mortgaged property. While the proper method legally to subject the entire property to the sale under the judgment so as to include the interest covered by the lien of the mortgage would have been by foreclosure and not by the procedure attempting to set up by the judgment a preferred lien' on the mortgaged property, still in giving effect to equitable principles such as are applied in the distribution of funds in a money rule (Civil Code of 1910, § 5348), there was no error in awarding the funds to the holder of the superior mortgage lien, on the theory that all parties concerned had by their acts and conduct consented to a sale of the entire interest in the property. See Browder v. Blake, 135 Ga. 71 (68 S. E. 837).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15353.
    SPENCE et al., administrators, v. CARTER.
    An action for breach of promise of marriage may be brought immediately upon the promisor’s renunciation of the contract.
    Time or place of performance need not be stated in such a contract. A reasonable time will be implied, if no time is stated; and the place of residence of the prospective bride is prima facie, by the custom of society, .the place of performance, if no place is stated.
    A promise to marry is not an “ agreement made upon consideration of marriage,” within the statute of frauds; nor is it within the provision requiring agreements which are not to be performed within a year to be in writing.
    A cause of action for breach of promise does not survive the death of the promisor, where no special or property damage resulted from the breach. The first count of the petition in this case, claiming only unliquidated damages because of breach of promise to marry, and based solely on that contract, was subject to demurrer on the ground that the cause of action abated on the death of tlie promisor.
    A cause of action was stated in the second count, which alleged an agreement upon a settlement, in the sum of $50,000, for damages for the breach of promise. A promise to pay a fixed sum of money within a reasonable time, made upon a valuable consideration, being an ordinary claim ex contractu, survives the death of the promisor, and may be enforced against his administrator or executor.
    Decided December 17, 1924.
    Action for damages; from Walton superior court—Judge Fort-son. December 12, 1923.

      Orrin Roberts, 8. Holderness, for plaintiffs in error.

      A. G. 8tone, J. M. Johnson, contra.
   Jenkins, P. J.

1. An action lies in this State for the breach of a promise of marriage, independently of statute, by the common law here recognized. Parker v. Forehand, 99 Ga. 743 (1) (28 S. E. 400). Upon the absolute renunciation of such a contract by the promisor, the plaintiff is not obliged to wait Until the time for performance has arrived before bringing suit, but may treat the contract as broken bjr the defendant and bring suit at once. Anderson v. Kirby, 125 Ga. 62, 66 (54 S. E. 197, 114 Am. St. Rep. 185, 5 Ann. Cas. 103).

2. It is not essential that the time for,the performance of a contract of marriage be stated, for in the absence of such a statement the law will imply that it shall be performed within a reasonable time. 4 R. C. L. 147, § 5; 9 C. J. 330, § 19, E. Nor is it necessary that the place of such performance shall be stated, for if no place be fixed, the contract, being transitory in its nature, may be performed anywhere, according to the maxim debitum et contractus sunt nullius loeit, the house of the prospective bride being prima facie, by the custom of society, the place contemplated for the marriage. 4 R. C. L. 148, § 6; 9 C. J., § 20.

(a) A promise to marry is not a contract or “agreement made upon consideration of marriage,” within the meaning of the statute of frauds (Civil Code of 1910, § 3222 (3)); and hence it is not, under that provision, necessary that the contract should be in writing. 4 R. C. L. 151, § 9. Nor, by the weight of authority, is it a contract within the provision of the statute of frauds requiring agreements not to be performed within a year to be in writing. Any contract to marry may possibly be performed within a year, and even “where the terms-of the contract are such that it may or may not be performed within a year, a writing is, under either view of the statute, unnecessary.” 4 R. C. L. 151, § 9; 9 C. J. 327, 328, § 13 (4). While the counts in the instant petition fail to allege at what time the contract was to be performed, the law presuming a reasonable time, such as might have occurred within one year,under any view of the contract with reference to the statute of frauds, the contract did not fall within the purview of the statute.

(b) Whether the ruling in Harris v. Tison, 63 Ga. 629 (36 Am. Rep. 126), that “an action for breach of promise to marry is personal, and dying with the person it does not survive after death of plaintiff,” be treated as obiter (since that case did not actually involve the question as to the effect of death, but dealt with the effect of the marriage of the parties after the breach), it is nevertheless the rule, under the weight of general authority, that neither a cause of action nor an action based on such cause survives the death of either the promisor or the promisee, unless a statute exists in the particular jurisdiction which prevents such abatement (Johnson v. Levy, 118 La. 447, 43 So. 46, 9 L. R. A. (N. S.) 1020, 118 Am. St. Rep. 378, 10 Ann. Cas. 722, relied upon by plaintiff in the court below), or unless, in certain instances, special damage results to the promisee, as where a remunerative situation was given up because of the promise. 1 C. J. 183, § 333 (h); 4 R. C. L. 154, 155, § 13; 1 R. C. L. 41, 42, § 39. The reason for such abatement at common law is not that the action is not one ex contractu, as distinguished from tort, but that the injury is one purely personal, in which the representative of the estate has no interest. 1 R. C. L. 41, 42, § 39.

(c) Thus, general statutes providing that a personal representative may sue or be sued on contracts of or with the deceased do not apply to actions fQr breach of promise of marriage (1 R. C. L. 42); and even where suit has been instituted before the death of the promisor, section 5617 of the Georgia Code (1910), which provides that “no suit shall abate by the death of either party, where such cause of action will in any case survive to or against the legal representatives of the deceased party, either in the same or any other form of action,” can not, therefore, be construed as inclusive of contracts of this character; nor can section 4421, which refers only to torts, be so construed.

(d) Where, as has been above indicated, an exception to the general rule of survival has been recognized in the event of special damage resulting to the promisee from the breach, the allegation of special damage must be of damage to property, and not merely to the person or character, and such as would of itself be sufficient to sustain the suit. 1 C. J. 183. Even in cases of actions ex delicto which recognize injury or benefit to the estates of the parties as an exception to the general conlmon-law rule, it has been generally held essential that the executor or administrator of the tort-feasor “should, by the wrongful act, have acquired specific property by which, or by the proceeds of which, the assets in the hands of his personal representatives were increased.” It was not enough that benefit resulted or that expense was saved to the tort-feasor, by which his estate was larger than it otherwise would have been. 1 C. J. 185, § 340. The exception in the case of torts as recognized in this State by section 4421 of the Civil Code (1910), that “no action for a tort shall abate by the death of either party where the wrongdoer received any benefit from the tort complained of,” has been held inapplicable to causes of action, and exists only in cases where the action has been brought before the death of the tort-feasor, in which event the action survives against his personal representatives. Smith v. Jones, 138 Ga. 716 (76 S. E. 40); Alexander v. Dean, 157 Ga. 280 (121 S. E. 238); s. c. 29 Ga. App. 722 (116 S. E. 643). See also, in this connection, Woods v. Howell, 17 Ga. 495 (1); Ellington v. Bennett, 56 Ga. 159 (1); Swift Specific Co. v. Davis, 76 Ga. 787 (2), 789 (2), which in effect hold that, although such actions, brought against a tort-feasor, do not abate as against his personal representatives where the defendant has received benefit from the tort, the benefit to the wrongdoer or his estate should be one flowing immediately from the tort. Breach of promise, although based upon.contract, as to the measure of damages “has always been classed with actions of torts, as libel, slander, seduction, criminal conversation, etc.,” but “the damages are not to be measured by the wealth or poverty of the defendant, though his wealth and rank may be pertinent to the issue as showing the injury sustained by the loss of marriage.” Parker v. Forehand, 99 Ga. 743, 746 (28 S. E. 400). Assuming, without deciding, that the exception to the general rule as to the abatement of causes of action in breach of promise, recognized where the promisee has suffered special injury, may exist in this State, yet since in the instant case suit was brought after the death of the promisor, and since the allegations of the petition, that-plaintiff had looked forward “to living as the honored and respected wife” of the promisor, “and receiving the attention, social prominence, and worldly comforts such as his wife would receive,” and that the promisor “died leaving an estate' worth $250,000, that he owed practically no debts except funeral expenses, which have all been paid,” fail to show any special or property damages flowing immediately from the breach, the averments do not fall within such an exception. Nor does the claim of $50,000 damages as set forth in the petition otherwise include any item or element expressly claimed as special damage.

(e) For the reasons set forth above, the first count of the petition, claiming only unliquidated damages because of the breach of a contract to marry, and based solely on that contract, was subject to that ground of the general demurrer which set up the abatement of the cause of action by the promisor’s death.

3. The amended second count in this case, after reciting as inducement the alleged breach of promise by the intestate promisor to contract marriage, alleges that the plaintiff thereupon insisted “that she was entitled to large damages for the breach of said promise, and demanded of the said” promisor “that he make settlement with her for such damages and for the wrong and injury done her in the premises;” that thereupon the promisor “admitted a willingness to come to a settlement with petitioner and pay her such damages; and it was then and there agreed by petitioner and the said” promisor that he “would pay her the sum of $50,000 as damages within a reasonable time thereafter, which said sum the said” promisor “then and there agreed to be reasonable and which sum was then and there fixed, liquidated, and agreed upon as damages to be paid by the said” promisor, “which said agreement, liquidation of damages, and promise to pay on the part of” promisor, “plaintiff then and there accepted and brings this suit thereon.”

(a) “Accord and satisfaction is where the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed.” Civil Code (1910), § 4326. Such an agreement, like all other contracts, must be founded upon a valid consideration. Where the amount of the claim is unliquidated, the mere adjudication of such a bona fide dispute by the express terms of a new agreement will of itself afford sufficient consideration ; hut in such a case, in the absence of actual performance, the new promise,' in order to stand as such and to extinguish the original claim, must have been expressly accepted in satisfaction. Civil Code (1910), § 4326; Thompson v. Mallory, 104 Ga. 684, 686 (30 S. E. 887); Fouché v. Morris, 112 Ga. 143 (1) (37 S. E. 182); Brunswick & Western Ry. Co. v. Clem, 80 Ga. 534 (7 S. E. 84); Molyneaux v. Collier, 13 Ga. 406 (11, 12), 422, 423; Riley v. London Guaranty Co., 27 Ga. App. 686 (1 a) (109 S. E. 676).

(b) It seems to be a general rule of pleading, under the authorities in other jurisdictions, that “counts on the original claim and on a compromise and settlement thereof are inconsistent,” and that a plaintiff who after suing upon an original contract adds to his declaration a count claiming the amount agreed upon in' a settlement and compromise may be held bound by his first election, “since he can not take two inconsistent positions.” 12 C. J. 361, § 69; Sullivan v. Boswell, 122 Md. 539 (89 Atl. 940). It would not seem, however, that such a rule would be of force in this State, in a case such as that stated, under the ruling in So. Ry. Co. v. Chambers, 126 Ga. 404 (5), 410 (55 S. E. 37, 7 L. R. A. 926), that “when a petition contains two or more counts and each sets forth a separate and distinct cause of action, the plaintiff will not be required to elect upon -which count he will proceed,” and that “the law allows a plaintiff to embrace in one petition as many causes of action as he sees proper, provided that they are all of the same character, that is, all sound in tort or all sound in contract,” the rule as to- inconsistency applying only to cases where the pleader seeks to embody more than one cause of action in a single count. McMillan v. Heard Nat. Bank, 19 Ga. App. 148, 151 (91 S. E. 235). Moreover, in any event it -would be necessary for the defendant to point out any such alleged defect by proper special demurrer. Central of Ga. Ry. Co. v. Banks, 128 Ga. 785 (1) (58 S. E. 352); Willingham v. Glover, 28 Ga. App. 395 (1 a) (111 S. E. 206). There being no demurrer based upon such a ground in the instant case, any such alleged defect and inconsistency, suggested in the brief of counsel, can not be considered.

(c) A promise to pay a fixed sum of money wdthin a reasonable i ime, made upon a valuable consideration, being an ordinary claim ex contractu, survives the death of the promisor, and may be enforced against his exebutor or administrator. Civil Code (1910), § 5617; Neal v. Haygood, 1 Ga. 514, 515; 1 R. C. L. 28; 1 C. J. 174, 181, 182, § 326 (footnote 77 a), §§ 330, 331.

4. Under tbe rules stated in tlie preceding divisions of the syllabus, the second count of the petition set forth a cause of action, surviving the death of the promisor; but for the reasons stated in the first and second divisions of the syllabus, the demurrer to the first count should have been sustained.

Affirmed in part and reversed in part.

Stephens and Bell, JJ., concur.


text:
    15440.
    Helping Hand of the Good Samaritan v. Bank of Smithville.
   Bell, J.

1. Parol evidence is admissible to show that a certain corporate action was taken but never entered upon the minutes of the corporation. Bank of Garfield v. Clark, 138 Ga. 798 (7) (76 S. E. 95).

2. It appearing that the defendant by its charter, introduced in evidence by the plaintiff, was granted the power to “execute notes or other instruments or evidence of indebtedness incurred or [which] may be incurred in the conduct of the affairs of said society,” and there being some evidence that the particular officers who executed the note sued on had been empowered by the “cabinet board,” or governing body of the corporation, to execute it, the court did not err in admitting the note in evidence over objections interposed by the defendant (who had filed a plea of non est factum), that neither the charter power of the corporation to enter into the contract nor the authority of the officers who acted for it in the particular instance had been shown. This ruling will dispose of the 3d, 4th, and 6th grounds of the amendment to the defendant’s motion for a new trial, assigning error upon certain excerpts from the charge, upon the ground that there was no evidence to warrant the same.

3. Where, although officers of a corporation are without authority to execute a contract, they do in fact execute it, and the fruits thereof are applied to the proper corporate uses, the corporation will be liable thereon notwithstanding the want of authority in its officers. Johnson v. Mercantile Trust Co., 94 Ga. 325 (21 S. E. 576); Towers Excelsior Co. v. Inman, 96 Ga. 506 (1) (23 S. E. 418); Jones v. Ezell, 134 Ga. 553, 557 (68 S. E. 303); Bank of Garfield v. Clark, 138 Ga. 798 (2) (76 S. E. 95); Georgia Hussars v. Haar, 156 Ga. 21 (2) (118 S. E. 563). The court was authorized by the evidence to give this principle in charge to the jury.

4. “If a person, assuming to act as agent, but without legal authority, make a contract, and the corporation receive the benefit Of it, such acts will ratify the contract and render the corporation liable thereon.” Butts v. Cuthbertson, 6 Ga. 166 (3), 171; Merchants Bank v. Central Bank, 1 Ga. 418 (1); Ocilla Southern R. Co. v. Morton, 13 Ga. App. 504 (2) (79 S. E. 480); Citizens Trust Co. v. Butler, 152 Ga. 80 (2) (108 S. E. 468); Murray v. Walker, 44 Ga. 59 (2). Tlie court’s charge upon the subject of ratification was not unwarranted by the evidence, there being some proof that a substantial portion of the proceeds of the note sued on were applied to the defendant’s proper corporate uses by one of its officers having authority so to apply it and having knowledge of the source whence it was derived.

Decided December 17, 1924.

Complaint; from city court of Leesburg—Judge Martin. December 31, 1923.

Wallis & Fort, for plaintiff in error.

Robert R. Forrester, contra.

5. Upon a consideration of the charge as a whole, none of the excerpts therefrom were harmful to the defendant; there was some evidence to authorize the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenláns, P. J., and Stephens, J., eoneur.


text:
    15441.
    BELL v. GEORGIA CHEMICAL WORKS.
    Discharge in bankruptcy results from proper and timely scheduling of the debt, or from notice to the creditor, or actual knowledge on his part, of the proceedings in bankruptcy. To work a discharge, the schedule should be filed or there should be such notice or knowledge within one year after the adjudication in bankruptcy.
    Where discharge in bankruptcy is set up as a defense to a suit against a bankrupt on a debt existing at the time of the filing of the 'petition in bankruptcy, a prima facie defense is made out by introducing in evidence the order of discharge. The burden is then cast upon the plaintiff to show that the debt was by law excepted from the operation of the discharge.
    Under the facts of this case it was error for the court to direct a verdict for the plaintiff.
    Decided December 17, 1924.
    Complaint; from city court of Bainbridge—Judge Spooner. January 28, 1924.

      Harrell & Ouster, for plaintiff in error.
   Jenkins, P. J.

1. Section 17, subdivision 3, of the bankruptcy act of the United States (U. S. Comp. Stat. § 9601) provides that'“a discharge in bankruptcy shall release a-bankrupt from all of his provable debts, except such as . . have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.” Thus a discharge in bankruptcy results either from the proper and timely scheduling of the debt, though the creditor had neither notice nor actual knowledge of the proceedings in bankruptcy (Beck & Gregg Hardware Co. v. Crum, 127 Ga. 94 (3), 95, 96, 56 S. E. 242; Marshall v. English-American Loan Co., 127 Ga. 376 (3), 377, 56 S. E. 449; Travis v. Sams, 23 Ga. App. 714 (2), 99 S. E. 239; Bank of LaFayette v. Phipps, 24 Ga. App. 613 (1), 101 S. E. 296), or, in the absence of such proper and timely scheduling, if the creditor “had notice or actual knowledge of the proceedings in bankruptcy.” Peterson v. Calhoun, 137 Ga. 799 (74 S. E. 519); Brooks v. Pitts, 24 Ga. App. 386 (2) (100 S. E. 776); Bank of Wrightsville v. Four Seasons, 21 Ga. App. 453 (94 S. E. 649). But in order for either to work a discharge, since section 57, subdivision n, of the act (U. S. Comp. St. § 9641) requires the filing of a creditor’s claim within one year after the bankruptcy adjudication, the schedule of the debt should be filed, or the notice or actual knowledge of the bankruptcy should be received, within that period, and also within such time as to give the creditor “an equal opportunity with other creditors, not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate, or to deprive him of dividends.” Birkett v. Columbia Bank, 195 U. S. 345, 350 (49 Law. ed. 231, 233; 13 Am. B. R. 691); Collier, Bkr. (13th ed.) 632, 633.

2. A prima facie defense to a suit against a bankrupt on a debt existing at the time of filing the petition in bankruptcy is made out by the introduction in evidence of the order of discharge in bankruptcy, the burden being then cast upon the plaintiff to show that because of the nature of the claim, failure do give notice, or other statutory reason, the debt sued upon was by law excepted from the operation of the discharge. Kreitlein v. Ferger, 238 U. S. 21 (1) (35 S. Ct. 685, 59 Law. ed. 1184, 1186).

3. It appears that the defendant was adjudicated a bankrupt on October 13, 1931; that his original schedules omitted the name and claim of the plaintiff, but that an amendment including the same was filed and allowed on December 15, 1933. This amended schedule, however, being subsequent to the year after adjudication, within which the plaintiff could have filed his claim in bankruptcy, was too late to avail in effecting a discharge of the debt. The record, however, shows that the plaintiff had “notice or actual knowledge of the proceedings in bankruptcy” within the statutory time. After the adjudication on October 12, 1921, and the filing of suit on the note on May 30, 1922, the defendant, on June 17, 1922, filed in the instant case a plea, setting up both his adjudication and the proceedings in bankruptcy, and his intention to apply to the United States court for leave to amend his schedules so as to include the plaintiff’s note. This afforded to the plaintiff notice in judicio of the matter in compliance with the bankruptcy law. The discharge being pleaded, the claim being a dischargeable 'debt, the order of discharge being introduced, showing on its face-the adjudication and full compliance with the law, and notice appearing, it was error to direct a verdict for the plaintiff. It does not .appear that the delay in giving notice of the bankruptcy from October, 1921, to- June, 1922, resulted in the loss of any. substantial right to the plaintiff creditor in resisting the defendant’s discharge or in otherwise participating in the bankruptcy proceeding, but, in any event, the burden of showing such a fact rested upon the plaintiff.

Judgment reversedL

Stephens and Bell, JJ., concur.


text:
    15470.
    Mayor and Aldermen of Savannah v. Waters.
    Decided December 17, 1924.
    Action for damages; from city court of Savannah—Judge Freeman. February 23, 1924.

      F. P. Mclniire, for plaintiff in error.

      Oliver & Oliver, John Z. Ryan, contra.
   Jenkins, P. J.

This action by a father against a municipality for the value of the services of his deceased child, under the averments of the petition, involves the same facts as to alleged negligence as Mayor &c. of Savannah v. Waters, ante, 234 (125 S. E. 772), which was an action by the mother for the value of the life of the child, and in which it was held that the city was not liable, because at the time of the injury and in the alleged negligent acts it was engaged in the actual performance of a governmental function. This case being controlled by that ruling, it was error to overrule the defendant’s general demurrer to the'petition.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15476.
    LOVELACE v. RELIABLE GARAGE.
    The rule that a partner can not, in payment of his individual debt to a third person, dispose of what belongs to the partnership applies not only to property but to labor and services performed on the part of the partnership.
    The action being by a partnership doing business under the name of Reliable Garage, for a sum alleged to be due for material furnished and services rendered in the repair of an automobile for the defendant, who sought to set off an individual debt of one of the partners, and contended that the contract under which the material was furnished and the services were rendered was made with that person as an individual, and there being evidence which would authorize a finding that the defendant knew, or in the exercise of proper diligence ought to have known, of the existence of the partnership at the time the work was being done and the material was being furnished, and that performance of the contract was being made by the partnership and not by the individual contracted with, and the defendant thus accepted the labor and assets of the partnership, the verdict for the plaintiff was warranted.
    The first excerpt from the charge of the court of which complaint was made was harmless.
    The trial judge having correctly charged the rule as to a set-off against a partnership, and elsewhere correctly charged the law as to set-off in a case of concealed agency, there is no merit in an exception to the former charge on the ground that the principle as to concealed agency was not charged in immediate connection with the charge complained of.
    Decided December 17, 1924.
    Complaint; from city court of Thomson—Judge Johnson. March 13, 1924.

      John T. West & Son, for plaintiff in error.

      B. J. Stevens, contra.
   Jenkins, P. J.

1. This is a suit on account- by a partnership for services rendered and material furnished in repairing an automobile, where it appears from the plea of the defendant that the contract was made with one of the partners as an individual, and where the defendant sought to set off the individual debt of such partner. While the evidence was conflicting, it was such as might have authorized a finding that the defendant knew, or from the proved facts and circumstances ought, in the exercise of proper diligence, to have known, of the existence of the partnership at the time the work was being clone and the material was being furnished, that performance of the contract was being madé by the partnership and not by the individual member contracted with, and that the defendant thus accepted the labor and assets of the partnership.

2. Exception' is taken by defendant in the court below to the following charge: If “you find from all the evidence that the contract was between Lovelace (defendant) and Douglas (one of the partners) as an individual, and that Lovelace had no notice or knowledge of the partnership, that he did not intend to deal with the partnership, as I say, if Lovelace made his contract with Douglas individually and knew nothing of the partnership, and Douglas made this agreement with him and agreed it should go on the debt, that was an individual contract and the partnership is no party to it, and though Douglas had the work done by the partnership, that would not make it a partnership debt;” the alleged error being that mere “knowledge of the partnership” is not, in such a case, the test of unqualified liability to the partnership. Held:

(а) “Third persons acquire no title to partnership assets by purchase from one member, when notice or a reasonable ground of suspicion is known to them that the partner is misapplying, or seeks to misapply such assets.” Civil Code (1910), § 3184; Clarke v. Farrell, 80 Ga. 622, 624 (6 S. E. 20). Thus, it is the well settled rule that “one partner can not dispose of the partnership property in payment of his individual debt without the consent of his copartners, either express or by necessary implication.” Harper v. Wrigley, 48 Ga. 496, 497; Wise v. Copley, 36 Ga. 508; Bank of Lawrenceville v. Rockmore, 129 Ga. 586 (59 S. E. 291); Murphey v. Bush, 122 Ga. 715 (50 S. E. 1004); Miller v. Hines, 15 Ga. 197; Standard Wagon Co. v. Few, 119 Ga. 293 (46 S. E. 109). This rule relates not only to property but to the labor and services of the partnership.

(b) It is, however, a different, and in no wise conflicting statutory rule that, “if the agency has been concealed, the party dealing with” an agent “may set up any defense against the principal which he has against the agent.” Civil Code, § 3604; Savannah Trust Co. v. Nat. Bank of Savannah, 16 Ga. App. 706 (3) (86 S. E. 49). Thus, it is well settled that the rights of an undisclosed principal are subject to claims acquired in good faith against the agent. In other words, a third person who contracts in ignorance of the existence of a principal can set up against the principal, who sues upon the contract, any defenses and equities which he could have set up against the agent, had the latter been in reality the principal suing on his own behalf. L. R. A. 1916A, 1213, et seq.; Ruan v. Gunn, 77 Ga. 53, 54; Bond v. McEntire, 137 Ga. 438 (73 S. E. 652); Durant Lumber Co. v. Sinclair, 2 Ga. App. 209 (4), 213 (58 S. E. 485); Atlantic Coast Line R. Co. v. Gordon, 10 Ga. App. 311 (2), 313 (73 S. E. 594); 28 L. R. A. (N. S.) 227-229; 20 R. C. L. 882, 883. In this case no question is involved concerning the disposition of personal property by an agent where the owner has given him the external indicia of the right of possession (Rosser v. Darden, 82 Ga. 219 (b), 7 S. E. 919, 14 Am. St. Rep. 152); nor is it a case where a known agent exceeds the scope of his apparent .authority, by undertaking as such agent to dispose of his principal’s assets in payment of .his individual debt (Clark v. Farrell, supra); but the question raised by the exception to the quoted charge is whether or not it is possible for a known partner to contract purely in his individual capacity to render services, which, while within the scope of the partnership business, are to be performed solely as an individual, so as to relieve the person thus contracted with from unqualified liability to the partnership which actually performed the services. This question it does not seem necessary to decide, since the same evidence which authorized the jury to find on the disputed issue of fact that the defendant knew or ought to have known of the existence of the partnership necessarily showed that he likewise knew or ought to have known that the partnership was actually performing the services on account of which the suit was brought. Since, under the charge, the jury must have believed that the defendant had knowledge of the existence of the partnership at and during the time the work was being performed, and since the same proved circumstances which put him on notice of the existence of the partnership must have necessarily put him on notice that the partnership was actually performing the work, and since this court is willing to hold, as a matter of law, that then and under such ciraxmstances, and in the absence of any assurance by the contracting partner that his associate had agreed to the arrangement, it was incumbent upon the defendant to ascertain for whom the work by the partnership was being performed,—that is, whether it was being performed for himself or for the partner with whom he had contracted,—and since there is no dispute that such an' inquiry would necessarily have developed that the work was being performed for the defendant and not for the contracting partner, and since the defendant did not show that the other partner had consented to such application of the partnership services, thus knowingly accepted, the charge- as given, even if inaccurate, was harmless. Wise v. Copley, 36 Ga. 508.

3. It is the general rule that, in a suit by a partnership against a person for a partnership debt, he can not set off an amount owed him by one of the individual partners. Harlow v. Rosser, 28 Ga. 219; Eady v. Newton Coal Co., 123 Ga. 557, 563, 564 (51 S. E. 661, 1 L. R. A. (N. S.) 650, 3 Ann. Cas. 148).

(a) “A charge embracing an abstractly correct and pertinent principle of law is not rendered erroneous by a failure to charge some other legal principle applicable to the case.” Smith v. Brinson, 145 Ga. 406 (2) (89 S. E. 363); Ray v. Warren, 28 Ga. App. 663 (112 S. E. 831). “Every subject-matter, every matter of defense, can not be treated in one and the same sentence and at one and the same time. . . But even though a particular instruction taken alone may be open to the criticism that it requires a given qualification, yet where it plainly appears that elsewhere in the charge this very qualification of the doctrine laid down in such instruction was so distinctly and clearly stated as that the jury were not misled as to the true law, the giving of the instruction will not require the granting of a new trial.” Wilson v. Small, 28 Ga. App. 587, 592 (113 S. E. 240); City Council of Augusta v. Tharpe, 113 Ga. 152 (2) (38 S. E. 389). Where the trial judge correctly charged the rule as to a set-off against a partnership, and elsewhere correctly charged the law as to set-off in a case of concealed agency, an exception to the former charge as erroneous because the independent principle as to concealed agency was not charged immediately' in connection therewith was without merit.

4. The remaining exceptions, relating to the failure of the court to give certain requested instructions to the jury, are without merit, since they are controlled by the rulings made in the second division of the decision. The charge as a whole fully and fairly set forth the rights of the defendant under his pleadings.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15541.
    ATLANTIC COAST LINE RAILROAD COMPANY v. PAULK.
    1. Exceptions pendente lite not argued or insisted upon in the brief of counsel will not be considered.
    2. The presumption of negligence arising against the railroad company from proof of the killing of the plaintiffs bull by the train was overcome by the undisputed testimony of the engineer and the fireman of the train; and the verdict for the plaintiff was therefore unauthorized.
    3. Eailure to charge the jury more fully as to the mode of ascertaining the market value of the bull was not error.
    4. Eailure to give additional instructions, not requested, as to the manner of rebutting the presumption of negligence was not error.
    5. The instruction to the effect that the defendant would be entitled to a . verdict if, after the danger became imminent, it was impossible for the defendant’s agents to do anything to avoid the killing was erroneous in requiring a greater degree of diligence than the law requires; and the error was not cured by other instructions given. Whether a new trial would be granted because of this error alone is not decided.
    Decided December 17, 1924.
    Action for damages; from city court of Brunswick—Judge Butts. January 30, 1924.

      Pope & Hand, Benneb, Tivitty & Reese, for plaintiff in error.

      F. M. Scarlett, contra.
   Jenkins, P. J.

The exceptions pendente lite, not being argued or in any way insisted upon, will be treated as abandoned.

“In the absence of positive evidence of negligence, or, where the only express evidence of negligence on behalf of the plaintiff is a mere expression of opinion, the presumption of negligence arising against a railroad company from proof of the killing of an animal is met and overcome by evidence for the defendant company showing that the animal could not have been seen soon enough to avoid the casualty, and that after it was discovered all diligence was used to prevent the killing. But where the evidence for the plaintiff shows negligence as a matter of fact and is in material conflict with the evidence introduced by the defendant for the purpose of rebutting the presumption of negligence, an issue of fact is raised which must be determined by the jury.” Western & Atlantic R. Co. v. Clark, 2 Ga. App. 346 (1, 2) (58 S. E. 510). The physical facts and circumstances alone in the case may afford proof of the defendant’s negligence, and may be such as to raise an issue of credibility for determination by the jury, notwithstanding the defendant’s witnesses, to rebut the presumption of negligence, may have testified as to their exercise of ordinary care and that the casualty was unavoidable. Atlantic & Birmingham Ry. Co. v. Clute, 3 Ga. App. 508 (60 S. E. 277); W. & A. R. Co. v. Clark, supra. But to destroy or modify the effect of a complete rebuttal of the statutory presumption of negligence by positive testimony from the defendant’s witnesses, where there are no other eye-witnesses and testimony as to physical conditions is relied upon, such testimonjr must be more than mere speculative opinions or estimates of distances and range of vision within which the animal, if certain unproved facts existed, could have been seen by the train operatives. Cen. of Ga. Ry. Co. v. Waxelbaum, 111 Ga. 812 (35 S. E. 645); Atlanta Air-Line R. Co. v. Gravilt, 93 Ga. 369 (7) (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145); Western & Atlantic R. Co. v. Clark, 121 Ga. 419 (49 S. E. 290); Augusta So. R. Co. v. Carroll, 7 Ga. App. 138 (66 S. E. 403). In the instant case the statutory presumption was completely overcome by the Undisputed testimony of the defendant’s engineer and fireman as to their constant lookout for a distance of three fourths of a mile from the place of the casualty, as to their blowing of the whistle and ringing of the bell, and as to the running of the animal suddenly on the track from behind a station building and from a point where it was not and could not have been previously seen from the engine, and without affording opportunity to stop or materially check the train. The credibility of this evidence, under the rule stated, was not affected by opinion evidence for the plaintiff -to the effect that, if the animal had been in certain assumed locations before the injury, it should have been seen, or as to how far the engineer’s range of vision extended beyond the building, since the evidence as to the sudden approach of the animal on the track was undisputed, and all the evidence showed that the location of the building close to the track must necessarily have interfered with a free view of objects while behind such building, and since it was undisputed that at the speed of thirty miles an hour at which the train was traveling it could not have been stopped within a distance of one fourth of a mile, and that it could not have been materially checked from the point at which the animal was first seen to where the animal was struck, there being no charge of negligence with reference to the speed at. which the train was moving at the time the animal was or should have been first seen. Ga. R. Co. v. Wall, 80 Ga. 202 (7 S. E. 639); Ga. So. & Fla. Ry. Co. v. Sanders, 111 Ga. 128 (36 S. E. 458); Seaboard Air-Line Ry. Co. v. Lott, 11 Ga. App. 839. (76 S. E. 596); Atlantic Coast Line R. Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34), and cases cited; Atlantic Coast Line R. Co. v. Bennett, 31 Ga. App. 626 (121 S. E. 706). The verdict for the plaintiff being unauthorized under the evidence, it was error to refuse to the defendant a new trial.

Where the court correctly charged the jury that the plaintiff, if entitled to recover, “would be entitled to recover the market value of the bull at the time and place it was killed,” that this was “the rule of measuring the damage,” and that they should “look to the evidence” to ascertain the same, it was not error to fail to charge “in what way or by what method they should ascertain the true market value,” in the absence of a timely written request for a further elaboration of the rule of damage stated, or for a definition of the term “market value.” Seaboard Air-Line Ry. Co. v. Bishop, 132 Ga. 37 (2), 39 (63 S. E. 785); High Shoals Mfg. Co. v. Price, 136 Ga. 23 (70 S. E. 641); Crown Cotton Mills v. McNally, 123 Ga. 35 (6) (51 S. E. 13); Cen. of Ga. Ry. Co. v. DeLoach, 18 Ga. App. 362 (6) (89 S. E. 433).

Where the court correctly charged the rule as to the statutory presumption of negligence, “unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence,” and further that “the main and first issue is whether or not at the time of the killing the agents of the company were exercising all ordinary and reasonable care and diligence to avoid the killing, or if the agents of the defendant company by the exercise of ordinary and reasonable care and diligence could have avoided the killing,” the first-quoted excerpt was not subject to exception as failing to elaborate “in what manner and by what means and by proof of the exercise of what degree of care and diligence defendant could overcome and rebut the presumption of law against it,” or as failing to tell the jury specifically that such presumption could be rebutted and overcome “by proof on behalf of the defendant that its employees in charge of its train exercised all ordinary and reasonable care and diligence in keeping a lookout ahead of the train and in attempting to avoid striking the bull after it became visible to them as the train approached the place where he was,” especially in the absence of written requests for such additional instructions.

It was inaccurate to charge the jury as follows: “The defendant contends that its agents in charge of the locomotive that killed this cow—after the danger had become imminent, it was impossible for the agents to have done anything to have avoided the killing. If the defendant has shown that to your satisfaction by a preponderance of the testimony, that would entitle the defendant to a verdict at your hands.”- East Tenn. Ry. Co. v. Daniel, 91 Ga. 768 (2) (18 S. E. 22); Ga. So. & Fla. Ry. Co. v. Jones, 121 Ga. 822 (49 S. E. 729). Even though immediately following tlie excerpt quoted, the court said, “ On the other hand, if you find that the'agents of the defendant in charge of the locomotive did not exercise all ordinary and reasonable care and diligence at the time of the killing to avoid the accident, that would entitle the plaintiff to a verdict at your hands,” this language did not withdraw or expressly modify the previous expression, and the giving of two different rules in close connection might have tended to mislead the jury as to which rule should be applied, and might have resulted in their application of the first erroneous rule, requiring of the defendant a greater measure of diligence than the law requires. Whether we would grant a new trial on this ground alone it is unnecessary to determine.

Judgment reversed.

Stephens and Bell, JJ., concur.