text:
    18058.
    Johnson v. Johnson.
    Arbitration and Award, 5 C. J. p. 17, n. 9; p. 75, n. 38; p. 81, n. 93 New; p. 83, n. 10 New; p. 169, n. 49 New.
    Decided March 3, 1928.
    Application for partition. Before Judge Maddox. Walker superior court. March 11, 1927.

      David F. Pope, for plaintiff. Rosser & Shaw, for defendant.
   Stephens, J.

1. An award partitioning land, made by arbitrators agreed upon by the tenants in common for such purposes, and showing that the parties intended to carry out the award by the execution of deeds, and not to have it made the judgment of the court, is a common-law award, and is not invalid by reason of a failure to pursue the statutory provisions required in proceedings for statutory awards.

2. After a common-law award has been made, the duties of the arbitrators have ceased, and they have no power to rescind or annul the award.

3. The award is a complete defense against a proceeding brought by one of the tenants in common to partition the land. The court therefore did not err in refusing to appoint partitioners and in dismissing the application for partition.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    18193.
    Alexander v. City of Atlanta.
    Damages, 17 O. J. p. 814, n. 28.
    Interest, 33 O. J. p. 257, n. 5.
    Payment, 30 Oye. p. 1249, n. 81; p. 1296, n. 91.
    Pleading, 31 Oye. p. 289, n. 61.
    Use and Occupation, 39 Oye. p. 856, n. 19; p. 866, n. 96.
   Stephens, J.

1. Although a sum of money when paid by a debtor to the creditor is applied first to the payment of the accrued interest, and the balance, if any, is applied to the principal, unless the debtor in making the payment otherwise directs, it is nevertheless a question of fact whether the money when paid is applied first to the payment of the interest, or whether the entire sum is applied upon the principal. 2. In a petition in a suit to recover a balance alleged to be due upon an indebtedness from the defendant to the plaintiff, wherein it is alleged that certain real estate was sold by the plaintiff to the defendant at the agreed price of $30,500, which was not paid on the date on which it was due, but that on a certain date afterwards the defendant paid to the plaintiff $30,500, and where it is not alleged that there was a contract to pay interest upon this sum, and where it is further alleged that the defendant is due the plaintiff a certain sum of money as a balance due on the purchase-price of the property, which balance represents the difference between the principal and the accrued interest which it is alleged is implied in the contract, and which balance is a sum equal in amount to the alleged accrued interest, but where it is not alleged in the petition that, by operation of law, in the absence of direction otherwise by the defendant, the sum paid was applied to the payment of interest and the balance upon a reduction of the principal, the petition, construing it most strongly against the pleader, alleges a payment of the sum, which is equal to the principal, in extinguishment of the principal. ,

3. Where an indebtedness consists of a principal, and the contract does not provide for interest thereon, but interest, if any, is only implied, a payment by the debtor of the principal, and an acceptance by the creditor of the sum so paid, amounts to a waiver by the creditor of a right, if any, to exact the payment of interest, and therefore to a release of the debtor from any obligation to pay interest upon the principal sum. L. & N. Railroad Co. v. Alford, 5 Ga. App. 428 (63 S. E. 524); Stewart v. Barnes, 153 U. S. 456 (2) (14 Sup. Ct. 849, 38 L. ed. 781); Moore v. Fuller, 47 N. C. 205; Tillotson v. Preston, 3 Johns. (N. Y.) 229; Bennett v. Federal Coal &c. Co., 70 W. Va. 456 (74 S. E. 418, 40 L. R. A. (N. S.) 588, Ann. Cas. 1913E, 578).

4. The first count of the petition therefore alleges a payment of the principal and seeks to recover the interest only, and since it appears that the principal has been paid and that no interest is due, the petition sets out no cause of action.

5. Where a person takes possession of private property, such as real estate, belonging to another, and appropriates it to his own use, any implied promise arising ex contractu on the part of the person taking the property, to pay its reasonable market value to the owner, does not carry with it an implied obligation to pay to the owner the rental value of the property for the time between the date of its occupation and appropriation by the person taking it. The second count of the petition brought by the owner against the person taking and appropriating the property which alleges that 17 months thereafter the plaintiff was paid by the defendant $30,500, which was a sum representing a fair and reasonable market value of the property, and which seeks to recover only an amount alleged as the rental value of the property for the intervening period of 17 months, sets out no cause of action.

6. The third count of the petition, which alleges an implied obligation to pay for the property as alleged in the second count of the petition in the sum of $30,500 as representing the fair and reasonable market value of the property, but which further alleges an implied obligation on the part of the defendant to pay interest at 7 per cent, upon the alleged reasonable market value of the property from the occupation and appropriation of the property by the defendant, and which alleges that the plaintiff has been paid $30,500, and which seeks to recover an alleged balance due upon the theory that a portion of the $30,500 when paid was applied to the payment of the interest, fails, under the rulings made in paragraphs 1, 2 and 3 above, to set out a right to recover the alleged balance, and therefore fails to set out a cause of action.

Decided March 3, 1928.

Complaint; from Fulton superior court—Judge Humphries. April 14, 1937.

Colquitt <& Conyers, Jerome Jones Jr., for plaintiff.

J. L. Mayson, C. 8. Winn, for defendant.

7. None of the counts of the petition sets out a cause of action, and the petition was properly dismissed on demurrer.

Judgment affirmed.

Jenlcvns, P. J., cmd Bell, J., concur.


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

text:
    18199.
    Thrower v. Davis et al.

    Certiorari, 11 O. J. p. 222, n. 34.
    Landlord and Tenant, 36 O. J. p. 295, n. 47.
   Stephens, J.

1. Where by the terms of a lease contract the rental fell due in stated amounts for stated monthly periods, and where the only dispute between the landlord and the tenant was as to the date of the termination of the lease, the tenant contending that it terminated January 15th, and the landlord contending that it terminated February 15th following, a payment made prior to January 15th by the tenant to the landlord of the rental installment called for in the lease for the monthly period which fell due January 15th, the payment being accompanied by a statement by the tenant that the lease would expire January 15th and that the payment made was “in full to the date of expiration of our lease,” was, assuming that the payment was made by the tenant and accepted by the landlord, a payment in full satisfaction of all claims due up to January 15th, and was not an offer of satisfaction of any rental which might be due under the lease contract as contended for by the landlord for the ensuing month from January 15th to February 15th. The dispute was not as to the amount due, but as to date of the termination of the lease. See, in this connection, John v. Coe-Stapley Mfg. Co., 201 App. Div. 704 (194 N. Y. Supp. 681).

2. In this case, which is a suit instituted in the Municipal Court of Atlanta by the landlord against the tenant to recover under the lease contract for the rental alleged to be due for the month beginning January 15th and ending February 15th, the acceptance by the landlord, under the circumstances indicated above, prior to January 15th, of the rental paid by the tenant for the month ending January 15th was not sufficient to establish an accord and satisfaction of the claim sued on.

3. Since, however, it appears from the evidence that there was an issue of fact as to whether the lease contract had expired upon January 15th, and therefore as to whether- the plaintiff was entitled to recover, the verdict rendered in the municipal court of Atlanta for the plaintiff in the amount sued for was not as a matter of law demanded, and the judgment of the judge of the superior court, sustaining a certiorari sued out by the defendant (who excepted to the affirmance of the judgment for the plaintiff by the appellate division of the municipal court of Atlanta), and granting a first new trial, is affirmed.

Decided March 3, 1928.

Certiorari; from Fulton superior court—Judge Moore. April 13, 1927.

Smith, Hammond & Smith, William H. Smith, for plaintiff.

Little, Powell, Smith <& Goldstein, Noah. J. Stone, for defendant.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonour.

Jenkins, P. J.,

concurring specially. Inasmuch as the defendant tendered what he claimed was the last installment under the lease contract, and it was accepted as having been tendered in full settlement of all amounts due or which would become due under the lease, and as in settlement of the controversy as to when the lease would expire and as to how much would become due thereunder, it is my opinion that the rulings of this court in Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520 (61 S. E. 1134), Ryan v. Progressive &c. Publishing Co., 16 Ga. App. 83 (84 S. E. 834) and Riley v. London Guaranty &c. Co., 27 Ga. App. 686 (109 S. E. 676), must govern, and that the record evidences . an accord and satisfaction. I concur in the judgment of affirmance, but not in the ruling stated in the first paragraph of the decision.


text:
    18202.
    Interstate Life & Accident Company v. Armstrong.
    Life Insurance, 37 O. J. p. 643, n. 96.
    Decided March 3, 1928.
    Complaint on life policy; from city court of Brunswick—Judge Butts. March 8, 1927.

      P. M. Scarlett, for plaintiff in error. W. 0. Little, contra.
   Stephens, J.

In a suit to recover on a life-insurance policy of a class issued without requiring an examination, and which contains a provision that it shall not take effect unless the insured is in sound health upon the date of delivery of the policy, the testimony of a practicing physician that he treated the insured in September, 1925, which was the only time he had treated her in some seven or i eight years, and found that she was “suffering from high blood pressure and apparently a slight stroke of paralysis,” and that in his opinion she could not have been in sound health one month later or at any subsequent period, and, as appears from the proof of death filed, that the insured died on January 1, 1926, of cerebral apoplexy, the evidence authorized the inference that the insured, at the time of the delivery to her of the policy, which was after October 26, 1925, the date of its issuance, was not in sound health. It was error to direct a verdict for the plaintiff.

Judgment reversed.

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


text:
    18218.
    Justus v. Ramey.
    Appeal and Error, 4 C. J. p. 571, n. 98.
    Bills and Notes, 8 O. J. p. 920, n. 33.
    Recoupment, Set-Off, and Counter-Claim, 34 Oye. p. 676, n. 28.
    Decided March 3, 1928.
    Complaint; from Rabnn superior court—Judge Sutton. April 16, 1927.

      W. 8. Paris, J. T. Davis, for plaintiff in error.

      J. F. Barney, B. F. A. Hamby, T. L. Bynum, contra.
   Stephens, J.

1. The bill of exceptions properly assigns error upon exceptions pendente lite and upon the order overruling the motion for a new trial. There is no merit in the motion to dismiss the writ of error.

2. A plea to a suit upon a promissory note, which alleges that the note was given for the purchase-money of land, and that the payee of the note, who was the seller, refused to make to the defendant, the purchaser, a deed of conveyance to the land, but which does not allege that the defendant tendered performance by offering to pay the note, sets up no defense.

3. In a suit upon a promissory note, where the defendant pleads as a set-off certain other notes at their face value, payable to the defendant as. the payee and by third persons as makers, which the defendant alleges he had entrusted to the plaintiff for the purpose of collection, and which, he alleges, the plaintiff, by a failure to deliver them to the defendant on demand or to otherwise account for them, converted to his own use, the plea alleges a breach of contract by the plaintiff in the amount represented by the face value of the notes, which alleged breach of contract could be set-off against the plaintiff’s suit, which is upon a cause of action ex contractu.

4. The judge erred in striking the defendant’s plea and directing a verdict for the plaintiff.

Judgment reversed.

Jenhins, P. J., and Bell, J., coneur.


text:
    18221.
    Sea Island Cotton Gin Company v. Fowler.
    Appeal and Error, 4 C. J. p. 866, n. 51; p. 921, n. 68.
    Sales, 35 Cyc. p. 573, n. 75.
   Stephens, J.

1. In a suit to recover an alleged balance due by the defendant to the plaintiff on the purchase-money of a sea-island cotton-gin outfit sold by the plaintiff to the defendant, to which the defendant pleads total and partial failure of consideration in that the outfit has “proven entirely worthless to the defendant, [and] was not reasonably suited to the use for which purchased and intended, to wit, the ginning of sea-island cotton, . . and the said gin would not do the work for which purchased and intended,” and that the property is not worth more than the sum of $5, a verdict for the defendant is sustained by evidence (though conflicting in some respects) to the effect that the defendant purchased the property under a written contract which provided that the gin was warranted to be of good material, well made, and that with proper management it would perform what was claimed for it in the seller’s printed circulars, and that the purchaser was to operate the gin according to directions given by the seller, and upon a failure of the purchaser to so operate the gin the seller would be released from its contract of warranty; that, after the gin was set up, the plaintiff’s representative, in response to a complaint from the defendant, came and inspected the gin and advised and instructed the defendant as to how to operate it; that the gin, after having been operated by the defendant in accordance with these instructions, failed to perform as warranted and could not be made to gin more than one bale of cotton per day, whereas, according to the plaintiff’s printed circulars referred to in the warranty, the gin should have turned out six or seven bales of cotton per day; that, although the plaintiff claimed that the failure of the gin to perform to the satisfaction of the defendant was due to excessive vibrations in the foundation upon which the gin sat, the gin sat upon a floor supported by a foundation that was firm and rigid and was not subject to vibrations, but which was a suitable foundation upon which to set a gin of the description of the one sold, that the gin after it had been operated was in a “pretty bad shape,” and, according to the testimony of the defendant, was “worth whatever junk might be worth,” that he “would take $5 for it and help load it; it is not worth more than $5; I would not give $2.50 for it.” The evidence authorizes the inference that the plaintiff had committed a breach of the warranty, and that the consideration had partially failed to the extent of the purchase price, viz., $360, less the present value of the gin outfit. Even assuming that the evidence could be taken as demanding an inference that the outfit was capable of ginning some cotton and therefore had a value greater than its value for junk, yet, although the evidence may have contained no estimate as to such value, it appears, from the fact that the jury in finding for the defendant failed to find in any amount against the plaintiff on the defendant’s plea of recoupment, in which he prayed for a return of the part payment on the purchase-money, viz., $120, which issue the court submitted in the charge, that the jury may, from all the facts and circumstances, have estimated the value of the outfit as being greater than a value for junk and as being in an amount equal to the $120 which the defendant had paid upon the purchase-price and which the jury allowed the plaintiff to retain. Since the evidence is sufficient to authorize an inference that the consideration had partially failed in an amount representing the purchase-price, less the value of the outfit as junk in the sum of $5, the plaintiff can not complain that the jury in its verdict estimated the property as being worth considerably more, to wit, $120, the amount already paid by the defendant on the purchase-price, although the evidence may not have furnished sufficient data from which the jury would be authorized to make such an estimate as to the value of the property.

Decided March 3, 1928.

Complaint; from Treutlen superior court—Judge Graham. May 3, 1937.

M. B. Calhoun, for plaintiff. N. L. Gillis, for defendant.

2. The verdict for the defendant, which was rendered upon conflicting evidence, having been approved by the trial judge, must be affirmed.

Judgment affirmed.

Jenlcms, P. J., and Bell, J., concur.


text:
    18249.
    Farmers and Merchants Bank v. Cochran.
    Executions, 23 O. J. p. 612, n. 48; p. 614, n. 8.
    Decided March 3, 1928.
    Complaint on bond; from city court of Thomasville—Judge MacIntyre. May 7, 1937.
    Application for certiorari was made to the Supreme Court.

      0. E. Hay, for plaintiff in error. Titus & Delete, contra.
   Stephens, J.

1. Where, after a claimant of personal property had given a forthcoming bond to the levying officer and had taken the property, and the issue on the trial of the claim case had been determined against the claimant, the claimant, without surrendering the property to the levying officer and while the property was still in the claimant’s possession, caused tlie levying officer to apply for and obtain a short-order sale upon the ground that the property, a mule, was expensive to keep, and where the claimant did not deliver the property to the levying officer until the day upon which it was sold under the short order, when the claimant delivered the property to the levying officer and immediately bought it in as the highest bidder, and thereupon took the property and redelivered it to a third person to whom the claimant prior to the sale had already delivered it under a contract of sale, by the terms of which the purchaser would obtain full title to the property in the event the claimant prevailed in the claim case, it appears that there was not and could not be a legal or bona' fide surrender of the property by the claimant to the levying officer. Boyd v. Crews, 32 Ga. App. 138 (122 S. E. 802).

2. In a suit by the plaintiff in fi. fa. against the claimant, to recover on the forthcoming bond for the value of the property alleged to have been converted by the defendant, the verdict for the plaintiff was authorized by the evidence.

3. The court, fairly to the defendant, submitted the issues to the jury, and nowhere erred in refusing to charge as requested, or in the admission or rejection of testimony.

4. The petition as originally filed contained enough to amend by; and the amendments set out no new cause of action, but were germane and were properly allowed. The petition as amended set out a cause of action on the bond, and was not subject to any of the demurrers.

Judgment affirmed.

Jenlcms, P. J., and Beil, J., conewr.


text:
    18267.
    Reid v. Eubanks.
    Pleading, 31 Cyc. p. 517, n. 93 New.
    Decided March 3, 1928.
    Complaint; from city court of Decatur—Judge Guess. May 18, 1927.

      Hooper & Hooper, for plaintiff in error.

      Augustine Sams, G. Holland Feagin, contra.
   Stephens, J.

1. In a suit at law in a city court, instituted against the maker by a transferee of a promissory note alleged to have been given as part of the purchase-price for certain land, payment of which was secured by the land, in which the plaintiff seeks to obtain a judgment upon the note and to have the judgment declare a special lien upon the land, a third person who bought the land from the maker of the note and assumed as part payment of the purchase-money the indebtedness alleged as being represented by the note, has such an interest in the litigation as would authorize him to intervene in the suit and defend upon the ground that the note was not in fact given for the purchase-money of the land and therefore was not secured by the land, and that the judgment rendered thereon against the defendant should not constitute a lien upon the land. The trial court erred in not allowing the intervention. See, in this connection, Potts v. Wilson, 158 Ga. 316 (123 S. E. 294); Cooper v. Bacon, 143 Ca. 64 (84 S. E. 123); Towner v. American National Bank of Macon, 145 Ga. 512 (89 S. E. 515); Loftis v. Alexander, 139 Ga. 346, 349 (77 S. E. 169, Ann. Cas. 1914B, 718); Delaney v. Sheehan, 138 Ga. 510 (75 S. E. 632); Armour Car Lines v. Summerour, 5 Ga. App. 619 (63 S. E. 667).

Judgment reversed.

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


text:
    18275.
    Herrington v. Sears, Roebuck & Company.
    New Trial, 29 Cyc. p. 832, n. 60.
    Trover and Conversion, 38 Cyc. p. 2078, n. 77; p. 2085, n. 21.
   Stephens, J.

1. In a suit in trover to recover personal property where the plaintiff relies for the establishment of title upon a written contract with the defendant, whereby the defendant agrees to make certain monthly payments to the plaintiff until the property is paid for, and providing that when the property is paid for it will become the property of the defendant, and where the contract does not indicate the price to be paid for the property, the plaintiff, carrying the burden of proof, can not establish title to the property without proof that the entire purchase-price therefor has not been paid, and this fact can not be established without proof of some contractual obligation on the part of the defendant to pay a certain definite and fixed price for the- property. A mere charge on the books of the plaintiff, showing a balance due by the defendant upon the property sold, even if it could be considered as relevant evidence to supply the omission of the amount of purchase-price from the written contract, is not, in the absence of other proof, sufficient to authorize an inference that the defendant contracted to pay any fixed sum for the property. See, in this connection, Shields v. Carter, 22 Ga. App. 507 (96 S. E. 330); Millsaps v. Strange, 37 Ga. App. 716.

Decided March 3, 1928.

Trover; from Gordon superior court—Judge Pittman. April 35, 1937.

F. A. Cantrell, J. M. Lang, for plaintiff in error.

Henson & Barnett, contra.

2. Since the evidence failed to authorize the verdict found for the plaintiff, the court erred in overruling the defendant’s motion for a new trial. Judgment reversed.

Jenloms, P. J., and Bell, J., concur.


author: Luke, J.

text:
    18478.
    ROYAL INDEMNITY CO. v. BATSON-COOK CO.
    1. Where, as in this ease, a contract to build according to certain specifications provides that “except as otherwise specifically provided in 'this contract, all claims, doubts and disputes shall be decided by the contracting officer, and the contractor shall promptly proceed with the work under such decision,” and that the “decision of the' contracting officer shall be final and conclusive,” his decision can not be impeached merely because based on the report of another and not on personal inspection. The negligence which would authorize such an attack must be so gross as to justify an inference of bad faith.
    (a) The assignments of error upon the admission of evidence are without merit; so also is an assignment of error upon that part of the charge of the court which instructs the jury that such finding is conclusive upon the contracting parties.
    2. For no reason assigned did the court, after approving the verdict (which is fully authorized by the evidence), err in overruling the motion for a new trial.
    United States, 39 Oye. p. 744, n. 21.
    Decided March 7, 1928.
    Action on bond; from city court of LaGrange—Judge Tuggle. July 26, 1927.

      H. T. Moon, for plaintiff in error.

      Lovejoy & Mayer, W. Howell Morrow, contra.
   Luke, J.

Batson-Cook Company, on March 11, 1924, entered into a written agreement with Frank T. Hines, director of United States Veterans’ Bureau, as contracting officer on behalf of the United States Government, for the construction of certain additions to United States Veterans’ Hospital No. 62, at Augusta, Georgia. Hachmeister-Lind Chemical Company, as subcontractor, on April 22, 1924, entered into a written agreement with BatsonCook Company, the principal contractor, for the installation of composition floors, according to certain specifications, in five of the additional buildings to be so constructed. Under the terms of this subcontract, all the general provisions and conditions of the principal contract, as well as all drawings and specifications thereof, formed and became a part of the subcontract itself. The principal contract contained the following provisions: “Except as otherwise specifically provided in this contract, all claims, doubts, and disputes shall be decided by the contracting officer, and the contractor shall promptly proceed with the work under 'such decision;” and “the decision of the contracting officer shall be final and conclusive.”

Hachmeister-Lind Chemical Company, about December 1, 1924, completed the work of installing the composition floors, and received from Batson-Cook Company the full consideration therefor; but, because the principal contract provided that “all work under this contract shall be guaranteed for one year from the date of the final settlement under this contract, except when a different period is specifically prescribed,” the Batson-Cook Company required the Iiachmeister-Lind Chemical Company to furnish a bond with security, the condition of which was as follows: “The condition of this obligation is such that if the said principal shall well and truly, at the request of the said obligee, make any and all repairs to the Halieomp flooring laid in the U. S. Veterans’ Hospital No. 62, ordinary wear and tear excepted, caused by defective material or workmanship, for a period of one year from the date of the final acceptance by the U. S. Veterans’ Bureau or to the 26th day of January, 1926, and to the satisfaction of the said U. S. Veterans’ Bureau, and will fulfill and complete all warranties made by the said principal in its contract and specifications executed and delivered to the said obligee for the said work, then this obligation to be void; otherwise to be and remain in full force and virtue:” and Boyal Indemnity Company executed this undertaking as surety for the Hachmeister-Lind Company, the principal therein. Within the period in the guarantee provision, certain defects appeared in the composition floors, and this fact was first brought to the notice of Batson-CookCompany about December 3,1925, by means of a letter from M. C. Baines, medical officer in charge of the Veterans’ Hospital, who requested BatsonCook Company to “take immediate steps to correct the defects herein reported;” and Batson-Cook Company in turn so notified Haehmeister-Lind Chemical Company, both by letter and telegram, and transmitted copies to Royal Indemnity Company. Hachmeister-Lind Chemical Company insisted that it was without fault in the premises, and finally, about March 3, 1926, after an inspection and report by one ¡3. B. Walsh, engineer, the following letter was addressed by Frank T. Hines, the contracting officer, to the BatsonCook Company: “Reference is made to your contract dated March 11, 1924, for certain general construction at H. S. Veterans’ Hospital, at Augusta, and particularly to the matter of the recent inspection of the composition floors installed thereunder. As a result of said inspection it is apparent that the failure of these floors was due to the fact that the defective portions thereof had never obtained a bond with the concrete sub-floors. This being the ease, demand is hereby made under the provisions of C-25, page 32, of specifications that you take immediate steps to place all composition floors installed by you in satisfactory condition, in strict accordance with the specifications governing same. This will not only require the removal of the entire area of floors in many rooms, but will also require cutting out of loose portions of floors elsewhere. Where the correction will be made by patching, the patch should be either square or rectangular in shape, as regular patching gives a very unsightly appearance. This matter was first brought to your attention under date of December 3, 1925, by letter to you from the medical officer in charge of the hospital at Augusta.”

Haehmeister-Lind Chemical Company having failed and refused to replace the defective floors, Batson-Cook Company caused them to be replaced and repaired by Thomas Moulding Brick Company, at a cost of $2920.92, and subsequently brought suit for this sum, together with traveling expenses amounting to $165.29, and engineer’s fees amounting to $126.25; and for the aggregate of these sums, with interest thereon amounting to $195.02, obtained a verdict and judgment against Royal Indemnity Company as surety upon the bond of Haehmeister-Lind Chemical Company hereinbefore referred to. The demurrer to the original petition was overruléd in some particulars and sustained in others; and certain paragraphs were accordingly stricken from the petition. The action of the court in overruling the demurrer in part was excepted to, and is assigned as error. This court, however, perceives no error in that respect, and is of the opinion that this assignment of error is not well founded.

In support of thp defendant’s motion for a new trial (which, of course, was overruled by the court below) there are three assignments of error. The first of these relates to the admission in evidence, over the defendant’s objection, of the letter of M. C. Baines, medical officer in charge, to the Batson-Cook Company, under date of December 3, 1925. It appears from the record that the sole purpose of offering this letter in evidence was to prove notice to Batson-Cook Company and to Hachmeister Chemical Company of the condition of the floors. It seems proper that the plaintiff was permitted to show that notice of the defective condition of the floors was brought home to the Batson-Cook Company within the period prescribed by the guaranty, and this without reference to manner or source. Nor is it seen bow this in anywise could have prejudiced the defendant.

The second assignment of error challenges the action of the court in admitting in evidence, over the objection of the defendant, the letter of Frank T. Hines, the contracting officer and director general, addressed to Batson-Cook Company, under date of March 8, 1926, hereinbefore referred to, on the ground that the evidence is irrelevant and immaterial, and further that because the contracting officer did not personally inspect the floors, but rendered his decision upon the report made to him by S. B. Walsh, an engineer of the construction division of the Veterans’ Bureau, that decision was wholly ineffective and the letter inadmissible. The point is argued by counsel for the defendant with considerable earnestness. But the complete answer to this contention is found in the terms of the contract between the parties concerned. It is provided that the contracting officer in effect is the sole arbiter of all “claims, doubts, and disputes,” and that his decision “shall be final and conclusive.” It provides no procedure to be employed or followed by him in that connection. It. leaves him wholly free to pursue his own method of securing information and reaching his conclusions. Something more than the mere absence of a personal inspection, in our view, is required to impeach his judgment. There is no claim that he was guilty of any misconduct; and the evidence adduced upon the trial corroborates his finding.

What has been said with reference to this assignment of error disposes of the remaining assignment of error on the charge of the court to the jury.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


author: Broyles, C. J.

text:
    18311.
    Hefner v. Fulton Bag and Cotton Mills.
    Dismissal and Nonsuit, 18 C. J. p. 1188, n. 69 New.
    Pleading, 31 Cyc. p..745, n. 20.
    Decided March 7, 1928.
    Action for damages; from Fulton superior court.—Judge Pomeroy. May 31, 1927.

      V. B. Adams, for plaintiff.

      Slaton & Hopkins, McDaniel & Neely, Harry L. Greene, for defendant.
   Broyles, C. J.

1. Where upon consideration of a demurrer to a petition the court passes an order which recites that “the plaintiff is given ten days in which to amend [the petition], or the case will then stand dismissed,” and where, in conformity to the order, the plaintiff amends the petition, and where subsequently the court rules that the amendment fails to comply with the order of the court and passes an order dismissing the case, the correctness of the order requiring the amendment is not for the consideration of this court. This is true although it is recited in the bill of exceptions that to this order the plaintiff “then and there excepted, and now excepts and assigns the same as error as being contrary to law.” When the plaintiff saw fit to meet the ruling of the court by offering an amendment, she waived her right to except to the ruling, and an exception upon the ground that she was forced to amend will not be considered. Farrer v. Edwards, 144 Ga. 553 (87 S. E. 777).

2. The plaintiff’s amendment to her petition failed to comply with the order requiring the amendment, and the dismissal of the case was not error.

Judgment affirmed.

Luke, J., eoneurs. Bloodworth, J., absent on account of illness.


text:
    18493.
    MATTHEWS v. COLLIER.
    Refusal of the purchaser to surrender possession of the land was not a condition precedent to suit on purchase-money notes, where the principal note provided that the principal amount, in the discretion of the holder, should become due on the date of default in the payment of either of the interest notes, and where the contract of 'sale provided as follows: “Failure of said party of the second part [the purchaser] to pay either or any of said promissory notes upon their maturity shall have the effect of maturing the entire contract of sale, and shall make each and every one of said purchase-money notes due and payable; ” although it was added: “and upon failure of said party of second part to surrender the possession of said lands in such event, then the said party of the first part shall have the right to immediately commence his suit on all of said unpaid promissory notes.”
    Vendor and Purchaser, 39 Cyc. p. 1913, n. 19 New.
    Decided March 7, 1928.
    Complaint; from city court of Barnesville—Charles H. Griffin, judge pro liae vice. August 31, 1927.

      Claude Christopher, for plaintiff in error.

      Cleveland & Goodrich, contra.
   Luke, J.

Collier sued Matthews upon two promissory notes, one for $3237.01, and the other for $258.96, both notes being dated March-1, 1922, and being due March 1, 1927. The court directed a verdict for Collier, and Matthews excepted.

The defendant in the court below denied indebtedness, and pleaded that on March 1, 1922, he contracted to purchase sixty acres of land from Collier; that the larger note was for part of the purchase-price of the land, and that the other note was an interest note; that the original purchase-price of the land was $6000, and that he paid the full purchase-price with the exception of the part of it represented by the notes sued on; “that the contract . . provided that in the event defendant defaulted in the payment of said purchase-price, he was then to turn said land back to the plaintiff, and in the event he refused to .turn the said land over'to plaintiff, then plaintiff was to have the right .and privilege to sue on the note given for the purchase price of said land;” and “that he never refused to turn over said land to the plaintiff, but repeatedly tried in vain to get him to accept the land in full satisfaction of the purchase-price, which plaintiff has always refused to do.”

The plaintiff introduced the notes sued on and rested. The defendant introduced the sales contract, which recited that in consideration of $1 and $7237.01, evidenced by a note payable March 1, 1927, and five interest-coupon notes due on March 1 in the respective years 1923, 1924, 1925, 1926, and 1927, Collier sold to Matthews a certain tract of land; and that upon payment of all of said notes as they matured, Collier would make fee-simple title to Matthews to said tract. The part of the contract most important in the decision of this case follows: “Failure of said party of second part to pay either ox any of said promissory notes upon their maturity shall have the effect of maturing the entire contract of sale, and shall make each and every one of said purchase-money notes due and payable; and upon failure of said party of second part to surrender the possession of said lands in such event, then the said party of the first part shall have the right to immediately commence his suit on all of said unpaid promissory notes, including principal, accrued interest, and attorney’s fees.” The plaintiff in error contends that under the contract “the right of action on the, notes is suspended until defendant refuses to deliver the possession of the land.” We can not accede to this construction of the contract. Collier was not bound to accept “the possession of said lands;” nor is there any stipulation that the offer to surrender the possession of the land would settle the debt. The, clause of the contract under consideration merely states the conditions under which the notes can be sued on before their due dates. Furthermore, the entire contract between the parties is not evidenced by the sales contract alone, but by both it and the notes declared upon (Gilford v. Green, 33 Ga. App. 1, 4, 125 S. E. 80); and the principal note provides that, “should any default be made by me in the payment of either interest note hereto annexed as agreed and stipulated, . . then the principal of this obligation and all interest accrued thereon, in the discretion of the holder, shall become due and payable at the date of such default.” Collier had the right to wait until the two unpaid notes were due, before bringing suit on them, and the evidence demanded a verdict in his favor. All the special assignments of error are based upon the refusal of the court to allow evidence to be introduced. They are all controlled by the foregoing reasoning, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    18617.
    Farmers State Bank v. Maddox Coffee Company et al.

    New Trial, 29 Cyc. p. 856, n. 78; p. 1008, n. 48.
    Decided March 7, 1928.
    Claim; from city court of Carrollton—Judge Hood. November 8, 1927.

      Boylcin & Boylcin, for plaintiff. 8. Holderness, contra.
   Luke, J.

A motion for a new trial, being a motion addressed to the sound discretion of the court, ought not to be sustained upon the ground that the movant was not present in court at the time of the trial, where the absence was not due to accident or adventitious circumstance; the inquiry in such a case being limited to questions of due diligence, and not extending to a consideration of the merits of the proposed detense. Dor this reason the court erred in granting the motion for a new trial in this case.

Judgment reversed.

Broyles, G. J., concurs. Bloodworth, J., absent on accoxmt of illness.


author: Rkoyi.es, C. J.

text:
    18619.
    Perkins v. The State.
    Intoxicating Liquors, 33 O. J. p. 595, n. 52.
    Decided March 7, 1928.
    Selling intoxicating liquor; from city court of Carrollton— Judge Hood. November 4, 1927.

      Smith & Milliccm, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Rkoyi.es, C. J.

The defendant was convicted of selling whisky. The undisputed evidence for the State showed that he did not sell the whisky, but that, acting as agent for the purchaser, he bought the whisky from a third person and delivered it to the purchaser. It follows that his conviction was unauthorized, and that the refusal to grant him a new trial was error.

Judgment reversed.

Buhe, J., concurs. Bloodworth, J., absent on account of illness.


text:
    18620.
    Polk v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Trespass, 38 Cyc. p. 1189, n; 82.
    Decided March 7, 1928.
    Cutting and removing timber; from city court of Summerville —Judge Neal. October 5, 1927.

      O. D. Rivers, for plaintiff in error.

      J. F. Kelly, solicitor, M. Neil Andrews, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and the special grounds of the motion for a new trial show no cause for a reversal of the judgment.

Judment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.


text:
    18622.
    SOUTHERN GRAVURE CORPORATION v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILROAD COMPANY.
    1. The question as to the statute of limitations will not be considered, for the reason that it was not raised in the trial court.
    2. The ground of the motion for a new trial based upon newly discovered evidence is without merit.
    3. The evidence was in conflict as to the proper classification of the interstate shipment, and for this reason alone it was error for the court to direct a verdict.
    Appeal and Error, 3 O. J. p. 709, n. 61.
    New Trial, 29 Cyc. p. 899, n. 56.
    Trial, 38 Cyc- p. 1568, n. 98.
    Decided March 7, 1928.
    Complaint; from city court of Atlanta—Judge Dorsey. November 16, 1927.

      Watkins, Asbill & Watkins, for plaintiff in error.

      Little, Powell, Smith & Goldstein, contra.
   Luke, J.

An action brought by Cleveland, Cincinnati, Chicago & St. Louis Eailroad Company against Southern Gravure Corporation, for the recovery of alleged unpaid freight charges, resulted in the direction of a verdict for the railroad company. Its motion for a new trial was overruled, and the defendant excepted.

The following facts are agreed upon: On June 7, 1922, the plaintiff in error delivered to the Central of Georgia Eailway Cornpany a carload of tablet covers, consigned to Elam Paper Company, of Marion, Indiana. Upon receipt of the shipment by the railroad company it issued a bill of lading, a copy of which it attached to the brief of evidence. The tablet covers were the property of the consignee at the time the bill of lading was issued, but the railroad company had no knowledge of the ownership of the same at that time, other than as derived from the biE of lading. The said shipment, conveyed over the lines of the initial carrier and of the defendant in error, was delivered by the latter to the consignee at Marion, Indiana, on or about June 20, 1922. The consignee paid the defendant in error $276.50, the full amount of freight charges then demanded. On July 19, 1922, the defendant in error discovered the alleged undercharge on the shipment, and demanded payment from Elam Paper. Company. A controversy arose as to the correct legal freight rate covering the shipment, and letters were exchanged between the Elam Paper Company and the defendant in error, and between the defendant in error and the Southern Classification Bureau, in an effort to discover the correct charges due on the shipment. In June, 1924, Elam Paper Company went into the hands of a receiver. Up to that time that company could have responded to a judgment for the freight charges claimed. The defendant in error filed its claim for the alleged undercharge with the receiver of said company, and on April 22, 1925, collected the last payment on the total dividend of $120.64 paid by the receiver. This amount was all that could ever possibly be collected from that source. In 1925 the defendant in error made demand upon the plaintiff in error for the difference between the aEeged legal rate and the amount originally collected from the consignee, plus said dividend. This demand was refused.

The copy of the original bill of lading attached to the brief of evidence is headed, “Straight bill of lading—original.” In it the Central of Georgia Eailway Company acknowledges receipt from Southern Gravure Corporation, at Atlanta, Ga.,’ on June 7, 1922, of “1 car tablet covers, as printed matter N. O. I..B. N.,” “weight 3500, class or rate 160.” The shipment is consigned to Elam Paper Company, Marion, Indiana. On the face of the bill of lading the following clause occurs: “It is mutuaEy agreed, as to each carrier of all or any of said property, over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted by himself and his assigns.” The following also occurs on the face of the bill of lading: “If charges are to be prepaid, write or stamp here, ‘To be prepaid.’ ” Nothing is written or stamped in the blank below that clause. This clause also appears: “Beceived $-to apply in prepayment of the charges on the property described herein.” This clause is neither filled in nor signed. On the back of the bill of lading the following is printed: “The owner or consignee shall pay the freight, and average, if any, and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.” The following appears on the face of the bill of lading: “Hold for inspection (6) Southern W. I. Bureau. Changed by inspection at Atlanta, Ga. Agent will correct billing 560. Bated to river.” A witness sworn for the plaintiff in error testified as follows: “I have examined the original bill of lading covering the shipment. At the time this shipment was tendered the Central of Georgia Bail-way Company in Atlanta by the shipper, it was described as “one car of tablet covers.” After the bill of lading had been receipted by the railroad company, this shipment was inspected by Markey’s association, and it stamped on the bill of lading, ‘Hold for inspection,’ and they set the shipment up to printed matter, N. 0. I. B. N., and rated the shipment . .' first-class rate, and inserted in the bill of lading in red ink $1.60 per 100 pounds rated to the river. It further states by rubber stamp, ‘ Southern Weighing & Inspection Bureau, Changed by inspector in Atlanta, and agent will correct billing.’ ”

The tablet cover in evidence is approximately eleven inches long by six inches wide, is made of extra heavy paper, and has on the front of it the picture of a hunter of the old type and two children. The background is made up of several mountains and a most remarkable sunrise. At the top of the cover, in large printed letters, appear the words “Pathfinder;” and under this word, in smaller letters the words, “School Series,” are printed. Near the bottom of the cover appear the words “Southern School-Book Depository.” At three different places on the cover, in very small letters, the words, “20th Century Pathfinder” occur. It appears from Consolidated Freight Classification that “printed matter, paper or paperboard, N. O. I. B. N., prepaid,” takes a first-class rate; while on “paper articles, pads, tablets or blank-books, not printed, without covers, or plain or printed flexible paper or pulp-board covers,” the rate is fifth class.

Mr. Markey, manager of the Southern Weighing and Inspection Bureau, of Atlanta, and • an employee of the railroads, testified that tablet covers should be classified as “printed matter N. 0. I. B. N,” the abbreviations meaning, not otherwise indexed by name. Mr. Yoorhees testified likewise. He further swore that he was a member of Southern Classification Committee, a committee representing all the southern railroads, and that the question as to the proper classification of tablet covers had been before the Consolidated Classification Committee, consisting of Southern Classification Committee, the Official Classification Committee in the east, and the Western Classification Committee, and the unanimous opinion of all the committees was that tablet covers are ratable as “printed matter N. O. I. B. N.” He also testified that said committees had considered all angles of the question, and considered whether it was desirable to provide a specific entry in the classification for tablet covers, and that the conclusion of the Consolidated Classification Committee was that the entry “printed matter N. O. I. B. N.” was sufficiently definite, and that a more specific entry was not necessary.

Mr. Moore, sworn for the plaintiff in error, testified: that he was traffic manager for the Atlanta Freight Bureau; that he was familiar with rates, and with the issue involved in the case; that the Southern Classification Committee does not provide any specific rating for tablet covers; that the proper classification governs the rate; that Bule 17 of the Consolidated Classification reads: “When articles not specifically provided for, nor embraced in the classification as articles “N. O. I. B. N.,” are offered for transportation, carriers will apply the classification provided for articles which, in their judgment, are analogous; in such cases agents must report the facts to the proper officer of the Freight Department in order that the rating applied must be verified and the necessary classification provided;” that the tablet itself is most analogous to the tablet cover; that tablets carried a rate of 79 cents per 100 pounds; that this rate should have been applied to the shipment of tablet covers; that, so applying it, the charges due on said shipment were $276.50, the amount first charged and collected; and that in his opinion this amount was the total charges due on the shipment.

Mr. Gray, manager of the Southern Gravure Corporation, testified: that the bill of lading under which the shipment was made was prepared by his secretary; that the 'shipper neither prepaid nor guaranteed the freight charges on the shipment, that it was not requested to do either by the initial carrier; that the tablet covers were sold f. o. b. Atlanta; that the shipment consisted of “glazed paper, 120 pounds table stock;” that the shipper was not advised that the rating on the shipment had been changed until about two and a half years later; that plaintiff in error was first requested to pay freight charges on said shipment in February, 1925, after Elam Paper Company had taken bankruptcy; and that the final payment on the purchase-price of said tablet covers was made in November, 1922.

After a careful consideration of the evidence in the case we have reached the conclusion that it was in conflict as to what was the proper classification of the tablet covers. This being true, it was improper to direct a verdict. But the carrier and the shipper had the right to contract whether the latter or the consignee should pay the freight charges, subject to the rule which prohibits discrimination. L. & N. E. Co. v. Central Iron & Coal Co., 265 U. S. 59 (44 Sup. Ct. 441, 68 L. ed. 900). It is agreed that at the time the shipment moved there were in effect Eules Nos. 1, 9, and 17 of Consolidated Freight Classification No. 2 Section 1(a) of Eule 1 reads: “Unless otherwise provided, when property is transported subject to the provisions of the Official Classification, the Southern Classification, and the Western Classification, or either of them, the acceptance and use are required, respectively, of the 'Uniform'Domestic Bill of Lading/ 'Straight/ or 'Order/ or the 'Uniform Export Bill of Lading/ 'Straight/ or 'Order.’” Section 1(c) of Eule 1 reads: “Unless otherwise provided in this classification, property will be carried at the reduced rate specified if shipped subject to all the terms and conditions of the Uniform Domestic Bill of Lading, or the Uniform Export Bill of Lading, as the case may be. If consignor elects not to accept all the terms and conditions of the Uniform Domestic Bill of Lading or the Uniform Export Bill of Lading, as the. ease may be, he should notify the agent of the forwarding carrier at the time his property is forwarded for shipment. If he does not give such notice, it will be understood that he desires his property carried subject to the terms and conditions of the Uniform Domestic Bill of Lading or the Uniform Export Bill of Lading, as the case may be, in order to secure the reduced rate.”

Applying the foregoing rules to the shipment in question, it had to be moved subject to the provisions of the uniform domestic bill of lading, unless the consignor desired to pay a higher freight rate and have it transported at a greater liability on the part of the carriers. The evidence is that the shipper requested the initial'carrier to give it the rate on tablet covers, and that the bill of lading was then made out by the shipper and delivered to the carrier. The “common-law liability,” or higher rate, connoting greater liability on the‘part of the carriers, was not asked for by the shipper, and the bill of lading does not contain any statement that such rate was desired. No such rate was either charged or sought to be collected. We do not think that the notice required by the rule was given by the filling out and delivery to the carrier of the said bill of lading, or in any other way. Under the evidence the shipment was controlled by the terms and conditions of the uniform domestic bill of lading. On the back of said bill of lading appears the following: “Sec. 7. The owner or consignee shall pay the freight and overage, if any, and all other lawful charges on said property; but, except in those instances where it may be lawfully authorized to do so, no carrier by railroad shall deliver or relinquish possession at destination of the property covered . . until all tariff rates and charges thereon have been paid. The consignor shall be liable for the freight, . . except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading, that the carrier shall not make delivery without requiring payment of such charges, and the carrier, contrary to such stipulation, shall make delivery without requiring such payment, the consignor shall not be liable for such charges.”

The evidence is that the word “prepaid,” used as a part of the classification of “printed matter,” etc., means that freight belonging to that classification should have the charges prepaid on it. Under Rule 9, consolidated freight classification, “All charges must be prepaid or guaranteed on any shipment which in the judgment of the agent at point of shipment would not at forced sale realize the total amount of charges due at destination.” It does not appear that the agent desired or requested that the charges be either prepaid or guaranteed on the shipment. Certainly the fact that the freight was not prepaid would not of itself absolve the shipper from all liability therefor. In eases similar to this one, the view most favorable to the shipper is expressed in the case of L. & N. R. Co. v. Central Iron & Coal Co., supra, as follows: “Ordinarily, the person from whom the goods are received for shipment assumes the obligation to pay the freight charges; and this obligation is ordinarily a primary one. This is true even where the bill of lading contains, as here, a provision imposing liability upon the consignee. For the shipper is presumably the consignor; the transportation ordered by him is presumably on his own behalf; and a promise by him to pay therefor is inferred (that is, implied in fact), as a promise to pay for goods is implied when one orders them from a dealer. But this inference may be rebutted, as in case of other contracts. It may be shown, by the bill of lading or otherwise, that the shipper of the goods was not acting on his own behalf; that this fact was known by the carrier; that the parties intended not only that the consignee should assume an obligation to pay the freight charges, but that the shipper should not assume any liability whatsoever therefor; or that he should assume only a secondary liability.” We do not think it appears in the ease sub judice, either from the bill of lading or otherwise, “that the shipper should not assume any liability whatsoever” for the payment of the charges. It follows that the shipper is not freed from all liability by reason of any contract to that effect. ■

But was the shipper freed from all liability for the unpaid freight charges because the carrier elected to hold the consignee alone liable therefor? We think not. “Nor could any act or omission of the carrier (except the running of the statute of limitations) estop or preclude it from enforcing payment of the full amount by a person liable therefor.” The above quotation is taken from the case of L. & N. E. Co. v. Central Iron & Coal Co., supra, and has reference to legal freight charges. See also Pittsburgh, C. C. & St. L. R. Co. v. Fink, 250 U. S. 577, (40 Sup. Ct. 27, 63 L. ed. 1151); N. Y. C. & H. R. Co. v. York &c. Co., 256 U. S. 406 (41 Sup. Ct. 509, 65 L. ed. 1016). “A railway company is not estopped to proceed against a consignee to recover the difference between the amount of freight collected and that which should have been collected, merely because of delay in bringing suit, not extending beyond the period prescribed by the statute of limitations, and because during that time the consignor (who by agreement with the consignee was liable for the freight) became insolvent.” Central of Ga. Ry. Co. v. Eatonton Lumber Co., 14 Ga. App. 302 (80 S. E. 725). “A common carrier may collect freight charges on goods either from the consignor or the consignee, unless it has entered into a special contract binding itself to collect the charges from one of them only. And a mere agreement between the shipper and the carrier that the goods should be shipped 'charges collect/ and a memorandum in the bill of lading to this effect, would not constitute such a special contract.” S. A. L. Ry. Co. v. Montgomery, 28 Ga. App. 639 (112 S. E. 652). See also W. & A. R. Co. v. Legg, 32 Ga. App. 368 (123 S. E. 31); So. Ry. Co. v. So. Cotton Oil Co., 19 Ga. App. 453 (91 S. E. 856), s. c. 147 Ga. 646 (95 S. E. 251).

The question as to the statute of limitations not having been raised during the trial of - the case, this court can not consider it.

The foregoing substantially covers the original motion for a new trial, as well as the amendment to the motion. Except as indicated above, no reversible error is shown.

Judgment reversed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    18623.
    EDMONDS v. STATE HIGHWAY BOARD.
    Without constitutional or statutory authorization, no action lies directly and primarily against the State Highway Board for unlawful appropriation • of private property for road-construction purposes.
    Highways, 29 O. J. p. 567, n. 70.
    Decided March 7, 1928.

      Action of trespass; from Fulton superior court—Judge Howard. October 26, 1927.

      Holce O’Kelley, Claude Christopher, for plaintiff.

      Seward M. Smith, Henderson Hallman, George & John L. Westmoreland, for defendant.
   Luke, J.

This was a suit against the State Highway Board, to recover damages for the alleged unlawful taking of private property for road purposes in Lamar county without due process of law and without providing compensation therefor. A general demurrer to the petition was sustained. In the absence of either constitutional or legislative authorization, no action will lie directly and primarily against the State Highway Board for the alleged unlawful appropriation of private property for road-construction purposes. The petition set forth no cause of action, and the general demurrer was properly sustained. See Ga. L. 1919, p. 242; Park’s Code Supp. 1926, § 828 (zz), Michie’s Georgia Code, § 828(1).

Judgment affirmed.

Broyles, C. J., 'concurs. Bloodworth, J., absent on account of illness.


text:
    18624.
    McMILLAN v. CITIZENS AND SOUTHERN NATIONAL BANK.
    Where a check has not been certified or accepted in writing by the bank upon which it was drawn, the bank is not liable thereon to the holder.The letter written by the bank to the holder of the cheek sued on in this ease did not constitute an acceptance of the check.
    Banks and Banking, 7 O. J. p. 698, n. 45.
    Decided March 7, 1928.
    Complaint; from Fulton superior court—Judge Howard. October 19, 1927.
    C. L. McMillan sued the Citizens & Southern National Bank. His petition (formal and immaterial parts omitted) was as follows :
    (3) On July 12, 1926, Georgia State Bank, through its branch office at Cordele, Georgia, executed a check or draft payable to the order of the plaintiff, in the sum of $3559.66, drawn on and against the defendant at its office in Atlanta, Georgia, and signed by C. C. Shearer, cashier of the said Georgia State Bank.

      A copy of said check or draft is attached to the petition as exhibit A. (4) On .the said July 12, 1926, the plaintiff, by letter and due course of mail, transmitted said check or draft to the defendant at Atlanta, Georgia, and in said letter directed that the check be deposited as follows: $2376.52 to the credit of his personal account, and. $1183.14 to the credit of McMillan Gin Company; and requested the defendant to mail to him duplicate deposit slips, together with check-books, as shown by his letter of said date; a copy of which letter is attached to the petition exhibit B. (5) Said letter was duly received by the defendant in Atlanta, Georgia, and in response the defendant on July 13, 1926, wrote and sent to the plaintiff a letter by due course of mail, acknowledging receipt of said check or draft, accepting the same, and agreeing to follow his directions as to the depositing of said money. Copy of said letter is attached to the petition as exhibit C. (6) On July 14, 1926, the defendant, from its office in Atlanta, Georgia, telegraphed the plaintiff at Cordele, Georgia, stating that it was returning check to plaintiff, on account of Georgia State Bank, Cordele, being closed. A copy of said telegram is attached to the petition as exhibit D. (7) Plaintiff is informed and believes, and so charges, that at the time the said check or draft was received by the defendant at its office in Atlanta, Georgia, it had in its hands more than sufficient assets of the Georgia State Bank to pay said draft or check, and that the defendant accepted the said check or draft, and by its letter of July 13, 1926, to the plaintiff, acknowledged its acceptance of the said check or draft, and that the defendant is liable to the plaintiff for the payment of said check or draft. (8) The said Georgia State Bank is now insolvent and in the hands of the State Banking Department of Georgia. Wherefore plaintiff prays that he may have judgment against the defendant for the sum of $3559.66, together with interest thereon from July 13, 1926, to date of trial, at the rate of seven per cent, per annum.
    Exhibit A: “Georgia State Bank. No. 2665.
    “Cordele, Ga., July 12, 1926. Original (duplicate unpaid).
    “Pay to the order of C. L. McMillan $3559.66 thirty-five hundred fifty-nine dollars sixty-six cents. C. C. Shearer, A. Cashier.
    “To Citizens & Southern Bank, Atlanta, Ga.
    “Indorsement: C. L. McMillan.”

      Exhibit B: “Cordele, Ga., July 12, 1926.
    “Citizens & Southern Bank, Atlanta, Ga.
    “Gentlemen: I enclose herewith check for $3559.66. Please place of this amount $2376.52 to the personal credit of C. L. McMillan, Cordele, Ga. Please place of this amount $1183.14 to the credit of McMillan Gin Co., Cordele, Ga. Total $3559.66. Please mail to me duplicate deposit slips, together with two check-books to-morrow, and greatly oblige,
    “Yours truly, [Signed] C. L. McMillan. [Signed] McMillan Gin Co., by C. L. McMillan.”
    Exhibit C: “The Citizens and Southern Bank. Atlanta, Ga.,
    July 13, 1926.
    “Mr. C. L. McMillan, Cordele, Ga.
    '“Dear Sir: I wish to acknowledge receipt of yours of the 12th instant, enclosing check for the Georgia State Bank, Cordele, drawn on us for $3,559.66, to be placed to the following accounts: C. L. McMillan, $2,376.52; McMillan Gin Co,, $1,183.14. We are to-day entering this check for collection, and as soon as same has been paid, we will immediately credit your account and advise you.
    “Yours very truly, C. E. Tillman, Assistant Cashier.”
    Exhibit D: Telegram received at Atlanta, Ga. ’“ 932A Jul. 14, 1926.
    “ C. L. McMillan, Cordele, Ga. Returning cheek Georgia State Cordele your letter twelfth bank closed.
    “Citizens & Southern Bank, Atlanta.”
    The defendant filed a general demurrer, which was sustained by the court, and the plaintiff excepted.

      George & John L. Westmofeland, for plaintiff.

      Alston, Alston, Foster & Moise, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.) The petition, properly construed, bases the right to recover upon an alleged express acceptance by the defendant of the check or draft, as shown by its letter attached to the petition as exhibit C. The theory of recovery (argued in the brief of counsel for the plaintiff in error) upon the ground that the defendant bank was the. collecting agent for the plaintiff, and that it is liable for a.breach of its duties as such agent, is not set forth in the petition, and can not be considered by this court. It clearly appears from the language of the defendant’s letter (exhibit C) that the check or draft drawn upon it was not accepted. The letter stated merely that when the draft was paid by the drawer bank the amhunt thereof would be credited as directed by the plaintiff. It is well settled that a bank upon which a check is drawn is not liable to the holder thereof unless it has accepted or certified the check. The fact that the drawer bank may possess sufficient funds of the drawer to pay the check is immaterial. Negotiable Instruments Law (Ga. L. 1934, pp. 136, 163), sec. 189; 7 C. J. 698, Banks & Banking, § 436. Furthermore, even if the letter in question could possibly be construed as an acceptance, it was written on a paper other than the check, and was not written until after the plaintiff received the check. An acceptance written on a paper other than the bill itself does not bind the acceptor except in favor of one to whom it is shown and who, on the faith thereof, receives the bill for value. Negotiable Instruments Law, supra, sec. 134; Citizens Bank v. Willing, 109 Wash. 464 (186 Pac. 1072); Jones v. Crumpler, 119 Va. 143 (89 S. E. 333); Eakin v. Citizens State Bank (Kan.), 72 Pac. 874. The court did not err in dismissing the petition upon demurrer.

Judgment affirmed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    18627.
    SUBER et al. v. THE STATE.
    1. The documentary evidence complained of was admissible, in connection with other testimony in the case, to throw light on the contention of the State. ,
    2. “Where the jury requests further instructions upon a particular phase of the case, the court in his discretion may recharge them in full, or only upon the point or points requested.”
    3. There was evidence to support the verdict, and the court did not err in overruling the motion for a new trial.
    Criminal Law, 16 C. J. p. 1089, n. 42; p. 1180, n. 74.
    Larceny, 36 C. J. p. 878, n. 60.
    Decided March 7, 1928.
    Larceny of cattle; from Colquitt superior court—Judge W. E Thomas. November 7, 1937.

      L. L. Moore, James L. DowTmg, for plaintiffs in error.

      O. E. Hay, solicitor-general, contra.
   Luke, J.

Boyd Súber and Byrd Wood were indicted in seven counts for cattle stealing, and were convicted under two counts. They assign error upon the overruling of their motion for a new trial. The record shows that Súber, assisted by Wood, stole several different herds of cattle that were on range, and sold them to Swift & Company under fictitious names. Súber employed others to drive the cattle and make the sales. In his statement Súber acknowledged selling the cattle and claimed that they were his own, but the sheriff testified that Súber had previously denied knowing anything about the sale of the cattle. Súber made no satisfactory explanation of where he got so many cattle, or why he had others to make the sale, or why he had payment therefor made to fictitious persons. In the process of the theft, naturally no attempt was made to keep separate the herds of the several persons from whom they were stolen; but there was ample evidence to support Suber’s conviction, and sufficient evidence to support Wood’s conviction, under the two counts. The transactions and the evidence in regard thereto were interwoven. Under the particular facts of this case, evidence of the theft of cattle as alleged in counts other than those under which the defendants were convicted was relevant, material, and probative under the counts proved by the State, in and to the extent that such evidence showed bent of mind, tendency, and motive.

The motion for a new trial complains of the admission in evidence of a draft given in payment for certain cattle. In view of the fact that it was given for cattle, and was given to a fictitious person, so far as appears, and was dated about the time of the alleged theft by the defendants, this draft, given by Swift & Company to Bay Anderson, was admissible, in connection with other testimony in the case, to throw light on the contention of the State. The State showed Suber’s connection with two drafts payable to fictitious persons, and if it failed to show the defendants’ connection with this draft, its admission was harmless to the defendants. Cochran v. Meeks, 25 Ga. App. 61 (2) (102 S. E. 550).

The motion complains that when the jury came back to request further instructions as to the penalty, the court charged them as to the penalty without again instructing them that they could recommend that the defendants be punished as for a misdemeanor. “Where the jury requests further instructions upon a particular phase of the case, the court in his discretion may recharge them in full, or only upon the point or points requested.” Short v. State, 140 Ga. 780 (9) (8 S. E. 8).

The evidence against Wood, though not so strong as that against Súber, shows that Wood assisted in the theft of the cattle, assisted in procuring men to drive them, and endeavored to get a witness who was familiar with the- transactions to leave the community until the matter quieted down.

There was evidence to support the verdict, which has the approval of the trial judge, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    18631.
    BROWN v. BELL.
    1. On tlie trial of a suit on a note of which the defendant was the payee and the indorser, it was not error to exclude from evidence his answer to his counsel’s question whether or not the note was sold and transferred to the plaintiff without recourse.
    2. The surety’s request to the creditor to collect the debt of the principal debtor must be in writing in conformity to the Civil Code (1910), § 3546.
    3. It was not error to confine the issue for the jury to that of indorsement without recourse.
    4. The evidence authorized the verdict.
    Appeal and Error, 4 C. J. p. 905, n. 41.
    Principal and Surety, 32 Cyc. p. 103, n. 49.
    Trial, 38 Cyc. p. 1612, n. 13.
    Witnesses, 40 Cyc. p. 2435, n. 80.
    Decided March 7, 1928.
    Complaint; from city court of Bainbridge—Judge Spooner. November 8, 1927.

      A. B. Conger, for plaintiff in error.

      J. G. Hale, H. G. Bell, contra.
   Broyles, C. J.

This.was a suit upon a promissory note and was brought against the payee, who was also the indorser. On the trial the defendant was asked by his counsel “whether or not the note sued upon was sold and transferred to the plaintiff without recourse.” The answer to the question was excluded by the court, on the ground (the objection being made by the plaintiff) that it would be a conclusion of the witness. The answer was properly excluded. The bald statement that “the note Was sold to the plaintiff without recourse” was clearly a mere conclusion of the witness. Of course the defendant could have testified as to what occurred between him and the plaintiff when the note was sold, and as to any conversation about the indorsement, or as to any agreement between them as to the indorsement being without recourse.

“Verbal requests, however urgent and frequent, by a surety to the creditor, to take action to collect the debt from the principal debtor, will not relieve the surety. To avail the surety, the request or notice to the creditor to collect the debt out of the principal debtor must be in writing and in conformity to the statute on that subject. Civil Code [of 1895], § 2974; Souter v. Bank, 94 Ga. 713 (20 S. E. 111).” Jordan v. Farmers & Merchants Bank, 5 Ga. App. 244 (2) (62 S. E. 1024). Under this ruling the evidence set forth in the second special ground of the motion for a new trial was properly excluded.

Under the pleadings and the evidence the court did not err in submitting to the jury the single issue as to whether the defendant had indorsed the note without recourse on him. The other contention of the defendant as made in his plea and as supported by the evidence was insufficient to present any defense to the suit. See ruling in immediately preceding paragraph.

The evidence, although conflicting on the issue submitted to the jury, authorized the verdict,' and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    18634.
    SIMS v. THE STATE.
    An indictment under the Penal Code, § 249, which fails to charge an intent to defraud, is fatally defective.
    The indictment in this ease was absolutely void, and the motion to arrest the judgment should have been sustained.
    Banks and Banking, 7 C. J. p. 675, n. 10.
    Criminal Law, 16 C. J. p. 1257, n. 1.
    Decided March 7, 1928.

      Passing counterfeit check; from Fulton superior court—Judge Moore, November 5, 1927.

      Fred W. Flint, Louis H. Foster, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraiv, John II. Hudson, contra.
   Broyles, C. J.

The indictment in this case was drawn under section 249 of the Penal Code of 1910. That section provides: “If any person shall designedly, by color of any counterfeit letter or writing made in any other person’s name, or fictitious name, obtain from any person money or other valuable thing, with intent to defraud any person, mercantile house, body corporate, or company of the same [italics ours], he shall be punished by imprisonment and labor in the penitentiary for not less than two nor longer than seven years.” The indictment (formal parts omitted) charged the accused “with the offense of felony,” for that said accused, “in the County of Fulton and State of Georgia,, on the 7th day of April, 1927, with force and arms, did designedly; by color of the following counterfeit check and writing, to wit:

Anniston National Bank 64-3. Anniston, Ala. 4/7/1927.

Pay to the order of A. M. Sims &’ Co. one hundred twenty-three & 80/100 dollars. J. S. Jamerson’ same being made in the fictitious name of J. S. Jamerson, obtain of and from The Atlanta & Lowry National Bank, a corporation, one hundred and twenty-three dollars and eighty cents in money, of the value of one hundred and twenty-three dollars and eighty cents, and the property of the said The Atlanta & Lowry National Bank, contrary to the laws of said State, the good order, peace, and dignity thereof.”

It is obvious, from the language of the statute, that the gist of the offense is the intent to defrrnd. It follows that an indictment drawn under that section- of the Code, which fails to charge such an intent, is fatally defective, and that a verdict and judgment of guilty thereon should be set aside on a motion to arrest the judgment . See in this connection, Couch v. State, 28 Ga. 367; Stephens v. State, 56 Ga. 604; Gibson v. State, 79 Ga. 344 (5 S. E. 76).

The court erred in denying the motion in arrest of judgment.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    18633.
    Sims v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided March 7, 1928.
    See ease next preceding, for description and names of counsel.
   Broyles, C. J.

The evidence adduced was sufficient to authorize the jury to find that it excluded every reasonable hypothesis but that of the defendant’s guilt, and the refusal to grant a new trial (the motion being based on the usual general grounds only) was not error.

Judgment affirmed.

Lulce, J., concurs. Bloockoorth, J., absent on account of illness.


text:
    18635.
    Decatur County Bank v. Broome.
    Appeal and Error, 4 C. J. p; 1129, n. 58.
    Chattel Mortgages, 11 C. J. p. 409, n. 82; p. 656, n. 48.
    Decided March 7, 1928.
    Money-rule; from city court of Bainbridge—Judge Spooner. November 5, 1927.

      II. G. Bell, for plaintiff in error.

      D. R. Bryan, R. G. Harts field, contra.
   Luke, J.

1. A written instrument purporting upon its face to be a mortgage to secure the payment of a promissory note therein specifically described, and containing a defeasance clause, and in which no contrary intention otherwise appears, is held to be intended by the parties as a mortgage, and not a bill of sale.

2. The general lien of a laborer upon the property of his employer, foreclosed in pursuance of the provisions of the statute, is of superior priority to a mortgage execution issued to foreclose such an instrument.

3. Upon the grounds stated above, the court did not err in overruling the demurrer to the petition, or in its award of the funds involved.

Judgment affirmed.

Broyles, G. J., concurs. Bloodivorth, J., absent on account of illness.


text:
    18639.
    Austin v. City of Newnan.
    Certiorari, 11 C. J. p. 159, n. 94.
   Luke, J.

The plaintiff in certiorari having failed to comply with the

statute as to the bond required of him, the court did not err in refusing to sanction the petition for certiorari. Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970); Barlow v. Hawkinsville, 34 Ga. App. 193 (128 S. E. 817), and cit.

Decided March 7, 1928.

Petition for certiorari; from Coweta superior court—Judge Poop. November 8, 1927.

S. II. Dyer, for plaintiff in error. A. II. Freeman, contra.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworlh, J., absent on accoimt of illness.


text:
    18640.
    Kersey v. The State.
    Criminal Law, 16 C. J. p. 736, n. 50; p. 1180, n. 74.
    Decided March 7, 1928.
    Possessing intoxicating liquor; from Jeff Davis superior court— Judge J. H. Thomas. October 29, 1927.

      Chastain & Henson, for plaintiff in error.

      W. B. Gibbs, solicitor-general, contra.
   Broyles, C. J.

The defendant was convicted of possessing intoxicating liquors. The State introduced a confession made by him, and proved the corpus delicti. Such proof authorized the jury to find that it was sufficient corroboration of the confession. Davis v. State, 105 Ga. 808 (3) (32 S. E. 158). The verdict was authorized by the evidence and the court did not err in overruling the motion for a new trial, which contained the usual general grounds only.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    18644.
    Elrod v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided March 7, 1928.
    Manslaughter; from Jackson superior court—Judge Stark. October 31, 1927.

      E. G. Starlc, Shackelford, Shackelford & Davis, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and none of the grounds of the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


author: Bboyles, C. J.

text:
    18658.
    Bradshaw v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided March 7, 1928.
    Driving automobile unlawfully; from city court of Albany— Judge Clayton Jones. November 3, 1927.

      Cowart & Durden, for plaintiff in error.

      R. B. L. Spence, solicitor, contra.
   Bboyles, C. J.

The motion for a new trial was based on the usual general grounds only; the evidence authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworih, J., absent on account of illness.


text:
    18662.
    Kinney v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided March 7, 1928.
    Manslaughter; from Fulton superior court—Judge Moore. October 1, 1927.

      Branch & Howard, B. C. Jackson, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraw, John H. Hudson, contra.
   Luke, J.

The motion for a new trial, the overruling of which is assigned as error, contains the general grounds only. The evidence amply authorized the verdict rendered, and the court properly overruled the motion.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    18665.
    THOMAS v. THE STATE.
    1. Where a person has no warning of any kind that he will need a pistol for self defense, and no reason is shown for his having a pistol, and he arms himself with a pistol in violation of the law, and goes to another’s house, and deliberately makes a remark that will ordinarily provoke a difficulty, and, after provoking the difficulty and being struck by his adversary, he points the pistol in the direction of his adversary, and fires it from his side-pocket, it is not unreasonable for the jury to conclude that he started out looking for trouble, and that the intent to use the deadly weapon existed before the provocation therefor; even had the provocation been sufficient to justify the use of a deadly weapon.

      Criminal Law, 16 C. J. p. 1059, n. 39; 17 C. J. p. 255, n. 53.
    Homicide, 30 C. J. p. 318, n. 96; p. 355, n. 73.

      2. The excerpts from the charge of which complaint is made are not subject to the exception that they omit “the essential element of said offense, to wit, ‘actuated with malice either express or implied.5 55 “The specific intent to kill unjustifiably constitutes legal malice, whether death results or not. And where an assault is made with a deadly weapon, or a weapon likely to produce death, with a specific intent to kill, the jury are authorized to infer the existence of malice in the assault. ”
    3. The State’s case not depending wholly on circumstantial evidence, and there being no written request to charge on this subject, the failure of the court so to charge was not error.
    4. The evidence authorized the verdict, and no reversible error of law is shown.
    Decided March 7, 1928.
    Assault with intent to murder; from Randolph superior court-judge Yeomans. November 18, 1927.

      C. W. Worrill, for plaintiff in error.

      B. T. Castellow, solicitor-general, Bond Almand, contra.
   Luke, J.

The defendant Lozell Thomas was convicted of assault with intent to murder one J. 0. McFather, and assigns error on the overruling of his motion for a new trial. Counsel for the plaintiff in error intimates that there was prejudice in the trial against the defendant because he was a negro, as counsel says that nominally the case originated as the - State of Georgia against Thomas, but figuratively it developed into the case of McFather, white landlord, against Thomas, negro share-cropper, and resulted against the negro. We have searched the record diligently and find nothing to indicate this. While of course there should be no miscarriage of justice or prejudice against the defendant because of his being a negro, still there should be no favoritism shown him because of this fact; and the evidence in this case shows had conduct,- regardless of who was guilty of it. The trial judge did not believe that the twelve jurors, who were under oath, were prejudiced, and this court will not, under this record, say that they were. The evidence shows that the defendant Thomas worked for McFather on shares or halves; the control of the premises under such agreement being in the owner, McFather; that the defendant had two days in which to haul wood for himself, but on the third day, when it was dry enough to plow, he came to McFather’s house, apparently to get a mule to haul wood. McFather told him that he could not haul wood, that he wanted him to plow, that he had two days to haul wood; the defendant replied that “he want going to plow for anybody until he hauled some wood;” and then (McFather testified), “I grabbed up a chinaberry stick and hit him with it, and he -throwed up his arm this way, and I struck him on his arm, and right after this the pistol went off. It was just a small stick, about the size of a walking stick, it was a china-berry sprout. No, sir, it was not big enough to do any harm to a person; you could not kill anybody with it, I don’t think. He warded off the stick with his left hand.” Another witness testified that the stick was just “a small chinaberry sprout,” and that the defendant “Lozell Thomas throwed his left hand up, jumped back and run his hand in his side-pocket this way. He motioned his hand towards J. 0. McFather, just that way,—that is in the direction of J. 0. McFather, and the pistol fired then from that pocket. It fired in the direction of J. 0. McFather. The firing was made in the direction of J. 0. McFather; it was right towards him; he run his hand in his pocket this way and the pistol fired. Lozell Thomas then turned and run.” The defendant in his statement claimed that McFather hit the pistol in his pocket and caused it to fire; but there was ample evidence to show that McFather struck the defendant only once, and that was on the left arm, while it was up, and the defendant shot the pistol from his pocket. The defendant made no explanation of why he carried the pistol there with him.

Counsel for the plaintiff in error insists that the criminal intent essential to the commission of the crime was not shown. The intent is evidenced by what the defendant did. It is shown by the fact that he deliberately armed himself with a pistol before going to McFather’s house, by his having it arranged so that he could shoot it from his pocket, by his making a remark that he knew, from human experience, would ordinarily provoke trouble, and making the remark with the knowledge that he was fully armed; and finally by pointing the pistol in the direction of McFather and shooting from his pocket. Where a person has no warning of any kind that he will need a pistol for self-defense, and no reason is shown for his having a pistol, and he arms himself with a pistol in violation of the law, and goes to another’s house, and deliberately makes a remark that will ordinarily provoke a difficulty, and, after provoking the difficulty and being struck by his adversary, he points the pistol in the direction of his adversary and fires it from his side-pocket, it is not unreasonable for the jury to conclude that he started out looking for trouble and that the intent to use the deadly weapon existed before the provocation therefor, even had the provocation been sufficient to justify the use of a deadly weapon. This ruling relates solely to the sufficiency of evidence to show intent, and does not conflict with a person’s right to defend himself against the use of a deadly weapon in the hands of his assailant.

Counsel for the plaintiff in error insists that the stick used by McFather was a weapon likely to produce death, and that therefore the defendant was justifiable in firing the pistol. This was a question of fact for the jury, and from their verdict they evidently concluded that the stick was not such a weapon, and there was ample evidence to support this conclusion.

The motion for a new trial alleges that the court erred in the following excerpts from the charge: “An assault with intent to murder is an assault with an instrument that, in the manner it was used at the time, was a weapon that is likely to kill, and under circumstances that if death had resulted from such assault it would have been murder and an assault also with the intention on the part of the assailant at the time of the assault to kill and murder the person assaulted.” “If you believe, beyond a reasonable doubt, that this defendant Lozell Thomas, in the county of Randolph, State of Georgia, at any time within four years prior to the date of the finding and return of this bill of indictment into court, did assault J. 0. McFather, the person named in the bill of indictment, in the manner charged, that is, with a pistol, and that the pistol, in the manner used at the time, was an instrument likely to kill, that it was an assault without mitigation or justification, and that it was done by the defendant at the time of the assault with the intention to unlawfully kill and murder J. 0. McFather, and that if death had resulted from such assault it would have been murder, and you believe that beyond a reasonable doubt, then in that event you would be authorized to find the defendant guilty of assault with intent to murder, as charged in the bill of indictment.” These excerpts are alleged to be error because they omitted the words “actuated with malice either express or implied.” By reference to the charge we find that the court charged the jury fully on the law of murder, and on malice, and also that “the intent to kill is a necessary ingredient of the offense of an assault with intent to murder.” Therefore the jury’s verdict was rendered in the light of these instructions as to malice and intent. Furthermore, these excerpts are not subject to the exception that they omit “the essential element of said offense, to wit, actuated with malice either express or implied.” See Killian v. State, 19 Ga. App. 750 (92 S. E. 227). The jury were instructed not only on the question of intent, but also on justification,- and passed on these questions of fact, and “the specific intent to kill unjustifiably constitutes legal malice, whether death results or not. And where an assault is made with a deadly weapon likely to produce death, with a specific intent to kill, the jury are authorized to infer the existence of malice in the assault.” Shelton v. State, 11 Ga. App. 148 (74 S. E. 846).

The motion complains also of the court’s failure to charge on circumstantial evidence. The State’s ease did not depend wholly on circumstantial evidence, and there was no request to charge on this subject; therefore the failure so to charge was not error. Nobles v. State, 127 Ga. 212 (5) (56 S. E. 125).

The next ground of the motion alleges that the plaintiff in error “should be granted -a new trial for the reason that the verdict is contrary to law and against the ■ evidence, and the evidence did not authorize the verdict,” stating the reasons. This, in substance, is a repetition of the general grounds.

The evidence authorized the verdict, no reversible error of law is shown, and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    18667.
    O’Bryant v. The State.
    Criminal Law, 16 C. J. p. 980, n. 83; p. 1180, n. 74; p. 1230, n. 65, 66, 67, 68, 69.
    Intoxicating Liquors, 33 C. J. p. 729, n. 42.
   Broyles, C. J.

1. The indictment in this case was drawn under section 22 of the act of the General Assembly approved March 28, 1917 (Ga. L. Ex. Sess. 1917, p. 18), and was not subject to any ground of the demurrer. See, in this connection, Edwards v. State, 25 Ga. App. 179 (102 S. E. 847); McRae v. State, 23 Ga. App. 13 (97 S. E. 410); Brown v. State, 28 Ga. App. 442 (111 S. E. 696).

Decided March 7, 1928.

Violating liquor law; from Whitfield superior court—Judge Pittman. November 14, 1927.

William, E. & Gordon Mann, for plaintiff in error.

John 0. Mitchell, solicitor-general, contra.

2. The failure of the court to instruct the jury upon the effect of proof of the good character of the defendant was not error, in the absence of a proper written request. Brantley v. State, 154 Ga. 80 (4) (113 S. E. 200).

3. The ground of the motion for a new trial, based upon alleged newly discovered evidence, is fatally defective, as the newly discovered evidence is that of a witness, and no affidavits as to his residence, associates, means of knowledge, character and credibility were adduced. Cartright v. State, 27 Ga. App. 258 (2) (108 S. E. 70).

4. In the light of the facts of the case, none of the other special grounds of the motion for a new trial (several of which are too incomplete to be considered) show cause for a reversal of the judgment below.

5. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Lulce, J., concurs. Bloodworth, J., absent on account of illness.


author: Broyles, 0. J.

text:
    18680.
    Crowe v. The State.
    Criminal Law, 16 C. J. p. 931, n. 95; p. 963, n. 26; p. 1050, n. 84; p. 1057, n. 24; p. 1180, n. 74; 17 O. J. p. 58, n. 17.
    Intoxicating Liquors, 33 O. J. p. 729, n. 42; p. 791, n. 41, 53.
   Broyles, 0. J.

1. The special presentment was drawn under section 22 of the act of the General Assembly approved March 28, 1917 (Ga. L. Ex. Sess. 1917, p. 18), and was not subject to any ground of the demurrer. See, in this connection, Edwards v. State, 25 Ga. App. 179 (102 S. E. 847); McRae v. State, 23 Ga. App. 13 (97 S. E. 410); Brown v. State, 28 Ga. App. 442 (111 S. E. 696); O’Bryant v. State, ante, 827. The request of counsel for the plaintiff in error that the Edwards case, supra, be reviewed and overruled is denied.

2. While it is the duty of the judge in the trial of a criminal case to state the contentions of both the State and the defendant, nevertheless, in the absence of a written request for .fuller instructions, a statement by the judge that the grand jury has returned an indictment against the defendant, charging him with a misdemeanor (the court then stating the specific charges in the indictment which was drawn under section 22 of the act of the General Assembly approved March 28, 1917, as stated in the preceding note), and that to this indictment the defendant has filed a plea of not guilty, which raises the issue for the jury to try, sufficiently presents the issue. Faison v. State, 13 Ga. App. 180 (79 S. E. 39); Byrd v. State, 28 Ga. App. 244 (2) (110 S. E. 758).

Decided March 7, 1928.

Violating liquor law; from Taliaferro superior court—Judge Perryman. December 2, 1927.

Hawes Cloud, Hugh H. Combs, Noel P. Parle, for plaintiff in error.

M. L. Pelts, solicitor-general, contra.

3. The excerpt from the charge upon the subject of the impeachment of witnesses, complained of in the motion for a new trial, when considered in the light of the charge as a whole and the facts of the case, does not require a reversal of the judgment below.

4. The evidence amply authorized a finding that the land upon which the distilling apparatus was found was in the actual possession of the defendant, and the court properly charged the latter part of section 22 of the act, supra. Nor was the failure of the court to define to the jury the term “actual possession” error, in the absence of a timely and appropriate written request.

5. Objection to evidence on the ground that it is “irrelevant and immaterial” is too general to raise any specific question of law for adjudication on exceptions to this court. See, in this connection, Martin v. State, 35 Ga. App. 575 (2-a) (134 S. E. 185), and cit.

6. The evidence for the State amply authorizéd the defendant’s conviction. The defendant introduced no evidence, but relied upon his unsworn statement to the jury, which statement they evidently rejected, as was their right. No harmful error of law appears, and the judgment refusing the grant of a new trial is

Affi/rmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.