text:
    984.
    PIEDMONT WAGON CO. v. HUDGENS & McINTOSH.
    1. Where the vendor has agreed to sell and deliver personal property at a particular date and fails to perform his contract, the vendee may recover in damages the difference between the contract price and the market value of the property at the time and place at which it should have been delivered.
    2. Profits recoverable for breach of contract are such as are the immediate fruit of the contract, independent of any collateral enterprise; and mere prospective or anticipatory profits, speculative and conjectural, are too remote and uncertain to enter into the estimate of damages to be allowed for a breach of contract.
    Complaint, from citv court of Elberton — .Judge Proffitt. November 23, 1907.
    Submitted February 5,
    Decided June 18, 1908.

      C. P. Harris, for plaintiff. Sam. L. Olive, for defendants.
   Hill, C. J.

The Piedmont Wagon Company brought suit on an open account against Hudgens & McIntosh, a partnership. The plea admitted the' account sued on, but set up a counter-claim as follows: “First: On the 7th day of February, 1907, defendants made a contract with plaintiff for the purchase of forty-five one-horse wagons, to lie delivered them at Elberton within a reasonable time. At the same time and place defendants contracted with plaintiff to become agents for the sale of one-horse wagons for plaintiff at Elberton for and during the year 1907, and that no other person was to be allowed to sell the one-horse wagons made by plaintiff in Elbert county. 'Contrary to the agreement, and in wilful disregard of defendants’ rights under said contract, the plaintiff immediately contracted with other persons to sell said one-horse wagons, and shipped said one-horse wagons to said parties for sale in Elberton, and refused to ship defendants the said forty-five one-horse wagons ordered of plaintiff by defendants.. Second: Defendants, relying on the good faith of plaintiff, and believing the3 would carry out their contract and ship defendants the one-horse wagbns ordered of them, made no other arrangements to supply their stock of one-horse wagons, until it was too late to offer the market the sale of one-horse wagons. Third: At the time defendants made said order and contract, they weré in the business of selling wagons, and made said order to furnish and supply their stock of wagons then offered and intended to be offered to the market for the spring trade for the 3rear 1907. Fourth: About six weeks after defendants made said order, the plaintiffs informed defendants that they had made a contract with other parties to sell the said one-horse wagons, and refused to ship the one-horse wagons to defendant. Had the plaintiff shipped said one-horse wagons as they had agreed to do, defendants could have sold the same at a profit of five dollars, and have disposed of all of them to .the spring trade of 1907. Defendants notified plaintiffs of this loss and insisted on the carrying out of said contract on the part of plaintiffs. '. They refused and' still refuse, to-the injury and damage of defendants in the sum aforesaid, $225.00. Wherefore defendants plead said sum as damages, and pray the same allowed against said account sued on, and judgment against plaintiff for the excess.”

The plaintiff filed a demurrer to this plea, on the ground, that “the damages sought- to be recovered by defendants and set out in their said plea are speculative, and are too remote to be recovered, such damage claimed being the amount of profits which defendants calculate they would have made upon prospective resales of the articles mentioned in said plea, it not being alleged that any such resale had been made by defendants.” The court overruled this demurrer, and the plaintiff excepted pendente lite.

We think the demurrer should have been sustained and the plea stricken. The Supreme Court has frequently held that conjectural profits are too remote and uncertain to be recoverable as damages. In this case the defendants, in the plea, endeavored to recover as damages the profits which they claim they would have realized on the sale of the wagons if the plaintiff had delivered the wagons to them according to contract. The plea did not aver that the defendants had made any resale of these wagons, and it was entirely conjectural that they would have done so during the season. Even, therefore, if there was a contract made by the plaintiff to sell and deliver the wagons to the defendants, and a breach of the contract, the damages resulting to the defendants from the breach, were purely speculative and anticipatory. Civil Code, §3798; Coweta Falls Mfg. Co. v. Rogers, 19 Ga. 417 (65 Am. D. 602); Cooper v. Young, 22 Ga. 269 (68 Am. D. 502); Red v. Augusta, 25 Ga. 390; Kenny v. Collier, 79 Ga. 746 (8 S. E. 58).

It is well settled that where a vendor has agreed to sell and deliver personal property at a, particular date and fails to perform liis contract, the vendee may recover in damages the difference between the contract price and the market value of the property at the time and place at which it should have been delivered. Chit. Con. (5th Am. ed.) 445; Masterton v. Brooklyn, 7 Hill, 61 (42 Am. Dec. 46), and cases cited. Judgment reversed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    978.
    SMALL v. LEE & BROTHERS.
    Where a builder has in good faith intended to comply with a contract and has substantially complied with it, although there may be slight defects, caused by a misconstruction of the terms of the contract, and the house as built has been received by the owner, and is reasonably suited for the purposes intended, the contractor may recover the contract price, less the damage on account of such defects. In such ease the true measure of damage is the difference between the value of the house as finished and the house as it ought to have been finished under the contract, plans, and specifications.
    Foreclosure of lien, from city court of Atlanta — Judge Calhoun. January 11, 1908.
    Argued March 11,
    Decided June 18, 1908.

      James L. Key, for plaintiff in error.

      J. W. Moore, George Gordon, contra.
   Hill, C. J.

Lee & Brothers built a house for Mrs. Small for a contract price of $1,801.10. The sum of $1,150 was paid to them on account, and this suit is brought for the balance, $651.10. The defendant admits the contract, but pleads, that the plaintiffs did not comply with its terms; that the contract, plans, and specifications called for a house with a veranda and rooms of certain dimensions, but that the house constructed by the plaintiffs contained a. veranda and rooms of smaller dimensions than were required by the plans and specifications. Her plea sets forth in parallel columns the exact difference in the veranda and rooms as constructed and as specified; and the evidence, under the defendant’s construction of the contract, sustains the plea in this respect. The defendant claims, that on account of the reduction in the size of the veranda and rooms she is entitled to an abatement of $750 in the price of constructing the house, and that to this extent there was a failure of the consideration of the contract. She also claims, that the market value of her property has been injured, on account of the reduction in the size of the rooms, to the amount of $1,000, and that she should be allowed-this sum as a set-oil, and a judgment for the excess as damages. The controversy between the parties arises on the different construction of the terms of the contract, plans, and specifications relating to the measurements of the rooms, the plaintiffs insisting that the measurements given meant outside measurements, — that is, that the measurements were from outside of walls to outside of walls,-- and that, this being true, they fully complied with the contract. The defendant contended that the measurements were inside measurements, — that is, from inside of walls to inside of walls,— and that, according to this construction, the veranda and rooms of the house wore two feet narrower and two feet shorter than they should have been, if the contract in this respect had been complied with. The jury found a verdict for a less sum than was claimed by the plaintiffs, and the foregoing issue of fact as to measurements seems to have been solved in favor of the defendant’s construction; and the learned counsel for the plaintiff in error, in his brief and argument, concedes this to be true, and that the verdict is right, if the jury was properly instructed as to the correct measure of damages. The measure of damages under the facts of the case is, therefore, the onty material question for the decision of this court.

The trial court instructed the jury that the measure of damages was “the difference in the cost of the house that the plaintiffs turned over to the defendant, and the house that was contracted to be built by the plaintiffs and turned over to the defendant.” This instruction is assigned as error, on the ground that “it restricted the consideration of the jury to the difference in the size of the house and the difference in the value of the two sizes of the house; and it excluded from the consideration of the jury a consideration of the true measure of damages,” which the defendant contended “was one of two propositions: First, the difference in the market value of the whole premises, — house, lot and all, — -between the house as contracted for and the house as built. Second, it excluded from the consideration of the jury what it would take to make the house as built conform to the house as contracted for.” We have given to this question a thorough examination, and we find that the authorities are somewhat in conflict. We have concluded that the measure of damages must necessarily vary with the facts of the particular case and be determined according to these facts. We think that when a contractor builds a house substantially different in dimensions and form, or in the materials used, from that contracted to be built, it is in no wise a compliance, even in part, with his contract; and in such case he would not be entitled to recover the contract price, unless he made the house comply with the contract. In such easp the owner would have a right to demand that the building be completed according to the contract, plans, and specifications, as a condition precedent to the payment of the contract price. But the application of this rule would be unjust and inequitable where there has been a substantial compliance by the contractor with the terms of the contract, and the house as built is practically suited to the uses intended, there being only a slight deviation in finishing the house in the mode agreed upon, and the owner receives and retains the house, and thus gets the benefit of the labor and materials of the contractor. In such case the contractor may recover the contract price less the damage on account of such defect. Twitty v. McGuire, 7 N. C. 501; Pinches v. Swedish Church, 55 Conn. 183 (10 Atl. 264); Woodward v. Fuller, 80 N. Y. 312.

Where the defects in the house as constructed may be remedied at a reasonable expense, it would be proper, we think, to deduct from the contract price the sum which it would cost to complete it according to the requirements of the plans and specifications. Blakeslee v. Holt, 42 Conn. 226. If the contractor has built a "structure substantially adapted to the purposes for which it was built, and of which the owner is in the use and enjoyment, but the defects of the structure can not be made to conform strictly to the requirements of the contract, except by an expenditure which would deprive the contractor of adequate compensation for his labor and materials, justice and equity would require the adoption of another measure of damages.

In this case the contractor did not wilfully deviate from the plans and specifications, but built a house according to his construction of the measurements the rooms required. The house was in every respect a compliance with the contract, except that it failed to make the rooms and veranda of such dimensions as the owner of the house wanted, and what she insisted she was to receive. She accepted the house and occupies it as her residence, and has thus received from the contractor a substantial benefit from his labor and materials. We do not mean to say that she has, by accepting the house, waived her right to any damage which she has incurred by reason of the contractor’s failure to comply with the plans and specifications in reference to the dimensions of the rooms; for, notwithstanding the fact that she received the house and is occupying it, she is still entitled to be in the same condition financially as she would have been had the contract been fully performed by the contractor. She has a right to a house as good as that which the contractor agreed to finish, but the assertion of her right should be in such a manner as not to deprive the contractor of a fair and just compensation for his labor and materials. Under the facts of this ease, we think that the true measure of damage, and one which would not be unjust in its application to either party, would be the difference between the value of the house as finished and the house as it ought to have been finished. To require that the house should be rebuilt, and that the contractor should pay the cost of rebuilding, or that the estimated cost of making the house conform to the contract should be allowed as damage, would be to give an unconscionable advantage to the owner, and would deprive the contractor of adequate compensation for his work and materials. The difference in the market value of the entire premises between the house as constructed and the lot, and the house as it should have been constructed and the lot, furnishes no just criterion by which the damage to the defendant could be ascertained. This rule of damages would only apply where the house had been located on a different part of the lot than it should have been according to the contract. In such case the location of the house might affect the value of the entire premises. In such case the measure of damages is not the expense of moving the house, but the difference in the value of the property with the house misplaced and the value it would have if the house was set on the lot according to the plan. Oslen v. Henderson, 113 N. Y. App. Div. 676 (99 N. Y. Supp. 917).

We therefore conclude that the measure of damages which the trial court gave the jurjr, under the facts of this case, was the true measure, — that is, the difference between the value of the work as actually done and the value which it would have had if it had been done properly in pursuance of the contract. 2 Joyce on Damages, §1389, and many decisions cited.

The other assignments of error are immaterial and without merit.

Judgment affirmed.


text:
    1003.
    SOUTHERN EXPRESS COMPANY v. NATIONAL BANK OF TIFTON.
    1. The omission to state, in the return of service of a summons of garnishment, that the agent of the corporation served was the “agent in charge of the office or business of the corporation in the county” can be cured, by an amendment made by the officer who made the service and return.
    2. A return of service of summons of garnishment can be amended by the officer who made the return, by stating his official character in making the service.
    3. “In its last analysis it is the fact of service, rather than the proof thereof by the return, which is of vital importance.” Any amendment of the return which makes it speak the truth can be made; and when so amended, it relates back to the date of service, and is to be considered the initial return.
    4. Where the return of the officer, after amendment, shows legal service, it can only be attacked by a traverse filed thereto, to which the officer making the entry is a necessary party.
    Illegality, from city court of Tifton — Judge Eve. January 16, 1908.
    Submitted March 13,
    Decided June 18, 1908.

      George E. Simpson, McDaniel, Alston & Black, for plaintiff in error. Smith & Foy, contra.
   Hill, C. J.

The National Bank of Tifton, in a suit against T. M. Mangham, had summons of garnishment issued against the Southern Express Company. The return of' service of the summons of garnishment was as follows: “I have this day served the Southern Express Company with a summons of garnishment, based upon the within affidavit and bond, by handing same to T. M. Mangham, agent of said company, at Tifton, Tift Co., Ga. This August 1, 1907. J. O. Thrasher, City Court Bailiff.” On November 11, 1907, a default judgment was rendered against the Southern Express Company, garnishee, by the city court of Tifton. On this judgment an execution was issued, and it was levied upon certain personal property; to which levy the Express Company tiled its affidavit of illegality, upon the ground that “it never had its day in court, was never served with any process or other notice of the pendency of the suit .whereon said execution issued and is based, nor did it waive service, nor did it appear in and defend said suit.” When the case was called, the court allowed, over the objection of the Southern Express Company, the following amendment to the original entry of service of the summons of garnishment purporting to have been made on that company: “Now, at this term of said court, comes J. O. Thrasher, the officer of said court who served the summons of garnishment in said case, and amends his entry of service of said summons, as follows: By inserting after the word ‘company/ in the fourth line of said entry, the following: In charge of the office of said Southern Express Company, at Tifton, said Tift County, Georgia. [Signed] J. O. Thrasher, Constable.” After this amendment was allowed, the court dismissed the illegality filed by the Southern Express Company. Error is assigned on the judgment allowing the officer to amend his entry of service in the respect stated, and on the judgment dismissing the illegality.

It is insisted by the plaintiff in error that the service of the summons of garnishment was void, (1) because it was not served by an officer who had the authority to serve it, and, therefore, the service was a nullity; (2) because the return of service was not made in the manner required by law; the officer signed the return as court bailiff, and such officer had no authority to make such a return; and (3) because the return was insufficient to justify the judgment against the garnishee, for the reason that the person upon whom the service was made was not described as an agent in charge of the office or business of the garnishee corporation, in the county of the defendant or in the district where the cause was pending, at the time of service. We think the. court did not err in allowing the officer to make the amendment of the return of service by him of the summons of garnishment, so as to make the defective return conform to the facts. Civil Code, §5116; Jones v. Bibb Brick Co., 120 Ga. 321 (48 S. E. 25). It is immaterial to decide the question made as to the authority of the city-court bailiff to serve a summons of garnishment. Bailiffs of county courts are by law authorized to serve all writs and processes issued by the court of which they are bailiffs, and we see no reason why bailiffs of the city court should not have the same authority. Civil Code, §4190. But in this case, when the entry of the return of service was amended, it appeared that .the service of the summons of garnishment had been property made upon the garnishee by a constable; and it is conceded that constables have authority to make such service. It is the fact of service, and not the return made by the officer, which gives the court jurisdiction of a party. If, therefore, when the service of the summons of garnishment was made by the officer, he was in fact a constable, and not a bailiff, or if he was both constable and bailiff, which is frequently the case, such service was valid, although he signed the return of service as having, been made by him as bailiff of the city court. The amendment which was allowed to this return not only designated the agent of the company who was served with the summons, so as to make it conform to the requirements of section 4710 of the Civil Code, but it also amended the return by designating the official character of the officer who had made such service. The entry of the return as amended showed legal process, and this entry was not traversed by the garnishee, and it must therefore be accepted as the truth.

The plaintiff in error contends that after the return had been amended, service upon the garnishee should have been considered as having been made as of that date, and that therefore the garnishee should have had the time the statute allowed in which to answer the summons; in other words, that the judgment entered against it by default should have been set aside by the court as having been improvidently entered, when there had been in fact no legal service upon the garnishee. But it is apparent that service of the summons of garnishment had in fact been made upon the garnishee at the date of the original return, and that this return was defective only in the manner cured by the amendment; and, according to the decision of the Supreme Court in the case of Jones v. Bibb Brick Co., supra, the defective return, when property amended to conform to the facts, “related back so as to make the record complete and the judgment perfect.”

We therefore conclude, that the judgment of the court in allowing the amendment to be made to the return, in order that it might state the truth, was right, and that, after such amendment had been allowed, the return as amended could not have been attacked by the garnishee, except by traversing the truth of such entry and making the officer a party. This not having been done, the judgment dismissing the affidavit of illegality necessarily followed. Judgment affirmed.


author: Powell, J.

text:
    1023.
    REALTY COMPANY v. ELLIS.
    1. Where one party in the trial of a case asserts and urges upon the court a legal conclusion affecting a material portion of the ease, and the opposite party, without awaiting a ruling of the court, acquiesces in the proposition maintained, by his adversary, and gives his case affirmative direction consistent with this asserted view, the action of the court in allowing this to be done affords no cause of exception to the party asserting the legal conclusion, whether the position so asserted and urged was correct or not.
    2. That a plaintiff has brought his action prematurely is a defense not going to the merits of the plaintiff’s demand, and is dilatory only. It must be raised at the first term by plea, unless the fact appears on the face of the pleadings, when it may be raised by a specific demurrer.
    3. An agent or servant who has been wrongfully discharged may sue for a breach of the contract of employment without waiting till the end of the time within which he was to perform the contract; and all relevant facts transpiring between the discharge and the trial may be shown and considered in estimating damages.
    4. In an action for wrongful discharge from employment, the measure of damage is the full loss sustained by the person discharged by reason of the breach of the contract existing between the parties. A diminution is to be allowed, however, for any profit which the discharged person made or by reasonable diligence might have made by reason of his being relieved from the duties of the employment. The burden of proving that such a profit was made or by reasonable diligence could have been made is upon the party committing the wrongful discharge.
    5. Alleged errors in rulings upon subsidiary propositions are wholly immaterial and will not be considered, when there has been an errorless and authorized finding of the jury against the main proposition upon the existence of which the subsidiary propositions are necessarily dependent.
    6. It is not reversible error, under section 4334 of the Civil Code, for the judge, in discussing with counsel the admissibility of testimony, the propriety of a nonsuit, the direction of a verdict, or similar matters in the progress of the trial, or in explaining his rulings upon questions of this nature, to refer to the evidence or to the statements of witnesses, provided he does not go out of the line of legitimate discussion upon the point presented or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony.
    7. No reversible error appears in the record.
    Complaint, from city court of Macon — Judge Hodges. January 25, 1908.
    Argued April 23,
    Decided June 18, 1908.

      Nottingham & Cabaniss, for plaintiff in error.

      Roland Ellis, contra.
   Powell, J.

To state the case without going into any great particularization: Ellis was an architect. Sparks and his associates desired to build certain apartment houses, using in part the materials from an existing structure. Ellis agreed with them to draw the plans and specifications and to supervise the work for the usual percentage, to be based upon the total cost of the work, including a reasonable allowance for old materials. Afterwards Sparks and his associates caused the defendant corporation to be created, and, according to the answer filed in the suit, it assumed the contract with Ellis. It was contemplated originally that the work should be let to contractors; but the defendant finally decided to undertake to do the building through foremen and day-laborers. This proved to be unduly expensive. After a large portion of the work had been done, the defendant discharged Ellis, relieving him from further supervision, but retaining his plans and specifications. Ellis sued, alleging an indebtedness of $4,000, according to a bill of particulars in the following form: “To plans and specifications Apartment House, Lanier Place, 5% of cost of building ($90,000), $4,500; credit by cash on account, $500; balance due, $4,000.” The defendant pleaded, as its excuse for discharging Ellis, that, as a part of his contract of employment, he was to make and did make an estimate of the cost of the buildings; that upon the faith of this estimate the defendant embarked upon the enterprise; that as the work progressed it was found that the cost would grossly exceed and did greatly exceed the estimate given; and that for this they were entitled to discharge him. Ellis made the contention, and supported it by proof, that he had no agreement to make any estimate; that the estimates on which defendant acted were purely bids of contractors, with which he had no further connection than to receive them and to submit them to the officers of the defendant company. Further facts necessary to an understanding of the case will be stated in the opinion. The jury gave the plaintiff a verdict for the full amount claimed.

At the conclusion of the plaintiff’s testimony the defendant moved for a nonsuit, on the ground that the plaintiff had established by his proof an entire contract by which he was not only to draw plans and specifications but also to supervise the building; that the suit was for plans and specifications only; therefore the plaintiff had not proved his case as laid. To avoid the effect of this motion the plaintiff offered an amendment to his statement of the cause of action, by adding after the words “plans and specifications” the words “and supervision.” The defendant objected to this amendment, on the ground that it added a new and distinct cause of action. The court allowed it and the defendant preserved exceptions.

The petition does not disclose its exact nature; whether it is upon contract or upon account for services rendered. The defendant, in the motion for nonsuit, assumed and urged the legal proposition that the action was based upon the contract itself as an entirety; and the plaintiff, by amending without awaiting the ruling of the court, acquiesced in this interpretation. Even if the defendant’s point as to this were not well taken, when the defendant proposed to give the case this factitious status and the opposite party acquiesced and acted, it would not thereafter lie in the defendant’s mouth to disclaim it. If the plaintiff’s case rested on. an entire contract, and this was the cause of action on which he sued, but, in declaring his case originally, he omitted to state it with that fullness requisite to show the whole contract and the breach, as it was or as his proof showed it to be, surely to insert the omitted details by amendment would not be to add a new and distinct cause of action, but, per contra, would be merely to amplify an abbreviated statement of the same cause of action. That this is permissible will hardly be questioned. Unless the defendant’s point were well taken that the plaintiff’s suit was based on an entire contract, only a part of which was alleged, the motion for nonsuit would have been wholly without merit, for- there was proof as to the value of the services of the plaintiff in the drawing of the plans and specifications, apart from the work of supervision. It is hardly necessary to say that the plaintiff may avoid nonsuit on the ground of variance, by making a permissible amendment to the pleadings. Seaboard Air-Line Railway v. Fenn, 120 Ga. 664 (48 S. E. 141); Rice v. Ware, 3 Ga. App. 573 (60 S. E. 301).

One of the contentions of the defendant is that at the time the suit was brought the buildings had not been completed, and that under the contract the sums sued for were not to be due until after the work was finished. There was some dispute in the evidence as to this question, but we do not think it is in the case at all; for the defendant joined issue on the merits without pleading that the suit was prematurely brought. Such a defense does not go to the merits of the plaintiffs case, and should be asserted at the first term by a demurrer or a proper plea. Horne v. Rodgers, 103 Ga. 649 (30 S. E. 562); Goodrich v. Atlanta Association, 96 Ga. 803 (22 S. E. 585). Further, the plaintiff, when the defendant wrongfully discharged him, had the right to sue at once and to prove, and to recover for, all damages which may have accrued up to the date of the trial. Roberts v. Rigden, 81 Ga. 440 (7 S. E. 742).

The defendant also complains that the jury gave the plaintiff a verdict for commissions on the total cost of the buildings, though a considerable portion of the work was done after the plaintiffs discharge and, therefore, without his supervision. In such an action the measure of damages is the full loss sustained by the discharged agent by reason of the breach of the contract. It is subject, however, to diminution by any amount which the proof shows the agent profited, or in the exercise of reasonable diligence should have profited, by reason of his release from the performance of the services. Civil Code, §3017. The burden of proving that the discharged agent did profit or by ordinary diligence could have profited himself by reason of his release from the employment is upon the opposite party. Roberts v. Crowley, 81 Ga. 429, 439 (7 S. E. 740). In the case at bar there was no evidence of any facts warranting a diminution of the damages Ellis sustained by reason of the wrongful discharge.

The defendant pleaded, that the discharge of Ellis. was warranted by reason of the unskilful estimates which, it is claimed, he made as a part of the contract, and that he was not entitled to recover in the suit; it further pleaded, as a recoupment, that certain enumerated damages had ensued to it as a result of this unskilful advice, and prayed judgment against the plaintiff for that sum. The court charged the jury that if Ellis agreed to make estimates and made the unreasonably small estimates alleged, and furnished them to the defendant, he could not recover; he also submitted to them the question of damages under the plea of recoupment. The jury found for the plaintiff. This finding necessarily means that the plaintiff did not furnish the alleged unskilful estimates; for, under the instruction of the court, the verdict, in the absence of such a finding, would have been for the defendant generally or in a stated sum. Several of the defendant’s grounds of error relate to rulings upon matters involved solely in these pleas of recoupment. The finding of fact, necessarily asserted by the verdict, rendered these alleged errors immaterial; for, the question being determined that Ellis did not furnish unskilful estimates, the possibility of any legitimate inquiry into the matters of recoupment is precluded.

Complaint is made that the judge, during the progress of the trial, stated that certain witnesses had testified to certain facts. When such expressions are erroneous within the purview of the Civil Code, §4334, and when not, has been clearly pointed out in Sharpton's case, 1 Ga. App. 542 (57 S. E. 929). See also F. C. & P. R. Co. v. Lucas, 110 Ga. 121 (35 S. E. 283); Brown v. State, 119 Ga. 572 (46 S. E. 833); Central R. Co. v. Harper, 124 Ga. 836 (4), (53 S. E. 391); Raven v. State, 125 Ga. 58 (53 S. E. 816). The exceptions in this record do not show any erroneous abuse of the privilege of the trial judge as to making reference to the testimony in stating his rulings on matters arising in the progress of the trial.

The defendant raises the point that the verdict is excessive because the jury based it on the total cost of the building. It is said that it is admitted that through bad management (not claimed to be due to any fault of the plaintiff, however) the building cost $15,000 to $20,000 more than it reasonably should have cost; and it is insisted that the plaintiff should not be allowed a commission on the defendant’s “foolish and extravagant outlay of money.” There is no merit in this point. The defendant chose to erect the building at its own responsibility. The plaintiff’s compensation was to be based on the total cost. If by this plan and unusually good management, or other fortunate combination of circumstances, the usual cost had been greatly lessened, the plaintiff would, have suffered a consequent diminution in the amount to be received by him; it is therefore just that he should claim the benefit of the increased cost when things turned out differently. There are many other assignments of error. We have examined all of them; but find in none of them any sufficient reason for reversing the judgment. Judgment affirmed.


text:
    1029.
    ATLANTA BAGGAGE AND CAB CO. v. MIZO.
    1. A baggage company, engaged, in the business of hauling for hire trunks, and other baggage of the traveling public, received from a passenger a railroad-cheek for a trunk, for which cheek it issued to her a receipt, containing the number of the check, the baggage company agreeing with her to get the trunk that was called for by the check and deliver it to. her as directed: Held: (a) The baggage company was under a legal obligation to deliver the trunk as directed, or return the railroad-check to the passenger. (b) The failure to do either, in the absence of a legal excuse, rendered the baggage company liable to the passenger for the market value of the trunk and its contents.
    2. While the measure of damages is tile market value of the property when lost, any evidence of value, including the purchase-price of the property, is admissible for the purpose of enabling the jury to find the market value.
    3. The assignments of error are without merit, and the verdict is fully Supported by the evidence.
    Action for damages, from city court of Atlanta — Judge Calhoun. February 21, 1908.
    Argued April 22,
    Decided June 18, 1908.

      Dorsey, Brewster, Howell & Heyman, Herbert J. Haas, for plaintiff in error. Ben. J. Conyers, Walter T. Colquitt, contra.
   Hill, C. J.

The Atlanta Baggage and Cab Company is a corporation engaged in the business of hauling, for hire, trunks and other baggage for the traveling public, to and from the trains of the railroad companies entering the city of Atlanta. To facilitate its business, its representatives board the incoming passenger-trains for the purpose of soliciting the trunks and baggage of the passengers and receiving from the passengers their railroad baggage-checks. When it receives the railroad-checks from the passengers, the baggage company makes out and delivers to the passengers its receipt for the checks. The railroad-checks are then presented by the baggage company to the railroad company, and it receives from the railroad company the trunks or baggage called for by the checks, for the purpose of delivery as directed by the passengers. On October 5, 1906, the plaintiff in the court below was a passenger on an incoming train of the Southern Railway Company. An agent of the baggage company solicited and received from her on the train four railroad baggage-checks, for her four trunks, and gave to her, for these checks, the receipts of the baggage company, which contained the numbers of the checks. At the same time, she directed the baggage company to deliver the trunks to her at the Ballard House, in the city of Atlanta. Three of her trunks were delivered, but the fourth trunk was not delivered to her. She made demand on the baggage company for the missing trunk, and, the company failing to deliver it to her or to return to her the railroad-check for it, she brought suit against the baggage company for the value of the trunk and its contents. The jury returned a verdict in her favor, for $500, and the defendant’s motion for a new trial was overruled.

The verdict in this case on the question of liability was demanded by the uncontroverted facts. The plaintiff in error admitted, that it was a common carrier of baggage; that as such it had received from the defendant, who was a passenger on an incoming train, four railroad-checks issued by the railroad company to her for four trunks; that for these four checks it had delivered a receipt containing the number of each check; that it agreed with the passenger, for a consideration, to deliver the trunks represented by the checks to her address in the city of Atlanta; that it had not delivered one of the trunks, and had not returned to the passenger the check for this trunk; and on the trial it made no explanation of its failure to perform its obligation or of its failure to produce the check. From these facts liability resulted as the only legal and logical conclusion.

The question as to whether the delivery of the checks by the passenger to the baggage company constituted constructive delivery of the trunks was not at all material to the issue presented by the evidence. The issue was as to the actual receipt by the baggage company of the trunk represented by the railroad-check. The possession of this cheek by the passenger was prima facie evidence that the railroad company had the trunk of which the check was a symbol or token. When this check was delivered by the passenger to the baggage company, under a contract with the company to get the trunk from the railroad company and deliver it to the passengers address, and the baggage company did not deliver the trunk, and did not return to the passenger the check, issued by the railroad company so that the passenger might have in her possession this evidence of the receipt of her trunk by the railroad company, in the absence of any explanation by the baggage company of its failure to deliver the trunk or to return the check, liability was clearly established, and so established regardless of whether the delivery by the passenger of the check to the baggage, company constituted constructive delivery of the trunk or not. The learned trial judge very properly refused to complicate the simplicity of this issue by giving in charge to the jury the written requests on the question o f constructive delivery. -He fully covered the issue as to liability in the following instruction:- “The burden is on the plaintiff to show that the Atlanta Baggage and Cab Company received those trunks; and if you believe, from the evidence in the case, that this company did receive them, and did not deliver them at the Ballard House to the plaintiff in this case, then the company is liable. If you believe from the evidence, that the Baggage and Cab Company never received those four trunks, or one of those four trunks, then the company would not be liable to this plaintiff. Now, whether this company received those trunks is a question that you have got to determine from this evidence. You look to the facts, you look to the circumstances which surround the case, and from all the facts and circumstances pass upon this question as to whether this company' did receive that trunk or not; and if you believe, froni the facts and from the circumstances which surround it, that this company did receive it, you find for the plaintiff and against the defendant.”

In our opinion this charge was more favorable to the baggage company than it was entitled to have given, under the facts in evidence. We do not think that the burden was on the plaintiff to prove that the missing trunk was actually received by the defendant. We think that when she showed that she had delivered her railroad-cheek for the trunk to the baggage company under a contract, express or implied, that the company would get the trunk from the railroad and deliver it to her at the Ballard House, and showed that the trunk had not been delivered and the check for the trunk had not been returned, a prima facie case of liability was made but, and the burden was then cast upon the defendant to show that it either had not received the trunk from the railroad company, or that, if it had received it, it had been prevented in some legal manner from delivering it according to the contract. Nor do we think it at all material to decide whether the baggage company is liable as a connecting carrier. It is simply liable as a common carrier because as such it took the passenger’s check, under a contract to get the trunk and deliver it to her address, and failed to perform its contract or to return the check, and made no explanation, either of its failure to perform the contract or of its failure to produce or return the check. Any other rule than the one here announced would relieve transfer or baggage companies, from all responsibility for baggage received by them, and would either impose upon passengers great inconvenience or subject them to the danger of losing their baggage without remedy. While a passenger can, under some circumstances, hold the railroad company liable for lost baggage without the production of the railroad-check, we think he can not do so where it is shown that he delivered the railroad-check for the lost baggage to a baggage company, and the check is not-otherwise accounted for.

The case of Aiken v. Wescott, 123 N. Y. 363 (25 N. E. 503), relied upon by the plaintiff in error, is not adverse to the principle here decided. In that case the passenger was on his way from Detroit to New York City, and stopped over for a day in Buffalo. His trunk went on to New York City. An agent of the baggage company received from the passenger his check for the trunk. The evidence showed that immediately this agent went to the baggage-car and made a search for the trunk and found that it was not there, and so informed the passenger, and was told by him that the trunk had preceded him to New York. On arrival at New York the agent of the baggage company went to the baggage-room and made a thorough and unsuccessful search for the trunk. The evidence further showed that the trunk in question had never been in the possession of the baggage company, but, on the contrary, had been stolen from the railroad company; and the court, under these facts, very properly held that the baggage company was not liable, because it was shown that the trunk had never been in its possession. In the instant case, if the Baggage and Cab Company had shown, as matter of defense, that it had never received the trunk represented by the check, but that the trunk had been taken from the possession of the railroad company, and it had so reported to the passenger and returned her check, in order that she might thereby hold the railroad company liable, the facts would have been similar to those of the New York case, and there would, of course, have been no liability on the part of the defendant in this case. We think the whole question can be summed up in the statement that a common carrier of baggage who receives a check from a passenger, under a contract to deliver to the passenger, for a consideration, the trunk represented by the check, is under a clear legal obligation either to deliver the trunk or to return the cheek, and a failure to do either, in the absence of any legal excuse therefor, renders the common carrier liable in damages for the value of the trunk and its contents. The doctrine herein laid down is so manifestly just as hardly to require the support of authority; but the case of Ahlbeck v. St. Paul, M. & M. Railway Co., 39 Minn. 424 (40 N. W. 364, 12 Am. St. Rep. 661), is very much in point. In that case the court holds, that “The possession of a baggage-check by a railway passenger is prima facie evidence that the carrier has received and is in possession of his personal baggage; and where he delivers such check to the agent of a connecting railroad company, and receives its check in exchange therefor, the presumption is, in the absence of proof to the contrary, that the baggage was received in due course by the latter company, and it is responsible therefor.”

Besides the uncontroverted facts which we think sufficient to establish liability in this case, it may be stated that the plaintiff proved by her own testimony and one other witness an admission of the defendant’s manager that the trunk had in fact been received by the baggage company, and also showed an advertisement by the baggage company reciting that the trunk had been stolen from its possession, and offering a reward for its return.

The court did not err in admitting evidence as to the cost of the articles contained in the trunk. While the measure of damages was the market value of such articles when they were lost, yet it is well settled that proof of the cost of the articles is legitimate evidence, to be considered in determining the market value. Atlantic Coast Line R. Co. v. Harris, 1 Ga. App. 667 (57 S. E. 1030); Mayor of Macon v. Daley, 2 Ga. App. 355 (58 S. E. 540) ; Southern Ry. Co. v. Williams, 113 Ga. 335 (38 S. E. 744). The court, in the following charge, clearly instructed the jury on the subject of the damages which could be recovered: “The measure of damages is what is the market value of those goods at the time they were lost. You look to the evidence in the case. The court allowed the evidence of what the value was when bought, but that is not the measure of damages. The court only allowed that so as to enable you to see if that would enable you, or rather to assist you, in determining what they were worth.when they were lost; and, in passing upon that, you have got to take into consideration how long they were in the possession of the plaintiff, the wear and tear that would come to them, and all the facts and circumstances which surround it, in passing upon the value of those articles. And then, after you do that, try to reach an honest, fair valuation of it, and give to the plaintiff such damages, such valuation to those goods, as you think under the evidence she is entitled to recover.” The assignments of error on this charge are without merit. Neither do we think the court erred in failing to define to the jury the meaning of the words “market value.” These words have a plain, definite, and well-understood meaning, as intelligible to the jury as to the court, and an attempt by the court to make them clearer by definition would tend to confuse, rather than to enlighten.

There are many other assignments of error, and we have carefully considered each one of them. Our conclusion is that they are less meritorious than the ones specifically considered and decided. The value of the trunk and its contents was exclusively a question for the determination of the jury, and the verdict of $500 is fully supported by the evidence. Judgment affirmed.


text:
    1032.
    SOUTHERN CAR-WHEEL IRON COMPANY v. POWERS.
    A was sued on a written guaranty to pay the debt of B to O. The proof showed that B did not owe the debt to C, but that D owed C the debt. Held, the variance was fatal, and a nonsuit should have been awarded.

      Appeal, from Haralson superior court — Judge Edwards. January 6, 1908. .
    Submitted April 22,
    Decided June 18, 1908.

      J. M. & H. J. McBride, for plaintiff in error.

      Beall & Adamson, contra.
   Hill, C. J.

Powers brought suit in a justice’s court on the following written guaranty: “Mr. Henry Powers, Rome, Ga. Dear Sir: Allen Young Company, Cartersville, September 36th, 1906. $100.00. We are requested by the above-mentioned people to credit and pay you $100.00. We accordingly now guarantee you the amount for their account and shall be glad to remit it to yon in the near future. Yours respectfully, Southern Car-Wheel Iron Company, by Ralph H. Brown, Sec. & Treas.” By consent the case was appealed to the superior court. The defendant filed a plea of the general issue. On the trial the plaintiff introduced the guaranty sued on, and testified: “Mr. Allen Young owed me $100, and I got after him pretty hot about it, and, in a few clays after that, defendant sent me this guaranty, which was satisfactory to me. I released the Allen Young Company. Young owed me this $100 on account of my indorsement on a note.” This was all the evidence for the plaintiff; and the defendant moved the court to grant a nonsuit. This motion was overruled, and the court directed a verdict in favor of the plaintiff; and the defendant’s motion for a new trial was overruled.

The nonsuit should have been granted. There was a material and fatal variance between the written guaranty and the evidence of the plaintiff. The guaranty was a promise to pay the debt of the Allen Young Company as principal debtor of the guarantee, and the guarantee testified that Allen Young, as an individual, owed him the debt, the payment of which was guaranteed by the defendant. It does not appear upon what consideration the guaranty was based. It is true the plaintiff testified that he accepted the guaranty and released the Allen Young Company. But as he, in the same connection, testified that the Allen Young Company was not his debtor, his release from payment of a debt which did not exist was no consideration for the guaranty. An agreement by a creditor to extend the time of payment of a debt, or release the principal debtor, is a sufficient consideration for a guaranty of payment by a third person. But when the person named in the guaranty as principal debtor of the creditor is not his debtor, it is difficult to understand how the release of such person can be any consideration for the contract of guaranty. The contract in this case is an absolute promise to pay the debt of the person named as principal debtor. There must exist a principal debtor, and the principal debtor must be the one whose debt is guaranteed. If the guarantor is compelled to pay the debt, he has a right of action over against the principal debtor. In this case the debt guaranteed was that of the Allen Young Company as principal debtor. If the guarantor paid the debt of Allen Young, this would not give it the right to demand repayment from the Allen Young Company, and it would have no right of action against the latter. 14 Am. & Eng. Enc. of Law (2d ed.), 1161.

The defendant was called upon to pay its guaranty of a debt of the Allen Young Company to the plaintiff as principal debtor. The proof submitted by the plaintiff showed that the Allen Young Company was not his debtor, and that the debt guaranteed was that of Allen Young individually. The case sued on and the case made by the proof were distinct, and the nonsuit should have been awarded. Commercial Bank v. Tucker, 94 Ga. 289 (21 S. E. 507).

Judgment reversed.


text:
    1039, 1040, 1041.
    Swindell & Company v. Bainbridge State Bank.
   Hill, C. J.

1. The Bainbridge State Bank brought three suits in the city-court of Bainbridge, against E. Swindell & Company, on notes. Demurrers to the pleas were sustained, and judgments were thereupon rendered in favor of the bank. Swindell & Company sued out writs of error to this court, and this court, without condition or direction, affirmed the judgments of the lower court (3 Ga. App. 364 (60 S. E. 13)). When a motion was made in the Ibwer court to make the remittiturs from this court t’he judgments of that court, Swindell & Company offered to amend the pleas which had been stricken on demurrer, and asked that the judgments of the city court be opened for the purpose of allowing the amendment to be filed. The court below refused to open the judgments and allow the amendment, and the writs of error in the present cases challenge the correctness of this ruling. Held, no error. The decision of this court, affirming the judgments of the court below, ended the cases. Augusta Ry. Co. v. Andrews, 92 Ga. 706 (19 S. E. 713); Cen tral R. Co. v. Patterson, 87 Ga. 646 (13 S. E. 525) ; Savannah Ry. Co. v. Cheney, 102 Ga. 814 (30 S. E. 437) ; Cooper v. Portner Brewing Co., 113 Ga. 3 (38 S. E. 347).

Motion to amend, etc., from city court of Bainbridge — Judge Harrell. January 29, 1908.

Submitted April 22,

Decided June 18, 1908.

Bower & Bower, R. G. Hartsfield, for plaintiffs in error.

Russell & Hawes, contra.

2. The decisions relied upon by the plaintiffs in error, as giving the right of amendment when the remittitur reaches the court below and before it has been made the judgment of that court, relate to eases where the effect of the judgment under review is not a final disposition of the ease, and that result will not be reached until the remittitur has been made the judgment of the court below. Cooper v. Portner Brewing Co., supra; Augusta Ry. Co. v. Andrews, supra; Tift v. Goode, 47 Ga. 507; Pritchett v. Commissioners of Bartow County, 93 Ga. 736 (19 S. E. 896).

3. It manifestly appearing from the Tecord that the writs of error in these cases were sued out for delay only, the judgments are affirmed, with ten per cent, damages against the plaintiffs in error on the judgments rendered in the court below. Judgment affvrmed, with damages.


text:
    1047.
    Kennedy v. Rumble et al.

    Practice. Motion to dismiss the writ of error.
    Argued April 22,
    Decided June 18, 1908.

      O. T. Lester, C. J. Lester, Persons & Persons, for plaintiff in error. B. H. Manry, Bloodworth & Bloodworth, contra.
   Hill, C. J.

Where a case is submitted to the decision of the trial judge on the law and the facts, and the bill of exceptions sets out the evidence and the judgment, and assigns error as follows: “To which ruling and order the plaintiff excepted, now excepts, and assigns the same as error,” the assignment of error, according to repeated rulings of, the Supreme Court, is too general, and presents no question for consideration. The assignment should have stated whether the judgment complained of was contrary to law or contrary to evidence, or contrary to both. Civil Code, § 5584; Carter v. Jackson, 115 Ga. 679 (42 S. E. 46) ; Kimball v. Williams, 108 Ga. 812 (33 S. E. 994); Wheeler v. Worley, 110 Ga. 513 (35 S. E. 639) Collins v. Carr, 111 Ga. 867 (36 S. E. 959), and eases cited. Writ of error dismissed.


text:
    1058.
    TRIGG v. WESTERN UNION TELEGRAPH CO.
    The allegations of the petition showed that the plaintiff could have avoided the consequences of the defendant’s negligence, by the exercise of ordinary care, and that the proximate cause of her injuries was her own negligence. The petition is sustainable for nominal damages only.
    Action for damages, from city court of Floyd county — Judge Hamilton. February 27, 1908.
    Argued April 22,
    Decided June 18, 1908.

      M. B. Eubanks, W. B. Mebane, for plaintiff.

      McHenry & Porter, George H. Fearons, for defendant.
   Hill, C. J.

The plaintiff in error brought suit to recover damages, against the Western Union Telegraph Company. The allegations of the petition, briefly stated, are as follows: On May 25, 1907, she was at West Point, Ga., and there delivered to the telegraph company the following message: “West Point, Ga., May 25th, 1907. Mr. Joe Trigg, 116 Avenue A, Lindale, Ga. Meet train tomorrow. Will come home. Your wife, Annie Trigg.” This telegram was delivered to and accepted by the telegraph company at West Point on the morning of May 25, 1907, but was not received by petitioner’s husband until the afternoon of May 26, and not until petitioner had already gotten to Lindale and reached her husband. She left West Point on the morning of May 26, 1907, thinking that in response to her telegram her husband would meet her as requested. When she left West Point and when she arrived at Lindale, and for some time prior thereto, she was in a delicate state of health; that is, she was then in a developed state of pregnancy. She reached Lindale on the 10 o’clock train on the morning of May 26, and was not met by her husband, because the message was not delivered to him. She was a stranger at Lindale, not having been there before. As a result of her husband not meeting her at Lindale, she was compelled to ramble around over the town until she finally located him. As a result of the failure of the company to deliver the telegram as it should have done, and because she was thus compelled to go around over town looking for her husband, she was, on May 26, taken ill and compelled to take her bed, where she is now and will continue to remain for a long time to come; and she suffers great pain now and will continue to suffer; all of which was caused by the failure of the company to deliver her message in a reasonable time, as it should have done. By an amendment she alleges, that the message should have been delivered in an hour from the time it was received by the company, and that it was delayed twenty-four hours, which delay was occasioned by the negligence of the company in failing to transmit and deliver the message. She alleges, that she was without fault, and exercised all ordinary care to find her husband at the place where he resided, and if the telegram had been delivered to her husband, he would have been at the train to meet her. The defendant demurred to this petition, because no cause of action was set forth, and because the allegations of the second paragraph of the petition showed that the petitioner well knew the street and number of the residence of her husband, and was bound to use ordinary care and caution, and because there is no allegation that she went to or inquired at the residence, or that any inquiry was made at the depot or elsewhere as to the street and number of her husband’s residence, whereby her husband could have been found; nor is there any reason assigned for a failure to do so on her part; and any illness she may have suffered after she arrived at Lindale was produced by want of proper care, and on account of her own conduct. Other grounds of the demurrer were met by amendment or were not insisted upon in this court. The court sustained the demurrer and dismissed the petition and this judgment is assigned as error.

Conceding that the failure to deliver the telegram was a negligent breach of the company’s duty, yet the existence of such negligence was known to the plaintiff when she reached Lindale, for she had a right to assume that her husband did not receive her telegram, as he did not meet her at the depot as she had requested. It was her duty then to exercise ordinary care to prevent any consequences or injury to herself caused by the defendant’s negligence. She was not in the exercise of such care when in her condition of health she rambled around over town in the effort to locate her husband. It was decidedly a non sequitur from the negligence of the defendant that she was thus compelled to ramble over the town and to jeopardize her health. According to her own telegram, she knew where her husband lived in the town, and, on inquiry, could doubtless have found the street and number of his residence. The general statement or conclusion on her part, that she exercised all ordinary care to find and locate him and the place where he resided, was not sufficient. She should have made definite allegations showing that in a city where she knew the number and street of her husband’s residence, she could not, with reasonable diligence, have been directed to it, instead of rambling around the town in an effort to locate him.

The failure to deliver the telegram to her husband was not the proximate cause of her injury. The act of rambling around town in an effort to locate her husband, according to her allegation, was the cause of her injury. This act was due to her own negligence and was in no sense a reasonable, natural, or probable consequence of the failure to deliver her telegram to her husband by the company, and of his failure to meet her at the depot. “In determining what is proximate cause the true rule is, that the injury must be the natural and probable consequence of the .negligence, such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” Southern Ry. Co. v. Webb, 116 Ga. 156 (42 S. E. 395, 59 L. R. A. 109). The natural and probable consequence flowing from the negligence of the defendant in failing to deliver the telegram was that the plaintiff, who knew where her husband lived, could have readily found by inquiry the street and number which she knew, or could, in the town and at the depot, have secured a conveyance of some description and gone to her husband’s address. Her negligent act in rambling around the town in an effort to locate her husband certainly could not have been foreseen or anticipated by the telegraph company as resulting from its negligent delay in delivering the telegram. The only reasonable conclusion to be drawn from the allegations of the petition is that the plaintiff’s injuries were caused entirely by her own negligence. Under the authority of Glenn v. Western Union Tel. Co., 1 Ga. App. 821 (58 S. E. 83), the plaintiff could recover nominal damages. For this reason the court erred in dismissing the petition. Judgment reversed.


author: Per Curiam.

text:
    1064.
    McNELIS v. THE STATE.
    1. A plaintiff in error possesses no unqualified right to withdraw his writ of error after argument or submission. Whether such a ease may be withdrawn is a question which addresses itself to the sound discretion of the court.
    2. Although, in a case brought to this court, certain questions have been certified to the Supreme Court, jurisdiction to allow a withdrawal remains in this court. Such power will be exercised, however, with due regard to the fact that the discretion of allowing a withdrawal must be controlled, in part at least, by what has taken place in that court.
    Practice. Motion to withdraw the writ of error.
    Argued March 31,
    Decided June 18, 1908.

      Salem Dutcher, William K. Miller, for plaintiff in error.

      John C. Hart, attorney-general, James C. C. Black, Jr., solicitor, contra.
   Per Curiam.

This case was submitted to the Court of Appeals, and the assignments of error being based on constitutional grounds, all the questions made in the record were certified to the Supreme Court for decision. In that court, after these questions had been argued and were pending there for decision, the plaintiff in error filed in this court a motion to withdraw the writ of error; The solicitor of the city court of Richmond county, where the case originated, and the attorney-general, who, by special designation of the Governor, also appeared for the State, opposed the motion, and urged, that the Court of Appeals was without power to entertain the motion at that stage of the proceeding; also, that, if this court had this power, it would be an abuse of discretion to allow the withdrawal of the writ of error. Acting upon this motion this court rendered the following opinion and order which was transmitted to the Supreme Court: "The majority of the judges are of the opinion that this court has full and exclusive jurisdiction to entertain the motion, notwithstanding the pendency of the certified questions in the Supreme Court. Unanimously we are of the opinion that if we have the right to entertain the motion and in the exercise of that right should grant it, the effect would be to end the case root and branch, and to divest the Supreme Court of all power further to consider or decide the questions which have been certified to it. The withdrawal of a writ of error after argument is a matter resting in the discretion of the court; the power to withdraw does not exist as a matter of right. Green v. Southern Express Co., 41 Ga. 516; Cherry v. Ware, 63 Ga. 290; Bank of the State of Georgia v. Citizens Bank, 66 Ga. 752; Glenn v. Botts, 79 Ga. 212 (9 S. E. 425). Ordinarily where both parties consent to a withdrawal not altogether untimely, it will be allowed as a matter of course. In other cases the court must exercise a sound discretion dependent largely upon what progress the case has made, the nature of the cause, and other similar considerations. In the case of Green v. Southern Express Co., supra, the fact that the court had prepared and was about to deliver its opinion on an important question was considered a sufficient reason for refusing a request to withdraw. In the present case there are no questions to be decided by this court; all have been certified to the Supreme Court. The Justices of that court, and not the Judges of this court, are immediately informed as to the progress that has been made towards the decision of the questions, and are better informed than we are as to the very nature of the questions themselves. We think, therefore, that it would be an act of impropriety for us to allow the writ of error withdrawn, thereby divesting that court of jurisdiction to decide the questions over which they have been called to deliberate, without being informed by that court that there is no reason why the case should not be withdrawn. It is therefore ordered that a copy of this opinion be certified to the Supreme Court, with the request that they inform this court whether there is any reason why we should not allow the writ of error to be withdrawn. If any such reason exists, we will refuse to pass any final order upon the motion until after their decision upon the certified questions shall have been rendered; otherwise that court may return to this court the questions certified, together with the transcript of the record which has been transmitted to them in the case.”

Judge Powell separately expressed his views as follows: "Being of the opinion that this court is without jurisdiction to render any final judgment in a case in which we have certified constitutional questions to the Supreme Court, while these questions are pending there for decision, and that a judgment allowing a withdrawal is a final judgment, I am forced to dissent from the preliminary proposition involved in the foregoing opinion and order. I concur in the remainder of the court's action.”

Thereupon the Supreme Court passed the following opinion and order (after reciting the fact of the receipt of the foregoing order of the Court of Appeals) : "Held: (1) That, under the above-stated facts, the certified questions and all other parts of the record in said case be returned to the Court of Appeals, in conformity to the request contained in said order. (2) Under the facts above stated, the question as to whether or not plaintiff in error shall be permitted to withdraw the writ of error is a matter for decision by the Court of Appeals, after such record shall have reached said court from this court in accordance with the order of transmission herein granted. (3) Tn the event that the Court of Appeals does not permit the writ of error to be withdrawn, said court may return such certified questions and other parts of the record to this court, in order that such certified questions as may be necessary for a determination of the case by that court may be decided by this court. If that court allows the writ of error to be withdrawn, no such return will be necessary.”

Since the only act of this court in the nature of a request for a return of the questions, was the suggestion, contained in our order and opinion recited above, that the Supreme Court might return the certified questions if there was no reason existing within the knowledge and discretion of that court why the case should not be withdrawn, their returning of the questions carries with it the necessary implication that no reason exists within the knowledge or discretion of that court why the case should not be withdrawn. As stated in the former opinion of this court, no questions are pending here. Therefore no reason remains for holding the case in court. It is therefore ordered that the motion to withdraw is granted; and the judgment of the court below stands Affirmed.


text:
    1065.
    RAGAN v. COLEY & BROTHER et al.

    1. The affidavit of foreclosure and other proceedings to foreclose mortgages on personal property, including the fi. fa., are amendable to the same extent as ordinary suits.
    2. A transfer of a mortgage fi. fa. is amendable by the transferee, with the consent of the transferor.
    3. A transferee of a mortgage fi. fa. can foreclose the mortgage in his own name as transferee, if for any reason the first foreclosure on which the fi. fa. is based is irregular or defective.

      4. “If other fi. fas. are levied on the mortgaged property, and the same is sold, the mortgage fi. fa. may, nevertheless, felaim the proceeds of the sale, if its lien is superior.”
    5. Money rules are in the nature of equitable proceedings, and the right of the respective claimants should be determined by equitable principles. Therefore, where the transferee of a mortgage fi. fa. holds the same as a bona fide purchaser for value, without any notice of any defect in the foreclosure proceedings, and without notice that any one other than the mortgagee, who is also the transferor of the fi. fa., has an interest in the mortgaged property, his right to the proceeds of the mortgaged property is superior to that of the holder of a common-law judgment, and fi. fa. issued thereon, subsequent in date to the mortgage.
    Appeal, from Pulaski superior court — Judge Martin. January 15, 1908.
    Submitted May 5,
    Decided June 18, 1908.
    The questions in this ease arise on a rule against the constable for money in his hands, realized from the sale of personal property by virtue of a common-law execution against Blackshear. The rule was brought by Coley & Brother, transferees of a mortgage fi. fa. against Blackshear; and D. L. Eagan, the holder of the common-law fi. fa. under which the property was sold, was made a, party to the rule. All questions of law and fact were submitted to the court without the intervention of a jury, and the fund was awarded to Coley & Brother, the holders of the mortgage execution. The facts were stipulated, and were substantially as follows: On November 13, 1902, the defendant in execution, James Black-shear, made his note, payable to B. F. Boone, agent, or bearer, for $177.43, due September 1, 1903. This note was secured by a mortgage on personal property set out in the body of the note. The mortgage was properly executed, and was recorded on November 20, 1902. On September 27, 1903, Boone, agent, foreclosed the mortgage, and in his affidavit of foreclosure recited, that he was agent for Miss Ida Purifoy, and that “she is the owner of the mortgage hereto attached.” The note and the mortgage were attached to the affidavit. The mortgage given to secure the payment of the note named B. F. Boone, agent, as mortgagee. It was not alleged that Miss Ida Purifoy was the owner of the note, or that the mortgage had ever been transferred to her, and there was no evidence to this effect. Based on Boone’s affidavit as agent, the mortgage fi. fa. was issued from the county court of Pulaski on September 28, 1903, the fi. fa. following the mortgage and reciting that Boone, agent, had recovered the sum therein set forth, against J ames Blackshear, on the foreclosure of the mortgage made by him to B. F. Boone, agent, and commanding the sale of the property therein described, to satisfy the execution. On September 29, 1903, the sheriff levied this mortgage fi. fa. on the mortgage property. On September 30, 1903, the mortgage fi. fa. was, for value received, transferred to G. B. Coley & Brother by J. B. Mitchell, attorney for B. F. Boone, agent. It was admitted that Mitchell, as attorney, had authority to make the transfer. Miss Ida Purifoy, mentioned by Boone, in his affidavit to foreclose the mortgage, as the owner thereof, was, at the time of the foreclosure and for twenty years prior, a lunatic, confined in the State asylum at Milledgeville. Boone was her half brother, and had been for many years in possession and manager of a plantation in Pulaski county, called the “Purifoy place,” which was owned in common by her and himself and J. M. Boone, John L. Anderson Sr., John L. Anderson Jr., and Miss Aline Anderson. In the year 1903 Boone, acting for himself and as agent for the other heirs, rented this, plantation to James Blackshear. The note and the mortgage made by Blackshear were taken partly for the rent of this plantation for' the year 1903, and partly in payment of a mule which Boone, as agent, sold to him.. Boone collected from Coley & Brother the money on the note and mortgage, and from James Blackshear the money for the rent for 1903, and, after paying taxes and costs, applied the balance of the money to such items as ready-made clothing, and other “necessaries and comforts” for Miss Ida Purifoy. Blackshear, in his negotiation with Boone, as tenant, and in giving the note and the mortgage, dealt with him as an individual, and did not know of his agency, and made no defense to the foreclosure of the mortgage. Coley & Brother paid the money for the transfer of the note and mortgage and fi. fa. to J. B. Mitchell, attorney, without notice or knowledge of any defect in the mortgage foreclosure proceeding, or in the mortgage fi. fa., neither the note, the mortgage, the mortgage fi. fa., nor the transfer containing any reference to Miss Ida Purifoy as having any interest therein. .
    On the hearing of the rule, Coley & Brother, over the objection of D. L. Eagan, who held the common-law execution, were allowed by the court to file the following amendments: (1) To amend the transfer of the mortgage fi. fa., made to them, so that the transfer as amended should read as follows: . “For value received T hereby transfer the within mortgage fi. fa. to G. E. Coley & Brother, together with, the lien arising from the same, and the note and mortgage on which said fi. fa. is based, together with all the right, title, privilege, and interest of B. F. Boone, agent, as landlord and mortgagee, without recourse on B. F. Boone, agent. This 30th day of September, 1907. J. B. Mitchell, attorney for B. F. Boone.” The words “as landlord and mortgagee” were added to the transfer by this amendment. (2) “Defendant in tlio mortgage fi. fa. upon which the money in question was brought into court did not file a counter-affidavit to the foreclosure of said mortgage, nor give bond in the terms of the statute in such cases made and provided. Movants are bona fide purchasers for value of said mortgage fi. fa., valid on its face, without notice of any defect or defense thereto.” (3) “That [movants] are the owners and holders of a certain note and mortgage signed by James Blackshear and made payable to B. F. Boone, agent, and that the money in court arose from the sale of the property in said mortgage; that said note and mortgage is superior to the common-law fi. fa. in favor of D. L. Eagan vs. James Blackshear, which fi. fa. is claiming the monejr now in. court and which arose from the sale of the property given to secure the note held by G. E. Coley & Brother, and referred to in [the original petition]; that James Blackshear is wholly insolvent and unable to respond to any judgment that may be obtained against him; that if movants are not .-allowed payment of their older lien, out of the fund in court, they are wholly without remedy; that movants, as transferees, have foreclosed the mortgage given to secure the note held by them, :and have the'execution in court, and hereby tender the same as the highest and oldest paper and lien on the fund in court.” (4) “That in the taking of the note and mortgage dated November 13, 1902, for $177.42, on which a foreclosure was had, B. F. Boone was acting as the kinsman and next friend of and for the use of Miss 1 da Purifoy, and was likewise acting in his individual capacity and for the heirs of Mrs. II. II. Purifoy, and that the money arising from the said note and mortgage, after the payment of the expenses of foreclosure, was spent in the maintenance of Miss Ida Purifoy and for her comfort; that the stock and wagon named in the above-described note and mortgage were sold to James Blaekshear for the purpose of making a crop on the Purifoy place for the year 1903, and was for the benefit of the said Miss Ida Purifoy, and the benefit of which, after deducting expenses, she received. And [movants] pray that if it be deemed by the court necessary, said mortgage-foreclosure proceedings be amended so as to show that the said B. P. Boone sues for the use of Miss Ida Purifoy and for the other common owners.”
    Coley & Brother introduced in evidence their foreclosure proceedings as transferees. The execution in favor of D. L. Eagan against James Blackshear, from the county court of Pulaski, is dated December 13, 1904, and is founded on a common-law judgment obtained December 9, 1904, for $87.22 principal, and there is an entry of levy thereon, dated December 26, 1904, reciting that it was levied “on one black horse named Dick,” as the property of James Blackshear, found in his possession. The horse was sold under this levy. This horse is a part of the property covered by the mortgage made to Boone, agent, and also levied upon by the sheriff by virtue of the mortgage fi. fa., prior to the levy of the common-law execution. On the day of the sale Coley & Brother placed their mortgage execution in the hands of the officer and claimed, the proceeds of the sale. D. L. Eagan, as the holder of the common-law execution, on the hearing of the rule made an attack on the validity of the mortgage fi. fa. transferred to Coley & Brother, on the grounds, that it was based on a foreclosure in which Miss Ida Purifoy was the real creditor, the real plaintiff, and the real holder of the mortgage, and that she is and has been for the last twenty years a lunatic; that she did not foreclose the mortgage, and, being a lunatic, could not have an agent, and the foreclosure of Boone as her agent was void, and that the transfer by Boone, agent, of the mortgage foreclosure was also void, as a person non compos mentis can not have an agent; that this mortgage is not, as to the fund in court, a superior lien to that asserted by this intervenor, for in the affidavit of foreclosure it is asserted that B. F. Boone is the agent of Miss Ida Purifoy in the foreclosure, and there is no attempt to foreclose the mortgage in his own name and for his own benefit; whereas the fi. fa. based thereon is not one in favor of Ida Purifoy, but in favor of Boone as an individual.

      The court awarded the money to the mortgage fi. fa. held by Coley & Brother, transferees; and to this judgment D. L. Eagan, excepted, and assigns-error on the following grounds: (1) The court erred in allowing the amendments offered by Coley & Brother to their pleadings; the objection to the first amendment being that it was immaterial and irrelevant; the objection to the second amendment being that Coley & Brother had not shown such title to the paper as would authorize them to amend the foreclosure proceeding; and further that it was too late to amend the foreclosure as proposed; the objection to the third amendment being that Coley & Brother had not shown such title to the paper as-Would authorize them to amend the transfer or assignment of the mortgage lien; and further that it was now too late to amend the transfer in the manner proposed; the objection to the fourth amendment being that the lien of the note and mortgage had not been legally assigned to Coley & Brother, and hence they had no right. to. foreclose the mortgage, and that, there being no legal and valid foreclosure of the mortgage at the time the property was sold, Coley & Brother had no right to substitute a new foreclosure and a new fi. fa. and to claim the proceeds'of the sale under this new foreclosure and new fi. fa. (2) The court erred in admitting in evidence the foreclosure and fi. fa. of Coley & Brother, transferees. (3) The court erred in awarding the money in the hands of the bailiff to Coley & Brother, but should have awarded the money to D. L. Eagan on his common-law fi. fa.

      W. L. & Warren Grice, for plaintiff in error.

      J. L. Grace, H. M. Boyer, H. E. Coates, T. Fort, contra.
   Hill, C. J.

(After stating the facts.)

The amendments to the original proceedings for the foreGosure of the mortgage made by Boone, agent, were properly allowed by the court. The Civil Code, §5122, provides, that “All affidavits for the foreclosure of liens, including mortgages, and all affidavits that are the foundation of legal proceedings, and all counter-affidavits, shall be amendable to the same extent as ordinary declarations.” See also §5105; Nicholson v. Whaley, 90 Ga. 257 (16 S. E. 84). In the case of Burgwyn Tobacco Co. v. Bentley, 90 Ga. 508 (16 S. E. 216), the Supreme Court holds that all the proceedings in the foreclosure of a mortgage on personal property are amendable, from the affidavit of foreclosure to the mortgage fi. fa. And we think this decision is broad enough to cover all the amendments allowed by the court to the foreclosure proceedings in the present case. The amendment of the transfer of the mortgage fi. fa., which more specifically set out the right, title, and interest therein of the transferor, was properly allowed. We can imagine no possible objection to adding to such transfer that Boone, agent, transferred it not only as agent, but also as landlord and mortgagee. Certainly no one but the transferee could be heard to object to such amendment. This amendment was wholly unnecessary, but entirely harmless.

While we do not think it necessary, in the view we take of the case, to decide whether the second foreclosure made by Coley & Brother was properly admitted, in evidence on the hearing of the rule, yet we can not see any reason why they would not have had the right to so foreclose, if the first foreclosure was irregular. It is not contended that they did not have a good title to the note and the mortgage, and it is not denied that they bought the same for value, without any notice of any defect in the foreclosure proceedings. If their title to the note and mortgage was valid, it follows that they clearly had the right to foreclose the mortgage.

The plaintiff in error insists, that Coley & Brother were not entitled to the fund, because, as holders of the mortgage fi. fa., they did not comply with the law, in that they did not place their fi. fa. in the hands of the officer and cause the property to be sold free from the mortgage; that the effect of this failure was that the horse was sold subject to the mortgage; that their money is still in the horse and he can be resold under the mortgage fi. fa., since nothing but the equity of redemption had been sold under the common-law fi. fa. The Civil Code, §2741, provides: “Property mortgaged may be sold under other process, subject to the lien of the mortgage. If the mortgage is foreclosed, the mortgagee may place his execution in the hands of the officer of the law making the sale, and cause the title unincumbered to be sold, and claim the proceeds according to the date of his lien.” It is contended that the plain meaning of this language is that the holder of the mortgage fi. fa. must place it in. the hands of the officer before the sale, and cause the property to be sold discharged from his lien. Conceding that this interpretation of the statute is correct, yet the evidence clearly shows that the property in question was sold free from the lien of the mortgage; for it appears, from the agreed statement of facts, that the mortgage fi. fa. had been levied upon the property prior to the levy of the common-law fi. fa., and that at the time of the sale by the officer under the common-law fi. fa., the mortgage fi. fa. was in his possession, and the holder thereof claimed the proceeds of the sale; and it further appears that the mortgaged property brought its full value at that sale. The Civil Code, §2758, provides: “If other fi. fas. are levied on the mortgaged property, and the same is sold, the mortgage fi. fa. may nevertheless claim the proceeds of the sale, if its lien is superior.” Here the property was levied upon by a common-law fi. fa. It was sold, and it is admitted that the lien of the mortgage and of the mortgage fi. fa. was superior to that of the common-law judgment and execution.

Disregarding all mere technical questions of law, we think the judgment awarding the fund to the mortgage fi. fa. was clearly right. It is well settled that money rules are in the nature of equitable proceedings, and that the rights of the respective claimants should be determined according to equitable principles. Coleman v. State 75 Ga. 63; Cofer v. Benson, 92 Ga. 795 (19 S. E. 56). Mere irregularities of procedure will not be allowed to defeat legal and equitable rights. The admitted facts show in this case that the fund in court was realized from the sale of mortgaged property; and it was not controverted that the mortgage lien on the property was of superior dignity to that of the common-law fi. fa. It was not controverted that the mortgagee named therein had the legal title to the mortgage and the note secured thereby, whether he held such title for himself alone, or for himself in common with others, and that he transferred to Coley & Brother the legal title to the mortgage and the note in transferring the mortgage fi. fa. The statement made by the affiant, in his affidavit to foreclose the mortgage, that the mortgage was owned by Miss Ida Purifoy, was immaterial. Certainly it becomes immaterial, according to every principle of equitt when it is admitted that she had received the proceeds arising from the transfer of the mortgage by the agent. She could not contest the-validity of the transfer, under these circumstances, and certainly one who held an inferior lien to the mortgage would not be allowed to do so. Strictly speaking, we think the foreclosure of this mortgage was by B. F. Boone as an individual, and the note and mortgage were made payable to him as an individual, and were transferred by him as an individual; because the word “agent,” following his name in all of these instruments, without more, has no legal effect. It is also conceded that Coley & Brother paid for this mortgage and note and the mortgage fi. fa. without notice of any irregularity in the transfer of the mortgage; for neither the note, the mortgage, nor the mortgage fi. fa. contained anything to put them on notice that any one was interested in the mortgage property, except B. F. Boone, agent. They were not called upon, by the use of the word “agent,” to inquire as to Boone’s authority to make the transfer; for, as a matter of law, the word “agent” meant nothing, and Boone, under the law, had authority as an individual to make such transfer. But whoever had any equitable interest in the property covered by the mortgage, Boone had the legal title thereto, and the right, therefore, to assign or transfer such title. And in addition to this statement of the law, which we think clearly establishes the legal title of Coley & Brother to the mortgage fi. fa., where it also appears that the money which they paid in good faith for such legal title went to those who had the beneficial interest in the property covered by the mortgage, they were entitled to the fund in court arising from the sale of the mortgaged property. The judgment of the trial court is therefore Affirmed.